                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2002

Mushalla v. Teamsters Local 863
Precedential or Non-Precedential: Precedential

Docket No. 01-2879




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PRECEDENTIAL

       Filed August 12, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2879

RUSSELL MUSHALLA; *STELLA SZWAST, individually and
in her capacity as the Executrix of the Estate of Edward
Szwast; PAUL FRITZINGER; LUIS GARCIA; CHARLES
FRITZ; FRANCISCO CORRAL; WALTER BORIS, JR.,
       Appellants

v.

TEAMSTERS LOCAL NO. 863 PENSION FUND

*(Amended -- See Clerk’s Order dated 1/3/02)

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 99-cv-03260)
District Judge: Hon. Alfred M. Wolin

Argued: April 1, 2002

Before: SLOVITER, FUENTES and MICHEL,*
Circuit Judges

(Filed August 12, 2002)
_________________________________________________________________

* Hon. Paul R. Michel, United States Court of Appeals for the Federal
Circuit, sitting by designation.



       Stephen E. Klausner (Argued)
       Klausner & Hunter
       Somerville, NJ 08876

        Attorney for Appellant

       Vincent J. Nolan, III (Argued)
       Kenneth I. Nowak
       Zazzali, Fagella, Nowak, Kleinbaum
        & Friedman
       Newark, NJ 07102

        Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The appellants (hereafter "Employees"), members of the
Teamsters Union, filed suit against Teamsters Local No.
863 Pension Fund, under the Employee Retirement Income
Security Act (ERISA) of 1974, Pub. L. No. 93-406, 88 Stat.
829, 29 U.S.C. S 1001 et seq. (2002), claiming the Pension
Fund violated its fiduciary duty to them by failing to
disclose a proposed change in benefits prior to their
retirement. After determining that the Pension Fund was
not "seriously considering" the change in plan benefits
when the Employees inquired about that possibility, the
District Court entered summary judgment for the Pension
Fund. Mushalla v. Teamsters Local No. 863 Pension Fund,
152 F. Supp. 2d 613, 630-31 (D.N.J. 2001).

In this appeal, the Employees argue that the District
Court erred as a matter of law in its application and
interpretation of the "serious consideration" test we
enunciated in Fischer v. Philadelphia Electric Co., 96 F.3d
1533 (3d Cir. 1996) (Fischer II), and that genuine issues of
material fact are still in dispute. In addition, the Employees
assert that because the Pension Fund was a multiemployer
fund, it had a greater duty to disclose proposed changes
than a fund administered by a single employer.

                                2


I.

BACKGROUND

Appellants Russell Mushalla, Edward Szwast,1 Paul
Fritzinger, Luis Garcia, Charles Fritz, Francisco Corral and
Walter Boris, Jr. (collectively, the Employees) retired
voluntarily from Wakefern Food Corporation, the
merchandising and distribution arm of ShopRite, between
December 19, 1997 and January 30, 1998. Each had been
employed at Wakefern for over thirty years. All of the
Employees participated in the Teamsters Local No. 863
Pension Fund (the Fund), a multiemployer fund
administered jointly by the Teamsters Local No. 863 Union
(the Union) and management representatives from
Wakefern and other participating employers. The Fund is
managed by five trustees appointed by the Union and five
trustees selected by participating employers. Individual
employers contribute to the Fund at rates governed by
collective bargaining agreements with the Union.

The Fund does not apportion benefits based on the
individual amount contributed by any individual employee.
Instead, the Fund distributes monthly retirement benefits
by a formula based on the number of years the employee
worked for a participating employer (years of service)
multiplied by the rate of contribution. At the time the
Employees retired, the Fund capped the years of service
used in calculating pension benefits at thirty years. In other
words, employees received no credit for any year of service
above thirty years in the calculation of their pension
benefits. Following the Employees’ retirement, the Fund
announced that effective April 1, 1998 retirement benefits
would be calculated based on years of service up to thirty-
five years. All of the Employees are currently receiving
benefits with their years of service capped at thirty.
_________________________________________________________________

1. Edward Szwast died on October 28, 2001. His widow, Stella Szwast,
who receives an actuarially reduced pension, is a surviving beneficiary,
and was substituted as a party in this proceeding individually and as
executrix of her husband’s estate, pursuant to Fed. R. App. P. 43(a)(1),
by order of the clerk of this court on January 3, 2002.

