Gastronomical Workers Union Local 610 v. Dorado Beach Hotel Corp.

United States Court of Appeals
For the First Circuit

Nos. 08-2561
08-2563

GASTRONOMICAL WORKERS UNION LOCAL 610 & METROPOLITAN HOTEL
ASSOCIATION PENSION FUND ET AL.,

Plaintiffs, Appellants/Cross-Appellees,

v.

DORADO BEACH HOTEL CORPORATION ET AL.,

Defendants, Appellees/Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Howard, Selya and Thompson, Circuit Judges.

Jeffrey S. Swyers, with whom Barry S. Slevin, Allison A.
Madan, and Slevin & Hart, P.C. were on brief, for plaintiffs.
James C. Polkinghorn, with whom Alejandro Méndez Román, José
R. González-Nogueras, and Jiménez, Graffam & Lausell were on brief,
for defendant Dorado Beach Hotel Corporation.
Manuel Duran-Rodríguez and Manuel Duran Law Office on brief
for defendant La Mallorquina, Inc.

August 11, 2010
 SELYA, Circuit Judge. These appeals are distinctive in

two respects. First, they require us to ponder a question of first

impression under the Employee Retirement Income Security Act

(ERISA), 29 U.S.C. §§ 1001-1481 (2000),1 which concerns the

operation of ERISA's minimum funding requirement. See id. § 1082.

Second, the appeals provide us with an opportunity to discuss, for

the first time, the Supreme Court's recent teachings in Hardt v.

Reliance Standard Life Insurance Co., 130 S. Ct. 2149 (2010), which

clarified the operation of ERISA section 502(g)(1), 29 U.S.C.

§ 1132(g)(1). The tale follows.

I. BACKGROUND

The underlying action was brought by the Gastronomical

Workers Union Local 610 & Metropolitan Hotel Association Pension

Fund (the Fund), a multi-employer pension plan covered by ERISA,

and the trustees of the Fund. The Fund, as an entity, was

dismissed by the district court for lack of standing, and that

ruling is not challenged on appeal. We therefore refer to the

trustees as the plaintiffs.

The complaint named the eleven employers who composed the

Metropolitan Hotel Association as defendants. Along with Local

610, these employers were parties to a collective bargaining

1
ERISA was heavily amended by the Pension Protection Act of
2006, Pub. L. No. 109-280, 120 Stat. 780. We refer here to the
prior version of the law, which governs the substantive issues in
this case.

-2-
agreement (CBA), which had been renegotiated and renewed from time

to time. A current iteration of the CBA remains in effect. It

provides in pertinent part that the employers will make periodic

contributions to the Fund. In the first instance, the CBA for any

given year effectively dictates the amounts to be contributed by a

particular employer.

Local 610 and the employers established the Fund in 1971,

by means of a declaration of trust. Its primary purpose is to

provide pensions for eligible employees.

The Fund operates on a May 31 fiscal year. ERISA

mandates that covered pension plans, such as the Fund, must meet

the statutory minimum funding standard in each fiscal year. See

ERISA section 302, 29 U.S.C. § 1082. When a plan fails to satisfy

the minimum funding requirement for a given year, the plan sponsor

— the employer — must make additional contributions to bridge the

gap. See id. § 1082(a)-(b). In a multi-employer plan, this

responsibility is shared among participating employers. See id.

§ 1082(c)(11)(A).

The focal point of this case is the Fund's 2005 plan

year. The CBA then in effect provided for employer contributions

of $58 per eligible employee per month. In the spring of 2005, the

Fund's actuary determined that these contributions would not be

adequate to allow the Fund to satisfy ERISA's minimum funding

standard. The actuary projected that an additional sum of $622,363

-3-
would be needed. ERISA allows employers a grace period of eight

and one-half months after the end of a plan's fiscal year within

which to cure an accumulated funding deficiency. See 29 U.S.C.

§ 1082(c)(10). With this in mind, the actuary calculated that the

necessary sum could be raised by increased employer contributions

of $100 per eligible employee per month.

