GARY FEINERMAN, District Judge.
This Court granted the plaintiffs Chicago Regional Council of Carpenters Pension Fund et al.'s ("Trust Funds") motion for a default order against defendant ROWLOCK RETAIL CONSTRUCTION, INC. ("Defendant" or "ROWLOCK") on November 19, 2015. See Order, Nov. 19, 2015, Docket No. 11. In order to obtain a final judgment, the Trust Funds hereby submit this
For the reasons explained more fully below, this Court should award the Trust Funds $886,734.21 in damages as follows:
ROWLOCK is bound by the Area Agreement with the Chicago Regional Council of Carpenters ("Union"). See Declaration of J. Libby ¶ 3, Exhibit A. The Trust Funds conducted an audit of ROWLOCK's books and records which revealed unpaid fringe benefit contributions in the amount of $708,508.60. See Declaration of J. Libby ¶¶4-8, Exhibit A.
Under ERISA, ROWLOCK is liable to the Trust Funds for any unpaid fringe benefit contributions. ERISA states as follows:
See 29 U.S.C. § 1132(g)(2)(A).
Accordingly, this Court should award the Trust Funds $708,508.60 for unpaid fringe benefit contributions.
Under ERISA, 29 U.S.C. §1132, Trust Funds are entitled to collect interest on the unpaid contributions. Section 1132(g)(2)(B) provides as follows:
See 29 U.S.C. §1132(g)(2). And, section 6621 of title 26 provides as follows:
See 26 U.S.C. §6621.
This is consistent with the trust agreements which also allow the Trust Funds to collect interest on the amount due. See Decl. of J. Libby ¶ 9, Exhibit A. Therefore, the Trust Funds are entitled to recover interest based on the statute.
The amount due as interest on the fringe benefit contributions is $31,930.70. See Declaration of J. Libby ¶¶11, 13, Exhibit A. Accordingly, this Court should award the Trust Funds interest in the amount of $31,930.70 pursuant to 29 U.S.C. §1132(g)(2).
Under ERISA, 29 U.S.C. §1132, the Trust Funds are entitled to collect liquidated damages on the unpaid contributions. Section 1132(g)(2)(C)(ii) provides as follows:
This is consistent with the trust agreements which also allow the Trust Funds to collect liquidated damages of 1.5% monthly on the amount due. See Decl. of J. Libby ¶ 9, Exhibit A.
The total liquidated damages calculated at 1.5% per month compounded equals $129,193.74. See Decl. of J. Libby ¶¶ 11, 13, Exhibit A. Accordingly, this Court should award the Trust Funds liquidated damages in the amount of $129,193.74 pursuant to 29 U.S.C. § 1132(g)(2)(C)(ii).
Under the terms of the Trust Agreements and the Area Agreement, a signatory employer is liable for reasonable fees of auditors retained by the Trust Funds used to establish the amount of delinquent contributions to the Trust Funds. See Declaration of J. Libby ¶12, Exhibit A.
Moreover, ERISA, 29 U.S.C. §1132, likewise provides that the Trust Funds are entitled to recover auditors' fees incurred to prove the amount of contributions owed:
See Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Co., 570 F.3d 890, 902 (7th Cir. 2009).
The Trust Funds incurred $2,602.50 in auditors' fees for the audit of ROWLOCK's fringe benefit contributions to the Trust Funds during the Audit Period. See Declaration of J. Libby ¶¶ 12, 13, Exhibit A. Accordingly, this Court should award the Trust Funds $2,602.50 in reasonable auditors' fees for the audit of ROWLOCK's books and records to determine that ROWLOCK owed unpaid fringe benefit contributions.
Under the terms of the Trust Agreements and the Area Agreement, ROWLOCK is liable for reasonable attorney fees and costs incurred by the Trust Funds to collect delinquent contributions because the Trust Funds were required to hire counsel to compel the audit of ROWLOCK and to collect the amount due from ROWLOCK. See Declaration of J. Libby ¶ 10, Exhibit A.
