Snitzer et al v. The Board of Trustees of the American Federation of Musicians and Employers' Pension Fund et al

Filing 186

ORDER: IT IS HEREBY ORDERED that the attached class member communications are filed on ECF for purposes of maintaining an accurate public record. All attachments were postmarked on or before July 27, 2020. SO ORDERED. (Signed by Judge Valerie E. Caproni on 7/30/2020) (ama)

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 1 of 240
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 07/30/2020

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW SNITZER and PAUL LIVANT, individually
and as representatives of a class of similarly situated
persons, on behalf of the American Federation of
Musicians and Employers’ Pension Plan,
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE AMERICAN
FEDERATION OF MUSICIANS AND EMPLOYERS’
PENSION FUND, THE INVESTMENT COMMITTEE
OF THE BOARD OF TRUSTEES OF THE
AMERICAN FEDERATION OF MUSICIANS AND
EMPLOYERS’ PENSION FUND, RAYMOND M.
HAIR, JR., AUGUSTINO GAGLIARDI, GARY
MATTS, WILLIAM MORIARITY, BRIAN F. ROOD,
LAURA ROSS, VINCE TROMBETTA, PHILLIP E.
YAO, CHRISTOPHER J.G. BROCKMEYER,
MICHAEL DEMARTINI, ELLIOT H. GREENE,
ROBERT W. JOHNSON, ALAN H. RAPHAEL,
JEFFREY RUTHIZER, BILL THOMAS, JOANN
KESSLER, MARION PRESTON,

No. 1:17-cv-5361 (VEC)
ORDER

Defendants.
VALERIE CAPRONI, United States District Judge:
WHEREAS the Court has received additional objections and other communications
from class members since July 24, 2020;
IT IS HEREBY ORDERED that the attached class member communications are filed on
ECF for purposes of maintaining an accurate public record. All attachments were postmarked
on or before July 27, 2020.
SO ORDERED.
Date: July 30, 2020
New York, New York

_________________________________
VALERIE CAPRONI
United States District Judge

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 2 of 240

July 29, 2020
Via email to Chambers
Hon. Valerie E. Caproni
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007
Re: Snitzer et al. v. Board of Trustees of AFM-EPF, et al., No. 17 Civ. 5361 (VEC)

Dear Judge Caproni:
We represent an Ad Hoc Coalition (“Coalition”) consisting of nearly 70 individuals opposed to the settlement in the above-referenced matter (“Objectors”). On Monday, July 27, we
submitted, via hard copy delivery to the courthouse and soft copy transmission to the Chambers
email account, an Objection of Ad Hoc Coalition Opposed to the Class Action Settlement (“Objection”), with six exhibits.
It has just come to our attention that, because of an administrative oversight by counsel,
we inadvertently omitted from the Objection the names and signatures of two additional members
of the Coalition who had timely executed signature pages for the Objection and supplied them to
counsel so they could join the Objection. Accordingly, we respectfully request that the Court accept a corrected version of the Objection, which we are transmitting electronically together with
this letter. The only change to the Objection is to add the two omitted names and signature pages.
We have consulted with counsel for the parties, who do not object. We apologize for the oversight.
On behalf of all Objectors, we thank the Court for its consideration of the Objection.

Respectfully submitted,

Daniel Walfish
Encl.

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 3 of 240

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

ANDREW SNITZER and PAUL LIVANT,
individually and as class representatives, on
behalf of the American Federation of
Musicians and Employers’ Pension Fund,
17 Civ. 5361 (VEC)
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE
AMERICAN FEDERATION OF
MUSICIANS AND EMPLOYERS’
PENSION FUND, et al.,
Defendants.

OBJECTION OF AD HOC COALITION
OPPOSED TO THE SETTLEMENT AGREEEMENT

Daniel Walfish
Rachel Penski Fissell
WALFISH & FISSELL PLLC
405 Lexington Avenue 8th floor
New York, NY 10174
Tel.: [phone]
Email: [e-mail]
Attorneys for Objectors

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 4 of 240

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................3
LEGAL STANDARD......................................................................................................................6
REASONS TO REJECT THE SETTLEMENT ..............................................................................7
I.

The Non-Monetary Relief Is Inadequate .............................................................................7
A.

The Asset Allocation Procedures Invite Business As Usual .........................................8

B.

The Neutral Independent Fiduciary Provisions Are Insufficient ...................................8
1. The NIF Position Is Toothless ...........................................................................8
2. The NIF Should Have Decision-Making Power ................................................8
3. Class Counsel’s Theory that the NIF Will Either Deter the Trustees
or Expose Them to Liability Is Flawed............................................................14
4. The NIF’s Term Is Too Short ..........................................................................15

C.

Current Plan Counsel Has Disqualifying Conflicts, Undermining the Integrity of the
Settlement and Underscoring the Need for NIF Empowerment ..................................16

D.

The Disclosure Provisions Are Too Weak and Need To Be Strengthened .................17

E.

Class Counsel’s Arguments Defending the Adequacy of the
Non-Monetary Relief Are Not Supported or Persuasive .............................................19

II.

The Release Is Not “Narrowly Tailored”...........................................................................20

III.

Class Counsel’s Discussion of Supposed Litigation Risks Is Wrong and Also
Irrelevant To Assessing the Adequacy of the Non-Monetary Relief .................................22

CONCLUSION ..............................................................................................................................25
LIST OF EXHIBITS ......................................................................................................................26
APPENDIX: LIST OF OBJECTORS AND SIGNATURES ........................................................27
i

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 5 of 240

TABLE OF AUTHORITIES
Page(s)
Cases
Brock v. Robbins, 830 F.2d 640 (7th Cir. 1987) ..................................................................... 12, 20
Brotherston v. Putnam Investments, LLC, 2017 WL 2634361 (D. Mass. June 19, 2017)............ 24
Brotherston v. Putnam Investments, LLC, 907 F.3d 17 (1st Cir. 2018) ....................................... 24
Chao v. Merino, 452 F.3d 174 (2d Cir. 2006) .............................................................................. 20
Clark v. Duke Univ., No. 16-cv-1044 (D.N.C.) ............................................................................ 10
Dardaganis v. Grace Capital, Inc., 889 F.2d 1237 (2d Cir. 1989)............................................... 24
Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir. 1985) ................................................................... 24
Hugler v. Byrnes, 247 F. Supp. 3d 223 (S.D.N.Y. 2017) ............................................................. 20
In re Traffic Exec. Ass’n E. R.R.. 627 F.2d 631 (2d Cir. 1980) ...................................................... 7
Katsaros v. Cody, 744 F.2d 270 (2d Cir. 1984) ............................................................................ 20
Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985) ............................................................. 16
Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1995 ................................... 7
McGinn v. DeSoto, Inc., No. 90 C 4481, 1990 WL 251753 (N.D. Ill. Dec. 21, 1990)............ 16-17
Moreno v. Deutsche Bank Ams. Holding Corp., No. 15-cv-9936 (LGS) (S.D.N.Y.) ............. 10, 14
Rievman v. Burlington N. R.R. Co., 118 F.R.D. 29 (S.D.N.Y. 1987) ............................................. 7
Sacerdote v. N.Y. Univ., 328 F. Supp. 3d 273 (S.D.N.Y. 2018) ............................................. 19, 25
Selby v. Principal Mut. Life Ins. Co., No. 98 Civ. 5283 (RLC),
2003 WL 22772330 (S.D.N.Y. Nov. 21, 2003) .......................................................................... 7
Thole v. U.S. Bank N.A., 140 S. Ct. 1615 (2020) .......................................................................... 12
Tibble v. Edison Int’l, 135 S. Ct. 1823 (2015) .............................................................................. 23

ii

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 6 of 240

Statutes
29 U.S.C. § 1001 ........................................................................................................................... 20
29 U.S.C. § 1109 ........................................................................................................................... 20
29 U.S.C. § 1113 ........................................................................................................................... 21
29 U.S.C. § 1132 ........................................................................................................................... 16

Rules
N.Y. R.P.C. 1.7 ............................................................................................................................. 16
N.Y. R.P.C. 3.7 ............................................................................................................................. 16

Other Authorities
Restatement (Third) of Trusts § 90 ................................................................................................. 6
Restatement (Third) of Trusts § 100 ............................................................................................. 24
SEC Investor Bulletin: Hedge Funds, at https://www.sec.gov/files/ib_hedgefunds.pdf .............. 19
Mangiero, Susan and Mitchell H. Shames, INSIGHT: Calling ERISA Ghostbusters—The Rise of
Independent Fiduciaries, at https://news.bloomberglaw.com/employee-benefits/insight-callingerisa-ghostbusters-the-rise-of-independent-fiduciaries (Feb. 26, 2020) ..................................... 2
Williamson, Christine, Funds Turn Back Clock in Return to Active Equity, Pensions &
Investments (Feb. 4, 2019), available at
https://www.pionline.com/article/20190204/PRINT/190209954/funds-turn-back-clock-inreturn-to-active-equity ................................................................................................................. 6

iii

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The members of the settlement class identified in the Appendix hereto (“Objectors”),
appearing through undersigned counsel, respectfully submit jointly this Objection of Ad Hoc
Coalition Opposed to the Settlement Agreement, together with exhibits.1 Undersigned counsel
(which have not objected to a class action settlement in the past five years) intend to appear at the
Fairness Hearing on behalf of Objectors, none of whom has objected to a class action settlement
in the past five years.
INTRODUCTION
Discovery in this ERISA breach of fiduciary duty case revealed overwhelming evidence of
imprudence, mismanagement, and incompetence by the Trustees in investing Fund assets, as well
as dishonesty in Trustees’ communications with plan participants. These revelations require
meaningful prospective relief as well as narrow releases so that the class members have recourse
to address and prevent this behavior on an ongoing and future basis.
But the Proposed Settlement provides neither. The governance reforms – agreed to by Class
Counsel with an incentive to emphasize monetary recovery and defense counsel with disqualifying
conflicts of interest – are an invitation to continue business as usual. The revised “asset allocation
procedures” leave the failed incumbents in full control of setting “return and risk objectives” as
well as “asset allocation targets.” The newly installed Neutral Independent Fiduciary (“NIF”) has
a strictly advisory role, with no decision-making authority whatsoever. The NIF should be

1

The following Objectors submitted pro se objections to the Court before they retained counsel: Phillip Ayling, James
Mike Brignardello, Robert Buchanan, John Mark Casstevens, John Clark, Christopher Deschene, Armen Donelian,
Dennis Dreith, Stuart Duncan, Larry Franklin, Mitchell Holder, Jody Jarowey, Joel McNeely, Kenneth Munday,
Steven Nathan, Jay Rosen, and Jeffrey Southworth. As to those individuals, this is an amended Objection, intended to
supersede those individuals’ prior submissions. Expert reports and depositions cited herein are available at the
Settlement Web Site, at http://www.afm-epfsettlement.com/Pages/CourtDocuments.html. Plan documents were
obtained from the AFM-EPF web site, at https://www.afm-epf.org/AFMSiteMap.aspx. Throughout this submission
page references to motion papers and other docket entries (cited as “DE __”) are to the ECF header/PDF page number,
not the pagination used inside the document. “Proposed Settlement” or “Agreement” refers to DE 139-1. “Prelim.
Approval Mot.” refers to DE 138. “Fee Mot.” refers to DE 167. We use the term “Fund” to refer to the American
Federation of Musicians and Employers’ Pension Fund.

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 8 of 240

empowered to effect real change. Class Counsel’s own governance expert has written that in order
to be effective, a NIF needs to be given genuine “authority” and “clout,” the ability to “correct”
“deficiencies,” and a suitably broad mandate.2 In concrete terms, the NIF needs to be able to cast
a vote on the Board. The NIF’s mandate should also be broadened to include, at a minimum,
actuarial matters and participant communications in order to prevent the Trustees from again
misleading participants about the Fund’s condition and the status of their benefits. In a similar
vein, the Board Co-Chairs and longtime employer-side Investment Committee Chair should
change.
Class Counsel suggests that the lack of a vote does not matter because the NIF’s mere
presence at certain board and committee meetings will lead to the creation of a “written record”
that will deter Trustees or render them liable to the extent their imprudent behavior persists. Both
points are misplaced. Contrary to Class Counsel’s description of the Agreement, there is, with one
exception, no requirement that the NIF’s individual views ever are recorded – let alone a
mechanism for ensuring that they are acted on. The Trustees can muzzle him if they wish.
The other governance provisions also are window dressing, and need to be strengthened.
For example, the Agreement’s requirement that the credentials of a new Trustee be disclosed
publicly after the Trustee’s appointment is finalized and before he/she takes office is not much use
to the class. The credentials disclosure needs to happen before the appointment decision is made,
while the individual is still merely a candidate, to give class members a chance to raise any
objections with union leadership and through other channels. The requirement that a quarterly

2

Susan Mangiero and Mitchell H. Shames, INSIGHT: Calling ERISA Ghostbusters—The Rise of Independent
Fiduciaries, at https://news.bloomberglaw.com/employee-benefits/insight-calling-erisa-ghostbusters-the-rise-ofindependent-fiduciaries (Feb. 26, 2020) [appended as Exhibit 2].

2

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investment report be posted is only as good as the information provided in the report, and the form
that the parties have agreed on obscures as much as it discloses.
Meanwhile, there is no sign that the Trustees have changed their ways. Class Counsel’s
response: not to worry, we negotiated a release that lets class members file a lawsuit for any postNovember 2017 behavior. The idea that class members should have to file a whole new lawsuit
(one with potential limitations issues) just to put a stop to ongoing fiduciary breaches challenged
in the case is practically an admission of the inadequacy of the settlement.
What is more, although Class Counsel boasts that the releases and covenants not to sue
(“Release”) leave open claims based on conduct that post-dates the Amended Complaint, that is
simply not what the Release actually says. Rather, the Release language invites an argument that
the Release bars suit for any conduct at any time, including after November 2017 and on into the
future, that has any connection to the allegations in the Amended Complaint. So even if Class
Counsel were right (they are not right) that the governance provisions in their current form
guarantee a documentary record of ongoing mismanagement, it is not clear that any class member
will be able to use such evidence. The special unfairness of the Proposed Settlement is that – in
stark contrast to the picture painted by Class Counsel – it both fails to prevent ongoing and future
breaches and simultaneously extinguishes or hampers the assertion of claims based on such
breaches.
FACTUAL BACKGROUND
It is not seriously disputed that the Trustees (1) adopted an extraordinarily aggressive target
for investment returns, (2) chose to make extremely high allocations within the equity portion of
their portfolio to risky and illiquid investments in an attempt to meet that target (specifically
drawing down a large portion of the domestic equity investment in order to fund large bets on
3

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emerging markets and private equity), resulting in portfolios so unorthodox as to be unheard of,3
(3) relied on active managers far in excess of the Fund’s peers even when passive alternatives were
available,4 and (4) that the Fund would be in much better shape today if the Trustees had made
more orthodox investing decisions.
The core defense was strikingly weak: that the “objectively prudent” thing to do – the thing
any other prudent person would have done in the shoes of these Trustees – was to make bold bets
if those were the ones that stood a chance of averting a possible long-range insolvency. A defense
expert offered the eyebrow-raising theory that it can be, and here was, rational to “pull the goalie,”
referring to an aggressive move deployed by losing hockey teams shortly before the clock runs
out.5 The defense also offered an underwhelming “procedural prudence” defense.6

3

Defendant Christopher Brockmeyer, the employer-side Board and Investment Committee Co-Chair, by his own
count sits on the board of 22 ERISA funds (see
http://depthome.brooklyn.cuny.edu/theater/people_faculty_adjunct_brockmeyer_christopher.html), and admitted
that none of them used a riskier asset allocation than this one. Brockmeyer Dep. 30-31. Or as Brockmeyer stated
publicly, the allocations here were “very aggressive, especially for the Taft-Hartley, a very aggressive portfolio.”
Mangiero Report ¶ 67 (quoting podcast; emphasis added).
4
See, e.g., Mangiero Report ¶ 110. The defense did not dispute this. In 2009, the Fund had 0% of its assets in index
funds. By the time the litigation was filed, the number had reached a still-paltry 11%. Defense expert Borzi’s Report
20-21.
5
Franklin Report 1-2, 18-20. The fallacy of course is that hockey is binary: a team either wins or loses, and it does
not matter by how much. With a defined-benefit plan the timing of when a plan becomes insolvent, and the magnitude
of the insolvency, are extremely important. See, e.g., Pitts Report ¶ 36. Taking a shot at avoiding projected insolvency
in the year 2050 is imprudent if it creates serious risks of a projected 2035 insolvency – which in substance is what
happened in this case. The defense [DE 184 at 21, 22, 25] makes much of stochastic modeling conducted by their
expert, except that (1) the Trustees consulted no such stochastic models in making their 2010 and 2011 decisions, and
(2) the 2014 stochastic study contemporaneously used to support the 2015 allocation cautioned on practically the first
page “that a riskier asset allocation produces[] [i]ncreased potential for insolvency,” over the long haul, DE 41-26 at
4. The defense has never explained why it was prudent to assume that risk – one that materialized to devastating effect.
6
The defense process expert notably chose not to “afford[] great weight to” the damning emails that emerged in
discovery, preferring to rely instead on formal meeting minutes and notes largely created by plan counsel as well as
on such superficial facts as that committees existed, meetings occurred, and advisors were involved. Borzi Report 910 & n.6 (explaining sources relied on); id. at 12 (opining that “regularly scheduled quarterly meetings” are
“[n]ormally” “sufficient for the trustees to discharge their duties prudently”); id. at 14 (noting that, even though
everyone or almost everyone on the 16-person Board lacked a finance/investing background, all of the Trustees
“received ‘on the job’ training through presentations and seminars”); see also id. at 14-27 (reviewing involvement of
professionals).

4

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Plenty of maturing defined-benefit pension funds fared poorly in 2008, became stressed,
and are facing net outflows. Yet there is no evidence that any other pension fund reacted to the
stress the way this one did.7 These Trustees, without understanding the risks they were taking on,
made a long-shot bet that they could avoid a long-run problem, and in so doing foreseeably
hastened and worsened a more immediate crisis.8 The Trustees compounded the effects of their
misguided asset allocation with an over-reliance on active managers – with no criteria or process
for choosing active over passive management, and insufficient understanding of how manager fees
impact performance.9
Nor is there any indication that the incumbents have learned any lessons. Even Class
Counsel confess that they and their clients remain “frustrated at the Trustees’ continuing imprudent
investment risk-taking.” Fee Mot. 34. The asset allocations approved by the Board to this day
remain exotic, opaque, and illiquid.10 (The Plan’s switch over to an “Outside Chief Investment
Officer” (OCIO) model is not, as the defense argues, a “fundamental[] change[] in processes,” DE
184 at 17; target returns and asset allocations remain the Board’s responsibility. See Agreement §
8.1.4.) For instance, as of June 2019 a staggering 34.1% of Plan assets was allocated to Hedge
Funds and Private Equity. See Ex. 1 hereto; Agreement Ex. 5 at 11 [DE 139-1 at 72].11

7

July 9, 2019 Letter [DE 118] 3 (Class Counsel pointed out that “none of the witnesses, including Defendants’ experts,
have identified any other Taft-Hartley or other large pension plan with a similarly uber-aggressive asset allocation.”).
8
According to a 2018 report by a respected actuarial firm commissioned by a group of plan members (Exhibit 3 at 1),
the Trustees have “place[d] the Plan in a very small minority of highly dysfunctional multiemployer plans.”
9
For years, key Trustees did not understand that (or did not know whether) key performance information they were
shown was gross, not net, of the substantial fees charged by active managers. See Witz Report ¶ 121 (citing documents
and testimony); Mangiero Report ¶¶ 138-139 (citing documents). Union-side Investment Committee Co-Chair Phillip
Yao testified: “the amount of fees we were paying in relation to whatever performance we had was not something that
I fretted over.” Mangiero Report ¶ 97.
10
We have compiled information on asset allocations/targets for the Fund at relevant points in time in Exhibit 1.
11
The Private Equity and Hedge Fund percentages are way above the norm for Large Taft-Hartley Plans, just as the
allocation to public equity is way below the norm. See id. Ex. 5 at 20 [DE 139-1 at 81]. And within public equity, the
allocation to U.S. equities is on the very low end, just as the allocation to developed international is literally off the
high end of the chart even when comparing just to the 12 other plans whose asset classifications supposedly permit
comparison with the Fund (see discussion at page 18 below). Id. Ex. 5 at 21 [DE 139-1 at 82].

5

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And the Fund still over-relies on high-cost, predictably under-performing active
management even in the traditional public equities portion of its portfolio. For all the money the
Plan spent on managers, those investments, net of fees, underperformed the chosen benchmark by
about 1% a year from September 2017 to December 2019. Agreement Ex. 5 at 3 [DE 139-1 at 64].
That is a significant shortfall, and one that would have been avoided through the use of low-cost
passive managers. Thus there continue to be serious questions about why it is that this Fund
persists in its addiction to active managers (or as one union-side Investment Committee member
wrote to two others in May 2017, “why we pay so much to managers to not even keep up with the
markets,” Mangiero Report ¶ 139). While some active management is permissible, the core of the
public equity component of a pension fund in this day and age should be passively indexed.12 As
one of the other Investment Committee members pointed out in the same email thread: “History
has borne out that, in most cases, passive beats active.” Mangiero Report ¶ 135.13
LEGAL STANDARD
Because the Proposed Settlement would bind all members of the class,14 the Court must
above all assess whether “the relief provided for the class is adequate.” Fed. R. Civ. P. 23(c)(2)(C)
(emphasis added). Thus the Court’s “primary concern is with the substantive terms of the

12

See Restatement (Third) of Trusts § 90 cmt. f (fiduciaries have a duty to seek “the lowest level of risk and cost for
a particular level of expected return” (emphasis added)); see also, e.g., Christine Williamson, Funds Turn Back Clock
in Return to Active Equity, Pensions & Investments (Feb. 4, 2019) (as of September 2017, 63.3% of US equity
investments held by the 200 largest defined benefit plans was passively invested), available at
https://www.pionline.com/article/20190204/PRINT/190209954/funds-turn-back-clock-in-return-to-active-equity.
13
The three Investment Committee members on this thread were union Trustees Yao, Moriarity, and Rood – not Hair,
who as union president and Board Co-Chair wields absolute power on the union side of the Board (see Exhibit 4 §§
3.8, 3.10), and who (according to Moriarity) was “seemingly uninformed, unable and unwilling to adequately
articulate [his] reasoning,” Mangiero Report ¶ 150 (emphasis added).
14
The Court’s orders, reflecting counsel’s input, state that there are over 114,000 members of the class. E.g., DE 163
at 3; DE 151. Class Counsel states that the $26.85 million award translates to $750 for each “active and retired Plan
participant[],” Prelim. Approval Mot. 9 – which equals 35,800 people. The latter number is far closer to the number
of people with a genuine stake in the Fund and this case. See DE 151 at 3; see also the Fund’s Form 5500, excerpted
in Exhibit 5 hereto.

