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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

PENSION FUND OF LOCAL 227, CASE NO.:

an employee benefit plan; BOB BLAIR,

and WILSON R. HERRERA, in their 

capacities as Plan Trustees,

Plaintiffs,

v.

RIVERFRONT ACQUISITION I, LLC

d/b/a BAY VUE NURSING AND 

REHABILITATION CENTER, 

Defendant.

_________________________________/

COMPLAINT

The Pension Fund of Local 227 ("the Pension Fund") and two of the Pension Fund's 

Trustees, Bob Blair and Wilson R. Herrera, by their attorneys, for their complaint against 

defendant Riverfront Acquisition I LLC, doing business as Bay Vue Nursing and 

Rehabilitation Center ("Bay Vue"), assert as follows:

1. This is an action by an employee benefit plan and its representative Trustees to 

compel defendant to consent to an audit of its books and records and to potentially collect 

delinquent contribution amounts owed to the Pension Fund, as required by defendant's 

collective bargaining agreement, the governing documents for the Fund, and the Employee 

Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. ("ERISA").

PARTIES

2. The Pension Fund is an "employee benefit plan" within the meaning of ERISA 

§ 3(3), 29 U.S.C. § 1002(3), and is established and maintained pursuant to Section 302(c)(5) 

of the Labor Management Relations Act of 1947, 29 U.S.C. § 186(c)(5). The Fund is a multiemployer plan under ERISA §§ 3(2), 3(37) and 4001(a)(3), 29 U.S.C. §§ 1002(2), 1002(37) 

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and 1301(a)(3). The Pension Fund is administered in Pembroke Pines, Florida. The Pension 

Fund is administered by a joint Board of Trustees, composed equally of representatives of 

employers and employees, which serves as "Plan Sponsor" and "Administrator" of the Fund 

within the meaning of ERISA § 3(16), 29 U.S.C. § 1002(16).

3. Plaintiffs Bob Blair and Wilson R. Herrera serve on the Board of Trustees for 

the Pension Fund and are representative Trustees of the Pension Fund. Mr. Blair and 

Mr. Herrera each are "fiduciaries" with respect to the Pension Fund within the meaning of 

ERISA § 3(21), 29 U.S.C. § 1002(21).

4. Bay Vue, upon information and belief, is a Florida corporation with offices and 

facilities in Bradenton, Florida. Its registered agent for service of process is Steven Gottlieb, 

7751 West Broward Boulevard, Plantation, Florida 33324. Bay Vue is a participating 

employer in the Pension Fund and is subject to the Pension Fund of Local 227 Trust 

Agreement ("Trust Agreement").

JURISDICTION AND VENUE

5. The Court has jurisdiction to hear this matter pursuant to ERISA §§ 502 and 

515, 29 U.S.C. §§ 1132 and 1145.

6. Venue is proper in this Court under ERISA § 502(e)(2), 29 U.S.C. 

§ 1132(e)(2), because the Pension Fund is administered in this district and the breaches giving 

rise to this action took place in this district.

BACKGROUND

7. Defendant has been a party to collective bargaining agreements (the 

"Agreement") at all relevant times in question with the United Food and Commercial Workers 

Union Local No. 1625 (hereinafter "UFCW Local 1625"). 

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8. The Agreement requires defendant to contribute specific monthly amounts to

the Pension Fund in consideration of pension benefits provided by the Pension Fund to 

defendant's employees. Specifically: (a) Article 23 of the July 1, 2016 – March 1, 2019

Agreement requires defendant to contribute to the Pension Fund the amount of $17.00 per 

month for all full-time employees receiving paid hours over 120 hours in the month; (b) 

Article 23 of the March 1, 2019 – February 28, 2022 Agreement requires defendant to 

contribute to the Pension Fund the amount of $17.00 per month for all full-time employees 

receiving paid hours over 120 hours in the month; and (c) Article 23 of the March 1, 2022 –

February 28, 2025 Agreement requires defendant to contribute to the Pension Fund the 

amount of $23.00 per month for all full-time employees receiving paid hours over 120 hours 

in the month. Copies of the Agreements between Bay Vue and UFCW Local 1625 are labeled 

as Exhibits A, B, and C and attached to this Complaint.

