UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TRUSTEES OF THE OPERATING 

ENGINEERS' LOCAL 324 PENSION 

FUND, 

 Plaintiff, 

v. 

BOURDOW CONTRACTING, INC., 

 Defendant. 

______________________________/ 

 

Case No. 2:15-cv-12272 

HONORABLE STEPHEN J. MURPHY, III 

OPINION AND ORDER ASSESSING DAMAGES 

Plaintiff is a union pension fund that brought a withdrawal liability action against 

Defendant, a family-owned contracting business. The Court found that Defendant is in 

fact the alter ego of a prior family business and granted Plaintiff's motion for summary 

judgment. To aid the Court in assessing the appropriate damage award, it invited 

supplemental briefing from both parties. 

 Plaintiff brought the action under 29 U.S.C. § 1145. Subsection 1132(g)(2) of 

that chapter therefore controls. Under the subsection, a judgment in favor of the plan 

must include five things: 

(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 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. 
2 

29 U.S.C. § 1132(g)(2). 

Unpaid contributions — The Court previously found that Defendant waived any 

objection to the initial withdrawal liability amount of $1,163,279.00, so that is the starting 

point. And because Plaintiff already received $52,033.98 for its proof of claim in the 

bankruptcy, the amount is subtracted by that amount, resulting in $1,111,245.02. 

Interest on the unpaid contributions — Interest on unpaid contributions is 

"determined by using the rate provided under the plan." Id. Here, the plan provided the 

rate of 12% per annum. ECF 41-5, PgID 1438 (Art. VII, sec. 2). Generally, the interest is 

calculated from the time of the demand until the date of judgment, but courts will 

sometimes suspend "the running of prejudgment interest during periods of delay in the 

proceedings," Malden Mills Indus., Inc. v. ILGWU Nat. Ret. Fund, 780 F. Supp. 68, 72 

(D. Mass. 1991). Neither party has suggested that the interest period should have been 

suspended, so the Court calculates it from November 1, 2012 (the date of the original 

demand) to today (the date of judgment). That method results in $1,027,956.82.1 

Interest or liquidated damages — Section 1132(g)(2)(C) permits the greater of 

two options: "interest on the unpaid contributions," or "liquidated damages provided for 

under the plan," capped at 20% of the unpaid contributions. The plan specifically 

provided for § 1132's liquidated-damages provision and set the interest rate at 18% per 

annum. ECF 41-6, PgID 1447. Plaintiff avers that amount exceeds the 20% cap, so it 

seeks interest on the unpaid contributions. ECF 41, PgID 1395. Defendant made no 

 

1 $981,176.61 plus 37 days of interest at a per diem rate of $1,264.33. The Court 

relies on Plaintiff's expert's calculations. ECF 41-4. Although Defendant opposed the 

consideration of these calculations altogether, ECF 48, PgID 1509, it provided no 

particular arguments against them, and did not provided an alternative. 
3 

challenge to these figures or calculations specifically, so the Court accepts them. The 

Court will therefore award Plaintiff $1,027,956.82 in interest under § 1132(g)(2)(C)(i). 

Reasonable attorney's fees and costs — Plaintiff seeks $54,822.21 in fees and 

costs. ECF 41, PgID 1395. Plaintiff's attorney's hourly rate has principally been 

$180/hour, and in some cases up to $200/hour. ECF 41-7. In light of the Court's 

experience, Plaintiff's counsel's affidavit, and Defendant's failure to specifically contest 

the amount, the Court finds that the rates charged are reasonable and commensurate 

with the prevailing market rate and further finds that the time expended is welldocumented and supported by the demands of the case. The Court will therefore grant 

Plaintiff $54,822.21 in costs and fees. 

The Court finds no grounds for any other legal or equitable relief under 

§ 1132(g)(2)(E). Accordingly, the Court will enter judgment in the amount of 

$3,221,980.87, calculated as follows: 

 $1,111,245.02 (unpaid contributions under subsection (A)) 

+ $1,027,956.82 (interest on the unpaid contributions under subsection (B)) 

+ $1,027,956.82 (interest on the unpaid contributions under subsection (C)(i)) 

+ $54,822.21 (attorney's fees and costs) 

$3,221,980.87 

s/Stephen J. Murphy, III 

 STEPHEN J. MURPHY, III 

Dated: March 28, 2018 United States District Judge 

I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on March 28, 2018, by electronic and/or ordinary mail. 

 s/David P. Parker 

 Case Manager