                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS June 10, 2014
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 TRUSTEES OF THE UTAH
 CARPENTERS’ AND CEMENT
 MASONS’ PENSION TRUST; UTAH
 CARPENTERS’ AND CEMENT
 MASONS’ PENSION TRUST FUND,

          Plaintiffs - Appellees,
 v.                                                Nos. 13-4025 & 13-4120
                                                (D.C. No. 2:10-CV-00809-DS)
 ELIZABETH LOVERIDGE, Trustee                             (D. Utah)
 for Perry Olsen Drywall, Inc.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY, ** and GORSUCH, Circuit Judges.




      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
          The late Honorable William J. Holloway, Jr., United States Senior
Circuit Judge, participated as a panel member when this case was heard, but
passed away before final disposition. “The practice of this court permits the
remaining two panel judges if in agreement to act as a quorum in resolving the
appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see
also 28 U.S.C. § 46(d) (noting circuit court may adopt procedure permitting
disposition of an appeal where remaining quorum of panel agrees on the
disposition). The remaining panel members have acted as a quorum with respect
to this Order and Judgment.
      Perry Olsen argues it never withdrew from a multiemployer pension plan

established for the benefit of its unionized workers and those of other employers.

An arbitrator found otherwise. The district court did too. Perry Olsen says all

this was error, but we cannot see how. Whatever may be in dispute (and there is

much in dispute between these parties), one thing isn’t. On June 30, 2003, Perry

Olsen’s collective bargaining agreement expired and at that moment the company

ceased having any obligation to contribute to the multiemployer pension fund. It

is undisputed, too, that under the Multiemployer Pension Plan Amendments Act

(MPPAA), withdrawal liability is imposed whenever an employer “ceases to have

an obligation to contribute under the plan.” 29 U.S.C. § 1383. To be sure, an

employer can reenter a plan and effectively undo its withdrawal liability. 29

U.S.C. § 1387; 29 C.F.R. §§ 4207.1-.11. But Perry Olsen didn’t follow these

procedures either. It withdrew, stopped paying for a period, and never (lawfully)

reentered. Given these facts, it is beyond serious dispute that Perry Olsen

incurred withdrawal liability under the terms of MPPAA.

      To be sure, the arbitrator and district court held that Perry Olsen incurred

withdrawal liability for another reason. After realizing it had incurred withdrawal

liability for its actions in June 2003, the company sought back into the plan. But

it did so without complying with the procedures required by law. And it did so

with payments so minimal that the arbitrator and district court found they weren’t

meant to fund the plan in any serious way — but were aimed instead only at

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avoiding being held to account for the full scope of its withdrawal liability.

Because Perry Olsen’s payments were really an effort to evade or avoid

withdrawal liability, the arbitrator and district court held they should be

disregarded entirely. See 29 U.S.C. § 1392(c). By this comparatively circuitous

path the arbitrator and district court arrived at the same conclusion we do now by

a more direct route — namely, that Perry Olsen incurred withdrawal liability by

leaving the plan and never (lawfully) reentering it. It is clear to us, moreover,

that the trustees presented both theories of withdrawal liability (§ 1383 and

§ 1392(c)) before the arbitrator and district court and no one disputes that this

court may affirm on any basis apparent in the record. See, e.g., Richison v. Ernest

Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

      Neither can we agree that Perry Olsen is entitled to recover the money it

paid into the plan after leaving it. True, Perry Olsen complains in passing that

these monies should be credited toward its withdrawal liability. But this question

was extensively litigated in the district court and the subject of a separate and

lengthy ruling by the district court against Perry Olsen. Despite this, Perry Olsen

offers no meaningful argument why it should prevail on this issue. On appeal

Perry Olsen seeks total victory, insisting that it never withdrew. It does not

develop sufficiently any reason why, should it lose on that question, it

nonetheless deserves to be credited for the payments it made after withdrawing

and without following the lawful procedures for reentry. With so little help from

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Perry Olsen, we decline to investigate the issue any further ourselves. See, e.g.,

Murrell v. Shalala, 43 F.3d 1388, 1389-90 n.2 (10th Cir. 1994) (“[It is a] settled

appellate rule that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.”).

      That leaves us to address only a couple remaining collateral questions. The

arbitrator awarded the plan trustees the fees they incurred in pursuing the

arbitration. The district court found the fee award warranted. Perry Olsen says

this too was in error. But under 29 C.F.R. § 4221.10(c) an arbitrator may “require

a party that initiates or contests an arbitration in bad faith or engages in dilatory,

harassing, or other improper conduct during the course of the arbitration to pay

reasonable attorneys’ fees of other parties.” Everyone accepts that we may

overturn an arbitrator’s award only if there was an abuse of discretion. And it is

hard to say that much happened here. The arbitrator found Perry Olsen engaged

in improper conduct during the course of the arbitration by (among other things)

“repeatedly misrepresent[ing] and mischaracteriz[ing] the testimony, the

evidence, and the arguments of the Plan.” Perry Olsen offers us no reasoned basis

for dislodging that conclusion. True, the company emphasizes that 29 C.F.R.

§ 4221.10(c) “is not a fee-shifting statute” that automatically allows a prevailing

party its fees. But no one disputes that (entirely-beside-the-point) principle. In

this case, the arbitrator didn’t automatically shift fees to the prevailing party. He




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made specific findings of contumacious conduct — and Perry Olsen gives us no

reason for declaring those findings an abuse of discretion.

      Finally, Perry Olsen challenges the district court’s order requiring it to post

an appellate bond under Fed. R. App. P. 7. The company claims that the district

court’s decision to require a bond violates the automatic stay imposed by the

bankruptcy court overseeing its bankruptcy proceeding. But the bankruptcy court

expressly lifted the stay “as to all claims asserted by or against” Perry Olsen in

this litigation. And Perry Olsen fails to identify any legal authority that even

suggests a party in these circumstances might be immune from having to post a

bond. See Rapid Transit Lines, Inc. v. Wichita Developers, Inc., 435 F.2d 850,

852 (10th Cir. 1970) (a party’s failure to cite cases “suggests either that there is

no authority to sustain its position or that it expects the court to do its research”).

Neither has the company persuaded us that the district court abused its discretion

in fixing the amount of that bond. See Westinghouse Credit Corp. v. Bader &

Dufty, 627 F.2d 221, 224 (10th Cir. 1980) (abuse of discretion standard of review

applies to bond amount challenges).

      The judgment of the district court is affirmed.



                                        Entered for the Court



                                        Per Curiam

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