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TRUSTEES OF THE PLUMBERS LOCAL UNION NO. 1 WELFARE FUND, v. BASS PLUMBING & HEATING CORP. et al

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Case Number: 
1:12-cv-03543 Search Pacer
ACE Group party(s): 
Opposing Party: 
Trustees of the Plumbers Local Union No. 1 Welfare Fund, Additional Security Benefit Fund, Vacation & Holiday Fund, Trade Education Fund and 401(k) Savings Plan
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Jul 17 2012

"FIRST CLAIM FOR RELIEF
13. Plaintiffs repeat the allegations set forth in paragraphs I through 14 above and incorporate them herein by reference.

14. Section 515 of ERISA provides: "Every employer who is obligated to make contributions to a multi employer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement." 29 U.S.C. § 1145.

15. Under the documents and instruments governing the Funds, including their trust agreements and the collection policies promulgated in accordance therewith, employers whose contributions are delinquent are liable for the amount of the delinquent contributions, interest at the rate of 10% per annum, liquidated damages of 20% of the principal amount due, attorneys' fees, audit fees, and other collection costs.

16. Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), provides that, upon!L finding that an employer violated section 515 of ERISA, 29 U.S.C. § 1145, the plan i~, entitled to judgment for the amount of delinquent contributions plus interest and liquidated damages at rates prescribed by the documents and instruments governing the plan, and the reasonable attorneys' fees and costs incurred by the plan in prosecuting the action.

17. By its failure to make the required amount of contributions to the Funds in connection with Covered Work performed during the October 2011 through March 2012,. BASS contravened the CBAs, the documents and instruments governing the Funds, and section 515 of ERISA, 29 U.S.C. § 1145.

18. Accordingly, BASS is liable to the Funds for delinquent ernployers contributions in the estimated amount of $116,464, interest at the rate of ten percent (10%) per annum; liquidated damages of twenty percent (20%) of the contributions owej and reasonable attorneys' fees and costs in an amount to be determined by the Court.

SECOND CLAIM FOR RELIEF

19. Plaintiffs repeat the allegations set forth in paragraphs 1 through 18 above and incorporate them herein by reference.

20. Under the documents and instruments governing the Funds, including their trust agreements and the collection policies promulgated in accordance therewith, employers whose contributions are delinquent are liable for the amount of the delinquent contributions, interest at the rate of 10% per annum, liquidated damages of 20% of the principal amount due, attorneys' fees, audit fees, and other collection costs.

21. In connection with previous late payments of contributions, Bass owe:; interest of $74,838.00, legal fees of$5,328.00 and liquidated damages of $ 1,260,450.00

THIRD CLAIM FOR RELIEF

22. Plaintiffs repeat the allegations set forth in paragraphs 1 through 24 about, and incorporate them herein by reference.

23. The trust agreements of the Funds provide that the Funds' assets include, not only money that employers have actually contributed to the Funds, but also delinquent amounts that employers were required to contribute to the Funds pursuant to collective bargaining agreements.

24. Section 3(21 )(A)(i) of ERISA, 29 U.S.C. § 1002(21 )(A)(i), provides that a person is a fiduciary of an employee benefit plan to the extent he or she exercises any discretionary authority or discretionary control respecting management of such plan 0 r exercises any authority or control respecting management or disposition of its assets.

25. At all relevant times, Fiduccia was president and majority shareholder of BASS, and exercised operational control of BASS, including discretionary authority and discretionary control of bank accounts and other assets in the possession of BASS.

26. At aU relevant times, Fiduccia was directly responsible for the failure of BASS to make contributions to the Funds.

27. Fiduccia was responsible for deciding whether to use assets in th,: possession of BASS to pay contributions to the Funds. Fiduccia decided not to use such assets to pay contributions to the Funds.

28. Fiduccia exercised discretionary control and/or discretionary authority over the disposition of the Funds' assets by causing BASS to fail to make contributions to the Funds in accordance with the CBAs. At times when BASS owed contributions to the Funds, Fiduccia caused BASS to use assets in its possession for purposes other than making contributions to the Funds.

29. Fiduccia was a fiduciary of the Funds within the meaning of section 3(21)(A)(i) of ERISA, 29 U.S.C. § 1002(21)(A)(i).

30. Fiduccia was a party in interest with respect to the Funds, within the meaning of section 3(14)(A), (E), and/or (H) of ERISA, 29 U.S.C. § 1002(14)(A), (El. and/or (H).

31. BASS was a party in interest with respect to the Funds, within the meaning of section 3(14)(C) of ERISA, 29 U.S.C. § I002(14)(C).

32. By the foregoing acts and omissions, Fiduccia failed to discharge hi, duties with respect to the Funds solely in the interest of the participants and beneficiaries of the Funds and for the exclusive purposes of providing benefits to the Funds' participants and their beneficiaries and defraying reasonable expenses of administering the Funds, in violation of section 404(a)(1 )(A) of ERISA, 29 U.S.C. § II 04(a)(1 )(A).

33. By the foregoing acts and omissions, Fiduccia failed to discharge hi~; duties with respect to the Funds with the care, skill, prudence, and diligence under the, circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of a like character and with like aims, in violation of section 404(a)(I)(B) of ERISA, 29 U.S.C. § 1104(a)(I)(B).
 
34. By the foregoing acts and omissions, Fiduccia caused assets of the Fund~ to be used by or for the benefit of a party in interest, in violation of section 406(a)(1 )(D} of ERISA, 29 U.S.C. § II06(a)(1)(D).

35. By the foregoing acts and omissions, Fiduccia caused the Funds to suffer substantial monetary losses.

36. Under section 409(a) of ERISA, 29 U.S.C. § l109(a), Fiduccia is personally liable to the Funds for all such losses, plus all profits Fiduccia has made andiOI all earnings the Funds have lost as a result of such acts and omissions.

FOURTH CLAIM FOR RELIEF

37. Plaintiffs repeat the allegations set forth in paragraphs I through 37 above and incorporate them herein by reference.

38. On or about August 12, 2010, Defendant Westchester Fire issued Bond No. K07353959 (the "Benefits Bond") to Bass for the penal sum of $600,000.00. By issuing the Benefits Bond, Westchester Fire undertook an obligation to pay any and all contributions, plus interest and lost earnings thereon, to the Plaintiffs required by the CBA, up to the penal sum of $600,000.00, unless BASS made those contributions.

39. As a result of New' failure to make contributions to the Plaintiffs as required by the CBA, Defendant Platte is liable to the Funds for contributions, interest and lost earnings of up to $600,000.00."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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