Good morning, ERISA Watchers!  This week we want to highlight a district court decision involving a pre-existing condition limitation in a long-term disability (“LTD”) policy, Meche v. Metropolitan Life Insurance Co., No. CV 18-3995, 2020 WL 133284 (E.D. La. Jan. 13, 2020). In this case, MetLife denied Meche’s claim for LTD benefits following a lumbar spine injury he experienced at work. He filed a claim for LTD benefits with MetLife since the injury necessitated his immediate cessation of work activities. The LTD policy contained the following limitation:

Pre-existing Condition means a Sickness or accidental injury for which You:

• received medical treatment, consultation, care, or services; or

• took prescribed medication or had medications prescribed;

in the 12 months before Your insurance, or any increase in the amount of insurance, under this certificate takes effect.

MetLife denied the claim based on the pre-existing condition limitation. It reasoned that Meche had a history of medical issues involving other areas of his spine (but not his lumbar spine) during the three month “look-back” period. In finding for Meche, the court noted that 1) MetLife did not dispute that Meche suffered a work-related injury and ceased working the next day, 2) the medical evidence clearly showed that the injury affected a new part of Meche’s back which was previously uninjured, and 3) the diagnostic findings confirmed Meche’s subjective symptoms.  As the court summarized,

In sum therefore, the changes in location, magnitude, and effect of Meche’s pain suggest that the pain does not arise form a pre-existing condition. And overall, the occurrence of a workplace injury, followed by new anatomical findings, tied to different symptoms all provide evidence that Meche’s disability does not result from a pre-existing condition

. . . 

Furthermore, MetLife’s reasoning appears to suggest that any back injury Meche might suffer would be “related” to his underlying condition of degenerative disc disease and spinal stenosis. Taking this uncabined assertion to its logical extent, though, would lead to an absurd result. The Court cannot see how a back injury after, say, being hit by a bus would necessarily be caused by a pre-existing back condition. 

While an ultimate victory for Meche, the court did dismiss three of Meche’s ancillary arguments in support of his claim. First, it rejected the argument that Meche is not subject to the pre-exiting condition limitation because he went without back treatment for a period of three months (although not THE period of three months preceding the coverage effective date) based on the plain language of the provision. Second, it concluded that MetLife’s use of a nurse consultant was not improper nor in violation of ERISA requirements. Third, it rejected the argument that there is a conflict of interest which should impact the weight given to MetLife’s claim determination, finding it irrelevant to the Court’s de novo review.

This week’s notable decision was contributed to by Kantor & Kantor attorney, Andrew Kantor.

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Disability Benefit Claims

Fifth Circuit

Meche v. Metropolitan Life Insurance Co., No. CV 18-3995, 2020 WL 133284 (E.D. La. Jan. 13, 2020) (Judge Sarah S. Vance). See Notable Decision summary above.

Ninth Circuit

Talbot v. Reliance Standard Life Ins. Co., __F.App’x__, 2020 WL 242691 (9th Cir. Jan. 16, 2020) (Before Wardlaw, W. Fletcher, and Linn).  Plaintiff Talbot became disabled while working for her former employer, Paymentech Resources (“PMR”), in 2007. In 2008, PMR ceased to exist, as did the LTD policy to which Ms. Talbot began receiving benefits. While her benefits remained unaffected, Standard Insurance Company terminated her claim in 2013.  After losing on summary judgment at the district court, Plaintiff appealed arguing 1) Reliance wrongfully terminated her LTD benefits, 2) either RSLIC or PMR was the Plan Administrator with a duty to provide her plan documents, and 3) the district court erred is dismissing disgorgement of profits as an available equitable remedy.  In affirming the district court, the Ninth Circuit held that 1) Reliance’s decision was not illogical, implausible, or without support, as Plaintiff was sent to three Independent Medical Examinations which all confirmed her ability to perform modified sedentary work on a full-time basis; 2) Reliance cannot be held liable for failing to provide plan documents, as they were not the named administrator in the Plan and Ninth Circuit precedent precludes the theory that Reliance can be deemed a de facto administrator; and 3) because reliance did not wrongfully deny benefits, there is no injury to equitably address under §1132(a)(3).   

