This week’s notable decision, Pension Benefit Guar. Corp. v. 50509 Marine LLC, No. 19-14968, __ F.3d __, 2020 WL 6882698 (11th Cir. Nov. 24, 2020), published two days before Thanksgiving, should have been issued a month earlier, during the Halloween season, as it addresses a frightening issue: can a zombie corporation operate an ERISA-governed pension plan? The creepy answer: it can!

The facts of the case stretch back to the 1990s, when an electrical supply company called Liberty Lighting Company filed for bankruptcy under Illinois law. Liberty was administratively dissolved, and its assets surrendered to creditors. Liberty’s owner, Joseph Wortley, also filed for bankruptcy, and all his assets, including his stock in Liberty, were surrendered to a trustee. However, Wortley continued to act as the administrator of Liberty’s pension plan, signing papers on behalf of the plan to effectuate benefit payments, among other activities.

Unfortunately, the plan began to run out of funds in 2012, and the bank administering the plan notified the Pension Benefit Guaranty Corporation. PBGC eventually agreed to a settlement with Wortley in which it was represented that Liberty dissolved in the 1990s, and Wortley agreed to convey all power and authority over the plan to PBGC.

However, six years later, in 2018, PBGC sued the Defendants in this case to recoup the unpaid benefits it was forced to expend on Liberty’s behalf. The Defendants were comprised of 19 companies that PBGC alleged were also owned by Wortley and part of a “controlled group” with Liberty. Under ERISA, companies who are part of a “controlled group” are jointly and severally liable for the payment of premiums to PBGC.

In response, Defendants contended they were not jointly and severally liable for Liberty’s pension plan under ERISA because Liberty had gone out of business 20 years earlier and no longer existed. The district court disagreed and granted PBGC summary judgment. Defendants appealed.

On appeal, the Eleventh Circuit noted that “on the surface” the case seemed to present the “easy question” of whether Liberty was a contributing plan sponsor in 2012 when PBGC took over the plan. However, the court found that answering this question was “difficult.”

The court first looked to Illinois law to determine what effect it might have on the case. The court determined that Illinois corporations law only addressed whether companies can continue to be sued after their dissolution, and did not address their legal status for other purposes, such as benefit plan administration. The court further noted that the question was not whether Liberty could be sued, but whether it had the capacity to serve as a plan sponsor under ERISA, which was fundamentally an issue of federal law that could not be answered by state law.

However, ERISA does not provide a direct answer to the issue of “what to do with pension liabilities when the sponsor of a plan has dissolved but the plan has continued to operate,” so the court concluded that it was required to create federal common law. The court first noted the purpose of the “controlled group” provision in ERISA: “the sponsor of a defunct pension plan cannot be allowed to funnel its assets into other entities it owns, and then leave PBGC holding the bag for the plan’s continuing liabilities.”

The court also observed that long after its dissolution, Liberty (through Wortley) had continued to serve as a de facto plan sponsor – for example, by authorizing benefit payments, filing forms with the government, and sending letters about the plan on Liberty letterhead.

As a result, the court ruled: “[W]e hold that where the sponsor of an ERISA plan dissolves under state law but continues to authorize payments to beneficiaries and is not supplanted as the plan’s sponsor by another entity, it remains the constructive sponsor such that other members of its controlled group may be held liable for the plan’s termination liabilities.”

The court found that this result was consistent with ERISA’s purpose of protecting plan beneficiaries, and that it promoted uniformity in the administration of benefit plans because the common law rule the court created did not rely on state corporations or bankruptcy laws. The court rejected Defendants’ arguments to the contrary, noting that under their theory no entity would be legally responsible for the plan and it would have no sponsor, which was incompatible with ERISA.

This week’s notable decision was prepared by Kantor & Kantor attorney, Peter Sessions. Peter has been practicing in the insurance and ERISA-related fields of law for more than 20 years and has special expertise in appellate litigation.

