The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
This action is brought by the Secretary of the United States Department of Labor ("Secretary"), pursuant to the authority granted under Section 502(a) (5) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(5), to enjoin the trustees of Teamster's Local 282 Pension Trust Fund ("Plan") from loaning one Hyman Green (Green), $ 20 million under a construction-permanent mortgage agreement, to finance a 1,000 plus room hotel and gambling casino on the "Strip" in Las Vegas, Nevada. The complaint alleges that the agreement with Green provides for the conveyance of 1640 acres of land on Long Island, owned by the Plan, at a price of approximately $ 15 million dollars, by Green executing a purchase money mortgage to the Plan, for the full amount of the purchase price. The complaint alleges a violation of Section 404(a)(1)(B)-(C) of ERISA, 29 U.S.C. § 1104(a)(1)(B)-(C).
Defendants' answer generally denies those allegations of the complaint alleging violations of Section 404(a)(1)(B)-(C), of ERISA.
The case was tried to the court without a jury. The court finds:
The Fund was established approximately twenty-five (25) years ago for the benefit of members of Local 282 who are employed by truckers of materials in the building trade. Since 1971 the years have witnessed a declining rate of activity in the trucking industry affiliated with the building trades. As a consequence, the number of members employed, and the number of hours of employment of employed members, decreased. Since the contributions to the Plan made by the employers were based on hours employed at regular time, the total amount contributed to the Plan decreased significantly, from the year ending 1971, to the year ending 1976. In 1971, 4,462 members were employed, for an average of 1,827 hours; in 1976, 3,352 members were employed, for an average of 1,432 hours. While the basis of the contributions to the Plan decreased, the number of pensioners receiving benefits increased. As of February 28, 1977, 1,966 pensioners were receiving benefits. The ratio of pensioners to active employees was 1 to 1.7.
Employer contributions actually received by the Fund for the year ending February 28, 1977, amounted to $ 6,539,000. After expenses for payroll audits, collection fees, administration expenses, and retirement counselling fees, the sum available for benefits was $ 6,183,700 (Ex. 8, pp. 7 & 22). Benefits paid pensioners, for the fiscal year ending 1977, was approximately $ 6,400,000 (Ex. 8, p. 39).
The Fund's assets, as of February 28, 1977, were $ 55,293,339.13 (Ex. 8, p. 33). The assets included 1640 acres of land in Southampton which is the subject of this litigation valued at $ 8,130,321.95.
The actuarial cost to the Plan, for fiscal year 1977, was $ 10,756,500; the actuarial cost exceeded gross contributions by $ 4,217,500. The liability of the Fund for the current pensioners and beneficiaries is $ 78,208,800 (Ex. 8, p. 14). The total liability of the Fund for all vested benefits (including the liability to current pensioners and beneficiaries) is $ 143,000,000.
When the trustees became aware of the financial condition of the Plan through the contents of the actuarial report
which indicated that the soundness of the Plan was threatened, their attention turned to corrective measures. Reduction of benefits was discussed.
The labor contract expired June 30, 1978. A three year labor contract currently under negotiation would increase employer contributions to the Plan from approximately $ 1.85 per hour of regular time to approximately $ 3.36 per hour of total time (including overtime).
The trustees saw some relief from financial problems when on October 28, 1977, Green and his attorney appeared before a meeting of the trustees. Green advised the trustees that he held an option to purchase approximately ten (10) acres of vacant land on the "Strip" in Las Vegas, Nevada, for the sum of $ 5,850,000. He applied to the trustees for a 20 year $ 20,000,000 permanent first mortgage bearing interest at the rate of 9% Per annum on a hotel consisting of 1,000 plus rooms and a gambling casino to be erected on the site. Green suggested that the commitment provide for an initial advance of $ 3,500,000, to provide the funds to acquire title to the land; and the balance of $ 16,500,000 to be advanced when the certificate of occupancy for the hotel would be issued (estimated to be early spring of 1979). Green agreed to enter into a contract for the purchase of the Southampton property at the time of the initial advance of $ 3,500,000. The price was to be based on the cost of the land to the Plan, in addition to 8% Per year of the monies invested by the Plan from the date said monies were invested to the date of payment of the final advance on the loan. It was estimated that the purchase price would be approximately $ 13,500,000, (the closing estimated to be on or about April 1, 1979) and that the entire purchase price was to be paid by a 20 year purchase money mortgage with interest at the rate of 9% Per annum. Green also offered to secure payment of the purchase price of the Southampton property by increasing the first mortgage lien on the Nevada property in the amount determined to be the purchase price of the Southampton property.
The trustees saw the opportunity to convert an asset that had burdened the estate to an income producing asset and at the same time increase the book value of its assets. They unanimously authorized the issuance of the commitment ". . . subject to applicants having first complied with all of the criteria of the Trust. . . ."
The commitment, in substantial compliance with the terms outlined by Green at the October 28, 1977 meeting and including the sale of the Southampton property, was issued at a meeting of the trustees of the Plan on January 17, 1978. Some time between that meeting, and a meeting of the trustees on February 22, 1978, Green learned that the bank from which he intended to borrow $ 20 million under a construction loan, declined to make such loan.
At the February 22, 1978 meeting, the commitment was amended to provide for a two year construction loan of $ 20 million at 111/2% Per annum, which, upon completion of the improvements, was to be converted to a permanent loan in the same amount with interest at 93/4% Per annum for twenty (20) years, with an option on the part of the Plan to reduce the term to ten (10) years on notice prior to the ninth anniversary date of the permanent mortgage. The Plan had the right to sell the Southampton property any time prior to the closing of title, i. e., the date of the execution of the permanent mortgage. The mortgage on the Southampton property, now estimated to be in the principal amount of $ 15 million, was to bear interest at the rate of 81/4% Per annum. As in the original commitment, Green's interest in the hotel and gambling casino was to secure payment of the purchase money mortgage on the Southampton property, in addition to the $ 20 million permanent mortgage loan on that property.
The question presented in this litigation is whether the investment of $ 20 million of the Plan's assets is a disproportionate share of the total asset, so that it violates the diversification limitation of ERISA; and/or whether making such a loan, dependent on the success of the gambling casino, is imprudent under the circumstances.
The legislative history of the pertinent sections of ERISA indicates, that to the extent practical, the obligations of trustees of pension funds and the limitations on their power of investment were to be interpreted under principles applicable to trustees under the common law of trusts, with a view toward establishing uniform standards.
There is lack of uniformity in the application of the rule imposing the obligation on the trustee to diversify, as it relates to prudent investment. In some jurisdictions, lack of diversification is a per se breach of the trustees' investment duty of prudence; in others it is not. 3 Scott on Trusts § 228 (3rd Ed. 1967); Trust Fund Investments in New York: The Prudent Man Rule and Diversification of Investments, 47 N.Y.U. Law Review 527 (1972). Section ...