6

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settlement: ‘Basic to this . . . is the need to compare the terms of the compromise with the likely
rewards of litigation.’” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079-80 (2d
Cir. 1995) (internal quotations and citations omitted); see also In re Traffic Exec. Ass’n E. R.R..
627 F.2d 631, 633 (2d Cir. 1980) (“[T]he most significant factor for the district judge is the strength
of plaintiffs’ case balanced against the settlement offer.”). While the Court is not required to
conduct a trial on the merits, it “is required to explore the facts sufficiently to make an intelligent
comparison between the amount of the compromise and the probable recovery.” 627 F.2d at 633.
Crucially, where, as here, plaintiffs are seeking injunctive or other non-monetary relief for the
class, this comparison must be performed with respect to the non-monetary, or equitable,
components of the proposal. See Selby v. Principal Mut. Life Ins. Co., No. 98 Civ. 5283 (RLC),
2003 WL 22772330, at *2-*3 (S.D.N.Y. Nov. 21, 2003) (approving class action settlement under
Traffic because “the proposed injunctive relief adequately addresses the problem that was
originally alleged to be the cause of inaccurate denials of benefits”); Rievman v. Burlington N. R.R.
Co., 118 F.R.D. 29, 32-33 (S.D.N.Y. 1987). Thus a case that, if tried, is highly likely to result in a
finding of breach of fiduciary duty and ensuing prospective equitable relief (in addition to an award
of mostly uncollectible money damages) cannot properly be settled with a proposal that affords
almost meaningless non-monetary remedies, invites a recurrence, and operates to extinguish future
claims based on a recurrence.
REASONS TO REJECT THE SETTLEMENT
I.

The Non-Monetary Relief Is Inadequate
The governance provisions do little or nothing to remedy or prevent ongoing and future

breaches of fiduciary duty, instead installing a disempowered figurehead.15

15

The discussion here is not meant to be an exhaustive catalogue of every problem with the Agreement.

7

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A. The Asset Allocation Procedures Invite Business As Usual
Under Agreement § 8.1.4, the Board of Trustees expressly retains responsibility for setting
the asset allocation policy, and is practically invited to continue on the same imprudent course.
The failed incumbents are still in charge of setting “the Plan’s investment return and risk
objectives” – even though discovery made clear that this group of Trustees cannot be trusted to
understand, let alone prudently balance, risk and reward.16 And although the new “OCIO monitor”
(confusingly also referred to as an “investment consultant”) will “provide[] proposed asset
allocation targets,” this is made “subject to” a veto by the Trustees (but not the NIF) of “any
proposed targets.” Agreement § 8.1.4. This is despite the fact that discovery revealed that the
Trustees imprudently adopted “ultra-aggressive,” “unorthodox,” and “exotic” allocations17
without understanding the risks they were taking on.18
B. The Neutral Independent Fiduciary Provisions Are Insufficient
1.

The NIF Position Is Toothless

The centerpiece of the governance provisions is the appointment of the NIF, who will
“serve as an additional, nonvoting, neutral trustee,” a “nonvoting member of the Investment

16

Mangiero Report ¶¶ 72, 144 (reviewing case evidence that “clearly indicate[s] Trustees’ intent to ramp up risk to
seek higher returns” without “first assessing how much risk the AFM Plan could tolerate”); Witz Report 29-30 n.26
(same); Witz Report ¶ 21 (Trustees were warned that to try to make up a projected funding shortfall by aiming for
increased investment returns was a “highly risky roll of the dice.”); Mangiero Report ¶ 128 (quoting meeting notes
reflecting that the plan’s actuary advised the Trustees that any allocation that would support the investment return the
Trustees were demanding “would increase the risk of insolvency”).
17
Quotations are from case evidence cited in Witz Report ¶¶ 51-54.
18
See, e.g., Mangiero Report ¶ 25 (“According to minutes from a multi-day November 2011 meeting, little was said
about investment risks associated with [Emerging Markets Equities] and [Private Equity],” even though meeting
minutes reflected that “‘the primary purpose of the first two days of the Committee meetings was to discuss possible
modifications to the Fund’s current asset allocation’” (emphasis added)), ¶ 45 (Trustees “did not carry out a
comprehensive assessment of investment risks when . . . they twice made the decision to further increase the Plan’s
investment in [Emerging Markets Equities and Private Equity] in magnitudes that far exceeded allocations made by
most, if not all, other large Taft-Hartley plans.”), ¶ 30 (deposition testimony from Co-Chair Hair and other Trustees
“shows their level of risk literacy was insufficient and yet they never sought adequate training or asked detailed
questions of advisors or fund managers or otherwise developed a clear understanding about how to measure important
investment risks.”).

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Committee,” and an advisory resource to the actual Trustees on the Investment Committee (but
not other trustees). Agreement § 8.1.5. The NIF, in other words, will be toothless. Under the
governing documents for this Fund, all decisions are made by vote of the Trustees and only by vote
of the Trustees.19 Without a vote, the NIF has no decision-making role.
The Agreement states that the NIF will “function in all respects (other than voting
authority)” as an Investment Committee Co-Chair and “will participate in Investment Committee
meetings, deliberations and decisions, with all the authority and responsibilities of a Trustee with
respect [t]o the Plan’s investments (other than voting authority).” Agreement § 8.1.5.1(b), (c). The
Agreement similarly allows the NIF to sit in on “the portion of the Board meetings” regarding
investments, “with all the authority and responsibilities of a Trustee . . . (other than voting
authority).” Id. § 8.1.5.1(d). Again, these are oxymorons. Trustees of this Fund have no “authority”
and “responsibility” separate from their voting power. (Trustees are sometimes polled for their
vote through informal emails and phone calls outside of formal meetings20; it is not clear whether
or how the NIF would participate in this process.) The Investment Committee role described in the
Agreement is essentially a ceremonial post.
The Agreement spells out some additional tasks for the NIF. The NIF is to “[m]ake
recommendations . . . regarding changes (if any) in the processes pursuant to which the Investment
Committee performs its responsibilities.” Agreement § 8.1.5.1(f). The Agreement pointedly avoids
requiring that these recommendations be presented in writing, and does not say what the Trustees
are to do with the (likely oral) recommendations, which means that the Trustees are free to ignore
them. The NIF also is to prepare, “[i]n coordination with the Trustees and the OCIO,” “a written

19

Agreement and Declaration of Trust [Exhibit 4] § 6.4 (“all actions of the Board shall be taken by” vote).
20
Exhibit 4 §§ 6.4(c), 7.4(c).

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report regarding possible changes to the Plan’s Investment Policy Statement.” Id. § 8.1.5.1(g)
(emphasis added). This task does result in a written report, but one that apparently is not prepared
independently (but rather “[i]n coordination with the Trustees and the OCIO”) and so would
require the NIF in cases of disagreement to defer to the Trustees and their OCIO as to the contents
of the report. The above provisions should be converted into requirements, familiar in ERISA (and
other kinds of) settlements, that the outsider prepare independent written recommendations on the
relevant subject and/or that if a recommendation is not followed, everyone’s views and reasons are
documented.21
2.

The NIF Should Have Decision-Making Power

The NIF should be empowered to exercise genuine oversight and effectuate real change.
In practical terms that means the NIF needs to be given voting power. At the same time, the CoChairs and the longtime employer-side Investment Committee Co-Chair should change – perhaps
with the NIF stepping into an actual Chair role at both the Investment Committee and Board levels.
Class Counsel’s mantra, apparently quoting an unspecified communication with one of
their experts, is that the non-monetary relief is “‘a big win’” (or “‘a real win’”) and provides
“‘excellent protective [or protection] infrastructure.’” Prelim. Approval Mot. 14, 18, 35, 44; DE
139 at 10; Fee Mot. 18, 30, 34. The expert in question is presumably Susan Mangiero, Class
Counsel’s expert on governance. Prelim. Approval Mot. 33.

21

E.g., Settlement Agreement § 7.1 & Approval Order, Moreno v. Deutsche Bank Ams. Holding Corp., No. 15-cv9936 (LGS) (S.D.N.Y.) (S.D.N.Y. Aug. 24, 2018 & Mar. 1, 2019) (DE 322-1, 347) (settlement required that an
independent fiduciary issue a “written opinion” as to certain conduct at issue); Settlement Agreement § 10.4 &
Approval Order, Clark v. Duke Univ., No. 16-cv-1044 (D.N.C. Jan. 16, 2019 & June 24, 2019) (DE 149-2, DE 164)
(fiduciaries required to obtain recommendation from independent consultant on whether to solicit bids for certain
services; if consultant says yes but fiduciaries decide no, everyone’s reasons have to be documented, and the consultant
has to issue a written report).

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But these reforms are not a “big win” and the protection they provide is not “excellent” –
and the Court can take that directly from Ms. Mangiero. In a recent article about independent
fiduciaries, Ms. Mangiero explained that whether a NIF succeeds “depends on a panoply of factors,
not the least of which is the authority granted to them to ensure that a robust process exists, is
implemented, and when needed, revised . . . .” (See Ex. 2 hereto & footnote 2 above; emphasis
added.) The NIF here has no such “authority” to “ensure” anything. Ms. Mangiero also stressed
the importance of “protection allowing the independent fiduciary to rigorously watch over the
actions of in-house ERISA investment committee members and outside vendors with impunity.
No one is well-served if a supposedly objective third party . . . has limited clout to prevent undue
risk-taking by others.” Id. (emphasis added). But here the proposed NIF has zero “clout to prevent
undue risk-taking.” (As noted above, the setting of risk/return objectives and the asset-allocation
approval power is vested in voting Trustees alone.) Ms. Mangiero also notes that “[a]n independent
fiduciary should have the latitude to renegotiate vendor contracts.” Id. This NIF has no such
latitude, and at best can comment on choices made by others. Ms. Mangiero again (id.):
The independent fiduciary must brutally assess any deficiencies regarding how in-house
ERISA fiduciary decisions were made in the past and then correct them. This scrutiny
could result in major changes such as revising the investment policy statement for the plan,
working with outside ERISA counsel and in-house Human Resources to improve
participant communications, and/or hiring a firm to carry out a governance audit.
The NIF here is empowered to “correct” nothing. Further, the Agreement does not contemplate
any role by the NIF in a “governance audit,” even though governance is lacking in key respects
here, such as the allegiance of plan counsel. (See I.C. below.) The NIF’s role is limited to “the
Plan’s investments,” Agreement § 8.1.5.1(a)-(d), as opposed to other important subjects, such as
actuarial matters. Although the Agreement leaves open the possibility of expanding the NIF’s
duties, it does not require it. Id. § 8.1.5.1(h).
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The NIF here also is not given any role in “participant communications,” let alone the
ability to “improve” them. Class Counsel asserts that the proposed governance reforms “are
designed to prevent the Trustees from ever again blindsiding Plan Participants like they did from
2010 through the end of 2016,” Prelim Approval Mot. 1 n.1, but that is simply not true. Nothing
in the Agreement begins to address disclosures regarding Fund condition (as opposed to
investment performance), let alone Trustees’ plans to cut benefits. In fact, the Settlement secures
no relief whatsoever for the class on Plaintiffs’ claim based on dishonest (i.e. disloyal)
communications.22 This point is particularly frustrating to Objectors, who are outraged that the
Trustees, in a deliberate effort to hide their imprudent investing and its disastrous results,
undeniably deceived participants for many years about the condition of the Fund and the nature of
its investments.23 Had the Trustees made truthful disclosures prior to 2016, participants would
have had time and an opportunity to adjust their retirement planning to reflect the reality, known
to the Trustees years in advance, that the Fund was in dire circumstances and therefore that the
benefits promised to participants might be cut. The failure not to make timely, accurate disclosure
of this risk was unconscionable; it materially and adversely impacted the retirement security of

22

Am. Compl. ¶¶ 17, 18(a), 177, 179(b), 180(a). The Court expressly sustained those claims even though it ruled that
loss was not adequately alleged. DE 90 at 43. And rightly so: As long as a plaintiff satisfies Article III standing, as the
Plaintiffs here unquestionably do, cf. Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621-22 (2020), lack of causation and
damages is not a reason to withhold injunctive relief for a proven breach of fiduciary duty. See, e.g., Brock v. Robbins,
830 F.2d 640, 647 (7th Cir. 1987).
23
For example, notices the fiduciaries sent in 2014 and 2015 to their financially unsophisticated beneficiaries (huge
numbers of whom did in fact “open . . . mail from the Plan,” DE 184 at 32, and read it) state that if the Fund were
simply to meet its then-current actuarial assumptions, insolvency was not projected. See Ex. 6 hereto at ECF 2, 3. But
the basic defense theory here is that by this time, merely meeting the assumptions was projected to result in insolvency
– supposedly making it prudent for the Trustees to aim for higher returns. See Franklin Report 7 (“the risk of
insolvency was . . . evident . . . in 2015”). The Trustees stated in 2015 (Ex. 6 at ECF 3): “the Plan’s actuary projects
that if the Plan meets its current assumptions, the Plan will remain solvent over the actuary’s 20 year projection
period” – misleadingly omitting that (i) the actuaries in fact had projections for longer periods, and (ii) these showed
insolvency. Franklin Report 18 (by 2015, actuaries were projecting insolvency in “roughly 20 to 30 years”).

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thousands of families. The NIF therefore must be given a decision-making role with respect to
communications to Plan participants.
No one has yet explained why the NIF cannot have genuine decision-making authority and
a broader role. The closest Class Counsel have come is to claim in a footnote that even if the NIF
could vote, it would not matter “because his vote could never trump the majority vote of the duly
elected AFM union president Raymond Hair and his appointees.” Prelim. Approval Mot. 10 n.3.
This does not make sense. The Fund’s governing documents provide, as is common for TaftHartley plans, for “unit voting” by camp: the union Trustees collectively cast one vote, as do the
employer Trustees. Decisions are made by a 2-0 vote (or a vote of 1 in favor and 1 abstaining, and
there are also special procedures for resolving deadlocks).24
There is no reason why this structure cannot be adjusted to accommodate a decisionmaking NIF.25 The NIF could be given at least a third unit vote, so his agreement would be required
in case of a disagreement between union and employer Trustees. Or, better yet, to allay concerns
that the union and employer Trustees could “gang up” on him, the NIF could be given two unit
votes, so that his assent would be required for most Board actions, though the other Trustees acting
together would be capable of deadlocking him. Or if that is too much power, the Fund could do
away with unit voting, and each Trustee plus the NIF could be given an individual vote, forcing
each fiduciary to take his role seriously26 and allowing the NIF to break ties in the event of
unanimity within each caucus. The point is, there are a range of possibilities, and none of them is
especially difficult to imagine or to implement.

24

Exhibit 4 § 6.4.
25
The mutually agreed NIF, Andrew Irving, states that he has “serv[ed] as an independent fiduciary with authority to
make decisions for Taft-Hartley plans and other benefit plans subject to ERISA in lieu of the plans’ board of trustees
or decision-makers,” DE 139-2 ¶ 6 (emphasis added). Clearly this has been done before.
26
Cf. Hair Dep. 317:16 – 22 (employer-side trustee boasted in an email that “I was not sleeping through the
meetings, which is perhaps more than at least one union trustee can say.”).

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In sum, according to criteria supplied by “perhaps the leading fiduciary expert in the
country,” Prelim. Approval Mot. 24, the non-monetary provisions of the Agreement are
inadequate. Objectors’ request for a duly empowered NIF – in line with industry standards as
outlined by Ms. Mangiero – is a reasonable ask given the evidence here, and there is ample
precedent for it. See Settlement Agreement § 7.1 & Approval Order, Moreno v. Deutsche Bank
Americas Holding Corp., No. 15-cv-9936 (LGS) (S.D.N.Y.) (S.D.N.Y. Aug. 24, 2018 & Mar. 1,
2019) (DE 322-1, 347) (approved settlement required that all future decisions regarding certain
conduct challenged in the case “be delegated to an independent fiduciary,” who also would provide
an independent “written opinion” as to other conduct at issue); see also footnote 25 above.
3.

Class Counsel’s Theory That the NIF Will Deter the Trustees or Expose Them
to Liability Is Flawed

Class Counsel also suggests that the lack of a vote does not matter because the NIF
provisions will lead to the creation of a “written record” that will either deter the Trustees from
“tak[ing] similar imprudent investment risks” in the future or else expose them to liability. Prelim.
Approval Mot. 9, 10, 14; Fee Mot. 10. There are three major problems with this premise. The first
is that Class Counsel have mischaracterized the Agreement. Although the NIF is required to state
(orally) his assessment on matters considered by the Investment Committee,27 the NIF is not
required to make – and has no authority to make – what Class Counsel terms “a written record [of]
any material disputes between himself and the Trustees,” Prelim. Approval Mot. 10 (emphasis
added). One searches the Agreement in vain for any general obligation to make a written record
of disagreements (material or otherwise) between the NIF and the Trustees. To be sure, there is an
express obligation to make a written record of any disagreement regarding a candidate to serve as

27

Agreement § 8.1.5(e) (NIF “responsible to state his/her assessment . . . for all matters under deliberation or subject
to a decision or vote related to the Investment Committee”).

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monitor of the OCIO. See Agreement Ex. 6.28 However, with this sole exception, nothing in the
Agreement prevents the Trustees from ignoring, muzzling, or burying the NIF’s views.29
The second problem with the get-prudent-or-get-sued theory is that class members should
not have to go to the trouble and expense of bringing another lawsuit to redress ongoing or
recurring practices exposed in this lawsuit. That this might be required is practically an admission
of the inadequacy of the prospective relief.
The third problem with Class Counsel’s theory is that the Release is phrased in a way
guaranteed to elicit the argument that the Trustees and their vendors/advisors get a free pass for all
practices and courses of conduct that were at issue in the Amended Complaint and continue into
the present and future. (See Section II below.) Thus it is not clear that any relevant “record” (even
assuming that the Trustees were to create one) could be put to any use.
4.

The NIF’s Term Is Too Short

The NIF’s term – four or five years – simply is too short. This Fund has long-term
problems. The statute of limitations does not require the Court in fashioning equitable relief or
considering its adequacy to close its eyes to the fact that the Trustees’ mismanagement began well
before 2011. A longer-lasting mechanism for reining in the Trustees is needed.30

28

There are also provisions ensuring documentation surrounding the OCIO monitor’s proposed asset allocation targets
and the Trustees’ veto of same – but that does not guarantee any record of the NIF’s views. Agreement § 8.1.4.
29
Deposition testimony reflects that the Trustees approve minutes of meetings, that there is jockeying over the contents
of the minutes, and that Trustees and/or their counsel are well aware that minutes of meetings are a potential source
of adverse evidence. E.g., Albert Dep. 176:19-177:3; Brockmeyer Dep. 145:17-147:5, 148:23-149:16, 152:12-154:4,
158:3-21.
30
Yet another problem: Although the Agreement does not say how the NIF is to be paid, presumably the money will
come from Fund assets – which is to say, from the class. This is unfair. The NIF’s fees are likely to add up, as Andrew
Irving is a New York City-based former senior partner at a major national law firm with many decades of legal and
consulting experience whose time likely commands many hundreds of dollars an hour. See DE 139-2 at 5-6. While
perhaps a drop in the overall bucket, as a matter of fairness, the fees of a newly installed fiduciary should be paid by
the Defendants (or their insurer), not the plaintiff class, since it was the breaching fiduciaries whose behavior created
the need for the NIF.

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C. Current Plan Counsel Has Disqualifying Conflicts, Undermining the Integrity of
the Settlement and Underscoring the Need for NIF Empowerment
Class Counsel claims that the relatively recent departure of Rory Albert from Proskauer,
(one of the plan’s two counsels) and the replacement of Bredhoff & Kaiser (the plan’s other
counsel) with the Cohen, Weiss firm “will help bring new blood into the mix,” Prelim Approval
Mot. 13-14. On the contrary: these firms are subject to serious ongoing conflicts of interest that
have adversely impacted the Fund and the class. The Cohen, Weiss firm (like Bredhoff before it)
and Proskauer are plan counsel,31 paid millions of dollars annually out of the class members’
retirement money (see Exhibit 5 hereto, last page) to protect the interests of the plan and its
membership.32 Here, however, the same firms appear as defense counsel for the individual Trustees
in a lawsuit brought on behalf of the plan seeking to have the Trustees make the plan whole for
the Trustees’ breaches of fiduciary duty.33 (As if that were not enough, the firms’ own legal advice
was a major issue in the case, plus Mr. Albert, a key witness for Plaintiffs’ side of the case, was
still at Proskauer during the time of his deposition, which was defended by Proskauer.34)
Just as in shareholder derivative suits director counsel and company counsel should not be
the same, so too here the defense firms should have been disqualified a long time ago either from
defending the Trustees in this case or from their role as plan counsel. McGinn v. DeSoto, Inc., No.
90 C 4481, 1990 WL 251753, at *4 (N.D. Ill. Dec. 21, 1990) (applying ABA Model Rule 1.7(b),
since adopted in New York, to disqualify the same counsel from simultaneously representing plans

31

See https://www.afm-epf.org/AboutAFM-EPF/ExecutiveDirectorConsultants.aspx (listing “Plan Counsel”).
32
Albert Dep. 23:23-24:25 (explaining that in his role as plan counsel, his client is the Fund and its beneficiaries).
33
See Am. Compl. caption & ¶¶ 29, 44, 190; 29 U.S.C. § 1132(a)(2) Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 142 n.9 (1985) (actions by ERISA participants under § 1132(a)(2) are on behalf of “the plan as a whole”).
34
When the Court flagged the counsel-witness issue, defense counsel’s explanation was: “we have no expectation
that any of the partners will say something adverse to their clients,” DE 112 at 10 – apparently forgetting that “their
clients” include the plan, which in this action has interests adverse to the Trustees whom counsel has been
representing. See N.Y. R.P.C. 3.7(b)(1), 1.7(b)(3), (b)(4). Needless to say the plan (acting through conflicted
Trustees) could not have given informed consent to the conflicted representation.