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

Attorneys’ Fees

Eighth Circuit

Esco Employee Savings Inv. Plan v. Walsh, et.al., No. 4:19CV77 HEA, 2020 WL 6939588 (E.D. Mo. Nov. 25, 2020) (Judge Henry Autrey). Esco Employee Savings Inv. Plan (“Esco ESIP”) filed this interpleader to determine who of the four defendants it should pay the proceeds of the decedent’s plan benefits after his death. The court previously granted summary judgment in favor of one defendant, the decedent’s wife (“defendant-wife”), finding the other three defendants had attempted to have the decedent change his beneficiary designation the day before his death while he was not competent to do so. Esco ESIP now seeks attorney’s fees and costs. The ordered Esco ESIP’s attorney fees and costs in the amount of $17,989.63 to be paid out of the plan benefits, which should be paid to the defendant-wife. The other three defendants were then ordered to pay defendant-wife $17,989.63.

Ninth Circuit

Estate of David Maurice, Jr., et al. v. Life Insurance Company of North America et al., No. 516CV02610CASSPX, 2020 WL 6892967 (C.D. Cal. Nov. 23, 2020) (Judge Christina A. Snyder). David Maurice had two accidental death and dismemberment disability policies issued by LINA. After stepping in a swimming pool and cutting his foot on glass, he contracted an infection that ultimately required his left leg be amputated at the knee and eventually resulted in his death. LINA argued that the injury was not covered because Maurice’s diabetes contributed to the need for amputation. The district court found for Plaintiff, but the Ninth Circuit reversed and remanded. The clerk of the court awarded costs to LINA of $4,132.30. Plaintiffs filed a motion to retax the award, citing the limited financial resources of Maurice’s widow. LINA argued that where the costs were from the appeal, the district court lacked the jurisdiction to modify them. The district court concluded it did have jurisdiction over the costs and exercised its discretion to retax them, ordering each party to bear its own costs.

Breach of Fiduciary Duty

First Circuit

New England Biolabs, Inc. v. Miller, No. 20-CV-11234-DJC, 2020 WL 6871015 (D. Mass. Nov. 23, 2020) (Judge Denise Casper). New England Biolabs (“NEB”) brought this claim for equitable relief under §1132(a)(3) against Plaintiff for refusing to return an alleged overpayment of pension benefits. Defendant then filed a motion for a preliminary injunction to stop Plaintiff from spending or moving the allegedly overpaid funds, and Plaintiff filed a motion to dismiss NEB’s complaint. The court determined that NEB had standing to bring its claims under §1132(a)(3) as the plan’s named fiduciary. Plaintiff challenged whether NEB could sue him, a plan participant, for breach of fiduciary duty. The court agreed with NEB’s reasoning that he became a plan fiduciary when he retained control of plan assets to which he was not entitled and allowed the §1132(a)(3) claim to proceed. The court also granted NEB’s motion for a preliminary injunction. 

Eighth Circuit

Skelton v. Davidson Hotels LLC, et al., No. CV 18-3344 (MJD/DTS), 2020 WL 6875503 (D. Minn. Nov. 23, 2020) (Judge Michael J. Davis). This case involves a claim for breach of fiduciary duty. Plaintiff’s spouse, Beth, who was employed by Davidson applied for supplemental life insurance under a policy issued by Reliance (the “Policy”). Initially, Beth did not submit evidence of insurability (“EOI”) because she believed that regaining custody of her stepson constituted a life event, so no EOI was required. Subsequently, Beth was advised that EOI was required and her husband submitted a declaration that an EOI had been completed and that Beth was going to submit it. Beth was charged premium by Davidson for the Policy and the premium was paid. After Beth died, Reliance refused to pay the supplemental life benefit claiming that an EOI had not been received and coverage had not been approved. Plaintiff filed a motion for summary judgment. Plaintiff argued two things: (1) a life event occurred when her husband regained custody of her stepson so no EOI was required; and, (2) Reliance breached its fiduciary duty by collecting premium and failing to notify Beth that the EOI had not been received. Reliance argued: (1) Plaintiff did not exhaust his administrative remedies; and, (2) Davidson collected the premium, not Reliance. As to failure to exhaust administrative remedies, the court held exhaustion was not required because Plaintiff was only seeking to enforce statutory rights, rather than rights under the Policy. The court further held that the Policy defined “a life event” and regaining custody of a stepson did not qualify, so an EOI was required.  Finally, the court held that Reliance breached its fiduciary duty, because it had a duty to ensure its system of administration did not allow it to collect premiums until after coverage was actually in force. The court entered judgment in favor of Plaintiff on his breach of fiduciary duty claim as to Reliance.

