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AUG 27 2013 lQJ

ATTORNEYS AT LAW
CHAMBERS OF
RICHARD M. BERMAN
U.S.D.J.
[MO [MOORS
August 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 SDNY
DOCUl'vlEN'r
ELECTRO>J ICALLY FILED
DOC -f::
I DATE FILr: \: /27/1.?
'-_.. _..
1700 Broadway
New York, NY 10019
T 212.765.2100
F 212.765.8954
splvakllpton.com
I write on behalf of the New York City District Council of Carpenters (the "District
Council" or the "Union") as directed by Your Honor during the August 12, 2013 conference
and the August 14, 2013 Order (Doc. 1363). This letter addresses the issue of whether
there is an actual or potential conflict of interest with the same law firm representing as
sole counsel the District Council employee benefit funds (the "Funds") and a
multiemployer association whose member-employers are signatory contributors to the
Funds. I have also included with this letter as Exhibit A a schedule compiled by the
District Council showing the attorneys, accountants, investigators, and consultants
retained by the District Council. The schedule shows each vendor's name, address, who
appointed the person or firm, the role performed, and the source of funds paid to each
person 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 while
also representing a multiemployer association-here, the Contractors Association of
Greater New York ("CAGNY")-whose signatory member-employers make contributions
to the Funds on behalf of covered employers. Indeed, the arrangement is typical with
multiemployer funds under the Taft Hartley Law or Section 302(c)(5) of the Labor
Management Relations Act ("LMRA"), 29 U.S.C. 186(c)(5). My firm, while not counsel to
the Funds, is sole counselor co-counsel to over seventy multiemployer benefit funds while
simultaneously representing the sponsoring and namesake local, national, and
international unions that bargain the collective bargaining agreements that require the
signatory employers' contributions to the respective funds. That arrangement is the norm.
l[
AT LA'''-'
Hon. Richard M. Berman
United States District Judge
Re: United States v. District Council, et al., 90 Civ. 5722 (RMB)
August 26, 2013
Page 2
There is scholarship recommending that attorneys refrain from representing under
ERISA both a sRonsoring employer and its sp9nsored single empl9yer plan(s). See Paul
M. Secunda, "Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rules
of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries," 39
J. Marshall Law Review 721 (Spring 2006). Indeed, the leading Second Circuit opinion on
such 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 not
applicable to multiemployer Rlans under the Taft Hartley Act. That is because the
structural requirements under Section 302( c)(5) of the LMRA provide for the checks and
balances absent with single employer plans. One of these requirements is that
employees and employers must be "equally represented" in the administration of the
fund. 29 U.S.C. 186(c)(5)(B). This equal representation requirement and the further
requirement of neutral resolution of deadlocks between the employee (union) trustees and
the 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 in
all material respects a "me, too" agreement to the CBA between the District Council and
the 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 schedule
showing the attorneys, accountants, investigators, and consultants retained by the District
Council along with the requested detailed information of each person or firm.
SPNAKLJP'T'()NLLP
ATTORNEYS AT LAW
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.
James M. Murphy
Enclosure: Exhibit A (Attorneys, Accountants, Consultants, and Review Officer
to 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 District o'f New York
86 Chambers Street
New York, NY 10007
Raymond G. McGuire, Esq.
