Penske Logistics LLC v. Freight Drivers and Helpers ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1304
PENSKE LOGISTICS LLC; PENSKE TRUCK LEASING CO., L.P.,
Plaintiffs - Appellees,
v.
FREIGHT DRIVERS AND HELPERS LOCAL UNION NO. 557 PENSION
FUND; JOINT BOARD OF TRUSTEES OF THE FREIGHT DRIVERS AND
HELPERS LOCAL UNION NO. 557 PENSION FUND,
Defendants - Appellants.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:15-cv-03277-RDB)
Submitted: March 20, 2020 Decided: July 7, 2020
Before DIAZ and FLOYD, Circuit Judges, and Rossie D. ALSTON, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Corey Smith Bott, Paul D. Starr, ABATO, RUBENSTEIN AND ABATO, P.A., Baltimore,
Maryland, for Appellants. Brian A. Coleman, FAEGRE DRINKER BIDDLE & REATH,
LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal concerns a long-running dispute between the Plaintiff-Appellees,
Penske Logistics LLC and Penske Truck Leasing Co., L.P. (collectively, “Penske”), and
Defendant-Appellants, the Freight Drivers and Helpers Local Union No. 557 Pension Fund
(the “Fund”) and its Joint Board of Trustees (the “Trustees”). The underlying dispute
pertains to whether Penske is liable for Leaseway Motorcar Transport Co.’s (Leaseway)
withdrawal from the Fund under the Employee Retirement Income Security Act of 1974
(ERISA). For the reasons stated in this opinion, we affirm the order of the district court
affirming the arbitration awards holding that Penske is not liable.
I. 1
ERISA provides a statutory framework to promote employee benefit plans in private
industries by establishing “minimum standards . . . assuring the equitable character of such
plans and their financial soundness.” 29 U.S.C. § 1001(a). See generally 29 U.S.C.
§§ 1301–1461. Congress wanted to guarantee that if a worker has been promised a defined
pension benefit upon retirement—and has fulfilled the conditions required to obtain the
vested benefit—the worker will actually receive those benefits. Concrete Pipe & Prods.
of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 607 (1993).
Multiemployer pension plans, structured in accordance with ERISA, provide for the
1
The legal and factual background in this opinion has been largely taken wholesale
from this Court’s previous opinion in the matter. See Penske Logistics LLC v. Freight
Drivers & Helpers Local Union No. 557 Pension Fund, 721 F. App’x 240, 241–45 (4th
Cir. 2018).
2
pooling of contributions and liabilities. See 29 C.F.R. § 4001. As enacted, however,
employers could withdraw from a multiemployer plan, leaving vested benefits unfunded
and threatening the plan’s solvency. Concrete Pipe, 508 U.S. at 608; Bd. of Trs., Sheet
Metal Workers’ Nat’l Pension Fund v. BES Servs., Inc., 469 F.3d 369, 374 (4th Cir. 2006).
To “shore up the financial stability of multiemployer pension plans,” BES Servs.,
469 F.3d at 374, the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA)
amended ERISA to require a withdrawing employer to pay the employer’s proportionate
share of the plan’s unfunded vested benefits by creating withdrawal liability “in rough
proportion to that employer’s relative participation in the plan over the last 5 to 10 years,”
Borden, Inc. v. Bakery & Confectionery Union & Indus. Int’l Pension, 974 F.2d 528, 530
(4th Cir. 1992); see also 29 U.S.C. §§ 1381, 1391; Pension Benefit Guar. Corp. v. R.A.
Gray & Co., 467 U.S. 717, 725 (1984). 2 “An employer owes withdrawal liability when it
makes a complete or partial withdrawal from a pension plan.” Trs. of the Plumbers &
Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc.,791 F.3d 436, 440 (4th Cir. 2015)
(citing 29 U.S.C. § 1381(a)). An employer’s complete withdrawal occurs when an
employer permanently ceases to have an obligation to contribute under the plan or
2
“An employer’s withdrawal from a multiemployer plan reduced the contribution
base, which necessitated an increase in the contribution rate of remaining employers in
order to cover the plan’s existing unfunded vested benefits. As employers withdrew, the
rising costs of continued participation in multiemployer plans increased the incentives for
further withdrawals. To reverse this trend, the MPPAA required withdrawing employers
to pay their fair share of a plan’s unfunded vested benefits by creating withdrawal liability,
and provided a streamlined process for resolving disputes over withdrawal liability
determinations, thereby limiting dispute-resolution costs and preserving plans’ assets.”
