*2 Industrial, Technical, ments with ANDERSON, Before BIRCH and Union, Employees Professional AFL-CIO BARKETT, Judges. Circuit (“ITPE”), H R obligated & Services is funds to the ITPE Pension contribute BIRCH, Judge: Circuit (“the Fund”) security Fund for the future and Income Employee The Retirement employees. of its unionized (“ERISA”), 18 Security Act U.S.C.A. H & R failed to make these Services seq., imposes 1001 et fiduciary § strict contributions. On 18 November persons duties on certain with control funds, among ITPE Pension employee over assets of covered benefit filed suit in the Northern District of Ala- un- plans. provisions, Under these when recovery delinquency. bama for the of this paid plan to a are identified summary The district court judg- entered plan, as immediate assets of a officers ment for the Fund on 30 March nonpaying corporation control assessing damages the amount of authority contribu- unpaid over $123,767.27against H R & Services. The may tions be held liable for the amount of injunction permanent court also entered a nonpayment. & required H R Services to remit in a to determine appeal requires This us timely fashion the future contributions ow- may imputed whether officers ing under its with the Fund. and, consequently, duties Even after H personally proceeding, hable for & R Ser- governing agreement payment when the between vices failed to remit to the Fund. uncollected, corporation judgment not The and the does amount went state, interpreted permanent injunction but could be and the terms of the state, that such contributions are assets of went unheeded. Faced with this contin- plan. intransigence, We find that either clear con- ued the Fund filed suit di- clear, rectly against Hope Roger Citing tractual shared intent of Hall. or parties necessary prerequisite Employee Security is a Retirement Income (“ERISA”), imposing fiduciary responsibility argues offi- Act now on Fund cers who otherwise would be unsure of Hall are in violation of fiduciary duty their responsibilities places increased statute on fund, ably “plan, program the assets of a ... main with control over persons 1002(21)(A). tained an employee plan. See U.S.C. organization provides retirement [that] appeal on which this centers dispute 1002(2)(A). employees.” income contributions to is whether persons, including Certain those who “ex *3 “assets,” legally speaking, Plan of the are any authority respect ercise!] or control Plan, Roger Hope and Hall the such that ing management disposition or of [fund] of the Plan. could be considered fiduciaries assets,” bear fiduciary responsibility to an The district court limited its consideration 1002(21)(A). § ERISA fund. Id. The re summary judgment of the motion to that sponsibility to attaching fiduciary status found, legal issue. The district court fo- “ has been highest described as ‘the known cusing exclusively on the ” law.’ to v. Nationsbank Trust Herman Agreement, unpaid employer contri- (11th 1354, (Georgia), Co. 126 F.3d 1361 are not of the ITPE Fund butions assets Cir.1997) Bierwirth, (quoting Donovan v. 1002(21)(A), § the meaning within of and (2d Cir.1982)). 263, 680 F.2d 272 n. 8 If a granted summary judgment on basis person breaches their duties to ITPE Hall. filed a fund, an she per ERISA he or “shall be timely appeal, notice of sonally good liable to make such [fund] to resulting losses from each such II. DISCUSSION 1109(a). breach.” 29 U.S.C. grant review of a district court’s of Our dispute The central item of in this novo, summary judgment applying is de unpaid employer case is whether contribu employed the same standards the dis tions are ITPE assets of the 1228, Holley, trict court. Dahl v. 312 F.3d conceivably that the Halls could (11th Cir.2002). Thus, 1233 we will not personally liable for breach of their fidu unless, viewing affirm the evidence in the ciary duty respect to those assets. light non-moving most favorable to give The text of does not a ERISA rele party, genuine there is no issue of material vant definition for what constitutes “as requires jury which fact a determination of rule, proper set” of an fund. The ERISA Gary City the merits. v. Warner Rob of emp caselaw, developed by that unpaid (11th ins, Ga., 1334, 311 F.3d 1337 Cir. loyer1 contributions are not assets of 2002). fund unless the between the parties agree that the Fund is gov- employer specifically fund and the ERISA, See, indisput- e.g., erned because it is declares otherwise.2 regulation requirement president, By president's 1. in without role as not particularized agreement, unpaid employ- aof ERISA-plan fiduciary, his role as an and that ee contributions to ERISA funds are personal liability no could attach therefore (2002). those 29 C.F.R. 2510.3-102 funds. way 714. under ERISA. Id. at Another regulation No such exists for contri- making point say that is to the assets over butions, which are at in this case. issue president were which the had control not ("Indeed, plan assets. See id. until monies 2134, In Local United Mine Union Workers paid by corporation the [ERISA] were Fuel, Inc., America v. Powhatan 828 F.2d plan plan there were no assets in the (11th Cir.1987), president of a trou 710 ERISA.”). However, provisions Pow corporation opted spend corporate bled proposition hatan not stand for the does pay employee assets to salaries and to other are never as afloat, tty keep corporation wise to the of an until those contribu sets ERISA plan. We decided in detriment of plan. actually paid Our case that decisions were made in tions are into 1014 “ac- question. of the item To Servs. Fund session3 Med. & Clinical
NYSA-ILA 194, or quire” possession means “to come into Capo, F.Supp.2d rel. 60 v. Catucci ex of; own,” (S.D.N.Y.1999) cases); ownership get as one’s Random (collecting 200-01 Co., Mining Dictionary English 807 House Lan- Paybra Connors v. (2d ed.1987) (S.D.W.V.1992); added), guage (emphasis 1245-46 F.Supp. of; gain possession get or control Galgay Gangloff, F.Supp. “[t]o (7th (M.D.Pa.1987). obtain,” Dictionary 24 The effect of Black’s Law ed.1999). Thus, which that makes contributions assets of even has formally to the corporation yet that “when a been transferred fund is control, Plan delinquent physical the fund Plan’s but which the its priority corpora on the or controls in a contractual sense has sufficient owns *4 “ac- Agreement, available resources that individuals virtue of the has been tion’s by con the Plan. 1.02 is not controlling corporate quired” resources are Section Catucci, trolling fund assets.” of the Plan’s treatment of un- conclusive F.Supp.2d places paid employer at 201. This effect contributions. “heavy but responsibilities employers, on argues Agreement The Fund that only employer to the extent that ... an by language unpaid its that establishes
freely in accepts responsibilities those col employer are contributions assets of bargaining.” lective Id. points Fund. It the “Estab- Agree- Hall argue and that lishment of Fund” section of Agreement affirmatively this case evi- ment that states: unpaid employer dences the fact that con- the ITPE Pension Fund ... shall be They tributions are not Fund assets. comprised of all monies received and point to the definitions section of the by employer con- held Trustees from Trust, Agreement and Declaration of ..., tributions all income from invest- which that “[t]he states terms Tension Trustees, by ments made and held property Fund’ or ‘Fund’ mean all of shall property or other received and every acquired kind held or under the by receivable for the Trustees R2-44, provisions Ex. of this instrument.” purposes the uses and set forth in this added). 2, § Ex. A (emphasis at 1.02 Ac- Agreement. contributions, Halls, cording to the R2-44, (emphasis § Ex. Ex. A at 2.01 they unpaid, yet
because are are not added). argument The that because Fund, “held” “acquired” by receivable, unpaid contributions are therefore of cannot be assets the fund. property because is receivable is Fund, We cannot the full accept property extent of the of the contributions § Halls’ interpretation properly of 1.02. The idea of are considered assets of the “acquiring” property pos- is not limited to Fund.4 2.01, general decision in Powhatan concerned 4. The of section if we were to rule, unpaid employer accept interpretation, contributions are the Fund’s makes re- plan, not we property assets of had no ceivable an asset of the Fund. We occasion to consider in that case the effect of want to make clear the distinction between which, contrary plan language, as we have property being receivable an asset of the supra, exception stated is the to the rule. being and receivables assets of the fund. An only which makes receivables as- may provide predicate holding say, passes physical
3. That is
sets
for
a
whatever
for
possession
age
pa-
personally responsible
largely
of funds in this
officer
for
perless
currency.
nonpayment
transfers of
of contributions. A receivable is
§ 2.01 does not
those with
newly
The Halls assert
control over those
clari-
make
A person
itself
fied assets.
should not be attrib-
view,
In the Halls’
assets of the Fund.
uted
status under ERISA and
are made
types
property
three distinct
held accountable
performance
:(1)
by
of the Fund
virtue of
2.01
responsibilities
strict
required of him in
by
received and held
the Trust-
“all monies
role,
if he
is not
aware of his
contributions”; (2) “all
ees from
as a fiduciary:
status
made
income from investments
and held
If ERISA did not limit the definition of
(3)
Trustees,”
by
“any
prop-
other
knowledge
fiduciaries
those with
by the
erty received or held or receivable
discretion,
their authority and
then per-
purposes
Trustees for the uses and
set
sons
subject
or entities could become
R2-44,
Agreement”.
in this
Ex.
forth
fiduciary liability without notice.
Such
added).
(emphasis
Ex. A at
2.01
unfair,
result
only
would not
it
but
stress “other
which
property,”
Halls
would
purpose
also disserve a core
any type
deem to mean
ERISA,
system
which is to create a
than
which are
whereby accountable
mo-
fiduciaries are
category,
covered
the first
and invest-
accountability
tivated
their
to protect
income,
which is covered
the sec-
ment
*5
participants
the interests of
in ERISA
Thus, only
category.
ond
“received and
plans.
held”
contributions are assets of
Herman,
Both of interpretations ambiguous language render contractual § 2.01 it are credible. We conclude that clear, lan unfair and without clear contractual apply princi would be for us to now guage impute fiduciary it is to ples improper of contract construction to decide that responsibility. pur such contributions are indeed assets and Preservation of the liability personal appropriate poses require for of ERISA does not that we legal payment upon fiduciary a contractual or claim for which to declare the officer a and, status, due, Plan, money of the without no the in contrast to the actual mon- basis on which to hold him liable under ey assuming due. Even that the receivable is ERISA. plan, corporate an asset of a officer would generally any authority not exercise con- property When receivable is made an asset of disposition trol over the of that asset—the fund, funds themselves become legal payment. may claim for The officer at moment assets of the fund become had have control over the on which that corporate due. The officer who uses these funds satisfaction, claim would draw for but those payment purposes than of the funds for other and, conceptually funds are distinct from the claim plan fund exercises control over assets See, Klemick, therefore, e.g., Chapman v. 3 F.3d personally itself. can be held liable (11th Cir.1993). any fiduciary responsibility Without breach of his assets, predicate no ERISA. control over there is BARKETT, Judge, specially Circuit stringent officers with ambush concurring: liability personal fiduciary duties contractual based on convoluted Agree- that the and inter- parse a court to requires and Declaration of Trust is suffi- ment pret. ciently ambiguous require to reversal of by the summary judgment awarded have us evidence We do not before provision court. The relevant district parties as to regarding the intent of specifically states that the this instrument 2.01, limited the district court’s given paid employer Fund includes solely summary judgment based ruling on It then adds to and investment income. Agreement. language of on the “any enumeration re- this Therefore, we must remand to allow by the Trust- ceived and held or receivable discovery supervise to district court purposes set forth in ees for the uses and in- necessary discern the argument Agreement.” If 2.01. parties tent of the as likelihood, all sim- quoted In clause court finds that this section was district ply proposi- establishes the unremarkable make parties intended tion that the Fund’s assets include all unpaid employer contributions of property specifically designated not in the summary judgment then for the clauses, subject preceding but nonetheless If appropriate. Halls there is no is not to the trustees’ control. such form of One intent, then the district court should clear receivables, which property would be summary judgment for the Halls. reinstate money due. say legal payment claims for An employee pension plan identifies type receivables as asset does *6 III. CONCLUSION thereby fiduciary obligations create on the facially is When contractual part persons with control over the actu- clear, ambiguous by and not anchored the obligors might satisfy al funds out of which parties, then shared intent of the Therefore, if outstanding claims. responsibility predicated on Agreement only the here reflects an intent improper. We find that is designate type to receivables of Fund as susceptible asset, is of two Agreement the Fund personally the Halls cannot be liable by readings, nonpayment and that we cannot reference as fiduciaries for the of delin- quent employer only Agreement’s language to the deter- contributions. unpaid employer mine contribu- whether out, however, Judge points As Birch the the If ambi- tions are assets of Fund. this Agreement simply refers not to “receiv- guity through cannot be resolved reference ables,” art, a well-worn term of to but parties, to the clear intent of the then the receivable,” “property received and held or district court was correct to enter sum- gives a less familiar construction that me Therefore, mary judgment for the Halls. enough pause agree to that remand is grant we the district court’s VACATE appropriate. pro- If the Fund able REMAND summary judgment and for the showing parties, duce evidence discovery argu- purpose allowing Services, employer which included H & R parties’ ment of intent as to 2.01 of by intended these words to define Agreement, and for the resolution of H corporate holdings & R’s own as Fund principles explained this case under the in up any owing “assets” amount due and contributions, in opinion. this then the have the believe it at possible Fund’s beneficiaries should bene least bargain. fit Medi of.this See NYSA-ILA represents before us one such Catucci, Fund v. 60 effort, cal & Clinical Servs. and I concur in therefore the deci- (S.D.N.Y.1999). 194, 201 In F.Supp.2d sion to reverse remand for the district instance, fiduciary right this status would court to make determination. ly to the Halls inasmuch as extend corporate