The CBA recognized that the agreed contribution levels

might have to be adjusted if and when an actuarial evaluation

indicated a funding shortfall. In that event, the parties promised

to "seek to reach an agreement as to an increase in the

contributions stipulated [in the CBA]." Presumably with this

language in mind, the trustees, by letter dated May 19, 2005,

notified the employers of the projected deficiency for plan year

2005 and advised them that increased monthly contributions, as

recommended by the actuary, would be required beginning June 1,

2005. The employers turned a deaf ear to this importuning,

eschewing any increased contributions.

On March 14, 2006, the Fund filed Form 5500 with the

Internal Revenue Service (IRS), reporting an accumulated funding

deficiency of $643,748 for the 2005 plan year. The trustees

notified the employers that they had reported a funding deficiency

in this amount to the IRS.

The principal enforcement mechanism for the repair of

minimum funding deficiencies is the imposition of excise tax

-4-
penalties. See 26 U.S.C. §§ 412, 4971 (2000); see also D.J. Lee,

M.D., Inc. v. Comm'r, 931 F.2d 418, 420 (6th Cir. 1991) ("The

excise tax . . . was intended by Congress to enforce compliance

with [the minimum funding] requirements."). If a pension plan has

a minimum funding deficiency that is not corrected by additional

employer contributions within eight and one-half months of the end

of the plan year, the employer becomes liable for a mandatory

excise tax of five percent of the amount of the deficiency. 26

U.S.C. § 4971(a). If the deficiency is not thereafter seasonably

corrected, an additional tax, equal to one hundred percent of the

funding deficiency, is imposed. Id. § 4971(b), (c)(3).

On May 31, 2006, the Fund requested a waiver with respect

to the accumulated funding deficiency for plan year 2005. 29

U.S.C. § 1083. To date, the IRS has not acted on this application.

During calendar 2006, one employer, Dorado Beach Hotel

Corp. (DBHC), withdrew from the Fund. ERISA requires an employer

who wishes to withdraw from a multi-employer plan to continue

contributing toward its vested but unfunded liabilities, accrued as

of the date of its withdrawal, until those liabilities are fully

funded. See id. §§ 1381, 1391. The trustees, acting on actuarial

advice, promulgated a schedule of DBHC's monthly withdrawal

liability payments. DBHC began complying with this payment

schedule.

-5-
 In February of 2007, the trustees advised DBHC that the

Fund would not meet the minimum funding requirement for the 2006

plan year unless it received $1,900,000 in additional contributions

within the cure period. DBHC agreed to make a lump-sum payment in

that amount in exchange for a favorable variance in its scheduled

withdrawal liability payments. DBHC and the Fund entered into a

similar arrangement for the 2007 plan year; the former again

advanced $1,900,000 to enable the latter to avoid a looming minimum

funding deficiency for the 2007 plan year and again received a

favorable variance in the (previously amended) schedule of

withdrawal liability payments.

II. TRAVEL OF THE CASE

On March 31, 2006, the trustees commenced an action

against the employers in the United States District Court for the

District of Puerto Rico. The trustees brought this action under 29

U.S.C. § 1132(a)(3), which supplies a cause of action in favor of

an ERISA fiduciary "(A) to enjoin any act or practice which

violates any provision of [ERISA] or the terms of the plan or (B)

to obtain other appropriate equitable relief (i) to redress such

violations or (ii) to enforce any provisions of [ERISA] or the

terms of the plan . . . ." The scope of the action has narrowed

over time; out of eleven employers originally named as defendants,

only two, DBHC and La Mallorquina, Inc., remain in the case. Seven

employers have settled, and two others have defaulted.

-6-
 Pertinently, the trustees alleged that the employers

failed to make sufficient payments to keep the Fund in compliance

with ERISA's minimum funding requirement, ERISA section 302(a), 29

U.S.C. § 1082(a), for plan year 2005. They sought equitable

relief, including an injunction, an order requiring the employers

to contribute the additional monies needed to satisfy the minimum

funding requirement for plan year 2005, liquidated damages,

attorneys' fees, interest, and costs.

The employers moved to dismiss, asserting that (i) their

liability for Fund contributions was limited to the schedule of

contributions described in the CBA, and (ii) the trustees lacked

standing to sue. The district court denied the motion.

