CBO Officials Try Again for Dismissal of International Painters' Suit
July 20, 2012

by Penny Stacey, pstacey@glass.com

Two CBO Glass officials named in a lawsuit filed by filed by the International Painters and Allied Trades Industry Pension Fund again are trying to obtain a dismissal of the case against them, despite a previous denial. Previously, Gilbert DiMaio, president and CEO, and Paul F. Hogan, principal, had motioned for dismissal due to lack of jurisdiction. That request was denied by the U.S. District Court for the District of Maryland, and the two now allege that the case should be dismissed for "failure to state a claim upon which relief can be granted."

The suit, filed this spring, alleges that CBO Glass, DiMaio and Hogan "failed to pay amounts due under the Labor Contracts, Trust Agreements and Plan." Both DiMaio and Hogan are charged specifically with claims of breach of fiduciary duty and prohibited transaction.

However, the two claim that both claims may only be brought against a "fiduciary" as defined by the Employment Retirement Income Security Act (ERISA). "Because the plaintiffs have not alleged sufficiently and, as a matter of fact, cannot establish that the individual defendants are fiduciaries under ERISA, their claims against the individual defendants must fail," reads the motion, filed on behalf of both DiMaio and Hogan.

They further allege that the ERISA defines a fiduciary as someone who "exercises discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management for disposition of its assets; renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so; or has any discretionary authority or discretionary responsibility in the administration of such plan."

DiMaio and Hogan argue that the complaint made against them does not identify them as completing any of these functions. "They allege no facts that support their legal conclusion that the individual defendants are fiduciaries, or that the individual defendants have any authority and control to manage or dispose of plan assets," reads the motion. "Instead, the plaintiffs merely allege that the individual defendants meet the statutory definition of 'fiduciary.'"

The original complaint alleged that in November 2011 Lawrence Gildersleve, vice president and CFO of CBO Glass, signed a promissory note on behalf of CBO and "agreed that the company owed the fund $319,650.42 in contributions, interest and liquidated damages for the period of May 2011 through August 2011." The Fund alleges that CBO defaulted on the note "by failing to submit the settlement installments and by failing to submit remittance reports and contributions for the period of December 2011 through February 2012."

At press time, the court had not yet ruled on the motion to dismiss.

This story is an original story by USGlass magazine/USGNN™. Subscribe to USGlass magazine.
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