08-27-13 case 1-90-cv-05722-rmb-thk document 1375 endorsed letter addressed to judge richard m....

7/27/2019 08-27-13 Case 1-90-cv-05722-RMB-THK Document 1375 ENDORSED LETTER addressed to Judge Richard M. Berma

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f 5 ) ~ ~ D \ V l ~rm~ AUG27 2013 lQJ

AT TO R N E Y S AT L AW

CHAMBERS OFRICHARD M. BERMAN

U.S.D.J.

[MO[MOORSAugust 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 SDNYDOCUl'vlEN'rELECTRO>J ICALLY FILED

DOC -f::

IDATE FILr: \: ~ /27/1.?' - _ .. _. .

1700 BroadwayNe w York, NY 10019T 212.765.2100F 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 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 whilealso representing a multiemployer association-here, the Contractors Association ofGreater 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 LaborManagement 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. ~
http:///reader/full/splvakllpton.comhttp:///reader/full/splvakllpton.com


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l[

A T T O R N ~ : Y SA T LA'''-'

Hon. Richard M. BermanUnited States District JudgeRe: United States v. District Council, et al., 90 Civ. 5722 (RMB)August 26, 2013Page 2

There is scholarship recommending that attorneys refrain from representing underERISA both a sRonsoring employer and its sp9nsored single empl9yer plan(s). See PaulM. Secunda, "Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rulesof Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries," 39J. 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 inall 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 Council

As 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.


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SPNAKLJP'T'()N LLPAT TO R N E Y S A T LA W

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. N L , , ~ l I . y / i l t :James M. Murphy

Enclosure: 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 Districto'f

New York 86 Chambers Street New York, NY 10007

Raymond G. McGuire, Esq. Kauff, McGuire & M a r ~ o l i sLLP 950 Third Avenue, 141 Floor New York, NY 10022


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Attorneys, Accountants, Consultants, and Review Officer to NYC & Vicinity District Council of Carpenters (NYCDC)& Subsidiaries

ATTORNEYS

I Name Address Appointed By Role Source of FundsI Paid to Such Firm or Individual

CORDO& 1100 STATE STREET IDelegate Body I

Political Lobbyist PAC FundCOMPANY, LLC SUITE 400 I

ALBANY, NY 12207 217 51st Avenue, Delegate Body Legal counsel fo r PAC FundSuite 316

I HENRYT. BERGERPAC Fund

Long Island City,NY 11101 i

Barbara 52 Third Street IDelegate Body Trial Committee NYCDCGeneral Deinhardt, Esq. I Brooklyn, NY Chairperson Fund

11231 Broach & Stulberg, NYCDCGeneral LLP

One Penn Plaza, Delegate Body Legal counsel fo rFund

Ne w York, NYSte.2016 Civil Service

Carpenters/Jacob10119 Javitis related

matters/P u blicsector grievance

Carol L Moran, Trial Committee NYCDCGeneral Esq Howard Beach, NY

159-31 78th Street Delegate BodyChairperson Fund

(Resigned 11414 effective 8/31/13) . F L Associates, LLC Delegate Body Compliance NYCDCGeneral

Josh Leicht PO Box 665North Salem, NY Officer Fund 10560

Santo 35 Kennedy Drive Trial Committee NYCDCGeneral Barravecchio, Esq.

Delegate BodyCentereach, NY Chairperson Fund 11720

Spivak Lipton LLP 1700 Broadway Delegate Body Legal counsel fo r NYCDCGeneral21st Floor general matters FundNY, NY 10019 and litigation,

arbitrations,

administrativeagencies and

i

related.111 Broadway, Arbitrations NYCDCGeneral

Virginia & Suite #1403 Delegate Body Iund

Ambinder, LLP I New York, NY10006 I

Professional Fees Vendors Page 1 of 3


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ACCOUNTANTS

Name Address Appointed By Role Source of FundsPaid to Such Firmor Individual

Calibre CPAGroup, PLLC

1850 K Street, NWSuite 1050Washington, DC20006

Delegate Body Audit CommitteeAccountant

NYCDCGeneralFund

Gould, Kobrick &

Schlapp3 Park Avenue,14th FloorNew York, NY10016-5902

Delegate Body Externa lAccountant

performs

audits/reviews

and prepare taxreturns

NYCDCGeneralFund

CONSULTANTS

Name Address Appointed By Role Source of FundsPaid to Such Firm

or Individual

RedEye, Inc. 1675 WhitehorseMercerville Rd.Suite 104Hamilton, NJ08619

Delegate Body IT Consultant-overall IT support

NYCDCGeneralFund

Standard DataCorp

26 Journal SquareJersey City, NJ07306

Delegate Body Business SystemProgramming &

Data Processing

NYCDCGeneralFund



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REVIEW OFFICER TEAM

Name Address Appointed By Role Source of FundsPaid to Such Firm

BOO

GuidepostSolutions, LLC

BOOP. O. Box 642743Pittsburgh, PA15264-2743415 MadisonAvenue, 11thFloorNew York, NY10017

Review Officer

Review Offi cer

Accountant fo rReview Offi ce r

Legal counsel andinvestigations fo rReview Officer

or IndividualNYCDCGeneralFund

NYCDCGeneralFund

Mintz Levin Cohn P. O. Box 4539 Review Officer Legal counsel fo r NYCDCGeneralFerris Glovsky & Boston, MA Review Officer FundPopeo 02212-4539The J. Mitchell 1037 Carroll Street Review Officer Senior Investigator NYCDCGeneralCompany, LLC Brooklyn, NY fo r Review Offi cer Fund

11225The Law office of 415 Madison US District Court Review Officer NYCDCGeneralDennis M. Walsh Avenue, 11th Fund

FloorNY, NY 10017

The Truxillo Firm, 265 Riverside Dr., Review Officer Legal counsel fo r NYCDCGeneralPLLC l\Io.6A Review Offi cer Fund

New York, NY10025

Timothy Thatcher 395 Hudson St Review Officer Investigator fo r NYCDCGeneralNY, NY10014 Review Offi cer Fund

William O'Flaherty 395 Hudson St Review Officer Investigator fo r NYCDCGeneralNY, NY 10014 Review Officer Fund


08-27-13 case 1-90-cv-05722-rmb-thk document 1375 endorsed letter addressed to judge richard m....

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