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and trustees in breach of fiduciary duty action: “the interests of the plans conflict with those of the
individual [fiduciary] defendants”). Class Counsel for some reason elected not to do anything
about the morass of conflicts here. But the firms’ dual (and dueling) loyalties – coupled with the
usual incentives of Class Counsel to focus on early monetary relief – do call the integrity of the
Proposed Settlement into question. The competing loyalties are also a stark illustration that the
NIF needs to be given input and authority on governance matters, and needs to be able to engage
with outside service providers of his own choosing who are not beholden to the Trustees – or in
Ms. Mangiero’s words, “to renegotiate vendor contracts.” 
D. The Disclosure Provisions Are Too Weak and Need To Be Strengthened
The Agreement requires public disclosure of the bios and qualifications of a Trustee-elect
“at least four weeks before the effective date of any new Trustees’ [sic] appointment to serve on
the board” (Agreement § 8.1.6) – in other words, after a Trustee has already been selected but
before he/she has taken office.35 This timing is pointless. This information should plainly be posted
for a proposed Trustee before he or she has been selected, so that Plan participants have an
opportunity to evaluate new candidates and raise any objections with union leadership or through
other channels. Furthermore there is absolutely no reason that bios and qualifications should not
be provided for all Trustees, including incumbents.
The Agreement also requires public posting of “a quarterly investment report, in
substantially the same form as Exhibit 5 [to the Agreement], prepared by the OCIO comparing the
Plan’s asset allocation to the asset allocation of Large Taft-Hartley Plans [i.e. multiemployer plans

35

Class Counsel mischaracterizes this provision of the Agreement, stating that Trustees must “provide Plan
Participants with at least four weeks’ notice of the identity and qualifications before any appointment of any new
Trustees, so that Plan Participants have the opportunity to evaluate and raise any objections regarding those
prospective new Trustees.” Prelim. Approval Mot. 13 (emphasis added); see also id. at 23 (inaccurately claiming that
the Agreement requires “advance notice of the identification of each new proposed trustee”).

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with > $1B in assets] and containing a running cumulative comparison of Plan’s actual equity
performance since October 2017 versus an appropriate index benchmark.” Agreement § 8.1.2.
Class Counsel states that this provision “will effectively prevent the Trustees from hiding such
critical information from the participants they represent.” Prelim. Approval Mot. 13. However,
much of the information will remain hidden.
The Exhibit 5 disclosure is a step in the right direction, but it is inadequate. First, it does
not compare the Fund to all other Large Taft-Hartley plans as the Agreement requires, but only
to 12 out of 45 peers, supposedly because this minority is the group that “reported public equity
classifications consistent with AFM-EPF’s classifications.” Agreement Ex. 5 at 21 [DE 139-1 at
82]. Translation: the basic categories used by the Trustees are sufficiently outside the norm that
intelligent comparison with the mainstream is impossible.
Indeed, the asset categories used in Exhibit 5 are opaque and seemingly overlapping. The
following are each sub-categories under “Global Equity”: U.S. Equity (7.9%), Developed ex. U.S.
Equity [i.e. developed international equity] (12.5%), Emerging Markets Equity (6.2%), and Global
Managers (16.2%). See id. Ex. 5 at 11 [DE 139-1 at 72]. What is meant by “Global Managers,”
and into what categories (U.S. equity, international developed, emerging markets) do the 16.2%
of Plan Assets so classified really fall? The Exhibit makes a half-hearted, and imperfect, attempt
to deal with this. Id. Ex. 5 at 21 [DE 139-1 at 82] (“Global Equity managers are apportioned to
[U.S., developed international, and emerging markets] based on their benchmark composition.”
But the benchmark does not indicate what an active fund manager actually owns.)
Similarly, as of December 2019 a staggering additional 16.7% of Plan assets was allocated
to “Hedge Funds,” split into “Hedged Equity” and “Absolute Return.” Id. Ex. 5 at 11 [DE 139-1
at 72] What do these terms mean? “Hedge funds” are not an asset class; they are a loose term for
18

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a(n expensive) category of asset manager36; and the two sub-categories here (“Hedged Equity”
and “Absolute Return”) are jargon that says exactly nothing about the underlying asset class (or
the risk). A hedge fund can invest in U.S. equities, emerging markets, fixed income, and many
things besides, including all sorts of exotic derivative instruments. What percentages of Plan assets
entrusted to hedge fund managers are actually in U.S. equities, developed international, emerging
markets, traditional fixed income, real estate, none of the above, etc.?
Next: focusing just on the “Global Equity” performance (and setting aside the definitional
problem that many of the assets classified in Hedge Funds may properly belong to other
categories), apparently annualized performance September 2017 to December 2019 lagged the
benchmark by 0.9 percent. Agreement Ex. 5 at 3 [DE 139-1 at 64], 6th line. Troublingly, it is
impossible to know from Exhibit 5 exactly what accounts for this underperformance – there is no
information on historic performance for any time period longer than a year for almost any of the
individual investments/managers. Better disclosures are needed.
E. Class Counsel’s Arguments Defending the Adequacy of the Non-Monetary
Provisions Are Not Supported or Persuasive
The non-monetary relief here needs to be measured on the same yardstick as the equitable
relief that would be awarded after Plaintiffs (in all probability) proved fiduciary breach at trial.
Class Counsel argues that the Governance Provisions here “likely exceed the injunctive relief
achievable even after a successful trial,” and that removal of a fiduciary “is an extraordinary
remedy that is rarely ordered in civil cases, particularly where, as here, there is no evidence that
the trustees stole or diverted plan assets for their personal use.” Fee Mot. at 31.37 But Class Counsel

36

See, e.g., SEC Investor Bulletin: Hedge Funds, at https://www.sec.gov/files/ib_hedgefunds.pdf.
37
The only support Class Counsel offers for this argument is Sacerdote v. N.Y.U., 328 F. Supp. 3d 273 (S.D.N.Y.
2018), but that case is off-point for a host of reasons – including that the court there found no breach and so never
needed to rule on remedies.

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themselves pressed for removal of Trustees in a case that did not allege that any Trustees
misappropriated assets. See Am. Compl. at 86 (Prayer for Relief ¶ E); July 9, 2019 Letter from
Steven A. Schwartz [DE 118] at 7.
Class Counsel’s demand was hardly far-fetched. Under ERISA, “[t]he issuance of a
permanent injunction is not limited to cases in which the fiduciary has engaged in self-dealing. [29
U.S.C. § 1109(a)] is intended to be remedial and protective, and the court must determine the
appropriateness of such a remedy in light of all the circumstances of the case.” Chao v. Merino,
452 F.3d 174, 185 (2d Cir. 2006); see also Hugler v. Byrnes, 247 F. Supp. 3d 223, 236-37
(S.D.N.Y. 2017) (“The removal of a fiduciary ‘and the appointment of a person to serve in their
stead is appropriate under the statute when [the fiduciary has] engaged in ‘repeated or substantial
violation[s] of [his] responsibilities.’” (quoting Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir. 1984)
(internal quotation marks omitted)). Imprudent fiduciaries can do at least as much long-term harm
to plan assets as disloyal fiduciaries. E.g., Brock v. Robbins, 830 F.2d 640, 647 (7th Cir. 1987).
Had this case gone to trial, the Court might well have stripped some individuals from the
Board (an express statutory remedy designed to further ERISA’s driving purpose of preventing
the failure of defined-benefit plans, see 29 U.S.C. § 1001(a), 1109(a)), and in all likelihood would
have required that the Board be subjected to extensive oversight. The Court also might have
required that the Board be supplemented with empowered expertise, inasmuch as some of the
problems here seem to have been due to the Board’s population by Trustees who simply were not
equipped to discharge their responsibilities.38 In a settled context, the relief can be somewhat less

38

None of the Trustees on the Union side had expertise in finance, investing, or actuarial matters. See also Witz Report
¶ 55 (employer-side Trustees recognized that they lacked “time or expertise” to discharge the investment function).

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intrusive than if the case had gone to trial, but in exercising its discretion (and its equitable powers),
the Court still must ensure that the non-monetary relief is adequate and reasonable.
II.

The Release Language Is Not “Narrowly Tailored”
Class Counsel claims that the Release is “narrowly tailored,” Prelim. Approval Mot. 35,

and that class members can “fil[e] their own lawsuit regarding the Trustees’ investment decisions
from November 2017 to the present,” Fee Mot. 34-35. But the theoretical ability to maintain suit
for post-October 2017 conduct, assuming it exists, is cold comfort when (1) there is a ticking threeyear clock running from a plaintiff’s “actual knowledge,” 29 U.S.C. § 1113(2), (2)
October/November 2020 is less than three months from now (Class Counsel had to conduct “an
extensive six-month investigation” before launching this case, Prelim. Approval Mot. 23-24), and
(3) to top it all off, an injunction is in place (preliminary now, DE 163 at 8, and permanent upon
approval of the settlement, see DE 139-1 at 54 ¶ 12), enforceable in contempt, against commencing
suit based on a Released Claim – which will discourage any class member (and its counsel)
dissatisfied with the proposed remedies in this case from testing whether a claim based on postNovember 2017 conduct is preserved or released.
The even larger problem, though, is that there appears to be no such “November 2017 to
the present” carve-out in the Agreement – it was invented by Class Counsel. The “Released
Claims” are broadly defined as any claims that “were asserted in the Complaint or Amended
Complaint, or that arise out of, relate in any way to, are based on, or have any connection with any
of the factual or legal allegations asserted in the Complaint or Amended Complaint, including,
but not limited to, those that . . . have any connection with decisions made, prior to the OCIO
Management Date [i.e. October 1, 2017], regarding” investment-related subjects, disclosures, and
fiduciary breach. Agreement § 2.22.1 (emphasis added).
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The reference to an October (not November) 2017 date and to the switch to an OCIO comes
after “including but not limited to”, and the language does not parse in a way that temporally limits
the Release in the way Class Counsel claims. In fact, Agreement § 9.3 provides that “the release
of future entities or persons included among the Released Parties in Section 2.22 shall be limited
to those Released Claims that are based on conduct preceding the Settlement Effective Date.” This
language makes sense only if the Release covers conduct after 2017 up to the Settlement Effective
Date and also (for all Released Parties other than the future entities or persons protected by § 9.3)
beyond into the future – or so a defendant is likely to argue in a future case.
In other words: To the extent that imprudent behavior XYZ (i) was challenged in the
Amended Complaint or has any arguable connection with anything challenged in the Amended
Complaint, (ii) has continued from October/November 2017 to this day and/or (because the
governance provisions are so weak) continues or recurs in the future, and (iii) a future suit is filed
challenging imprudent behavior XYZ based on the Trustees’ acts or omissions in 2018 or 2020 or
2022, the defense is sure to argue release, covenant not to sue, res judicata (and theoretically there
is also a risk of contempt). Thus, even as the Agreement fails to prevent ongoing and future
breaches, it also extinguishes or hampers the assertion of claims based on such breaches.
III.

Class Counsel’s Discussion of Supposed Litigation Risks Is Wrong and Also
Irrelevant To Assessing the Adequacy of the Non-Monetary Relief
Class Counsel argues settlement adequacy largely by pointing to (1) supposed risks and

constraints associated with a potential damages award, and (2) a limited supply of insurance
money as a source of collection. Prelim. Approval Mot. 35-40. But the supposed limit on the
amount of damages potentially recoverable here is not relevant to the question of what equitable
relief is appropriate. In fact, the opposite is true. To the extent that available insurance constrains
what would otherwise be a much larger dollar recovery, that would be a reason for the settlement
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to have stronger, not weaker, non-monetary provisions – to ensure that the overall relief is
adequate and fair to the class even if the monetary recovery is limited.39
And indeed, the insurance policy does seem to be the main constraint here. Class Counsel
significantly understates the likelihood of obtaining a very high-dollar judgment assuming the
Court were to find liability. Class Counsel suggests that ERISA’s “six-year statute of limitations
prohibited Plaintiffs from recovering damages for [imprudent] investment allocation decisions
made before July 2011.” Prelim. Approval Mot. 10. But while damages suffered outside the
limitations period (here, during 2010 and the first half of 2011) may not be recoverable, damages
suffered inside the limitations period because of a failure to correct an imprudent decision made
outside the limitations period are surely recoverable. E.g., Tibble v. Edison Int’l, 135 S. Ct. 1823,
1828 (2015) (“Under trust law, a trustee has a continuing duty to monitor trust investments and
remove imprudent ones.”). As of the outset of the limitations period, the Trustees as fiduciaries
had liability for failing to correct an imprudent asset allocation that they or their predecessors had
made outside the limitations period. Thus the aggressive 2010 asset allocation (see Prelim.
Approval Mot. 17) is very relevant to the damages recoverable.
Class Counsel sheepishly points out that Plaintiffs’ damages theory rests on the “notion”
that because of the imprudent allocations, “the Plan missed out on substantial additional gains that
would have been achieved as a result of prudent asset allocation during the extraordinary domestic

39

There is another reason why the monetary payment here is not much consolation: The insurance money in a
meaningful sense comes from the class members. The Fund annually pays $2 million a year for insurance (see Exhibit
5 hereto, last page), the lion’s share of which we understand to be the D&O premiums. Multiplied by the 12 years
during which the Fund’s fiduciaries have botched the 2008 financial crisis and its aftermath, that would add up to
much of the proposed insurance payment here – a reminder that the house always wins. Add to that the fact that after
a case like this is settled, the future premiums on the liability insurance – again paid using class members’ retirement
money – are sure to rise significantly. Thus while we have no basis to dispute that the $50 million policy limits (net
of defense costs) are a practical ceiling on the potential collection here (although Class Counsel raises a tantalizing
doubt about even that, see Prelim. Approval Mot. 30 n.7), the Court, in assessing fairness and adequacy, should
consider that the insurance payout essentially consists of the defendants using the class members’ own retirement
money, paid over time, to buy themselves out of this case.

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equity bull market run from 2010 to 2017.” Id. at 46. Class Counsel suggests that this “‘should
have earned more’” theory had only iffy chances of success, making a recovery in or approaching
the nine figures implausible. Id. In reality Plaintiffs’ damages theory rests on well-settled ERISA
and trust law: If a fiduciary invests imprudently, the recoverable loss is the difference between the
resulting value of plan assets and the value they would have had if they had been invested
prudently. Dardaganis v. Grace Capital, Inc., 889 F.2d 1237, 1243 (2d Cir. 1989) (“If, but for the
breach, the Fund would have earned even more than it actually earned, there is a ‘loss’ for which
the breaching fiduciary is liable”); Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985) (“the
measure of loss applicable under ERISA section 409 requires a comparison of what the Plan
actually earned . . . with what the Plan would have earned had the funds been available for other
Plan purposes”); see also Restatement (Third) of Trusts § 100 (2012).40
Class Counsel’s discussion also completely ignores the substantial provable damages from
the Trustees’ over-reliance on active managers when passive alternatives were available. The
defense damages expert valued this claim alone at $30 million (assuming liability is established);
the Plaintiffs’ expert’s figures were at least twice as high.41
Class Counsel (Prelim. Approval Mot. 45-46; Fee Mot. 25-26) suggests that two recent
cases that ended in verdicts for the defense are cautionary tales. Class Counsel points out that in
Brotherston v. Putnam Investments, LLC, 2017 WL 2634361, at *12 (D. Mass. June 19, 2017), the
trial court “found that the plaintiffs ‘failed to establish a prima facie case of loss,’” despite “a
persuasive showing that the fiduciaries were ‘no paragon of diligence’ and that the defendants had

40

Quoting Dardaganis, Class Counsel alludes to “uncertainties in fixing damages.” Prelim. Approval Mot. 44. Class
Counsel strips that phrase from context. What the Second Circuit actually said was that a court “should presume that,
but for the breach, the funds would have been invested in the most profitable of the alternatives” and “uncertainties
in fixing damages will generally be resolved against the wrongdoer.” 889 F.2d at 1244 (emphasis added).
41
See Carron Rebuttal Report ¶ 63; Witz Report ¶ 130 & page 70 Fig. 10.

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failed to monitor the plan’s investments.” Prelim. Approval Mot. 46. What Class Counsel does not
mention is that the First Circuit vacated and remanded this ruling because the district court – having
tentatively concluded that Defendants breached their fiduciary duties – analyzed “loss” incorrectly.
907 F.3d 17, 31, 42 (1st Cir. 2018).
Class Counsel also mischaracterizes Sacerdote. There, unlike here, the decisions made by
NYU relating to recordkeeping systems and other matters (all of them far less consequential than
the subject matter of this case) were (unlike the decisions at issue here) clearly well-founded and
well-supported. Class Counsel makes much of the trial court’s criticism of several NYU
functionaries for a “concerning lack of knowledge relevant to [their] Committee’s mandate,” 328
F. Supp. 3d at 280, 291-92. But those were quibbles that played only a minor role in the opinion;
the committee did include knowledgeable people and NYU, very much unlike the Trustees here,
made objectively reasonable decisions.
CONCLUSION
This is not a case in which the defendants have changed their ways, or leadership has turned
over. It is one in which the fiduciary breaches exposed by the lawsuit continue to the present day.
The Agreement itself not only does almost nothing about it; it also hinders class members from
doing anything about it. The incumbents’ latitude needs to be checked with an independent
fiduciary empowered in ways Class Counsel’s own expert has explained are best practices. Class
Counsel worked hard on this case and developed a compelling record of years-long incompetence,
mismanagement, and dishonesty by the Trustees, but unfortunately the Proposed Settlement is
inadequate, unfair, and unreasonable. The Court should decline to approve it.

25

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List of Exhibits
Exhibit 1: Compilation of asset allocation targets
Exhibit 2: Mangiero article
Exhibit 3: Report of Bolton Partners
Exhibit 4: Trust Agreement, as amended
Exhibit 5: Excerpts from the Plan’s IRS Form 5500 for plan year ending Mar. 31, 2019
Exhibit 6: Participant communications

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Appendix: List of Objectors and Signatures42
Steven Nathan
Phillip Ayling
John R. Blane
Robert Stephen Brewster
Mike Brignardello
Pat Buchanan
Robert Buchanan
Peter Cannarozzi
John Mark Casstevens
Jack Cavari
John Clark
Felicia Collins
James Cox
Stephanie Cummins
Jacqui Danilow
Clint de Ganon
Christopher Deschene
Armen Donelian
Dennis Dreith
Glenn Drewes
Dan Dugmore
Bruce Dukov
Stuart Duncan
Robert Elhai
Mason Embry
Tony Finno

42

The list has been corrected in accordance with counsel’s July 29 letter to the Court.

28

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Randall D. Ford
Shannon Ford
Larry Franklin
Allison Brewster Franzetti
Steve Gelfand
Owen Hale
Shari Hoffman
Mitchell L. Holder
Jody Jarowey
Jefferson Jarvis
Patrick Johnson-Whitty
John Jorgenson
JoAnn Kane
Randa Kirshbaum
Robert Kondor
Chuck Leavell
Paul Leim
Chris Leuzinger
Wesley Lee Little
Kerry Marx
John McDaniel
Joel McNeely
Greg Morrow
Kenneth Munday
Craig E. Nelson
Ron Oates
Warren Odze
Mark Olen
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Daniel J. Parks
Weldon Dean Parks
Larry Paxton
Jay Rosen
Steven Schaeffer
Adam Shoenfeld
Jeffrey Southworth
David A. Spinozza
C. Michael Spriggs
Edgar M. Struble
Kenneth Wild
John David Willis
Glen A. Worf
Carol Zeavin

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EXHIBIT 1

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Target Allocations as of Feb. 2010 and Sept. 2010

(Adapted from April 9, 2019 Carron Report, p. 12, Ex. 2.)

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November 2011 asset allocation targets

(Excerpted from April 9, 2019 Witz Report p.41.)

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February 2015 asset allocation targets

(Excerpted from April 9, 2019 Witz Report p.46.)

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December 31, 2019 asset allocation information
(Excerpted from Settlement Agreement Ex. 5, DE 139-1 at ECF p.72.)

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InvestorForce Public Equity Summary

Taft-Hartley Plans ≥ $1B; data as of 6/30/19

Disclaimer: While this is provided for informational purposes, the utility of this comparative information is limited. The investment allocation of any plan, 
including AFM‐EPF, is developed based on a variety of factors unique to the plan, such as investment goals and philosophy, funding levels, risk tolerance 
and time horizon. Accordingly, this comparison, standing alone, does not indicate the appropriateness of any particular allocation.

AFM‐EPF Public Equity Allocation vs. Taft‐Hartley 
Plans ≥ $1B
70%

Certain asset allocation
information as of
June 30, 2019
(Excerpted from
Settlement Agreement Ex.
5, DE 139-1 at ECF p.82.)

60%
50%
40%
30%
20%
10%
0%
Total Public Equity

US Equity

Developed ex‐US
Equity

Emerging Markets
Equity

Total Public 
Equity
AFM‐EPF

42.2%

17.5%

16.6%

8.1%

Maximum

61.3%

41.9%

10.1%

14.6%

Average
Notes:

US Equity

Developed ex‐US  Emerging Markets 
Equity
Equity

45.6%

23.4%

4.4%

6.3%

Minimum

24.1%

2.4%

0.2%

2.1%

All data is as of 6/30/2019 and there were 45 Taft‐Hartley plans ≥ $1b reporting returns as of 6/30/2019. 
Of those, 12 reported public equity classifications consistent with AFM‐EPF's classifications.
For all 12 plans, the sum of the equity sub‐asset classes did not equal the total equity percentage for the plan. We cannot account for this.
AFM‐EPF's Global Equity managers are apportioned to the 3 categories above based on their benchmark composition, and AFM‐EPF is not included in the 12 reported plans.
Different funds may report allocations and classify investments inconsistently.
Sources: AFM-EPF data from Cambridge Associates and comparative data from InvestorForce

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 111 of 240

EXHIBIT 2

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Benefits & Executive Compensation News

INSIGHT: Calling ERISA Ghostbusters—
The Rise of Independent Fiduciaries
By Susan Mangiero and Mitchell H. Shames
Feb. 26, 2020, 4:01 AM

Settlement of ERISA lawsuits are increasingly including the hiring of an independent fiduciary to
oversee plan processes. With a nod to the movie Ghostbusters, two fiduciary experts examine the
reasons for the trend, the role of an independent fiduciary, and how ERISA investment committee
activity likely changes when they’re required.

If recent settlement trends are any indication, ERISA-savvy independent fiduciaries will be working around
the clock.
Just like the heroes in Ghostbusters, the 1984 blockbuster movie, neutral arbiters will continue wrestling
with the ghouls of sub-par practices to attempt to save the day for retirement plan participants. Whether
they succeed depends on a panoply of factors, not the least of which is the authority granted to them to
ensure that a robust process exists, is implemented, and when needed, revised to reflect prudence and
prevailing facts and circumstances.
The Employee Retirement Income Security Act of 1974 (ERISA) and the Department of Labor each
consistently rely upon independent fiduciaries to protect the economic interests of plan participants.
Transactions involving company securities or the purchase of annuity contracts raise potential risks of
self-dealing but can be facilitated through the use of an independent fiduciary.
Furthermore, the DOL requires the use of an independent fiduciary any time a plan sponsor or financial
institution requests individual exemptive relief from the self-dealing prohibited transactions rules.
Whether by statute, regulation, or administrative relief, the ERISA environment is no stranger to the
protections associated with engaging independent fiduciaries.
What’s different now is a movement by the plaintiff’s bar to set in place operational changes with respect
to plan management. Increasingly, reforms sought by attorneys are in addition to any pre-trial or intratrial financial settlement or, when a court opines against defendants, economic damages.

