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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

08-27-13 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

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Published by rally524
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)

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AUG
27
2013
lQJ
ATTORNEYS
AT LAW
CHAMBERS OFRICHARD
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
I
CALLY
FILED
DOC
-f::
I
DATE
FILr:
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1700
Broadway
New
York, NY 10019T
212.765.2100
F
212.765.8954splvakllpton.com 
I write on behalf
of
the New York City District Council
of
Carpenters (the "DistrictCouncil"
or
the "Union") as directed by Your Honor during the August 12, 2013 conferenceand the August 14, 2013 Order (Doc. 1363). This letter addresses the issue
of
whetherthere
is
an actual or potential conflict
of
interest with the same law firm representing assole counsel the District Council employee benefit funds (the "Funds") and amultiemployer association whose member-employers are signatory contributors to theFunds. I have also included with this letter as Exhibit A a schedule compiled by theDistrict Council showing the attorneys, accountants, investigators, and consultantsretained by the District Council. The schedule shows each vendor's name, address, whoappointed the person or firm, the role performed, and the source
of
funds paid to eachperson
or
firm.Conflict
of
Interest IssueThere 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 whilealso representing a multiemployer
association-here,
the Contractors Association
of
Greater New York
("CAGNY")-whose
signatory member-employers make contributionsto the Funds on behalf
of
covered employers. Indeed, the arrangement is typical withmultiemployer 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 tothe Funds, is sole
counselor
co-counsel to over seventy multiemployer benefit funds whilesimultaneously representing the sponsoring and namesake local, national, andinternational unions that bargain the collective bargaining agreements that require the
~
signatory employers' contributions to the respective funds. That arrangement is the norm.
~
 
l[
ATTORN~:YS
AT
LA'''-'
Hon. Richard
M.
BermanUnited States District Judge
Re:
United States
v.
District Council, et al.,
90
Civ. 5722 (RMB)August 26, 2013Page 2There
is
scholarship recommending that attorneys refrain from representing underERISA 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 Rulesof Professional Conduct to Discourage Joint Representation
of
Dual Role Fiduciaries," 39
J.
Marshall Law Review
721
(Spring 2006). Indeed, the leading Second Circuit opinion onsuch 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 notapplicable to multiemployer
Rlans
under the Taft Hartley Act. That
is
because thestructural requirements under Section 302( c)(5) of the LMRA provide for the checks andbalances absent with single employer plans. One
of
these requirements
is
thatemployees and employers must be "equally represented"
in
the administration of thefund. 29 U.S.C.
§
186(c)(5)(B). This equal representation requirement and the furtherrequirement
of
neutral resolution of deadlocks between the employee (union) trustees andthe 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 andthe 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 CouncilAs ordered by the Court, enclosed with this letter as Exhibit A is a scheduleshowing the attorneys, accountants, investigators, and consultants retained by the DistrictCouncil along with the requested detailed information of each person or firm.
 
SPNAKLJP'T'()N
LLP
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.
NL,,~lI.y/ilt:
James
M.
MurphyEnclosure: Exhibit A (Attorneys, Accountants, Consultants, and Review Officerto 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 &
Mar~olis
LLP 950 Third Avenue,
141
Floor New York, NY 10022 

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