United States District Court, N.D. Illinois, Eastern Division
Chicago Regional Council of Carpenters Pension Fund, et al., Plaintiffs,
Schal Bovis, Inc., Defendant.
MEMORANDUM OPINION AND ORDER
S. Shah, Judge
are four carpenter union fringe benefit funds. They brought
an action under the Employee Retirement Income Security Act
and the Labor Management Relations Act against defendant, a
general contractor and a signatory to collective bargaining
agreements, for failing to make payments to the funds for
work performed by nonunion labor. After Judge Coleman granted
plaintiffs' partial motion for summary judgment on the
issue of defendant's liability for four claims of unpaid
fringe benefit contributions, I assessed damages and interest
for the unpaid contributions, and I awarded plaintiffs'
attorneys' fees. Both parties appealed the final order.
The Seventh Circuit reversed the grant of summary judgment as
to two claims of unpaid fringe benefit contributions and
remanded the case for further proceedings. Defendant now
moves for reasonable attorney's fees and to modify the
earlier fee award to plaintiffs. For the following reasons,
that motion is denied in part and granted in part.
1983, defendant has been a party to several collective
bargaining agreements with the Chicago Regional Council of
Carpenters. Through this original agreement and a later
agreement that was effective from 2005 to 2008, defendant
became a party to several trust agreements that created
fringe benefit funds for the carpenters union. The later
agreement forbade defendant from hiring subcontractors for
“jurisdictional work” if the subcontractors had
not signed the agreement. The agreement defined
“jurisdictional work” in broad terms: it
encompassed carpenter's work, but it did not include work
done by other unions in the Building Trades. If defendant
hired non-signatories to perform carpenter's work, the
agreement obligated defendant to track the hours worked by
the subcontractor and to pay the funds fringe benefit
contributions for each of those hours.
audit of defendant's books from 2006 through 2007 led
plaintiffs to demand from defendant eight million dollars in
unpaid fringe benefit contributions, liquidated damages, and
interest for thirty-six claims of work by non-signatory
subcontractors. Plaintiffs pursued eight of those claims
against defendant by bringing this action. Shortly
thereafter, plaintiffs withdrew four claims. Defendant filed
a motion for summary judgment, arguing that it was not liable
to plaintiffs for unpaid contributions in the four remaining
claims (Monda Window & Door, Edward Don & Company,
Timothy Wright, and Canac). Defendant argued it was entitled
to a judgment on the Monda Window & Door and the Edward
Don & Company claims because those subcontractors
performed non-jurisdictional work, which was permissible
under the agreement. Defendant noted that plaintiffs exempted
other similar claims against defendant when the work involved
other trade unions, meaning it was non-jurisdictional work
under the agreement. Judge Coleman rejected those arguments
and held that defendant did not present enough evidence about
the exemptions to lead to the conclusion that plaintiffs
exempted those subcontractors because of the contractual
language rather than because of individualized
accommodations. See  at 1.
respect to the Timothy Wright and the Canac claims, defendant
argued that it should not be held liable because plaintiffs
received the required fringe benefit contributions from both
subcontractors. Even though Timothy Wright was unable to
officially complete a union agreement because it did not
secure a bond, defendant argued that Timothy Wright became a
signatory through its conduct of making fringe benefit
contributions to the funds. Defendant also argued that Canac
was effectively the same employer as Qualifit, a union
signatory, and since Qualifit made fringe benefit
contributions to the funds, defendant could not be liable.
Those arguments were rejected. See  at 1.
parties submitted competing briefs on the issue of damages.