                                3


The Fund began revising its benefit scheme in April 1997,
when it retained Thomas J. Hart, a legal consultant, to
redraft the terms of the Fund Plan (the Plan) to take into
account changes made to the Internal Revenue Code and
other laws. After reviewing the Plan and interviewing Fund
representatives, Hart began drafting a restated Plan, which
he worked on through October and November 1997. He did
not discuss changing or revising the thirty-year cap on
years of service with anyone related to the Fund during that
time.

The Union business agent, Joseph Tramontana, who also
served as a Trustee of the Fund, first raised the idea of
increasing the cap on years of service. Tramontana, who
was concerned that the Union was losing too many of its
senior members, concluded that one way to retain senior
members would be to increase their pension benefits to
reflect years of service beyond thirty years. In early
November 1997, Tramontana asked the Fund actuary,
Stanley Weisleder, to perform a preliminary check into
whether the Fund could afford to increase the maximum
cap on years of service. Tramontana did not propose a
specific number of years, and he did not discuss his idea
with anyone else at that time. On November 10, 1997,
Weisleder performed an analysis of the potential impact on
the Fund if the cap on years of service were increased to
forty-two years.

At the end of November, Weisleder advised Tramontana
and the Plan consultant, Anthony Miranda, that the Fund
could not afford to increase the maximum cap to forty-two
years. Weisleder suggested that the Fund could probably
afford a smaller increase in the cap to approximately thirty-
five years, although he noted that he would need to perform
an actuarial analysis for such an increase.

On December 4, 1997, Hart completed a draft of the
restated Plan, which he distributed to the Plan’s advisors.
That draft contained no increase to the cap on years of
service. After Tramontana reviewed the December 4 draft,
he spoke to Miranda, Hart, and the Fund attorney, Andrew
Zazzali, about increasing the cap on years of service to
thirty-five years. They told him that any increase in the cap
would have to be approved by the Fund actuary and the

                                4


Trustees. Tramontana responded "that [he] would like to
see [the cap increase] added to the proposed revised Plan so
that we could at least get the ball rolling on having it
reviewed." App. at 320.

The Union held a general membership meeting on
December 7. Mushalla was the only appellant to attend. At
the meeting, Tramontana reported that the Fund was
considering an increase in the cap on years of service.
Tramontana also advised the membership that a possible
buyout of about 200 Pathmark employees was under
consideration. Mushalla left the meeting with the
misunderstanding that the change in the cap on years of
service was applicable only to Pathmark employees.

On December 8, Miranda and Weisleder asked Hart to
increase the cap in the restated Plan to thirty-five years.
Hart did so, and reviewed the various changes in the
restated Plan with the Trustees at their scheduled meeting
the next day, December 9. Hart informed the Trustees that
no cost study or actuarial analysis had been performed of
the proposed increase to the cap. The Trustees responded
by directing Weisleder and Zazzali to review the proposed
increase in the cap to determine whether the change was
feasible. Weisleder was instructed to report his cost-study
findings to the Trustees before their next scheduled meeting
on January 20, 1998. The minutes reflect that the Trustees
approved the restated Plan "contingent upon the reviews of
the Fund professionals and Trustees." App. at 283.

Meanwhile, Mushalla asked Daniel Mariano, a union
business agent and Fund Trustee, on a few occasions
whether any increases in Fund benefits were being
considered. On each occasion, the last one being December
20, 1997, Mariano told Mushalla that no increases were
under consideration. Szwast, Fritzinger, Garcia and Boris
all questioned either Mushalla2 or Mariano sometime in
1997 about a possible pension increase. All were told that
no pension increases were under consideration. Fritz relied
_________________________________________________________________

2. Because the Union is organized vertically, union members frequently
approached Mushalla, who is a shop steward, with grievances and
questions. Mushalla would take up issues with Mariano, who in turn
would report to his supervisor, Tramontana.