Class Actions

Second Circuit

Haley v. Teachers Ins. & Annuity Ass’n of Am., No. 17-CV-855 (JPO), 2020 WL 6947460 (S.D.N.Y. Nov. 25, 2020) (Judge J. Paul Oetken). Plaintiff brought this putative class action against TIAA, the third-party administrator of her employer’s ERISA-governed retirement benefit plan. Specifically, she contended that TIAA’s method of administering the loans participants took from their retirement accounts violated ERISA because TIAA did not return to the participants the full amount of interest earned on the collateral they contributed for the loans. Plaintiff filed a motion for class certification, which the court granted. The court found that the class satisfied commonality and typicality requirements because TIAA applied the same general loan program requirements to all the participants, even though different participants received different types of loans. The court did note, however, that Plaintiff might have difficulty tracing TIAA’s conduct to approval by a plan fiduciary (as the court had already ruled that TIAA was not a fiduciary), but this was insufficient to defeat class certification. The court further found that common questions overwhelmed individualized questions, thereby favoring certification. Finally, the court allowed Plaintiff to amend her complaint to add two new plaintiffs and class representatives.

Fifth Circuit

C.C. & L.C., et al. v. Baylor Scott & White Health, et al., No. 4:18-CV-828-SDJ, 2020 WL 6888542 (E.D. Tex. Nov. 23, 2020) (Judge Sean D. Jordan). Plaintiffs allege violations of the federal parity act related to the treatment of patients diagnosed with Autism Spectrum Disorder. Defendant brought a motion to dismiss. The court found Plaintiffs adequately allege Section 1132(a)(1)(B) and (a)(3) claims. The court found that Defendant had discretionary authority in the Plan and thus had “actual control” even though its services were described as ministerial in the relevant administrative contracts. The court found that Plaintiffs have sufficiently established standing to sue on behalf of the putative class by alleging that they have been personally injured. The court found Plaintiffs’ Rule 23 allegations are sufficient at the dismissal stage and Plaintiffs adequately pled an ascertainable class. 

Disability Benefit Claims

First Circuit

Ehlert v. Metropolitan Life Insurance Company, No. CV 18-10357-MPK, 2020 WL 6871021 (D. Mass. Nov. 23, 2020) (Magistrate Judge M. Page Kelley). Plaintiff filed suit for long-term disability benefits and attorneys’ fees. MetLife had discretionary authority and the court analyzed the denials under the arbitrary and capricious standard of review. Here, the court found that MetLife recognized and acknowledged the opinions of Plaintiff’s treating physicians, the mere existence of contrary medical evidence did not render arbitrary and capricious a plan administrator’s decision to credit one opinion over another. Indeed, when the medical evidence is sharply conflicted, the deference due to the plan administrator’s determination may be especially great. The court also found that MetLife provided Plaintiff with a full and fair review, because MetLife’s consultant physicians reached out to Plaintiff’s treating physicians and, where possible, had teleconferences to discuss Ehlert’s case. That the physician consultants disagreed with Plaintiff’s treating physicians did not mean that that they “deemphasized” their clinical evaluations and findings. In addition, it was not for the court to determine how much weight the insurer should have accorded to a particular piece of evidence, such as the FCE in this case, in its overall decision. Finally, while SSDI decision is evidence to be considered, benefits eligibility determinations by the Social Security Administration are not binding on disability insurers, and it should not be given controlling weight except perhaps in the rare case in which the statutory criteria are identical to the criteria set forth in the insurance plan. Judgment was entered for Defendant.

