TEAMSTERS & EMPLOYERS WELFARE TRUST OF ILLINOIS, Plaintiff-Appellant, v. GORMAN BROTHERS READY MIX, Defendant-Appellee, 283 F.3d 877

POSNER, Circuit Judge. A multiemployer welfare trust filed suit under ERISA in 1999 against the Gorman construction company to recover some $200,000 in delinquent contributions (including interest and attorneys’ fees) for the period 1993-1998. 29 U.S.C. § 1145. After a bench trial, the district judge held the suit barred by the doctrine of laches and so entered judgment for the company. 139 F.Supp.2d 976 (C.D.Ill.2001). Gorman had signed a three-year collective bargaining agreement with a Teamsters local in 1991.

The agreement required Gorman to contribute to a Teamsters welfare trust a specified dollar amount weekly (rising from $63 in the first year of the agreement to $105 in the last year of the latest successor agreement) for any employee who drove a ready-mix concrete truck during the week, however small a fraction of his work week the driving occupied. He might drive such a truck for only an hour a week, yet Gorman would have to contribute the same dollar amount as if he’d spent his whole work week in that activity.

This was an expensive proposition (imagine having to make a $105 weekly contribution for a $10-an-hour employee who worked one hour a week), and Gorman failed to make the required contributions, as was discovered by an audit conducted by the plan during the term of the cobective bargaining agreement.

Dale Stewart, however, who was both the head of the local union and the chairman of the welfare trust, told Eric Leonhardt (Gorman’s proprietor), according to the latter, that as a favor to him he had “made the audit go away.” The collective bargaining agreement was renewed, with substantially the same terms except for the amount of the employer contributions, in 1994 and 1997. In 1998 the trust conducted another audit, again found that Gorman was not making the required contributions, and this time sued.

Gorman admits that the trust has made a prima facie case for the recovery of the delinquent contributions, but, as we said, the district judge upheld the defense of laches. “Laches,” the corruption of an Old French word (lasche) meaning “lax,” in law means culpable delay in suing. Traditionally, suits in equity were not subject to statutes of limitations, but such a suit could be dismissed on the basis of unreasonable, prejudicial delay by the plaintiff. Piper Aircraft Corp. v. Wag-Aero, Inc., 741 F.2d 925, 938-39 (7th Cir.1984) (concurring opinion).

The contrast is between rules and standards as regulatory devices. A statute of limitations cuts off the right to sue at a fixed date after the plaintiffs cause of action accrued. Laches cuts off the right to sue when the plaintiff has delayed “too long” in suing. “Too long” for this purpose means that the plaintiff delayed inexcusably and the defendant was harmed by the delay. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Administrative Enterprises, Inc., 46 F.3d 670, 672 (7th Cir.1995); Herman v. City of Chicago, 870 F.2d 400, 401 (7th Cir.1989); Whiting v.

United States, 231 F.3d 70, 75 (1st Cir.2000); Ivani Contracting Corp. v. City of New York, 103 F.3d 257, 259 (2d Cir.1997). The parties agree that ERISA does not contain a limitations periods for suits against employers to recover contributions owed to a multiemployer plan. 29 U.S.C. § 1145. Closest is 29 U.S.C. § 1451(f), which does cover suits by multiemployer plans, but only suits for withdrawal liability, Jay Conison, Employee Benefit Plans in a Nutshell 19-20 (2d ed.1998), which this suit is not; Gorman has not withdrawn from the Teamsters plan.

The usual practice when a federal statute fails to specify a limitations period for suits under it has been to “borrow” a state’s analogous statute of limitations, and that is what we and other courts have done in the case of ERISA suits for the recovery of employers’ delinquent contributions. Central States, Southeast & Southwest Areas Pension Fund v. Jordan, 873 F.2d 149, 152, 154 (7th Cir.1989); Felton v. Unisource Corp., 940 F.2d 503, 511 (9th Cir.1991); see generally Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 873 (7th Cir.1997); Harrison v.

