IRONWORKERS DISTRICT COUNCIL OF SOUTHERN OHIO & VICINITY

June 12, 2018
Page 3

3/28/2018 MTH

3/29/2018 MTH

4/3/2018 DMP

4/16/2018 DMP

4/17/2018 DMP

4/25/2018 JDM

5/2/2018 DMP

finalize complaint & exhibits; re:
ALW Construction (Litigation)

Tel. conf. w/ P. Gotthardt; legal
research on surety bond limited
existence case law; tel. call to M.
Wildman; revise & finalize complaint;
prepare exhibits; re: ALW
Construction (Litigation)

Continue drafting garnishment
documents for Smoot & Portsmouth;
prepare all exhibits & file
garnishments; re: Reinforcing
(Litigation)

Review & edit complaint for
contribution & breach of fiduciary
duty against ALW; re: ALW
(Litigation)

Coordinate w/ Fund office; amend
ALW complaint; re: ALW (Litigation)

Tel. conf. w/ P. Gotthardt; discuss
amounts owed & other open issues;
update & revise amended complaint
accordingly; re: ALW (Litigation)
Review ECF notice in collections
case; re: ALW (Litigation)

Follow-up re status of service of
complaint and summonses; re ALW
(Litigation)

Uy twee oe.

Hours

2.75

1.75

0.50

0.50

0.25

0.25

0.25

Rate

$200.00/hr

$200.00/hr

$200.00/hr

$200.00/hr

$200.00/br

$225.00/hr

$200.00/hr

—Amount

$550.00

$350.00

$100.00

$100.00

$50.00

$56.25

$50.00


(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.

As required by Federal Rule of Civil Procedure 55(a), Plaintiffs’ damages for delinquent
contributions, liquidated damages, and interest are subject to a clear mathematical calculation.
To date, ALW has failed and/or refused to remit delinquent hourly fringe benefit contributions,
interest, and liquidated damages to Plaintiffs.

Article III, Section 2 of the Benefit Trust Agreement and Article VIII, Section 2 of the
Pension and Annuity Trust Agreements provide a specific formula for the mathematical
calculation of liquidated damages to be assessed to the employer in the event that the employer
fails to pay contributions by the last day of the month following that in which the covered work
was performed. Specifically, the Trust Agreements provide as follows:

(a) Liquidated Damages:
(1) For the late filing of reports: 5% of the amount of the contribution
covered by the report, per month or fraction thereof, and

(2) For late payment of contributions: 1.5% per month or fraction thereof,
except that for the first five months of concurrent late reporting and also
late payment. this 1.5% shall be deemed to be included in the 5% in (1)
above, and

(3) The total amount of liquidated damages owed by an Employer shall be an
amount equal to the greater of:

@) interest (as defined in (b) below) on the unpaid contributions; or

(ii) the amount of liquidated damages as provided for in (a) above;
but

(iii) _ in no case however, will the amount of liquidated damages exceed
20% of the amount of unpaid contributions owed by an Employer

(b) Interest: For late payment of contributions, interest at the rate of 1.0% per
month on all delinquent contributions until paid Interest shall be calculated
on a monthly basis and shall be payable monthly.

ECF #3, Exhibits 1 — 3.


4. Asa part of my reguiar duties fhr tho Pltntif, 1 perfbom vezious activites related to the

collection of delinquent employer contiibutions, inofuting the computation of the amount

$. —_Asroquivedin enter to fulfill my duties far he Plaintiff, us denccbed in perngraghe 3 ana

4 above, I have aocess to eccounting records indicating manthly contribatians owed by
cock pastispsting exployer, x well es « pertopating exployar's payment histxy,

Policy for Employer Contributions aad Reports (“Collection Policy") that establishes the
Pllntifi' quidoted damage and interest provinions. As apanticipating employer bound
the Trust Agreements, ALW fs bound to the Palioy.