Ninth Circuit

Connor v. UNUM Life Ins. Co. of Am., Case No. 4:19-cv-06552-YGR, 2020 WL 6891829 (N.D. Cal. Nov. 24, 2020) (Judge Yvonne Gonzalez Rogers). Plaintiff was a doctor working part time in two physician groups. She suffers from migraines and receives disability payments from an individual life policy. Unum conceded she is disabled but argued that she did not meet the 30-hour weekly work minimum for eligibility. Plaintiff provided a declaration stating that she worked 32.5 hours each week, plus an average of 15 hours a week of on-call hours. Plaintiff’s employer confirmed this. The court noted that Unum ignored this “for an unknown reason” and continued to insist that she worked less than 30 hours a week. The court concluded that, where the Plan defined “full time” as at least 30 hours a week, and all evidence supported the fact that Plaintiff worked more than 30 hours a week, she was eligible for benefits regardless of whether she was called a full-time or part-time employee. The court awarded benefits to Plaintiff.

Eleventh Circuit

Caprio v. The Prudential Insurance Company of America, No. 5:20-CV-00987-CLS, 2020 WL 6945934 (N.D. Ala. Nov. 25, 2020) (Senior Judge C. Lynwood Smith, Jr.). Plaintiff sued two LTD plans and two LTD insurers for the denial of benefits. The LTD plans moved to be dismissed under 12(b)(6) because all claim decisions were made by the insurance companies. The court rejected this argument because 29 U.S.C. § 1132(d)(1) expressly authorizes suit against employee benefit plans. As the Plaintiff argued, if the law were that plans could not be sued, it would “necessarily mean that Congress was absolutely bonkers in passing” the statute authorizing suit against an employee benefit plan. The court found nothing in the Eleventh Circuit precedent requiring it to ignore the clear and unequivocal language of the statute. 

Discovery

Sixth Circuit

Ruhe v. Hartford Life & Accident Insurance Company, No. 3:19-CV-2124, 2020 WL 6946576, (W.D. Ky Nov. 25, 2020) (Magistrate Judge H. Brent Brennenstuhl). Hartford refused to stipulate to the de novo standard of review and as a result Plaintiff moved to conduct conflict of interest discovery. (The court noted that if Hartford had stipulated to the de novo standard of review, then Plaintiff’s motion would be moot). The court, relying on two unpublished Sixth Circuit decisions which constituted persuasive authority, concluded “that to be entitled to discovery, an ERISA claimant must first provide sufficient evidence of bias or any procedural irregularity to justify prehearing discovery.” Plaintiff made only mere allegations of bias without any evidence in support of her request for conflict of interest discovery. For this reason, the court denied Plaintiff’s motion.

Medical Benefit Claims

Ninth Circuit

DaVita, Inc. v. Amy’s Kitchen, Inc., Case No. 195963, __F.3d__, 2020 WL  6887338 (9th Cir. Nov. 24, 2020) (Before Circuit Judges Graber and Fletcher and District Judge Leslie E. Kobayashi, by designation). In October 2020, we summarized another DaVita lawsuit that made its way to the Sixth Circuit (DaVita, Inc. v. Marietta Mem’l Hosp. Employee Health Benefit Plan) wherein DaVita brought an (a)(3) claim challenging the applicable employee benefit plan’s provisions pertaining to end-stage renal disease (“ESRD”) claims as violative of the Medicare as Secondary Provisions (“MSP”) of the Social Security Act. The Sixth Circuit construed DaVita’s Count II ERISA claim as alleging that the as-written Plan was illegal, and that DaVita was seeking an equitable remedy so as not to ask the court to enforce an allegedly illegal plan. Here, the district court ruled, and the Ninth Circuit panel upheld, the dismissal of DaVita’s federal claims, including its (a)(3) claim, and found that the applicable plan provisions did not violate the MSP. Tracking similar analysis in Marietta, the court here also upheld the dismissal of DaVita’s claim for equitable relief because the applicable assignment of benefits at issue could not be interpreted to confer a valid assignment of equitable claims from the insured to DaVita. 