                                5


on Fritzinger, his brother-in-law, for the same information.
Corral never questioned anyone with the Fund or the Union
about pension benefits before he retired.3

In January 1998, Weisleder performed the actuarial
analysis and informed Miranda and Tramontana that it was
financially feasible for the Fund to increase the cap to
thirty-five years. At their scheduled January 20 meeting,
Weisleder informed the Trustees of his finding. After
accepting Weisleder’s actuarial analysis, the Trustees began
to discuss how to obtain IRS approval for the change, what
type of notice would be necessary, and when notice had to
be given to participants about the proposed change. Hart
advised them that the Fund was required to provide at least
sixty days notice of any proposed change in pension
benefits. App. at 342. The Trustees voted unanimously to
approve the increase in the maximum cap on years of
service to thirty-five years effective April 1, 1998. On
February 1, 1998, the Plan administrator sent a letter to all
Plan participants informing them of the increase in the cap
on years of service and the effective date of April 1, 1998.

On July 8, 1999, the Employees filed suit in the United
States District Court for the District of New Jersey claiming
that the Fund had violated its fiduciary duty under ERISA.
On May 7, 2001, the Fund moved for summary judgment.
Following oral argument, the District Court concluded that
the Fund did not violate its fiduciary duty to the Employees
by failing to inform them of the proposed change to the
pension benefits. The District Court also determined the
Fund had no duty to communicate the proposed cap
increase in response to the Employees’ inquiries prior to
January 20, 1998, when the Fund first "seriously
considered" the increase in the cap. On that basis, the
District Court granted the Fund’s motion for summary
judgment and dismissed the Employees’ complaint. This
appeal timely followed.
_________________________________________________________________

3. The parties have not briefed the effect of Corral’s failure to make any
inquiry regarding prospective changes in the pension but resolution of
that issue is unnecessary to our decision here.

                                6


II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 29 U.S.C.
S 1132(e)-(f), and this court enjoys jurisdiction under 28
U.S.C. S 1291. The parties agree that this court exercises
plenary review over the District Court’s grant of summary
judgment and that we should "affirm summary judgment ‘if
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.’ " Walling
v. Brady, 125 F.3d 114, 116 (3d Cir. 1997) (quoting Smith
v. Hartford Ins. Group, 6 F.3d 131, 135 (3d Cir. 1993)); see
also Fed. R. Civ. P. 56(c).4 We review the facts in the light
most favorable to the Employees, the party against whom
judgment was entered. Beers-Capital v. Whetzel , 256 F.3d
120, 130 n.6 (3d Cir. 2001).

III.

DISCUSSION

A.

Multiemployer Plans
1.

In enacting ERISA, Congress sought "to protect . . . the
interests of participants in employee benefit plans and their
_________________________________________________________________

4. This court has previously reserved the question of the appropriate
standard of review of a district court’s determination of "serious
consideration." See Kurz v. Phila. Elec. Co. , 96 F.3d 1544, 1549 n.4 (3d
Cir. 1996); Fischer II, 96 F.3d at 1541 n.3. In Fischer I, we noted that the
standard for materiality "is a ‘mixed question of law and fact.’ " Fischer
v. Phila. Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993) (Fischer I). However,
as we noted in Fischer II, our discussion in Fischer I "linked serious
consideration to materiality, indicating that it would be a question of
law, subject to plenary review." Fischer II , 96 F.3d at 1541 n.3. Because
the procedural posture requires us to decide this case as a matter of law,
we do not reach the question of the appropriate standard of review.

                                7


beneficiaries . . . by establishing standards of conduct,
responsibility, and obligation for fiduciaries of employee
benefit plans, and by providing for appropriate remedies,
sanctions, and ready access to the Federal courts." 29
U.S.C. S 1001(b). In this appeal, the Employees contend
that the Fund violated its fiduciary duty to them by failing
to advise them of the proposed increase in the cap on years
of service in response to their inquiries. A plan
administrator breaches its fiduciary duty under ERISA if it
materially misleads employees who inquire regarding
possible changes in a plan. Fischer v. Phila. Elec. Co., 96
F.3d 1533, 1538 (3d Cir. 1996) (Fischer II). A plan
administrator makes a material misrepresentation when it
responds to employee inquiries by representing it is not
considering a change to its pension plan, if it is in fact
giving "serious consideration" to a change. Id.

