BermanUnited States District Judge
District Council, et al.,
Civ. 5722 (RMB)August 26, 2013Page 2There
scholarship recommending that attorneys refrain from representing underERISA both a sRonsoring employer and its sp9nsored single empl9yer plan(s). See Paul
Secunda, "Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rulesof Professional Conduct to Discourage Joint Representation
Dual Role Fiduciaries," 39
Marshall Law Review
(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
Biewwirth, 680 F.2d 263 (2d Cir. 1982)(discussed at length
Professor Secunda'sarticle).But, the analyses of conflicts with single employer sponsored benefit plans are notapplicable to multiemployer
under the Taft Hartley Act. That
because thestructural requirements under Section 302( c)(5) of the LMRA provide for the checks andbalances absent with single employer plans. One
thatemployees and employers must be "equally represented"
the administration of thefund. 29 U.S.C.
186(c)(5)(B). This equal representation requirement and the furtherrequirement
neutral resolution of deadlocks between the employee (union) trustees andthe employers' trustees provide an important safeguard against benefit plan corruption.See NLRB
Amax Coal Co., 453 U.S. 322, 330
S.Ct. 2789, 2794
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
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.