BES Servs., 469 F.3d at 374 (citations omitted).
3
permanently ceases all covered operations under the plan, 29 U.S.C. § 1383(a), and a
partial withdrawal occurs when an employer’s contribution obligation declines 70%
according to the calculation provided in the statute, 29 U.S.C. § 1385(a). See also
Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 117, n.1 (4th Cir. 1991). “Plan
sponsors”―the designated plan administrators―assess withdrawal liability on employers
at the end of each year, and ERISA requires that any dispute over the plan sponsor’s
assessment of liability be subject to arbitration. 29 U.S.C. §§ 1301(a)(10), 1385(a),
1401(a); 29 C.F.R. § 4221.1.
Under the MPPAA, all trades or businesses under common control are treated as a
single employer, and each member of the controlled group is liable for the withdrawal of
any other member. 29 U.S.C. § 1301(b)(1); 29 C.F.R. § 4001. If a parent company sells
the stock of a subsidiary, however, the parent is not liable for the subsidiary’s subsequent
withdrawal liability unless a principal purpose of the transaction was to evade or avoid
withdrawal liability. 29 U.S.C. § 1392(c); Santa Fe Pac. Corp. v. Cent. States, Se. & Sw.
Areas Pension Fund, 22 F.3d 725, 727 (7th Cir. 1994). The plan sponsors―during their
assessment of withdrawal liability―are the first to determine whether a principal purpose
of such a transaction was to evade or avoid withdrawal liability. See 29 U.S.C.
§ 1401(e)(1). “[T]he MPPAA makes it clear that an employer can have more than one
principal purpose in conducting a transaction,” especially when “one principal purpose can
be said to motivate the decision about whether to sell the company at all, while another
principal purpose can be said to motivate the decision about how to sell the company.”
Sherwin-Williams Co. v. N.Y. State Teamsters Conf. Pension & Ret. Fund, 158 F.3d 387,
4
395 (6th Cir. 1998); see also Borden, 974 F.2d at 530 (acknowledging that under 29 U.S.C.
§ 1384 a company can avoid triggering withdrawal liability by structuring the sale in
certain ways).
II.
The Fund is a multiemployer pension plan, organized under the statutory framework
of ERISA to provide pension benefits to participants of beneficiaries. Leaseway had long
been a contributing employer to the Fund; it employed over 200 Fund participants in 1996,
but only 33 by 2003. Penske acquired Leaseway in 1995, and Leaseway became a member
of the Penske-controlled group for MPPAA purposes in 1996. On March 24, 2004, Penske
sold 100% of the Leaseway stock to Performance Logistics Group (PLG) (the
“Transaction”) in exchange for a secured $25 million note and for Penske to receive 43.5%
of the stock of PLG, among other things.
In early 2006, the Trustees—who are the plan sponsors—issued an assessment of
withdrawal liability to Penske for the partial withdrawal of Leaseway that was effective
December 31, 2004, stating that Leaseway’s contribution obligation to the Fund had
declined at least 70% in 2004. See 29 U.S.C. § 1385(a). 3 Penske objected to the
assessment alleging that, among other things, its sale of Leaseway terminated its liability
for Leaseway’s withdrawal liability. The Trustees reviewed this objection and determined
3
The Fund seeks satisfaction of this assessment from Penske, in part, because
Leaseway had filed for bankruptcy by the time the assessment was completed, and PLG
had claims pending before the bankruptcy court.
5
that a primary purpose of the Transaction was to evade or avoid withdrawal liability such
that Penske should remain liable for Leaseway’s withdrawal. See 29 U.S.C. § 1392(c). As
a result, Penske initiated arbitration to contest its liability and, as is required by statute,
paid the withdrawal liability assessed while it awaited review. 29 U.S.C. § 1401(a), (d).