7. I peroonally computed tho Hquidsted damages and interest owed by ALW as the result of

its known definguent fringe benefit contributions, using the foemmla contained in the

8 ALW is owing to: p the Plaintiffs for DELINQUENT CONTRIBUTIONS. As of the date

of this Affidavit, pursuant to the Trust Agrecments and the Participation Agmement, ALW
owes the Plaintiffs $37,485.47 in unpaid fringe bensfit contributions acconding to the

records of the Plaintiffs, which includs reports ALW has submitted to the Piaintifis.
ALW ts owing to the Plaintifis for LIQUIDATED DAMAGES, As af the date of this
Affidavit, porsuant to the fumilas oontzined in the Collection Policy, ALW owes the
Plaintifia, $3,534.62 in liquidated damages cn tts reported delinquent vontributions.
ALW is owing to the Plaintiffs for INTEREST an overdue amounts, As of the dete of this
‘Affidavit, pursusnt to the formulas contained in the Collection Patioy, ALW owes tho
Pisintiffs $4,536.66 in projodgemont interest assessments on its reported delinquent
contributions.



unea

A monetary judgment in Plaintiffs’ favor and against Defendants ALW
Construction LLC and Michael Wildman in the amount of $105,776.75 with said
amount representing all known unpaid fringe benefit contributions, interest, and
liquidated damages found due and owing to Plaintiffs by Defendants.

A declaratory order from this Court requiring Defendants ALW Construction
LLC and Michael Wildman to comply with the Funds’ auditor’s request to
examine and review the documents necessary to complete a payroll audit, in the
event that such an audit is deemed necessary by Plaintiffs’ Board of Trustees, at
Defendants’ cost.

A declaratory judgment requiring Defendants ALW Construction LLC and
Michael Wildman to immediately pay all delinquent fringe benefit contributions,
interest, and liquidated damages owed for any unreported Employer Remittance
Reports, along with any additional unpaid fringe benefit contributions, interest,
and liquidated damages found to be owed during the course of a payroll audit.

A monetary judgment in Plaintiffs’ favor and against Defendant pursuant to
Section 502(g)(2)(D) of ERISA, 29 U.S.C. § 1132(g)(2)(D) in the amount of
$3,893.75 which represents Plaintiffs’ reasonable attorneys’ fees and costs
incurred pursuing this Case involving Defendant’s delinquent fringe benefit
contributions to judgment.

That a permanent injunction against Defendant be issued pursuant to Section
502(g)(2)(E) of ERISA, prohibiting Defendant from committing future violations

of Section 515 of ERISA, 29 U.S.C. § 1145 with respect to the Fund.


The amounts owed by ALW are fair and reasonable. ALW voluntarily signed the CBAs
and Participation Agreement, binding it to the Trust Agreements and the provisions for
liquidated damages and interest on delinquent contributions. Ms. Gotthardt calculates that ALW
is $105,776.75 in arrears to Plaintiffs. Aff. Gotthardt, {{] 8-10.

Article III, Section 8 of the Benefit Trust Agreement and Article VIII, Section 5 of the
Pension and Annuity Trust Agreements provide that “[s]hould legal action be necessary to effect
collection of contributions owed to the Fund, the Employer shall pay all costs (including attorney
fees) incurred by the Trustees.” ECF #3, Exhibits 1 — 3.

ALW failed to pay the required delinquent fringe benefit contributions owed to the
Plaintiffs by the last day of the month following that in which the covered work was performed.
Therefore, ALW was, and is, in default with its obligation to make fringe benefit contributions.
Additionally, ALW has failed or refused to comply with Plaintiffs’ demand to payment, which
required the Plaintiffs to file this case. Through May 31, 2018, Plaintiffs have expended
$3,893.75 in unrecovered reasonable attorneys’ fees and costs to collect the delinquent amounts
owed by ALW. Aff. Gotthardt, { 12. The amounts owed by ALW for Plaintiffs’ attorneys’ fees
and costs are fair and reasonable. Defendant ALW is directly responsible for the accumulation of
all the attorneys’ fees and costs paid or owed by the Plaintiffs.