ERISA Preemption

Second Circuit

Rubin v. Hodes, et al., No. 18-CV-7403 (SJF) (AKT), 2020 WL 132352, (E.D.N.Y. Jan. 13, 2020) (Judge Sandra J. Feuerstein). This case involves allegations of fraudulent inducement, aiding and abetting fraud, securities fraud, and payment on promissory notes related to transactions involving an Employee Stock Ownership Plan (“ESOP”). Defendants removed the case to federal court arguing original subject matter jurisdiction. Plaintiff moved to remand. Plaintiff’s claims rest on the alleged improper sale of his shares of Containment Group, Inc., “which was effectuated through the purchase of shares by the company’s [ESOP], allegedly for less than fair market value, with the assistance of the ESOP Trustee.” In analyzing whether ERISA preempts Plaintiff’s claims, the Court explained “[u]nder the Supreme Court’s test in Davila, ERISA preempts a cause of action where: (1) ‘an individual, at some point in time, could have brought his or her claim under ERISA § 502(a)(1)(B);’ and (2) ‘no other independent legal duty … is implicated by a defendant’s actions.’ ” (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004)). The Court engaged in a lengthy discussion regarding complete preemption and express preemption and concluded Plaintiff does not meet the definition of “participant” under ERISA to have standing to bring a suit under ERISA and, therefore, does not meet the first prong of the Davila test. The Court held Plaintiff’s state law fraud claims are not preempted by ERISA because they do not seek to recover benefits or enforce rights under an ERISA-regulated plan. Because the Court found it does not have subject matter jurisdiction it does not have jurisdiction to consider the merits of express preemption. The Court remanded the case back to the state court.    

Life Insurance & AD&D Benefit Claims

Fourth Circuit

Lewis v. Aetna Life Ins. Co., et al., No. CCB-19-860, 2020 WL 247461 (D. Md January 15, 2020) (Judge Catherine C. Blake). Plaintiff brought a claim based on a denial of supplemental life insurance benefits (count I) and a claim based on a denial of basic and supplemental accidental death and personal loss benefits (count II). Defendants brought a motion to dismiss the second count on the pleadings. The insured died in a car accident, while driving in Maryland, with a BAC of .21%. The Plan contained an exclusion to coverage providing that no benefits were payable for a loss caused or contributed by use of alcohol or intoxicants or drugs while operating any form of a motor vehicle. The exclusion continued to specify that a motor vehicle accident was deemed to be caused by the use of alcohol, intoxicants, or drugs if it was determined that at the time of the accident the insured was operating the motor vehicle while under the influence of alcohol at a level which met or exceeded the level at which intoxication would be presumed under the laws of the state where the accident occurred. Aetna denied the claim based on this exclusion and Maryland’s .08% BAC intoxication presumption. Plaintiff argued that Aetna’s denial was in error because Aetna had not established that decedent was “consuming alcohol while driving.” The court rejected this argument as failing to consider the Plan’s full definition – focusing only on the first part of the definition. It dismissed count II because, “the exclusions ‘literal and natural meaning,’ especially when the relevant portions are read as a whole, is that losses caused by driving a motor vehicle while intoxicated (i.e. with a BAC above the legal limit) are excluded from coverage.” 

Sixth Circuit

Ross v. Ross, No. 5:19-cv-261-JMH, 2020 WL 214751 (E.D. Ky. Jan 14, 2020) (Judge Joseph M. Hood). In response to a motion to dismiss on the pleadings, Plaintiff argued that the divorce decree between her and her former husband was a qualified domestic relations order (QDRO) exempt from ERISA’s requirements and thus controlled the payment of life insurance benefits. The deceased husband’s wife at the time of his death claimed the decree lacked the specificity to qualify as a QDRO. The court recognized a four-part test to determine if a QDRO existed. It focused on one element – that the life insurance plan in dispute was clearly specified in the order. The agreement specifically stated that Plaintiff was the beneficiary of life insurance “through [decedent’s] employer Michelin.” At the time of death, decedent worked for a company called Camso. The life benefits from Camso had been paid to Defendant as the named beneficiary. Because Plaintiff failed to provide any facts indicating that the Michelin policy in the agreement was the same one paid to Defendant through Camso, the court held that Plaintiff had failed to plead sufficient factual matter to establish a QDRO and dismissed the lawsuit as a matter of law. 