9. Defendant is party to and bound by an Employer Participation Agreement that 

it signed with the Pension Fund in December 2007. Among other things, the Participation 

Agreement states that "the Company adopts and agrees to be bound by all of the terms and 

provisions of the Pension Fund of Local 227 Trust Agreement" and "agrees to be bound by all 

actions taken by the Trustees of the Fund pursuant to the powers granted them by the Trust 

Agreement, to include, without limitation, the rules, regulations and benefit Fund(s) adopted 

by the Trustees." (Participation Agreement, Ex. D. at ¶ 1.) A copy of the Participation 

Agreement is labeled as Exhibit D and attached to this Complaint.

10. Defendant is a party to and bound by the Trust Agreement. Section 8.1 of the 

Pension Fund's Trust Agreement obligates the defendant to make timely contribution 

payments to the Pension Fund as required by the Agreement. A copy of the Trust Agreement 

is labeled as Exhibit E and attached to this Complaint.

11. Defendant has refused to submit to a standard audit by the Pension Fund's 

professionally contracted auditors for the period of January 1, 2017 to December 31, 2018

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despite the Pension Fund's authority to perform such an audit and, as such, potential amounts 

due the Pension Fund are unknown.

12. Sections 7.3(r) and 8.3 of the Trust Agreement and the Pension Fund's Payroll 

Audit Policy ("Audit Policy") authorize the Pension Fund to collect the cost of the audit of an 

Employer's payroll records where the Employer fails timely to pay following demand for 

repayment. A copy of the Audit Policy is labeled as Exhibit F and attached to this Complaint.

13. Section 8.3 of the Trust Agreement authorizes the Trustees to establish rules 

and regulations establishing reasonable interest and liquidated damages to be added to any 

discovered delinquent contributions. 

14. Pursuant to Section 8.3 of the Trust Agreement, the Trustees have prescribed 

rules governing delinquencies, which provide that the Pension Fund's recovery rights include 

the recovery of all costs and reasonable attorney's fees. In pertinent part, the Pension Fund's 

rules provide as follows:

The Trustees shall notify any Employer of a delinquency, mistake or 

discrepancy in its report or contribution. With respect to Employers which 

refuse or fail to make contributions or a correct report, the Trustees shall have 

authority to establish rules and regulations providing for liquidated damages 

and interest to be added to any delinquent contributions and to take such legal 

action, including proceedings at law, in equity or, if the Trustees so choose to 

submit the issue, in arbitration, as in their discretion may be necessary to 

collect contributions, interest and liquidated damages assessed by them and to 

recover from any delinquent contributor on behalf of the Plan all costs and 

reasonable attorney's fees incurred in connection therewith.

COUNT I: BREACH OF TRUST AGREEMENT RULES (AUDIT)

15. Plaintiffs reallege each and every allegation contained in paragraphs 1 through

14 above and incorporate the same as though fully set forth herein word for word.

16. Due demand has been made upon the defendant in accordance with the Trust 

Agreement and the Pension Fund's Payroll Audit Policy for access to its books and records to 

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perform an audit in order to determine any amounts due and owing the Pension Fund, but said 

defendant has ignored all said requests.

17. Because defendant may not have made timely and prompt contributions on 

behalf of all covered employees, the corpus of the Pension Fund's trust fund could be reduced, 

plaintiff's income reduced, and its ability to pay benefits to qualified participants and 

beneficiaries is curtailed. Consequently, ERISA and the Pension Fund's employee benefit 

plan have been violated, and the plaintiffs are entitled to all of the remedies provided by 

ERISA.