Plaintiffs calculated the amount of damages by taking
one-third of the total amount of money defendant paid the
subcontractors (a common approach for estimating the cost of
labor) and multiplying that amount by the fringe benefit rate
for the applicable time period. These calculations were
presumed correct because defendant maintained substandard
records. See Chicago Dist. Council of Carpenters Pension
Fund v. Reinke Insulation Co., 347 F.3d 262, 264 (7th
Cir. 2003). I relied on plaintiffs' calculations except
for when there was other evidence in the record that provided
a more precise accounting. I concluded that defendant was
liable to plaintiffs for unpaid fringe benefit contributions
in the following amounts: $12, 449.25 for the Monda Window
& Door claim; $8, 910.00 for the Edward Don & Company
claim; $7, 161.00 for the Timothy Wright claim; and $129,
225.50 for the Canac claim. I also held defendant liable to
plaintiffs for $102, 799.90 in double interest; for $2,
849.04 in auditor's fees; and for $49, 226.44 in
attorneys' fees and costs that plaintiffs accrued through
its pre-suit investigation and post-suit efforts, see
Montanez v. Simon, 755 F.3d 547, 555 (7th Cir. 2014);
BCS Servs., Inc. v. BG Investments, Inc., 728 F.3d
633, 642 (7th Cir. 2013). See ; .
appealed the grant of summary judgment with respect to the
Edward Don & Company claim and the Canac claim.
Plaintiffs cross-appealed the calculation of damages for the
Canac claim. The Seventh Circuit reversed because: (1) the
Edward Don & Company claim was non-jurisdictional work,
as shown by the terms of the agreement and defendant's
evidence that it was the existing practice of the Sheet Metal
Workers union to install stainless steel kitchen equipment;
and (2) it was an error of law to conclude that defendant
could not rely on the single-employer doctrine solely because
its contract was with Canac and not Qualifit, and that
doctrine shielded defendant from being held liable for
violating the agreement by assigning work to Canac.
Chicago Reg'l Council of Carpenters Pension Fund
Bovis, Inc., 826 F.3d 397 (7th Cir. 2016), cert.
denied, 137 S.Ct. 819 (2017). As a result of this
holding, plaintiffs were not entitled to any damages from
defendant on the Canac claim and therefore, plaintiffs'
issue on appeal was rendered moot. Id. at 400. The
Seventh Circuit remanded the case for further proceedings and
defendant filed this motion.
Defendant's Attorney's Fees
1132 of the Employee Retirement Income Security Act empowers
plaintiffs to bring an action against defendant to recover
unpaid fringe benefit contributions. It also permits a court
to award attorney's fees in two distinct scenarios.
See 29 U.S.C. § 1132(g). Under §
1132(g)(1), a court may use its discretion to decide if
reasonable fees and costs should be awarded “to either
party” in any action under § 1132, except for the
type of action described in (g)(2). Section 1132(g)(2)
applies to actions to enforce § 1145, which governs
delinquent contributions to multiemployer
plans. Under § 1132(g)(2), a court
“shall award the plan” fees and costs for a
§ 1145 enforcement action “in which a judgment in
favor of the plan is awarded.” Simply put, (g)(1)
covers every action under § 1132 “other
than” the type of action outlined in (g)(2), and (g)(2)
describes actions to enforce § 1145 in which a judgment
was awarded in favor of the plan; the award of fees and costs
is discretionary under (g)(1) and mandatory under (g)(2);
and, under (g)(1) the court may award fees and costs to
“either party, ” but under (g)(2) a court awards
fees and costs only to the benefit plan.
parties agree that this lawsuit constitutes an action to
enforce § 1145 and that plaintiffs are entitled to some
relief under § 1132(g)(2) as the prevailing party on the
Monda Window & Door and the Timothy Wright claims.
See  at 4;  at 3. The parties dispute
whether defendant may nevertheless be entitled to
attorney's fees and costs under § 1132(g)(1).
Defendant argues that the Seventh Circuit “has often
approved attorney's fees awards to successful defendants
under either or both of these provisions.” See
 at 3. Plaintiffs correctly note, however, that none of
the cases defendant cites in support of that statement stand
for the proposition that a defendant is entitled to
attorney's fees when the action is one described by
also argue that § 1132(g)(1) “by its express
terms” does not apply to this action “[b]ecause
judgment was entered in favor of [plaintiffs].” 
at 4. Defendant responds that such an interpretation would be
inconsistent with the legislative history of § 1132(g).
According to defendant, Congress added paragraphs (g)(1) and
(g)(2) “in order to make it easier for fringe benefit
funds to collect penalties and attorney's fees as a
matter of right and not something which previously had been
within a court's discretion.”  at 5. Defendant
emphasizes that “[n]owhere in this history did Congress
state [. . .] that it intended to ...