Gastronomical Workers Union v. Dorado Beach Hotel Corp. (GW I), 476

F. Supp. 2d 99, 106-07 (D.P.R. 2007). The part of the district

court's ruling that resolved the issue of standing is not

challenged on appeal.

In due course, the trustees moved for summary judgment,

seeking judgment against each employer for its pro rata share of

the accumulated funding deficiency for plan year 2005, along with

liquidated damages, prejudgment interest, attorneys' fees, and

costs under ERISA section 502(g)(2), 29 U.S.C. § 1132(g)(2). The

employers opposed this motion and cross-moved for summary judgment

in their favor.

-7-
 The district court granted the trustees' motion to the

extent that it sought enforcement of the minimum funding

requirement for plan year 2005. Gastronomical Workers Union v.

Dorado Beach Hotel Corp. (GW II), Civ. No. 06-1346, slip op. at 13

(D.P.R. Oct. 20, 2008). The court ruled that the employers were

liable under section 302 for additional sums needed to cure the

2005 funding deficiency. Id. at 7-8. The court refused, however,

to grant any ancillary relief. Id. at 13. At the same time, the

court denied the cross-motion. Id. The court entered a judgment

against each employer for a dollar amount representing that

employer's pro rata share of the accumulated funding deficiency

that had been reported at the end of the 2005 plan year.

Invoking Federal Rule of Civil Procedure 54(d) and ERISA

section 502(g)(1), 29 U.S.C. § 1132(g)(1), the trustees filed a

postjudgment motion for attorneys' fees, interest, and costs. The

district court denied this motion without comment. Both sides

appealed, and we consolidated the two appeals.

III. ANALYSIS

The employers' appeal and the trustees' appeal focus on

different aspects of the district court's orders. We address them

sequentially.

A. The Employers' Appeal.

We review de novo the district court's grant of summary

judgment in favor of the trustees on their minimum funding

-8-
requirement claim. See, e.g., Kouvchinov v. Parametric Tech.

Corp., 537 F.3d 62, 66 (1st Cir. 2008). We assay the facts and all

reasonable inferences therefrom in the light most hospitable to the

parties against whom summary judgment was granted (here, the

employers). Id. If the record, so viewed, demonstrates both the

absence of any genuine issues of material fact and the moving

parties' entitlement to judgment as a matter of law, we will uphold

the order. See id.; see also Fed. R. Civ. P. 56(c).

Resolving the employers' appeal requires an understanding

of the statutory framework. Congress has mandated that ERISA plans

must meet a minimum funding standard for each plan year. 29 U.S.C.

§ 1082(a)(1). A plan satisfies this standard "if as of the end of

such plan year the plan does not have an accumulated funding

deficiency." Id. Leaving to one side the series of adjustments

needed to reach that determination, an accumulated funding

deficiency occurs when a plan's liabilities exceed its assets. See

id. § 1082(a)(2), (b). When a pension plan has an accumulated

funding deficiency at the end of the plan year, the participating

employer(s) must make sufficient additional payments to erase the

deficiency. Otherwise, the employers face substantial excise tax

liabilities. See id. § 1082(c)(11)(A); see also UAW v. Keystone

Consol. Indus., Inc., 793 F.2d 810, 813 (7th Cir. 1986). A failure

to make contributions required for this purpose also may be

enforced by means of a civil action brought under 29 U.S.C.

-9-
§ 1132(a). See McMahon v. McDowell, 794 F.2d 100, 107 (3d Cir.

1986); see also H.R. Rep. No. 93-1280, at 27 (1974) (Conf. Rep.),

reprinted in 1974 U.S.C.C.A.N. 5038, 5065 (explaining that "the

responsible employer may be subject to civil action in the courts

on failure to meet the minimum funding standards"). Employers have

up to eight and one-half months beyond the end of a plan year

within which to remedy an accumulated funding deficiency. 29

U.S.C. § 1082(c)(10).