Digital Health Plan, 183 F.3d 1235, 1238 (11th Cir.1999) (per curiam); Adamson v. Armco, Inc., 44 F.3d 650, 652 (8th Cir.1995). We remarked in Doe that a borrowed statute of limitations can be either state or federal, but the parties to this case do not argue for borrowing a federal statute of limita tions, and we note that Trustees of Wyoming Laborers Health & Welfare Plan v. Morgen & Oswood Construction Co., 850 F.2d 613, 618-20 (10th Cir.1988), a case similar to ours, refused to borrow the six-month limitations period in the National Labor Relations Act.

Instead it borrowed the forum state’s 10-year statute of limitations for suits on written contracts; that was the type of suit the court thought most like a suit for delinquent contributions. The Illinois statute of limitations that the district court borrowed for use in this case is also ten years. It is possible that some other statute of limitations, state or federal, would make a better fit with the nature and purpose of a suit for delinquent ERISA contributions, but we are not called upon to decide that, as the parties are not contending for a different statute of limitations.

For purposes of this appeal, therefore, it’s as if ERISA contained a (10-year) statute of limitations; and this raises the question (not discussed by the parties) when if ever laches can be used to shorten a statute of limitations. It turns out that just as various tolling doctrines can be used to lengthen the period for suit specified in a statute of limitations, so laches can be used to contract it. Hutchinson v. Spanierman, 190 F.3d 815, 823 (7th Cir.1999); Maksym v. Loesch, 937 F.2d 1237, 1248 (7th Cir.1991); Martin v.

Consultants & Administrators, Inc., 966 F.2d 1078, 1100-01 (7th Cir.1992) (concurring opinion). This is regardless of whether the suit is at law or in equity, because, as with many equitable defenses, the defense of laches is equally available in suits at law. Hot Wax, Inc. v. Twrtle Wax, Inc., 191 F.3d 813, 822 (7th Cir.1999); A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1029-30 (Fed.Cir.1992) (en banc).

We may assume without having to decide that, as with equitable tolling and (perhaps — the question is unsettled) equitable estoppel, the relevant doctrine of laches is that of the state whose statute of limitations is being borrowed. See Shropshear v. Corporation Counsel, 275 F.3d 593, 596-98 (7th Cir.2001). We are mindful that some courts have invoked a presumption against the use of laches to shorten the statute of limitations. E.g., Herman Miller, Inc. v. Palazzetti Imports & Exports, Inc., 270 F.3d 298, 321 (6th Cir.2001); United States v.

Rodriguez Aguirre, 264 F.3d 1195, 1207-08 (10th Cir.2001); Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789, 799 (4th Cir.2001). One even made the presumption conclusive, Ivani Contracting Corp. v. City of New York, supra, 103 F.3d at 259-61, on the odd ground that abridging a statutory period for suit by means of a judge-made doctrine is in tension with the separation of powers. When Congress fails to enact a statute of limitations, a court that borrows a state statute of limitations but permits it to be abridged by the doctrine of laches is not invading congressional prerogatives. Ashley v.

Boyle’s Famous Corned Beef Co., 66 F.3d 164, 170 n. 4 (8th Cir.1995) (en banc). It is merely filling a legislative hole. And none of the courts we’ve cited questions the use of the judge-made doctrines of equitable estoppel and equitable tolling to lengthen the statutory period — and laches, as the Hutchinson, Maksym, and Martin opinions cited above all point out (the majority as well as the concurring opinion in Martin, see 966 F.2d at 1090-91), is the mirror image of equitable estoppel. This point turns out to be important in this case, and so we’ll take a moment to explain it.

The doctrine of equitable estoppel allows the plaintiff to extend the statute of limitations if the defendant has done something that made the plaintiff reasonably believe that he had more time to sue. E.g., LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir.2000); Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir.1978); Wall v. Construction & General Laborers’ Union, Local 230, 224 F.3d 168, 176 (2d Cir.2000). One example is the defendant’s promising not to interpose the defense of the statute of limitations, Athmer v. C.E.I. Equipment Co., 121 F.3d 294, 296 (7th Cir.1997); Cada v.

Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990); another is his concealing the cause of action from the plaintiff, Santa Maria v. Pacific Bell, 202 F.3d 1170, 1177 (9th Cir.2000); Rhodes v. Guiberson Oil Tools Division, 927 F.2d 876, 878-79 (5th Cir.1991); Pruet Production Co. v. Ayles, 784 F.2d 1275, 1280 (5th Cir.1986); a third is promising to pay the plaintiffs claim, Bomba v. W.L. Belvidere, Inc., supra, 579 F.2d at 1071; McAllister v. FDIC, 87 F.3d 762, 767 (5th Cir.1996). See generally Shropshear v. Corporation Counsel, supra, 275 F.3d at 597-98.

Conversely, if a plaintiff does something that reasonably induces the defendant to believe he won’t be sued and the defendant’s ability to defend himself against the plaintiffs suit is impaired as a result, the plaintiff can be barred by the defense of laches from suing. Wauchope v. U.S. Dept. of State, 985 F.2d 1407, 1412 (9th Cir.1993); Trans-World Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 696 (9th Cir.1990); EEOC v. Alioto Fish Co., 623 F.2d 86, 88-89 (9th Cir.1980); 1 Dan B. Dobbs, Law of Remedies, § 2.4(4), p. 105 (2d ed.1993).

What is sauce for the goose (the plaintiff seeking to extend the statute of limitations) is sauce for the gander (the defendant seeking to contract it). Laches is thus a form of equitable estoppel rather than a thing apart. Maksym v. Loesch, supra, 937 F.2d at 1248; Thompson v. Board of County Commissioners, 34 P.3d 278, 280 (Wyo.2001); Callenders, Inc. v. Beckman, 120 Idaho 169, 814 P.2d 429, 434 (1991); Central Improvement Co. v. Cambria Steel Co., 210 Fed. 696, 713 (8th Cir.1913) (per curiam), aff'd. under the name Kansas City Southern Ry. v.

Guardian Trust Co., 240 U.S. 166, 36 S.Ct. 334, 60 L.Ed. 579 (1916); 1 Dobbs, supra, § 2.4(4), p. 105. The only difference is which party asserts it. That is not a material difference; the fact that laches is asserted defensively by the employer sued by the plan, whereas equitable estoppel is used offensively to obtain extra benefits, does not destroy the symmetry between laches and equitable estoppel. Failure to recover employer contributions imposes the same cost on the plan as being forced to pay additional benefits in the same amount.

The symmetry is particularly marked in this case because it isn’t really a case of laches at all, at least in the technical sense, though that is the term the district judge used and the terminology is supremely unimportant; for if we are right that laches and equitable estoppel are the same thing, it can’t matter which term is used. The reason it is not a case of laches, strictly speaking, is that the Teamsters trust is not suing to recover the delinquent contributions identified in the first audit.

Gorman’s argument is not that the second suit, the suit on the later delinquencies, should have been filed sooner, but that it shouldn’t have been filed at all because the company was misled by the disappearance of the first audit. The company is really arguing that the disappearance should es-top the trust to bring a suit for later-accruing delinquencies, even if the suit is filed immediately after those delinquencies accrue. It’s the fact that the conduct claimed to create an estoppel consists mainly of delay that gives the defense a laches flavor, since laches means delay.

Since laches and equitable estoppel are interchangeable — or, if not, since this is actually a case of the latter rather than of the former — the question arises whether equitable estoppel can ever be a defense to a suit by a multiemployer plan for delinquent contributions. Clearly not when it is invoked on the basis of words or acts by one of the employers in an effort to wrest larger benefits for the plaintiff participant or beneficiary than the terms of the plan allow. Central States, Southeast & Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148, 1153 (7th Cir.1989) (en banc); Black v.

TIC Investment Corp., 900 F.2d 112, 115 (7th Cir.1990); Bakery & Confectionery Union & Industry International Pension Fund v. Ralph’s Grocery Co., 118 F.3d 1018, 1027 (4th Cir.1997); Benson v. Brower’s Moving & Storage, Inc., 907 F.2d 310, 313-14 (2d Cir.1990). If equitable estoppel were successfully interposed in such a case, the employer would potentially be imposing uncompensated costs on the other employers belonging to the plan. However, as assumed in Illinois Conference of Teamsters & Employers Welfare Fund v.