San Joaquin General Hospital v. Blue Cross of California, et al., No. 220CV01569JAMJDP, 2020 WL 6940885 (E.D. Cal. Nov. 25, 2020) (Judge Jeremy D. Peterson). Plaintiff brought a motion to remand and Defendant brought a motion to dismiss. Plaintiff claims defendant owes it money because of a contract separate from the patients’ ERISA plans. The court found Plaintiff’s state law claims could not have been brought under ERISA and are based on independent legal duties and thus are not completely preempted. The court granted Plaintiff’s Motion to Remand and denied Defendant’s Motion to Dismiss as moot. 

Tenth Circuit

Odell v. Medflight, Case No. 20-2060-JWB, 2020 WL 6939761 (D. Kan. Nov. 25, 2020) (Judge John W. Broomes). Odell suffered an injury while working in Kansas while covered under a BCBS Kansas-administered plan. Odell was first admitted to Via Christi Hospital in Kansas for medical treatment but three weeks later was transported by helicopter to Craig Hospital in Colorado. The aircraft was owned and operated by CCM. Prior to providing transportation, CCM never advised him or anyone who may have signed on his behalf that it could charge an unlimited price for air transportation from Via Christi to Craig Hospital. CCM later charged Odell $175,250.00 for the flight to Craig Hospital. CCM submitted a claim to BCBS Kansas for that amount, but it claimed (and paid) that the reasonable price for the service was $24,345.60. CCM requested Odell’s assistance in appealing the denial of the claim and assured him he would not face personal responsibility for any amount beyond what BCBS Kansas paid so long as he allowed CCM to file an appeal. BCBS Kansas subsequently denied the appeal. CCM thereafter informed Odell it planned to pursue Odell personally for the full amount of $175,250.00. Odell’s claims were as follows: (1) declaratory relief as to his legal capacity to enter a contract with CCM and the extent of his legal duties to CCM, (2) state law violations against CCM, and (3) an ERISA benefits claim against BCBS Kansas. The Court denied CCM’s motion to dismiss as to Count 1, granted as to Count 2 and denied BCBS Kansas’ motion to dismiss at to Count 3. 

Pension Benefit Claims

Third Circuit

Scheinoff v. Zelnick, Mann, and Winikur, P.C., et al., No. CV 20-3103, 2020 WL 6940017 (E.D. Pa. Nov. 25, 2020) (Judge Gerald Austin McHugh). Plaintiff alleged that he was wrongly denied the opportunity to participate in a retirement plan (“the Plan”) while employed by Zelnick, Mann, and Winikur. Plaintiff claimed that Defendant’s concealment of the plan deprived him of its benefits, causing him to forfeit contributions, tax deferral opportunities, and investment earnings. Plaintiff sought relief through ERISA sections 502(a)((1)(b) and well as 502(a)(2). (Counts I and II, respectively.) Defendants filed a motion to dismiss both counts. Under Count I, Plaintiff requested “[a]n order instructing Defendant ZMW to follow the IRS instructions to place Plaintiff in the same position he would have been in had Defendant ZMW allowed Plaintiff to participate in the Plan.” The court rejected this request, agreeing with Defendant’s assertion that the Supreme Court has clearly rejected the availability of extracontractual remedies under 502(a)(1)(b). Specifically, the court explained the proper remedy for a violation of section 502(a)(1)(b) is to enforce the plan (and pay benefits), not to alter the terms of the Plan to create an alternative equitable remedy. In Count II, Plaintiff alleged that Defendants failed to notify Plaintiff and other employees about the opportunity to participate in the Plan, in violation of its fiduciary duties under section 409(a). The court agreed with Defendant’s argument that the individual harm alleged by Plaintiff cannot be properly remedied under section 409(a), as this section does not concern fiduciary violations which impair an individual’s rights, rather than the “plan-related harms contemplated by the drafters of section 409(a), which usually concern misuse of plan assets.” As such, the court granted the motion to dismiss both counts with prejudice, however it did allow Plaintiff to amend his complaint to bring allegations which could be sustained as a matter of law.