In the case at hand, certain critical facts are not in

dispute. First, the Fund's actuarial computations are

unchallenged. Thus, we can take as true that the Fund had an

accumulated funding deficiency of $643,748 at the end of the 2005

plan year and required additional employer contributions to offset

this shortfall. Second, the allocation methodology with respect to

that deficiency (that is, the division of the total funds needed

among the participating employers) is not controverted on appeal.

Thus, the amounts at issue are $249,314.89 (the amount of the

judgment against DBHC) and $2,344.85 (the amount of the judgment

against La Mallorquina). Finally, it is uncontradicted that no

additional contributions to the Fund were made during the eight and

one-half months next following the end of the 2005 plan year.

In their appeal, the employers argue that the district

court erred because (i) the suit is not ripe; (ii) the CBA

foreclosed the trustees from seeking increased employer

-10-
contributions; (iii) the accumulated funding deficiency was

attributable to trustee mismanagement and, therefore, not properly

chargeable against the employers; and (iv) the accumulated funding

deficiency no longer exists. We confront these arguments in turn.

1. Ripeness. Under ERISA, the minimum funding

requirement is enforced, in part, by the imposition of an excise

tax to punish noncompliance. See 26 U.S.C. § 4971. The IRS, in

its sole discretion, may waive strict compliance with the minimum

funding requirement upon timely application. 29 U.S.C. § 1083;

D.J. Lee, 931 F.2d at 421.

To obtain a waiver, the employer must demonstrate that it

has experienced a "substantial business hardship," which impedes

its ability to make the necessary contributions in a timely manner.

29 U.S.C. § 1083(a)-(b). If the IRS grants the waiver, the

employer is exempted from the excise tax, the plan's account is

credited with the amount of the deficiency, and the employer

becomes obligated to pay that amount, with interest, on an extended

amortization schedule of up to fifteen years. See id. § 1083; see

also 26 U.S.C. §§ 412, 4971. Because the IRS has not yet acted

upon the waiver application filed in connection with the Fund's

2005 plan year, DBHC maintains that the trustees' suit is unripe.

It is common ground that federal courts may adjudicate

only actual cases and controversies. See U.S. Const. art. III;

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-41 (2006); Ernst

-11-
& Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.

1995). An array of doctrinal safeguards ensures the integrity of

this justicibility principle. Ripeness is one such doctrine — a

doctrine that is rooted in both constitutional and prudential

considerations. See Ernst & Young, 45 F.3d at 535.

Courts evaluate whether a case is ripe by assessing the

fitness for adjudication of the issue presented and determining

whether a refusal to adjudicate that issue will work a hardship on

the party who seeks a remedy. See R.I. Ass'n of Realtors, Inc. v.

Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). Fitness involves

questions about whether the necessary factual predicate is

sufficiently matured to allow a court to resolve the issue

presented. See id. Hardship "typically turns upon whether the

challenged action creates a direct and immediate dilemma for the

parties." Id. (quoting Ernst & Young, 45 F.3d at 535).

This case is ripe for adjudication. All of the events

giving the existence of the accumulated funding deficiency for plan

year 2005 and the employers' responsibility for it are matters of

historical fact. Moreover, it is clear that, if the trustees'

version of those events is accurate, the Fund has suffered an

injury. A refusal to adjudicate the parties' conflicting claims

would serve only to delay the vindication of that injury.

Consequently, there is a matured dispute between the parties, ripe

for adjudication.

-12-
 DBHC's counter-argument, though couched as a claim of

lack of ripeness, is really something quite different. Fairly

viewed, that claim does not suggest that the trustees have alleged

a speculative injury, the existence of which depends upon future

events that may or may not occur. Rather, the claim is that a

future event may change the type of remedy available to redress an

existing injury. Consequently, it is the future event, not the

trustees' injury, that is speculative. Viewed in this light,

DBHC's argument is not a ripeness argument at all. See, e.g.,

McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003)

(citing 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice & Procedure § 3531.12, at 50 (2d ed. 1984));

DeMauro v. DeMauro, 115 F.3d 94, 97 (1st Cir. 1997).

