T: 507365 / 12000565 / 8/2/12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Michels Corporation,

Plaintiff,

v.

Central States, Southeast and Southwest Areas

Pension Fund, et al.,

Defendants.

__________________________________________

Pipe Line Contractors Association,

Intervening Plaintiff,

v.

Central States, Southeast and Southwest Areas

Pension Fund, et al.,

Defendants.

__________________________________________

Central States, Southeast and Southwest Areas

Pension Fund, and Arthur H. Bunte, Jr.,

Counterclaim Plaintiffs, 

v. 

Michels Corporation,

Counterclaim Defendant, and

Apex Pipeline Services, Inc., Appalachian 

Pipeline Contractors, LLP, ARB, Inc., Associated 

Pipe Line Contractors, Inc., Big Inch Fabricators 

& Contractors, Inc., Foltz Welding, Ltd., Circle K 

Pilot Cars, LLC, Dun Transportation & Stringing,

Inc., Henkels & McCoy Inc., IndianHead 

Pipeline Services, LLC, Laney Directional 

Drilling Co., Latex Construction Co., 

LeTourneau Products Manufacturing Corp., 

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Case No. 12-CV-4144

Judge Norgle

Case: 1:12-cv-04144 Document #: 39 Filed: 08/02/12 Page 1 of 17 PageID #:538
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Midwest Underground, Inc., Miller Pipeline, 

LLC, Minnesota Limited, LLC, Nationwide 

Pipeline Escorts of America, LLC, Northern 

Clearing, Inc., Otis Eastern Services, Inc., PE Ben 

USA, Inc., Precision Pipeline, LLC, Price Gregory 

International, Inc., Q3 Contracting, Inc., Rightof- Way Clearing & Maintenance, Inc., R.L. 

Coolsaet Construction Co., Rodenberg 

Diversified, LLC, Schmid Pipeline Construction, 

Inc., Southeast Directional Drilling, LLC, Terra 

Restoration Services, LLC, T.G. Mercer 

Consulting Services, Inc., U.S. Pipeline, Inc., 

Welded Construction, LP, Hoover Construction 

Company, Sheehan Pipe Line Construction 

Company, and Snelson Companies, Inc.,

Additional Counterclaim Defendants.

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AMENDED COUNTERCLAIM

NOW COME the Defendants/Counterclaim Plaintiffs, Central States, Southeast and 

Southwest Areas Pension Fund (the APension Fund@), and Arthur H. Bunte, Jr., and for their 

Amended Counterclaim against Plaintiff/Counterclaim Defendant Michels Corporation, 

and additional Counterclaim Defendants, Apex Pipeline Services, Inc., Appalachian 

Pipeline Contractors, LLP, ARB, Inc., Associated Pipe Line Contractors, Inc., Big Inch 

Fabricators & Contractors, Inc., Foltz Welding, Ltd., Circle K Pilot Cars, LLC, Dun 

Transportation & Stringing, Inc., Henkels & McCoy Inc., IndianHead Pipeline Services, 

LLC, Laney Directional Drilling Co., Latex Construction Co., LeTourneau Products 

Manufacturing Corp., Midwest Underground, Inc., Miller Pipeline, LLC, Minnesota 

Limited, LLC, Nationwide Pipeline Escorts of America, LLC, Northern Clearing, Inc., Otis 

Eastern Services, Inc., Ben USA, Inc., Precision Pipeline, LLC, Price Gregory International, 

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Inc., Q3 Contracting, Inc., Right- of- Way Clearing & Maintenance, Inc., R.L. Coolsaet 

Construction Co., Rodenberg Diversified, LLC, Schmid Pipeline Construction, Inc., 

Southeast Directional Drilling, LLC, Terra Restoration Services, LLC, T.G. Mercer 

Consulting Services, Inc., U.S. Pipeline, Inc., Welded Construction, LP, Hoover 

Construction Company, Sheehan Pipe Line Construction Company, and Snelson 

Companies, Inc. allege as follows:

JURISDICTION AND VENUE

1. This action is brought and maintained in accordance with the provisions of 

the Employee Retirement Income Security Act of 1974 (AERISA@), 29 U.S.C. ' 1001 et seq., 

and is a suit to recover employer contributions owed to the Pension Fund by Counterclaim 

Defendants in accordance with applicable collective bargaining and trust fund agreements.