Medical Benefit Claims

Seventh Circuit

Irish 4 Reproductive Health, et al. v. United States Dept. of Health and Human Services, et al., No. 3:18-CV-491-PPS-JEM, 2020 WL 248009 (N.D. Ind. Jan. 16, 2020) (Judge Philip P. Simon). The Court considered two motions to dismiss regarding a longstanding dispute over the provision of contraceptives services for students and employees of the University of Notre Dame. One dispute involved a challenge to regulations which would allow Notre Dame to declare itself exempt from the Women’s Health Amendment to the ACA. A second dispute involved a settlement between the federal Defendants and Notre Dame which exempts the University from all existing and future requirements with respect to contraceptive coverage. Regarding ERISA, the federal Defendants claimed that three of the Plaintiffs have an adequate alternative remedy under ERISA. The Court found “[t]his is totally beside the point” because even through in theory the Plaintiffs could bring an ERISA action to enjoin an ACA violation, the settlement agreement effectively immunizes Notre Dame from coverage and would therefore “stand in the way of any other mechanism to address the injury at issue in this case.” 

Tenth Circuit

D.K., et al. v. United Behavioral Health, et al., No. 2:17-CV-01328-DAK, 2020 WL 262980 (D. Utah Jan. 17, 2020) (Judge Dale A. Kimball). Defendants moved to dismiss Plaintiffs’ Parity Act claim for failure to state a claim and individual claims of D.K. and K.K. for lack of standing. The Court found the Plaintiffs adequately alleged a violation of the Parity Act. The Court found that Plaintiffs identified three types of medical treatments that were analogous to the treatment Plaintiff received: skilled nursing, inpatient hospice, and rehabilitation centers. The Court found that Plaintiff adequately alleged that UBH imposed more restrictive and incorrect criteria in denying coverage to Plaintiff that UBH would not have and does not impose on patients who are receiving the analogous medical treatments. While the Court found some ambiguity with Plaintiffs’ factual allegations, the Court did not necessarily fault Plaintiffs because “the specifics as to how UBH interpreted and applied the Plan . . . is information held within UBH’s exclusive control.” Plaintiffs conceded K.K.’s lack of standing. The Court found that D.K. had standing because he was a participant of the Plan and can enforce his right to obtain coverage for his minor child’s medical bills. The Court noted it has issued previous decisions on this precise issue. 

Pension Benefit Claims

First Circuit

United States of Am. v. Abell, III, No. CR 17-10332-NMG, 2020 WL 263563 (D. Mass. Jan. 17, 2020) (Judge Nathaniel M. Gorton).  By way of background, Defendant Edward Abell (former Marketing CFO), was previously sentenced to more than eight years in prison for stealing over $3.8 million from his employer across a decade. The court previously allowed the government’s application for a Writ of Garnishment of Abell’s W2 Group 401(K) Plan and his wife filed a notice with the court claiming an interest in the 401(k) account. She claimed to have a vested interest in the 401(k) account by virtue of her marriage to Abell, that Massachusetts property law compels equitable distribution of marital assets and, she is entitled to an equitable portion of the funds in the account.  The court found that none of the objections defeats the government’s Writ of Garnishment.  “Persuasive caselaw indicates that the pre-divorce property interest of an individual in her spouse’s ERISA-qualified retirement account is governed exclusively by federal law, not state property law. . . .  It is undisputed that the Abells are still married. In the absence of a divorce decree or other qualifying domestic relations order, state property law will not displace federal law with respect to a spouse’s alleged claim to a 401(k) Account subject to a criminal restitution order. . . .  Here, the defendant was entitled to receive, without spousal consent, $393,500, the approximate total value of the vested funds in his 401(k) Account, upon termination of his employment. The government is, therefore, entitled to garnish the same.”