2. The CBA Defense. Belaboring the obvious, the

employers next declaim that, under ERISA, the duty to contribute to

a pension plan is contractual in nature. See 29 U.S.C. § 1145; see

also Laborers Health & Welfare Trust Fund v. Advanced Lightweight

Concrete Co., 484 U.S. 539, 546 (1988). The CBA in effect here

contains an employer-specific, dollar-specific schedule of such

contributions. Because the employers paid these contributions as

required under the CBA, this argument runs, they have no further

payment responsibilities notwithstanding the occurrence of an

accumulated funding deficiency.

-13-
 We agree with the employers that pension contribution

obligations are contractual in nature. Int'l Bhd. of Painters &

Allied Trades Union v. George A. Kracher, Inc., 856 F.2d 1546, 1549

(D.C. Cir. 1988). But this tenet does not exist in a vacuum.

Whatever a private contract may provide, ERISA continues to govern

employers' funding obligation with respect to covered pension

plans. See Advanced Lightweight Concrete, 484 U.S. at 546-47. The

statutory mandates operate in tandem with contractually imposed

duties. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 442

(1999); Keystone Consol. Indus., 793 F.2d at 813. When a plan

fails to meet the statutorily imposed minimum funding requirement

for a given plan year, the employer must satisfy that requirement

by making further payments, regardless of the terms of the CBA.

See 29 U.S.C. § 1082(a)(1). The statutory obligation is

independent of whatever arrangements private agreements may

contemplate. See Hughes Aircraft, 525 U.S. at 442; cf. Esden v.

Bank of Bos., 229 F.3d 154, 173 (2d Cir. 2000) (stating that "[t]he

Plan cannot contract around [ERISA]").

Were the rule otherwise, parties could elude ERISA's

commands by the simple expedient of sharp bargaining. This result,

intolerable in itself, also would frustrate one of ERISA's primary

goals: to ensure that covered pension plans provide employees

promised retirement benefits. See Nachman Corp. v. Pension Ben.

Guar. Corp., 446 U.S. 359, 375 (1980); In re Merrimac Paper Co.,

-14-
420 F.3d 53, 64 (1st Cir. 2005). We hold, therefore, that an

employer cannot shield itself from ERISA liability under section

302 simply by performing its obligations under a collective

bargaining agreement.

Here, the contributions dictated by the CBA proved

insufficient, in the 2005 plan year, to allow the Fund to satisfy

ERISA's minimum funding requirement. Accordingly, additional

contributions sufficient to eliminate that deficiency were

required. Those contributions were the employers' collective

responsibility, over and above the payments described in the CBA.

In an effort to dull the edge of this reasoning, the

employers advert to the declaration of trust that established the

Fund. That document not only ties an employer's payment

obligations to those limned in the CBA but also makes clear that

the trustees lack the power to enlarge those obligations. In

addition, the employers cite case law holding that, under ERISA

section 515, 29 U.S.C. § 1145, suits to enforce a CBA must be

regarded as contractual in nature. See, e.g., Carpenters Fringe

Benefit Funds v. McKenzie Eng'g, 217 F.3d 578, 582 (8th Cir. 2000);

Mass. Laborers' Health & Welfare Fund v. Starrett Paving Corp., 845

F.2d 23, 25 (1st Cir. 1988).

These arguments miss the mark. This suit is not an

action to collect under, or enforce, the CBA. Rather, it is an

action to garner the amounts needed to satisfy ERISA's minimum

-15-
funding requirement. The trustees have the right to pursue such an

action. See 29 U.S.C. § 1132(a)(3); see also Hughes Aircraft, 525

U.S. at 442.

The employers also try a variation on this theme. They

note that pension benefits are "terms and conditions" of employment

and, as such, are mandatory subjects of collective bargaining.

Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass Co., 404

U.S. 157, 159, 163-64 (1971). Parties must continue to perform

under the extant terms of the CBA while they follow the bargaining

procedure to seek a modification. See 29 U.S.C. § 158(d); see also

Allied Chem., 404 U.S. at 185; Prof'l Admin'rs Ltd. v. Kopper-Glo

Fuel, Inc., 819 F.2d 639, 643 (6th Cir. 1987). Against this

backdrop, the employers contend that the trustees' intervention

resulted in a mid-term modification of a mandatory subject of

collective bargaining, and, thus, contravened basic principles of

labor law.