Mrowicki, 44 F.3d 451, 462-64 (7th Cir.1994), and Trustees of Wyoming Laborers Health & Welfare Plan v. Morgen & Oswood Construction Co., supra, 850 F.2d at 624, a different conclusion could be reached in a case such as this, where estoppel is sought on the basis of words or conduct by a responsible official of the plan itself. True, estoppel can’t be used to allow oral representations to expand the terms of an ERISA plan, Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 586 (7th Cir.2000); Downs v.

World Color Press, 214 F.3d 802, 805-06 (7th Cir.2000), but the Teamsters trust has not pointed to any plan language that the invocation of laches, on the basis of Stewart’s alleged assurances or otherwise, would violate. We have held that equitable estoppel can be used to toll the statute of limitations in a suit against an ERISA plan for benefits, Doe v. Blue Cross & Blue Shield United, supra, 112 F.3d at 876-77, and that is similar to what the district court did in this case. Gorman’s defense fails not because ERISA bars such a defense, but because its elements have not been proved.

We can clear away some underbrush by noting the absence of any suggestion that Stewart, by promising to make the first audit “go away” (if that is what he said — it is Leonhardt’s word against his and the district judge did not decide which one was telling the truth), was trying to hurt Gor-man — to trick it into thinking it would never have to pay the contributions called for by its collective bargaining agreements with Stewart’s local.

It could not be to the plan’s advantage to pull such a trick; there is no contention that the interest payable on delinquent contributions makes a plan better off if it has to sue to recover such contributions than if it received the contributions as they came due. At worst Stewart was careless if he promised to forgive delinquent contributions due under the 1991 collective bargaining agreement; the question is whether his carelessness made Leonhardt reasonably believe that delinquent contributions under future collective bargaining agreements were likewise forgiven.

That Leonhardt’s belief had to be reasonable is worth stressing, for certainly when laches is predicated on careless rather than deliberate conduct by the plaintiff (in the latter case it is canonically referred to as “acquiescence” rather than laches, Piper Aircraft Corp. v. Wag-Aero, Inc., supra, 741 F.2d at 933, illustrating the legal profession’s occupational hazard of multiplying distinctions unnecessarily), the defendant’s fault is relevant. Rozen v. District of Columbia, 702 F.2d 1202, 1204 (D.C.Cir.1983) (per curiam); Bernard v.

Gulf Oil Co., 596 F.2d 1249, 1257-58 (5th Cir.1979), 619 F.2d 459, 463 (5th Cir.1980) (en banc), aff'd. on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). While not a defense to intentional misconduct, the victim’s fault is a defense (full or partial) to unintentional misconduct. E.g., FDIC v. W.R. Grace & Co., 877 F.2d 614, 618-19 (7th Cir.1989); Gilchrist Timber Co. v. ITT Rayonier, Inc., 95 F.3d 1033, 1036 (11th Cir.1996) (per curiam).

As a matter of fact, the particular fault that consists in being unreasonable in relying on a promise or other words (or conduct) of an opposing party is a defense in all estoppel cases, e.g., Office & Professional Employees International Union, Local No. 171 v. Brownsville General Hospital, 186 F.3d 326, 335-36 (3d Cir.1999); Linkous v. United States, 142 F.3d 271, 278 (5th Cir.1998), including all cases of laches, Martin v. Consultants & Administrators, Inc., supra, 966 F.2d at 1090-91; Bennett v.

Tucker, 827 F.2d 63, 69 (7th Cir.1987), whether the conduct giving rise to the claim of estoppel or laches is intentional or accidental. Innumerable decisions establish this proposition for ordinary cases of equitable estoppel, as distinct from the amphibian we have here. E.g., LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir.2000); Ashafa v. City of Chicago, 146 F.3d 459, 463 (7th Cir.1998); Santa Maria v. Pacific Bell, 202 F.3d 1170, 1173 (9th Cir.2000); Office & Professional Employees International Union, Local No. 471 v. Brownsville General Hospital, supra, 186 F.3d at 335-36.