Accordingly, based on the foregoing this Court GRANTS the following relief:
1. A declaratory order finding Defendants ALW Construction LLC and Michael
Wildman in violation of the Plaintiffs’ Amended and Restated Agreement and
Declarations of Trust due to its failure to timely submit required fringe benefit

contributions to the Funds.


ON WO)
OF SOUTHERN OHIO & VICINITY CASE NO. 3:18-CV-114
BENEFIT TRUST., et ai.,
Plaintiffs, JUDGE WALTER H. RICE
A
ALW CONSTRUCTION LLC, et el, AFKIDAVIT OF PEGGY
‘GOTTHARDT
Defendants, .

STATE OF OHIO >
COUNTY OF CUYAHOGA )

1, Pegay Gotthard, whose business address is 1470 Worldwide Place, Vendalia, Ohio
45377, being of sound mind, aver the age of majority, and in all other ways qualified to give 2

swom statement in the State of Ohio and before this Court, baving been duly cautioned and sworn
‘upoa my oath, do hereby state end depose as follows:
1. The following statements contmined in this Affidavit are based upon my personal
knowledge.
Lam employed by the Pinintifts. 1 am submitting this Affidavit as evidence in support of

‘the Plaintiffs” position in the above captioned case against ALW Construction LLC., etal,
CALW”).

3. Asa part of my regular duties for the Plaintiffs, I am responsible for administering the
Participation Agreenicats under which contributing employers make contributions to the
Plaintiffs on behalfof employees who are members of various labor organizations affiliated
with the Intemational Association of Bridge, Structural and Omamental Iron Workers,
AFL-CIO and employed by the contributing employers. These duties include monitoring
‘employer contributions paid to the Plaintiffs pursuant to the Participation Agreements.

Peggy Gotthardt

sem t


2

UNITED STATES FEDERAL DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

AT DAYTON
IRON WORKERS DISTRICT COUNCIL
OF SOUTHERN OHIO & VICINITY CASE NO. 3:18-CV-114
BENEFIT TRUST., et al.,
Plaintiffs, JUDGE WALTER H. RICE

v.

ALW CONSTRUCTION LLC., et al.,

fo}
gi
Iso
bo]

Defendants.

This action came before the Court on Iron Workers District Council of Southern Ohio &
Vicinity Benefit Trust (“Benefit Trust”), Iron Workers District Council of Southern Ohio &
Vicinity Pension Trust (“Pension Trust”), and Iron Workers District Council of Southern Ohio &
Vicinity Annuity Trust (“Annuity Trust) (collectively the “Trusts” or “Plaintiffs”), Motion for
Default Judgment against Defendants ALW Construction LLC and Michael Wildman
(collectively “ALW”). This Court now grants the Plaintiffs’ Motion for Default Judgment
against Defendants ALW in its entirety.

This is a suit brought by an employee benefit plan against ALW for ALW’s violation of
Section § 515 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1145
(“ERISA”). See ECF #1, Complaint. In this case, Plaintiffs seek to recover delinquent employer
contributions, pre-judgment interest, liquidated damages, attorneys’ fees and costs, and equitable
relief pursuant to the provisions of ERISA from ALW. Plaintiffs also seeks an award of post-

judgment interest pursuant to Title 28 U.S.C. § 1961.