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Demands typically reflect plan design, amount of monetary harm (alleged or adjudicated), nature of
fiduciary breach complaints, negotiating leverage of each side, relevant regulatory opinions, and case
precedents. Mandates range from simple to complex. Some are relatively inexpensive to implement.
Others require a large budget.
Not all directives are universally agreed upon as the singular way to add value for participants. Consider
vendor selection. Defined contribution plan stewards and their advisers still wax about the cost-benefit
tradeoffs of issuing a request for proposal (RFP) versus relying on consultant bench-marking. Defined
benefit plan decision-makers continue to debate the merits of liability-driven investing or restructuring
with the help of an insurance company. An automatic, one-size-fits-all approach is no substitute for
procedural prudence.
ERISA Bill Murrays and Sigourney Weavers
Enter the independent fiduciaries, the ERISA Bill Murrays and Sigourney Weavers, to navigate how best
assets are handled “with the care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.”
They stand atop the governance infrastructure of a qualified plan, waging war against conflicts and bad
practices. The engagement of an independent fiduciary signals change. Her presence can enhance the
critical rebuilding of trust among plan participants that often disintegrates during class action litigation. In
a tight labor market, companies rely on a generous benefit mix to attract and retain talent. Enlightened
sponsors, including those who settle without admitting fault, want employees to value their retirement
plans.
The hiring of an independent fiduciary occurs after all parties agree on the need to engage one. The
recruitment process includes steps such as identifying which individuals and firms should be considered,
the basis on which they will be evaluated for the job, how much to pay them, and for how long. Equally
important, a binding agreement must be finalized.
Contract terms will vary by situation. What should not vary is protection allowing the independent
fiduciary to rigorously watch over the actions of in-house ERISA investment committee members and
outside vendors with impunity. No one is well-served if a supposedly objective third party rubber stamps
decisions or has limited clout to prevent undue risk-taking by others.
As the term implies, two separate determinations must be assessed when considering a firm (or
individual) for this position. The firm must be both “independent” and a “fiduciary.” Independence
requires the firm have no other relationships with the plan sponsor or the retirement plan which could
give rise to a conflict of interest.

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As a fiduciary, the firm should demonstrate its expertise in fiduciary matters. Due to the multi-disciplinary
nature of ERISA decision-making, an independent fiduciary will often be supported by persons with
experience, knowledge and credentials in governance, investment management, operations, and
technology.
Significant case law over the past decades has given rise to a robust set of standards related to the
fiduciary management of retirement plans. Professional fiduciaries are not only learned about these
practices, they place fiduciary practices at the center of their business model.
Integrating the Independent Fiduciary
Integrating an independent fiduciary, once hired, can be challenging, especially if there are some who
resist the role. Additionally, the independent fiduciary will need to quickly learn about the pre-existing
structure of plan administrators and service providers.
An essential early step is the independent fiduciary’s assessment of the current procedures which govern
a specific plan. Court decisions are clear and unambiguous that procedural prudence is a key element in
fulfilling fiduciary responsibility. Beyond that, an independent fiduciary should review documentation as
well a sponsor’s support staff abilities. An independent fiduciary needs assurance that sponsor resources
are available so she can eliminate process elements that don’t work and make requisite improvements.
Procedural prudence requires a precise allocation of settlor and fiduciary responsibilities among the
various professionals engaged in the management of a specified retirement plan. ERISA affords significant
flexibility in delegating certain duties as long as properly vetted service providers are regularly and
thoroughly monitored.
An independent fiduciary should have the latitude to renegotiate vendor contracts. This activity would,
inter alia, reflect the independent fiduciary’s appraisal of the reasonableness of fees paid to outsiders,
taking the value of services rendered into account.
Abiding by fiduciary best practices likewise requires the maintenance of contemporaneous written
records. Such documents would embody procedures relied on by plan fiduciaries as well as tracking how,
why, and when plan fiduciaries make decisions.
The independent fiduciary must brutally assess any deficiencies regarding how in-house ERISA fiduciary
decisions were made in the past and then correct them. This scrutiny could result in major changes such
as revising the investment policy statement for the plan, working with outside ERISA counsel and in-house
Human Resources to improve participant communications, and/or hiring a firm to carry out a governance
audit.
Once the initial assessment occurs, the independent fiduciary will regularly monitor the ERISA fiduciary
decision-making process. At least annually, and potentially more often, an assessment must be made by
the independent fiduciary as to whether the procedural prudence apparatus is being effectively utilized,
as well as determining whether new facts or contexts should force adjustments of the process, no matter
how longstanding.

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Providing fiduciary responsibility is a dynamic process. The work of an ERISA fiduciary is never done nor
should it be. Once an independent fiduciary’s contract has expired, in-house fiduciaries must continue the
process of self-examination, alone or with the reinforcement of relevant third party experts.
With aggregate ERISA litigation settlements and court decisions totaling billions of dollars, independent
fiduciaries can play a vital role in helping sponsors stay below the radar of plaintiff’s counsel. If a lawsuit
has already been filed, an independent fiduciary can assist with mediation, pre-trial settlement, or postresolution upgrades. Even without proton packs and green slime detectors, effective independent
fiduciaries are modern day action heroes.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Author Information
Susan Mangiero (PhD, CFA) is the founder and managing director of Fiduciary Leadership LLC, a senior
governance consultant, and author of Risk Management for Pensions, Endowments and Foundations. An
Accredited Investment Fiduciary Analyst, Certified Fraud Examiner and forensic economist, she has served as an
expert witness on multiple ERISA and non-ERISA cases involving issues related to fees, investment selection,
investment monitoring, performance reporting, derivatives, risk management, valuation, hedge funds, private
equity funds, and company securities.
Mitchell H. Shames is the founder and managing director of Harrison Fiduciary Group LLC. An attorney
and formerly the general counsel of State Street Global Advisors, he is a leading expert, with 30 years of
experience in fiduciary practices and structuring investment products for both domestic and global
financial institutions.
The information provided by this article should not be construed as financial or legal advice.

© 2020 The Bureau of National Affairs, Inc. All Rights Reserved

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4/4

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 116 of 240

EXHIBIT 3

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 117 of 240

April 4, 2018

Adam Krauthamer
Musicians for Pension Security
Re: American Federation of Musicians and
Employers’ Pension Fund
Dear Adam,
As you know, I have been engaged by Musicians for Pension Security (MPS), an organization
which represents the concerns of certain participants of the AFM – EPF Pension Plan (the Plan).
I have been asked to provide my observations to assist all parties – the participants and the
trustees – to find solutions and approaches that may avoid the necessity to certify the Plan as
critical and declining as of March 31, 2018, and to avoid the need to suspend the accrued
retirement benefits of Plan participants.
I am not the Plan’s or the Retirement Board’s actuary. I do not have all the data and models that
the Plan’s actuary has so I am somewhat limited in what I can do. However, there is a lot I know
and at the end of this letter I will give you some idea of where the plan assets are headed and
what certain changes might mean to the Plan.
There are approximately 1,400 multiemployer pension plans in this country. Of these, only 104
are in critical and declining status, and of those 104, only 15 have applied to the United States
Treasury for reduction in benefits. These 15 represent a mere 1.1% of all multiemployer plans. If
the Trustees declare the Plan to be in critical and declining status, and then decide to make
application to the U.S. Treasury to reduce benefits, they place the Plan in a very small minority
of highly dysfunctional multiemployer plans.
Plans can and do recuperate from setbacks. A study by the Plan’s actuary has shown that 60% of
multiemployer plans in critical status are projected to emerge from critical status in the future.
(Milliman, Multi-employer Pension Funding Study, 2016)
My own recent experience confirms that when trustees and the union make the plan a priority,
troubled plans can often stabilize themselves. As recently as 2009, one of my plans - the
Baltimore Teamsters pension plan - had a Funded Ratio of 49%; however, through a
combination of (1) increases in employer contributions; (2) benefit changes, such as, what your
plan went through when your benefit formula was changed from 4.65% to 1%; and (3) slow
administrative expense growth of less than 1% per year; the Funded Ratio is now 89% and on its
way to being 100% funded. Starting in 2010, the Baltimore Teamster’s Rehabilitation and
Funding Improvement Plans included a plan for 6.6% annual contribution increases which
almost all employers agreed to and which was a key part to their recovery.

Bolton Partners, Inc.
36 S. Charles Street • Suite 1000 • Baltimore, Maryland 21201 • [phone] • [phone] • Fax [phone]
Employee Benefits and Investment Consulting

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 118 of 240
Mr. Adam Krauthamer
April 4, 2018
Page 2
Many of my key points in this letter will be about the impact of raising contributions. While
sustaining increases of 6% per year over a long period of time (like the Baltimore Teamster Plan)
can be difficult, some of the plans that have filed to cut benefit with the US Treasury Department
have also included substantial contribution increases, for example: about 10% per year for five
years for the Alaska Ironworkers and 5.6% per year for a few years for the Ironworkers Local 16
plan.
I note that in the last 10 years at the Central States Teamsters pension plan, the trustees had a
“primary schedule” that required employers to agree to five years of 8% compounded annual
contribution rate increases, three years of 6% compounded increases, and then continuous 4%
compounded annually increases. (Central States Teamsters MPRA Suspension Application,
section 18.7). This was in an industry plagued with problems such as high diesel fuel prices,
insolvent employers, and the deregulation of the industry. These industry conditions led to
rampant employer withdrawals and high numbers of orphan participants.
The AFM Plan is not experiencing these problems. Employer withdrawals at the Plan are quite
low and seem to pose no significant threat. Similarly, the proportion of orphans (i.e., employees
in the Plan whose employers have gone bankrupt) is also quite low. Moreover, the demographics
of the Plan are far more favorable than most of the critical and declining plans with which I am
familiar. This suggests to me that the opportunity for higher employer contributions to the Plan is
real.
Let me be clear, however, that without changes, there need to be benefit cuts to your Plan and
even with changes, cuts will likely be needed without Congressional help. The amount of
expected cuts that the Trustees need to decide on will depend a lot on the assumptions about the
future. Certainly, the most important one is the expected future return on assets. The higher the
assumption, the smaller the cuts, but the more risk that the cuts will not be sufficient to keep the
plan from becoming insolvent. While the Trustees can change the investment mix, they have no
control over the stock market. Therefore, my focus has been on one thing that the Trustees and
the Union do have more control over: the level of future contributions.
At this point, most of the contributions to your plan are being used to reduce the unfunded
liability. The Trustees will factor into their decisions the amount of future contributions when
determining whether to cut benefits and by how much. Bringing in more contributions means
smaller cuts.
In my opinion, at this point you may not be able to avoid cutting retiree benefits like the
Baltimore Teamsters did; however, a recovery could take place at the Plan by raising
contributions faster than currently assumed. Specifically, I recommend two things for your
consideration:
1. Delaying any cuts for three years; and
2. During the next three years ask for larger contribution increases.

Bolton Partners, Inc.

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 119 of 240
Mr. Adam Krauthamer
April 4, 2018
Page 3
Here is some background, my rationale, and some numbers:
The actuarial assumption used by the Plan’s actuary in December 2017 for annual increases in
employer contributions is known as the Industry Activity Assumption (IAA). The IAA for the
Plan has been set by the AFM-EPF trustees and their actuary at 2.5%. This is less than the rate of
national wage inflation this past year which was 2.9%. In my experience, an IAA that is less than
the rate of wage inflation is probably too low unless the industry is in decline, which does not
seem to be the situation for this Plan.
In this regard, I note that there have been times in the Plan’s history when much higher levels of
employer contributions have been achieved. For example, between 2003 and 2007, the Plan
achieved average annual increases of 6.23%. (May 18, 2011 Milliman Presentation, page 3).
This suggests that with some energetic bargaining with employers, higher IAA’s are justifiable.
Yet for the Trustees, the Plan actuary, and the Treasury to be comfortable with a higher IAA
assumption for the future may require results at the bargaining table. My understanding is that
you have a lot of labor contracts but roughly they are on a three-year cycle which I factored into
my recommendation.
What happens if the Plan or union (1) delays benefit cuts for three years; (2) can negotiate an
average of a 6% contribution increase over this bargaining cycle or (3) assumes that they
continue to get 6% per year for five years and then assume 2.9% per year thereafter? Milliman
estimated in 2016 that $32 million per year in benefits payments could be avoided if cuts were
not delayed. That means that there will be about $100 million less in assets in three years than
there otherwise would be. However, if 6% per year contribution increases were bargained for
and the Trustees (and Treasury officials) were comfortable with the higher assumptions, then
over $319 million more could be raised over the next 20 years, which is one of the time horizons
the Trustees must look at. The $319 million would need to be adjusted to today’s dollars and
some of the total would go for more benefits for current employees. However, this would cover
the delay in cuts for three years and result in smaller cuts in three years, or whenever the Plan is
in the Critical and Declining category.
Attached is a graph showing projected Plan assets under two scenarios. One line shows a
projection of plan assets based on numbers from a presentation done by the Plan’s actuary
(Milliman) in December that assumes the 2.5% annual contribution increases. Since I do not
have all their data, I created my base-line graph trying to match and extend their numbers. From
there, I modeled what would happen if we gradually increased assets by increasing contributions
not by the assumed 2.5%, but by 6% for five years and 2.9% thereafter, as I discussed earlier. I
was also asked to assume the trustees can reduce plan expenses by 10%. The second line (my
Alternative projection) shows a material improvement, a five-year delay in “insolvency”, but not
enough to fully solve the problem.
We do not know how the trustees want to reduce benefits, or by how much. I understand that for
them to throw out numbers creates a risk of disappointment, however, in the last couple of years
we saw estimates of a 23.3% potential cut and, adding to that, additional 1.5% cuts for every
year of delay. Based on the assumptions and methods used, these could be correct. If we

Bolton Partners, Inc.

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 120 of 240
Mr. Adam Krauthamer
April 4, 2018
Page 4
assume we can get the types of contribution increases illustrated in the attached graph, the cuts
could be closer to either: (1) 13% now (although cuts might not be immediately possible if the
plan is not Critical and Declining), or (2) no cuts for three years and about 18% in three years (if
the plan in three years is Critical and Declining).
Ultimately this will be the Trustees’ and Treasury’s call. As I indicated, it is my opinion that the
Plan’s Industry Activity assumption of 2.5% is probably too low. If you think you can have
negotiated contribution increases of 6% for five years, my recommendation is to ask the union to
make that their goal and ask the Trustees to wait three years.
If the Trustees keep their 2.5% Industry Activity Assumption and show they expect the fund to
run out of money within 20 years, they could propose cuts, starting at the end of an approval
process, in about a year. However, if the U.S. Treasury agrees with me that he Industry Activity
Assumption is probably too low, then the application could be rejected. If it is approved, one
could ask whether the Plan could just make the larger cuts now and restore some if we get larger
contribution increases? Maybe, but probably not for many years and at that point, it would be too
late for some retirees.
Actuarial Certification
The undersigned credentialed actuary is a member of the Society of Actuaries and meets the
Qualification Standards of the American Academy of Actuaries to render the actuarial opinion
contained in this letter. We are not aware of any conflicts of interest that would impair the
objectivity of this work.
We are available to answer questions relevant to this analysis and will provide additional
information as necessary.
Sincerely,
BOLTON PARTNERS, INC.

Thomas Lowman, FSA, MAAA, Vice President

Attachment: Graph

Bolton Partners, Inc.

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 121 of 240

American Federation of Musicians and Employers’ Pension Fund
Alternative: Contribution Increases (6% for 2020-2024, 2.9% thereafter) and 10% Expense Reduction
$2,000,000,000

$1,000,000,000

$500,000,000

($500,000,000)

($1,000,000,000)

Alternative Projections

Milliman Projections

2049

2048

2047

2046

2045

2044

2043

2042

2041

2040

2039

2038

2037

2036

2035

2034

2033

2032

2031

2030

2029

2028

2027

2026

2025

2024

2023

2022

2021

2020

2019

$0
2018

Market Value of Assets

$1,500,000,000

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 122 of 240

EXHIBIT 4

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 123 of 240

AGREEMENT AND DECLARATION
OF
TRUST ESTABLISHING
THE AMERICAN FEDERATION
OF
MUSICIANS AND EMPLOYERS’
PENSION FUND
(As Amended And Restated Effective as of April 1, 2005)

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 124 of 240

AGREEMENT AND DECLARATION OF TRUST
ESTABLISHING THE AMERICAN FEDERATION
OF MUSICIANS AND EMPLOYERS’
PENSION FUND
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS .......................................................................................................3
1.1 Administrative Committee .............................................................................................3
1.2 Agreement or Trust Agreement .....................................................................................3
1.3 Audit Committee ............................................................................................................3
1.4 Authorized Person ..........................................................................................................3
1.5 Beneficiary .....................................................................................................................3
1.6 Board ..............................................................................................................................3
1.7 Code ...............................................................................................................................3
1.8 Collective Bargaining Agreement..................................................................................4
1.9 Collective Trust ..............................................................................................................4
1.10 Committee ......................................................................................................................4
1.11 Covered Employee or Employee ...................................................................................4
1.12 Custodian .......................................................................................................................5
1.13 Employer, Employers or Contributing Employers ........................................................5
1.14 Employer Trustee ...........................................................................................................5
1.15 ERISA ............................................................................................................................5
1.16 Executive Director .........................................................................................................5
1.17 Foreign Securities ..........................................................................................................5
1.18 Instruct or Instructions ...................................................................................................5
1.19 Investment Committee ...................................................................................................5
1.20 Investment Manager.......................................................................................................5
1.21 Investment Manager Account ........................................................................................6
1.22 National Collective Bargaining Agreement ...................................................................6
1.23 Plan ................................................................................................................................6
1.24 Real Property or Interests in Real Property ...................................................................6
1.25 Securities or Security .....................................................................................................6
1.26 Trust, Trust Fund, or Fund .............................................................................................7
1.27 Trustee(s) .......................................................................................................................7
1.28 Union..............................................................................................................................7
1.29 Union Trustee.................................................................................................................7
ARTICLE II NAME, PURPOSE AND OPERATION OF TRUST............................................8
2.1 Name ..............................................................................................................................8
2.2 Purpose ...........................................................................................................................8
2.3 Operation........................................................................................................................8
2.4 Participation by Contributing Employers ......................................................................8
2.5 Obligations of Contributing Employers .........................................................................9
i

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 125 of 240

ARTICLE III TRUSTEES ..........................................................................................................10
3.1 Composition of Trustees ..............................................................................................10
3.2 Acceptance of Trust and Trusteeship...........................................................................10
3.3 Selection of Trustees. ...................................................................................................10
3.4 Written Appointments and Acceptances ......................................................................10
3.5 Term of Office .............................................................................................................10
3.6 Resignations .................................................................................................................11
3.7 Removal of Employer Trustees ...................................................................................11
3.8 Removal of Union Trustees .........................................................................................11
3.9 Successor Employer Trustees. .....................................................................................11
3.10 Successor Union Trustees ............................................................................................11
3.11 Powers of Successor Trustees ......................................................................................11
3.12 Use of Corporate Trustee. ............................................................................................12
ARTICLE IV PLAN OF BENEFITS ..........................................................................................14
4.1 Benefits. .......................................................................................................................14
4.2 Written Plan of Benefits...............................................................................................15
4.3 Insurance Contracts ......................................................................................................15
4.4 Exclusive Benefit. ........................................................................................................15
4.5 No Assignment of Benefits ..........................................................................................16
ARTICLE V POWERS AND DUTIES OF TRUSTEES .........................................................17
5.1 Receipt of Payments. ...................................................................................................17
5.2 Payment of Benefits .....................................................................................................17
5.3 Expenses. .....................................................................................................................17
5.4 Insurance Contracts. .....................................................................................................18
5.5 General Powers. ...........................................................................................................19
5.6 Committees. .................................................................................................................27
5.7 Standard of Care ..........................................................................................................28
5.8 Reliance on Written Instruments and Advice of Professionals. ..................................28
5.9 Indemnification ............................................................................................................28
5.10 Bonding ........................................................................................................................29
5.11 Fiduciary Insurance ......................................................................................................29
5.12 Deposit and Withdrawal of Funds. ..............................................................................30
5.13 Delegation of Power ....................................................................................................30
5.14 Discretionary Authority. ..............................................................................................30
5.15 Execution of Documents. .............................................................................................31
ARTICLE VI MEETINGS AND DECISIONS OF TRUSTEES ...............................................32
6.1 Officers. .......................................................................................................................32
6.2 Calling of Meetings......................................................................................................32
6.3 Quorum ........................................................................................................................32
6.4 Vote of Trustees. ..........................................................................................................32
6.5 Minutes of Meetings ....................................................................................................33
6.6 Arbitration. ...................................................................................................................33
ii

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 126 of 240

ARTICLE VII ALLOCATION OF RESPONSIBILITIES ..........................................................35
7.1 The Executive Director. ...............................................................................................35
7.2 The Board.....................................................................................................................36
7.3 Administrative Committee. ..........................................................................................37
7.4 Investment Committee. ................................................................................................39
7.5 Audit Committee. .........................................................................................................41
ARTICLE VIII INVESTMENT MANAGERS ............................................................................44
8.1 Appointment of Investment Managers.........................................................................44
8.2 Authorization. ..............................................................................................................44
8.3 Acknowledgments........................................................................................................45
8.4 Direction by Investment Manager ...............................................................................45
8.5 Review by Board..........................................................................................................45
8.6 Issuance of Orders........................................................................................................45
8.7 Investment Guidelines .................................................................................................46
8.8 Proxies or Other Ancillary Rights................................................................................46
ARTICLE IX PAYMENTS TO THE FUND .............................................................................47
9.1 Employer Contributions. ..............................................................................................47
9.2 Effective Date of Employer Contributions ..................................................................47
9.3 Mode of Payment .........................................................................................................47
9.4 Default in Payment. .....................................................................................................48
9.5 Enforcement Actions ...................................................................................................50
9.6 Payments Required by Court Award ...........................................................................50
9.7 No Waiver of Other Rights. .........................................................................................50
9.8 Remittance Reports. .....................................................................................................51
9.9 Audits. ..........................................................................................................................51
ARTICLE X AMENDMENT; TERMINATION; AND TRANSFER OF ASSETS ................54
10.1 Amendment ..................................................................................................................54
10.2 Limitation of Amendments ..........................................................................................54
10.3 Termination. .................................................................................................................54
10.4 Transfer of Assets. .......................................................................................................55
ARTICLE XI ACCOUNTS OF THE BOARD...........................................................................57
11.1 Board to Maintain Trust Accounts...............................................................................57
11.2 Valuation ......................................................................................................................57
ARTICLE XII MISCELLANEOUS .............................................................................................58
12.1 Situs..............................................................................................................................58
12.2 Choice of Law ..............................................................................................................58
12.3 Counterparts .................................................................................................................58
12.4 Titles; Plurals; and Gender...........................................................................................58
12.5 Service of Process ........................................................................................................58
12.6 Validity of Trustees’ Accounts and Instruments .........................................................58
12.7 Definitions....................................................................................................................59
iii

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 127 of 240

12.8
12.9
12.10
12.11
12.12
12.13
12.14
12.15
12.16
12.17
12.18

Notices .........................................................................................................................59
Severability ..................................................................................................................59
Legal Compliance ........................................................................................................59
Successor Provisions of Law .......................................................................................60
Entire Agreement .........................................................................................................60
Construction .................................................................................................................60
Inurement .....................................................................................................................60
Rights In Fund..............................................................................................................60
Trust Grants No Interest to Employees ........................................................................60
Duration of Agreement ................................................................................................60
Interpretation of Agreement .........................................................................................60

ARTICLE XIII WITHDRAWAL LIABILITY ............................................................................62
13.1 In General.....................................................................................................................62

iv

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 128 of 240

AGREEMENT AND DECLARATION OF TRUST
ESTABLISHING THE AMERICAN FEDERATION
OF MUSICIANS AND EMPLOYERS’
PENSION FUND
THIS AGREEMENT AND DECLARATION OF TRUST, amended and
restated as of the 1st day of April 2005, establishing the AMERICAN
FEDERATION OF MUSICIANS AND EMPLOYERS’ PENSION FUND (the
“Fund”), by and among (a) HAROLD BRADLEY, HAL ESPINOSA, WILLIAM
L. FOSTER, THOMAS F. LEE, DAVID LENNON, WILLIAM MORIARITY,
MELINDA WAGNER, ED WARD and PHIL YAO (who, with their successors
designated in the manner provided herein, are hereinafter collectively referred to
as the “Union Trustees”) on behalf of THE AMERICAN FEDERATION OF
MUSICIANS OF THE UNITED STATES AND CANADA, AFL-CIO
(collectively, the “Union”) and as Union Trustees; and (b) IRVING W.
CHESKIN, J. NICHOLAS COUNTER, III, ARNOLD KAPLAN, JOANN
KESSLER,

MARION

PRESTON,

ALAN

H.

