Demopoulos v. F&B Fuel Oil Co. Inc.

Background

The plaintiffs were trustees and fiduciaries of the Local 553 Pension Fund, a jointly administered, multi-employer pension fund. They sued F&B Fuel Oil Co., Inc., F&F, and other defendants under the Employee Retirement Income Security Act of 1974 (ERISA) and the Multiemployer Pension Plan Amendments Act of 1980 to recover unpaid withdrawal liability, interest, liquidated damages, attorneys’ fees, and costs. Defendant Christopher Ficaro was dismissed after his death in 2020.

The remaining claims alleged breach of a collective bargaining agreement and breach of ERISA obligations. F&B had signed collective bargaining agreements requiring contributions to the Fund and continued submitting reports and making payments after the most recent agreement’s stated period. The Fund assessed F&B’s withdrawal liability at $255,248, notified F&B, and set a payment schedule. F&B did not seek reconsideration, challenge the assessment or withdrawal date, or demand arbitration.

The Fund later determined that a different withdrawal date would have produced a higher assessment of $258,708. It nevertheless sought the lower, originally assessed amount of $255,248. The plaintiffs moved for summary judgment after discovery. The defendants did not oppose the motion, but the court independently reviewed the plaintiffs’ evidence rather than treating the lack of opposition as automatically establishing liability.

Withdrawal Liability

The court held that the plaintiffs established the elements needed to collect withdrawal liability: F&B was an employer obligated to contribute to the Fund, F&B received notice of the assessment, and F&B did not pursue the statutory review and arbitration procedures. Because F&B failed to initiate arbitration within the required period, the court held that F&B was liable for the withdrawal liability claimed by the Fund, along with interest, liquidated damages, attorneys’ fees, and costs.

F&F and Ferdinand Ficaro’s Liability

The court agreed that F&F and Ferdinand Ficaro were jointly and severally liable for F&B’s withdrawal liability. It found that F&F and F&B had common ownership and management, used the same business name, trucks, office and garage space, telephone and fax numbers, and employees, and transferred money between the companies. The court concluded that F&F qualified as both a single employer with F&B and a successor to F&B.

The court also found F&F liable as F&B’s alter ego. It further found Ferdinand Ficaro individually liable under an alter-ego theory because the companies lacked corporate formalities, money was transferred between the companies without proper documentation, personal expenses were paid with company funds, and funds were removed after the companies had notice of the withdrawal liability. The court found that these transfers left the entities unable to pay the Fund.

Fees, Costs, and Monetary Award

The court found the requested attorneys’ fees reasonable and awarded $120,345. It awarded $400 in legal costs because that amount was substantiated. The court stated that other requested costs, including service fees, subpoenas, deposition transcripts, overnight mail, and online legal research, were either not reimbursable or insufficiently supported. It allowed the plaintiffs to file an amended motion for additional costs by December 16, 2022.

The conclusion ordered payment of $255,248 in unpaid withdrawal liability, $230,108.64 in prejudgment interest, $5,125.84 in liquidated damages, $120,345 in attorneys’ fees, and $400 in legal costs, plus post-judgment interest under 28 U.S.C. § 1961. The Clerk was directed to enter judgment and close the case.

Disposition

Judge Ona T. Wang granted the plaintiffs’ motion for summary judgment. The opinion’s earlier liquidated-damages discussion states that the Fund should receive $230,108.64 in liquidated damages, but the final conclusion lists $5,125.84. The opinion does not explain this difference.