New Bankruptcy Opinion: SHEET METAL WORKERS LOCAL 104 HEALTH CARE TRUST v. LEFCO, INC. – Dist. Court, ND California, 2016





SHEET METAL WORKERS LOCAL 104 HEALTH CARE TRUST, et al., Plaintiffs,

v.

LEFCO, INC., a California corporation, Defendant.

Case No. C15-5025 RS.

United States District Court, N.D. California.

February 1, 2016.

FIRST AMENDED JUDGMENT PURSUANT TO STIPULATION

RICHARD SEEBORG, District Judge.

IT IS HEREBY STIPULATED and AGREED by and between the parties hereto that this First Amended Judgment Pursuant to Stipulation (“First Amended Judgment” or “First Amended Stipulation”) shall be entered in the within action in favor of Plaintiffs Sheet Metal Workers Local 104 Health Care Trust, et al. (“Plaintiffs” or “Trust Funds”) and against Defendant Lefco, Inc., a California corporation (“Defendant”), as follows:

1. Defendant is signatory to and bound by the terms of a Collective Bargaining Agreement(s) (“Bargaining Agreement”) with the Plaintiff Union (“Union”). The Bargaining Agreement is still in full force and effect.

2. William Leffler (“Guarantor”) confirms that he is authorized to enter into this First Amended Stipulation on behalf of Defendant and confirms that he is personally guaranteeing the amounts due herein. Defendant/Guarantor specifically consent to the Court’s jurisdiction, as well as the use of a Magistrate Judge for all proceedings, including entry of judgment herein. Defendant/Guarantor further confirm that all successors in interest, assignees, and affiliated entities (including, but not limited to, parent or other controlling companies), and any companies with which Defendant joins or merges, if any, shall also be bound by the terms of this First Amended Stipulation as Guarantors. This shall include any additional entities in which Guarantor is an officer, owner or possesses any controlling ownership interest. All such entities shall specifically consent to the Court’s jurisdiction, the use of a Magistrate Judge for all proceedings, and all other terms herein, in writing, at the time of any assignment, affiliation or purchase.

3. Defendant is currently indebted to the Trust Funds as follows:

ORIGINAL STIPULATION
Original Stipulation Total (including conditionally-waived
liquidated damages of $35,198.86): $159,483.32
Total Principal Paid: (-$20,551.04)

Subtotal: $138,932.28

CONTRIBUTIONS
10/15 Variance: $14.38
11/15 Contributions: $67,312.27
20% Liquidated Damages on Late-Paid 11/15
Contributions: $13,462.45

Subtotal: $80,789.10

ATTORNEYS’ FEES AND COSTS
Additional Attorneys’ Fees (11/10/15-11/30/15): $819.00
Additional Costs (11/10/15-11/30/15): $0.00

Subtotal: $819.00

FIRST AMENDED STIPULATION TOTAL: $220,540.38

REQUIREMENTS UNDER THE TERMS OF THIS FIRST AMENDED STIPULATION

4. Notice requirements pursuant to the terms of this First Amended Stipulation are as follows:

(a) Notices to Defendant/Guarantor: William Leffler, Lefco, Inc., 1650 Las Plumas Avenue, Suite G, San Jose, Ca 95133; email: [email protected]

(b) Notices to Plaintiffs: Erica J. Russell, Saltzman & Johnson Law Corp., 44 Montgomery Street, #2110, San Francisco, CA 94104; email: [email protected], copy to [email protected]

5. The requirements pursuant to the terms of this First Amended Stipulation are as follows:

(a) Monthly Payments: Defendant/Guarantor shall conditionally pay the amount of $171,879.07, representing all of the above amounts, less liquidated damages in the amount of $48,661.31.

(1) Payments in the amount of $15,111.00 per month shall begin on January 22, 2015, and continue on or before the 22nd day of each month thereafter for a period of twelve (12) months. Plaintiffs may require that Defendant/Guarantor pay electronically by wire transfer or by cashier’s check.

(2) Defendant/Guarantor shall have the right to increase the monthly payments at any time and there is no penalty for prepayment.

