United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THE BOARD OF TRUSTEES, in their

capacities as Trustees of the CEMENT

MASONS HEALTH AND WELFARE

TRUST FUND FOR NORTHERN

CALIFORNIA, CEMENT MASONS

PENSION TRUST FUND FOR

NORTHERN CALIFORNIA, CEMENT

MASONS APPRENTICESHIP AND

TRAINING TRUST FUND FOR

NORTHERN CALIFORNIA,

Plaintiffs,

 v.

RBS WASHINGTON BLVD, LLC, a

California Limited Liability Company,

Defendant. /

No. C 09-00660 WHA

ORDER GRANTING

PLAINTIFFS LIQUIDATED

DAMAGES AND INTEREST

In this action under the Employee Retirement Income Security Act, plaintiff trust funds

have renewed their application for liquidated damages and interest. For the reasons that follow

the application is GRANTED.

Default judgment was entered on January 8, 2010, on behalf of plaintiffs. Defendant was

ordered to submit to an audit by auditors selected by plaintiffs and to pay plaintiffs $13,662.27 in

unpaid contributions from 2006, $10,318.75 in attorney’s fees and $795.75 in costs. Plaintiffs’

request for liquidated damages and interest in the amount of $7,555.51 was denied, however,

because plaintiffs failed to specify what portion of that amount was for liquidated damages versus

interest nor how the interest rate was calculated.

Case 3:09-cv-00660-WHA Document 41 Filed 01/19/10 Page 1 of 2
United States District Court

For the Northern District of California

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Section 1132(g)(2) of ERISA requires that liquidated damages may not exceed 20 percent

“(or such higher percentage as may be permitted under Federal or State law)” of the unpaid

contributions amount. It also requires that interest on unpaid contributions be calculated “by

using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of the

Internal Revenue Code of 1986.” It was impossible to determine based on plaintiffs’ earlier

submissions whether the requirements of Section 1132(g)(2) regarding liquidated damages and

interest had been fulfilled.

Now plaintiffs have submitted a supplemental declaration in support of their application

for liquidated damages and interest. In accordance with the operative plan, liquidated damages

were assessed at a flat fee of $150 per month (Hagan Decl. Exh. C at ¶ 8(G)). Plaintiffs seek

liquidated damages for the months of October 2006 and November 2006 for a total of $300 in

total liquidated damages. This is only about 2% of the amount of unpaid contributions and is

therefore well within the acceptable boundaries of Section 1132(g)(2).

Plaintiffs also seek interest in the amount of $7,374.69. The operative plan provided a rate

of 1.5% (Hagan Decl. Exh. C at ¶ 8(G)). Pursuant to the requirements of Section 1132(g)(2), this

rate was multiplied by the number of months the contributions were delinquent, multiplied by the

dollar amount of the contributions due and owing (Hagan Suppl. Decl. Exh. A at 2–3).

For good cause shown, plaintiffs’ application is hereby GRANTED. Defendants are

ordered to pay to plaintiffs liquidated damages in the amount of $300 and interest in the amount

of $7,374.69. 

IT IS SO ORDERED.

Dated: January 19, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:09-cv-00660-WHA Document 41 Filed 01/19/10 Page 2 of 2