08/27/2013 1375 ENDORSED LETTER addressed to Judge Richard M. Berman from James M. Murphy dated 8/26/13 re: The CAGNY collective bargaining agreement presently before the Court is in all material respects a "me, too" agreement to the CBA between the District Council and the Building Contractors Association (BCA) that the Court approved back on June 12, 2013 (Doc. 1332). As ordered by the Court, enclosed with this letter as Exhibit A is a schedule showing the attorneys, accountants, investigators, and consultants retained by the District Council along with the requested detailed information of each person or firm. ENDORSEMENT: Respectfully, the points presented here, including the reference to "me to" agreements, ARE NOT entirely persuasive. Some of the authorities cited, in fact, appear to contradict conclusions drawn by counsel. (Signed by Judge Richard M. Berman on 8/27/2013) (mro) (Entered: 08/27/2013)
Original Title
08-27-13 Case 1-90-cv-05722-RMB-THK Document 1375 ENDORSED LETTER addressed to Judge Richard M. Berman from James M. Murphy dated 8/26/13
08/27/2013 1375 ENDORSED LETTER addressed to Judge Richard M. Berman from James M. Murphy dated 8/26/13 re: The CAGNY collective bargaining agreement presently before the Court is in all material respects a "me, too" agreement to the CBA between the District Council and the Building Contractors Association (BCA) that the Court approved back on June 12, 2013 (Doc. 1332). As ordered by the Court, enclosed with this letter as Exhibit A is a schedule showing the attorneys, accountants, investigators, and consultants retained by the District Council along with the requested detailed information of each person or firm. ENDORSEMENT: Respectfully, the points presented here, including the reference to "me to" agreements, ARE NOT entirely persuasive. Some of the authorities cited, in fact, appear to contradict conclusions drawn by counsel. (Signed by Judge Richard M. Berman on 8/27/2013) (mro) (Entered: 08/27/2013)
08/27/2013 1375 ENDORSED LETTER addressed to Judge Richard M. Berman from James M. Murphy dated 8/26/13 re: The CAGNY collective bargaining agreement presently before the Court is in all material respects a "me, too" agreement to the CBA between the District Council and the Building Contractors Association (BCA) that the Court approved back on June 12, 2013 (Doc. 1332). As ordered by the Court, enclosed with this letter as Exhibit A is a schedule showing the attorneys, accountants, investigators, and consultants retained by the District Council along with the requested detailed information of each person or firm. ENDORSEMENT: Respectfully, the points presented here, including the reference to "me to" agreements, ARE NOT entirely persuasive. Some of the authorities cited, in fact, appear to contradict conclusions drawn by counsel. (Signed by Judge Richard M. Berman on 8/27/2013) (mro) (Entered: 08/27/2013)
ATTORNEYS AT LAW CHAMBERS OF RICHARD M. BERMAN U.S.D.J. [MO [MOORS August 26, 2013 BY HAND Hon. Richard M. Berman Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: Dear Judge Berman: United States District Judge United States v. USDC SDNY DOCUl'vlEN'r ELECTRO>J ICALLY FILED DOC -f:: I DATE FILr: \: /27/1.? '-_.. _.. 1700 Broadway New York, NY 10019 T 212.765.2100 F 212.765.8954 splvakllpton.com I write on behalf of the New York City District Council of Carpenters (the "District Council" or the "Union") as directed by Your Honor during the August 12, 2013 conference and the August 14, 2013 Order (Doc. 1363). This letter addresses the issue of whether there is an actual or potential conflict of interest with the same law firm representing as sole counsel the District Council employee benefit funds (the "Funds") and a multiemployer association whose member-employers are signatory contributors to the Funds. I have also included with this letter as Exhibit A a schedule compiled by the District Council showing the attorneys, accountants, investigators, and consultants retained by the District Council. The schedule shows each vendor's name, address, who