A multiemployer plan that prevails in an action to collect delinquent contributions or withdrawal liability is statutorily entitled to recover reasonable attorneys’ fees and costs “of the action.”  In International Painters & Allied Trades Industry Pension Fund v. Florida Glass of Tampa Bay, Inc., No. 23-cv-00045, 2025 WL 712965 (D. Md. Mar. 5, 2025), the court held that the statute permits a plan to recover not just the fees and costs incurred in the collection action, but also those incurred to defend a related action.

Florida Glass of Tampa Bay, Inc. was a contributing employer to the International Painters and Allied Trades Industry Pension Fund.  Following Florida Glass’s complete withdrawal from the Fund, the Fund filed suit to collect over $1.5 million in withdrawal liability from Florida Glass and its controlled group members.  While that action was pending, the controlled group members sued the Fund and its attorneys in Florida state court, alleging that the Fund’s collection action constituted defamation and abuse of process under Florida law.  After the Florida action was dismissed with prejudice, the court in the collection action granted the Fund’s motion for summary judgment and awarded it withdrawal liability, interest, and liquidated damages.  The court also granted the Fund’s motion for attorneys’ fees and costs, which included the amounts incurred in both the collection and Florida actions.  The court held that the phrase “of the action” in 29 U.S.C. § 1132(g)(2)(D) meant all fees and costs that were or should have been incurred in the collection action.  The court reasoned that defendants should have raised their claims as counterclaims in the collection action rather than commencing a parallel action.  The court indicated that its ruling was based in part on the need to effectuate the statutory goal of preserving fund assets, as defendants’ actions unnecessarily multiplied the Fund’s litigation expenses by requiring it to litigate two separate actions.

Proskauer’s Perspective

The decision is notable because it interprets ERISA’s mandatory fee-shifting provision for collection actions to encompass fees incurred in parallel actions where fees would not otherwise be recoverable or where the award is not mandatory.  Plans and employers should consider whether the decision lays the groundwork for a mandatory award of fees to a plan that, in addition to successfully pursuing an employer for delinquent contributions or withdrawal liability, prevails in arbitration by the employer to challenge the amount of the liability.

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Photo of Neil V. Shah Neil V. Shah

Neil V. Shah is a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

He is the lead attorney representing the firm’s Taft-Hartley plan clients in withdrawal liability and delinquent contributions matters.  As part of his practice…

Neil V. Shah is a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

He is the lead attorney representing the firm’s Taft-Hartley plan clients in withdrawal liability and delinquent contributions matters.  As part of his practice, Neil pursues employers, their owners and officers, and affiliated companies to collect the amounts owed to these plans using a variety of complex legal theories, and has secured several precedential opinions and multi-million-dollar judgments in their favor.  Neil also defends these plans in arbitrations challenging the methods and assumptions used to calculate withdrawal liability, which has yielded a number of notable arbitration decisions and court opinions.  Owing to his experience in this area, Neil is a co-editor of the withdrawal liability chapter of the premier employee benefits treatise, Employee Benefits Law, published by Bloomberg, and regularly presents on the topic before practitioners and consultants that work in the area, such as at meetings of the Conference of Consulting Actuaries and the Employee Benefits Section of ABA’s Section of Labor & Employment Law.

In addition to his Taft-Hartley plan experience, Neil has represented several plan sponsors and fiduciaries in ERISA class actions alleging that the plan’s investments or other practices are imprudent, such as excessive fee and stock drop cases.

Prior to joining Proskauer, Neil was an associate at a large regional firm, where he litigated individual and class actions involving challenges to insurer claims adjudication procedures under ERISA, fraud recoveries against healthcare providers, and claims for benefits.

Neil has authored several articles, including those published in the New Jersey Law Journal and Bloomberg National Affairs.  He is also a frequent contributor to Proskauer’s Employee Benefits & Executive Compensation Blog.

Photo of Anastasia Gellman Anastasia Gellman

Stacy Gellman is an attorney in the Labor & Employment Department, where she focuses on ERISA litigation. Her experience includes representing trustees of multiemployer plans in federal court ERISA claims related to breach of fiduciary duty, withdrawal liability, and delinquent contributions.

Prior to…

Stacy Gellman is an attorney in the Labor & Employment Department, where she focuses on ERISA litigation. Her experience includes representing trustees of multiemployer plans in federal court ERISA claims related to breach of fiduciary duty, withdrawal liability, and delinquent contributions.

Prior to joining Proskauer, Stacy was an associate at a large regional firm, where she gained experience defending state and federal litigations at both the trial and appellate level, and a law clerk in New Jersey’s Appellate Division.