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Glazing Health And Welfare Fund v. Lamek

United States Court of Appeals, Ninth Circuit

March 21, 2018

Glazing Health and Welfare Fund, Trustees; Southern Nevada Glaziers and Fabricators Pension Trust Fund; Painters, Glaziers and Floorcoverers Joint Apprenticeship and Journeyman Training Trust; Painters, Glaziers and Floorcoverers Safety Training Trust Fund; IUPAT Political Action Committee; Southern Nevada Painters and Decorators and Glaziers Labor-Management Cooperation Committee Trust; IUPAT Industry Pension Trust Fund; Southern California, Arizona, Colorado and Southern Nevada Glaziers, Architectural Metal and Glass Workers Pension Trust Fund, Plaintiffs-Appellants,
v.
Michael A. Lamek; Kelly D. Marshall, Defendants-Appellees, and Accuracy Glass & Mirror Company, Inc., Defendant.

          Argued and Submitted November 17, 2017

          Appeal from the United States District Court for the District of Nevada Kent J. Dawson, Senior District Judge No. 2:13-cv-01106-KJD-NJK, Presiding

          Wesley J. Smith (argued) and Daryl E. Martin, Christensen James & Martin, Las Vegas, Nevada, for Plaintiffs-Appellants.

          Mark S. Dzarnoski (argued), Gentile Cristalli Miller Armeni Savarese, Las Vegas, Nevada, for Defendants-Appellees.

          Before: Richard R. Clifton and Michelle T. Friedland, Circuit Judges, and Sharon L. Gleason, [*] District Judge.

          SUMMARY[**]

         Employee Retirement Income Security Act

         The panel affirmed the district court's dismissal of an ERISA action brought by employee benefit trust funds, seeking unpaid contributions owed under the contracts governing the benefit plans that the trust funds managed for Accuracy Glass & Mirror Company.

         The trust funds argued that, pursuant to those contracts, the unpaid contributions were trust assets over which the owners and officers of Accuracy exercised control and that the trust funds therefore could sue these individuals as fiduciaries to collect the contributions. The panel held that the trust funds' claim was foreclosed by Bos v. Bd. of Trustees (Bos I), 795 F.3d 1006 (9th Cir. 2015), which held that employers are not fiduciaries under ERISA as to unpaid contributions to ERISA benefit plans.

         Dissenting, Judge Gleason wrote that she disagreed with the majority's interpretation of Bos I and would find that outside of the bankruptcy context unpaid employer contributions to employee benefit plans may constitute plan assets when the ERISA plan document expressly defines them as such.

          OPINION

          FRIEDLAND, Circuit Judge:

         The trustees of Glazing Health and Welfare Fund and several other employee benefit trust funds (collectively, "the Trusts") appeal from the district court's dismissal of their lawsuit against Michael Lamek and Kelly Marshall, the sole owners and officers of Accuracy Glass & Mirror Company, Inc. ("Accuracy"). The lawsuit sought unpaid contributions owed under the contracts governing the benefit plans that the Trusts managed for Accuracy. The Trusts argue that, pursuant to those contracts, the unpaid contributions were trust assets over which Lamek and Marshall exercised control and that the Trusts therefore could sue the individuals as fiduciaries to collect those contributions. We agree with the district court that Bos v. Board of Trustees (Bos I), 795 F.3d 1006 (9th Cir. 2015), cert. denied, 136 S.Ct. 1452 (2016), which held that parties to an ERISA plan cannot designate unpaid contributions as plan assets, forecloses the Trusts' claim.[1] We therefore affirm.

          I.

         Accuracy was a Nevada corporation that operated as a glass and glazing contractor.[2] Marshall served as the president of the corporation, and Lamek served as the secretary and treasurer. Accuracy was a party to two Master Labor Agreements ("MLAs") that required it to contribute to the Trusts from 2007 to 2011 and 2013 to 2015 to provide employee benefits, including health insurance and pensions. In addition, each Trust was governed by its own Trust Agreement, which purported to treat unpaid contributions as trust assets. For example, a document governing the Glazing Health and ...


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