Subsequently, the Trustees assessed Penske for withdrawal liability for Leaseway’s second
partial withdrawal from the Fund for its declining contribution obligation in 2005, effective
December 31, 2005, and then for Leaseway’s complete withdrawal in 2006 after ceasing
covered operations under the Fund, effective December 15, 2006—both of which Penske
also contested. See 29 U.S.C. §§ 1383(a), 1385(a). The parties agreed to consolidate the
three challenges.
Over the next six years, the parties conducted extensive discovery. The arbitration
record contains over 50,000 pages of documentary evidence, five days of hearings, and two
rounds of briefing, and includes the Arbitrator’s Phase One Rulings, issued July 13, 2012,
and a 123-page award (the “Original Award”), issued September 30, 2015. In the Phase
One Rulings, the Arbitrator determined that Penske was not liable for Leaseway’s complete
withdrawal because unrelated predicates for liability were not satisfied. The Original
Award held that Penske was not liable for either of Leaseway’s partial withdrawal
assessments based on the Arbitrator’s conclusion that a principal purpose of the
Transaction was not for Penske to evade or avoid withdrawal liability. The Arbitrator ruled
that the Fund must refund Penske’s withdrawal liability payments, amounting to
$9,586,345.39, plus interest, and that Penske was entitled to an award of attorneys’ fees
6
due to the Fund’s discovery abuse. See 29 C.F.R. §§ 4219.31(d), 4219.32, 4221.10(c); see
also 29 U.S.C. § 1401(d).
Thereafter, on October 16, 2015, Penske filed a motion with the Arbitrator for
modification of the Original Award pursuant to 29 C.F.R. § 4221.9(b)(3) to clarify the
interest rate and amount of attorneys’ fees, and the Fund filed a motion in opposition. With
no ruling on the motion and no communication from the Arbitrator, on October 27, 2015,
Penske filed a complaint against the Fund and the Trustees to enforce the Original Award
in district court pursuant to 29 U.S.C. § 1401(b)(2). The Fund and the Trustees responded
with a counterclaim to vacate the Original Award, alleging that the Arbitrator applied the
wrong burden of proof to determine whether a principal purpose of the Transaction was to
evade or avoid withdrawal liability. The Fund and the Trustees also filed a motion to stay
proceedings pending the Arbitrator’s consideration of Penske’s motion for modification,
which the district court denied. The parties filed cross-motions for summary judgment,
and the district court summarily affirmed the Original Award.
The Fund and Trustees appealed to this Court raising three challenges: first, that the
district court erred in denying its motion to stay the proceedings pending the Arbitrator’s
decision on the motion for modification; second, that the district court erred in affirming
the Original Award because the Arbitrator applied the wrong burden of proof, incorrectly
concluded that the burden was satisfied, and clearly erred in reaching several factual
conclusions; and third, that the district court erred in determining that the attorneys’ fees
awarded by the Arbitrator were reasonable.
7
On January 10, 2018, this Court, in a split decision, issued its opinion. Penske
Logistics, 721 F. App’x 240. As to the issue of the stay, the majority of the Court held that
the district court did not abuse its discretion in denying a stay of the proceedings. Id. at
244. As to the district court affirming the Original Award, the majority held that “the
Arbitrator erroneously placed the burden on the Fund to prove by a preponderance that a
principal purpose of the Transaction was to evade or avoid withdrawal liability, and that
this failure to apply the correct burden amounted to clear error.” Id. at 245. The majority
explained that “[t]he Arbitrator’s statements throughout the Award indicate that his
findings resulted from a lack of evidence that a principal purpose was to evade or avoid
withdrawal liability, thereby erroneously placing the burden on the Fund rather than the
Employer.” Id. The majority held that “under the correct burden, the Arbitrator should
have found evidence disproving that Penske intended to evade or avoid withdrawal
liability.” Id. The Court therefore remanded for further proceedings, and the majority did
not address the third and final issue of attorneys’ fees. 4
On June 22, 2018, the Arbitrator issued another Award (the “Supplemental
Award”), concluding that the “overwhelming record evidence established that the
Transaction was entered into on an arms’ length basis for reasons wholly unrelated to
withdrawal liability.” J.A. 1939. Citing his Original Award, the Arbitrator stated that the
record evidence establishing that the evasion or avoidance of withdrawal liability was not
4
As outlined below, Judge Diaz stated that he would have held that the district court
did not err in ruling that the Arbitrator’s award of attorneys’ fees was reasonable. Id. at
249 n.2 (Diaz, J., dissenting).
