JOHN Z. LEE, District Judge.
Plaintiffs, Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds"), and Catherine Wenskus, Administrator of the Funds, move this Court to enter judgment against Pan American Concrete Company. In support of this motion the Funds state as follows:
1. On March 26, 2018, the Funds filed a Motion for Summary Judgment, a Memorandum in Support thereof, Statement of Material Facts Pursuant to Rule 56.1(a), Affidavits and Exhibits in accordance with Rule 56 of the F. R. of C. P., and the Court's local rules (Dk# 41-44).
2. On August 14, 2018, Defendant's counsel from the firm of DiMonte & Lizak moved to withdraw their appearances on behalf of the Defendant. Plaintiffs' counsel has informed the Court that postponing judgment against the Defendant is detrimental to the Funds' interests. Defendant's counsel informed the Court that the Defendant is no longer operating and its assets are being sold under the control of its secured creditors, and that the Defendant will no longer contest entry of judgment.
3. Plaintiffs are seeking judgment for principal contributions based on an audit covering the period from July 1, 2015 through March 31, 2017, as follows:
In addition, the Funds are seeking judgment for amounts owed from May 2017 through November 2017, which amounts were determined from the Company's reporting information as follows:
Plaintiffs are entitled to judgment for principal, liquidated damages, audit costs, interest and accumulated penalties in the amount of $513,691.41. (See, Affidavit by Michael Christopher, Exhibit 1, attached hereto which was presented to the Court in the Funds motion for summary judgment. Also attached are Exhs. 8 and 9, spreadsheets reflecting amounts owed as provided in Christopher's affidavit).
4. Plaintiffs are also entitled to an award of reasonable attorneys' fees and costs under ERISA, 29 U.S.C. § 1132(g)(2)(D), to enforce payment of contributions under ERISA, 29 U.S.C. § 1145, where a judgment is entered in favor of the plan. In addition, the parties' Joint Agreement provides, in Article VIII, paragraph 4:
Attorneys' fees are awarded where a judgment is entered on behalf of the Funds pursuant to ERISA, 29 U.S.C. § 1132(g)(2), and pursuant to the terms of the collective bargaining agreements and Trust Agreements. In this case, reasonable attorneys' fees and costs are established by an affidavit of Karen I. Engelhardt, plaintiffs' counsel. This affidavit reflects that based on hourly records the amount of $26,233.00 is owed to the Funds' for its counsel's attorney's fees and $469.00 is owed to the Funds to reimburse its costs, consisting of filing and service fees. (Exhibit 2, Affidavit of Karen I. Engelhardt).
Wherefore, Plaintiffs request judgment entered against Pan American Concrete Company, Inc., in the total amount of $540,393.31. A draft order has been filed.
Michael Christopher, first duly sworn on oath, deposes and states as follows:
1. I am a Field Representative employed by the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds"), who are Plaintiffs in the above referenced action. My responsibilities include oversight of the collection of amounts owed by Pan American Concrete Company ("Pan American"). This affidavit is submitted in support of the Funds' Motion for Summary Judgment.
2. Pan American has been a signatory employer since March 2010, during which time it submitted remittance reporting information and paid contributions to the Funds based on that information. An executed collective bargaining agreement on file with the Funds was signed March 5, 2010, which is a true and correct copy of the agreement between the Company and the Construction and General Laborers' District Council of Chicago and Vicinity ("Union"), attached to the Complaint as Exhibit A, and attached hereto as Exh. 1.
3. The Union assigned Pan American to a Joint Agreement between the Union and the Concrete Contractor's Association ("CCA"). A true and correct copy of the Joint Agreement covering the period from June 1, 2013 through May 31, 2017, is attached hereto as Exhibit 2. The extension Agreement is attached hereto as Exhibit 3.
4. The Agreements obligate the Company to make contributions to the Funds on behalf of its employees covered by the Agreement for pension and health and welfare benefits, and to other benefit funds and labor-management funds, and to submit monthly remittance reports in which the Company, inter alia, identifies the employees covered under the Agreement and the amount of contributions remitted on behalf of each covered employee. (Exh.1,2). Contribution rates are established by the Agreements and are identified in correspondence to all employers from the Union. (Exh.4),
5. The Funds have been duly authorized by the Chicago Laborers' District Council Retiree Health and Welfare Fund ("Retiree Welfare Fund"), the Construction and General Laborers' District Council of Chicago and Vicinity Training Fund (the "Training Fund"), the Laborers' Employers' Cooperation & Education Trust ("LECET"), the Midwest Construction Industry Advancement Fund ("MCIAF"), the Laborers' District Council Labor Management Committee Cooperative ("LDCMC"), and the Concrete Contractors' Association of Greater Chicago ("CCA") and are authorized to act as an agent in the collection of contributions due to those funds, and have been duly authorized by the Union to act as an agent for the purposes of collecting union dues deducted from employees' wages. The Agreement further obligates the Company to deduct Union dues from the wages of its employees covered by the Agreement, and to remit such dues to the Union together with monthly remittance reports. The Funds are authorized to collect Union dues and remit collected dues to the Union. (Exhs. 1, 2).