(3) Payments shall be applied first to interest, at the rate of 10% per annum in accordance with the Bargaining Agreement and Trust Agreements. Interest shall begin to accrue on December 23, 2015.

(b) Contributions: For contributions due for hours worked by Defendant’s employees during the month of December 2015, Defendant shall remain current in reporting and payment of contributions due to Plaintiffs under the terms of the Collective Bargaining Agreement(s).

Beginning with contributions due for hours worked by Defendant’s employees during the month of January 2016, and for every month thereafter until this Judgment is satisfied, Defendant will both report and pay contributions on a weekly basis. Defendant’s weekly contributions shall be received by Plaintiffs by the Wednesday following the week during which hours were worked by Defendant’s employees. For example, contributions for hours worked on January 1, 2016 shall be received by Plaintiffs by January 6, 2016; contributions due for hours worked during the week of January 4, 2016 through January 8, 2016 shall be received by Plaintiffs by January 13, 2016.

(c) Job Report: Beginning with the month of January 2016, and for every month thereafter, Defendant shall fully disclose all jobs on which it is working by providing Plaintiffs with fully completed job reports on the form attached hereto as Exhibit A. Upon request by Plaintiffs, Defendant shall also provide Plaintiffs with copies of Certified Payroll Reports.

(d) Audit: Should the Trust Funds request an audit of Defendant’s payroll records pursuant to the requirements of the Bargaining Agreement and/or Trust Agreements, Defendant must contact the auditor within seven (7) days of receiving notice and schedule the audit as requested.

(1) In the event that amounts are found due to Plaintiffs as a result of the audit, Plaintiffs shall send a copy of the audit report, and written demand for payment to Defendant. In the event that the audit findings are not contested, payment in full shall be delivered to Erica J. Russell at the address provided above.

(2) In the event that Defendant disputes the audit findings, Defendant must provide the dispute in writing, with all supporting documentation, within ten (10) days of the date of the demand. Defendant shall be notified as to whether revisions will be made to the audit. If revisions are not made, payment will be immediately due. If revisions are made, payment in full of the revised amount shall be immediately due.

(3) If Defendant is unable to make payment in full, Defendant may submit a request to add the amounts found due to this First Amended Stipulation. If the First Amended Stipulation is so revised, Defendant shall execute the Second Amended Judgment or Second Amendment to Judgment within ten (10) days of receipt. Failure to execute the revised agreement shall constitute a default of the terms herein.

(4) Failure by Defendant to submit either payment in full or a request to add the amounts due to this Judgment within ten days of receipt shall constitute a default of the obligations under this agreement. All amounts found due as a result of the audit shall immediately become part of this Judgment.

(e) Fees: Defendant/Guarantor shall pay all additional attorneys’ fees and costs incurred through Satisfaction of Judgment, whether or not a default occurs.

6. In summary, Defendant/Guarantor shall deliver the following payments and documents to Plaintiffs, at the following locations, on or before the following delivery deadlines, until this First Amended Stipulation has been fully satisfied:

Required Submissions Delivery deadlines [1] Delivery locations

Stipulated payments in the 22nd day of each month Erica J. Russell
amount of $15,111.00 (1/22/16-12/22/16) Saltzman & Johnson Law Corp.
payable to Sheet Metal Workers 44 Montgomery Street, #2110
of Northern California Trust San Francisco, CA 94104
Funds

Current contribution 1/22/16 Erica J. Russell
payments (for 12/15) Saltzman & Johnson Law Corp.
payable to Sheet Metal Workers 44 Montgomery Street, #2110
of Northern California Trust San Francisco, CA 94104
Funds

Current contribution Contributions due on a Erica J. Russell
payments (for 1/16-11/16) weekly basis Saltzman & Johnson Law Corp.
payable to Sheet Metal Workers 44 Montgomery Street, #2110
of Northern California Trust (by the Wednesday San Francisco, CA 94104
Funds following the week
during which hours were
worked)

Current contribution reports 1/22/16 Erica J. Russell
(for 12/15) Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
San Francisco, CA 94104
or
[email protected]

(subject: “Lefco”)
and
Sheet Metal Workers Trust Funds
P.O. Box 45312
San Francisco, CA 94145