The employers' contention misunderstands the nature of

the trustees' action. The trustees did not seek a court-ordered

increase in the monthly contribution rate specified in the CBA.

Instead, they sought an order compelling the employers to

ameliorate the accumulated funding deficiency. In granting relief,

-16-
the district court neither modified the CBA nor intruded into the

collective bargaining process.2

3. Trustee Mismanagement. The employers assert that the

trustees mismanaged the Fund's investments and thereby caused the

accumulated funding deficiency. On that premise, they asseverate

that they cannot be held liable for the deficiency. Alternatively,

they say that an issue of material fact exists concerning the

origins of the deficiency.

There is a fundamental problem with this asseveration:

considerations such as managerial proficiency are immaterial in a

minimum funding case. ERISA sets forth a specific set of

computations that must be made to determine whether a funding

deficiency exists. See 29 U.S.C. § 1082(b). Those computations do

not include investigations into the propriety of how the fund is

managed.

Of course, the trustees of a pension plan can be sued for

breach of their fiduciary duties. See, e.g., Livick v. Gillette

Co., 524 F.3d 24, 28-29 (1st Cir. 2008). That type of suit may

inquire into the propriety of how a fund is being managed. See,

e.g., Bunch v. W.R. Grace & Co., 555 F.3d 1, 7 (1st Cir. 2009).

But such a suit cannot be confused with a suit that seeks to

2
The trustees' letter, though inartfully phrased, does not
work a modification of the CBA. The letter has legal force only as
a notice to the employers of a looming problem. That the notice
was coupled with a suggestion about how the problem might be
remedied does not change its legal effect.

-17-
enforce section 302's minimum funding requirement. Cf. Sova

Outerwear Corp. v. Trs. of Amalg. Cotton Garment & Allied Indus.

Fund, 578 F. Supp. 1126, 1127 (S.D.N.Y. 1984) (stating that ERISA

separates breach of fiduciary duty claims from withdrawal liability

claims). In short, allegations of trustee mismanagement should be

raised in a suit for breach of fiduciary duty. They play no role

in the decisional calculus in this suit over a funding deficiency.

4. The Vanishing Deficiency. Finally, the employers

claim that, when the district court entered judgment, the

accumulated funding deficiency no longer existed. The district

court avoided this issue, concluding that developments after the

end of the 2005 plan year were "irrelevant" to the continued

existence of the deficiency. GW II, slip op. at 11. We think that

this conclusion overlooks the workings of the actuarial

computations required by ERISA.

Under ERISA, a pension plan's books are kept on a rolling

basis, using the accrual method of accounting. Accordingly, if a

funding deficiency exists at the end of a particular plan year,

that deficiency, if uncorrected, carries over into the next year's

accounting. See In re Sunarhauserman, Inc., 126 F.3d 811, 820 (6th

Cir. 1997); see also IRS Form 5500, Schedule B; cf. Cress v.

Wilson, No. 06-2717, 2008 WL 5397580, at *5 (S.D.N.Y. Dec. 29,

2008) (stating that certain current-year plan liability payments

must, at minimum, meet prior-year funding requirements). That is

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why the pertinent statutory text speaks in terms of an

"accumulated" funding deficiency. See, e.g., 29 U.S.C.

§ 1082(a)(2).

Here, the district court entered the judgment on October

20, 2008. If at that time an accumulated funding deficiency no

longer existed, the dollar-specific judgment entered by the

district court would, absent some explanation, allow the Fund, in

effect, to collect the same deficiency twice. ERISA does not

countenance this kind of double-dipping. See Ronald J. Cooke,

ERISA Practice and Procedure § 5.19, at 5-90 (2d ed. 2010); cf. 26

U.S.C. § 4971(a)-(b) (providing initial tax penalty for an

accumulated funding deficiency, to be followed by additional tax

penalties only if, and to the extent that, the deficiency remains

unabated).

