Enforcement of fee for employer's failure to supply information.

[Guest cdettmer]

The Multiemployer Plan that I work for is looking at enforcing a provision in the Trust Agreement that charges contributing employers a fee for failure to comply with information requests. The Trust Agreement is incorporated by reference in the CBA. My question is: Would such a provision be enforced as a 301 Taft-Hartley action for breach of a collective bargaining agreement, or could it be enforce under ERISA section 502 (a)(3) as equitable relief to enforce a plan term? I would really appreciate any input. Thanks in advance for your help.

[KJohnson]

I haven't researched it, but it sounds like you are seeking money damages and not equitable relief. Look at the Great West case that came out of the Supreme Court earlier this year--no money damages under 502(a)(3). However, if you are only trying to get the info, rather than the penalty then I would think this would work.

Again, this seems most analagous to a liquidated damages claim when all contributions have actually been paid. Although I haven't done all that much multi work lately, my recollection is that a number of courts have shot down 515 on this and only allowed a 301 action. You might want to look at these cases to see if anyone ever tried 502(a)(3) as an alternative to 515. Also, depending on the language of your agreement, could you actually treat this as an additional contibuiton obligation under 515? A bit of a strech, but who knows.

Unless you are worried about venue/jurisdicitonal issues on the 301 claim, why not just plead everything in the alternative?

[Guest cdettmer]

Thanks. I had written up the Legal Memo recommending enforcement under 301; however, my boss wanted me to look at 502(a)(3), as well. I didn't think we could enforce this as a form of "equitable relief", since it seems strictly monetary. Just wanted to confirm my reading. I looked at the Great West case, and it did confirm there are no money damages under 502(a)(3). I really appreciate your response, it was a great help.