International Painters and Allied Trades Industry Pension Fund et al v. Florida Glass of Tampa Bay, Inc. et al

Filing 54

MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 10/22/2024. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
INTERNATIONAL PAINTERS AND
ALLIED TRADES INDUSTRY
PENSION FUND, et al.,
Plaintiffs,
v.
FLORIDA GLASS
OF TAMPA BAY, INC., et al.,
Defendants.
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Civil No. SAG-23-00045

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MEMORANDUM OPINION

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Plaintiff International Painters and Allied Trades Industry Pension Fund and its fiduciary,
Terry Nelson (collectively, “the Fund”), filed this action seeking to collect withdrawal liability and
additional statutory damages pursuant to the Employee Retirement Income Security Act of 1974
(“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980
(“MPPAA”). ECF 1. The Fund and Defendants Florida Glass of Tampa Bay, Inc. (“Florida
Glass”); American Products, Inc.; American Products Production Company of Pinellas County,
Inc.; API Commercial Installation, Inc.; API Commercial Architectural Products, Inc.; Charles &
Thomas Properties, LLC; Muraco & Mullan Properties, Inc.; Ceraclad South, LLC; JCM
Properties LLC; FenWall, LLC; and Specialty Metals Installation, LLC (collectively,
“Defendants”) have filed cross-motions for summary judgment, ECF 48, 49, which are now fully
briefed, ECF 52, 53, along with a joint statement of undisputed material facts, ECF 47, and
attached exhibits. No hearing is necessary to resolve the two motions. See Local Rule 105.6 (D.

Md. 2023). For the reasons that follow, the Fund’s motion for summary judgment, ECF 48, will
be granted, and Defendants’ motion for summary judgment, ECF 49, will be denied.
I.

FACTUAL BACKGROUND
The Fund is an ERISA-regulated multiemployer pension plan, administered by a board of

trustees consisting of employer and union representatives. ECF 47 ¶¶ 2-3. The Fund provides
retirement and related benefits to eligible participants and beneficiaries. Id. ¶ 3. During relevant
times, Defendant Florida Glass of Tampa Bay, Inc. (“Florida Glass”) was a contributing employer
to the Fund, with substantially all of its covered employees in the building and construction
industry. Id. ¶¶ 5, 9. The remaining Defendants are or were under common control with Florida
Glass. Id. ¶ 6.
In and before 2015, Florida Glass owed pension contributions to the Fund for work
performed by its employees pursuant to certain collective bargaining agreements (“CBAs”). Id. ¶
7. In 2015, Florida Glass ceased having an obligation to contribute to the Fund under the CBAs.
Id. ¶ 8. On August 9, 2016, Florida Glass filed for Chapter 11 bankruptcy in a case captioned In
re Florida Glass of Tampa Bay, Inc., No. 8:16-bk-6874 (Bankr. M.D. Fla.). Id. ¶ 10. Florida Glass
operated and planned to reorganize at that time but did not owe any contributions to the Fund
during its bankruptcy. Id. ¶¶ 11, 12.
The law firm then-representing the Fund, Jennings Sigmond, P.C. (“Jennings Sigmond”),
had a standard practice to prepare and file two proofs of claim when an employer against which
the Fund had a claim for delinquent contributions filed for bankruptcy. Id. ¶ 14. One of its two
standard proofs of claims was a contingent proof of claim for withdrawal liability. 1 Id. Jennings
Sigmond’s contingent proofs of claim for withdrawal liability attach a worksheet of withdrawal
An explanation of withdrawal liability, and why the Fund’s claim would be contingent, appears
in the “Legal Standards” section below.
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liability calculations as an exhibit. Id. ¶ 15. Jennings Sigmond does not conduct any investigation
before filing such contingent proofs of claim for withdrawal liability and does not seek approval
from the Fund’s Trustees before filing them. Id. ¶¶ 17, 18.
At the beginning of each year, the Fund’s computer auto-generates a list of employers that
have not contributed to the Fund in the past five years. Id. ¶ 20. The Fund then asks Jennings
Sigmond to investigate each entry and recommend to the Fund’s Trustees whether to assess each
listed employer for withdrawal liability. Id. After considering the recommendations, the Trustees
vote on whether to assess each employer for withdrawal liability. Id. ¶ 23. The reason Jennings
Sigmond files contingent proofs of claim in bankruptcy before the Trustees decide about
assessment is to preserve the Fund’s claim for withdrawal liability in the future – Jennings
Sigmond fears that if it does not file contingent proofs of claim, any eventual claim for withdrawal
liability could be deemed cleared in the bankruptcy. Id. ¶ 24.
In the Florida Glass matter, the Bankruptcy Court required creditors to file proofs of claim
by November 28, 2016, specifying that “[If]f your claim is designated as . . . contingent, you must
file a proof of claim or you might not be paid on your claim.” Id. Jennings Sigmond filed a
contingent proof of claim for withdrawal liability on November 10, 2016 (the “contingent Proof
of Claim”). Id. ¶ 26. The contingent Proof of Claim did not provide any explanation of the
contingency, but simply identified the basis of the Fund’s claim as “Contingent Statutory
Withdrawal Liability.” Id. ¶ 27(c). It specified the amount of the claim as $1,577,168 and attached
a worksheet exhibit showing a total of $1,577,168 in lump sum withdrawal liability or a 19-month
payment schedule option, which added interest and resulted in $1,627,538 in total payments. Id. ¶
27(d). The Fund’s contingent Proof of Claim averred that a portion of the claim, $202,324.87, was
entitled to priority under the Bankruptcy Code. Id. ¶ 28. Prior to filing the contingent Proof of