In addition, ERISA section 502(a)(3) provides for

equitable relief only. 29 U.S.C. § 1132(a)(3). The relief awarded

here — a dollar-specific judgment — may well have exceeded the

scope of the statute. Interpreting this very provision, the

Supreme Court has stated that "[a]lmost invariably . . . suits

seeking (whether by judgment, injunction, or declaration) to compel

the defendant to pay a sum of money to the plaintiff are suits for

'money damages,' as that phrase has traditionally been applied,

since they seek no more than compensation for loss resulting from

the defendant's breach of legal duty. And '[m]oney damages are, of

-19-
course, the classic form of legal relief.'"3 Great-W. Life &

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (quoting

Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993)) (internal

citations omitted).

Seen in this light, the judgment cannot stand. The

record suggests that, by the time the court entered the judgment,

the deficiency may have vanished. The record contains no

explanation of the vanishing deficiency sufficient to salvage the

judgment.

Indeed, the only explanation suggested seems to favor the

employers' position. After DBHC announced its intention to

withdraw from the multi-employer plan, it entered into a schedule

of withdrawal liability payments on October 24, 2006.

Subsequently, the Fund and DBHC twice amended that schedule. Each

of these nearly identical novations resulted in a multi-million-

dollar lump-sum payment to the Fund, one in 2007 and the other in

2008. The ostensible purpose of the novations was to enable the

Fund to avoid accumulated funding deficiencies for the 2006 and

2007 plan years.

There are other telltales. While the agreements are

unclear (and the record does not illuminate) as to whether the

3
We merely raise this question (which was not addressed by
the parties), leaving it to the district court, on remand, to
consider the type of relief (if any) available under ERISA section
502(a)(3).

-20-
payments affected any aspect of the preexisting 2005 plan year

deficiency, language in the original withdrawal liability

agreements links the calculation of withdrawal liability to

unfunded vested benefits as of May 31, 2005 (the closing date of

the 2005 plan year). Furthermore, IRS Form 5500, filed by the Fund

for plan year 2006, indicates the absence at that time of any

current deficiency.

The trustees downplay the import of these documents.

Their first line of defense is that contributions to satisfy a

funding deficiency are distinct from withdrawal liability payments.

This postulate does not get them very far: an accumulated funding

deficiency is cured through an infusion of funds into the plan,

regardless of the obligation under which they are contributed. See

29 U.S.C. § 1082(b)(3)(A), (b)(7)(A); see also Cooke, supra, § 5.2,

at 5-12 to 5-13. Withdrawal liability payments are, therefore,

available to cure an accumulated funding deficiency. 29 U.S.C.

§ 1082(b)(7)(A).

Relatedly, the trustees say that the withdrawal liability

payments in this case were earmarked for the 2006 and 2007 plan

years and, thus, had no effect on the funding deficiency for the

2005 plan year. Given the rolling nature of ERISA accounting, this

seems counter-intuitive; but in any event, the record is tenebrous

as to how the additional payments were applied. Moreover, the

cogency of the documentary evidence depends in large part on

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inference and interpretation. To complicate matters, the district

court did not inquire into the subject.

This is a mystery, wrapped in a riddle, tucked inside an

enigma. The only thing that we can say with assurance is that the

employers have raised genuine issues of material fact about the

continued existence of the funding deficiency and about the

appropriateness of the remedy — issues that demand further inquiry.

Cf. Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 179

(1st Cir. 1995) (stating that clarification of vague contract terms

may require the taking of evidence). For example, it is possible

that DBHC's lump-sum withdrawal liability payments were in fact

used to offset minimum funding deficiencies for 2005 and later plan

years. This is a matter for the district court, and we take no

view of the ultimate resolution of that issue. Accordingly, the

judgment must be vacated.

B. The Trustees' Appeal.

In the court below, the trustees twice sought attorneys'

fees.4 As part of its adjudication of the trustees' motion for

summary judgment, the district court denied their request for an

award pursuant to ERISA section 502(g)(2), 29 U.S.C. § 1132(g)(2).

The trustees subsequently made a postjudgment motion seeking

attorneys' fees pursuant to ERISA section 502(g)(1), 29 U.S.C.

4
We use "attorneys' fees" as a shorthand for a variety of
ancillary remedies, including liquidated damages, prejudgment and
postjudgment interest, and costs.