; PHILLIPS, LLC

rae HOFFMAN

June 12, 2018

Invoice submitted to:

IRONWORKERS DISTRICT COUNCIL OF SOUTHERN OHIO & VICINITY

COLLECTIONS ACCOUNT

Ms. Penny Brown, Administrative Manager
1470 Worldwide Place

Vandalia, OH 45377

In Reference To: Iron Workers District Council of
Southern Ohio & Vicinity Benefit Trust,
et al. v. ALW Construction LLC, et al.
Southern District of Ohio Case No.
3:18-cv-114

For Professional Services Rendered

Hours

Rate

Amount

2/20/2018 MTH_ Draft demand letter seeking full 0.50
payment of contributions, liquidated
damages, interest, & attorneys’ fees;
email correspondence w/ P. Gotthardt;
re: ALW Construction

3/6/2018 JDM Review email related to status of 0.25
pending collection matter; re: ALW
(Litigation)

3/7/2018 JDM _ Review email related to pending 0.25
collection matter & course of action;
te: ALW (Litigation)

MTH Email regarding missed payment 0.50
deadline; email seeking authority to
initiate litigation against Contractor;
re: ALW Construction (Litigation)

—— One International Place + 20445 Emerald Parkway Dr., Suite 210 » Cleveland, OK 44135-6029 -

216.781.3600 » »°r; 216.781.8839

$200.00/hr

$225.00/hr

$225.00/hr

$200.00/hr

$100.00

$56.25

$56.25

$100.00


11. [personally computed all amounts for delinquent contributions, liquidated damages, and
interest owed to the Plaintifis by ALW, os sot forth in this Affidavit, using the mathematical
formulas provided for in the Collection Policy.

12, ALW is owing to the Plaintifis for ATTORNEYS? FEES AND COSTS on paid or owed

date of this Affidavit, ALW owes the Plaintiffs $3,893.75 in reasonable attorneys’ fees and
Court costs incurred by the Plaintiffs, A true und correct accounting from Faulkner Hoffiman
& Phillips LLC for the attorneys” fees and court costs paid or owed by the Plaintiffs for the
state court action is attached hereto as Exhibit A.

"LD. bs SAYETH NAUGHT
Pegay Gut

‘Tho focgoing AFFIDAVIT, consisting of thes (3) page, inlatng thls age, was vara to ood
subsctibed by Pegey Gotthardt, before me, a Notary Public in and forthe State of Obio this_ /4
day of June 2018.



7. Post-judgment interest on all monetary relief granted herein pursuant to 28 U.S.C.
§ 1961.

8. Such other legal or equitable relief as this Court deems appropriate.

9. Plaintiffs would request that this Court retain jurisdiction over this Case pending

Defendant’s compliance with its orders.
IT IS SO ORDERED

Date: 1-94-18 LLC

JUDGE WALTER H. RICE


with law, make such contributions in accordance with the terms and conditions of such plan or
such agreement[.]”

ALW is bound by the Participation Agreement, as well as collective bargaining
agreements (“CBAs”) it has entered into with various labor organizations affiliated with the
International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Hence,
ALW is obligated to abide by the terms of the Trust Agreements, including the provisions that
require ALW to make fringe benefit contributions to the Plaintiffs for each hour worked by a
participating employee. ALW has failed to contribute to Plaintiffs in accordance with its
obligations under the Participation Agreement, the CBAs, and under the Trust Agreements.

Article III of the Benefit Trust Agreement and Article VIII of the Pension Trust and
Annuity Trust Agreements require ALW to make employer fringe benefit contributions to
Plaintiffs pursuant to the terms of the Participation Agreement and CBAs. ALW’s failure to
make such contributions is a violation of Section 515 of ERISA, 29 U.S.C. § 1145, for which
Plaintiffs are entitled recover owed delinquent contributions, liquidated damages, equitable
relief, as well as its reasonable costs and attorney’s fees from ALW. Specifically, Section 502(g)
of ERISA, 29 U.S.C. § 1132(g) provides:

(2) In any action under this sub chapter 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

Federal or State law) of the amount determined by
the court under subparagraph (A),


FAULKNER, HOFFMAN
& PHILLIPS, LLC

ATTORNEYS AT LAW

TRONWORKERS DISTRICT COUNCIL OF SOUTHERN OHIO & VICINITY
June 12, 2018
Page 4

Hours Rate Amount

5/3/2018 DMP Review notices from Court re service 0.25  — $200.00/hr $50.00
executed on Defendants; re: ALW