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Claim, neither the Fund nor Jennings Sigmond investigated to see if Florida Glass shared common
control with any other entities. Id. ¶ 32.
None of the Defendants in this case received any direct correspondence or notification from
the Fund in 2016 regarding a potential claim for withdrawal liability, other than the contingent
Proof of Claim that the Fund filed in the Bankruptcy Court. Id. ¶ 35. Defendants did not make any
withdrawal liability payments to the Fund before January 9, 2017. Id. ¶ 36. Defendants also did
not request review of the contingent Proof of Claim under 29 U.S.C. § 1399(b)(2) or demand
arbitration with respect to the contingent Proof of Claim. Id. ¶¶ 38, 39.
On July 12, 2017, Florida Glass converted its bankruptcy to Chapter 7. Id. ¶ 41. The
Bankruptcy Court appointed a new Chapter 7 Trustee, Dawn Carapella. Id. ¶ 42. Trustee Carapella
did not understand the Fund’s Proof of Claim to be contingent and did not file an objection to it.
Id. ¶ 44, ECF 49-7 at 5-6. Without any objections filed, the Fund’s claim was allowed pursuant to
11 U.S.C. § 502(a). ECF 47 ¶¶ 44, 45. In January and October, 2021, the Fund received total
distributions of $48,349.35 from the Trustee relating to the priority portion of its contingent Proof
of Claim. Id. ¶ 46. The Fund did not inform the Bankruptcy Court that its Proof of Claim had been
contingent and that the contingency had not yet been satisfied. Id. ¶ 48.
In 2021, Florida Glass appeared on the Fund’s annual auto-generated list and Jennings
Sigmond began investigating whether to assess withdrawal liability. Id. ¶ 54. In its investigation,
Jennings Sigmond identified the other Defendants as members of the Florida Glass-controlled
group and recommended to the Fund’s Trustees that they assess the Defendants with withdrawal
liability. Id. ¶ 56. Following the Trustees’ vote, on March 16, 2022, the Fund sent notice and
demand letters to the Defendants asserting liability of $1,577,168 in connection with Florida
Glass’s withdrawal from the Fund. Id. ¶ 61; ECF 47-12. The Fund attached the same 19-month

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payment plan chart, with the additional interest charges, to its 2022 notice and demand letter. ECF
47-12 at 5-12. Even in 2022, the payment plan chart did not credit the $48,349.35 that the Fund
had received in 2021 via its bankruptcy claim. Id. ¶ 63. Upon receipt of the notice and demand
letters, pursuant to the MPPAA’s dispute-resolution procedures, see 29 U.S.C. § 1399(b)(2),
Defendants requested review of their withdrawal liability on April 14, 2022. Id. ¶ 65; 47-13; ECF
6, Countercl. ¶ 29, ¶ 32; see 29 U.S.C. § 1401(a)(1). The Fund ultimately denied Defendants’
request for review on November 30, 2022. ECF 47 ¶ 73; ECF 47-14; ECF 6, Countercl. ¶ 34.
The Fund then filed the instant action to claim the withdrawal liability it believes
Defendants owe. ECF 47 ¶ 74. Defendants contend that the Fund’s lawsuit is time-barred. Id. ¶ 75.
II.

