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 6474 - Collecting Employer Contributions: The ERISA Litigation Guide

About the Author

Travis J. Ketterman is a partner with the Chicago law firm of Whitfield McGann & Ketterman, where his practice is devoted to representing labor organizations and multiemployer fringe benefit trust funds in federal court litigation. He also serves as an adjunct professor for the Loyola University Chicago School of Law, where he teaches appellate advocacy.

Sample chapter of Collecting Employer Contributions: The ERISA Litigation Guide.

Table of Contents
About the Author

I. Introduction

II. Pre-Lawsuit Activities
Action: Develop Written Collection Procedures
Action: Prepare the Attorney Referral Packet and Documents
Action: Determine if the Owner or Officer Is Personally Liable for the Contributions
Action: Determine Whether an Alter Ego Company Exists
Action: Offer the Employer a Pre-Lawsuit Settlement Conference

III. Commencing Litigation
Action: Draft the Complaint
Action: Prepare the Summons and Other Paperwork for the Clerk of Courts
Action: File the Complaint
Action: Serve the Summons and Complaint
Action: Review the Response and Possible Defenses
Action: Prepare a Response to a Motion to Dismiss
Action: Prepare a Motion for Default Judgment and Draft Judgment Order
Action: Amend the Complaint

IV. Discovery
Action: Conduct the Rule 26(f) Conference and Prepare the Initial Status Report
Action: Prepare the Initial Disclosure Statement
Action: Disclose the Auditor as an Expert Witness
Action: Review the Defendant's Rule 26(a)(1) Disclosures
Action: Draft Interrogatories
Action: Draft Requests for Production of Documents
Action: Prepare Requests for Admission
Action: Serve Subpoenas on Third Parties for Documents
Action: Comply With the Electronic Discovery Rules
Action: Review Responses to Interrogatories
Action: Review Responses to Requests for Production
Action: Review Responses to Requests for Admission
Action: Review Responses to Subpoenas
Action: Respond to Interrogatories Served on the Trust Fund
Action: Respond to Requests to Produce Documents Served on the Trust Fund
Action: Respond to Requests for Admission Served on the Trust Fund
Action: Prepare a Motion to Compel
Action: Schedule Depositions
Action: Prepare to Conduct Depositions
Action: Conduct Depositions
Action: Prepare a Trust Fund or Union Official for a Deposition
Action: Prepare the Auditor for a Deposition
Action: Prepare for and Conduct the Deposition of the Employer's Expert

V. Pre-Trial Activities
Action: Prepare for a Settlement Conference
Action: Conduct the Settlement Conference
Action: Consider a Settlement in Accord With Department of Labor Requirements
Action: Draft the Settlement Agreement
Action: Draft a Motion to Enforce the Settlement Agreement
Action: Evaluate Whether to File a Motion for Summary Judgment
Action: Draft a Statement of Uncontested Material Facts for the Motion for Summary Judgment
Action: Draft the Motion for Summary Judgment
Action: Respond to an Employer's Motion for Summary Judgment
Action: Respond to a Rule 68 Offer of Judgment
Action: Respond to an Employer's Bankruptcy
Action: Obtain an Injunction Against the Employer

VI. Trial and Appeals
Action: Draft the Final Pre-Trial Order
Action: Prepare Motions in Limine
Action: Prepare Trust Fund Witnesses
Action: Outline the Direct Examinations of Witnesses
Action: Outline the Cross-Examinations of Witnesses
Action: Prepare the Opening Statement
Action: Present the Trust Fund Witnesses
Action: Ensure That the Witnesses Establish Liability and Damages
Action: Prepare a Post-Trial Brief
Action: Defend a Favorable Judgment on Appeal
Action: Draft a Notice of Appeal

VII. Collecting the Federal Judgment
Action: Enforce the Judgment on the Employer
Action: Enforce the Judgment Through the Employer's Bank
Action: Enforce the Judgment Through General Contractors Who Subcontract Work to the
Defendant
Action: Place the Employer Into an Involuntary Bankruptcy

Appendix of Litigation Forms
Cover for Attorney Referral Packet (Audit Case)
Demand Letter for an Audit (Alter Ego Case)
Complaint (Audit Case)
Complaint (Audit Refusal Case)
Complaint (Preliminary Audit Case)
Complaint (Alter Ego Audit Case)
Complaint (Alter Ego Audit Refusal Case)
Complaint (Reports Case—No Reports Submitted)
Complaint (Reports Case—Reports Submitted Without Contributions)
Complaint (Audit Case—Personal Liability—Pierce the Corporate Veil)
Complaint (Audit Case—Personal Liability—Breach of Fiduciary Duty) Complaint (Audit Case—Personal Liability— Interference With ERISA Rights)
Notice of Filing
Initial Status Report (Audit Case)
Notice of Motion
Motion for Default Judgment With Draft Judgment Order (Audit Case)
Motion for Default Judgment With Draft Judgment Order
(Audit Refusal Case)
Motion for Default Judgment With Draft Judgment Order (Reports Case) Motion for Default
Judgment With Draft Judgment Order
(Estimated Reports Case)
Affidavit of Auditor (Audit Case)
Affidavit for Attorney Fees
Affidavit of Trust Fund Representative (Audit Case)
Affidavit of Trust Fund Representative (Audit Refusal Case)
Affidavit of Trust Fund Representative (Reports Case)
Motion for Leave to File an Amended Complaint
Rule 26(a)(1) Disclosures (Audit Case)
Rule 26(a)(2) Disclosure of Expert Witness (Audit Case)
Combined Discovery Request (Audit Case)
Interrogatories (Audit Case)
Interrogatories (Alter Ego Case)
Interrogatories (Reports Case)
Rule 34 Request for Production (Audit Refusal Case)
Rule 34 Request for Production (Alter Ego Audit Case)
Request for Admission (Audit Case)
Request for Admission (Reports Case)
Notice of Subpoena
Motion to Compel Production (Alter Ego Audit Refusal Case)
Motion to Compel Subpoena Response
Notice of Deposition
Notice of Rule 30(b)(6) Deposition
Outline for Introduction at a Deposition
Outline for Deposing a Company Owner
Guide to Giving a Deposition
Motion for Rule to Show Cause
Notice of Dismissal
Stipulation of Dismissal
Settlement Agreement
Motion to Enforce a Settlement Agreement
Motion for Summary Judgment (Reports Case)
Summary Judgment Fact Statement (Reports Case)
Summary Judgment Affidavit (Reports Case)
Summary Judgment Brief (Reports Case)
Motion to Withdraw the Reference From the Bankruptcy Court
Motion for a Preliminary Injunction
Motion in Limine (Bar Undisclosed Expert)
Opening Statement (Alter Ego Liability Case)
Guide to Giving Testimony at Trial
Outline for Direct Examination of Trust Fund Representative
Outline for Direct Examination of the Auditor
Proposed Conclusions of Law (Audit Case)
Proposed Findings of Fact (Audit Case)
Notice of Appeal
Citation to Discover Assets (Defendant Employer)
Citation to Discover Assets (Financial Institution)
Citation to Discover Assets (Third Party)
Outline for Conducting a Citation to Discover Assets
Citation to Discover Assets (Motion for Turnover Order and Draft Turnover Order)
Release of Citation and Judgment

Index