(Litigation)

5/4/2018 JCH Review legal issues; send email for 0.25  $225.00/hr $56.25
information; re: ALW Construction
Citigation)

5/15/2018 DMP Tel. conf. w/ P. Gotthardt; re: ALW 0.25 — $200.00/hr $50.00
Citigation)

5/16/2018 JDM Review ECF notice & application for 0.25 $225.00/hr $56.25
default entry; re: ALW (Litigation)

5/17/2018 JDM Review ECF notice & clerk's entry of 0.25  $225.00/br $56.25
default; re: ALW (Litigation)

5/18/2018 JDM Attention to email related to status of 0.25 — $225.00/hr $56.25
ongoing collections case; re: ALW
(Litigation)

5/24/2018 DMP Attention to email form P. Gotthardt 0.25  — $200.00/hr $50.00
Te status of lawsuit against ALW;
review docket & next steps to be
taken; update to P. Gotthardt; re:
ALW (Litigation)

5/31/2018 DMP Review email from P, Gotthardt re 0.50 $200.00/hr $100.00
status of ALW project; respond w/
status update & request for
information needed to put GC/owner
on notice & investigate potential joint
check arrangement; research for
projects being completed by ALW in
Indianapolis, Indiana; re: ALW
(Litigation)


Pursuant to the Participation Agreement, ALW is required to make employer fringe benefit
contributions to Plaintiffs based on the number of hours worked by ALW covered employees
during the month at issue. The Plaintiffs’ Board of Trustees has approved and effectuated a
Collection and Control Policy for Employer Contributions and Reports (“Collection Policy”),
which is applicable when an employer’s fringe benefit contributions are delinquent; the
Collection Policy provides for the assessment and imposition of both liquidated damages and
interest on delinquent fringe benefit contributions. Aff. Gotthardt at { 6.

When a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend as provided in the Federal Rules of Civil Procedure and that fact is made to
appear by affidavit or otherwise, the Clerk shall enter the party’s default. See Fed. R. Civ. P.
55(a). Once the default has been entered, the well-pleaded facts of the complaint relating to
liability must be accepted as true. See Stooksbury v. Ross, Case No. 12-5739, 2013 WL
2665596, *3 (6th Cir. June 13, 2013) (treating the factual allegations of a complaint on liability
as true because defendant produced no timely responsive pleading); Iron Workers District
Council of Southern Ohio & Vicinity Benefit Trust v. Wortman Bros. LLC, Case No. 3:14-CV-
00148, 2014 WL 3458563, *1 (S.D. Ohio, Jul. 11, 2014). However, those allegations relating to
the amount of damages suffered are ordinarily not accepted as true unless the amount claimed is
capable of ascertainment from definite figures contained in detailed affidavits. Dundee Cement
Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983).

Plaintiffs are employee benefit plans within the meaning of ERISA, and multiemployer
plans within the meaning of Section 515 of ERISA, 29 U.S.C. § 1145, which states, “[e]very
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


On April 11, 2018, Plaintiffs filed the instant action against Defendant ALW. ECF #1,
Complaint. The original summonses to the Defendant was issued on the same day. ECF #2,
Issuance. On April 17, 2018, the Plaintiffs filed their Amended Complaint. ECF #3, Amended
Complaint. On April 25, 2018, Plaintiffs perfected service of the original summons and
complaint on Defendant ALW by certified mail. ECF #6 and #7. On May 3, 2018, Plaintiffs
perfected service of their Amended Complaint on Defendant ALW by certified mail. ECF #8 and
#9. As Defendant ALW failed to answer or otherwise defend against the Plaintiffs’ Amended
Complaint, the Plaintiffs applied for an entry of default on May 16, 2018. ECF #10, Application.
The Clerk made an entry of default against Defendant ALW on May 17, 2018. ECF #11, Entry
of Default. As of this date, no answer, motion, or responsive pleading has been filed.