LEGAL STANDARDS
A. Summary Judgment
Both parties seek summary judgment. Under Rule 56(a) of the Federal Rules of Civil

Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The
moving party bears the burden of showing that there is no genuine dispute of material fact. See
Casey v. Geek Squad Subsidiary Best Buy Stores, L.P., 823 F. Supp. 2d 334, 348 (D. Md. 2011)
(citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987)). If the moving
party establishes that there is no evidence to support the non-moving party’s case, the burden then
shifts to the non-moving party to proffer specific facts to show a genuine issue exists for trial. Id.
The non-moving party must provide enough admissible evidence to “carry the burden of proof in
[its] claim at trial.” Id. at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16 (4th
Cir. 1993)). The mere existence of a scintilla of evidence in support of the non-moving party’s
position will be insufficient; there must be evidence on which the jury could reasonably find in its

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favor. Id. at 348 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). Moreover, a
genuine issue of material fact cannot rest on “mere speculation, or building one inference upon
another.” Id. at 349 (quoting Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md.
1999)).
Additionally, summary judgment shall be warranted if the non-moving party fails to
provide evidence that establishes an essential element of the case. Id. at 352. The non-moving
party “must produce competent evidence on each element of [its] claim.” Id. at 348–49 (quoting
Miskin, 107 F. Supp. 2d at 671). If the non-moving party fails to do so, “there can be no genuine
issue as to any material fact,” because the failure to prove an essential element of the case
“necessarily renders all other facts immaterial.” Id. at 352 (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)); Coleman v. United States, 369 F. App’x 459, 461 (4th Cir. 2010)
(unpublished)). In ruling on a motion for summary judgment, a court must view all the facts,
including reasonable inferences to be drawn from them, “in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Where, as here, the
movant seeks summary judgment on an affirmative defense like the statute of limitations, “it must
conclusively establish all essential elements of [the] defense.” Ray Commc’ns, Inc. v. Clear
Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012) (citing Celotex, 477 U.S. at 331).
B. Relevant Legal Concepts
True to their name, multiemployer pension plans rely on payments from multiple
employers to fund the plan’s pension obligations. Obviously, when one employer stops making
contributions to an underfunded multiemployer pension plan, the other employers are left with
increased liability. To address this problem, ERISA and the MPPAA set up a construct making it
easier for multiemployer pension plans to extract “withdrawal liability” from employers who are
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withdrawing from the plan, to ensure that their fair share of the contribution is paid. Withdrawal
liability is imposed not only on the contributing employer (here, Florida Glass) but also on any
entity under common control with the contributing employer who performs covered work within
the five-year window. The parties agree that the other Defendants are or were under common
control with Florida Glass. ECF 47 ¶ 6.
The MPPAA, however, also recognizes unique attributes of employment in the building
and construction industry. It is not uncommon for employees in that industry to work with multiple
employers over the course of a year, on a project-to-project basis. And it is not uncommon for
employers to perform work (and make contributions to a plan) during part of the year but to cease
making contributions when a project ends, while intending to hire employees and return to
contributing once a new project commences. In recognition of those prevalent situations, the
MPPAA has unique withdrawal liability rules for employers in the building and construction
industry (“BCI Employers”). 29 U.S.C. § 1383(b). BCI Employers do not become subject to
withdrawal liability each time their contributions cease. Instead, BCI Employers who have ceased
contributing to a plan are subject to the BCI exemption, which provides that they only owe
withdrawal liability where they (1) continue to perform covered work in the jurisdiction of the
CBA or (2) resume covered work within five years after the date on which their obligation to
contribute under the plan ceases. 29 U.S.C. § 1383(b)(2)(B). Once liability under the BCI
exemption is triggered, an employer’s withdrawal is then deemed to have occurred as of the
cessation of its obligation to contribute. 29 U.S.C. § 1383(e). In this case, Florida Glass’s
obligation to contribute to the Fund ceased in 2015. ECF 47 ¶ 8.
The MPPAA also requires arbitration of a multitude of issues relating to an employer’s
liability under the plan. The purpose of the arbitration requirement is to minimize cost to the plan