RAPHAEL,

JEFFREY

RUTHIZER, NORMAN K. SAMNICK and HARRIET SLAUGHTER (who,
with their successors designated in the manner provided herein, are hereinafter
collectively referred to as the “Employer Trustees”) on behalf of the Employers
contributing to the Plan (collectively, the “Employers”) and as Employer Trustees
(the Union Trustees and the Employer Trustees being hereinafter collectively
referred to as the “Board” or the “Trustees”).

1

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 129 of 240

WITNESSETH:
WHEREAS, the Employers and the Union have executed, and it is expected that
from time to time hereafter they will execute, collective bargaining agreements,
participation or similar agreements (collectively, “Collective Bargaining
Agreements”)

which,

among

other

things,

require

periodic

Employer

contributions to the Fund; and
WHEREAS, the Employers and the Union became parties to an Agreement and
Declaration of Trust establishing the Fund, dated October 2, 1959 and as amended
and restated as of February 13, 1992, September 29, 1994, and September 25,
1997, and as from time to time thereafter amended (the “Existing Trust”), the
assets of which have been and will continue to be used for the exclusive purpose
of (a) providing retirement and related benefits to certain employees of the
Employers (“Covered Employees”) eligible to participate in the American
Federation of Musicians and Employers’ Pension Plan, as amended (the “Plan”)
and their dependents or beneficiaries (“Beneficiaries”); and (b) defraying the
reasonable administrative and other expenses attributable to the operation of the
Fund and the Plan; and
WHEREAS, it was and continues to be mutually agreed among the Employers
and the Union that the Fund and Plan shall be established, operated and
administered by the Trustees; and
WHEREAS, the Trustees now desire to amend and restate the Existing Trust, to
incorporate, inter alia, various amendments made to the Existing Trust since it
was last amended and restated and other modifications desired by the Board.
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants herein contained, it is hereby mutually understood and agreed by the
Trustees (and, through them, the Employers and the Union) as follows:

2

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 130 of 240

ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the respective meanings set forth below:
1.1 “Administrative Committee” shall mean the Committee described in
Section 7.3.
1.2 “Agreement” or “Trust Agreement” shall mean this Agreement and
Declaration of Trust, as may from time to time hereafter be amended, which
establishes the funding vehicle for the Plan for the benefit of Covered Employees
and certain of their Beneficiaries, and sets forth the respective rights, obligations
and responsibilities of the Executive Director, the Board, and any Committees
duly authorized by the Board to take any actions hereunder.
1.3

“Audit Committee” shall mean the Committee described in Section 7.5.

1.4 “Authorized Person” shall mean, with respect to the Trust Fund, the CoChairs of the Board, any individual Trustee or member of any Committee of
Trustees duly authorized by the Board to execute documents or otherwise
represent the Board or said Committee, and the Executive Director where the
Executive Director has been duly authorized by the Board to represent the Board
or the Trust Fund in connection with a specific matter. With respect to an
Investment Manager Account, the term “Authorized Person” shall mean any
officer (or partner) of the Investment Manager or any other person or persons as
may be duly designated pursuant to advance written notice by such officer (or
partner) to the Board. With respect to a Custodian, the term “Authorized Person”
shall mean any officer of said Custodian.
1.5 “Beneficiary” shall mean a Covered Employee’s spouse, or such other
person or entity entitled under the terms of the Plan to receive benefits, if any,
under the Plan following the death of the Covered Employee.
1.6 “Board” shall mean the individuals from time to time acting collectively as
the Board of Trustees under this Agreement, which shall also be the “named
fiduciary” (as that term is defined in Section 402(a)(2) of ERISA) and the
“administrator” (as that term is defined in Section 3(16)(A) of ERISA) of the
Plan, appointed to control and manage the operation and overall administration of
the Plan and the Trust Fund.
1.7 “Code” shall mean the Internal Revenue Code of 1986, as from time to time
amended, and all rules and regulations promulgated pursuant thereto.
3

Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 131 of 240

1.8 “Collective Bargaining Agreement” shall mean any collective bargaining,
participation, or other written agreement between an Employer and the Union or
between an Employer and the Trust Fund (or, where the Trust Fund is the
employer, written minutes of a meeting of the Board) requiring an employer to
make contributions to this Trust Fund on behalf of its Covered Employees, which
is in force and effect and is acceptable to the Board (through Board approval or
otherwise in accordance with procedures it establishes). Any such Collective
Bargaining Agreement shall be deemed to specifically incorporate the terms and
conditions of this Agreement and the Plan and, by executing such Collective
Bargaining Agreement, each Employer that is a party to such agreement thereby
agrees to comply with and be legally bound by each and every provision of the
Plan and this Agreement (as such documents may from time to time be amended
by the Board) as if the Employer actually executed such documents.
1.9 “Collective Trust” shall mean any group, pooled, common, commingled or
collective trust fund maintained by a bank, trust company or broker-dealer, in
which assets of employee benefit plans subject to ERISA and the Code may be
invested. The trustees of such Collective Trust shall become trustees of the
allocable share of the Trust Fund assets transferred and deposited with such
Collective Trust, and shall have sole and exclusive authority and discretion to
manage and control (including the power to invest and reinvest) such Collective
Trust assets. The Board shall not be liable for any act or omission of any trustee
or other fiduciary of a Collective Trust, or be under any obligation to invest or
otherwise manage any assets of the Trust Fund that have been transferred thereto.
The provisions of the agreement establishing such Collective Trust shall be
deemed to be incorporated by reference into this Agreement (to the extent that the
provisions thereof are not inconsistent with the terms of this Agreement or
violative of ERISA, the Code or other applicable law).
1.10 “Committee” shall mean the Administrative Committee, the Audit
Committee, the Investment Committee, or any other committee or subcommittee
duly appointed and authorized by the Board to act pursuant to this Agreement.
1.11 “Covered Employee” or “Employee” shall mean an individual employed
by an Employer to render services pursuant to the terms of a Collective
Bargaining Agreement, including a shareholder of a corporation or an owner of a
limited liability company (“LLC”) duly organized and operated under the laws of
a State of the United States who is employed by that corporation or LLC to render
service as a musician. Notwithstanding the foregoing, a Covered Employee or
Employee may in no event mean: (i) a self-employed person or sole proprietor
that is an Employer (including, without limitation, a band leader) who is acting as
his or her own employee; (ii) the spouse of a person described in (i); (iii) a partner
of a partnership that is an Employer who is acting as an employee of such
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partnership; or (iv) an owner of an LLC who was a member of the plaintiff class
in the Rochetti action that was settled in 1991.
1.12 “Custodian” shall mean one or more banks, trust companies, or brokerdealers selected by the Board as a “Corporate Trustee” (as that term is defined in
Section 3.12) and/or custodian of Trust Fund Securities.
1.13 “Employer”, “Employers” or “Contributing Employers” shall mean any
employer acceptable to the Board (through Board approval or otherwise in
accordance with procedures it establishes) that heretofore or hereafter is required
or otherwise undertakes to contribute to the Plan and/or the Trust Fund on behalf
of its Covered Employees pursuant to a Collective Bargaining Agreement. The
term “Employer”, “Employers” or “Contributing Employers” shall not include
unincorporated self-employed persons or sole proprietorships with no other
employees, or partnerships that have no employees other than partners.
1.14 “Employer Trustee” shall mean each individual named in Section 3.3(a) or
designated as an Employer Trustee pursuant to the procedures set forth in Section
3.9.
1.15 “ERISA” shall mean the Employee Retirement Income Security Act of
1974, as from time to time amended, and all rules and regulations promulgated
pursuant thereto.
1.16 “Executive Director” shall mean any individual, person or entity that has
been appointed by the Board pursuant to Section 7.1 to control the day-to-day
administration of the Plan and operation of the Trust Fund.
1.17 “Foreign Securities” shall mean any securities described in Section 404(b)
of ERISA and 29 C.F.R. § 2550.404b-1.
1.18 “Instruct” or “Instructions” shall mean written communications signed by
an Authorized Person (including, without limitation, instructions received by
facsimile, electronic mail or any other electronic system, whereby the receiver of
such communication is able to verify with a reasonable degree of certainty the
identity of the sender of such communication).
1.19 “Investment Committee” shall mean the Committee described in Section
7.4.
1.20 “Investment Manager” shall mean any person or entity that has been
appointed by the Board pursuant to this Agreement to manage, acquire or dispose
of any Securities or other property of the Trust Fund who is, and has
acknowledged in writing to the Board that it is, (a) a fiduciary (within the
meaning of Section 3(21) of ERISA) with respect to the assets held in its
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Investment Manager Account; and is (b) either (1) an investment manager
registered in good standing under the Investment Advisers Act of 1940, (2) a bank
(as defined in said Act) located within the United States, or (3) an insurance
company qualified under the laws of more than one state to manage, acquire or
dispose of employee benefit plan assets. The Board shall have the right, in its sole
and absolute discretion, to appoint the Custodian as an Investment Manager for all
or a portion of the Trust Fund Securities or other property.
1.21 “Investment Manager Account” shall mean that portion of the Trust Fund
which has been segregated by the Board for investment management by one or
more Investment Manager(s), each of which shall constitute a separate Investment
Manager Account.
1.22 “National Collective Bargaining Agreement” shall mean any Collective
Bargaining Agreement to which the American Federation of Musicians of the
United States and Canada, AFL-CIO is a party.
1.23 “Plan” shall mean the detailed rules and regulations of the American
Federation of Musicians and Employers’ Pension Plan, and any amendments or
modifications thereto from time to time adopted by the Board, setting forth the
basis on which the eligibility for benefits and the nature, type, form, amount and
duration of benefits shall be made to Covered Employees and Beneficiaries,
which shall be funded under the Trust Fund.
1.24 “Real Property” or “Interests in Real Property” shall mean, in general,
all real property and interests therein of whatever nature and personal property,
both tangible and intangible, directly or indirectly associated or connected with
the use of real property (including, without limitation, direct or indirect equity or
other investments in real estate, interests in partnerships and other joint ventures
having an interest in real property, participating or convertible mortgages or other
debt instruments convertible into interests in real property by the terms thereof,
options to purchase real estate, leaseholds, leasebacks, investments in group,
collective or commingled real estate funds, and investments in securities issued by
real estate investment trusts). For purposes of this definition, real property
includes any property treated as real property either by local law or state law or
for Federal income tax purposes.
1.25 “Securities” or “Security” shall mean, except as may otherwise be
provided in a written agreement or investment guidelines between the Board and
an Investment Manager, all Trust Fund securities of any and every kind wherever
situated, and any rights or interests therein, including, but not limited to,
(a) common and preferred stocks, including the stock of an Employer (or any
parent, subsidiary or other person associated or affiliated therewith) to the extent
permitted by ERISA; (b) obligations of the United States Government or any
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government of a state of the United States (and any of their agencies and
instrumentalities); (c) bonds, debentures, notes and other evidences of
indebtedness, including bonds, debentures or notes of an Employer (or any parent,
subsidiary or other person associated or affiliated therewith) to the extent
permitted by ERISA; provided, however, that the making of such investment will
not result in more than 3% of the Trust Fund (calculated as of the time of the
investment) being invested in bonds, notes or debentures of such Employer;
(d) savings and time deposits (including, without limitation, any deposits bearing
a reasonable rate of interest that the Custodian, or a bank or similar financial
institution appointed as a trustee or custodian hereunder by the Board, makes in
itself or in any parent, subsidiary or other person associated or affiliated
therewith, to the extent permitted by law); (e) bankers’ acceptances;
(f) commercial paper (including participations in pooled commercial paper
accounts); (g) Collective Trusts; (h) Foreign Securities (including, without
limitation, American Depository Receipts); (i) participation units or certificates
issued by investment companies or investment trusts; (j) collateral trust notes;
(k) equipment trust certificates; (l) life insurance, retirement income, guaranteed
investment, annuity and other forms of insurance policies or contracts; (m) bank
investment contracts; (n) private equity, venture capital, hedge funds, fund of
funds limited liability companies, partnerships, limited partnerships and other
forms of alternative investments; and (o) any options, warrants or other
instruments representing rights to receive, purchase, or subscribe for the same or
evidencing or representing any other rights or interest therein appurtenant to such
Securities.
1.26 “Trust,” “Trust Fund,” or “Fund” shall mean all cash, Securities and
other property which at the time of reference shall have been deposited in the trust
account established pursuant to this Agreement or held by a Custodian, including
any portion thereof which has been segregated in an Investment Manager Account
or held under a group trust or Collective Trust, and any Real Property or Interest
in Real Property at any time held by the Trust Fund.
1.27 “Trustee(s)” shall mean collectively the individual Employer Trustees and
the individual Union Trustees.
1.28 “Union” shall mean the American Federation of Musicians of the United
States and Canada, AFL-CIO, and any local unions (and certain related entities)
duly affiliated therewith; provided, however, that for all purposes of Articles III
and X, the term Union shall mean solely the American Federation of Musicians of
the United States and Canada, AFL-CIO.
1.29 “Union Trustee” shall mean each individual named in Section 3.3(b) or
designated as a Union Trustee pursuant to the procedures set forth in Section 3.10.
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ARTICLE II
NAME, PURPOSE AND OPERATION OF TRUST
2.1 Name. The Trust shall be known as the “American Federation of
Musicians and Employers’ Pension Trust.”
2.2 Purpose. The Trust is established for the exclusive purpose of
providing certain pension and related benefits to Covered Employees and their
Beneficiaries under the Plan, and shall further provide the means for financing
and maintaining the operation and administration of the Trust and the Plan in
accordance with this Agreement, the Plan, and applicable law.
2.3

Operation.

(a) It is intended that this Trust shall be established and operated in a manner that
shall qualify it as an organization exempt from income taxation under Section
501(a) of the Code. Notwithstanding anything to the contrary contained herein,
the Trust shall be operated exclusively for such purposes as will comply with
Section 501(a) of the Code. To the extent that anything herein is inconsistent with
the Code, this Agreement shall be deemed amended in such fashion as will
implement the purposes of this Trust while continuing to comply with the
requirements of the Code.
(b) It is further intended that this Trust shall be established and operated in a
manner that complies with ERISA. To the extent that anything herein is
inconsistent with ERISA, this Agreement shall be deemed amended in such
fashion as will implement the purposes of this Trust while continuing to comply
with the requirements of ERISA.
(c) The Trust shall also be established and operated as a “jointly-administered”
pension fund within the meaning of, and in accordance with, Section 302(c) of the
Labor Management Relations Act of 1947, as amended. To the extent that
anything herein is inconsistent with said Act, this Agreement shall be deemed
amended in such fashion as will implement the purposes of this Trust while
continuing to comply with the requirements of said Act.
2.4 Participation by Contributing Employers. Any Employer may
participate in the Trust and the Plan by:
(a) Executing a Collective Bargaining Agreement, or otherwise establishing a
consistent pattern of contributing to the Trust Fund on behalf of its employees
pursuant to a Collective Bargaining Agreement;

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(b) Designating a date on which such participation shall become effective;
(c) Designating the categories of employment and its Covered Employees for
participation in the Plan; and
(d) Acceptance by the Board of the participation by such Employer in the Plan
and Trust.
2.5 Obligations of Contributing Employers.
By executing or
complying with the terms of a Collective Bargaining Agreement, each Employer
shall be deemed (without any further action) to have:
(a) Reviewed, understood, adopted and agreed to all provisions of this
Agreement and the Plan (and any amendments to such Agreement or Plan), which
documents shall be deemed to have been incorporated by reference into such
Collective Bargaining Agreement;
(b) Authorized the Employer Trustees to act as its agent and execute this
Agreement and the Plan on its behalf;
(c) Agreed to comply with and be bound unconditionally to said Plan and Trust,
any amendments thereto, as well as all of the decisions of the Trustees and the
Executive Director; and
(d) Agreed to pay the costs of the Plan by means of periodic contributions to the
Fund on behalf of its Covered Employees as set forth in a Collective Bargaining
Agreement, as well as any additional payments to the Fund required pursuant to
the decision of the Trustees, the terms of this Agreement, the Plan or a Collective
Bargaining Agreement.

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ARTICLE III
TRUSTEES
3.1 Composition of Trustees. The number of Trustees under this
Agreement shall be designated by the Board from time to time, provided that
there shall be at least seven (7) Employer Trustees and at least seven (7) Union
Trustees and no more than ten (10) Employer Trustees and ten (10) Union
Trustees. There shall always be an equal number of Employer Trustees and Union
Trustees (except in situations in which a Trustee vacancy is pending and waiting
to be filled).
3.2 Acceptance of Trust and Trusteeship. The Trustees appointed
hereunder hereby accept the Trust created and established by this Agreement and
consent to act as Trustees thereof by assuming the responsibility for the operation
and administration of the Trust. By their signature to this Agreement, or any
counterpart or copy hereof, each Trustee hereby agrees to accept the trusteeship
and to act in their capacities as trustees and fiduciaries of the Trust Fund in
accordance with the provisions of this Agreement.
3.3

Selection of Trustees.

(a) The current Employer Trustees shall be: IRVING W. CHESKIN,
J. NICHOLAS COUNTER, III, ARNOLD KAPLAN, JOANN KESSLER,
MARION PRESTON, ALAN H. RAPHAEL, JEFFREY RUTHIZER, NORMAN
K. SAMNICK and HARRIET SLAUGHTER. In no event shall the Union or a
Union Trustee be entitled to designate an Employer Trustee.
(b) The current Union Trustees designated by the Union shall be: HAROLD
BRADLEY, HAL ESPINOSA, WILLIAM L. FOSTER, THOMAS F. LEE,
DAVID LENNON, WILLIAM MORIARITY, MELINDA WAGNER, ED
WARD and PHIL YAO. In no event shall the Employers or an Employer Trustee
be entitled to designate a Union Trustee.
3.4 Written Appointments and Acceptances.
Except for the
appointments of the initial Trustees under this Agreement, copies of the written
appointments of successor Trustees shall be provided to the Board as soon as
practicable after the appointments. Each Trustee shall signify his or her
acceptance of the trusteeship in writing and in person at a meeting of the Board.
3.5 Term of Office. Each Trustee appointed under this Agreement shall
continue to serve as such until his or her death, incapacity, resignation or removal
as herein provided.

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3.6 Resignations. A Trustee may resign, and shall be fully discharged
(to the extent permitted by law) from further duty or responsibility hereunder,
upon giving at least sixty (60) days advance written notice to the Board, or such
shorter notice as the Board may accept as sufficient, in which notice there shall be
stated a date when such resignation shall take effect; and such resignation shall
take effect on the date specified in the notice, unless a successor Trustee shall
have been appointed (as provided by Section 3.9 or Section 3.10) at an earlier
date, in which event such resignation shall take effect immediately upon the
successor Trustee taking office.
3.7 Removal of Employer Trustees. Any Employer Trustee may be
removed from office at any time, with or without cause, (a) by a majority vote of
the Employer Trustees then in office; or (b) in accordance with the procedure
described in Section 3.9(b).
3.8 Removal of Union Trustees. Any Union Trustee may be removed
from office at any time, with or without cause, in the sole discretion of the Union,
by an instrument in writing signed by the duly authorized President of the Union
and filed with the Board.
3.9

Successor Employer Trustees.