ROWLOCK has a statutory obligation to pay attorneys' fees and costs. Under ERISA, 29 U.S.C. §1132, Trust Funds are entitled to recover attorneys' fees and costs incurred to collect the unpaid contributions. Section 1132(g) provides as follows:
See 29 U.S.C. §1132(g)(2) (emphasis added). ROWLOCK is also liable for attorneys' fees and costs incurred by the Trust Funds to enforce any judgment entered in this matter. See Free v. Briody, 793 F.2d 807, 808-09 (7
Here the Trust Funds incurred $14,498.67 in attorneys' fees and costs as stated in the affidavit and detailed billing statements accompanying this petition. See Declaration of K. McJessy ¶¶ 6-8, Exhibit B. Billing statements are admissible to show the reasonableness of attorneys' fees and costs in ERISA cases. See Trustees of the Chicago Plastering Inst. Pension Trust, 570 F.3d at 903 (relying on attorneys "time records"); Chicago Regional Council of Carpenters Pension Fund v. RCI Enterprises, Inc., 2011 U.S. Dist LEXIS *6-7 (N.D. Ill., July 20, 2011) (Feinerman, J.) (relying on billing time records for award of attorneys' fees).
Moreover, the fees charged here of $160/hour and $220/hour for attorney time are reasonable compared to the rates charged by other attorneys handling similar ERISA matters in the Northern District of Illinois. As a matter of law, the Northern District of Illinois has recognized that hourly rates of $195 per hour to $250 per hour are reasonable rates for attorney time for ERISA litigation. See Trustees of the Chicago Regional Council of Carpenters Pension Fund v. RCI Enterprises, Inc., 2011 U.S. Dist. LEXIS *6 (N.D. Ill.) (holding that attorney rates of $180/hr for a junior attorney to $250/hr for a partner are reasonable hourly rates for ERISA lawsuit by the Chicago Regional Council of Carpenters); Board of Trustees of the Rockford Pipe Trades Indus. Pension Fund v. Fiorenza Enters., 2011 U.S. Dist. LEXIS 28209, 21-22 (N.D. Ill. Mar. 18, 2011) ("the court finds that the hourly rates [of $195, $210 and $235 per hour] ... are reasonable" for fringe benefit trust funds lawsuit against employer to collect unpaid contributions); Divane v. Mitchell Sec. Sys., 2008 U.S. Dist. LEXIS 27825 (N.D. Ill. Apr. 7, 2008) ("The court finds that the billing rates [of $220.00 to 240.00 for attorneys] are reasonable.").
Accordingly, this Court should award the Trust Funds $14,498.67 in reasonable attorneys' fees and costs for the audit of ROWLOCK's books and records to determine that ROWLOCK owed unpaid fringe benefit contributions.
For the forgoing reasons, the Trust Funds respectfully request that this Court enter final judgment for the Trust Funds in the amount of $886,734.21 as follows:
The Trust Funds shall also recover reasonable attorney' fees and costs incurred by the Trust Funds in enforcing this order and any such further relief as this Court deems appropriate. See Free v. Briody, 793 F.2d 807, 808-09 (7
I, John Libby, hereby declare, under penalty of perjury pursuant to the laws of the United States, that the following statements are true to the best of my knowledge information and belief:
1. I am the Manager, Audits & Collections for the Chicago Regional Council of Carpenters Pension Fund ("Pension Fund"), the Chicago Regional Council of Carpenters Health and Welfare Fund ("Health and Welfare Fund"), the Chicago and Northeast Illinois Regional Council of Carpenter Apprentice and Trainee Program ("Trainee Fund") and the Labor/Management Union Carpentry Cooperation Promotion Fund (collectively "the Trust Funds").
2. As part of my duties, I am responsible for managing the collection of contributions for medical, pension and other benefits due from numerous employers pursuant to the collective bargaining agreement between the employers and the Chicago and Northeast Illinois Regional Council of Carpenters ("Union") and between employers and the United Brotherhood of Carpenters and Joiners of America. Accordingly, I am familiar with the terms of the current collective bargaining agreement ("Area Agreement") and the trust agreements establishing the Trust Funds.