Seventh Circuit

Dean, et al. v. National Production Workers Union Severance Trust Plan, et al., No. 1:19-CV-02694, 2020 WL 6894665 (N.D. Ill. Nov. 24, 2020) (Judge John Robert Blakey). Plaintiffs were employees of Parsec, which began making contributions to the Teamsters Plan instead of National Production Workers Union (“NPWU”) plans after Plaintiffs voted to change the plans. Plaintiffs then discovered that Parsec’s withdrawals caused a 70% reduction in the Severance Plan and a 100% reduction in the 401(k) Plan. Plaintiffs filed suit seeking distribution of benefits of the NPWU plans under ERISA. However, the plan terms did not support Plaintiffs’ demand that contributions either roll over to the new plan, or that the assets must have been distributed within a year, and the court held that Plaintiffs advanced no theory under which Parsec must have rolled over or distributed the assets, because 401(k) plans are not subject to ERISA § 1103(d)(1), and the plans define “Severance” as occurring only when a participant separates from their current employer or transfers to a nonunion position for the same employer, which has not happened here. The court also dismissed Plaintiffs’ breach of fiduciary duty claim because there were no allegations that Defendants engaged in financial transactions with NPWU, or that the administrative fees were unreasonable. ERISA’s fiduciary duties did not require Defendants to operate the plans with the lowest expense ratios, but rather with reasonable and prudent ones.

Statute of Limitations

Sixth Circuit

D.S.S. et al. v. Prudential Ins. Co. of Am., No. 3:20-CV-248-CRS, 2020 WL 6877738 (W.D. Ky. Nov. 23, 2020) (Judge Charles R. Simpson III). On February 7, 2014, the insured changed her primary beneficiaries under an ERISA life insurance plan. She died in a tragic incident on March 18, 2014. In June 2014, the benefits were paid to the primary beneficiary at the time of death. In December 2014, the prior beneficiaries contacted Prudential asking who the beneficiary of the policy was. Prudential did not provide any information but eventually advised that the estate could find out the beneficiary’s name via IRS Form 712. On December 31, 2014, via the Form 712, the prior beneficiaries learned the name of the policy’s beneficiary and when the benefits were paid. Over the next several years, various entities corresponded with Prudential on behalf of the prior beneficiaries about the benefits. On February 26, 2020, the prior beneficiaries sued Prudential. In response, Prudential filed a motion that was converted into a request for summary adjudication. After finding the one-year statute of limitations in the Plan to be reasonable, the court turned to the “discovery rule” it asserted governed when a cause of action under (a)(1)(B) accrued. Under the discovery rule, the limitations period began to run when the plaintiff discovered, or with due diligence should have discovered, the injury that was the basis of the action. This did not necessarily require a formal written denial of a claim, but rather a fiduciary’s clear and unequivocal repudiation of benefits to a claimant, whether through formal or informal means, caused a claim to accrue for statute of limitations purposes. The court determined that, at the latest, the accrual date was December 31, 2014—the date the Form 712 was received. Plaintiff’s failure to file a written claim for benefits, which would have triggered Prudential’s obligation to formally notify them of a denial of benefits and the right to a full and fair review did not alter the accrual date. Summary judgment was granted in Prudential’s favor. 