8
a principal purpose of the Transaction was so “overwhelming” that the record “raise[d]
serious doubts as to the good faith behavior on the part of the Trustees in initially assessing
Penske with withdrawal liability and more significantly in continuing to pursue those
claims in arbitration.” J.A. 1929–30 (alteration in original). The Arbitrator held that the
“overwhelming weight of record evidence established that Penske was motivated to enter
into the Transaction by legitimate business reasons wholly unrelated to considerations of
withdrawal liability,” J.A. 1930, and that Penske had proved “by a preponderance of the
record evidence[] that the evasion or avoidance of withdrawal liability was not a principal
purpose of the Transaction,” J.A. 1946.
On March 7, 2019, presented with the parties’ respective cross-motions for
summary judgment to affirm and vacate the Arbitrator’s Supplemental Award, the district
court affirmed the Arbitrator’s Original Award as supplemented by the Supplemental
Award. J.A. 2088–2100. The Fund and Trustees timely appealed to this Court.
III.
On appeal, the Fund and Trustees make two principal arguments: (1) that the district
court erred in enforcing the Arbitrator’s Supplemental Award because the Arbitrator made
a number of errors of both law and fact; and (2) that the district court erred in holding that
the attorneys’ fees awarded by the Arbitrator were reasonable.
9
A.
We turn first to the Fund and Trustees’ argument that the district court erred in
affirming the Arbitrator’s awards.
This Court reviews de novo the district court’s decision to grant summary judgment,
applying the same standards as the district court. Grutzmacher v. Howard Cty., 851 F.3d
332, 341 (4th Cir. 2017). When considering an arbitrator’s award issued under the
MPPAA, this Court reviews findings of fact for clear error and conclusions of law de novo.
BES Servs., 469 F.3d at 375; see 29 U.S.C. § 1401(c). Under the MPPAA, “there shall be
a presumption, rebuttable only by a clear preponderance of the evidence, that the findings
of fact made by the arbitrator were correct.” 29 U.S.C. § 1401(c). When assessing
withdrawal liability, a plan sponsor (here, the Trustees) makes a factual determination of
whether a principal purpose of a parent company’s stock sale of its subsidiary was to evade
or avoid withdrawal liability. Under ERISA, “this factual finding is [also] entitled to a
presumption of correctness.” Penske Logistics, 721 F. App’x at 244 (citing 29 U.S.C.
§§ 1392(c), 1401(a)(3)(A); Concrete Pipe, 508 U.S. at 620–21). An employer challenging
this finding has “the burden . . . to disprove [the] challenged factual determination by a
preponderance.” Concrete Pipe, 508 U.S. at 629; see also 29 U.S.C. § 1401(a)(3)(A)
(“[A]ny determination made by a plan sponsor under [29 U.S.C. § 1392(c)] is presumed
correct unless the party contesting the determination shows by a preponderance of the
evidence that the determination was unreasonable or clearly erroneous.”). Here, the Fund
determined that Penske was liable for Leaseway’s withdrawal liability based on its factual
10
determination that a principal purpose of the Transaction was for Penske to evade or avoid
withdrawal liability.
First, the Fund and the Trustees contend that the Arbitrator failed to undertake a
complete review of the entire arbitration record on remand from this Court. The Fund and
Trustees make this argument because in this Court’s 2018 opinion, we stated that upon
remand the matter would “likely require review of the entire arbitration record.” Penske
Logistics, 721 F. App’x at 246. However, we did not mandate that the Arbitrator re-review
every word of the hearing transcripts or parse through every one of the 50,000 documents
in the arbitration record on remand. In his Supplemental Award, the Arbitrator recognized
that the record was “voluminous” and that it was “summarized in some detail” in his
Original Award. J.A. 1930. Despite that, the Arbitrator proceeded to conduct an
“additional evaluation,” J.A. 1930, and thoroughly explained the relevant record evidence
that led him to conclude that the evasion or avoidance of withdrawal liability was not a
principal purpose of the Transaction. Therefore, we are satisfied that the Arbitrator
properly followed this Court’s mandate.