3. ROWLOCK RETAIL CONSTRUCTION, INC., a Nevada corporation ("Defendant"), is an employer bound by the Area Agreement with the Union because Defendant signed an Agreement with the Union because it performed work within the geographic jurisdiction of the Union. A copy of the Agreement showing that Defendant is bound by the Area Agreement is attached as Exhibit 1. The Agreement states in part that:
Accordingly, Defendant is bound to the Area Agreement with the Union and the Trust Agreements establishing the Trust Funds and by the rules and regulations adopted by the Trustees of each Trust Fund. The Area Agreement, the Trust Agreements and the rules and regulations are collectively referred to herein as "Agreements."
4. Pursuant to the Agreements, Defendant is required to pay fringe benefit contributions to the Trust Funds for work performed by Defendant's employees and non-union subcontractors performing work falling within the jurisdiction of the Union.
5. Pursuant to the Agreements, Defendant also agreed to submit to a periodic audit of its books and records in order to verify the accuracy of the contributions reported and paid to the Trust Funds.
6. The Trust Funds engaged Legacy Professionals, LLP ("Legacy") to conduct an audit of Defendant's fringe benefit contributions to the Trust Funds for the period June 1, 2014 through March 31, 2016.
7. After this lawsuit was filed, records were obtained from Defendant's bank regarding its financial transactions during the Audit Period and those records were provided to Legacy. Legacy prepared an Audit Report of Defendant's fringe benefit contributions to the Trust Funds based on Legacy's review of these records. Legacy delivered a copy of its Audit Report to the Trust Funds.
8. A copy of the Audit Report delivered by Legacy to the Trust Funds is attached as Exhibit 2. According to the Audit Report and based on the records produced to Legacy and to the Trust Funds, Defendant owes $708,508.60 in unpaid fringe benefit contributions to the Trust Funds.
9. The Agreements provide that the Trust Funds collect liquidated damages on unpaid fringe benefit contributions at a rate of 1½ percent compounded monthly. The Agreements also provide that the Trust Funds collect interest on unpaid fringe benefit contributions as allowed by law.
10. Because Defendant failed to comply with the terms of the Agreements, the Trust Funds have had to employ the services of the law firm McJessy Ching & Thompson, LLC. As a result, the Trust Funds incurred attorneys' fees and costs.
11. A summary of the updated calculations of accrued interest and liquidated damages for the Audit Report is attached hereto as Exhibit 3. Defendant owes $31,930.70 in unpaid interest calculated pursuant to 26 U.S.C. §6621 and $129,193.74 in unpaid liquidated damages calculated in accordance with the Agreements.
12. The Trust Funds paid Legacy $2,602.50 as auditors' fees for Legacy to conduct its review of Defendant's books and records and to prepare the Audit Report.
13. In sum, based on the records produced by Defendant, Defendant owes unpaid contributions of $708,508.60, interest of $31,930.70, liquidated damages of $129,193.74, auditors' fees of $2,602.50 plus the attorneys' fees and costs incurred by the Trust Funds in this lawsuit.
14. I have personal knowledge of the matters stated in this affidavit and could testify competently to them.
I declare under penalty of, perjury that the foregoing is true and correct.
Employer
THIS AGREEMENT is entered into between the Chicago Regional Council of Carpenters Union") and the Employer, including its successors and assigns covering the geographic jurisdiction of the Union including the following counties in Illinois: Boone, Bureau, Carroll, Cook, De Kalb, DuPage, Grundy, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Lake, La Salle, Lee, Marshall, McHenry, Mercer, Ogle, Putnam, Rock Island, Stark, Stephenson, Whiteside, Will, Winnebago. The following counties in Iowa: Allamakee, Appanoose, Benton, Black Hawk, Bremer, Buchanan, Butler, Cedar, Cerro Gordo, Chickasaw, Clayton, Clinton, Davis, Delaware, Des Moines, Dubuque, Fayette, Floyd, Franklin, Grundy, Hancock, Henry, Howard, Iowa, Jackson, Jefferson, Johnson, Jones, Keokuk, Kossuth, Lee, Linn, Louisa, Mahaska, Mitchell, Monroe, Muscatine, Scott, Tama, Van Buren, Wapello, Washington, Wayne, Winnebago, Winneshiek, Worth, Wright. The following counties in Wisconsin: Kenosha, Milwaukee, Ozaukee, Racine, Washington and Waukesha. The Union and the Employer do hereby agree to the following:
1. The Employer recognizes the Union as the sole and exclusive bargaining representative on behalf of its employees who are working within the territorial and occupational jurisdiction of the Union.
