benefit eligibility and coverage for its employees. It has not,
however, paid the full amount which was required by it to obtain
34. After the enactment of the Multi-Employer Pension Plan
Amendment Act of 1980, the Administrator reviewed the prior
determinations, and concluded that no changes were necessitated
by the new Act.
35. The total amount of contributions owed by the Defendant to
the Plaintiffs is $7,505.32. The total amount of liquidated
damages due the Plaintiffs is $750.53. The costs incurred by the
Plaintiffs in auditing the Defendant's records total $700.00.
CONCLUSIONS OF LAW
1. The Court has jurisdiction of this action pursuant to the
provisions of the Labor-Management Relations Act of 1947, as
amended, 29 U.S.C. § 185(a).
2. The Defendant, KELDORN, INC., is in violation of its
contractual obligations to the Plaintiffs by virtue of its
intentionally inaccurate reporting during the years of 1975
through 1977, and its consequent failure to pay all fringe
benefit contributions required by it to have been paid.
3. The Defendant is liable to the Plaintiffs for all fringe
benefit contributions revealed by the audit to be delinquent in
the total amount of $7,505.32, plus liquidated damages in the
amount of 10 percent of those delinquent contributions, plus all
costs of audit and the Plaintiffs' reasonable attorneys' fees.
4. Section 403(c) of ERISA prohibits the Plaintiffs from
returning fringe benefit contributions made in the absence of a
statutory exception. The only relevant exception in effect at the
time of the instant audit, was that for overpayments made based
upon mistake of fact and within one year.
5. Section 403(c)(2)(A) of ERISA prohibits the Plaintiffs from
offsetting overpayments against underpayments unless the
overpayments were made by mistake of fact within one year.
6. That the aforesaid provision was amended by the
Multi-Employer Pension Plan Amendment Act of 1980 to permit, but
not require, offset of overpayments against underpayments which
occur by reason of a mistake of law or a mistake of fact within
six months after the plan administrator determines the
contribution was made by a mistake.
7. The overpayments made to the Plaintiffs by the Defendant
during the period January, 1975 through December, 1977 were
intentional and not made by mistake.
8. The overpayments made to the Plaintiffs by the Defendant,
with the exception of those for November and December, 1977, were
made more than one year prior to the audit.
9. Plaintiffs are not required under either the 1974 version or
the 1980 version of § 403cc to grant the Defendant a full offset
of contributions overpaid and the law requires the Court to enter
judgment in Plaintiffs' favor for all delinquent contributions
without further offset as contended by Defendant.
10. Judgment should be entered in favor of the Plaintiffs and
against Defendant in the amount of $7,505.32, representing
delinquent contributions, plus $750.53 in liquidated damages,
plus $700.00 representing the cost to Plaintiffs of auditing the
Defendant's records, plus Plaintiffs' reasonable attorneys' fees
as shall be determined in subsequent proceedings.
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