(a) In the event that any Employer Trustee shall die, become incapable of acting
hereunder, resign, or be removed pursuant to Sections 3.7 or 3.9(b) (by a petition
which omits to name a successor) or, in the event of an increase in the number of
Trustees, the Employer Trustees then in office may by majority vote designate a
person to fill the position of Employer Trustee thus made available.
(b) An Employer Trustee may be removed and a successor Employer Trustee
appointed by the filing of a petition with the other Employer Trustees containing
the signatures of Employers that were responsible for 50% or more of the
contributions made to the Trust Fund by all Employers during the last complete
six (6) month period ended June 30 or December 31 immediately preceding the
submission of such petition.
3.10 Successor Union Trustees. In the event that any Union Trustee
shall die, become incapable of acting hereunder, resign, or be removed pursuant
to Section 3.8, or in the event of an increase in the number of Trustees, the duly
authorized President of the Union shall designate a successor Union Trustee by
the filing with the Board of a certificate in writing.
3.11 Powers of Successor Trustees. Any successor Trustee under this
Agreement shall immediately, upon his or her designation as a successor Trustee
and his or her acceptance of the trusteeship in writing filed with the Board,
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become vested with all rights, powers, privileges and duties of a Trustee
hereunder with like effect as if originally named as Trustee.
3.12 Use of Corporate Trustee.
(a) At any time and from time to time, the Board may appoint, as a Corporate
Trustee or Custodian, a bank, trust company or broker-dealer located within the
United States.
(b) The Board may, pursuant to Instructions, delegate to the Corporate Trustee or
Custodian:
(1) the power to hold the Fund or a portion of it as sole trustee of a trust
separate from the Fund created by this Trust Agreement (and not as an agent of
the Trustees or as co-trustee hereunder with the Trustees);
(2) the power to invest and reinvest the Fund (or applicable portion) in
the Corporate Trustee’s sole discretion (pursuant to the powers set forth in Section
5.5 as may be duly delegated to it by the Board);
(3)

the power to lend Trust Fund Securities (pursuant to Section 5.5(u));

(4)

such other duties and powers as the Board may deem advisable.

and

(c) The Board may enter into and execute a trust, custodial or other written
agreement with the Corporate Trustee or Custodian, which agreement shall
contain such provisions as the Board may deem advisable. Upon execution of
such agreement with the Corporate Trustee or Custodian, the Board may transfer
and convey to the Corporate Trustee or Custodian any part or all of the Securities,
Real Property or Interest in Real Property, or other property of the Fund
acceptable to the Corporate Trustee or Custodian, and thereupon the Board shall
be forever released and discharged from any responsibility or liability with
respect to such assets so transferred as to any period subsequent to such transfer
and with respect to the investment and reinvestment thereof by the Corporate
Trustee or Custodian. Notwithstanding such transfer, the Board shall continue to
carry on its administrative and supervisory functions under the Plan in accordance
with the provisions of the Plan and this Agreement.
(d) The Board may, at any time, remove the Corporate Trustee or Custodian in
the manner provided in the trust or other agreement between the Board and the
Corporate Trustee or Custodian. In the event that a Corporate Trustee or
Custodian is appointed, such Corporate Trustee or Custodian shall, if and when
removed by the Board, cause to be transferred to the Board any Trust Fund
Securities, real, personal or other property or records then in its possession, along
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with a final accounting of the Securities or other property of the Fund held and/or
managed by the Corporate Trustee or Custodian pursuant to said agreement.

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ARTICLE IV
PLAN OF BENEFITS
4.1

Benefits.

(a) The Board (or its duly authorized designee) shall have the full and exclusive
right, power and authority, in its sole and absolute discretion, to determine all
questions of the nature, type, form, amount and duration of benefits (including,
without limitation, matters pertaining to the interpretation and application of
reciprocity and portability agreements with other funds and plans) to be provided
to Covered Employees and their Beneficiaries. However, no benefits other than
pension, retirement, disability and such other related benefits as the Board may
from time to time determine, may be provided to Covered Employees and
Beneficiaries or paid for under the Trust.
(b) Payment of benefits under the Plan shall be made directly from the Fund by
the Board (or the Executive Director, the Custodian, or other duly authorized
agent) or may be provided for by the purchase and delivery of such insurance
contracts, policies or certificates, to such persons, in such manner, and at such
time as the Board shall decide.
(c) The Board (or its agents) shall be fully protected in making, discontinuing or
withholding benefit payments from the Fund, or purchasing or delivering
insurance contracts, policies or certificates (or instructing the insurers with respect
thereto), all in reliance upon information received from the Contributing
Employer respecting the status of any Covered Employee employed by such
Employer. Each Contributing Employer shall indemnify and hold harmless the
Fund, the Board, each Trustee and each of the Fund’s employees and agents from
the consequences of relying on any information or directions furnished to the
Board, the Executive Director, any Committee member or their agents by such
Contributing Employer.
(d) If for any reason (including, without limitation, mistake of fact or law, or
reliance on any false or fraudulent statements, information or proof submitted by
a claimant) benefit payments are made to any person from the Fund in excess of
the amount which is due and payable under the Plan, the Board (or the Executive
Director or any Committee or other designee duly authorized by the Board) shall
have full authority, in its sole and absolute discretion, to recover the amount of
any overpayment (plus interest and costs). That authority shall include, but shall
not be limited to, (1) the right to reduce benefits payable in the future to the
person who received the overpayment, (2) the right to reduce benefits payable to a
surviving spouse or other beneficiary who is, or may become, entitled to receive
payments under the Plan following the death of that person, and/or (3) the right to
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initiate a lawsuit or take such other legal action as may be necessary to recover
any overpayment (plus interest and costs).
(e) When any benefit payment, or the purchase or delivery of any insurance
contract, policy or certificate (or any payment thereunder) is to be made in
accordance with the terms of the Plan when the person entitled to receive such
benefit maintains or attains a given age or status, or when a certain condition
exists regarding such person, any such payment, purchase, delivery or instruction
made, discontinued or withheld by the Board in good faith, without actual
knowledge or notice of the prescribed change in the age, status or condition of the
payee, shall be considered to have been properly effected by the Board.
4.2 Written Plan of Benefits. The specific detailed basis upon which
the eligibility for benefits, types and forms of benefits payable (and any
restrictions thereon), and the payment of benefits to Covered Employees and
Beneficiaries, is to be specified in (and determined under) the Plan, as amended
by the Board from time to time.
4.3 Insurance Contracts. The written plan of benefits comprising the
Plan may consist, in part, of contracts with one or more insurance companies.
4.4

Exclusive Benefit.

(a) Notwithstanding anything to the contrary contained in this Agreement, it
shall be impossible at any time prior to the satisfaction of all liabilities with
respect to the Covered Employees under the Plan (or their Beneficiaries) for any
part of the Trust Fund, other than such part as is required to pay taxes, fees and
expenses of the administration and operation of the Plan, to be used for or
diverted to purposes other than for the exclusive benefit of Covered Employees
(or their Beneficiaries); provided, however, that to the extent permitted by the
Code, ERISA and other applicable law, in the event that any Employer
contribution to the Trust Fund has been (1) made by a mistake of fact or law
(including, without limitation, any contribution to the Trust Fund inadvertently
made on the basis of overscale wages), (2) conditioned on the qualification of the
Plan under Sections 401 or 501 of the Code, and the Plan receives an adverse
determination with respect to its qualification, or (3) conditioned upon the
deductibility thereof under Section 404 of the Code, and all or a part of such
deduction has been disallowed; then the Board may (but shall not be required to)
in its sole and absolute discretion, return such contribution (or the value thereof, if
less) to the Employer prior to the expiration of six months after a determination
by the Audit Committee (or its duly authorized designee) as to (1) above, one year
following the adverse determination under (2) above, or one year following the
disallowance of the deduction under (3) above (but only to the extent of the
disallowance).
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(b) The determination as to whether an Employer has made a contribution or
other payment to the Trust Fund by a mistake of fact or law, and whether such
contribution or payment should be returned to the Employer, shall be made in the
sole and absolute discretion of the Board or the Audit Committee (or either of
their duly authorized designees) in accordance with ERISA and other applicable
law, taking into account all of the evidence submitted by such Employer to
demonstrate that such contribution or payment was made by mistake; provided,
however, that the Employer shall have the burden of proving that such
contribution or payment was made by mistake. The decision of the Board or the
Audit Committee (or either of their duly authorized designees) as to whether such
contribution or payment was made by mistake, and whether it should be returned
to the Employer, shall be final and binding on the Employer.
4.5 No Assignment of Benefits. Except with respect to “qualified
domestic relations orders” (as defined in Section 206(d)(3) of ERISA), voluntary
and revocable assignments (as permitted by Section 206(d)(2) of ERISA), or as
may otherwise be provided in the Plan, ERISA or the Code:
(a) No benefit payable at any time under the Plan prior to receipt thereof by a
Covered Employee (or Beneficiary or estate), shall be subject in any manner to
alienation, sale, transfer, assignment, pledge, attachment or encumbrance of any
kind, nor shall any retirement benefit, until actually paid to the Covered Employee
(or Beneficiary or estate), be in any manner subject to the debts or liabilities of
said Covered Employee (or Beneficiary or estate);
(b) Any attempt to alienate, sell, transfer, assign, pledge or otherwise encumber
any such benefit, prior to receipt thereof by the Covered Employee (or
Beneficiary or estate), in violation of the restrictions set forth in the preceding
sentence shall be void and of no effect;
(c) Benefit payments (or portions thereof) under the Plan or Trust shall not in
any way be subject to any legal process, execution, attachment or garnishment, be
used for the payment of any legal claim against any such person, or be subject to
the jurisdiction of any bankruptcy court or, insolvency proceedings by operation
of law or otherwise.

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ARTICLE V
POWERS AND DUTIES OF TRUSTEES
5.1

Receipt of Payments.

(a) The Board (or such other person or entity acting on behalf of, and duly
authorized by, the Board) is hereby designated as the entity authorized to receive
the Employer contributions hereafter made to the Trust, and is hereby vested with
all rights, title, and interest in and to such monies and all interest accrued thereon
and appreciation thereof.
(b) The Board agrees to receive all Employer contributions and to hold them in
trust hereunder for the uses and purposes of the Trust and the Plan, and may
deposit all or a portion of such monies with such Custodians as they may
designate for this purpose.
5.2 Payment of Benefits. The Board shall pay out of the Trust, at the
time or times and in the manner specified in the Plan, the benefits provided for
therein. The payment of benefits shall be in accordance with the written Plan
referred to in Section 4.2.
5.3

Expenses.

(a) The Board shall use and apply the assets of the Trust for the following
purposes:
(1) To pay from the Trust Fund, or provide for the payment of, all
reasonable and necessary expenses of collecting Employer contributions and
administering the affairs of the Trust, including, without limitation, all expenses
which may be incurred in connection with the maintenance, operation and
administration of the Plan and the Trust, including, but not limited to:
(A) the fees and compensation of consultants, actuaries,
accountants, attorneys and any other persons employed by the Board or the
Executive Director to render services to the Fund or the Plan;
(B) the payment of fees, expenses and other costs of holding or
investing the assets of the Fund;
(C) the fees and expenses of any Investment Manager or
Custodian as may be appointed by the Board;
(D) any taxes;
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(E) the expense of maintaining mailboxes, bank accounts and
safety deposit boxes (if any);
(F) the cost of implementing and maintaining any accounting,
auditing, computer, recordkeeping and any other systems which the Board has
determined to be necessary or appropriate for the establishment, operation or
administration of the Trust Fund or the Plan.
(2) To pay from the Trust Fund or provide for the payment of,
subscriptions, charges, deposits or other payments under benefits contracts; and to
pay or provide for the payment of premiums on the policy or policies of
insurance, if, when and to the extent such premiums shall become due.
(b) The Trustees shall not receive any compensation from the Trust for the
performance of their duties as Trustees, but shall be reimbursed from the Trust
Fund for all reasonable, actual and necessary expenses which they incur in the
performance of their duties as Trustees hereunder, including, without limitation,
in connection with their education as fiduciaries of the Plan and Trust Fund.
5.4

Insurance Contracts.

(a) The Board may enter into such insurance contracts and policies, including
group annuity contracts, make such premium or other payments thereon, make
such elections thereunder, agree to any alteration, modification or amendment
thereof, and take such actions with respect thereto as the Board shall, in its sole
discretion, determine. With respect to any such insurance contract the Board is, in
its discretion, authorized to assume all the rights, privileges and benefits
thereunder and ownership thereof, and to take all actions required of or permitted
thereunder, and the insurance carrier or organization with which such group
contracts are in effect shall not be required to inquire into the authority of the
Board.
(b) In no event shall any insurance company issuing any contract or contracts to
the Board under this Agreement be considered a party or parties to this agreement
nor to any modification or amendment thereto or any agreement supplemental
thereto. Nothing in this Agreement nor in any modification, amendment or
supplement thereto shall in any way be construed to enlarge, change, vary or in
any way affect the obligations of an insurance company except as expressly
provided in a contract issued by it.
(c) Any insurance company may deal with the Board in accordance with the
terms and conditions of the contract between the insurance company and the
Board and in such manner as the Board and the insurance company shall therein
agree, without the consent of any other person or persons interested in this Trust.
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5.5 General Powers. Notwithstanding any limitations imposed
generally by any present or future state statute or rule of law concerning
investments by trustees (and in addition to, and not by way of limitation of, such
other powers as are set forth herein or otherwise conferred by law), the Board is
hereby empowered, in its sole and absolute discretion:
(a) To purchase, sell (for cash or on credit), receive, subscribe for, invest and
reinvest Trust Fund assets in any Securities and any Real Property or Interest in
Real Property, free from any limitations imposed by state law on investments of
trust funds, and to retain such Securities or Real Property or Interest in Real
Property in the Trust Fund, or exchange any such Securities or Real Property or
Interest in Real Property for other property (or interests therein), or grant options
to acquire such Securities or Real Property or Interest in Real Property; and the
Board may determine the prices and terms of all such sales, exchanges and
options and may execute any and all contracts, conveyances and other instruments
containing covenants and warranties binding upon the Plan or the Fund and
containing provisions excluding the personal liability of the Trustees;
(b) To use or cause to be used the facilities of the Depository Trust Company or
the Federal Reserve Book-Entry System, subject to such rules, regulations and
orders as may be adopted by the Securities and Exchange Commission
thereunder; including, without limitation, the right to
(1) hold, receive, exchange, release, deliver and otherwise deal with the
Securities and other property of the Trust Fund (including stock dividends, rights
and other items of like nature), and to receive and remit all income and other
payments thereon and take all steps necessary and proper in connection with the
collection thereof;
(2) register such Securities in the name of any nominee or nominees
used by the Depository Trust Company or the Federal Reserve Book-Entry
System;
(3) pay for Securities purchased and sold through the clearing medium
employed by the Depository Trust Company or the Federal Reserve Book-Entry
System for transactions of participants acting through it; and
(4) register any Securities or other property held in the Trust Fund in the
name of a nominee or nominees with or without the addition of words indicating
that such Securities or other property are held in a fiduciary capacity, provided,
however, that said nominee be a bank, trust company or broker-dealer;
(c) To cause any Securities, Real Property or Interest in Real Property, or other
property at any time held by the Trust Fund to be registered in its own name as
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trustees, or in the name of a Custodian, trustee or nominee (with or without the
disclosure of any fiduciary relationship), and to hold in bearer form any Securities
or other property at any time held in the Trust Fund so that they will pass by
delivery;
(d) To:
(1) sell for cash or on credit, grant options, convert, exchange for other
Securities or property, redeem, transfer and dispose of any Securities or other
property in the Trust Fund, by private agreement or public auction, for cash,
Securities or other property and/or credit; and
(2) make delivery of Securities or other property that have been sold for
the Trust Fund upon receipt of payment therefor; provided that all payments for
such Securities or property to be made in cash, by a certified check, a treasurer’s
or cashier’s check of a bank, by effective bank wire transfer through the Federal
Reserve Wire System or, if appropriate, outside of the Federal Reserve Wire
System and for credit to the Trust Fund;
(e) To release and deliver Trust Fund Securities to the issuer thereof (or its
agent) when such Securities are called, redeemed, retired or otherwise become
payable; provided, however, that, in any case, the cash or other consideration for
such release and delivery is in the Trust Fund or is to be delivered to the Board
simultaneously with the delivery of such securities;
(f) To exercise voting rights, either in person by limited or general power of
attorney, or by proxy, with respect to all Securities or other property, and
generally to exercise with respect to Trust Fund assets all other rights, powers,
and privileges as may be lawfully exercised by any person owning similar
property in its own right, unless the responsibility for exercising such rights,
powers, or privileges has been delegated by the Board or its Investment
Committee to an Investment Manager (pursuant to Section 8.8 of this
Agreement);
(g) To:
(1) exercise any conversion privilege and/or subscription right available
in connection with any Securities or other property at any time held in the Trust
Fund, and to make any payments in connection with such exercise;
(2) join in, dissent from or oppose the reorganization, consolidation,
merger, recapitalization, liquidation, sale, mortgage, pledge or lease of corporate
property with respect to any corporations in which the Trust Fund may be
interested (including the exercise of options, the making of agreements or
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subscriptions and the payment of expenses, assessments or subscriptions, which
may be necessary or advisable in connection therewith), and to hold and retain
any Securities or other property which it may so acquire;
(3) deposit any Securities or other property with any protective,
reorganization or similar committee, and to pay or agree to pay part of the
expenses and compensation of any such committee and any assessments levied
with respect to such Securities or property so deposited; and
(4) exercise all other ancillary rights or duties necessary to implement
any of the powers contained herein;
(h) To:
(1) pool all or a portion of the Trust Fund in one or more Collective
Trusts and to transfer and deposit, at any time and from time to time, all or a
portion of the assets of the Trust Fund to any Collective Trust; and
(2) withdraw any portion of the Trust Fund so transferred, and to
execute such documents and other instruments as, from time to time, may be
necessary to implement the foregoing;
(i) To invest all or part of the Trust Fund in deposits which bear a reasonable
interest rate in any bank, trust company, broker-dealer or similar financial
institution supervised by the United States or any State (including deposits of a
Custodian, to the extent permitted by ERISA);
(j) To:
(1) compromise, compound, submit to arbitration or settle any debt or
obligation owing to or from the Trust Fund;
(2)
obligation;

enforce or abstain from enforcing any right, claim, debt or

(3) reduce or increase the rate of interest on extension, or otherwise
modify, foreclose upon default, or enforce any such obligation; and
(4) sue or defend suits or legal proceedings against the Fund, the Plan,
the Trustees or their agents or employees, or to protect or enforce any interest in
the Fund and to represent the Fund, the Plan, the Trustees or the Executive
Director in any suits, arbitrations or other dispute resolution proceedings in
connection with any matter in any court or before any administrative agency,
body or tribunal;
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(k) To apply for, purchase, receive, retain, administer, surrender, transfer or
assign any life insurance, retirement income, endorsement or annuity policy or
contract, and pay the premium and exercise the rights, privileges, options and
benefits contained in any such contract;
(l) To organize or acquire an interest in corporations, partnerships, limited
partnerships, limited liability corporations, and/or joint-ventures under the laws of
the United States, any State or other jurisdiction to acquire and hold title to any
Securities or Real Property or Interest in Real Property, or to acquire an interest in
another such entity holding such Securities or Real Property or Interest in Real
Property, held in connection with the Plan or the Trust Fund;
(m) To take any and all actions, including the filing of requests for
determinations, rulings and other forms of administrative guidance with the
United States Department of Labor (including requests for exemptive or other
administrative relief from the provisions of Section 406 of ERISA and Section
4975 of the Code, or other provisions of ERISA or the Code), the Internal
Revenue Service, or the Pension Benefit Guaranty Corporation, and the
commencement of and participation in lawsuits in connection therewith; all as the
Board determines to be necessary, appropriate or desirable to carry out any of the
foregoing powers or otherwise in the best interests of the Plan or the Trust Fund;
(n) To:
(1) lease or purchase such premises, materials, supplies and equipment,
and employ and retain such administrative, secretarial, clerical, and other
assistance or employees as the Board or the Executive Director may deem
necessary or proper, and to pay their reasonable expenses and compensation and
all other expenses attributable to the operation of the Plan out of the Trust Fund;
(2) implement and maintain any accounting, auditing, computer,
recordkeeping and any other systems which the Board has determined to be
necessary or appropriate for the establishment, operation or administration of the
Trust Fund or the Plan;
(3) retain attorneys, investment advisers, accountants, actuaries,
appraisers, architects, banks, contractors, engineers, consultants, property
managers, insurance brokers and any other persons or entities in connection with
the operation, management, or administration of the Trust Fund or the acquisition,
sale or other disposition of any property for or by the Trust Fund, and pay, as
expenses of the Trust Fund, any of their necessary and reasonable fees; and
(4) retain one or more Custodians or other banks, trust companies,
broker-dealers, or similar depositories to act as a trustee and/or custodian of Trust
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Fund Securities and property, and to define the scope and responsibilities of each
such trustee or custodian;
(o) To appoint ancillary or subordinate trustees or custodians to hold title to or
other indicia of ownership of Foreign Securities or other property of the Plan or
Trust Fund in those jurisdictions, domestic or foreign, in which the Board is not
authorized to do business, and to define the scope of the responsibilities of each
such ancillary or subordinate trustee or custodian; provided, however, that such
ancillary or subordinate trustees or custodians shall comply with all requirements
of Section 404(b) of ERISA, and the regulations promulgated pursuant thereto, in
the event that assets of the Trust Fund are invested or reinvested in Foreign
Securities;
(p) To establish and implement a funding policy for the Plan and create,
accumulate and maintain as part of the Trust Fund such margins or reserves as the
Board determines to be prudent or desirable in connection with the sound and
efficient administration of the Plan and the Trust Fund (including, without
limitation, reserves for existing and potential obligations and liabilities of the
Trust Fund and administrative expenses);
(q) To:
(1) delegate to other fiduciaries (including Committees) the
responsibilities or duties involved in the operation and administration of the Plan
under the direction of the Board (other than trustee responsibilities, as defined in
Section 405(c)(3) of ERISA) to the extent consistent with ERISA; and
(2) engage an Executive Director or such other person or persons as it
may deem necessary or desirable to conduct the day to day operations of the Plan
and the Fund and delegate such of its administrative duties to such persons,
agents, or organizations as it may deem advisable (including, without limitation,
to a duly appointed Committee).
(r) To enter into agreements among themselves allocating their responsibilities,
obligations and duties with respect to the administration of the Plan and the
management and control of the Trust Fund assets; provided, however, that the
remaining Trustees comprising the Board shall not be liable for any loss resulting
to the Trust Fund resulting from the acts or omissions of those Trustees accepting
the allocation of such specified fiduciary responsibilities (except as may otherwise
be required by ERISA);
(s) To enter into agreements with other pension or retirement plans and trusts
providing for the reciprocity of pension credits and portability of pension accruals
as between this Plan and such other plans and trusts and to merge the Trust Fund
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and Plan with other employee pension benefit plans (provided that the Trustees
determine that such merger is prudent and would further the interests of Covered
Employees and Beneficiaries); provided, however, that in the case of any merger
or consolidation with, or transfer of assets and liabilities to, any other pension or
retirement plan or trust, provisions shall be made so that each Covered Employee
affected thereby on the date thereof would receive a benefit immediately after the
merger, consolidation or transfer (as if the Plan or the Trust then terminated) that
is equal to or greater than the benefit that he or she would have been entitled to
receive immediately prior to the merger, consolidation or transfer (as if the Plan
or the Trust then terminated);
(t) To:
(1) borrow monies from any person or persons on behalf of the Plan or
the Trust Fund, or on behalf of any corporation, partnership or joint venture in
which the Plan or the Trust Fund has an interest;
(2) pledge all or a portion of the Trust Fund as security or collateral to
any person or persons in order to obtain financial accommodations (including
agreements to issue letters of credit or other forms of credit) from a bank, trust
company, broker-dealer or other financial institution (including the Custodian, to
the extent permitted by ERISA) on behalf of the Plan or the Trust Fund, or on
behalf of any corporation, partnership, or joint venture in which the Plan or the
Trust Fund has an interest; and
(3) for any sums so borrowed or accommodations or credit obtained,
issue one or more promissory notes (or other instruments or documents), and/or
pledge, hypothecate, assign or otherwise transfer all or any part of the Plan or the
Trust Fund assets as collateral and/or issue guaranties in order to obtain such loan,
credit or other form of credit;
(u) To:
(1) lend any Trust Fund Securities to banks, trust companies, or
nationally-recognized brokers or dealers;
(2)

secure the same in any manner;

