In Glazing Health & Welfare Fund v. Lamek, No. 16-16155 (9th Cir.), a panel of the Ninth Circuit Court of Appeals (the “Panel”) affirmed the district court’s dismissal of an ERISA action brought by employee benefit trust funds (the “Trust Funds”), seeking unpaid contributions owed under the contracts governing the benefit plans that the Trust Funds managed for Accuracy Glass & Mirror Company.
The Trust Funds argued that, pursuant to those contracts, the unpaid contributions were trust assets over which the owners and officers of Accuracy exercised control and that the Trust Funds therefore could sue these individuals as fiduciaries to collect the contributions. The Panel held that the Trust Funds’ claim was foreclosed by Bos v. Bd. of Trustees (Bos I), 795 F.3d 1006 (9th Cir. 2015), which held that employers are not fiduciaries under ERISA as to unpaid contributions to ERISA benefit plans.
Dissenting, Judge Gleason wrote that she disagreed with the majority’s interpretation of Bos I and would find that outside of the bankruptcy context unpaid employer contributions to employee benefit plans may constitute plan assets when the ERISA plan document expressly defines them as such.