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§ 1132(g)(1). The district court summarily denied that motion. On

appeal, the trustees challenge both orders.

We review the two orders under different standards.

Where section 502(g)(2) applies, a fee award is mandatory. See 29

U.S.C. § 1132(g)(2); Foltice v. Guardsman Prods., Inc., 98 F.3d

933, 936 (6th Cir. 1996). Thus, we review an order denying

remedies under section 502(g)(2) de novo. See, e.g., Pendleton v.

QuickTrip Corp., 567 F.3d 988, 994 (8th Cir. 2009); Graham v.

Balcor Co., 146 F.3d 1052, 1054 (9th Cir. 1998). Fee awards under

section 502(g)(1) are discretionary. See Cook v. Liberty Life

Assur. Co., 334 F.3d 122, 123 (1st Cir. 2003) (per curiam);

Peterson v. Cont'l Cas. Co., 282 F.3d 112, 122 (2d Cir. 2002). We

therefore review the disposition of a motion seeking remediation

under section 502(g)(1) for abuse of discretion. Janeiro v. Urol.

Surgery Prof'l Ass'n, 457 F.3d 130, 143 (1st Cir. 2006).

1. Section 502(g)(2). The challenge to the denial of

remedies under section 502(g)(2) is readily dispatched. That

section mandates the award of certain remedies, such as attorneys'

fees, in a successful enforcement action brought pursuant to ERISA

section 515, 29 U.S.C. § 1145. Writ large, section 515 requires an

employer to comply with its contractual commitments to make

periodic contributions to an ERISA plan. Here, however, the

trustees' action was not prosecuted under section 515 but, rather,

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under section 302. As such, section 502(g)(2) is inapposite, and

the district court did not err in denying remediation thereunder.

2. Section 502(g)(1). Section 501(g)(1) is a horse of

a different hue. That section allows the district court, in its

discretion, to award attorneys' fees in an ERISA action, not within

the purview of section 502(g)(2), brought by a plan participant,

beneficiary, or fiduciary. The Supreme Court recently has

clarified the proper mode of analysis with respect to this fee-

shifting provision. See Hardt, 130 S. Ct. at 2158.

The Hardt Court explained that eligibility for

remediation under section 502(g)(1) does not require that the fee-

seeker be a prevailing party. Id. at 2157. The Justices did not

necessarily prohibit consideration of the five factors delineated

in Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225

(1st Cir. 1996). See Hardt, 130 S. Ct. at 2158 n.8. The Court

nevertheless made clear that these factors could not be applied

without modification, and that the focal point of the inquiry

should be whether a claimant shows "some degree of success on the

merits." Id. at 2158. Achieving this benchmark requires something

more than a "purely procedural victory." Id. The statutory

standard is satisfied as long as the merits outcome produces some

meaningful benefit for the fee-seeker. Id.

The district court did not have the benefit of Hardt and,

thus, did not engage in the requisite analysis. Consequently, we

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vacate the order denying relief under section 502(g)(1). If this

motion is renewed following the proceedings on record, the district

court should reconsider it in light of Hardt; determine whether the

trustees have achieved some degree of success on the merits; and

decide whether to award attorneys' fees, costs, and/or other

remedies encompassed within section 502(g)(1).

IV. CONCLUSION

For the reasons elucidated above, we vacate both the

dollar-certain judgment and the order denying relief under ERISA

section 502(g)(1). We affirm the order denying relief under ERISA

section 502(g)(2). We remand the case to the district court. On

remand, the district court should conduct such further proceedings,

consistent with this opinion, as it deems desirable to develop the

record in the necessary respects. If the court determines that the

trustees are entitled to prevail, it shall fashion whatever

equitable relief may be appropriate.

Finally, we pause to add an exhortation. We urge the

parties to give serious consideration to settling their

differences. Litigation is expensive, and the sums that doubtless

will be expended in fighting this case to the bitter end can better

be used to secure the pension benefits of the employees enrolled in

the Fund.

Affirmed in part; vacated in part; and remanded. All parties shall

bear their own costs in connection with these appeals.

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