Second, the Fund and the Trustees argue that on remand the Arbitrator again applied
the wrong burden of proof and failed to afford the Trustees’ findings the statutory
presumption of correctness. This argument is without merit. Consistent with this Court’s
mandate and the Supreme Court’s decision in Concrete Pipe, the Arbitrator recognized that
the “burden of proof rested with the Employer to prove, by a preponderance of the record
evidence,” that the evasion or avoidance of withdrawal liability was not a principal purpose
of the Transaction. J.A. 1928. The Arbitrator did not mince his words in recognizing that
11
this was not a close case and stated that Penske had shown “overwhelmingly (and not
simply by a mere preponderance of the record evidence) that the Transaction was entered
into for legitimate business reasons wholly unrelated to potential withdrawal liability
claims by the Fund.” J.A. 1930–31. As a result, the Arbitrator stated that Penske had
“clearly rebutted the presumption of correctness applicable to the . . . assertion that a
principal purpose of the Transaction was to evade or avoid withdrawal liability.”
J.A. 1939. Reading the Supplemental Award, we are left with no doubt that the Arbitrator
applied the correct standard of proof and afforded the required presumption of correctness
to the Trustees’ factual finding.
Third, the Fund and Trustees argue that the Arbitrator failed to determine a principal
purpose of the Transaction in his Supplemental Award. In remanding the case, this Court
stated that “the Arbitrator should have found evidence disproving that Penske intended to
evade or avoid withdrawal liability.” Penske Logistics, 721 F. App’x at 245. On remand,
the Arbitrator abided by this Court’s mandate. As the Arbitrator stated in his Supplemental
Award, the Arbitrator had found “that Penske had shown overwhelmingly (and not simply
by a mere preponderance of the record evidence) that the Transaction was entered into for
legitimate business reasons wholly unrelated to potential withdrawal liability,” J.A. 1930–
31, and that the record evidence “rebutted any inference that the Transaction had, as a
principal purpose[,] the evasion or avoidance of that withdrawal liability,” J.A. 1935. The
Arbitrator’s Original and Supplemental Awards both outlined the record evidence and
reasons for why the Transaction occurred, with the Arbitrator finding that “Penske’s goals
. . . were to eliminate responsibility for managing and operating [Leaseway] and to obtain
12
cash for the sale of that business as soon as was practicable provided that it also obtained
appropriate overall value for the transfer.” J.A. 1932; see also J.A. 122–35. Therefore, the
Arbitrator found “overwhelming” record evidence disproving that Penske intended to
evade or avoid withdrawal liability. J.A. 1939. Consequently, the Arbitrator committed
no error of law.
Fourth, the Fund and Trustees argue that the Arbitrator’s finding of fact that the
avoidance of withdrawal liability was not a principal purpose of the Transaction was clearly
erroneous. Clear error requires “a definite and firm conviction that a mistake has been
committed.” Sky Angel U.S., LLC v. Discovery Commc’ns, LLC, 885 F.3d 271, 279 (4th
Cir. 2018). “This standard plainly does not entitle a reviewing court to reverse the finding
of the trier of fact simply because it is convinced that it would have decided the case
differently.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Moreover, when
“findings are based on determinations regarding the credibility of witnesses, . . . even
greater deference” must be given to the fact-finder’s factual findings. Id. at 575; see
Concrete Pipe, 508 U.S. at 623.