(3) receive compensation therefor out of any amounts paid by or
charged to the account of the borrower; and
(4) during the term of any such loan, permit the loaned Securities to be
transferred into the name of and voted by the borrower or others; provided,
however, that such loans are fully consistent with ERISA and the Code and that
cash or other collateral satisfactory to the Board, having a fair market value (as of
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the close of business on the business day immediately preceding the date of such
loan) equal to at least one hundred two (102%) percent of the then fair market
value of the Securities loaned, is pledged to the Trust Fund by the borrower, and
continues to be maintained in such manner until such loan is repaid;
(v) To:
(1) retain, manage, administer, operate, lease for any length of time,
develop, improve, repair, alter, demolish, mortgage, pledge, grant options with
respect to, or otherwise deal with any Real Property or Interest in Real Property at
any time held by the Trust Fund;
(2) modify, extend, renew or otherwise adjust any mortgage or lease,
including the waiver of rentals;
(3) purchase or otherwise acquire, sell, exchange or otherwise dispose
of any such Real Property or Interest in Real Property at public or private sale, at
such prices, at such time or times upon such terms, and for such purposes as may
be necessary or desirable;
(4) borrow money, and for the purpose of securing the repayment
thereof, to pledge, mortgage, grant a security interest in or otherwise encumber
any Real Property or Interest in Real Property of the Trust Fund;
(5) purchase, take and hold any Real Property or Interest in Real
Property subject to mortgages or other liens or encumbrances, irrespective of by
whom the same were made;
(6) foreclose, to reduce the rate of interest on, and to consent to the
extension of or make any other modification of loans, whether or not secured by
mortgages on any Real Property or Interest in Real Property or on any personal
property, or to accept a deed in lieu of foreclosure;
(7)
Property;

join a voluntary partition of any Real Property or Interest in Real

(8) demolish or cause to be demolished any structures on any Real
Property or Interest in Real Property if such action is necessary or desirable;
(9) make loans of any type (including, without limitation, variable,
participating, convertible or indexed loans), whether secured or unsecured, in
connection with any Real Property or Interest in Real Property of the Trust Fund;
(10) enter into joint ventures or otherwise own or participate in entities
that own or acquire any Real Property or Interest in Real Property (including
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associations, corporations, general or limited partnerships, or trusts), and to
acquire stock, ownership interests, or securities in such entities, including by
means of a tender offer;
(11) hold any Real Property or Interest in Real Property either in the
name of the Trust Fund or in a separate nominee trust without disclosing the
ownership of the Trust Fund;
(12) operate through one or more corporations or other entities, wholly or
partially owned by the Trust Fund, whether or not exempt from Federal income
taxation or other taxes;
(13) keep and maintain any property in good state of repair and upkeep,
to obtain insurance for any Real Property or Interest in Real Property, and to pay
the taxes, upkeep, repairs, carrying charges, maintenance and premiums of
insurance with respect to any Real Property or Interest in Real Property;
(14) organize or acquire one or more corporations, wholly or partly
owned by the Trust, each of which shall be exempt from Federal income taxation
under Section 501(c)(2) or (c)(25) of the Code and each of which shall have been
organized for the exclusive purpose of holding title to any Real Property or
Interest in Real Property, collecting income therefrom and turning over the entire
amount thereof, less expenses, to the Trust or other entities exempt from Federal
income taxation under Section 501 of the Code; and
(15) retain, monitor and terminate property managers, accountants,
attorneys, developers, mortgage bankers, environmental consultants and others
providing services with respect to any Real Property or Interest in Real Property,
which persons, to the extent permitted or not prohibited by ERISA, may be
affiliates of an Investment Manager or other service provider to the Trust Fund
(such services to include, without limitation, matters of compliance of such
properties with all applicable laws, rules and regulations);
(w) To effect insurance for any Real Property or Interest in Real Property or any
other physical properties and assets of the Trust Fund in such amounts and against
such risks as, in the Board’s good faith judgment, shall be in accordance with
customary and sound business practices applicable to such properties or assets in
the appropriate geographic area;
(x) To attend to legal matters in connection with the making of investments for
the Trust Fund by taking or causing to be taken such acts as, in the sole discretion
of the Board, are necessary or appropriate to comply with all applicable laws,
rules and regulations in connection with the making, validity or enforceability of
such investments;
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(y) To:
(1) make, execute and deliver any and all conveyances, indemnities,
waivers, releases or other instruments in writing necessary or desirable for the
operation of the Fund or the Plan, or the accomplishment of any of the foregoing
powers; and
(2) execute written agreements with any person or entity (including,
without limitation, any Employer and/or the Union) which the Board may deem
prudent, necessary or desirable for the operation of the Fund or the Plan, the
accomplishment of any of the foregoing powers, or the protection of the assets of
the Trust Fund; and
(z) Generally, to perform all acts (whether or not expressly authorized herein)
which the Board may deem necessary and prudent for the protection of the assets
of the Trust Fund.
5.6

Committees.

(a) In addition to the Administrative Committee (established pursuant to Section
7.3), the Investment Committee (established pursuant to Section 7.4), and the
Audit Committee (established pursuant to Section 7.5), the Board may delegate
one or more of its fiduciary responsibilities (other than trustee responsibilities, as
defined in Section 405(c)(3) of ERISA) to one or more other Committees. Where
the Board has elected to hold a joint meeting with a Committee, unless otherwise
agreed by the Board, all actions taken by the Trustees attending such meeting will
be taken in accordance with Section 6.4(a) and will be considered ratified without
further Board action.
(b) Each such Committee shall comprise two or more Trustees and shall
comprise an equal number of Employer Trustees and Union Trustees to the extent
the Committee may be exercising authority delegated by the Board. The
Employer Trustees shall designate Employer Trustees to serve on such Committee
and the Union Trustees shall designate Union Trustees to serve on such
Committee.
(c) Except as otherwise provided by ERISA, to the extent that such
responsibilities are so delegated, the remaining Trustees comprising the Board
shall not be liable for any loss to the Trust Fund resulting from the acts or
omissions of any Committee.
(d) No more than one representative of each Contributing Employer shall be
permitted to serve on each Committee.

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5.7 Standard of Care. In exercising any and all powers, duties and
responsibilities under this Agreement, the Board shall discharge its duties and
responsibilities hereunder with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims, and shall diversify Trust Fund assets so as to avoid
the risk of large losses (unless, under the circumstances, it is clearly prudent not to
do so), consistent with the requirements of ERISA.
5.8

Reliance on Written Instruments and Advice of Professionals.

(a) Each Trustee shall be fully protected in acting upon any instrument,
certificate, or paper believed by him or her to be genuine and to be signed or
presented by a duly authorized person or persons, and shall be under no duty to
make any investigation or inquiry as to any statement contained in any such
writing, but may accept the same as conclusive evidence of the truth and accuracy
of the statements therein contained.
(b) Each Trustee shall be entitled to rely conclusively upon, and shall be fully
protected in any action taken by him or her in good faith in relying upon, any
opinions or reports furnished to him or her by any actuaries, accountants,
attorneys, consultants or specialists appointed or designated by the Board in
connection with the administration of the Plan or the Fund (or the investment of
Fund assets).
5.9 Indemnification. Except as may otherwise be required by ERISA
or other applicable law:
(a) The Trustees shall not be personally answerable for any liabilities or debts of
the Plan or the Trust Fund incurred by them as Trustees, but said debts and
liabilities shall be paid out of the Trust Fund;
(b) No Trustee shall be personally liable for any error of judgment or for any
Claims (as that term is defined in paragraph (e) below) arising out of any act or
omission of such Trustee or for any acts or omissions of any other Trustee, or any
agent elected or appointed by or acting for the Trustees, except as provided in
paragraph (e) below;
(c) The Trustees shall not be personally liable for the proper application of any
part of the Trust Fund or for any other liabilities arising in connection with the
administration of the Plan or the Trust Fund, except as provided in paragraph (e)
below;

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(d) The Trustees may from time to time consult with legal counsel and shall, to
the extent permitted by ERISA or other applicable law, be fully protected in
acting upon the advice of said counsel with respect to legal questions affecting the
Plan or the Trust Fund; and
(e) To the extent not covered by insurance, the Trust Fund shall protect,
indemnify and hold harmless the Board, each individual Trustee, each Committee
member, and the Executive Director (and their employees and other agents), from
and against any and all liabilities, damages, taxes, judgments, debts, assessments,
penalties, losses, expenses, costs and claims, including, without limitation,
(1) reasonable attorneys’ fees and court costs; (2) actuarial and related consulting
costs; (3) accounting and auditing costs; (4) investment management, trustee and
custodian costs; (5) insurance premiums and related costs; and (6) other
professional fees (hereinafter collectively referred to as “Claims”) incurred by any
such person(s) as a result of any act, omission or conduct committed by said
person(s) in connection with the performance of his or her powers, duties,
responsibilities or obligations under the Plan, the Trust, this Agreement, ERISA,
the Code or other applicable laws, except with respect to Claims arising from such
person’s own fraud or willful misconduct.
5.10 Bonding. Any person required to be bonded under the provisions of
ERISA, including without limitation, the Trustees, Executive Director, Investment
Managers, Custodians (and any employees, agents or other representatives of the
Trust handling monies, Securities and negotiable paper on behalf of the Trust or
otherwise entrusted with any portion of the Trust Fund), shall be bonded under a
fidelity bond issued by an insurance carrier in an amount no less than that
required by Section 412 of ERISA. The Board shall, in its sole discretion, have
the authority to require the bonding of any other employee, agent, representative
or fiduciary of the Trust (including, without limitation, an Investment Manager or
Custodian) and to require bonds above the minimum amount. The cost of
premiums for such bonds for the Trustees, the Executive Director and any other
Fund employee shall be paid out of the Trust Fund.
5.11 Fiduciary Insurance. The Board may purchase with Fund assets
and maintain a policy or policies of fiduciary liability (or errors or omissions)
insurance covering the Trust Fund, the Trustees, the Executive Director and, if the
Board so determines, any other person to whom a fiduciary responsibility with
respect to the Plan or Fund has been allocated or delegated, to protect such
persons against any and all Claims (as that term is defined in Section 5.9(e))
arising out of such fiduciary’s breach of his or her fiduciary responsibility to the
Plan or the Trust Fund (the proceeds of which may be used to satisfy the
obligations of the Trust Fund set forth in Section 5.9). The insurance
contemplated herein shall permit recourse in consideration of the insurer against
the fiduciary in case of a breach of his or her fiduciary obligations or
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responsibilities to the Trust Fund (although the insurer shall have the right to
eliminate such recourse by the payment of an additional premium by such
fiduciary or by the organization that appointed such fiduciary to the Board).
5.12 Deposit and Withdrawal of Funds.
(a) All monies received by the Board hereunder shall be deposited with the
Custodian, or such other banks or trust companies (insured by the Federal Deposit
Insurance Corporation) or other broker-dealers or similar financial institutions
(insured by the Securities Investor Protection Corporation) as the Board may
designate as Custodians or other trustees of all or a portion of the assets of the
Trust.
(b) The requisite signature authority required for all checks, drafts, vouchers or
other withdrawals of monies from such account or accounts shall be in accordance
with resolutions from time to time adopted by the Board, and the Board may
delegate such authority to any two Trustees (one of whom must be an Employer
Trustee and the other a Union Trustee), to the Executive Director, or to any other
person as the Board, in its sole discretion, shall determine.
5.13 Delegation of Power. Except as otherwise provided by ERISA, the
Board may delegate any of its ministerial powers or duties hereunder to any one
or more agents or employees and/or to one or more Trustees.
5.14 Discretionary Authority.
(a) The Board or, where applicable, a Committee (or either of their duly
authorized designees) shall have the exclusive right, power, and authority, in its
sole and absolute discretion, to administer, apply and interpret this Agreement, the
Plan and any other Plan or Trust documents and to decide all matters arising in
connection with the operation or administration of the Plan or the Trust and the
investment of Plan assets.
(b) Without limiting the generality of the foregoing, the Board or, where
applicable, a Committee (or either of their duly authorized designees) shall have
the sole and absolute discretionary authority to:
(1) take all actions and make all decisions with respect to the eligibility
for, and the amount of, benefits payable under the Plan to Covered Employees or
their Beneficiaries;
(2) formulate, interpret and apply rules, regulations and policies
necessary to administer this Agreement, the Plan or other Plan documents in
accordance with their terms;
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(3) decide questions, including legal or factual questions, relating to the
calculation and payment of benefits under the Plan or other Plan documents;
(4) resolve and/or clarify any ambiguities, inconsistencies and
omissions arising under this Agreement, the Plan or other Plan documents; and
(5) process, and approve or deny, benefit claims and rule on any benefit
exclusions.
All determinations made by the Board (or, where applicable, the Executive
Director or any Committee duly authorized by the Board) with respect to any
matter arising under the Plan, Trust Agreement and any other Plan documents
shall be final and binding on all parties affected thereby.
5.15 Execution of Documents.
(a) The Co-Chairs are authorized to collectively execute on behalf of the Board
all documents necessary for the accomplishment of any action taken by the Board;
provided, however, that such action is reflected in written minutes of a Board
meeting.
(b) The Board may authorize by resolution any Union Trustee and any Employer
Trustee (or any group composed of an equal number of Union and Employer
Trustees), or an employee of the Trust Fund, to execute any Instructions, notices
or other instruments in writing; and any such Instruction, notice or instrument so
signed shall have the same force and effect as though signed by the Board.
(c) All persons, corporations, partnerships, groups or associations may accept
any notice or instrument signed in accordance with this Section 5.15 as duly
authorized and binding on the Board.
(d) The Board may, in its sole and absolute discretion, designate and authorize an
employee or employees of the Trust Fund to sign documents or checks upon such
separate and specific bank account or bank accounts as the Board may designate
and establish for such purpose.

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ARTICLE VI
MEETINGS AND DECISIONS OF TRUSTEES
6.1

Officers.

(a) The Board shall elect two (2) Co-Chairs from among the Trustees, one of
whom shall be a Union Trustee and the other an Employer Trustee.
(b) The term of such officers shall commence on the date of their election and
continue until their successors are elected.
(c) During even-numbered calendar years, the Co-Chair who is a Union Trustee
shall preside over meetings of the Board. During odd numbered calendar years,
the Co-Chair who is an Employer Trustee shall preside over meetings of the
Board.
6.2

Calling of Meetings.

(a) The Board shall endeavor to meet at least three (3) times per year, and at such
other times as the Board may reasonably decide; except that either Co-Chair may
call a special meeting of the Board, at any time, by giving at least five (5)
business days advance written notice of the time and place thereof to the other
Co-Chair and all other Trustees.
(b) Any two (2) Employer Trustees and two (2) Union Trustees may likewise
call a meeting of the Trustees, at any time, by giving at least ten (10) business
days advance written notice of the time and place thereof to the Co-Chairs and to
all other Trustees.
(c) Meetings of the Board may be held at any time by telephone conference with
proper advance notice (as prescribed by either paragraph (a) or (b) above).
(d) Meetings of the Board may also be held at any time, without notice, in person
or by telephone conference; provided, however, that a majority of the Employer
Trustees and a majority of the Union Trustees consent thereto in writing.
6.3 Quorum. Four Employer Trustees and four Union Trustees shall
constitute a quorum for the purpose of transacting business.
6.4

Vote of Trustees.

(a) Except as otherwise provided in this Section 6.4, all actions of the Board
shall be taken by either (1) a vote of two to zero, or (2) a vote of one and one
abstention. The Employer Trustees, as a unit, shall have one vote, and the Union
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Trustees, as a unit, shall have one vote. The Employer Trustees shall determine
how they cast their vote on any matter, except as provided elsewhere in this
Section 6.4, by a majority vote of the Employer Trustees present and attending the
meeting. The Union Trustees shall determine how they cast their vote on any
matter, except as provided elsewhere in this Section 6.4, by a majority vote of the
Union Trustees present and attending the meeting.
(b) The vote of any absent Trustee may be cast in accordance with a written
proxy delivered to any other Trustee present at the meeting of the Trustees (or a
Committee meeting); provided that such authorization and proxies shall be valid
only at the Trustee (or Committee) meeting immediately succeeding its execution.
(c) In addition to decisions made at meetings, each Trustee may also be polled
with respect to an issue by the Executive Director or either Co-Chair (or any of
their designees) either in writing (including e-mail) or by telephone without the
necessity of having a meeting; provided however, that any action taken in a
telephone poll must be consented to in writing (including e-mail) by each Trustee
who voted for the action taken either before or as soon as practicable following
the vote (but no later than thirty (30) days after the vote).
(d) In the event that any matter presented for decision by the Board cannot be
decided due to a deadlock (as defined in Section 6.6(b)), the matter shall then be
resolved by arbitration (as provided by Section 6.6).
6.5 Minutes of Meetings. The Board, Committee or the Executive
Director (or their duly authorized designees) shall maintain minutes of all Board
and Committee meetings, but such minutes need not be verbatim. Copies of such
minutes shall be provided to all Trustees.
6.6

Arbitration.

(a) Whenever the Board is unable to decide a question during a meeting due to a
deadlock among the Trustees (as defined in Section 6.6(b)), either Co-Chair shall
submit the question for decision to such impartial arbitrator as the Board shall
select (pursuant to the voting procedures contained in Section 6.4) or, if it is
unable to agree on such selection within fifteen (15) business days after the
deadlock arose, either Co-Chair or a majority of either the Employer Trustees or
Union Trustees may petition the American Arbitration Association (hereinafter,
the “AAA”) for the appointment of an arbitrator pursuant to the Labor Rules of
the AAA. If neither Co-Chair nor a majority of the Employer Trustees or Union
Trustees petitions the AAA, then any two (2) Trustees may petition the United
States District Court for the Southern District of New York for the appointment of
an impartial umpire.

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(b) A deadlock for purposes of this Agreement shall mean either:
(1) a majority of the Employer Trustees or a majority of the Union
Trustees cannot agree upon the manner in which their unit should cast its vote and
do not agree to abstain as a unit; or
(2) one unit of the Board votes for a motion and the other unit votes
against it; or
(3) the inability to take an action with respect to an issue presented due
to the lack of a necessary quorum at two successive meetings.
(c) The failure of any Trustee to attend the arbitration hearing as scheduled and
noticed by the AAA or by the arbitrator shall not delay the arbitration, and the
arbitrator is authorized to proceed to take evidence and issue his or her decision as
though such Trustee were present.
(d) In the event that such arbitrator, having been selected, shall resign or for
whatever reason shall fail or refuse to act within a reasonable time after his or her
selection, the AAA shall be requested to appoint another arbitrator; provided,
however, that should the AAA fail to act within fifteen (15) business days after
the request, or should the Board be unable to agree on another arbitrator within
fifteen (15) business days after the AAA is requested to act, an arbitrator shall be
appointed by the United States District Court for the Southern District of New
York upon the petition of any two (2) Employer Trustees or two (2) Union
Trustees.
(e) The arbitrator, after hearings, of which all interested parties as stated in the
submission shall have due notice and opportunity to be heard, shall promptly
announce his or her award in writing to the Trustees and such award shall be final
and binding on all parties concerned as though it was embodied in a resolution
duly adopted by the unanimous vote of the Board.
(f) All hearings of the arbitrator shall take place in the City of New York unless
otherwise specifically mutually agreed upon.
(g) All reasonable expenses of the arbitration (including, without limitation, the
fees of the AAA, attorneys and the arbitrator) shall be paid from the Trust Fund.

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ARTICLE VII
ALLOCATION OF RESPONSIBILITIES
7.1

The Executive Director.

(a) Where the Board has employed an Executive Director, the Executive Director
shall have the responsibility and authority to control the day-to-day administration
of the Trust Fund, subject to the terms of this Agreement, the Plan, any written
agreement between the Board and the Executive Director, and any policies,
procedures and other rules that may from time to time be established by the
Board.
(b) Such responsibilities shall include, without limitation, the following:
(1) functions assigned to the Executive Director under the terms of this
Agreement, the Plan, or any written agreement between the Board and the
Executive Director;
(2)

functions assigned to the Executive Director by the Board;

(3) determinations as to the eligibility for, and the amount of, benefits
for Covered Employees (and their Beneficiaries), and the certification thereof to
the Board;
(4) hiring of administrative, clerical, legal, actuarial, accounting, and
other professional persons to provide necessary services to the Trust Fund and the
Plan (with the advance approval of the Board);
(5) payment of any fees, taxes, expenses, charges or other costs
incidental to the operation and management of the Trust Fund and the Plan;
(6) preparation and filing of all government and other reports required
to be filed by the Plan and the Trust under ERISA or the Code (including, without
limitation, the Plan’s annual Form 5500 and Summary Annual Report, Summary
Plan Descriptions, and Summaries of Material Modifications); and
(7) maintenance of all records of the Trust Fund and the Plan, other than
those required to be maintained by Investment Managers, Custodians and other
persons duly designated by the Board, and provision of regular reports to the
Board (or its Committees).

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7.2

The Board.

(a) The Board shall have the authority and responsibility for the overall design
and operation of the Plan and Trust Fund and the investment of the assets
attributable thereto (except to the extent that such responsibility has been
delegated by the Board to the Executive Director, a Custodian or an Investment
Manager).
(b) Such responsibilities shall include, without limitation, the following:
(1) design of the Trust, including the right to amend, modify or
terminate this Agreement at any time;
(2) design of the Plan, including the right to amend, modify or terminate
such Plan (in whole or in part) at any time;
(3) maintenance of the qualification of the Plan, and the tax-exempt
status of the Trust, under the Code;
(4) designation of fiduciaries of the Trust Fund and Plan (including,
without limitation, the Executive Director, Investment Managers, Custodians, and
members of the Administrative Committee, Investment Committee, Audit
Committee and other Committees);
(5) retention of all accounting, actuarial, administrative, clerical, legal
and other professionals to provide service to the Fund;
(6) exercise of those fiduciary functions provided for in the Plan, or this
Agreement, or those necessary for the prudent operation or administration of the
Plan (except such functions as are delegated to a Committee, the Executive
Director, an Investment Manager or Custodian, or to other fiduciaries of the Trust
or the Plan); and
(7) generally, exercise of those functions and responsibilities which the
Board deems necessary and appropriate for the prudent operation and
administration of the Plan or Trust, and the protection of Trust Assets, which
functions have not been duly delegated to the Executive Director, a Committee or
another fiduciary of the Plan or the Trust Fund.
(c) The Board may, by the adoption of a written resolution, delegate to any
Committee or a specific Trustee or group of Trustees the authority to act on behalf
of the Board to the extent, and within the time limitations set forth, in any said
resolution. If said resolution delegates the right to take discretionary action to the
Executive Director, a Committee or a specific Trustee or group of Trustees, then
the action taken pursuant to said resolution shall constitute conclusive evidence of
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the proper exercise of the discretion granted to the Executive Director, such
Committee or a specific Trustee or group of Trustees.
7.3

Administrative Committee.