The Employees argue that even if the Fund was not
"seriously considering" a change to the Plan at the time
they made their inquiries, the Fund was obligated to inform
them of the proposed change. The Employees assert that
because the Fund is a jointly-managed, multiemployer
plan, the "serious consideration" test this court enunciated
in Fischer II does not apply to it. Essentially, the Employees
invite this court to create a new line of authority,
paralleling Fischer II but setting a lower standard than the
"serious consideration" test to take into account the
differences between multiemployer and single employer
plan administration.

The Employees maintain that this court created the
"serious consideration" test in Fischer II to "strike a balance
between an employee’s right to information and an
employer’s need to operate a business." Br. of Appellants at
17. Although the Employees accept that Fischer II is good
law, they assert that the "underlying tension[noted in
Fischer II] . . . is simply inapposite" to a multiemployer
plan, because "[t]he corporate profit motive simply does not
exist herein." Id. Thus, the Employees contend the Fischer
II "serious consideration" test should not apply to
multiemployer pension plans because for multiemployer
pension plans "there is no need to strike a balance between
an employee’s right to information and an employer’s need

                                8


to operate a business, given that companies must develop
strategies and evaluate options as they prepare for
decisions." Id.

The District Court rejected the Employees’ argument that
Fischer II should apply differently to multiemployer plans
than to single employer plans. The District Court concluded
that this court’s decision in Walling v. Brady , 125 F.3d 114
(3d Cir. 1997), controlled. Mushalla, 152 F. Supp. 2d at
625. The District Court stated that the trial court in Walling
had "based its decision largely on the same distinction
between multi- and single-employer plans that plaintiffs
ask this Court to make here. The Court of Appeals
reversed, finding no ‘material difference in the
administration of single- and multi-employer plans.’ " Id.
(alteration in original) (quoting Walling, 125 F.3d at 118).

Unlike this case, where the duties of plan administrators
in communicating changes in benefits to plan participants
are at issue, Walling considered the fiduciary duty of plan
administrators toward plan participants when the
administrator amends the plan. In other words, Walling
concerned the duties of administrators in making changes
to a plan, while this case concerns the duties of the
administrator to communicate that change to employees.

Nonetheless, the conclusion in Walling that absent some
material difference in administration there is no distinction
between single employer and multiemployer plans is
directly pertinent. Congress clearly contemplated that an
employer could choose between administering its own
pension plan and conjoining its efforts with other
employers. See, e.g., 29 U.S.C. S 1002(16)(B) (using the
term "plan sponsor" rather than "employer," and thereby
encompassing "a plan established or maintained by two or
more employers or jointly by one or more employers and
one or more employee organizations"); 29 U.S.C.
S 1060(a)(1) (directing that other ERISA sections "be applied
as if all employees of each of the employers were employed
by a single employer"). As we held in Walling , where there
is no material difference between the way a multiemployer
plan and a single employer plan are administered,"the
simple fact that the plan at issue is a multiemployer plan

                                9


is insufficient" to alter the fiduciary duties of the
administrator. Walling, 125 F.3d at 118.

Even if Walling did not persuade us to reject the proffered
distinction between the fiduciary duties of administrators of
multiemployer and single employer plans for this purpose,
our decision in Fischer II compels the application of the
"serious consideration" test to multiemployer funds. The
District Court determined that "the trustees of a
multiemployer pension fund have the same need to be able
to freely consider changes to the pension plan [as individual
employers]." Mushalla, 152 F. Supp. 2d at 628. The court
noted that "[t]he ‘serious consideration’ test . . . protects
. . . beneficiaries by ensuring that they are not deluged with
information," while a contrary rule "requiring earlier
disclosure[,] could . . . discourag[e] employers from
considering . . . proposals [to amend plans]." Id. The
District Court concluded, "the policy reasons undergirding
Fis[c]her II are equally applicable in this case." Id.