2. This Court has jurisdiction over this action under section 502(e)(1) of ERISA, 

29 U.S.C. ' 1132(e)(1).

3. Venue lies in this Court under section 502(e)(2) of ERISA, 29 U.S.C. 

' 1132(e)(2), in that the Pension Fund is an Aemployee benefit plan@ as that term is defined 

in ERISA and is administered at its principal place of business in Rosemont, Illinois. Venue 

is also proper in this Court pursuant to the forum selection clause contained in the Pension 

Fund’s Trust Agreement which designates this district as the appropriate forum for 

lawsuits to collect unpaid contributions. 

PARTIES

4. The Pension Fund is an employee benefit plan and trust, with its principal 

and exclusive office located at 9377 West Higgins Road in Rosemont, Illinois.

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5. The Pension Fund is primarily funded by contributions remitted by multiple 

participating employers pursuant to negotiated collective bargaining agreements with local 

unions affiliated with the International Brotherhood of Teamsters (AIBT@) on behalf of 

employees of those same employers. All principal and income from such contributions and 

investments thereof is held and used for the exclusive purpose of providing pension 

benefits to participants and beneficiaries of the Pension Fund and paying the 

administrative expenses of the Pension Fund.

6. Plaintiff Arthur H. Bunte, Jr. is a trustee and Afiduciary@ of the Pension Fund

as that term is defined in ERISA. Pursuant to section 502(a)(3) of ERISA, 29 U.S.C. '

1132(a)(3), Arthur H. Bunte, Jr. is authorized to bring this action on behalf of the Pension 

Fund and its participants and beneficiaries in his capacity as a trustee and fiduciary.

7. Plaintiff/Counterclaim Defendant Michels Corporation (AMichels@) is a 

corporation organized under the laws of the State of Wisconsin. Michels is an Aemployer@

and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 

29 U.S.C. '' 1002(5) and 1002(14)(C).

8. Counterclaim Defendant Apex Pipeline Services, Inc. is a corporation 

organized under the laws of the State of West Virginia. Apex Pipeline Services, Inc. is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

9. Counterclaim Defendant Appalachian Pipeline Contractors, LLP, is a limited 

liability partnership organized under the laws of the State of Tennessee. Appalachian 

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Pipeline Contractors, LLP is an Aemployer@ and a Aparty-in-interest@ as those terms are 

defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

10. Counterclaim Defendant ARB, Inc. is a corporation organized under the laws 

of the State of Pennsylvania. ARB, Inc. is an Aemployer@ and a Aparty-in-interest@ as those 

terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 

1002(14)(C).

11. Counterclaim Defendant Associated Pipe Line Contractors, Inc. is a 

corporation organized under the laws of the State of Texas. Associated Pipe Line 

Contractors, Inc. is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

12. Counterclaim Defendant Big Inch Fabricators & Contractors, Inc. is a 

corporation organized under the laws of the State of Indiana. Big Inch Fabricators & 

Contractors, Inc. is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

13. Counterclaim Defendant Foltz Welding, Ltd. is a corporation organized 

under the laws of the State of Illinois. Foltz Welding, Ltd is an Aemployer@ and a Aparty-ininterest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. 

'' 1002(5) and 1002(14)(C).