Current contribution reports Contributions due on a Erica J. Russell
(for 1/16-11/16) weekly basis Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
(by the Wednesday San Francisco, CA 94104
following the week or
during which hours were [email protected]
worked) (subject: “Lefco”)
and
Sheet Metal Workers Trust Funds
P.O. Box 45312
San Francisco, CA 94145

Completed job reports (form 22nd day of each month Erica J. Russell
attached as Exhibit A to (1/22/16-12/22/16) Saltzman & Johnson Law Corp.
Stipulation) (1/16-12/16) 44 Montgomery Street, #2110
and Certified Payroll Reports San Francisco, CA 94104
(if requested) or
[email protected]
(subject: “Lefco”)

7. Failure to comply with any of the above terms, including submitting a payment that does not clear the bank, shall constitute a default of the obligations under this First Amended Stipulation.

DEFAULTS UNDER THE TERMS OF THIS FIRST AMENDED STIPULATION

8. If a default occurs, Plaintiffs shall make a written demand to Defendant/Guarantor, to cure said default within seven (7) days of the date of the notice from Plaintiffs. In the event default is not cured within the required time frame, all amounts remaining due hereunder (after application of principal payments made, if any) shall be due and payable on demand by Plaintiffs. These amounts shall include any conditionally waived liquidated damages, additional (current) contributions/liquidated damages/interest, and additional attorney’s fees and costs incurred herein.

9. Any unpaid or late-paid contributions, together with 20% liquidated damages and 10% per annum interest, shall become part of this First Amended Judgment. Plaintiffs reserve all rights available to collect any contributions and related amounts not included herein. This includes, but is not limited to, any amounts due pursuant to employee timecards or paystubs, by audit, or other means. Should Defendant fail to submit a contribution report for any month, contributions shall be estimated pursuant to the Trust Funds’ policy. Defendant/Guarantor specifically waive the defense of the doctrine res judicata as to any such additional amounts determined as due.

10. A Writ of Execution may be obtained without further notice, in the amount of the unpaid balance plus any additional amounts due under the terms herein. Such Writ of Execution may be obtained solely upon declaration by a duly authorized representative of Plaintiffs setting forth the balance due as of the date of default.

MISCELLANEOUS PROVISIONS

11. The above requirements remain in full force and effect regardless of whether or not Defendant has ongoing work, whether Defendant’s account with the Trust Funds is active, or whether Defendant is signatory to a Collective Bargaining Agreement with the Union. If, for any reason, Defendant has no work to report during a given month, Defendant shall submit the job report form (Exhibit A attached hereto) indicating that there are no current jobs. If Defendant has no contributions to report, Defendant shall submit the applicable contribution report stating “no employees.”

12. Payments made by joint check shall be endorsed on behalf of Defendant prior to submission, and may be applied toward Defendant’s monthly stipulated payment, provided that the issuer of the joint check is not requesting a release in exchange for the payment. Joint checks for which a release is requested may not be applied toward Defendant’s monthly stipulated payment, but shall be deducted from the total balance owed under this First Amended Stipulation, provided the payment is for contributions included in this First Amended Stipulation.

13. Prior to the last payment pursuant to this First Amended Stipulation, Plaintiffs shall advise Defendant/Guarantor as to the final amount due, including additional interest, any current contributions and related amounts, and all additional attorneys’ fees and costs incurred by Plaintiffs, whether or not Defendant defaults herein. Any additional amounts due shall be paid in full with the final stipulated payment due on December 22, 2016.

14. The conditional waiver of liquidated damages shall be presented to the Board of Trustees for consideration only after all amounts due under the terms of this First Amended Stipulation are paid in full, and Defendant’s account is otherwise current. If Defendant has fully complied with the terms of this First Amended Stipulation without default(s), the waiver shall be granted. If the waiver is granted, a Satisfaction of Judgment will be filed with the Court once all payments have cleared the bank. If the waiver is not granted, the liquidated damages will be immediately due.

15. Defendant/Guarantor waive any notice of Entry of Judgment or of any Request for a Writ of Execution, and expressly waive all rights to stay of execution and appeal.

16. Any failure on the part of Plaintiffs to take any action as provided herein in the event of any breach of the provisions of this First Amended Stipulation shall not be deemed a waiver of any subsequent breach.

17. The parties agree that any payments made pursuant to the terms of this Judgment shall be deemed to have been made in the ordinary course of business as provided under 11 U.S.C. Section 547(c)(2) and shall not be claimed by Defendant/Guarantor as a preference under 11 U.S.C. Section 547 or otherwise.

18. Should any provisions of this First Amended Stipulation be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term, or provisions shall be deemed not to be part of this First Amended Stipulation.

19. This First Amended Stipulation is limited to the agreement between the parties with respect to the unpaid and delinquent contributions and related sums enumerated herein, owed by Defendant to Plaintiffs. This First Amended Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendant acknowledges that Plaintiffs expressly reserve their right to pursue withdrawal liability claims, if any, against Defendant and all of its control group members, as provided by Plaintiffs’ Plan documents, Trust Agreements incorporated into their Bargaining Agreements, and applicable laws and regulations.

20. This First Amended Stipulation contains all of the terms agreed to by the parties and no other agreements have been made. Any changes to this First Amended Stipulation shall be effective only if made in writing and signed by all parties hereto.

21. This First Amended Stipulation may be executed in any number of counterparts and by facsimile, each of which shall be deemed an original and all of which shall constitute the same instrument.

22. Defendant/Guarantor represent and warrant that they have had the opportunity to be or have been represented by counsel of their own choosing in connection with entering this First Amended Stipulation under the terms and conditions set forth herein, that they have read this First Amended Stipulation with care and are fully aware of and represent that they enter into this First Amended Stipulation voluntarily and without duress.

23. The parties agree that the Court shall retain jurisdiction of this matter until this First Amended Judgment is satisfied.

DATED: January 5, 2016 LEFCO, INC.
By: ____/S/______
William Leffler
CEO of Defendant

DATED: January 5, 2016 WILLIAM LEFFLER

By: ____/S/_______
William Leffler, individually, as Guarantor

DATED: January 25, 2016 SALTZMAN & JOHNSON LAW
CORPORATION

By: _____/S/_______
Erica J. Russell
Attorneys for Sheet Metal Workers Local 104
Health Care Trust, et al.

DATED: January 12, 2016 SHEET METAL WORKERS LOCAL 104
HEALTH CARE TRUST, ET AL.

By: ____/S/________
Sean O’Donoghue, Chairman of Plaintiff Sheet
Metal Workers Pension Trust of Northern
California on behalf of all Plaintiffs

DATED: January 12, 2016 SHEET METAL WORKERS LOCAL 104
HEALTH CARE TRUST, ET AL.

By:____/S/_________
Rick Werner, Co-Chairman of Plaintiff Sheet
Metal Workers Pension Trust of Northern
California on behalf of all Plaintiffs

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall retain jurisdiction over this matter.

EXHIBIT A

JOB REPORT FORM

Updated Job Reports shall be delivered to Saltzman & Johnson Law Corporation at 44 Montgomery Street, Suite 2110, San Francisco, California 94104 or to [email protected] by the 22nd day of each month.

Employer: LEFCO, INC.

Report for the month of _______________, 20__Submitted by: ______________________
Project Name: Public or
Private?
(Circle one)

Project Address:

General Contractor:

General Contractor
Address:

General Contractor Project Manager Name:
Telephone #:

Project Manager Project Manager email
Telephone #: address:

Contract #: Contract Date:

Total Contract Value:

Work Start Date: Work Completion Date:

Project Bond #: Surety:

Project Name: Public or
Private?
(Circle one)

Project Address:

General Contractor:

General Contractor
Address:

General Contractor Project Manager Name:
Telephone #:

Project Manager Project Manager email
Telephone #: address:

Contract #: Contract Date:

Total Contract Value:

Work Start Date: Work Completion Date:

Project Bond #: Surety:

****Attach additional sheets as necessary***

[1] If the First Amended Stipulation has not been fully satisfied by 12/22/16, all submission requirements shall continue until all amounts have been paid and a Satisfaction of Judgment has been filed with the Court.

Save trees – read court opinions online on Google Scholar.

300x600

Leave a Reply