2. The Employer has reviewed sufficient evidence and is satisfied that the Union is the exclusive bargaining representative of a majority of its employees presently working within the territorial and occupational jurisdiction of the Union.
3. The Employer and the Union agree to incorporate into this Memorandum Agreement and to be bound by the Agreements negotiated between the Chicago Regional Council of Carpenters and various employers and employer associations, including all Area Agreements for the period beginning with the execution of this Memorandum Agreement and ending on the expiration dates of any current and successor Agreements which are incorporated herein (see attached list). Unless the Employer provides written notice by certified mail to the Chicago Regional Council of its desire to terminate or modify the Agreement at least three (3) calendar months prior to the expiration of such Agreements, the Agreement shall continue in full force and effect through the full term and duration of all subsequent Agreements which are incorporated by reference.
4. The Employer agrees to be bound to the terms of the various Trust Agreements to which contributions are required to be made under the Agreements incorporated in Paragraph 3, including all rules and regulations adopted by the Trustees of each Fund.
In Witness Whereof the parties have executed this Memorandum of Agreement on this
Mid American Regional Bargaining Association, Cook, Lake and DuPage
Mid American Regional Bargaining Association, Kane, Kendall and McHenry
Mid American Regional Bargaining Association, Will
Kankakee Contractors Association
Residential Construction Employers Council, Cook, Lake and DuPage
Residential Construction Employers Council, Will
Residential Construction Employers Council, Grundy
Woodworkers Association of Chicago (Mill-Cabinet)
Contractors Association of Will and Grundy Counties
Gypsum Drywall Contractors of Northern Illinois/Chicago land Association of Wall and Ceiling Contractors (Western Region)
Quad City Builders Association, Commercial, Rock Island Mercer, Henry and Henderson
Floor Covering, Rock Island, Mercer, Henry and Henderson
Residential, Henry, Mercer and Henderson
Illinois Valley Contractors' Association, Bureau, LaSalle, Marshall, Putnam and Stark
Window and Door, Boone, Bureau, Carroll, DeKalb, Henderson, Henry, Jo Daviess, LaSalle, Marshall,
Mercer, Ogle, Putnam, Rock Island, Stark, Stephenson, Whiteside and Winnebago
Commercial/Residential, DeKalb, Eastern Ogle and cities in Sandwhich and Somonauk
Residential Construction Employers' Council, DeKalb, Eastern Ogle and cities in Sandwich and Somonauk
Residential Construction Employers' Council, Boone, Carroll, Jo Daviess, Lee, Ogle, Stephenson, Whiteside and Winnebago
Northern Illinois Building Contractors Association Inc., Boone, Carroll, Jo Davies, Lee, Ogle, Stephenson, Whiteside and Winnebago
Floor Covering, Boone, Carroll, DeKalb, Jo Daviess, Lee, Lee, Ogle, Stephenson, Whiteside and Winnebago
Millwright, Boone, Bureau, Canoll, DeKalb, Henderson, Jo Davies, LaSalle, Lee, Marshall, Mercer,
Ogle, Putnam, Rock Island, Stark, Stephenson, Whiteside, and Winnebago
Associated General Contractors of Illinois (Heavy and Highway) Highway Districts 2-7 and portions of 1 and 8
Commercial, Muscatine, Scott, Louisa north of Iowa River
Floorcovering, Louisa north of Iowa River, Muscatine and Scott
Residential, Clinton, Louisa, Muscatine, Scott and Seven southern most townships of Jackson County including Morunouth, South Fork, Maquoketa, Fairfield, Van Buren, Iowa and Union
Heavy and Highway Associated Contractors Agreement Scott County
