United States District Court, D. Colorado
DANIEL F. WASSER, as a trustee of the CWA/ITU Negotiated Pension Plan, Plaintiff,
ARTHUR DEIANNI, as trustee of the CWA/ITU Negotiated Pension Plan; JAMES BRILL, as trustee of the CWA/ITU Negotiated Pension Plan; DANIEL J. FARBERMAN, as trustee of the CWA/ITU Negotiated Pension Plan; ROBERT C. MAIDA, as trustee of the CWA/ITU Negotiated Pension Plan; THEODORE R. RILEA, as trustee of the CWA/ITU Negotiated Pension Plan; and CWA/ITU NEGOTIATED PENSION PLAN, Defendants.
ORDER ON MOTION TO DISMISS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants Arthur DeIanni,
James Brill, Daniel Farberman, Robert Maida, Theodore Rilea,
and CWA/ITU Negotiated Pension Plan's motion to dismiss.
ECF No. 10. For reasons stated below, the motion is DENIED.
International Typographical Union (“ITU”) is an
independent labor organization that represented union
employees engaged in the printing, publishing, and
advertising industry. Complaint, ECF No. 1 at ¶12. In
1966 the ITU entered into an “Agreement and Declaration
of Trust” (“Trust Agreement”) with certain
employers and established the ITU pension plan. Id.
at ¶13; see also Trust Agreement, ECF No. 1-1.
The pension plan is now a multiemployer employee benefit plan
governed by the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. § 1001. ECF No. 1 at ¶4. In 1987
the ITU merged with the Communications Workers of America,
AFL-CIO (“CWA”), and the ITU became known as the
“ITU Sector.” Id. at ¶15. Plaintiff
Daniel Wasser is the current president of the ITU Sector.
Trust Agreement provides that the pension plan shall be
governed by a board of trustees comprising of one-half ITU
trustees (“union trustees”) and one-half employer
trustees. Id. at ¶17. The board's current
composition includes three union trustees and three employer
trustees. Id. at ¶18. Defendants DeIanni,
Maida, and Mr. Wasser are the union trustees, and defendants
Rilea, Farberman, and Brill are the employer trustees.
Id. at ¶¶5, 7-11. In this order, I refer
to the five individual defendants as the “trustee
defendants.” This dispute stems from an official action
that the trustee defendants took at the biannual board of
trustees meeting on March 12, 2018, a meeting that Mr. Wasser
did not attend. See generally Id. at ¶1.
Plaintiff alleges that the trustee defendants, without
informing Mr. Wasser, devised a plan to amend the Trust
Agreement after learning that Mr. Wasser would be unable to
attend the March meeting. Id. at ¶¶28-32.
meeting, the trustee defendants adopted an amendment to the
pension plan's Trust Agreement. See generally
Id. at ¶1; Amendment to Trust Agreement, ECF No.
1-2. In pertinent part, the amendment changed the method for
removing union trustees, stating, “Union Trustees may
be removed and replaced by the unanimous consent of the ITU
and the Largest Local.” Id. at ¶33. Prior
to the amendment, the Trust Agreement declared that
“Union Trustees may be removed and replaced at will by
the ITU, ” but it did not give another union a vote.
Id. at ¶21 (quoting Trust Agreement, ECF No.
1-1 at 3).
alleges that the amendment wrongfully stripped the ITU Sector
of its historic exclusive power to appoint, remove, and
replace union trustees. Id. at ¶¶1, 21-23.
Plaintiff directs my attention to the Trust Agreement itself.
Although the Trust Agreement contains a provision that allows
amendments “from time to time by a majority of the
Employer Trustees and a majority of the ITU Trustees, ”
id. at ¶37 (quoting Trust Agreement, ECF No.
1-1 at 11), it also contains a “Limitation on the Power
of Amendment” provision, id. at ¶38. That
provision states, “No amendment shall be adopted which
will alter the basic purpose of this Agreement and
Declaration of Trust to provide pension and related benefits,
. . . or which shall be in conflict with civil laws or ITU
Laws.” Id. at ¶38 (quoting Trust
Agreement, ECF No. 1-1 at 12).
next cites the 1987 “Merger Agreement” between
the ITU and the CWA for support. Id. at ¶39.
This agreement provides that “the ITU shall become an
autonomous ‘Sector' within the CWA; and that the
Sector will preserve long-standing ITU traditions in the
Printing, Publishing and Media Industry.” Id.
at ¶39. According to plaintiff, the Merger Agreement is
one of the ITU Laws referenced in the Trust Agreement.
Id. at ¶40. The complaint also states that the
Merger Agreement is incorporated into the ITU Bylaws.
Id. As such, plaintiff avers that the Merger
Agreement's provision providing that “long-standing
ITU traditions in the Printing, Publishing and Media
Industry” will be preserved is yet another limitation
on the trustees' authority to amend the Trust Agreement.
Id. at ¶41.
opposes the amendment because it allegedly violates the
historical structure of the Trust Agreement and the
long-standing traditions of the ITU, namely that the ITU
would have the exclusive authority to appoint, remove, and
replace union trustees. Id. at ¶¶42-43. In
adopting an amendment that purportedly conflicts with
existing ITU Laws, plaintiff claims that trustee defendants
breached their fiduciary duties imposed by ERISA. To remedy
the alleged wrongdoing, plaintiff seeks declaratory and
injunctive relief to invalidate the amendment.
move to dismiss plaintiff's claims per Fed.R.Civ.P.
12(b)(6) for failure to state a claim. ECF No. 10. Plaintiff
responded in opposition, ECF No. 20, and defendants replied.
ECF No. 24. The motion is now ripe for review.
STANDARD OF REVIEW
survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the
complaint must contain “enough facts to state a claim
to relief that is plausible on its face.” Ridge at
Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A plausible claim is a claim that
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
the Court must accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300
F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are
not entitled to be presumed true. Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised
above the speculative level, he has met the threshold
pleading standard. See, e.g., Twombly, 550
U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008).
motion to dismiss rests on two primary arguments.
See ECF No. 10 at 6-15. First, defendants argue that
the amendment does not conflict with existing ITU Laws.
Id. at 6. Second, defendants argue that they did not
breach any fiduciary duties because they were not acting as