14. Counterclaim Defendant Circle K Pilot Cars, LLC is a limited liability 

company organized under the laws of the State of Alabama. Circle K Pilot Cars, LLC is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

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15. Counterclaim Defendant Dun Transportation & Stringing, Inc. is a 

corporation organized under the laws of the State of Texas. Dun Transportation & 

Stringing, Inc. is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

16. Counterclaim Defendant Henkels & McCoy Inc. is a corporation organized 

under the laws of the State of Pennsylvania. Henkels & McCoy Inc. is an Aemployer@ and a 

Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

17. Counterclaim Defendant IndianHead Pipeline Services, LLC is a limited 

liability company organized under the laws of the State of Wisconsin. IndianHead Pipeline 

Services, LLC is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

18. Counterclaim Defendant Laney Directional Drilling Co. is a corporation 

organized under the laws of the State of Texas. Laney Directional Drilling Co. is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

19. Counterclaim Defendant Latex Construction Co. is a corporation organized 

under the laws of the State of Georgia Latex Construction Co. is an Aemployer@ and a 

Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

20. Counterclaim Defendant LeTourneau Products Manufacturing Corp. is a 

corporation organized under the laws of the State of Massachusetts. LeTourneau Products 

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Manufacturing Corp. is an Aemployer@ and a Aparty-in-interest@ as those terms are defined 

by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

21. Counterclaim Defendant Midwest Underground, Inc. is a corporation 

organized under the laws of the State of Illinois. Midwest Underground, Inc. is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

22. Counterclaim Defendant Miller Pipeline LLC is a limited liability company

organized under the laws of the State of Indiana. Miller Pipeline LLC is an Aemployer@ and 

a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

23. Counterclaim Defendant Minnesota Limited, LLC is a limited liability 

company organized under the laws of the State of Minnesota. Minnesota Limited, LLC is 

an Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 

3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

24. Counterclaim Defendant Nationwide Pipeline Escorts of America, LLC is a 

limited liability company organized under the laws of the State of Georgia. Nationwide 

Pipeline Escorts of America, LLC is an Aemployer@ and a Aparty-in-interest@ as those terms 

are defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

25. Counterclaim Defendant Northern Clearing, Inc. is a corporation organized 

under the laws of the State of Wisconsin. Northern Clearing, Inc. is an Aemployer@ and a 

Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

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26. Counterclaim Defendant Otis Eastern Services, Inc. is a corporation organized 

under the laws of the State of New York. Otis Eastern Services, Inc. is an Aemployer@ and a 

Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

27. Counterclaim Defendant PE Ben USA, Inc. is a corporation organized under 

the laws of the State of Texas. PE Ben USA, Inc. is an Aemployer@ and a Aparty-in-interest@

as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 

1002(14)(C).

28. Counterclaim Defendant Precision Pipeline, LLC is a limited liability 

company organized under the laws of the State of Wisconsin. Precision Pipeline, LLC is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

29. Counterclaim Defendant Price Gregory International, Inc. is a corporation 

organized under the laws of the State of Illinois. Price Gregory International, Inc. is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

30. Counterclaim Defendant Q3 Contracting, Inc. is a corporation organized 

under the laws of the State of Minnesota. Q3 Contracting, Inc. is an Aemployer@ and a 

Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

31. Counterclaim Defendant Right-of-Way Clearing & Maintenance, Inc. is a 

corporation organized under the laws of the State of Pennsylvania. Right- of- Way 

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Clearing & Maintenance, Inc. is an Aemployer@ and a Aparty-in-interest@ as those terms are 

defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

32. Counterclaim Defendant R.L. Coolsaet Construction Co. is a corporation 

organized under the laws of the State of Michigan. R.L. Coolsaet Construction Co. is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

33. Counterclaim Defendant Rodenberg Diversified, LLC is a limited liability 

company organized under the laws of the State of Missouri. Rodenberg Diversified, LLC is 

an Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 

3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

34. Counterclaim Defendant Schmid Pipeline Construction, Inc. is a corporation 

organized under the laws of the State of Wisconsin. Schmid Pipeline Construction, Inc. is 

an Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 

3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

35. Counterclaim Defendant Southeast Directional Drilling, LLC is a limited 

liability company organized under the laws of the State of Arizona. Southeast Directional 

Drilling, LLC is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

36. Counterclaim Defendant Terra Restoration Services, LLC is a limited liability 

company organized under the laws of the State of Louisiana. Terra Restoration Services, 