6. The Funds are established by Trust Fund Agreements and Declarations of Trust, which each employer has agreed to become a party. (Exhs.5,6, 13). I am aware that the respective Agreements and Declarations of Trust to which the Company is bound, as well as the policies and rules adopted by the Trustees of the Funds pursuant to those Agreements and Declarations of Trust, require that the Company pay liquidated damages and interest at a rate of 12 percent on all delinquent amounts owed from the date of delinquency forward. (Exhs, 5, 6). In this case I am aware that the liquidated damage penalties are twenty percent of the delinquency.
7. I am aware that the Company submitted its books and records to the Funds' designated auditors from the firm of Legacy Professionals LLC, who prepared an audit report for the Funds covering the period from July 1, 2015 through March 31, 2017, reflecting principal contributions due to the Welfare, Retiree Welfare, Pension, Training Fund, LDCLMCC, CCA and LECET Funds and for Union dues in the amount of $79,618.95. A true and correct copy of this report is identified as Exhibit 7 . I am aware that contribution payments were received by the Funds after the audit report was prepared. I forwarded a spread sheet identifying hours paid to Legacy who revised down their report. Based on those revisions, I prepared a spread sheet, identified as Exhibit 8, reflecting the revised amount of principal, penalties and interest.
8. The Company reported contributions owed for the period after the audit period through current or from April 2017 through November 2017, on the remittance forms distributed to all contributing employers by the Funds. The month of April 2017 was paid. For the months of May 2017 to the present, based on reporting information prepared by the Company, I created a spreadsheet showing amounts owed to the Welfare, Retiree Welfare, Pension, Training Fund, LDCLMCC, CCA and LECET Funds and for Union dues in the amount of $253,562.90, Exhibit 9.
9. With respect to that period which has yet to be audited, the Funds reserve the opportunity to audit this period at the Company's regularly scheduled review.
10. It is my responsibility to prepare the damage and interest calculation for audit reports. Liquidated damages are twenty percent for certain Funds and ten percent for Union dues and the Union Funds. Liquidated damages are shown on Exhibits 8 and 9.
11. Interest is assessed by the Fund at the rate of 12 percent. Interest included on Exhibit 8, has been calculated through February 27, 2018 and interest shown on Exhibit 9, has been calculated through March 13, 2018,
12. Audit fees paid by the Funds in connection with this matter were $2,696.91.
13. The Company owes penalties in the amount as shown on Exhibit 10, for contributions paid untimely beginning with report month of November 2015, totaling $85,711.55.
14. The Union reported to me that penalties are owed for late dues payments as shown on Exhibit 11, in the amount of $5,832.60.
FURTHER AFFIANT SAYETH NOT.
FOLLOWING ARE THE FIGURES OWED BY THE ABOVE MENTIONED CONTRACTOR AS A RESULT OF THE AUDIT.
I, Karen I. Engelhardt declare under oath and under the penalty of perjury the following:
1. I am an attorney and a shareholder at the law firm of Allison, Slutsky & Kennedy, P.C., counsel for Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and Catherine Wenskus, Administrator. This affidavit is submitted to document attorneys' fees and costs incurred by the Plaintiffs for work performed in connection with the above captioned lawsuit filed under Section 502(a)(3) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(3), as amended, covering the period from November 24, 2014 through the present.
2. For all attorney time from February 15, 2017 forward, services were rendered to the Funds at the rate of $225.00 per hour for shareholder, $195.00 per hour for associates, and $110.00 per hour for clerks/paralegals. In this cause, records for legal work on this matter were kept contemporaneously and are attached hereto as Exhibit A.
3. Exhibit A hereto sets forth the time expended from February 15, 2017 through August 14, 2018, by the firm's attorneys and paralegals in this matter. As set forth in that Exhibit, the Laborers' Funds have incurred legal fees to my firm in this matter in the amount of $26,233.00.
4. In addition, the Plaintiffs have incurred the following costs in the prosecution of this matter totaling $469.00, which includes filing fees.
FURTHER AFFIANT SAYETH NOT.
This cause coming before the Court on the Plaintiffs' Motion for Judgment, due notice having been given to the Defendant;
Judgment is entered on behalf of the Laborers' Pension and Welfare Funds and against Defendant Pan American Concrete Company in a total amount of $540,393.31, which consists of:
