Trustees of the Ohio Bricklayers Health & Welfare Fund v. VIP Restoration, Inc., 1:17-cv-00437

Plaintiffs are trustees of multi-employer benefit plans (Health & Welfare and multiple Pension Funds) established by CBAs with VIP Restoration, Inc. (VIP).
Rick Semersky Jr. is VIP’s president, owner, sole check-signer, and admitted ERISA fiduciary; VIP failed to timely remit required contributions under the CBAs.
Audits of VIP (Jan. 1, 2012–Sept. 30, 2016) found delinquent contributions, interest, and liquidated damages; VIP made transfers (~$2.436 million) to businesses owned by Semersky instead of paying the Funds.
Plaintiffs sued VIP and Semersky under the CBAs and ERISA (breach of fiduciary duty and prohibited transactions). VIP entered receivership and the case proceeded against Semersky alone.
Plaintiffs moved for summary judgment on Counts II (breach of fiduciary duty) and III (prohibited transactions); Semersky did not oppose the motion. The Court granted summary judgment for Plaintiffs and allowed leave to file a fee motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Semersky was an ERISA fiduciary over plan assets	Semersky controlled VIP finances and unpaid contributions were plan assets under plan trust agreements	Semersky admitted fiduciary status in answer (no substantive opposition)	Court: Semersky was a fiduciary under 29 U.S.C. §1002(21)(A) and plan language made unpaid contributions plan assets
Whether Semersky breached fiduciary duties by diverting plan assets	Semersky used VIP funds for his other businesses and personal benefits while contributions were unpaid	No meaningful opposition; facts supported diversion	Court: Breach proven; Semersky personally liable under 29 U.S.C. §1109
Whether transfers to Semersky/VIP-related parties were prohibited transactions	Transfers of plan assets to a party in interest (Semersky, VIP) are barred by ERISA §1106	Semersky admitted the allegation in his answer (limited denials on some specifics)	Court: Transactions were prohibited; summary judgment for Plaintiffs on Count III
Damages and fees — amount owed and entitlement to attorney’s fees	Audit reports quantify delinquent contributions, interest, and liquidated damages; ERISA/CBAs and §1132(g)(2) mandate fees	Defendant failed to rebut audit calculations	Court: Awarded specified delinquent sums per audits and held Plaintiffs entitled to reasonable attorney’s fees (motion for fees to follow)

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standards)
Anderson v. Liberty Lobby, 477 U.S. 242 (materiality and sufficiency of evidence at summary judgment)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (viewing evidence in light most favorable to nonmovant)
Briscoe v. Preferred Health Plan, Inc., 578 F.3d 481 (6th Cir.) (ERISA fiduciary duty standard)
Chao v. Hall Holding Co., 285 F.3d 415 (6th Cir.) (definition and scope of "party in interest" under ERISA)