LLC is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) 

and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

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37. Counterclaim Defendant T.G. Mercer Consulting Services, Inc. is a 

corporation organized under the laws of the State of Texas. T.G. Mercer Consulting 

Services, Inc. is an Aemployer@ and a Aparty-in-interest@ as those terms are defined by 

sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

38. Counterclaim Defendant U.S. Pipeline, Inc. is a corporation organized under 

the laws of the State of Texas. U.S. Pipeline, Inc.is an Aemployer@ and a Aparty-in-interest@

as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 

1002(14)(C).

39. Counterclaim Defendant Welded Construction, LP is a limited partnership

organized under the laws of the State of Delaware. Welded Construction, LP is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

40. Counterclaim Defendant Hoover Construction Company is a corporation 

organized under the laws of the State of Minnesota. Hoover Construction Company is an 

Aemployer@ and a Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) 

of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

41. Counterclaim Defendant Sheehan Pipe Line Construction Company is a 

corporation organized under the laws of the State of Oklahoma. Sheehan Pipe Line 

Construction Company is an Aemployer@ and a Aparty-in-interest@ as those terms are 

defined by sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. '' 1002(5) and 1002(14)(C).

42. Counterclaim Defendant Snelson Companies, Inc. is a corporation organized 

under the laws of the State of Washington. Snelson Companies, Inc. is an Aemployer@ and a 

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Aparty-in-interest@ as those terms are defined by sections 3(5) and 3(14)(C) of ERISA, 29 

U.S.C. '' 1002(5) and 1002(14)(C).

43. Intervening Plaintiff, the Pipe Line Contractors Association is a labor 

organization which represents, for the purpose of collective bargaining, certain employees 

of Counterclaim Defendants and employees of other employers in industries affecting 

interstate commerce. 

BACKGROUND INFORMATION

44. The Counterclaim Defendants and the IBT have been parties to a collective 

bargaining agreement known as the National Pipe Line Agreement (“NPLA”). Pursuant to 

that agreement, Counterclaim Defendants have been required to make contributions to the 

Pension Fund on behalf of certain of their covered employees. Many of the Counterclaim 

Defendants have also entered into Participation Agreements that require them to make 

contributions to the Pension Fund.

45. Counterclaim Defendants each agreed to be bound by the terms of the 

Pension Fund’s Trust Agreement and Plan and all rules and regulations promulgated by 

the Pension Fund’s Trustees under said Trust Agreement. 

46. Under Article III, Section 7(a) of the Trust Agreement, Counterclaim 

Defendants are required to contribute to the Pension Fund for the “entire term” of the 

NPLA.

47. Under the Pension Fund’s Trust Agreement, the Pension Fund’s Trustees are 

authorized to adopt a Plan Document, and they have done so. Section 3.01(a)(6) of the 

Pension Fund’s Plan Document (“the Plan”) provides that: “A Collective Bargaining 

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Agreement shall be acceptable only if such agreement requires a Contributing Employer to 

make Employer Contributions... for the entire term of such Collective Bargaining 

Agreement.”

48. The most recent version of the NPLA became effective on November 1, 2005, 

and extended, on its face, to at least January 31, 2011. 

49. Throughout 2011, the IBT, the Pipe Line Contractors Association, and its 

members were in negotiations over a new contract and agreed to extend the NPLA during 

these negotiations.

50. In November 2011, and again in January 2012, the Pipe Line Contractors 

Association, and its members agreed to extend the NPLA.

51. Article IIIV, Section 1 of the Pension Fund Trust Agreement provides in part:

[T]he obligation to make such contributions shall continue (and cannot be 

retroactively reduced or eliminated) after termination of the collective 

bargaining agreement until the date the Fund receives a) a signed contract 

that eliminates or reduces the duty to contribute to the Fund or b) written 

notification that the Employer has lawfully implemented a proposal to 

withdraw from the Fund or reduce its contributions at the above-specified 

address. The obligation to make such contributions shall continue during 

periods when the collective bargaining agreement is being negotiated, but 

such contributions shall not be required in case of strike after contract 

termination, unless the parties mutually agree otherwise.