Cruz, et al. v. Raytheon Company, et al., 19-11425-PBS, 2020 WL 254848 (D. Mass. Jan. 17, 2020) (Judge Patti B. Saris). The Court dismissed Raytheon’s motion to dismiss Plaintiff’s putative class action complaint alleging that Raytheon used unreasonable “conversion factors” to calculate pension benefits. Plaintiff alleged that he is receiving $57 less per month than he should because of the Hourly Plan’s violation of ERISA’s “actuarial equivalence” requirement. Relying on a fixed conversion factor disclosed in Raytheon’s SEC filings, Cruz argued that Raytheon’s actuarial assumptions underlying its financial obligations were unreasonable. Raytheon argued that Cruz failed to state a claim because he does not know what interest rate or mortality table the Plan actually uses (because it is not published like the fixed conversation rate).  The Court held that Cruz’s “complex actuarial claim” could not be assessed without a more developed record. Raytheon “cannot hide the ball and then complain that the Plaintiff is unable to find it,” the Court observed in its denial. 

Second Circuit

Amara, et al. v. Cigna Corp., et al., 3:01-cv-2361 (JBA), 2020 WL 127696 (D. Ct., Jan. 10, 2020) (Judge Janet Bond Arterton). The Court denied Plaintiffs-Class’s motion for reconsideration to enforce the Court’s prior August 2019 ruling that allowed Cigna to deny them the “full value” of their retirement benefits. The prior decision had allowed Cigna to use “outdated” interest rates and mortality tables when calculating retirement benefits. The Court held that Plaintiffs failed to present any overlooked facts that would allow the Court to disturb the prior decision. The Court also declined to consider arguments concerning Cigna’s February 26, 2019 Plan Amendment because they were not raised by Plaintiffs until the reply brief. The Court also found that Cigna needed to give small benefit cashouts to certain retirees but would not approve sanctions for Cigna failing to have done so. The Court also specifically was not persuaded by Plaintiffs’ argument that one named plaintiff and one deposition witness were shorted retirement benefits by way of a so-called lookback interest rate and old mortality tables because the Court had already considered those facts and did not need to reconsider them. 

Fifth Circuit

Clark v. CertainTeed Salaried Pension Plan, et al., No. 18-CV-231, 2020 WL 262757 (W.D. La. Jan. 15, 2020) (Magistrate Judge Kathleen Kay). Plaintiff contended he was a participant of the Pension Plan, that his paychecks confirmed participation, and that he received pension estimate packets under the Plan. Two years later, Plaintiff was notified that those packets were sent to him in error and that he was not a participant of Defendant Plan. After Defendant denied Plaintiff’s claim, he filed suit and Defendant filed a Motion for Summary Judgment. The court conducted a de novo review and granted the motion because when Plaintiff’s employer, GS Roofing, became an affiliate of CertainTeed in 1999, it never adopted the Plan with the consent of the Board of Directors as was required. Plaintiff’s argument that the 1999 acquisition made him an employee of CertainTeed is not well-supported because records list GS Roofing as a separate corporation (maintained as a separate company), and Plaintiff did not meet the definition of “employee” under the Plan because he was not rendering services to the Company (i.e. CertainTeed). When Plaintiff did become an employee of CertainTeed in 2007, he still was not a participant under the terms of the Plan which required participation prior to 2001 (whether active, terminated, or former).

Pleading Issues & Procedure

Fourth Circuit

Lewis v. Aetna Life Ins. Co., et al., No. CCB-19-860, 2020 WL 247461 (D. Md. Jan. 15, 2020) (Judge Catherine C. Blake). Plaintiff brought a claim for denial of supplemental life insurance benefits (count I) and a claim for denial of basic and supplemental accidental death and personal loss benefits (count II). The Plan and the employer were named along with Aetna in both counts. The Plan and the employer brought a motion to dismiss claiming they were not proper defendants because it was Aetna that controlled the payment of benefits under the Plan. The court recognized the Fourth Circuit had not addressed the issue of proper defendants in a claim under § 1132(a)(1)(B), but cited cases from the circuit stating that an ERISA benefits action may be brought against the entity with decision-making authority and the benefit plan itself. Thus, the Plan’s motion was denied. The court bootstrapped this reasoning as applicable to the employer and denied its motion as well. 