appointed the person or firm, the role performed, and the source of funds paid to each person or firm. Conflict of Interest Issue There is no per se rule or other authority prohibiting a law firm-here, Kauff, McGuire & Margolis LLP ("KMM")-from representing the Funds as sole counsel while also representing a multiemployer association-here, the Contractors Association of Greater New York ("CAGNY")-whose signatory member-employers make contributions to the Funds on behalf of covered employers. Indeed, the arrangement is typical with multiemployer funds under the Taft Hartley Law or Section 302(c)(5) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. 186(c)(5). My firm, while not counsel to the Funds, is sole counselor co-counsel to over seventy multiemployer benefit funds while simultaneously representing the sponsoring and namesake local, national, and international unions that bargain the collective bargaining agreements that require the signatory employers' contributions to the respective funds. That arrangement is the norm. l[ AT LA'''-' Hon. Richard M. Berman United States District Judge Re: United States v. District Council, et al., 90 Civ. 5722 (RMB) August 26, 2013 Page 2 There is scholarship recommending that attorneys refrain from representing under ERISA both a sRonsoring employer and its sp9nsored single empl9yer plan(s). See Paul M. Secunda, "Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries," 39 J. Marshall Law Review 721 (Spring 2006). Indeed, the leading Second Circuit opinion on such conflicts, albeit involving trustees to a plan and not attorneys who are not fiduciaries, involves a single employer plan. Donovan v. Biewwirth, 680 F.2d 263 (2d Cir. 1982) (discussed at length in Professor Secunda'sarticle). But, the analyses of conflicts with single employer sponsored benefit plans are not applicable to multiemployer Rlans under the Taft Hartley Act. That is because the structural requirements under Section 302( c)(5) of the LMRA provide for the checks and balances absent with single employer plans. One of these requirements is that employees and employers must be "equally represented" in the administration of the fund. 29 U.S.C. 186(c)(5)(B). This equal representation requirement and the further requirement of neutral resolution of deadlocks between the employee (union) trustees and the employers' trustees provide an important safeguard against benefit plan corruption. See NLRB v. Amax Coal Co., 453 U.S. 322, 330 n. 13, 101 S.Ct. 2789, 2794 n. 13 (1981). See also Jeffrey Lewis et aI., Employee Benefits Law 16-12-14 (3rd ed. 2012) (discussing case law applying the Taft-Hartley Act's equal representation requirement). Finally, the CAGNY collective bargaining agreement presently before the Court is in all material respects a "me, too" agreement to the CBA between the District Council and the Building Contractors Association (BCA) that the Court approved back on June 12, 2013 (Doc. 1332). Schedule of Attorneys, Accountants, Investigators, and Consultants retained by the District Council As ordered by the Court, enclosed with this letter as Exhibit A is a schedule showing the attorneys, accountants, investigators, and consultants retained by the District Council along with the requested detailed information of each person or firm. SPNAKLJP'T'()NLLP ATTORNEYS AT LAW Hon. Richard M. Berman United States District Judge Re: United States v. District Council, et al., 90 Civ. 5722 (RMB) August 26,2013 Page 3 Respectfully submitted, YVl. James M. Murphy Enclosure: Exhibit A (Attorneys, Accountants, Consultants, and Review Officer to NYC & Vicinity District Council of Carpenters (NYCDC) & Subsidiaries) cc: BY E-MAIL Dennis M. Walsh, Esq. Review Officer The Law Office of Dennis M. Walsh 415 Madison Avenue, 11th Floor New York, NY 10017 Bridget M. Rohde, Esq. Counsel to the Review Officer Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 666 Third Avenue New York, NY 10017 Benjamin H. Torrance, Esq. Tara LaMorte, Esq. Assistant United States Attorneys Civil Division Office of the