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Harvey Katzenberg v. Derval Lazzari

January 21, 2011

HARVEY KATZENBERG, PLAINTIFF--COUNTER-DEFENDANT-APPELLANT,
v.
DERVAL LAZZARI, AS TRUSTEE OF THE ACME AMERICAN REPAIRS, INC., PENSION TRUST, ACME AMERICAN REPAIRS, INC., ACME AMERICANREPAIRS, INC., PENSIONTRUST, DEFENDANTS-COUNTER-CLAIMANTS-APPELLEES.*FN2



Appeal from a February 24, 2010, judgment of the United States District Court for the Eastern District of New York (Charles R. Wolle, Judge).*fn1

The opinion of the court was delivered by: Richard K. Eaton, Judge.*fn1

10-854-cv

Katzenberg v. Lazzari

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 21st day of January, two thousand eleven.

PRESENT:

JOSE A. CABRANES, REENA RAGGI, Circuit Judges,

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

Plaintiff-Appellant Harvey Katzenberg-a former owner and executive of Acme American Repairs, Inc. ("Acme") and a participant in and former trustee of the Acme Pension Plan ("Acme Plan")-brought this action pursuant to Section 502 of the Employees' Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132, seeking an award of pension benefits, 29 U.S.C. § 1132(a); sanctions resulting from the Acme Plan's failure to provide him with a summary plan description ("SPD"), 29 U.S.C. § 1132(c)(1); and an award for attorney's fees, 29 U.S.C. § 1132(g). DefendantsAppellees raised several defenses and a counterclaim, all related to Katzenberg's alleged breech of fiduciary duties as a trustee of the Acme Plan. After a bench trial, the District Court entered judgment in favor of defendants, concluding that (1) defendants' defenses are not barred by ERISA's statute of limitations; (2) dismissing all of Katzenberg's claims; and (3) denying attorney's fees to all parties. Katzenberg v. Lazzari, 04-cv-5100, 2010 WL 680985, at *7 (E.D.N.Y. Feb. 24, 2010). Katzenberg filed a timely appeal. We assume the parties' familiarity with the facts and procedural history of this case.

I. Forfeiture Remedy

First, Katzenberg argues that the District Court erred in concluding that he should forfeit his entitlement to benefits under the plan pursuant to 29 U.S.C. § 1109(a), which provides that a fiduciary who breaches his duties under ERISA "shall be personally liable to make good to such plan any losses to the plan resulting from each such breach . . . and shall be subject to such other equitable or remedial relief as the court may deem appropriate." As we have frequently noted, it is well-settled that ERISA grants the court broad discretion with respect to remedies under § 1109(a) and that we review its decisions for abuse of discretion, Katsaros v Cody, 744 F.2d 270, 281 (2d Cir. 1984), taking into account "all the circumstances of the case," Chao v. Merino, 452 F.3d 174, 185 (2d Cir. 2006). "A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions." Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citation, alterations, and quotation marks omitted).

Here, the record reflects that, in violation of federal law, Katzenberg repeatedly raided the Acme Plan and overstated its value to minimize Acme's required annual contribution. See 29 U.S.C. § 1104(a)(1); Varity Corp. v. Howe, 516 U.S. 489, 506 (1996); Central States, S.E. & S.W. Areas Pension Fund v. Central Transp., 472 U.S. 559, 571 (1985) ("ERISA clearly assumes that trustees will act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries."). Contrary to Katzenberg's claims, this Court has clearly established that the "the power of the courts to fashion [the] equitable remedy" reached by the District Court in this case-that is, a permanent injunction preventing the trustee from receiving benefits under the plan-is not necessarily an abuse of discretion. United States v. Carson, 52 F.3d 1173, 1190 (2d Cir. 1995) (affirming the District Court's decision to require a fiduciary to forfeit benefits after breaching his duties). We therefore affirm the judgment of the ...


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