We agree with the District Court. Although Fischer II
came to us in the posture of an early retirement plan
offered by a single employer, the policies we noted in that
case apply with equal force to a jointly-administered,
multiemployer fund. Most importantly, we noted in Fischer
II that " ‘ERISA does not impose a duty of clairvoyance on
fiduciaries. An ERISA fiduciary is under no obligation to
offer precise predictions about future changes to its plan.
Rather, its obligation is to answer participants’ questions
forthrightly, a duty that does not require the fiduciary to
disclose its internal deliberations.’ " 96 F.3d at 1539
(citations and quotations omitted in original) (quoting
Fischer v. Phila. Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993)
(Fischer I)). This is in keeping with "[o]ther courts of
appeals[, which] have likewise emphasized the absence of
any ‘duty of clairvoyance,’ as well as the fact that disclosure
does not extend to internal deliberations." Id. (citing
Swinney v. Gen. Motors Corp., 46 F.3d 512, 520 (6th Cir.
1995); Mullins v. Pfizer, Inc., 23 F.3d 663, 669 (2d Cir.
1994); Drennan v. Gen. Motors Corp., 977 F.2d 246, 251
(6th Cir. 1992); Barnes v. Lacy, 927 F.2d 539, 544 (11th
Cir. 1991); Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154,
1164 (6th Cir. 1988)).

                                10


We also observed in Fischer II that although employees
benefit from having pertinent information in making their
employment decisions, requiring disclosure of every
potential plan change

       could result in an avalanche of notices and disclosures.
       For employees at a company . . . which regularly
       reviews its benefits plans, truly material information
       could easily be missed if the flow of information was
       too great. The warning that a change in benefits
       was under serious consideration would become
       meaningless if cried too often.

Id. The Employees have failed to so much as speculate how
employees who participate in jointly-administered plans
would be more adept at negotiating "an avalanche of
notices and disclosures" than employees who work for
companies that manage their own pension plans
individually.

Further, we recognized in Fischer II that"[e]very business
must develop strategies, gather information, evaluate
options, and make decisions. Full disclosure of each step in
this process is a practical impossibility." 96 F.3d at 1539.
The administrators of a jointly-managed, multiemployer
plan are in no better position than an individual employer
in overcoming the practical difficulties referred to in Fischer
II. We know of no authority that suggests that plan
administrators, whether of a single employer plan or a
multiemployer plan, must inform plan participants of the
content of every brainstorming session.

Even assuming the Employees are correct that the
"corporate profit motive" does not influence multiemployer
plan decisions as it may single employer plan decisions, the
administrators of multiemployer plans have no greater duty
of clairvoyance than any other ERISA fiduciary. Persuaded
by Walling and constrained by Fischer II , we hold that
Fischer II’s "serious consideration" test applies with the
same force to multiemployer plans as it does to single
employer plans.

2.

We dispense quickly with the Employees’ suggestion that
the Fund had an affirmative duty to communicate the

                                11


potential amendment of the Plan to them regardless of
whether they made inquiries. The District Court rejected
this contention by noting that Bixler v. Central
Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d
1292 (3d Cir. 1993), and the other cases on which the
Employees relied in discerning an affirmative duty to
disclose plan benefits concern existing plan benefits, not
proposed plan benefits. See, e.g., Bixler, 12 F.3d at 1300;
see also Joyce v. RJR Nabisco Holdings Corp., 126 F.3d
166, 174 (3d Cir. 1997); Jordan v. Fed. Express Corp., 116
F.3d 1005, 1014 (3d Cir. 1997). We agree.

Cases in the Bixler line place an affirmative duty on fund
administrators to provide fund participants with relevant
information regarding existing benefits. The Fischer II line,
by contrast, places a duty on fund administrators to
respond truthfully to the inquiries of fund participants
regarding potential changes to their benefits which are
under "serious consideration." While the two lines of cases
are consistent, they do not overlap. Bixler applies to
existing benefits, Fischer II applies to possible benefits.
Because the increase in the cap of the Pension Fund did
not become effective until April, 1998, long after the last of
the Employees retired, Bixler is not implicated here.

B.

Serious Consideration
The Employees argue that even if the "serious
consideration" test applies, disputed issues of material fact
remain as to whether the Fund seriously considered raising
the cap on years of service at the Trustees meeting on
December 9, 1997. In support of their argument, the
Employees note that the Trustees voted unanimously to
adopt the proposal on December 9, 1997. Although the
Employees acknowledge that the Trustees approved the
plan conditional on Weisleder’s actuarial analysis, the
Employees maintain that cost-analysis or actuarial work is
not a necessary prerequisite to "serious consideration."