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and preserve plan assets by obviating the need for expensive litigation. Specifically, arbitration is
required in certain circumstances to facilitate the quick and informal resolution of disputes over
withdrawal liability. The MPPAA provides:
Any dispute between an employer and the plan sponsor of a multiemployer plan
concerning a determination made under sections 1381 through 1399 of . . . title [29]
shall be resolved through arbitration.
29 U.S.C. § 1401(a)(1). Two separate disputes, relating to § 1399 of Title 29, are at issue in this
case. First, the parties dispute whether the Fund’s contingent Proof of Claim constituted a
notification and demand for payment pursuant to 29 U.S.C. § 1399(b)(1), which reads:
(b) Notification, demand for payment, and review upon complete or partial
withdrawal by employer
(1) As soon as practicable after an employer’s complete or partial
withdrawal, the plan sponsor shall—
(A) notify the employer of—
(i) the amount of the liability, and
(ii) the schedule for liability payments, and
(B) demand payment in accordance with the schedule.
Second, the parties dispute whether the Fund’s contingent Proof of Claim constituted an
acceleration of withdrawal liability pursuant to 29 U.S.C. § 1399(c)(5), which reads:
(5) In the event of a default, a plan sponsor may require immediate payment of the
outstanding amount of an employer’s withdrawal liability, plus accrued interest on
the total outstanding liability from the due date of the first payment which was not
timely made. For purposes of this section, the term “default” means—
(A) the failure of an employer to make, when due, any payment under this
section, if the failure is not cured within 60 days after the employer receives written
notification from the plan sponsor of such failure, and
(B) any other event defined in rules adopted by the plan which indicates a
substantial likelihood that an employer will be unable to pay its withdrawal liability.
Certain bankruptcy concepts are also relevant to this Court’s analysis. The Bankruptcy
Code states that a Proof of Claim is deemed filed for any scheduled debt except one “that is

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scheduled as disputed, contingent, or unliquidated.” 11 U.S.C. § 1111. Bankruptcy Rules 8–401
and 10–401 require a creditor whose claim is listed as disputed, contingent, or unliquidated to file
a Proof of Claim prior to the time of confirmation of the plan or before any other date fixed by the
Court. As one bankruptcy judge has explained:
Section 502(b) of the Bankruptcy Code, which does address claim objections,
provides, inter alia, for the disallowance of a claim to the extent “such claim is
unenforceable against the debtor and property of the debtor, under any agreement
or applicable law for a reason other than because such claim is contingent or
unmatured.” 11 U.S.C. § 502(b)(1) (emphasis added). As such, the Bankruptcy
Code itself reflects that the contingent, unmatured nature of a debt is not itself a
basis for disallowance of a claim. As the court in In re Great Alliance Title and
Escrow, LLC, 2009 WL 2018986 (Bankr. E.D. Va. July 5, 2009) reasoned:
As a threshold matter, the court agrees with [the claimant] that a claim is
not subject to disallowance simply because it is unliquidated or contingent.
The Bankruptcy Code's definition of a claim is very broad and specifically
includes rights to payment that are unliquidated or contingent. The
grounds for disallowance of a claim – which are set forth in § 502 of the
Bankruptcy Code – do not include the unliquidated or contingent nature
of the claim. Indeed, the provision for disallowance of a claim on the
ground that it is unenforceable against the debtor under applicable law
specifically excludes disallowance ‘because such claim is contingent or
unmatured.’ Rather, the Bankruptcy Code explicitly requires [the] court to
estimate for purpose of allowance ‘any contingent or unliquidated claim,
the fixing or liquidation of which, as the case may be, would unduly delay
the administration of the case.
Id. at *2 (emphasis in original) (internal statutory citations omitted); see also, e.g.,
In re Morales, 506 B.R. 213, 221 (Bankr. S.D.N.Y. 2014) (“Pursuant to § 502(b)(1),
an objection to a claim cannot stand if the sole basis for the objection is that the
claim is ‘contingent or unmatured.’”); In re New Power Co., 313 B.R. 496, 507
(Bankr. N.D. Ga. 2004) (discussing the grounds for disallowance of a claim under
§ 502(b) and stating that “the fact that a claim is contingent or unmatured is not
grounds to disallow a claim unless that claim is for unmatured interest)
The Debtor’s Claim Ripeness Argument hinges entirely on the CFTC’s claims
having been contingent and unliquidated until the Judgment was entered. That is
not a proper basis for objection, and as such is not a basis for disallowance of the
Proofs of Claim.