The reasoning behind these decisions is that a statement no reasonable person would have relied on was probably not intended to mislead — and probably didn’t mislead. AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1041-43 (7th Cir.1990). As we have explained in the related context of fraud, the victim of a fraud “cannot close his eyes to a risk that is obvious, even if he does not himself perceive the risk.

Although not required to expend a substantial effort to protect himself (as a tort victim in a regime of contributory negligence will often be required to do), the potential victim of a fraud may not ignore a manifest danger. That is recklessness. It differs by only a shade, if that, from intentional conduct — ■ the conscious assumption of risk that defeats liability under the first aspect of the duty of reasonable reliance as we conceive it.

The requirement of not being reckless serves in the law of fraud not only to define a duty, but also to disambiguate evidentiary ambiguities concerning the very existence of the fraud. If the victim acted recklessly in the face of the alleged fraud, it is difficult to believe that he was actually deceived; he may simply regret having assumed a risk that has turned out badly. The requirement of justifiable reliance backstops the jury’s determination of actual rebanee.” Id. at 1042 (citations omitted). In contrast, reliance is not an element of equitable tolling at all, see Singletary v.

Continental Illinois National Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.1993); Stitt v. Williams, 919 F.2d 516, 522 (9th Cir.1990), the distinct doctrine that permits the statute of limitations to be extended in cases where, without fault by the defendant, the plaintiff is unable by the exercise of due diligence to obtain the information that he needs in order to be able to sue within the statutory period. The basis for the extension is not the plaintiffs reliance on words or actions of the defendant, so the issue of reasonable reliance does not even arise.

But here there had to be reliance and it had to be reasonable. As to whether there was reliance, we note that Leonhardt testified that he didn’t understand the “making the audit go away” comment that he attributes to Stewart to mean that there would never be a subsequent audit under a subsequent collective bargaining agreement.

He also testified that Stewart did not tell him he was making the collective bargaining agreements go away; never “indicate[d] that [Gorman] would be immune from any future audits”; and never told him “that [Gorman did] not have to comply with the ... collective bargaining agreements.” But even if, as Gorman argues and we greatly doubt, the inflection of Leonhardt’s testimony — his tone of voice, the emphasis he placed on particular words — might justify a finding that the district judge never made that Leonhardt somehow understood Stewart to be promising that no future audits would be conducted or efforts made to collect delinquent contributions under future collective bargaining agreements, it would have been unreasonable for Leonhardt to rely on such an understanding as a basis for violating the future collective bargaining agreements.

He had no reason to think Stewart authorized to modify a collective bargaining agreement orally or to waive orally the entitlements of the welfare plan, let alone to do so in advance of such an agreement’s coming into effect. He had no reason to think that Stewart could bind the other trustees of the welfare plan, let alone his or their successors. A reasonable person in Leonhardt’s position, when asked to sign the subsequent collective bargaining agreements, would, at the very least, have asked Stewart whether Gorman would be bound by the provisions relating to contributions to the plan.

He did not do so, or consult a lawyer, or take any other step to determine whether he could violate his contractual obligations with impunity. He must have been gambling that Stewart would be able to keep the Teamsters trust off his back. An unsuccessful gamble is not a form of reasonable reliance. The district judge made no finding on whether Stewart promised to make the first audit “go away” because he thought the defense of laches made out by the mere fact that the plan never claimed the delinquent contributions identified by that audit.

To allow such a failure to create an estoppel, however, would be to equate Gorman to a person who thought that because a store had failed to bill him for an item that he had bought he could go on buying there and never again have to pay a bill. That would be a textbook case of unreasonable reliance. Gorman’s defense fails as a matter of law. The judgment in its favor is therefore reversed and the case remanded to the district court to compute the amount that Gorman owes the plan. ReveRsed And Remanded.