exercised control over funds ANDERSON, Judge, Circuit dissenting: satisfy outstanding available to contribu respectfully I I agree dissent. with the so, obligations. tion Even the Halls would adopted majority test opinion. automatically personally liable for However, I do not applica- any non-payment. and all See Local Union tion of that test in this case. I do not 134, 2 United Mine Workers Amer believe that the language of the ERISA Fuel, ica v. Powhatan F.2d Plan is ambiguous or that a remand is (11th Cir.1987) (shielding company presi appropriate. personal liability, despite dent from his fiduciary, by holding status as ERISA Section 2.01 of the ERISA Plan de- he acted his rather than fidu scribes the assets of the Fund as follows: ciary capacity when he made the “business all “[a] monies received and by held pay decision” to other than expenses em Trustees from contribu- ployees’ health “in premiums insurance pursuant tions to collective bargaining attempt keep fi corporation from agreement, all income from [b] invest- nancial collapse”). ments made and the trustees or that,
I would also clarify whatever the otherwise, [c] or re- given intent effect - phrase “property ceived and held or receivable receivable,” received and held or Trustees for the purposes uses and set Agreement of course does not accord fidu- forth in Agreement and Declaration ciary status to persons who never assented of Trust.” bargaining agreements to the collective R2-44, (division Ex. Ex. A at 2.01 into underlying the opera- Fund’s creation and added). a, b, categories c With re- tion. Yet believe we must allow for the spect I respect- possibility that employer employee *7 fully language submit that the “all monies representatives did intend received unambiguously and held” includes status to attach in some circumstances to only employer contributions which have with officers control over the corporate actually paid been over to the Fund and employers delinquent accounts of in their are thus “received and held” the Fund. obligations. contribution To assume as a I majority do not with the that the matter of law that no such language “any other received negotiated ignores could be unique — and held or receivable”-—introduces ambi- relationship employers between and the To guity. hold that this in cate- pension funds to which contribute for (c) gory ambiguity respect introduces with the benefit of their employees. Because to whether or not employers are so contri- guarantors often the of assets, incomes, butions are Plan expected easy majority retirement it as (a) does, why ignores category understand fact that employ- unions and other organizations ee might wish to devise a deals where- (c) holding corporate category forceful means of offi- as this deals with payments. cers to account for missed I “any property,” other than from invest- and income SIEBERT, Petitioner-Appellant, Daniel Furthermore, I submit ments. of the term “receiv- reading only plausible v. claim for legal a is as contractual able” Commissioner, CAMPBELL, Ala- Donal I not believe it money of due. do payment Corrections, Department bama em- construe that term to plausible Warden, Jones, H. William Charlie E. actually due in the hands money brace Attorney Pryor, Jr., General If that were the account debtor. Alabama, Respondents- State case, then, any run-of-the-mill contractual Appellees. against person would convert claim fiduciary. into a the claim was held whom Siebert, Petitioner-Appellant, Daniel words, owing the debtor the Fund In other v. receivable would be converted any account Commissioner, Campbell, Ala- Donal fiduciary.1 example, For if the into a Corrections, Department bama a reimburse- deposit Fund were entitled to Respondent-Appellee. utility utility company, ment from its into a company would be converted fiducia- 02-13685, Nos. 02-15890. that the ry. respectfully submit “receiv- Appeals, United States Court term cannot be stretched able” Circuit. Eleventh meaning. June reasons, I foregoing For the conclude the Fund has mere contractual for the con against claim the Halls
tributions, thus the contribu are not of the ERISA Plan.
tions (11th Klemick,
Chapman v.
Cir.1993); Local Union UMW of Fuel, Inc., 828 F.2d
America Powhatan (1987).2
710, 714 *8 employee representatives 1. This is because the account debtor would (i.e., money fiduciary control in its own hands did for a status to attach intend paid discharge before it is over to the ac to officers with control some circumstances count), 1002(21)(A)(i) employers and under 29 U.S.C. de- over the accounts of person respect "a obligations.” is a with to a linquent in their contribution (i) any authority Barkett, to the extent he exercises Opinion Judge specially concur- respecting management disposi or control ring, I do not so hold here. at 1016-1017. tion its assets.” is that the All I would hold here be construed to em- the instant Plan cannot cannot, ambiguous possibility, and is not Judge that we brace that Barkett law, possibility regard. as a matter of exclude "the