Plaintiffs were established pursuant to the terms of the Plaintiffs’ Amended and Restated
Agreement and Declarations of Trust (“Trust Agreements”) that were entered into by various
labor organizations affiliated with the International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO and various employers, and employer organizations, having
collective bargaining agreements with the participating local unions. ECF #3, Exhibits #1-3. The
Plaintiffs are maintained pursuant to a Participation Agreement under which employer
contributions are made as required by collective bargaining agreements between the participating
local unions and signatory employers. ECF #3, Exhibit #4. Accordingly, Plaintiffs are multi-
employer plans within the meaning of Section 3(37)(A) of ERISA, Title 29 U.S.C. §
1002(37)(A). Id.

At all times relevant herein, ALW has been bound to the terms of Participation
Agreement. ECF #3, Exhibit #4. The Participation Agreement binds ALW to the Trust

Agreements and obligates ALW to make fringe benefit contributions to Plaintiffs. Jd. at 4 1.


IRONWORKERS DISTRICT COUNCIL OF SOUTHERN OHIO & VICINITY
June 12, 2018

Page 2

—___Hours _____Rate _ Amount

3/7/2018 MTH Email regarding missed payment 0.50  $200.00/hr $100.00
deadline; emai! seeking authority to
initiate litigation against Contractor;
te: ALW Construction (Litigation)

3/20/2018 MTH Review correspondence; tel. conf. w/ 1.00 — $200.00/hr $200.00
M. Wildman regarding delinquency &
a potential joint check agreement w/
Geiger Peters; begin drafting
complaint; re: ALW Construction
(Litigation)

MTH Review correspondence; tel. conf. w/ 1.00 $200.00/hr $200.00
M. Wildman regarding delinquency &
a potential joint check agreement w/
Geiger Peters; begin drafting
complaint; re: ALW Construction
(Litigation)

3/22/2018 MTH Draft model joint check agreement; 1.25  — $200.00/hr $250.00
tel. call to M. Wildman; continue
drafting complaint for delinquent
contributions; re: ALW Construction
(Litigation)

3/23/2018 MTH Continue drafting complaint; re: ALW 1.50 — $200.00/br $300.00
Construction (Litigation)

3/26/2018 MTH Email regarding the participation 0.25  — $200.00/hr $50.00
agreement & other exhibits; prepare
same; re: ALW Construction
(Litigation)

3/27/2018 MTH Update damage calculations; tel. conf. 1.75 — $200.00/hr $350.00
w/ P. Gotthardt regarding bond claim;
voicemail for M. Wildman regarding
joint check agreement; revise &


IRONWORKERS DISTRICT COUNCIL OF SOUTHERN OHIO & VICINITY

June 12, 2018
Page 5
Hours Amount
For professional services rendered 17.25 $3,493.75
Additional Charges :
4/11/2018 JCH U.S. District Court Filing Fee; re: ALW Construction $400.00
Total additional charges $400.00
Total amount of this bill $3,893.75
Balance due $3,893.75

ees

Attorneys & staff designated as follows: George H. Faulkner (GHF), Joseph C. Hoffman (JCH), Robert M. Phillips (RMP),

Joseph D. Mando (JDM), David M. Pkdey (DMP), Sara A. Liva (SAL), Melinda A, Pukanski (MAP), Linda G. Stein (LGS),
Hallie L. Buher (ALB) and David G. Faulkner (DGF), of counsel,

The Ohio Supreme Court Disciplinary Rutes provide that attorneys’ fees are to be based upon the hours spent; the results
obtained; the urgency of the matter; the experience, reputation and ability of the attorneys involved; and the novelty and
difficulty of the issue involved. Our fees for all lawyers and paralegals are computed in accordance with the Supreme Court
Rules. If you have any questions, please call our office. ‘Thank you for your continued support by our representation of your
legal affairs.

Faulkner, Hoffman & Phillips, LLC

Gory, 4V, Tan,