United States District Court, N.D. Ohio, Western Division
Members of the Board of Administration of the Toledo Area UAW Retirement Income Plan, Plaintiff,
OBZ, Inc., et al., Defendants.
G. Carr, Sr. U.S. District Judge.
an ERISA pension withdrawal liability case in which
plaintiff, Members of the Board of Administration of the
Toledo Area UAW Retirement Income Plan, claims defendant,
RAKA Corp. (d/b/a Lockrey Manufacturing) (Lockrey), remains
liable for defendant OBZ, Inc.'s (f/k/a Toledo Wire
Products Inc.) (Toledo Wire) withdrawal liability under the
Employee Retirement Income Security Act (ERISA) and the
Multiemployer Pension Plan Amendments Act (MPPAA).
exists under 28 U.S.C. § 1331.
is defendant Lockrey's motion to dismiss for failure to
state a claim. (Doc. 34). Plaintiff has filed a response
(Doc. 37) to which defendant Lockrey has replied. (Doc. 38).
following reasons, I deny the motion.
September, 2014, Lockrey, a Toledo-based company, entered
into an asset purchase agreement with Toledo Wire, another
Toledo-based company engaged in the wire-forming business.
The purpose of the sale was for Lockrey to become a
wire-forming company. For $250, 000 Lockrey purchased a
portion of Toledo Wire's assets and its customer list.
Lockrey, a nonunion employer, Toledo Wire operated as a union
company and participated in a multiemployer pension plan (the
Plan) under a collective bargaining agreement (CBA) with The
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America. For ERISA
purposes, Toledo Wire was a “contributing
employer” with respect to the Plan.
to the CBA, Toledo Wire made monthly contributions to the
Plan on behalf of its unionized workers until May, 2013. On
that date, Toledo Wire ceased operations covered by the CBA.
The result was a complete withdrawal from the Plan.
Wire remained liable, however, for withdrawal liability under
the MPPAA, which plaintiff alleges Lockrey knew about before
entering into the asset purchase agreement. In accordance
with ERISA and the MPPAA, on October 17, 2013, the Plan
informed Toledo Wire of its withdrawal liability, calculated
at $644, 311. In November, 2013, Toledo Wire made its first
withdrawal liability payment to the Plan and continued to
make such payments to the Plan until October, 2014.
noted above, in September, 2014, Toledo Wire sold the
majority of its assets to Lockrey. Although Lockrey continued
to do the same type of work in the jurisdiction of the CBA
for which contributions were previously required of Toledo
Wire, Lockrey did not make any contributions to the Plan or
withdrawal liability payments following its purchase of
Toledo Wire's assets.
to plaintiff, Lockrey has since continued Toledo Wire's
operations, thus operating as Toledo Wire's successor.
This, plaintiff asserts, is evidenced by:
. The purpose of the sale was for Lockrey to
enter the same type of business in which Toledo Wire
. Lockrey required Toledo Wire to change its
name as a condition of sale;
. Lockrey held itself out as acquiring
Toledo Wire to the public on its website;
. Lockrey acquired all of Toledo Wire's
. Lockrey hired a former Toledo Wire
employee who left Toledo Wire prior to the sale;
. Former Toledo Wire customers were notified
of the sale and the effect that the sale would have on
payments and invoices-namely, that future payments would be
made to Lockrey;
. Lockrey retained over half of Toledo
Wire's former customers until at least October, 2016; and
. Lockrey used all of Toledo Wire's
assets after the sale and currently uses approximately fifty
percent of those assets.
Toledo Wire stopped making withdrawal liability payments to
the Plan, the Plan advised Toledo Wire owners that Toledo
Wire remained under the same legal obligation for withdrawal
liability regardless of any change in ownership. Toledo Wire
did not make any additional payments, and the withdrawal
liability amount remains unsatisfied.
Toledo Wire's failure to make withdrawal payments, on
April 17, 2015, plaintiff filed suit against defendants
Toledo Wire (referred to as OBZ, Inc. in plaintiffs initial
complaint) and Ann Obertacz, part owner of OBZ, Inc.,