Thus, although the Fund and Trustees spill much ink arguing why their version of
the facts support a different conclusion, it is not for this Court to reverse the Arbitrator’s
factual findings, even if we would have weighed the evidence differently. See Anderson,
470 U.S. at 573. As the Arbitrator’s Original and Supplemental Awards make clear, much
of this case turned on the credibility of the parties’ respective witnesses. Specifically, with
respect to Penske’s motivation for the Transaction, the Arbitrator found Penske’s fact
witness, Mr. Angelbeck, credible, J.A. 1931–33, but did not find the Fund and Trustees’
13
expert witness, Mr. Wensel, credible, J.A. 1934–40. Though the Fund and Trustees take
issue with how the Arbitrator decided the case and the fact that the Arbitrator did not give
as much credence to their evidence, it is not the role of this Court, without more, to interfere
with such factual determinations.
On this point, the Fund and Trustees also argue that the Arbitrator “ignored” certain
evidence that they allege showed Penske’s motivating factor for the Transaction was
evading or avoiding withdrawal liability. See Appellants’ Br. 26–29. However, this is just
another iteration of the argument that the Arbitrator came to the wrong conclusion. The
fact that the Arbitrator did not discuss every piece of evidence in his Original Award or
Supplemental Award does not mean that the Arbitrator “ignored” evidence. As discussed
above, the record in this case was substantial, and the Arbitrator was not required to cite
every piece of evidence in making his determination. Although the Fund and Trustees
“would have the Arbitrator write a much more detailed opinion,” J.A. 2098, the Arbitrator’s
Supplemental Award “states the basis for the award” and thus complies with the regulations
for an arbitration award, see 29 C.F.R. § 4221.8 (mandating that the arbitrator issue a
“written award” that “[s]tates the basis for the award, including such findings of fact and
conclusions of law . . . as are necessary to resolve the dispute”).
Although the Fund and Trustees vigorously attempt to relitigate the case on appeal
by pointing to specific pieces of record evidence in an effort to undercut the Arbitrator’s
conclusion, after reviewing the record as a whole, we hold that the Arbitrator’s finding that
the avoidance of withdrawal liability was not a principal purpose of the Transaction was
not clearly erroneous. Therefore, Penske is entitled to summary judgment, as there is no
14
genuine issue of material fact and it is entitled to judgment as a matter of law. The district
court thus did not err in affirming the Arbitrator’s Original Award as supplemented by the
Supplemental Award.
B.
The Fund and the Trustees also argue that the district court erred in ruling that the
Arbitrator’s grant of $44,302 in attorneys’ fees to Penske was unreasonable.
The Arbitrator awarded Penske some of its attorneys’ fees because the Fund’s
counsel failed to prepare the Fund’s Federal Rule of Civil Procedure 30(b)(6) witness and
because, during depositions, the Fund’s counsel “repeatedly interposed speaking
objections and improperly objected to legitimate questions . . . on the grounds of attorney-
client privilege.” J.A. 141. Consequently, the Arbitrator awarded fees due to the Fund’s
discovery misconduct per 29 C.F.R. § 4221.10, which provides that “[t]he 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.”
The Fund and Trustees contend that the district court erred because it determined
that the award of Penske’s attorneys’ fees was reasonable without following the guidelines
laid out in the United States District Court for the District of Maryland Local Rules,
Appendix B (the “Local Rules”). However, this argument is without merit. Appendix B
of the Local Rules applies when “a prevailing party would be entitled, by applicable law
or contract, to reasonable attorneys’ fees based on a set of criteria including hours and
15
rates.” Therefore, “[b]y its terms, Appendix B applies to fee awards for a ‘prevailing
party.’” Penske Logistics, 721 F. App’x at 249 n.2 (Diaz, J., dissenting). “Unlike the fee-
shifting statutes addressed by Appendix B, the fees awarded here serve as a sanction for
discovery misconduct and compensate Penske regardless of its success on the underlying
merits.” Id.As a result, the district court did not err in not referring to Appendix B before ruling
on the reasonableness of the Arbitrator’s attorneys’ fee award. 5
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
5
The Fund and Trustees also perfunctorily assert that the Arbitrator’s award of
attorneys’ fees was not reasonable because attorneys’ fees should not be duplicative,
excessive, redundant, or unnecessary. See Appellants’ Br. 36–37. However, the Fund and
Trustees have failed to particularize on appeal any reason why the Arbitrator’s award for
attorneys’ fees is unreasonable.
16