Kauff, McGuire & LLP
950 Third Avenue, 141 Floor
New York, NY 10022
Attorneys, Accountants, Consultants, and Review Officer to NYC &Vicinity
District Council of Carpenters (NYCDC) &Subsidiaries
ATTORNEYS
I
Name Address Appointed By Role Source of Funds
I
Paid to Such Firm
or Individual
CORDO& 1100 STATE STREET IDelegate Body
I
Political Lobbyist PAC Fund
COMPANY, LLC SUITE 400 I
ALBANY, NY
12207
217 51st Avenue, Delegate Body Legal counsel for PAC Fund
Suite 316
I HENRY T. BERGER
PAC Fund
Long Island City,
NY 11101
i
Barbara 52 Third Street IDelegate Body Trial Committee NYCDC General
Deinhardt, Esq. I Brooklyn, NY Chairperson Fund
11231
Broach & Stulberg, NYCDC General
LLP
One Penn Plaza, Delegate Body Legal counsel for
Fund
New York, NY
Ste.2016 Civil Service
Carpenters/Jacob
10119 Javitis related
matters/Pu blic
sector grievance
Carol L Moran, Trial Committee NYCDC General
Esq Howard Beach, NY
159-31 78th Street Delegate Body
Chairperson Fund
(Resigned 11414
effective 8/31/13)
. F JL Associates, LLC Delegate Body Compliance NYCDC General
Josh Leicht
PO Box 665
North Salem, NY Officer Fund
10560
Santo 35 Kennedy Drive Trial Committee NYCDC General
Barravecchio, Esq.
Delegate Body
Centereach, NY Chairperson Fund
11720
Spivak Lipton LLP 1700 Broadway Delegate Body Legal counsel for NYCDC General
21st Floor general matters Fund
NY, NY 10019 and litigation,
arbitrations,
administrative
agencies and
i
related.
111 Broadway, Arbitrations NYCDC General
Virginia & Suite #1403
Delegate Body
I
Fund
Ambinder, LLP
I New York, NY
10006
I
Professional Fees Vendors Page 1of 3
ACCOUNTANTS
Name Address Appointed By Role Source of Funds
Paid to Such Firm
or Individual
Calibre CPA
Group, PLLC
1850 K Street, NW
Suite 1050
Washington, DC
20006
Delegate Body Audit Committee
Accountant
NYCDC General
Fund
Gould, Kobrick &
Schlapp
3 Park Avenue,
14th Floor
New York, NY
10016-5902
Delegate Body External
Accountant
performs
audits/reviews
and prepare tax
returns
NYCDC General
Fund
CONSULTANTS
Name Address Appointed By Role Source of Funds
Paid to Such Firm
or Individual
RedEye, Inc. 1675 Whitehorse
Mercerville Rd.
Suite 104
Hamilton, NJ
08619
Delegate Body IT Consultant-
overall IT support
NYCDC General
Fund
Standard Data
Corp
26 Journal Square
Jersey City, NJ
07306
Delegate Body Business System
Programming &
Data Processing
NYCDC General
Fund
Professional Fees Vendors Page 2 of 3
REVIEW OFFICER TEAM
Name Address Appointed By Role Source of Funds
Paid to Such Firm
BOO
Guidepost
Solutions, LLC
BOO
P. O. Box 642743
Pittsburgh, PA
15264-2743
415 Madison
Avenue, 11th
Floor
New York, NY
10017
Review Officer
Review Offi cer
Accountant for
Review Offi ce r
Legal counsel and
investigations for
Review Officer
or Individual
NYCDC General
Fund
NYCDC General
Fund
Mintz Levin Cohn P. O. Box 4539 Review Officer Legal counsel for NYCDC General
Ferris Glovsky & Boston, MA Review Officer Fund
Popeo 02212-4539
The J. Mitchell 1037 Carroll Street Review Officer Senior Investigator NYCDC General
Company, LLC Brooklyn, NY for Review Officer Fund
11225
The Law office of 415 Madison US District Court Review Officer NYCDC General
Dennis M. Walsh Avenue, 11th Fund
Floor
NY, NY 10017
The Truxillo Firm, 265 Riverside Dr., Review Officer Legal counsel for NYCDC General
PLLC l\Io.6A Review Officer Fund
New York, NY
10025
Timothy Thatcher 395 Hudson St Review Officer Investigator for NYCDC General
NY, NY 10014 Review Officer Fund
William O'Flaherty 395 Hudson St Review Officer Investigator for NYCDC General
NY, NY 10014 Review Officer Fund
Professional Fees Vendors Page 3 of 3