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In re Higgins, Bankr. No. 22-12021-MDC, 2024 WL 3517390, at *9 (Bankr. E.D. Pa. July 23,
2024). In other words, a contingent claim is nevertheless allowable. And a contingent claim can
also be filed as a priority claim, particularly because the contingency may be satisfied before the
claim is processed.
III.

ANALYSIS

A. Waiver and Arbitration
With that background, the initial question presented is whether Defendants have waived
their ability to present their statute of limitations argument by failing to seek arbitration of two
disputes arising under 29 U.S.C. § 1399: whether the contingent Proof of Claim constituted (1) a
notice and demand for withdrawal liability and (2) an acceleration of that demand. In this Court’s
view, because the MPPAA expressly requires those disputes to be arbitrated, Defendants lack an
ability to establish predicate facts necessary to maintain their limitations defense.
In contending that the statute of limitations issue need not be arbitrated, Defendants aptly
summarize the issue presented: “If the Fund’s Proof of Claim in the Florida Glass Bankruptcy was
a notice and demand for withdrawal liability and an acceleration of that demand, the Fund’s current
lawsuit is time-barred under ERISA § 4301(f), because the Fund filed more than six years after it
filed the proof of Claim.” ECF 49-1 at 20 (footnote omitted). While Defendants are entirely correct
that the question of the statute of limitations is for the Court, not an arbitrator, that limitations
question cannot be decided without determining, under 29 U.S.C. §§ 1399(b)(1) and 1399(c)(5),
whether the contingent Proof of Claim constituted a notice and demand for withdrawal liability
and an acceleration of that demand. And those questions are “statutorily committed to arbitration
in the first instance.” Giroux Bros. Transp. v. New England Teamsters & Trucking Indus. Pension
Fund, 73 F.3d 1, 4 (1st Cir. 1996). The appropriate means for a defendant to challenge the timing
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and conditions of a withdrawal liability demand is through arbitration, subject to this Court’s
eventual review of the arbitrator’s ruling. See 29 U.S.C. § 1401(b)(2) (permitting a party to a bring
an action “in an appropriate United States district court in accordance with section 1451 of this
title to enforce, vacate, or modify the arbitrator’s award”).
This Court does not ignore the practical conundrum presented in the instant circumstance.
In 2016, when the Fund filed its contingent Proof of Claim, Florida Glass would have had no
reason to seek an arbitrator’s ruling about whether the Proof of Claim constituted a notice and
demand for withdrawal liability or an acceleration of that demand. 2 It would, however, have had
a reasoned basis for doing so upon receipt of the Fund’s notice and demand in 2022 – to raise the
issue that it had already received a notice and demand six years prior and to clarify which was the
operative document. And whether, in 2022 or at any other time, Defendants would have had an
argument for equitable tolling of the arbitration deadline is not a question presented to this Court.
Defendants’ failure to place their § 1399 issues into arbitration leaves this Court unable to
reach the conclusions Defendants now urge it to reach. Such determinations would invade the
province reserved to arbitration by the MPPAA. While this Court does not conclude, then, that
Defendants have waived their statute of limitations defense, it does conclude that they are unable
to establish the facts necessary to invoke that defense in this forum.