Statutory Penalties

Sixth Circuit

Day v. So. Electrical Retirement Fund Board of Trustees, No.: 1:19-CV-253-TAV-CHS, 2020 WL 6928607 (E.D. Tenn. Nov. 24, 2020) (Judge Thomas A. Varlan). Plaintiff filed suit in regard to unpaid benefits under ERISA. The Magistrate Judge issued a Report and Recommendation which recommended that Defendant’s motions to dismiss be granted. Plaintiff objected. Specifically, Plaintiff objected to: 1) the Magistrate Judge’s conclusion that the continuing violation theory discussed in Tibble v. Edison International does not apply to his § 1132(c) claim; (2) the failure to award Plaintiff penalties under § 1132(c) for Defendant’s alleged failure to furnish requested information during the limitations period; and (3) the recommendation that Plaintiff’s claim for benefits be dismissed without prejudice rather than stayed pending exhaustion of administrative remedies. The court overruled all of Plaintiff’s objections, noting (respectively) that:  1) the facts in this case are sufficiently distinguishable from those in Tibble; 2) Plaintiff’s claim is time-barred; 3) Plaintiff failed to show extraordinary circumstances which would excuse Plaintiff’s failure to satisfy the exhaustion requirement. As such, the court accepted the Report in whole, granting Defendant’s motion to dismiss Plaintiff’s §1132(c) claim with prejudice and his §1132(a)(1)(B) claim without prejudice.

Withdrawal Liability & Unpaid Contributions

Sixth Circuit

Iron Workers District Council of Southern Ohio & Vicinity Benefit Trust, et al., v. Millennium Steel, Inc., No. 3:18-CV-00351, 2020 WL 6946430 (S.D. Ohio Nov. 25, 2020) (Judge Walter H. Rice). The court adopted the R&R from October 26, 2020 and granted Plaintiffs’ Motion for Judgment and Final Appealable Order. “[T]he Clerk of Court is ordered to enter a default judgment pursuant to Fed. R. Civ. P. 55(b)(2) in favor of Plaintiffs and against Defendant Millennium Steel, Inc.”

Eighth Circuit

Local 513 International Union of Operating Engineers, AFL-CIO, et al., Plaintiffs, v. James Martin Excavating Inc., et al., No. 4:20-CV-00499-JAR, 2020 WL 6939610 (E.D. Mo. Nov. 25, 2020) (Judge John A. Ross). The court granted Plaintiffs’ Motion for Contempt in this ERISA collection case where Defendants have failed to participate in discovery for purposes of determining the amount of liability for unpaid contributions. “Defendants are collectively fined $200.00 per day for each day after this date that Defendants fail to submit records for inspection or otherwise comply with this Court’s Orders. The penalty is imposed as a joint and several obligation of the Defendants.” The court also granted Plaintiffs’ request for attorneys’ fees and costs spent in bringing the motion.

Cement Masons Local 527, et al. v. Palazzolo Construction, LLC, No. 4:16-CV-1437 NAB, 2020 WL 6939497 (E.D. Mo. Nov. 25, 2020) (Magistrate Judge Nannette A. Baker). The court granted Plaintiffs’ Motion for Leave to File Instanter Plaintiffs’ Memorandum in Support of Body Attachment and Affidavit for Attorneys’ Fees. The court further ordered Defendant Palazzolo Construction liable for Plaintiffs’ attorneys fees and costs to Plaintiffs for having to bring its motion to compel and for contempt in the amount of $1,650.76.

Construction Industry Laborers Pension Fund, et al. v. Zoie, LLC, No. 4:20-CV-01355-JAR, 2020 WL 6939556 (E.D. Mo. Nov. 25, 2020) (Judge John A. Ross). The court granted Plaintiffs’ motion for default judgment and entered judgment in favor of Plaintiff Pension Fund for the total amount of $17,712.30 ($14,338.75 for unpaid contributions – $2,867.75 for liquidated damages – $505.80 for interest). The court also entered judgment in favor of Plaintiff Welfare Fund for the total amount of $20,619.85 ($16,692.51 for unpaid contributions – $3,338.50 for liquidated damages – $588.83 for interest). The court also awarded attorneys’ fees and costs and audit costs.

Eleventh Circuit

Pension Benefit Guar. Corp. v. 50509 Marine LLC, No. 19-14968, __ F.3d __, 2020 WL 6882698 (11th Cir. Nov. 24, 2020) (Before Circuit Judges Martin, Rosenbaum, and Tallman). See Notable Decision summary above.

Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys:  Brent Dorian Brehm, Sarah Demers, Elizabeth Green, Andrew Kantor, Anna Martin, Michelle Roberts, Tim Rozelle, Peter Sessions, Stacy Tucker, and Zoya Yarnykh.