Courts "may rely on an audit or an auditor's report to prove that defendant employers did not make required contributions to funds." Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utilities Inc., 3 F. Supp. 3d 204, 216 (S.D.N.Y. 2014) (internal quotation marks omitted). The Trustees have submitted a declaration by their counsel, a declaration by the Fund auditor, a declaration by the Fund administrator, the CBA, trust agreements, employer contribution collections procedures, the 2011 settlement agreement, audit reports for the relevant two time periods, and other exhibits.
"Employers have an affirmative duty to furnish benefit plans the information needed for the plans' fulfillment of their reporting duties." Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Eng'rs, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utils. Inc. , 3 F. Supp. 3d 204, 214 (S.D.N.Y. 2014).
Under this framework, the plaintiff may meet its burden by producing evidence that raises “genuine questions” about the accuracy of the employer's records. Id. (quoting Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Eng'rs, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utils. Inc., 3 F.Supp.3d 204, 214 (S.D.N.Y. 2014)).
The amount awarded, however, is left to the discretion of the court. See Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds Int'l Union Operating Eng'rs, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utils, Inc., 3 F. Supp. 3d 204, 218 (S.D.N.Y. 2014) (quoting Gesualdi v. RRZ Trucking Co., LLC, No. 03-CV-3449 (ETB), 2011 WL 1988374, at *7 (E.D.N.Y. May 20, 2011)). In determining an award of reasonable attorneys' fees, courts in the Second Circuit use the "presumptively reasonable fee" method, which considers "what a reasonable client would be willing to pay."
Mason Tenders Dist. Council Welfare Fund v. A.G.I., Inc., No. 03-CV-1238 (RLC)(KNF), 2005 U.S. Dist. LEXIS 8354 (S.D.N.Y. Apr. 29, 2005) (alleging that defendants failed to conduct an audit as required by the governing plan); Trs. of the Plumbers Local Union No. 1 Welfare Fund v. Arista Plumbing Heating & Piping Corp., No. 12-CV-5130 (SLT)(VMS), 2013 U.S. Dist. LEXIS 185821 (E.D.N.Y. Feb. 10, 2013) (filing suit to compel compliance with audit requirement); Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utilities Inc., 3 F.Supp.3d 204 (S.D.N.Y. 2014) (seeking deficient contributions discovered after an audit).
of the Plumbers Local Union No. 1 Welfare Fund v. Arista Plumbing Heating & Piping Corp., No. 12-CV-5130 (SLT)(VMS), 2013 U.S. Dist. LEXIS 185821 (E.D.N.Y. Feb. 10, 2013) (filing suit to compel compliance with audit requirement); Mason Tenders Dist. Council Welfare Fund v. A.G.I., Inc., No. 03-CV-1238 (RLC)(KNF), 2005 U.S. Dist. LEXIS 8354 (S.D.N.Y. Apr. 29, 2005) (alleging that defendants failed to conduct an audit as required by the governing plan); Empire State Carpenters Welfare, Pension, Annuity, Apprenticeship, Charitable Tr., Lab. Mgmt. Cooperation & Scholarship Funds v. Creative, No. 10-CV-00582 (ADS) (GRB), 2012 WL 4482815, at *2 (E.D.N.Y. Aug. 31, 2012) (seeking delinquent contributions that were revealed by an audit of defendant's records); Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utilities Inc., 3 F.Supp.3d 204 (S.D.N.Y. 2014) (seeking deficient contributions discovered after an audit).
See Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds Int'l Union Operating Eng'rs, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utils, Inc., 3 F.Supp.3d 204, 218 (S.D.N.Y. 2014) (quoting Gesualdi v. RRZ Trucking Co., LLC, No. 03-CV-3449 (ETB), 2011 WL 1988374, at *7 (E.D.N.Y. May 20, 2011)). In determining an award of reasonable attorneys' fees, courts in the Second Circuit use the “presumptively reasonable fee” method, which considers “what a reasonable client would be willing to pay.”
The amount awarded, however, is left to the discretion of the court. SeeAnnuity, Welfare & Apprenticeship Skill Improvement & Safety Funds Int'l Union Operating Eng'rs, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utils, Inc., 3 F.Supp.3d 204, 218 (S.D.N.Y. 2014) (quoting Gesualdi v. RRZ Trucking Co., LLC, No. 03-CV-3449 (ETB), 2011 WL 1988374, at *7 (E.D.N.Y. May 20, 2011)). In determining an award of reasonable attorneys' fees, courts in the Second Circuit use the “presumptively reasonable fee” method, which considers “what a reasonable client would be willing to pay.” SeeSuperior Site Work,
While the award itself is mandatory, the amount of any such award rests within the Court's discretion." Annuity, Welfare & Apprenticeship Skill Improvement and Safety Funds of International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utilities Inc., 3 F. Supp. 3d 204, 218 (S.D.N.Y. 2014); DeVito v. Hempstead China Shop, Inc., 831 F. Supp. 1037, 1043 (E.D.N.Y. 1993). The fact that Leone is no longer in business is irrelevant in determining the amount of the award.
"If a court finds that claimed hours are 'excessive, redundant, or otherwise unnecessary,' it should exclude those hours in calculating a fee award." Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Eastport Excavation & Utilities Inc., 3 F. Supp. 3d 204, 219 (S.D.N.Y. 2014) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). When a court grants an award of attorneys' fees, "due process requires, at a minimum, that: (1) the party seeking to be compensated provide competent evidence, such as a sworn affidavit, of its claimed attorney's fees and expenses; and (2) the party facing sanctions have an opportunity to challenge the accuracy of such submissions and the reasonableness of the requested fees and expenses."