Eleventh Circuit

Bryant v. Hasbro, Inc., et al., No. 8:18-CV-1336-T-36CPT, 2020 WL 224513 (M.D. Fla. Jan. 15, 2020) (Judge Charlene Edwards Honeywell). Plaintiff alleged that she composed music that was used in various programs of Defendant sold in Florida, in the US, and internationally. She filed her complaint for non-payment of pension benefits under ERISA. Defendant moved to dismiss the complaint based on lack of personal jurisdiction. The court granted the motion, explaining that Defendant is incorporated and has its principal place of business in Rhode Island. The activities of Defendant’s subsidiaries in Florida do not subject the parent company to jurisdiction unless the subsidiary acts as merely an agent. Plaintiff also alleged that the court had personal jurisdiction under ERISA Section 510 because Defendant discriminated against her by interfering with her rights to wages and to attaining pension benefits. The court declined to infer a violation based on lost contracts or the fact that Plaintiff was the only woman among men in her position, and none of the men had complained of non-payment. The court also did not find any viable claim under Section 502(a)(3) which allowed participants to sue the plan administrator to recover benefits because Plaintiff failed to identify any ERISA plan terms that entitled her to benefits. Therefore, the court determined that it did not have personal jurisdiction over Defendant.

Retaliation Claims

Sixth Circuit

Eaves v. Eye Centers of Tennessee, LLC, No. 2:18-cv-00072, 2020 WL 134116 (M.D. Tenn. Jan. 13, 2020) (Judge Waverly D. Crenshaw, Jr.). Plaintiff sued for retaliation under ERISA § 510 alleging she was constructively discharged after testifying before a federal grand jury in an investigation brought by the Department of Justice and in a case brought by the Department of Labor. The parties filed cross-motions for summary judgment. There was no issue of whether Plaintiff engaged in a protected activity (giving testimony in two cases). The only issue for the Court was “(1) whether Eaves suffered an adverse employment action and, if so, (2) whether there was a causal link between that adverse action and her ERISA-protected activity.” “To establish a claim for constructive discharge, the plaintiff must present evidence showing that (1) ‘the employer deliberately created intolerable working conditions, as perceived by a reasonable person, and (2) the employer did so with the intention of forcing the employee to quit.’” (quoting Logan v. Denny’s, Inc., 259 F.3d 558, 568-89 (6th Cir. 2001)). “[F]actors to consider in determining whether a reasonable person would feel compelled to resign include whether the employer’s actions involved ‘(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status.’” (quoting Logan at 568). The Court found that after considering the totality of the circumstances there were issues of fact to be decided at trial. Eye Center also moved for summary judgment on Plaintiff’s state law claim for violation of Tennessee’s whistleblower statute. The Court granted Eye Center’s motion on this claim finding it was preempted by ERISA.

Severance Benefit Claims

Sixth Circuit

Kushner v. Nationwide Mut. Ins. Co., No. 2:18-CV-01020, 2020 WL 134138 (S.D. Ohio Jan. 13, 2020) (Judge Algenon L. Marbley). Plaintiff brought a lawsuit regarding his pension benefit calculation, and while that litigation was pending his employment was terminated. His employer offers a severance plan to its employees. A term of the severance plan is that the claimant must sign a release, which is defined in the plan as an agreement between the employee and the employer that “resolves and settles all possible disputes and claims pertaining to or arising from the Associate’s employment and discontinuation of employment from the Plan Sponsor and all other Companies.” Plaintiff made amendments to the release agreement provided to him by his employer to carve out his ongoing litigation regarding his pension. The employer refused to accept the amended release. His claim for severance benefits was denied by his employer because he did not sign the original release. The Court found the decision to deny Plaintiff’s severance claim was reasonable based in the plan language. Defendant’s motion for summary judgment was granted and the case dismissed.

