Opinion
22-CV-718
03-31-2022
TRUSTEES of the MID-AMERICA CARPENTERS REGIONAL COUNCIL HEALTH FUND, et al. Plaintiffs, v. GALLAGHER CONCRETE INC. a/k/a HUGH HENK CONSTRUCTION INC. a/k/a HH CONCRETE INC. and MICHAEL GALLAGHER, an individual, Defendants.
Blakey, Judge
EXHIBIT LIST
EXHIBIT A
Sworn Declaration Pursuant to 28 U.S.C.A. § 1746
John Conklin, Audits & Collections Manager, Chicago Regional Council of Carpenters Benefit Funds
EXHIBIT B
Sworn Declaration Pursuant to 28 U.S.C.A. § 1746
Daniel P. McAnally, Plaintiffs Attorney 1
Exhibit A 2
SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
John Conklin declares as follows:
1. I am the Audits & Collections Manager for the Chicago Regional Council of Carpenters Pension Fund, Chicago Regional Council of Carpenters Supplemental Retirement Fund and the Chicago Regional Council of Carpenters Welfare Fund ("Trust Funds"). The Chicago Regional Council of Carpenters Pension Fund serves as the agent to collect the contributions due to the Chicago Regional Council of Carpenters Apprentice Training Program and the dues owed to the Union. In such capacity, I am authorized to make this Declaration on behalf of the Trust Funds.
2. Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. executed an Agreement with the Chicago Regional Council of Carpenters ("Union") whereby it agreed to be bound by the provisions of a Collective Bargaining Agreement and to all Collective Bargaining Agreements subsequently negotiated.
3. Pursuant to the provisions of the Agreement and the Collective Bargaining Agreements, Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. agreed to be bound by the provisions of the Agreements and Declarations of Trust, which created the Plaintiffs' Trust Funds. 3
4. Pursuant to the provisions of the Collective Bargaining Agreements and Trust Agreements, Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. is required to submit monthly reports which list the number of hours worked by its carpenter employees and Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. is required to pay contributions based upon the hours listed.
5. Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. submitted the contribution reports for the period August 2021 through February 2022 but did not pay the contributions. The reports show that $108, 279.94 is owed in ERISA contributions. Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. also failed to remit the union dues it withheld from the employees' wages. The amount of dues withheld is $6, 007.57 for the period August 2021 through February 2022.
6. Because of its failure to pay contributions in a timely manner, the Trust Agreement and Collective Bargaining Agreement mandate the assessment of liquidated damages. The liquidated damages calculation was based on the rate set forth in the controlling Trust Agreements, which is 1.5% compounded per month. The amount of liquidated damages owed is $6, 479.68 for the period August 2021 through February 2022.
7. The interest calculation is based on the ERISA Section awarding such interest, 29 U.S.C. §H32(g)(2) and was done pursuant to Section 6621 of the Internal Revenue Code. The amount of interest owed is $874.43.
8. A summary of the total claim for $121, 641.62 is attached hereto and incorporated herein.
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct. 4
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Exhibit B 6
SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
Daniel P. McAnally declares as follows:
1. I am an associate of the law firm of McGann, Ketterman & Rioux and am licensed to practice law in the State of Illinois and in the U.S. Dist. Court for Northern District of Illinois, Eastern Division.
2. I have personal knowledge of the facts stated herein and if called to testify in this matter, I can competently testify to such facts from my own such knowledge.
3. I have in excess of 29 years experience representing trustees of employee benefit plans, including the prosecution of Federal Court litigation to collect delinquent employer contributions.
4. The Collective Bargaining Agreement and the Trust Agreements under which this action is based provide for the payment of attorneys' fees and costs incurred if the Trust Funds utilize legal counsel to collect unpaid ERISA contributions. 7
5. I have spoken with four other lawyers from four different labor law firms who practice this type of ERISA trust fund litigation. Based on my knowledge and experience, the rates charged by the hour in this case are less than or equal to the usual and customary rates charged by other law firms doing similar work in the United States District Court for the Northen District of Illinois.
6. I have devoted 15.25 hours in connection with the this case at the rate of $215.00 per hour. The total attorney fees billings is $3, 429.25.
7. In addition, the filing fee was $402.00 and the fees for service of process were an additional $110.00. These costs total $512.00.
8. I certify that the attached detailed attorney fees and costs totaling $3, 941.25 were necessary and reasonable.
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.
Daniel P. McAnally
Attorney for the Trustees of the Chicago Regional Council of Carpenters Pension Fund, et al.
Dated: March 30, 2022 8
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