52. Between November 15, 2011 and December 29, 2011, Counterclaim 

Defendants sent the Pension Fund multiple letters, purporting to notify the Pension Fund 

that Counterclaim Defendants were terminating their participation in the Pension Fund.

53. Despite Counterclaim Defendants’ purported notices of termination to the 

Pension Fund, Counterclaim Defendants extended the NPLA through at least June 11, 2012. 

Therefore, Counterclaim Defendants’ obligation to contribute to the Pension Fund

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continued through November 15, 2011 and the Counterclaim Defendants continue to 

remain obligated to contribute to the Pension Fund at the present time.

54. Nevertheless, Counterclaim Defendants stopped contributing to the Pension 

Fund on November 16, 2011.

55. The Pension Fund’s Trust Agreement provides, at Article XIV, Section 4, that:

Non-payment by an Employer of any moneys due shall not 

relieve any other Employer from its obligation to make 

payment. In addition to any other remedies to which the 

parties may be entitled, an Employer shall be obligated to pay 

interest on any contributions, withdrawal liability and/or 

other moneys due to the Trustees from the date when the 

payment was due to the date when the payment is made, 

together with all expenses of collection incurred by the 

Trustees, including, but not limited to, attorneys= fees and such 

fees for late payment as the Trustees determine and as 

permitted by law. The interest payable by an Employer with 

respect to past due contributions and/or other money (other 

than withdrawal liability) prior to the entry of a judgment, 

shall be computed and charged to the Employer (a) at an 

annualized interest rate equal to two percent (2%) plus the 

prime interest rate established by JPMorgan Chase Bank, NA 

for the fifteenth (15th) day of the month for which the interest 

is charged, or (b) at an annualized interest rate of 7.5% 

(whichever is greater). ... Any judgment against an Employer 

for contributions and/or withdrawal liability owed to this 

Fund shall include the greater of (a) a doubling of the interest 

computed and charged in accordance with this section or (b) 

single interest computed and charged in accordance with this 

section plus liquidated damages in the amount of 20% of the 

unpaid contributions and/or withdrawal liability. The interest 

rate after entry of a judgment against an Employer for 

contributions and/or other amounts due (other than 

withdrawal liability) shall be due from the date the judgment is 

entered until the date of payment, shall be computed and 

charged to the Employer on the entire judgment balance (a) at 

an annualized interest rate equal to two percent (2%) plus the 

prime interest rate established by JPMorgan Chase Bank, NA 

for the fifteenth (15th) day of the month for which the interest 

is charged, or (b) at an annualized interest rate of 7.5% 

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(whichever is greater), and such interest shall be compounded 

annually.

56. Pursuant to the dispute resolution provisions of the First Agreement, the 

dispute over whether the duty of the Counterclaim Defendants had terminated was 

presented to the Trustees at their May 2012 meeting. The Trustees determined that the 

Counterclaim Defendants remained obligated to contribute to the Pension Fund after 

November 2011. This determination is not arbitrary or capricious and is binding on the 

Counterclaim Defendants in the Trust Agreement.

STATUTORY AUTHORITY

57. Section 515 of ERISA , 29 U.S.C. ' 1145, provides:

Every employer who is obligated to make contributions to a 

multiemployer plan under the terms of the plan or under the 

terms of a collectively bargained agreement shall, to the extent 

not inconsistent with law, make such contributions in 

accordance with the terms and conditions of such plan or such 

agreement.