Eighth Circuit

Tardio v. Boston Scientific Corp. U.S. Severance Plan for Exempt Employees, No. 18-CV-1446 (WMW/BRT), 2020 WL 209278 (D. Minn. Jan. 14, 2020) (Judge Wilhelmina M. Wright). Plaintiff was a sales representative who was laid off by his employer, Boston Scientific. As a result, he became eligible for benefits under Boston Scientific’s severance benefits plan, which is governed by ERISA. Before the benefits became payable, however, Boston Scientific attempted to retrieve several expensive medical device products from Plaintiff at his home. Plaintiff became angry and threw the products on the ground, damaging them, all of which was captured on video. Boston Scientific then issued a notice of termination for cause and refused to pay any severance benefits. Plaintiff sued the Plan for failure to pay benefits, after which the Plan filed a motion for summary judgment. Plaintiff argued that the severance benefits became payable as soon as he signed the release agreement given to him as part of the severance procedure. The plan contended that Plaintiff was not entitled to benefits because he was terminated for cause, not severed, and that Plaintiff failed to honor his contractual obligations to Boston Scientific. On summary judgment, the court found that the Plan unambiguously granted Defendant the discretionary authority to construe and interpret the Plan, and thus the appropriate standard of review was abuse of discretion. The court found that the plan terms allowed Boston Scientific to reclassify a termination from a layoff to a for-cause termination if the employee was involved in misconduct, and that the evidence supported Boston Scientific’s conclusion that Plaintiff’s dumping of its devices constituted misconduct. The court also found that the release agreement did not trigger a duty to pay benefits because under the Plan the release was only one condition for payment. Thus, the court found that the Plan’s decision was reasonable, and granted its summary judgment motion.

Withdrawal Liability & Unpaid Contributions

Second Circuit

Mason Tenders Dist. Council Welfare Fund v. Gibraltar Contracting, Inc., No. 18 CIV. 3668 (AT), 2020 WL 230603 (S.D.N.Y. Jan. 14, 2020) (Judge Analisa Torres).  The court granted Plaintiffs’ motion for summary judgment and awarded delinquent contributions in the principal amount of $527,196.41 and for dues checkoffs and PAC contributions in the amount of $39,359.13 for the audit period of May 27, 2015 to December 31, 2016.  The court also granted Plaintiffs summary judgment on their claims for damages, including interest, liquidated damages, imputed audit costs, and interest on unpaid dues checkoffs and PAC contributions.

Trustees of Local 1034 Pension Tr. Fund v. N. Cancro, Inc., No. 18CV07412CBARML, 2020 WL 207902 (E.D.N.Y. Jan. 14, 2020) (Judge Carol Bagley Amon).  In this dispute over withdrawal liability, the court adopted the report & recommendation and awarded damages in accordance with the R&R.  

Finkel v. Potenza Electrical Corp., et al, No. 19CV00486AMDRML, 2020 WL 207707 (E.D.N.Y. Jan. 14, 2020) (Judge Ann M. Donnelly).  The court adopted the Magistrate Judge’s report and recommendation in its entirety and conformed the arbitration award for a total judgment of $555,353.79.

Trustees of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Dreamland Constr., Inc., No. 19-CV-8420 (JGK), 2020 WL 176972 (S.D.N.Y. Jan. 11, 2020) (Judge John G. Koeltl). “The Clerk of Court is directed to enter judgment granting the petition to enforce the arbitration award dated July 15, 2019, in the amount of $88,141.92, plus interest from the date of the arbitration award, namely July 15, 2019, accrued at an annual rate of 7.5% until the date of judgment. The Clerk is also directed to enter judgment in favor of the petitioners and against the respondent in the amount of $1,567.50 in attorney’s fees and $70 in costs. Post-judgment interest on the entire amount of the judgment will accrue from the date of the judgment at the rate provided by 28 U.S.C. § 1961(a).”

Third Circuit

Askew v. R.L. Reppert, Inc., No. 5:11-CV-04003, 2020 WL 134208 (E.D. Pa. Jan. 10, 2020)(Judge Joseph F. Leeson) Plaintiff brought this action against Defendant, his former employer, because it did not properly contribute to the employees’ 401(k) plan. As a part of the final judgment, Defendant was ordered to engage an independent qualified public accountant to conduct an examination of the financial statements, and of other books and records, of the 401(k) Plan, consistent with the requirements of 29 U.S.C. § 1023(a)(3)(A) for the plan years 2008 through 2011. Defendant did so, and the Court found all requirements had been satisfied.