The District Court concluded that the Fund did not
seriously consider raising the cap on years of service until

                                12


the January 20, 1998 meeting. Mushalla, 152 F. Supp. 2d
at 630. An ERISA fiduciary gives "serious consideration" to
changing its plan when "(1) a specific proposal (2) is being
discussed for purposes of implementation (3) by senior
management with the authority to implement the change."
Fischer II, 96 F.3d at 1539. These three factors are not
isolated, but instead "the three interact and coalesce to
form a composite picture of serious consideration." Id. We
dispense quickly with the third factor, consideration by
officers with the authority to implement the change, which
the Fund concedes was met for the December 9 meeting.

As to the first factor, a specific proposal follows the
preliminary steps of "gathering information, developing
strategies, and analyzing options." Id. at 1539-40. It must
be "sufficiently concrete to support consideration by senior
management for the purpose of implementation." Id. at
1540. The District Court noted that there was no specific
proposal prior to January 20, 1998 because "the proposal
was . . . not supported by any actuarial analysis" and "the
change in years of creditable service was not discussed in
any detail." Mushalla, 152 F. Supp. 2d at 629-30.

The Employees point to a phrase from the Tenth Circuit’s
decision in Hockett v. Sun Co., 109 F.3d 1515 (10th Cir.
1997), to suggest that "cost-analysis or actuarial work is
not a necessary prerequisite to serious consideration." Id.
at 1525. Taken in context, Hockett is not of much help to
the position of the Employees. As the Hockett court
observed, "[w]hile cost-analysis or actuarial work is not a
necessary prerequisite to serious consideration, it is
unlikely that a specific proposal would be ‘sufficiently
concrete’ without some such information." Id. (emphasis
added) (citing Fischer II, 96 F.3d at 1542). We agree with
the Tenth Circuit and the Employees that cost-analysis and
actuarial work are not always necessary prerequisites to
serious consideration. However, we also agree that"it is
unlikely that a specific proposal would be ‘sufficiently
concrete’ without some such information," id. , particularly
when, as here, the decision was based on the proposal’s
financial viability.
When the Trustees conditionally approved the increase to
the cap on years of service, Weisleder had not yet

                                13


performed a study confirming that the Fund could afford it.
Thus, information crucial to the proposal’s viability was still
to be gathered. As we noted in Fischer II,"[s]erious
consideration can only begin after information is gathered
and options developed." Fischer II, 96 F.3d at 1542.
Without an investigation into what was arguably the single
most important factor in the Trustees’ decision, the
financial viability of the increase, there could be no specific
proposal, no matter how precisely the proposal was drafted.

The absence of "serious consideration" is definitively
established by the second factor of the test. In Fischer II, we
explained that the discussion for implementation element
"distinguishes serious consideration from the preliminary
steps of gathering data and formulating strategy." We
continued, "It also protects the ability of senior
management to take a role in the early phases of the
process without automatically triggering a duty of
disclosure." Id. at 1540. As we noted,"[c]onsideration
becomes serious when the subject turns to the
practicalities of implementation." Id. There is no suggestion
that the Trustees discussed the proposal for the purposes
of implementation at the December 9 meeting. The Trustees
did not discuss implementing the cap increase until they
were assured by Weisleder on January 20 that it was a
financially viable option. It was not until then that the
Trustees addressed obtaining IRS approval, the type of
notice needed, and the date of notice of the forthcoming
change.

The Trustees could not seriously consider the
amendment to the Plan until they had at least investigated
whether it was financially viable and examined some of the
practical restraints on its implementation. We are aware of
the disappointment and frustration of the Employees to
have learned only months after they retired that their
pensions would have been larger had they postponed their
retirement for a short period. However, in light of the lack
of a specific proposal and the absence of any discussion
among the Trustees about implementation, two of the three
Fischer II factors that must interact "to form a composite
picture of serious consideration," Fischer II , 96 F.3d at
1539, we agree with the District Court that the evidence

                                14


raises no disputed issue of material fact as to the absence
of serious consideration by the Trustees of a proposed cap
increase prior to January 20, 1998.

IV.
CONCLUSION

For the reasons set forth, we will affirm the decision of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