Herberger Construction Heavy and Highway
Heavy and Highway Contractors' Association- entire State except Scott County
Commercial Benton, Jones, Linn and Tama
Residential Benton, Jones, Linn and Tama
Commercial, Des Moines, Henry, Lee and Louisa south of Iowa River
Residential, Des Moines, Henry, Lee and Louisa south of Iowa River
Commercial/Residential Dubuque, Delaware, Clayton, and Six Northern Townships in Jackson
Commercial/Residential, Appanoose, Davis, Jefferson, Keokuk, Mahaska, Monroe, Van Buren, Wapello, and Wayne
Commercial, Clinton, Seven Southern most townships of Jackson including Monmouth, South Fork, Maquoketa, Fairfield, Van Buren, Iowa, and Union
Floor Covering, Dubuque, Delaware, Clayton, and six Northern Townships in Jackson Window and Door, State
Commercial, Cedar, Iowa, Johnson, Poweshiek and Washington
Commercial Interior Systems, Cedar, Iowa, Johnson, Poweshiek and Washington
Residential, Cedar, Iowa, Johnson, Poweshiek and Washington
Commercial, Cerro Gordo, Franklin, Hancock, Kossuth, Winnebago, Worth and Wright, Buchanan,
Independent Contractors of Waterloo (Commercial) Butler, Chickasaw, Fayette, Floyd, Grundy,
Howard, Mitchell, Winneshiek
Millwright, Adair, Allamakee, Appanoose, Benton, Black Hawk, Boone, Bremer, Buchanan, Butler,
Cedar, Calhoun, Carroll, Ceno Gordo, Chickasaw, Clayton, Clarke, Clinton, Dallas, Davis, Decatur,
Delaware, Des Moines, Dubuque, Emmet, Fayette, Floyd, Franklin, Greene, Grundy, Guthrie, Hamilton,
Hancock, Hardin, Henry, Howard, Humboldt, Iowa, Jackson, Jasper, Jefferson, Johnson, Jones, Keokuk,
Lee, Linn, Lucas, Louisa, Madison, Mahaska, Marion, Marshall, Mitchell, Monroe, Muscatine, Palo
Alto, Pocahontas, Polk, Poweshiek, Ringhold, Scott, Story, Tama, Union, Van Buren, Warren, Wapello,
Washington, Wayne, Webster, Winnebago, Winneshiek, Worth, Wright
Commercial Carpenters and Floor Coverers' Agreement (Wisconsin)
Commercial Carpenters Agreement, Kenosha/Racine
Millwright Erectors' Agreement
Pile Drivers' Agreement
Insulators Agreement
Overhead Door Agreement
The Employers Acknowledges receipt of a current copy of each agreement under which the company will be performing work. Each of the agreements are available upon request
It is also understood and agreed that it is the Employers obligation to make a written request of additional Collective Bargaining Agreement(s) in the event that the Company performs work in areas for which it has not already obtained a copy of the applicable Agreement.
We have performed the procedures enumerated in the attached Schedule of Agreed-Upon Procedures Applied, which were agreed to by the Chicago Regional Council of Carpenters Fringe Benefit Funds, solely to assist them in evaluating this employer's compliance with the Collective Bargaining and Trust Agreements during the above referenced reporting period. The employer's management is responsible for compliance with those requirements. This agreed-upon procedures engagement was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of these procedures is solely the responsibility of the Chicago Regional Council of Carpenters Fringe Benefit Funds. Consequently, we make no representation regarding the sufficiency of the procedures either for the purpose for which this report has been requested or for any other purpose.
Our procedures and findings are enumerated in schedules attached to this Report.
We were not engaged to, and did not, conduct an examination, the objective of which would be the expression of an opinion on compliance. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.