Fourth Circuit

Trustees of The Ironworkers Local Union No. 16 Pension Plan, et al. v. Bryant Concrete Construction, Inc., No. DLB-18-3681, 2020 WL 134575 (D. Md. Jan. 10, 2020) (Magistrate Judge Deborah L. Boardman). As a threshold matter, the court determined that the CBA’s arbitration clause and the relevant provisions of the Funds’ agreements permitted the Funds to bring their claims in this court without first pursuing arbitration. The court granted Plaintiffs’ motion for summary judgment in the Funds’ favor for unpaid contributions, liquidated damages, interest, attorneys’ fees and costs.  “Bryant Concrete owes the Funds contributions totaling $23.59 per hour (less the amount due to the Union per hour) for 4,168 hours that Bryant Concrete’s Union-member employees worked, as well as 269.5 hours that three non-Union employees worked.”

Sixth Circuit

Wilson v. DM Excavating, LLC, No. 2:18-CV-1779, 2020 WL 247374 (S.D. Ohio Jan. 16, 2020) (Judge Chelsey M. Vascura).  The court ordered entry of “judgment for Plaintiffs (except the Trustees of the Ohio Operating Engineers Education and Safety Fund) for unpaid fringe benefit contributions in the amount of $199,260.96, plus interest at the rate of 5% from September 30, 2019, until the date of this Opinion and Order, plus liquidated damages in amount equal to the interest award. The Clerk shall enter judgment in favor of Defendant as to all claims by Plaintiff the Trustees of the Ohio Operating Engineers Education and Safety Fund.”

Seventh Circuit

Trustees of NECA-IBEW Pension Benefit Tr. Fund v. Marion Fire Sprinkler & Alarm, Inc., No. 19-CV-147-SMY, 2020 WL 230803 (S.D. Ill. Jan. 15, 2020) (Judge Staci M. Yandle).  The court granted Plaintiffs’ motion for default judgment and entered judgment against Defendant in the total amount of $43,334.41 ($17,152.78 in unpaid contributions and working dues, $702.41 in interest and $1,453.44 in liquidated damages to Plaintiffs for the period April 2018 through March 2019; $11,992.76 remaining under the Payment Agreement plus $1,540.65 in interest and $808.17 in liquidated damages to Plaintiffs which has accrued under the Payment Agreement; and attorneys’ fees of $9,244.20 and costs totaling $440.00).

Cent. Laborers’ Pens. V. Wyandotte Corp. and Kevin Kent, 19-cv-00927-JPG, 2020 WL 134622 (S.D. Ill. Jan. 13, 2020) (J. Phil Gilbert). The Court denied Defendant’s Motion to Dismiss and granted Plaintiff’s Motion for Leave to File Plaintiff’s Second Amended Complaint. The Court’s analysis was that while Defendant contends that he is not personally liable for Defendant Wyandotte Corporation’s alleged failure to make fringe-benefits contributions, and the general rule is that Congress did not intend for § 1145 of ERISA to impose personal liability on corporate officers, that rule is inapt where an individual contractually accepts responsibility for corporate liability. Finding that Defendant Kent had done so in this case, it denied Defendant’s Motion to Dismiss. With regard to Plaintiff’s Motion, the Court found that Plaintiff erroneously refers to “the Trust Agreement” as if it were a single document when there were actually two documents and they differed with respect to the consequences in the event of breach—the Pension Fund Agreement expressly states that an employer’s officers and directors carry personal liability while the Welfare Fund Agreement—entered into three years after the Pension Fund Agreement—does not. For this reason, it granted Plaintiff’s Motion.

Ninth Circuit

Trustees of The Operating Engineers Pension Trust, et al. v. West Coast Boring, Inc., No. 219CV6546ODWPLAX, 2020 WL 208809 (C.D. Cal. Jan. 14, 2020) (Judge Otis D. Wright).  In this dispute over delinquent contributions, the court granted Plaintiffs’ motion for default judgment and awarded $22,250.08 in damages, $531.25 in litigation costs, and $1935 in attorney’s fees.

Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys:  Brent Dorian BrehmBeth Davis, Sarah DemersElizabeth GreenAndrew Kantor, Susan Meter, Michelle RobertsTim Rozelle, Peter Sessions, and Zoya Yarnykh.