COUNT II: VIOLATION OF ERISA SECTION 515

18. Plaintiffs reallege and incorporate Paragraphs 1 through 17, above, as if fully 

set forth herein.

19. ERISA § 515, 29 U.S.C. § 1145 provides that "[e]very employer who is 

obligated to make contributions to a multi-employer plan . . . under the terms of a collectively 

bargained agreement shall . . . make such contributions in accordance with the terms and 

conditions of . . . such agreement."

20. Despite repeated requests by the Pension Fund to submit to an audit of its 

books and records, defendant may have failed and refused to contribute in a timely manner all 

of the amounts required by the Agreement and by the Trust Agreement. Specifically, 

defendant may have failed to make required contributions on a timely basis to the Pension 

Fund for covered services rendered by defendant's employees for the period January 1, 2017 

to the present.

21. As a result of its potential failure to make timely contributions in accordance 

with the Agreement, defendant may have violated ERISA § 515, 29 U.S.C. § 1145.

22. ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2), requires that, upon entry of 

judgment in favor of the Pension Fund to enforce ERISA § 515, the Court shall award the 

Pension Fund interest on the delinquent contributions, liquidated damages, and attorneys' fees

and costs incurred by the Pension Fund in recovering the delinquent payments.

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COUNT III: BREACH OF TRUST AGREEMENT RULES (DELINQUENCY)

23. Plaintiffs reallege and incorporate the allegations of paragraphs 1 through 22, 

above, as if set forth fully herein.

24. As a result of its potential failure to make contributions in accordance with the 

Agreement, defendant has violated the terms of the Trust Agreement.

25. Based upon the Trust Agreement's and the Pension Fund's delinquency rules, 

defendant may be liable to the Pension Fund for delinquent interest, liquidated damages, 

payroll audit costs, and the expenses of collection incurred by the Pension Fund, including 

attorneys' fees and costs.

WHEREFORE, Plaintiffs request judgment:

A. Awarding the Pension Fund any delinquent contributions owed by the 

defendant pursuant to ERISA § 515, 29 U.S.C. § 1145, and pursuant to the terms of the Trust 

Agreement and the Pension Fund's delinquency rules;

B. Awarding the Pension Fund any accrued interest and liquidated damages 

pursuant to ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2), and pursuant to the terms of the Trust 

Agreement and the Pension Fund's delinquency rules;

C. Awarding the Pension Fund expenses of collection incurred, including 

awarding the Pension Fund an amount equal to attorneys' fees and costs of this action;

D. Awarding the Pension Fund the costs of its audit of defendant's payroll records 

pursuant to the terms of the Trust Agreement and Audit Policy;

E. Requiring defendant henceforth to contribute to the Pension Fund in a timely 

manner and as required by the Agreement, the Trust Agreement, and the Pension Fund's rules;

F. An order directing defendant to submit to an audit of the company's books and 

records by the Pension Fund's designated representative for the period January 1, 2017 to June 

30, 2022; and

G. Awarding such other and further equitable and legal relief as the Court shall 

deem appropriate.

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Dated this 1

st day of November, 2022.

Attorneys for Plaintiff Pension Fund

PHILLIPS RICHARD & RIND, P.A.

9360 SW 72nd Street, Suite 283

Miami, FL 33173

T. 305-412-8322

F. 305-412-8299

Email: kphillips@phillipsrichard.com

By: /s/ Kathleen Phillips

 Kathleen Phillips

 Fla. Bar. No.: 28773

 

Philip O'Brien (SBN 1015549)*

Malinda J. Eskra (SBN 1064353)*

REINHART BOERNER VAN DEUREN, S.C.

1000 North Water Street, Suite 1700

Milwaukee, WI 53202

T. 414-298-1000

F. 414-298-8097 

Email: pobrien@reinhartlaw.com

Email: meskra@reinhartlaw.com

*Pro Hac Pending

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