We also note that, according to arbitrator's decision, the only challenge to the plaintiff's assessment by the defendants was the plaintiff's treatment of them as a "commonly controlled group" within the meaning of ERISA, thereby rendering them jointly and severally liable for their combined withdrawal liability. We do not believe the fact that the arbitrator may have accorded, in light of Yahn and McDonnell, an improper presumption of correctness to the plaintiff's assessment presents an impediment to our resolving this matter, however, for even according the defendants de novo review of the plaintiff's calculations, we find the plaintiff is entitled to enforcement of the arbitration award against the defendants.
The defendants' challenge to the plaintiff's treatment of them as a "commonly controlled group" consists of two facets. First, they cite Sheldon Mehrman's testimony as to the manner in which SHC and the sole proprietorship were maintained as two completely separate and distinct entities. The concept of a "commonly controlled group" for purposes of ERISA, however, is not so much a question of the purported group members' operational relationship as it is of ownership and control. Here, Sheldon Mehrman readily admitted that not only was he the sole owner of the proprietorship, but that he was also the sole shareholder and chief operations officer of SHC. Thus, the sole proprietorship and SHC formed the purest commonly controlled group possible, i.e., a group with only one owner and head. See, e.g., IUE AFL-CIO Pension Fund v. Barker & Williamson, 788 F.2d 118 (3d Cir. 1986) and Connors v. Calvert Development Co., 622 F. Supp. 877 (D.D.C. 1985).
The defendants next contend that the common control group concept as contemplated in ERISA applies only to corporations. The defendants' argument is baseless. 29 U.S.C. § 1301(b) specifically provides that, ". . . all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer . . ." (Emphasis added.); see also, Connors v. Peles Coal Co., 637 F. Supp. 321 (D.D.C. 1986) and Connors v. Clavert Development Co., supra. A commonly controlled group may, for example, consist of a group of corporations, a partnership and corporation or, as here, a sole proprietorship and a corporation. Hence, we find no merit in the defendants' argument.
The defendants' final challenge to the plaintiff's claim is that, should this Court determine that they are liable for withdrawal liability in the amount assessed by the plaintiff, i.e., $ 238,198.75, the Fund is, nevertheless, not entitled to collect the interest and liquidated damages they seek. At trial, Jeffrey Warbet, an acting assistant vice-president of Amalgamated Life Insurance Company, the administrator of the Fund, testified that as of July 2, 1987, he calculated the defendants' combined withdrawal liability to be $ 490,493.65. He stated that this figure was based on a principal of $ 238,198.75, i.e., the plaintiff's calculation of the defendants' withdrawal liability, compounded by the addition of interest thereon at the rate of 20 % per annum. Warbet testified that the interest rate of 20 % was arrived at by taking the interest rate of 10 % prescribed by the Plan and doubling it so as to include an equal amount in the form of "liquidated" damages. The defendants contend that since neither § 1401(b) nor § 1451 provide for the recovery of such interest and liquidated damages, the plaintiff possesses no right to recover such. The defendants' argument, however, ignores the import of § 1451(b), which provides that in an action under § 1451 to compel the payment of withdrawal liability, ". . . any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contribution (within the meaning of section 1145 of this title). " (Emphasis added.) Therefore, in an action such as this, by virtue of §§ 1451(b) and 1145, we must look to 29 U.S.C. § 1132(g)(2). See Penn Elastic Company v. United Retail and Wholesale Employees Union, Local 115 Joint Pension Fund, 792 F.2d 45 (3d Cir. 1986). Doing so, we find that not only is the plaintiff entitled to recover the defendants' unpaid withdrawal liability, but also (1) interest thereon, (2) an amount equal to the greater of the same interest just mentioned or liquidated damages provided for under the plan, and (3) reasonable attorney's fees and costs. See New York State Teamsters Council Health and Hospital Fund v. City of Utica, 643 F. Supp. 619 (N.D.N.Y. 1986); Bennett v. Machined Metals Co., Inc., 591 F. Supp. 600 (E.D.Pa. 1984); and Lewart v. Woodhull Care Center Associates, 549 F. Supp. 879 (S.D.N.Y. 1982). Section 1132(g)(2) further provides that the rate of interest to be applied is that prescribed by the plan, or, if none, the rate prescribed by 26 U.S.C. § 6621. Here, Warbet testified that the rate of interest provided for by the Plan is 10 %. Thus, the plaintiff's calculation of "double interest" at the rate of 20 % per annum was completely correct.
In sum, we find and conclude the following: (1) that the plaintiff timely filed this action; (2) that the plaintiff is entitled to enforcement of the arbitration award described above as to Sheldon Mehrman as well as SHC; (3) that Sheldon Mehrman, t/a Meyer D. Mehrman & Son, and SHC constitute a "commonly controlled group" within the meaning of ERISA, and thus, each is jointly and severally liable for the combined withdrawal liability of both; (4) that the plaintiff is entitled to "double interest" on the defendants' unpaid withdrawalliability obligation at the rate of 20 % per annum from March 17, 1982; and (5) that the plaintiff is entitled to recover reasonable attorney's fees and costs incurred in prosecuting this action. Judgment will be entered accordingly.
AND NOW, this 12th day of January, 1988, in accordance with the attached memorandum, IT IS ORDERED that:
(1) JUDGMENT IS ENTERED in favor of the plaintiff and against the defendants, jointly and severally, in the amount of $ 490,643.65 ($ 238,198.75 plus "double interest" thereon at the rate of 20 % per annum from March 17, 1987, to July 2, 1987 plus $ 150.00 for arbitrator's fees and legal costs as awarded by the arbitrator); and
(2) the plaintiff is awarded the reasonable attorney's fees and costs it incurred in prosecuting this action. The plaintiff shall within twenty(20) days of the date that this Order is filed with the Clerk of this Court file an appropriate affidavit setting forth such fees and costs.