regulation has interfered with distinct investment-backed expectations. Concrete Pipe, 113 S. Ct. at 2290-91.
As to the first factor, defendants here do not raise arguments with respect to the character of the governmental action. Furthermore, the character of the government action does not change with respect to different employers who are subjected to withdrawal liability because the focus in each case is the government's action of imposing withdrawal liability. See Lyons, 1994 U.S. Dist. LEXIS 4828, 1994 WL 129955, at *12. Therefore, the analysis set forth in Concrete Pipe applies with equal force to this case: the MPPAA's withdrawal liability is an "interference with the property rights of an employer arising from a public program that adjusts the benefits and burdens of economic life to promote the common good, and, under our cases, does not constitute a taking requiring government compensation." 113 S. Ct. at 2290.
As to the second factor, the Supreme Court recognized that the economic impact of the withdrawal liability could be harsh, and stated that the appropriate test is whether the party that has been assessed withdrawal liability has shown that its withdrawal liability is "out of proportion to its experience with the plan." Id. at 2291. Defendants have not shown that the company's withdrawal liability is out of proportion to its experience.
The parties here focus on the third factor, the degree of interference with Cristinzio's, the Control Group's, and Russell G. Taddei's reasonable investment-backed expectations. The Supreme Court has stated that a "reasonable investment-backed expectation' must be more than a unilateral expectation or abstract need." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984). By the express terms of the Plan at issue here, each contributing employer's sole obligation to the Plan was to pay the fixed sum contributions required under the terms of the collective bargaining agreement (Taddei Aff. P4). ERISA, which marked the advent of contingent withdrawal liability was not enacted for almost ten years after Cristinzio joined the Plan. Thus, it is possible that when it joined the Plan in 1965, Cristinzio had distinct investment-backed expectations that its liability was limited with respect to the payment of pension benefits. It is similarly possible that in 1971-72, when Russell and Donald Taddei acquired Cristinzio and formed the entities that make up the Control Group, they had distinct investment-backed expectations that their personal liability and the liability of the Control Group entities were limited with respect to the payment of pension benefits.
However, to the extent that Cristinzio, and the rest of the Control Group, after its formation in 1971-72, expected this limited liability to last forever, such expectations were unreasonable and amounted to a unilateral expectation or abstract need. "Pension plans ... were the objects of legislative concern long before the passage of ERISA in 1974." Connolly, 475 U.S. at 226. Judge Padova found in Lyons that the defendants' investment-backed expectations changed each time it executed a collective bargaining agreement. 1994 U.S. Dist. LEXIS 4828, 1994 WL 129955, at *14. The same holds true here: the defendants voluntarily executed collective bargaining agreements on at least three separate occasions between the enactment of MPPAA in 1980 and their withdrawal from the pension fund in 1992 (Taddei Aff. PP9-12; Einhorn Decl. § 3; Exhs. 8, 9, 10). These collective bargaining agreements reaffirmed the defendants' status as a contributing employer in the Plan, even after the advent of withdrawal liability.
Finally, I note that every Circuit to consider a Takings Clause challenge to the MPPAA has held that the withdrawal liability provisions do not violate the Takings Clause. See, e.g., Keith Fulton & Sons, Inc. v. New England Teamsters and Trucking Industry Pension Fund, 762 F.2d 1124 (1st Cir. 1984, modified on other grounds, 762 F.2d 1137 (1st Cir. 1985); Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. Thompson Building Materials, Inc., 749 F.2d 1396 (9th Cir. 1984); Terson Co., Inc. v. Bakery Drivers and Salesmen Local 194, 739 F.2d 118 (3d Cir. 1984).
Accordingly, IT IS ORDERED that plaintiffs' Motion for Summary Judgment (Docket # 16) is GRANTED. Judgment is entered in favor of plaintiffs, Teamsters Pension Trust Fund of Philadelphia and Vicinity and William J. Einhorn, and jointly and severally against defendants, Domenic Cristinzio, Inc., Delaware Valley Car & Truck Leasing, The Russell G. Taddei and Donald R. Taddei Building Partnership, Russell R. Taddei, and Systems Furniture Installations, Inc.
Anita B. Brody, J.