Richard Lehman, on behalf of himself and others similarly situated; Michael Puterbaugh, Plaintiffs-Appellees,
Warner Nelson; William Beck, Jr.; Brian Bish; Klaas A. Deboer; Michael G. Marsh; Rocky Sharp; Richard Bamberger; Dennis Callies; Clif Davis; Tim Donovan; Harry Thompson; Clint Bryson; Michael Church; Michael Doyle; Greg Elder; Glen Franz; Gary Gonzales; Carl D. Hanson; Patrick Powell; Gary Price; Scott Stephens; Roger Tobin; Grant Zadow, in their capacity as Trustees of the IBEW Pacific Coast Pension Plan; Gary Younghans, Defendants-Appellants.
and Submitted May 13, 2019 Seattle, Washington
from the United States District Court No. 2:13-cv-01835-RSM
for the Western District of Washington Ricardo S. Martinez,
Chief District Judge, Presiding.
R. Ring (argued) and Michael A. Urban, The Urban Law Firm,
Las Vegas, Nevada, for Defendants-Appellants.
Richard J. Birmingham (argued), Joseph P. Hoag, and Christine
Hawkins, Davis Wright Tremaine LLP, Seattle, Washington, for
Potts-Dupre and Jennifer Bush Hawkins, Potts-Dupre Hawkins
& Kramer Chtd., Washington, D.C., for Amicus Curiae
Reciprocal Administrator of the Electrical Industry Pension
A. Schmidt, Richard A. Clark, Brenton F. Goodrich, and
Rudolph G. Klapper, Parker Milliken Clark O'Hara &
Samuelian APC, Los Angeles, California, for Amicus Curiae
Trustees of the Southern California IBEW-NECA Pension Trust
Before: Andrew J. Kleinfeld and Michelle T. Friedland,
Circuit Judges, and David A. Ezra, [*] District Judge.
Law / ERISA
panel filed (1) an order granting a request for publication,
withdrawing the panel's prior memorandum disposition, and
directing the filing of an opinion; and (2) an opinion
affirming the district court's grant of summary judgment
in favor of plaintiffs in an ERISA class action concerning
the Trustees of the IBEW Pacific Coast Pension Fund learned
that the Fund would soon enter "critical status"
under the Pension Protection Act of 2006, they twice amended
the Plan. Amendments 14 and 24 had the effect of withholding
at least $1.00 per hour from all employer contributions.
Richard Lehman, an electrician, filed a class action against
the Trustees under ERISA. Plaintiff was a member of a
different local union pension fund. When he was temporarily
employed outside his home fund, his employer contributed to
the local fund in the place where the work was performed.
Plaintiff's home fund and the Pacific Cost Fund were
signatories to the Electrical Industry Pension Reciprocal
Agreement, under which "travelers" like plaintiff
could elect to have employer contributions from other
jurisdictions electronically transferred to their designated
home pension fund.
prior appeal, Lehman I, the court held that the
Trustees could not keep the $1.00 hourly withholdings they
had made pursuant to Amendment 14, rather than including
these withholdings in the transfer payments made to
travelers' home funds, on the Trustees' theory that
the withholdings were not "contributions" within
the meaning of the Reciprocal Agreement. The court affirmed
the district court's grant of summary judgment in favor
of plaintiff and award of damages to the class for all
contributions withheld under Amendment 14. The court remanded
for the district court to address whether the class could
recover contributions withheld under Amendment 24.
remand, the district court again granted summary judgment in
favor of the class, determining that Amendment 24 violated
the plain language of Article 5 of the Pacific Coast Pension
Plan, which mandated that the Plan collect and transfer all
contributions received on behalf of travelers. Affirming, the
panel held that the Trustee's interpretation of Amendment
24 with regard to travelers' contributions was
request to publish our disposition is
GRANTED. The memorandum disposition filed
June 12, 2019 is withdrawn and an authored opinion by Judge
Ezra is filed concurrently with this order.
to Circuit Rule 40-2, by granting the request for
publication, we have extended the time to file a petition for
rehearing to 14 days after the issuance of this order and,
because the mandate has already issued, any further petition