United States Attorney for the Southern District o'f New York 86 Chambers Street New York, NY 10007 Raymond G. McGuire, Esq. Kauff, McGuire & LLP 950 Third Avenue, 141 Floor New York, NY 10022 Attorneys, Accountants, Consultants, and Review Officer to NYC &Vicinity District Council of Carpenters (NYCDC) &Subsidiaries ATTORNEYS I Name Address Appointed By Role Source of Funds I Paid to Such Firm or Individual CORDO& 1100 STATE STREET IDelegate Body I Political Lobbyist PAC Fund COMPANY, LLC SUITE 400 I ALBANY, NY 12207 217 51st Avenue, Delegate Body Legal counsel for PAC Fund Suite 316 I HENRY T. BERGER PAC Fund Long Island City, NY 11101 i Barbara 52 Third Street IDelegate Body Trial Committee NYCDC General Deinhardt, Esq. I Brooklyn, NY Chairperson Fund 11231 Broach & Stulberg, NYCDC General LLP One Penn Plaza, Delegate Body Legal counsel for Fund New York, NY Ste.2016 Civil Service Carpenters/Jacob 10119 Javitis related matters/Pu blic sector grievance Carol L Moran, Trial Committee NYCDC General Esq Howard Beach, NY 159-31 78th Street Delegate Body Chairperson Fund (Resigned 11414 effective 8/31/13) . F JL Associates, LLC Delegate Body Compliance NYCDC General Josh Leicht PO Box 665 North Salem, NY Officer Fund 10560 Santo 35 Kennedy Drive Trial Committee NYCDC General Barravecchio, Esq. Delegate Body Centereach, NY Chairperson Fund 11720 Spivak Lipton LLP 1700 Broadway Delegate Body Legal counsel for NYCDC General 21st Floor general matters Fund NY, NY 10019 and litigation, arbitrations, administrative agencies and i related. 111 Broadway, Arbitrations NYCDC General Virginia & Suite #1403 Delegate Body I Fund Ambinder, LLP I New York, NY 10006 I Professional Fees Vendors Page 1of 3 ACCOUNTANTS Name Address Appointed By Role Source of Funds Paid to Such Firm or Individual Calibre CPA Group, PLLC 1850 K Street, NW Suite 1050 Washington, DC 20006 Delegate Body Audit Committee Accountant NYCDC General Fund Gould, Kobrick & Schlapp 3 Park Avenue, 14th Floor New York, NY 10016-5902 Delegate Body External Accountant performs audits/reviews and prepare tax returns NYCDC General Fund CONSULTANTS Name Address Appointed By Role Source of Funds Paid to Such Firm or Individual RedEye, Inc. 1675 Whitehorse Mercerville Rd. Suite 104 Hamilton, NJ 08619 Delegate Body IT Consultant- overall IT support NYCDC General Fund Standard Data Corp 26 Journal Square Jersey City, NJ 07306 Delegate Body Business System Programming & Data Processing NYCDC General Fund Professional Fees Vendors Page 2 of 3 REVIEW OFFICER TEAM Name Address Appointed By Role Source of Funds Paid to Such Firm BOO Guidepost Solutions, LLC BOO P. O. Box 642743 Pittsburgh, PA 15264-2743 415 Madison Avenue, 11th Floor New York, NY 10017 Review Officer Review Offi cer Accountant for Review Offi ce r Legal counsel and investigations for Review Officer or Individual NYCDC General Fund NYCDC General Fund Mintz Levin Cohn P. O. Box 4539 Review Officer Legal counsel for NYCDC General Ferris Glovsky & Boston, MA Review Officer Fund Popeo 02212-4539 The J. Mitchell 1037 Carroll Street Review Officer Senior Investigator NYCDC General Company, LLC Brooklyn, NY for Review Officer Fund 11225 The Law office of 415 Madison US District Court Review Officer NYCDC General Dennis M. Walsh Avenue, 11th Fund Floor NY, NY 10017 The Truxillo Firm, 265 Riverside Dr., Review Officer Legal counsel for NYCDC General PLLC l\Io.6A Review Officer Fund New York, NY 10025 Timothy Thatcher 395 Hudson St Review Officer Investigator for NYCDC General NY, NY 10014 Review Officer Fund William O'Flaherty 395 Hudson St Review Officer Investigator for NYCDC General NY, NY 10014 Review Officer Fund Professional Fees Vendors Page 3 of 3
10-11-13 Case 90-Cv-5722 Attachment: # 2 Addendum For Market Recovery Document 1416-2 LETTER Addressed To Judge Richard M. Berman From James M. Murphy Re: Cement League
10-11-13 Case 90-Cv-5722 Attachment: # 1 CBA 7-1-11 To 6-30-15 Document 1416 LETTER Addressed To Judge Richard M. Berman From James M. Murphy Dated 10-11-2013 Re: (... ) Cement League 1416-1