This Court notes, as discussed below, that only Florida Glass, not the other Defendants, would
presumably have been in a position to be privy to the Bankruptcy Court filings in 2016. But courts
have determined that “notice to one member of the control group constitutes notice to all members
of the group.” McDonald v. Centra, Inc., 946 F.2d 1059, 1062 (4th Cir. 1991). In fact, the cases
that Defendants cite for the proposition that courts have decided “whether a proof of claim filed in
bankruptcy court is sufficient notice and demand of withdrawal liability” in fact turned on the issue
of whether notice to one member of the group served as notice to all, not, as here, on whether the
proof of claim was intended to be notice to any member. ECF 53 at 9; see, e.g., Trs. of the Chicago
Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Central Transport,
Inc., 888 F.2d 1161, 1162 (7th Cir. 1989); McDonald, 946 F.2d at 1059 (considering a situation in
which a fund sent both a notice and demand and filed a proof of claim).
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B.

Notice/Demand and Acceleration

Even if this Court were to reach the two § 1399 issues on their merits, however, it would
not find that the Fund’s contingent Proof of Claim constituted either a notice and demand for
withdrawal liability or an acceleration of withdrawal liability. The contingent Proof of Claim was
not sent to the Defendants, undermining that notion that it was either intended as a “notice” or a
“demand.” And it was expressly marked as “contingent.” Florida Glass did not respond by
requesting review of its withdrawal liability, as the Defendants did when they received the official
notice and demand in 2022.
As for whether the Fund’s contingent Proof of Claim constituted an acceleration, it attached
a 19-month payment schedule option, which directly contradicts the notion that it was meant to
demand accelerated payment of the total sum. Moreover, the Supreme Court has stated that
acceleration occurs only if “the plan properly exercises the acceleration option.” Bay Area Laundry
& Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 202 (1997). The Fund did not
take the steps required by § 11.28(e) of its Rules and Regulations to accelerate Florida Glass’s
withdrawal liability in the 2016 period. See ECF 47 ¶ 33.
Nothing about the Bankruptcy Court’s actions transformed the contingent Proof of Claim
into a notice and demand or an acceleration. The contingent Proof of Claim was allowed, as it
should have been under the Bankruptcy Code, because the Trustee did not file an objection. See
id. ¶¶ 44-45. The Trustee then paid some portion of the priority portion of the Fund’s claim,
potentially because of a failure to recognize the unspecified contingency or to investigate whether
the contingency had been satisfied. See id. ¶ 46. Even if payment were made in error by the Trustee,
the nature of the Fund’s contingent Proof of Claim is unaltered.

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Finally, Defendants’ potentially valid criticisms of the Fund’s conduct in the bankruptcy
matter do not lead to a conclusion that its contingent Proof of Claim constituted a notice and
demand or an acceleration. Had the Fund clearly specified the nature of the contingency when
marking its proof of claim as “contingent,” the Trustee may have evaluated the claim differently
when making payment decisions. And when the Trustee paid a portion of the contingent claim in
2021, the Fund did not contact the Bankruptcy Court to report that it had been paid before the
contingency was satisfied. Id. ¶ 48. Moreover, the Fund did not deduct the Trustee’s payment from
the withdrawal liability it later demanded from the Defendants. Id. ¶ 63. In this Court’s view,
however, those facts, individually or collectively, do not convert the 2016 contingent Proof of
Claim into something it was not – a notice and demand for withdrawal liability or an acceleration
of withdrawal liability. For that reason, even if the MPPAA did not mandate that such issues be
arbitrated, this Court would rule against Defendants on their assertion that the Fund’s claim is
presently time-barred. 3
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment premised on
their limitations argument, ECF 49, is denied. The Fund’s motion for summary judgment, ECF 48,
is granted, and the Fund will be afforded 30 days from the date of this Memorandum Opinion and
Order to file a motion seeking damages. A separate Order follows.

Dated: October 22, 2024

/s/
Stephanie A. Gallagher
United States District Judge

This Court notes that, in adjudicating these motions, it did not assign weight to the expert report
proffered by Defendants. ECF 49-8. That report purported to apply the law to the facts of this
case, which is the role of this Court, and this Court did not find the expert’s analysis to be
helpful.
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