58. Section 502(g)(2) of ERISA, 29 U.S.C. ' 1132(g)(2) provides:

In any action under this subchapter by a fiduciary for or on 

behalf of a plan to enforce section 1145 of this title in which a 

judgment in favor of the plan is awarded, the court shall award 

the plan --

(A) the unpaid contributions, 

(B) interest on the unpaid contributions,

(C) an amount equal to the greater of--

(i) interest on the unpaid contributions, or 

(ii) liquidated damages provided for under the plan 

in an amount not in excess of 20 percent (or such 

higher percentage as may be permitted under 

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Federal or State law) of the amount determined 

by the court under subparagraph (A), 

(D) reasonable attorney=s fees and costs of the action, to be 

paid by the defendant, and

(E) such other legal or equitable relief as the court deems 

appropriate. 

For purposes of this paragraph, interest on unpaid 

contributions shall be determined by using the rate provided 

under the plan, or, if none, the rate prescribed under section 

6621 of Title 26.

STATUTORY AND CONTRACTUAL VIOLATIONS

59. Counterclaim Defendants have breached the provisions of ERISA, the NPLA, 

the Trust Agreement, and the Plan by failing to pay contributions (and interest due 

thereon) owed to the Pension Fund subsequent to November 15, 2012.

60. Despite demands that Counterclaim Defendants perform their statutory and 

contractual obligations with respect to making contributions to the Pension Fund, 

Counterclaim Defendants have neglected and refused to pay the amounts that are due as a 

consequence of the conduct set forth in Paragraph 59.

61. The amounts owed by Counterclaim Defendants to the Pension Fund are 

ongoing and continue to increase month by month.

62. Under 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), the Pension Fund is entitled 

to a judgment consisting of all contributions owed as of the date of the judgment, plus the 

greater of double interest or single interest plus liquidated damages, an award of attorneys’ 

fees and costs, and an award of post-judgment interest at the rate set forth in the Trust

Agreement.

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WHEREFORE, Defendants/Counterclaim Plaintiffs request the following relief

against Counterclaim Defendants:

(a) A judgment against Counterclaim Defendants in favor of the Pension Fund, 

pursuant to section 502(g)(2) of ERISA, 29 U.S.C. ' 1132(g)(2), for:

(i) the unpaid contributions owed to the Pension Fund;

(ii) interest on the unpaid contributions computed and charged at the 

greater of (a) an annualized interest rate equal to two percent (2%) 

plus the prime interest rate established by JPMorgan Chase Bank, NA 

for the fifteenth (15th) day of the month for which the interest is 

charged, or (b) an annualized interest rate of 7.5%;

(iii) an amount equal to the greater of interest on the unpaid contributions 

or liquidated damages of 20% of the unpaid contributions; and

(iv) attorneys’ fees and costs.

(b) Post-judgment interest computed and charged on the entire balance of the 

judgment at the greater of (i) an annualized interest rate equal to two percent (2%) plus the 

prime interest rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of 

the month for which the interest is charged, or (ii) at an annualized interest rate of 7.5%, 

and with said interest to be compounded annually; and

(c) Such further or different relief as this Court may deem proper and just.

Date: August 2, 2012

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Respectfully submitted,

 /s/Emily E. Gleason

Emily E. Gleason, Esq.

Illinois ARDC No. 6298395

CENTRAL STATES FUNDS LAW DEPARTMENT

9377 W. Higgins Road

Rosemont, Illinois 60018

Telephone: (847) 518-9800, Ext. 2343

E-mail: egleason@centralstatesfunds.org

Edward H. Bogle, Esq.

Illinois ARDC No. 6277152

CENTRAL STATES FUNDS LAW DEPARTMENT

9377 W. Higgins Road

Rosemont, Illinois 60018

Telephone: (847) 518-9800, Ext. 3469

E-mail: ebogle@centralstatesfunds.org

Timothy C. Reuter, Esq.

Illinois ARDC No. 6279373

CENTRAL STATES FUNDS LAW DEPARTMENT

9377 W. Higgins Road

Rosemont, Illinois 60018

Telephone: (847) 518-9800, Ext. 3481

E-mail: treuter@centralstatesfunds.org

Attorneys for Defendants/Counterclaim 

Plaintiffs

Case: 1:12-cv-04144 Document #: 39 Filed: 08/02/12 Page 17 of 17 PageID #:554