This report is intended solely for the information and use of the Chicago Regional Council of Carpenters Fringe Benefit Funds and is not intended to be, and should not be used by any other parties.
I, Kevin P. McJessy, hereby declare, under penalty of perjury pursuant to the laws of the United States, that the following statements are true:
1. I am one of the attorneys representing the Chicago Regional Council of Carpenters Pension Fund, the Chicago Regional Council of Carpenters Welfare Fund, the Chicago and Northeast Illinois Regional Council of Carpenter Apprentice and Trainee Program, and the Labor/Management Union Carpentry Cooperation Promotion Fund (collectively "the Trust Funds") in the above-captioned lawsuit ("Lawsuit") against Rowlock Retail Construction, Inc., a Nevada corporation ("Defendant").
2. I have been licensed to practice law in the State of Illinois and the United States District Court for the Northern District of Illinois since 1995. I am an attorney with McJessy, Ching & Thompson, LLC ("MC&T").
3. As part of my practice, I handle claims under BRISA. I personally represented the Trust Funds in this Lawsuit. I have represented the Trust Funds in this Lawsuit since its inception. As such I am familiar with the matters set forth in this declaration.
4. John Sopata is an attorney with MC&T. He has been licensed to practice law in Illinois since 1999.
5. Sheila Keating is a paralegal with MC&T. She has been a paralegal since 1987.
6. The Trust Funds have incurred $14,498.67 in fees and expenses to compel Defendant to comply with its obligations under the terms of the Collective Bargaining Agreement and applicable trust agreements.
7. The Trust Funds have collectively incurred fees totaling $9,926.00 for 48.9 hours of attorney services and $1,956.00 for 20.6 hours of paralegal services. A redacted copy of the client ledger showing the time spent and a description of the work performed is attached as Exhibit 1.
The hourly rate for attorneys and paralegals charged to the Trust Funds as set forth above is consistent with the rates approved in the Northern District of Illinois for BRISA collection work. See, e.g., Rappa v. Sun Life Assur. Co., 2014 U.S. Dist. LEXIS 124896, *11 (W.D. Wis. Sept. 8, 2014) ("Sun Life does not object to plaintiffs counsel's rate of $300 per hour, and the court finds that rate reasonable given the nature of BRISA cases."); Board of Trustees of the Rockford Pipe Trades Indus. Pension Fund v. Fiorenza Enters., 2011 U.S. Dist. LEXIS 28209, 21-22 (N.D. Ill. Mar. 18, 2011) ("the court finds that the hourly rates [of $195, $210 and $235 per hour] ... are reasonable" for fringe benefit trust funds lawsuit against employer to collect unpaid contributions); Divane v. Mitchell Sec. Sys., 2008 U.S. Dist. LEXIS 27825 (N.D. Ill. Apr. 7, 2008) ("The court finds that the billing rates [of $220.00 to 240.00 for attorneys] are reasonable.").
8. The Trust Funds incurred $2,616.67 in expenses for the filing fee, process server charges, legal research charges, courier charges, research charge, photocopy charges and postage charges. A detailed list of expenses incurred by the Trust Funds in this matter is attached hereto as Exhibit 2.
9. The attorneys' fees, paralegal fees and costs charged to the Trust Funds in this matter are consistent with MC&T's regular charges for services to the Trust Funds on similar matters.
10. I have personal knowledge of the matters stated in this affidavit and could testify competently to them.
Plaintiffs Chicago Regional Council of Carpenters Pension Fund et al.'s ("Trust Funds") motion for entry of final judgment is granted and judgment is entered in favor of the Trust Funds and against defendant ROWLOCK RETAIL CONSTRUCTION, INC., a Nevada corporation ("Defendant") in the amount of $886,734.21 as follows:
The Trust Funds shall also recover reasonable attorney' fees and costs incurred by the Trust Funds in enforcing this order and any such further relief as this Court deems appropriate. See Free v. Briody, 793 F.2d 807, 808-09 (7