(a) The Board shall appoint an Administrative Committee consisting of at least
four (4) Trustees (or such other number of Trustees as the Board shall, in its sole
discretion, determine), having an equal number of Employer Trustees and Union
Trustees, who shall serve at the sole pleasure of the Employer Trustees and Union
Trustees, respectively. Employer Trustee members of the Administrative
Committee shall be appointed by the Employer Trustees, and Union Trustee
members of the Administrative Committee shall be appointed by the Union
Trustees. The members of the Administrative Committee shall select a
Chairperson from their number.
(b) Subject to the actions of the Board and the provisions of the Plan, the
functions of the Administrative Committee shall be to:
(1) establish procedures for the administration and operation of the
Plan, including the acceptance and processing of applications for pension
benefits;
(2) determine the eligibility of Covered Employees and Beneficiaries
for retirement benefits, and the amount and form of payment of such benefits;
(3) calculate (or to authorize the Trust’s Executive Director, staff,
actuaries or other service providers to calculate) pension benefit amounts;
(4) review, and approve (or deny), appeals for pension payments, or
other benefit claims, submitted by Covered Employees and Beneficiaries that
have been denied by the Executive Director or appeals to review state domestic
relations orders which have been determined by the Executive Director not to be
qualified;
(5) prepare, approve and adopt the administrative expense and operating
budget of the Fund office, including determining the salaries and fringe benefits
of all Fund employees (other than the three highest paid employees of the Fund
office, whose compensation and fringe benefits shall be fixed by the Board);
(6) adopt and administer a pension plan for the staff of the Fund and
serve as the “named fiduciary” and “administrator” of such plan for purposes of
ERISA;
(7) approve the attendance by, and reimburse the reasonable expenses
of, individual Trustees at educational conferences or other meetings in accordance
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with trustee travel and expense guidelines established from time to time by the
Board;
(8) review, approve and pay all reasonable and necessary expenses for
the establishment, operation and administration of the Trust and the Plan
(including, without limitations, the payment of the clerical, administrative, legal,
actuarial, accounting, and other professional expenses); and
(9) generally, exercise those functions and responsibilities which the
Administrative Committee deems necessary and desirable for the prudent
administration of the Plan or Trust, and to make recommendations to the Board
with respect to such other matters as relate to the administration or operation of
the Plan.
(c) The Administrative Committee shall endeavor to meet at least three (3) times
per year, upon such notice as it may from time to time determine. A quorum of
the Administrative Committee shall consist of at least two (2) Employer Trustees
and two (2) Union Trustees who are members of the Administrative Committee.
All decisions of a quorum shall be agreed to by either (1) a vote of two to zero, or
(2) a vote of one and one abstention. The Employer Trustees, as a unit, shall have
one vote, and the Union Trustees, as a unit, shall have one vote. The Employer
Trustees shall determine how they cast their vote by a majority vote of the
Employer Trustees who are members of the Administrative Committee and who
are present and attending the meeting. The Union Trustees shall determine how
they cast their vote by a majority vote of the Union Trustees who are members of
the Administrative Committee and who are present and attending the meeting. In
addition to decisions made at meetings, the Administrative Committee may also
be polled either in writing (including by facsimile or electronic mail) or by
telephone by the Executive Director or the Chairperson (or his or her designee)
without the necessity of having a meeting, in which event, any action to be taken
must be carried by the same vote as that required at a meeting of the
Administrative Committee and, if polled by telephone, must be confirmed in
writing by each member of the Administrative Committee who participated in the
poll as soon as practicable following the vote (but no later than thirty (30) days
after the vote). If a matter cannot be agreed upon due to failure to reach the
required vote, it shall be referred for decision to the Board at its next meeting.
(d) All actions of the Administrative Committee shall be reported to the Board at
its next meeting, and the Board shall ratify or repudiate such actions, or take such
other action as the Board deems appropriate.
(e) The Administrative Committee shall refer all questions of interpretation and
application of the Plan, and questions that may arise in connection with the

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operation of the Plan, which it cannot resolve itself to the Board for final
resolution.
(f) Any member of the Administrative Committee may resign by delivering his
or her written resignation to the Board and to the other members of the
Administrative Committee, and the Employer Trustees or Union Trustees, as
applicable, thereafter shall have the right to appoint another Trustee in his or her
place; provided, however, that there shall always be an equal number of Employer
Trustees and Union Trustees appointed to such Committee.
7.4

Investment Committee.

(a) The Board shall appoint an Investment Committee consisting of at least six
(6) Trustees (or such other number of Trustees as the Board shall, in its sole
discretion, determine), having an equal number of Employer Trustees and Union
Trustees, who shall serve at the sole pleasure of the Employer Trustees and Union
Trustees, respectively. Employer Trustee members of the Investment Committee
shall be appointed by the Employer Trustees, and Union Trustee members of the
Investment Committee shall be appointed by the Union Trustees. The members of
the Investment Committee shall select a Chairperson from among their number.
(b) Subject to the actions of the Board and the provisions of the Plan, the
functions of the Investment Committee shall be to:
(1) formulate and coordinate general policies respecting the investment
of the cash, Securities and Real Property or Interests in Real Property of the Fund,
including the promulgation of investment directions, guidelines or objectives (as
authorized by Section 8.7);
(2) develop a continuing and prudent overall investment strategy and
financial policy for the Trust Fund;
(3) implement such policies as may be adopted by the Board concerning
Trust investments;
(4) coordinate with the Custodian (and any sub-custodian) a reporting
procedure between the Custodian (and any sub-custodian) and the Board (and its
Investment Committee);
(5) recommend to the Board such Custodians, sub-custodians,
Investment Managers and such other consultants to ensure that the cash,
Securities and Real Property or Interests in Real Property of the Fund are invested
prudently and suitably diversified, as well as to carry out the investment program;

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(6) monitor and evaluate (using one or more professional investment
evaluation firms, if necessary) the performance of such Custodians, subcustodians, Investment Managers, insurance carriers, and other investment
consultants and investment products in which Trust Fund assets are invested;
(7) where necessary, recommend to the Board that it terminate the
services of any such Custodian, sub-custodian, Investment Manager, insurance
carriers, and other investment consultant; and
(8) generally, exercise those functions and responsibilities which are
prudent and appropriate for the supervision of the Trust Fund’s investment
program and the investment of Trust Fund assets.
(c) The Investment Committee shall endeavor to meet at least three (3) times per
year, upon such notice as it may from time to time determine. A quorum of the
Investment Committee shall consist of at least two (2) Employer Trustees and two
(2) Union Trustees who are members of the Investment Committee. All decisions
of a quorum shall be agreed to by either (1) a vote of two to zero, or (2) a vote of
one and one abstention. The Employer Trustees, as a unit, shall have one vote,
and the Union Trustees, as a unit, shall have one vote. The Employer Trustees
shall determine how they cast their vote by a majority vote of the Employer
Trustees who are members of the Investment Committee and who are present and
attending the meeting. The Union Trustees shall determine how they cast their
vote by a majority vote of the Union Trustees who are members of the Investment
Committee and who are present and attending the meeting. In addition to
decisions made at meetings, the Investment Committee may also be polled either
in writing or by telephone by the Executive Director or the Chairperson (or his or
her designee) without the necessity of having a meeting, in which event, any
action to be taken must be carried by the same vote as that required at a meeting
of the Investment Committee and, if polled by telephone, must be confirmed in
writing by each member of the Investment Committee who participated in the poll
as soon as practicable following the vote (but no later than thirty (30) days after
the vote). If a matter cannot be agreed upon due to failure to reach the required
vote, it shall be referred for decision to the Board at its next meeting.
(d) All actions of the Investment Committee shall be reported to the Board at its
next meeting, and the Board shall ratify or repudiate such actions, or take such
other action as the Board deems appropriate.
(e) Any member of the Investment Committee may resign by delivering his or
her written resignation to the Board and to the other members of the Investment
Committee, and the Employer Trustees or Union Trustees, as applicable, shall
have the right to appoint another Trustee in his or her place; provided, however,

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that there shall always be an equal number of Employer Trustees and Union
Trustees appointed to such Committee.
7.5

Audit Committee.

(a) The Board shall appoint an Audit Committee consisting of at least six (6)
Trustees (or such other number of Trustees as the Board shall, in its sole
discretion, determine), having an equal number of Employer Trustees and Union
Trustees, who shall serve at the sole pleasure of the Employer Trustees and Union
Trustees, respectively. Employer Trustee members of the Audit Committee shall
be appointed by the Employer Trustees, and Union Trustee members of the Audit
Committee shall be appointed by the Union Trustees. The members of the Audit
Committee shall select a Chairperson from their number.
(b) Subject to the action of the Board and the provisions of the Plan, the
functions of the Audit Committee shall be to:
(1) monitor the actions of the Fund’s internal and outside auditors and
coordinate with the Fund’s internal and outside auditors, including the
establishment and carrying out of a reporting procedure between such auditors
and the Audit Committee;
(2) develop a compliance audit program with respect to all matters
related to Employer contributions to the Fund, and supervise the Fund’s internal
and outside auditors in conducting such compliance audits;
(3) develop procedures and guidelines with respect to the form and
manner of the remittance or other reports Employers are required to file with the
Fund;
(4) except where such determination is made by the Board, determine,
in its sole and absolute discretion (or duly authorize the Executive Director to
determine, in the Executive Director’s sole and absolute discretion), whether an
Employer has made a contribution or other payment to the Fund by mistake of
fact or law, and whether such contribution or payment should be returned to the
Employer (pursuant to Section 4.4);
(5) establish, in consultation with the Board, procedures with respect to
all matters related to the determination and collection of delinquent Employer
contributions (unless such function is delegated to another Committee), and take
all actions permitted or required under such procedures;
(6) establish, in consultation with the Board, and carry out, procedures
with respect to all matters related to the enforcement of the rules set forth in this
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Agreement and in the Plan regarding Employer contributions to the Fund, and the
collection of delinquent Employer contributions;
(7) recommend to the Board to terminate, on a prospective basis, the
participation of a Contributing Employer in the Plan and Fund; and
(8) assess an Employer all reasonable costs and expenses (including,
without limitation, all audit, accounting, and legal fees) incurred in collecting its
contributions or other payments due to the Fund (in accordance with the
provisions of Article IX).
(c) The Audit Committee shall endeavor to meet at least three (3) times per year,
upon such notice as it may from time to time determine. A quorum of the Audit
Committee shall consist of at least two (2) Employer Trustees and two (2) Union
Trustees who are members of the Audit Committee. All decisions of a quorum
shall be agreed to by either (1) a vote of two to zero, or (2) a vote of one and one
abstention. The Employer Trustees, as a unit, shall have one vote, and the Union
Trustees, as a unit, shall have one vote. The Employer Trustees shall determine
how they cast their vote by a majority vote of the Employer Trustees who are
members of the Audit Committee and who are present and attending the meeting.
The Union Trustees shall determine how they cast their vote by a majority vote of
the Union Trustees who are members of the Audit Committee and who are
present and attending the meeting. In addition to decisions made at meetings, the
Audit Committee may also be polled either in writing or by telephone by the
Executive Director or the Chairperson (or his or her designee) without the
necessity of having a meeting, in which event any action to be taken must be
carried by the same vote as that required at a meeting of the Audit Committee
and, if polled by telephone, must be confirmed in writing by each member of the
Audit Committee who participated in the poll as soon as practicable following the
vote (but no later than thirty (30) days after the vote). If a matter cannot be agreed
upon due to failure to reach the required vote, it shall be referred for decision to
the Board at its next meeting.
(d) All actions of the Audit Committee shall be reported to the Board at its next
meeting, and the Board shall ratify or repudiate such actions, or take such other
action as the Board deems appropriate.
(e) The Audit Committee shall refer all questions of interpretation and
application of the Plan, and questions that may arise in connection with the
operation of the Plan, which it cannot resolve itself to the Board for final
resolution.
(f) Any member of the Audit Committee may resign by delivering his or her
written resignation to the Board and to the other members of the Audit
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Committee, and the Employer Trustees or Union Trustees, as applicable,
thereafter shall have the right to appoint another Trustee in his or her place;
provided, however, that there shall always be an equal number of Employer
Trustees and Union Trustees appointed to such Committee.

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ARTICLE VIII
INVESTMENT MANAGERS
8.1

Appointment of Investment Managers.

(a) In its sole and absolute discretion, the Board may, from time to time, by
notice to the Custodian, appoint one or more Investment Managers to manage and
invest (including the power to acquire and dispose of) all or a portion of the assets
of the Trust Fund. Such appointments shall generally be made in consultation
with the Investment Committee.
(b) In the event that more than one Investment Manager is appointed, the Board
or the Investment Committee shall separately segregate, or request the Custodian
or sub-custodian to segregate, each portion of the assets constituting the account
to be managed by each respective Investment Manager into a separate Investment
Manager Account.
(c) The Board or the Investment Committee may also supervise and direct the
investment of any portion of the Trust Fund that is not subject to the management
and control of an Investment Manager, by exercising any of the powers set forth
in Section 5.5 with respect to the Securities or Real Property or Interests in Real
Property of the Trust Fund so invested.
8.2

Authorization.

(a) Any appointment of an Investment Manager shall be authorized by the
Board, and shall become effective as of the date specified by the Board or the
Investment Committee. The Investment Manager shall also identify to the Board
or the Investment Committee the person or persons authorized to give Instructions
or directions to the Board on behalf of the Investment Manager.
(b) The Investment Manager shall have full discretion and authority, to the extent
required, permitted or not prohibited by ERISA and other applicable law, to invest
and reinvest the portion of Trust Fund assets allocated to it by the Board, without
further notice, consent or approval of any party, except as expressly provided to
the contrary in this Agreement or any agreement between the Board and the
Investment Manager, and subject to any directions or guidelines as may be
delivered from time to time to the Investment Manager by the Board (pursuant to
Section 8.7).
(c) The duties, responsibilities and compensation of each Investment Manager
shall be expressed in writing in a written agreement to be entered into and
executed on behalf of the Board and by such Investment Manager.
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(d) The Board or the Investment Committee shall meet periodically with any
Investment Manager appointed hereby for the purpose of reviewing the activities
of the Investment Manager, monitoring its investment performance (including the
voting of any proxies that the Investment Manager has been delegated the right to
vote), its compliance with any Investment Guidelines that may have been
promulgated by the Board or Investment Committee (pursuant to Section 8.7).
8.3 Acknowledgments. The Board or the Investment Committee may
require any Investment Manager to furnish it with a certificate acknowledging
that it:
(a) is a fiduciary (within the meaning of Section 3(21) of ERISA) with respect to
its Investment Manager Account; and
(b) complies with the requirements of an investment manager (as set forth in
Section 3(38) of ERISA).
8.4 Direction by Investment Manager. Each Investment Manager
shall have the exclusive authority to manage, acquire and dispose of any
Securities or other property held in its Investment Manager Account and, subject
to its written agreement with the Board and any Investment Guidelines, may
exercise with respect to such Securities or other property all of the powers set
forth in Section 5.5, except subsections (j) through (z) (unless the Board or the
Investment Committee has explicitly consented in writing to the Investment
Manager exercising the powers set forth in such subsections).
8.5 Review by Board. Notwithstanding anything to the contrary
contained in this Agreement, neither the Board, the Investment Committee nor
any Trustee shall be responsible or liable for any acts or omissions of any
Investment Manager or be under any obligation to invest or otherwise manage any
assets contained in an Investment Manager Account, except those assets over
which it has specifically assumed investment management duties.
8.6 Issuance of Orders. Subject to the terms of the investment
management agreement between the Board and each Investment Manager:
(a) Each Investment Manager shall have the power and authority, to be exercised
in its sole discretion at any time and from time to time, to issue orders and
Instructions for the purchase or sale of Securities held in its Investment Manager
Account directly to a broker-dealer; and
(b) All transactions by an Investment Manager shall be made upon such terms
and conditions, and from or through such principals and agents, as the Investment
Manager shall direct (consistent with the provisions of ERISA).
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8.7 Investment Guidelines. The investment powers of any Investment
Manager may be subject to any general or specific investment directions or
guidelines that from time to time may be delivered to it by the Board or the
Investment Committee (in its sole discretion), expressing the investment
objectives, restrictions and policies of the Board or the Investment Committee
with respect to the Securities and other property contained in an Investment
Manager Account. Notwithstanding the preceding sentence, the issuance of any
specific investment directions or guidelines by the Board or the Investment
Committee shall not in any manner be construed as an acceptance by the Board or
Investment Committee of any investment management or supervisory powers in
connection with Trust Fund assets managed by an Investment Manager (and
neither the Board nor the Investment Committee shall, as a result of issuing such
directions or guidelines, be liable for any acts or omissions of an Investment
Manager with respect to such assets, or be under any obligation to invest or
otherwise manage such assets).
8.8

Proxies or Other Ancillary Rights.

(a) The Board or the Investment Committee may delegate to an Investment
Manager the sole right to exercise (as it deems prudent and solely in the interest
of Covered Employees and Beneficiaries), any proxies, conversion privilege or
subscription right, and any other right to make an investment decision with
respect to the Investment Manager Account assets (including, without limitation,
the voting of proxies and exercise of all other rights of shareholders appurtenant
to Investment Manager Account assets) as from time to time the Investment
Manager in its discretion deems prudent.
(b) Each Investment Manager to whom such right has been delegated shall issue
to the Investment Committee a set of policy guidelines explaining the Investment
Manager’s positions and likely voting pattern pertaining to proxies.
(c) Such Investment Manager shall also issue a report to the Investment
Committee, at least annually, indicating the proxies that were voted on the Trust
Fund’s behalf and an explanation as to why they were voted in such manner.
(d) Such Investment Manager shall also give the Custodian such instructions or
directions as may be necessary, and thereupon execute and complete all such
certificates, proxies, consents and other documents necessary or appropriate to
effectuate any proxy voting powers or other ancillary rights delegated to it under
this Agreement.

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ARTICLE IX
PAYMENTS TO THE FUND
9.1

Employer Contributions.

(a) In order to carry out the purpose hereof, each Employer shall contribute to
the Trust Fund the amount required by the applicable Collective Bargaining
Agreements at any time in force and effect, and nothing in this Trust Agreement
shall be deemed to change, alter or amend any of the terms or provisions of any
such Collective Bargaining Agreements regarding the rate and amount of
contributions except as may otherwise be provided in this Section 9.1.
(b) In addition, each Employer shall contribute to the Trust Fund on behalf of
each employee whose exclusion from participation in the Fund is later determined
by the Board, or a governmental agency or court or administrative tribunal, to
violate the terms of the Plan or to result in the Trust Fund’s failure to satisfy the
requirements of the Code applicable to tax-qualified pension plans, including
without limitation part-time employees on behalf of whom the Employer is
required to make contributions under Section 410 of the Code and employees for
whom the Employer has maintained a waiting period in violation of Section 1.12
of the Plan. Contributions shall be at the rate set forth in the Collective
Bargaining Agreement for similarly situated employees commencing as of the
first date on which contributions would have been required, but for the exclusion
of participation.
(c) The rate and amount of contribution shall at all times be based solely on, and
no more than, the scale wages (as defined in the Collective Bargaining
Agreement) received by Covered Employees. The minimum contribution rate
shall be 4% of scale wages and the maximum contribution rate shall be 15% of
scale wages; provided that the Board shall review proposed contribution rates of
less than 4% or greater than 15% and may approve variances in such minimum
and maximum contribution rates, on a case-by-case basis, in its sole and absolute
discretion.
9.2 Effective Date of Employer Contributions. All contributions shall
be made effective as of the date specified in the applicable Collective Bargaining
Agreements between the Union and the Employer, and said contributions shall
continue to be paid as long as the Employer is so obligated pursuant to said
Collective Bargaining Agreements.
9.3 Mode of Payment All contributions shall be made payable to
“American Federation of Musicians and Employers’ Pension Fund,” or shall be
paid in such other manner and form as may be prescribed by the Board.
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9.4

Default in Payment.

(a) Employer contributions to the Trust Fund are due no later than:
(1) with respect to contributions due under any National Collective
Bargaining Agreement, or any other Collective Bargaining Agreement that
becomes effective before June 1, 2005:
(a) the due date for such contributions as set forth in the
applicable Collective Bargaining Agreements, but no later than the last day of the
month immediately following the calendar quarter in which the Covered
Employee performed the services for which such contributions are due and
payable to the Trust Fund; or
(b) if the Collective Bargaining Agreement does not specify a due
date for Employer contributions to the Trust Fund, the last day of the month
immediately following the month in which the Covered Employee performed the
services for which such contributions are due and payable to the Trust Fund; or
(2) with respect to contributions due under any Collective Bargaining
Agreement, other than a National Collective Bargaining Agreement, that becomes
effective on or after June 1, 2005 (or that become effective earlier, but are
renewed or extended effective on or after that date), the last day of the calendar
month immediately following the calendar month in which the Covered Employee
performed the services for which such contributions are due and payable to the
Trust Fund; or
(3) notwithstanding anything in Section 9.4(a)(1) or (2) of this Trust
Agreement to the contrary, with respect to contributions (i) that are due from an
Employer that has an outstanding delinquency to the Fund at the time the
contribution obligation arises, and (ii) on which the Board (in its sole and absolute
discretion) has determined the Employer is at risk of defaulting, any date on or
after the due date for the payment of the wages on which the contributions are
due, as prescribed by the Board, on a case-by-case basis, in its sole and absolute
discretion. The Board shall notify an Employer as soon as reasonably practicable
following the Board’s determination that the provisions of this Section 9.4(a)(3)
will be invoked and applied to the Employer.
(b) In addition to any other enforcement remedies that may exist under this
Agreement or any applicable Collective Bargaining Agreements, the Board or the
Audit Committee is authorized and empowered to initiate whatever actions or
proceedings the Trustees determine, in their sole discretion, to be proper and
necessary for the enforcement of an Employer’s contribution obligations to the
Trust (including, but not limited to, proceedings at law or in equity, arbitration,
mediation, other dispute resolution mechanisms and any other remedies that
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generally would be available for the enforcement of said obligation to contribute
to the Trust Fund). Venue for such actions or proceedings shall be in New York
County, New York or, in the sole discretion of the Board or the Audit Committee,
in any other location authorized by law.
(c) In the event that any Employer shall fail to make required Employer
contributions to the Trust Fund when due, the Board may and is empowered, in its
sole and absolute discretion, to terminate, on a prospective basis, the participation
of the Employer in the Plan and Trust Fund, and the crediting of future service
credit to Employees of such terminated Employer. Nothing in this Section 9.4(c)
shall affect or otherwise modify any other rights of the Board or the Audit
Committee (as may be set forth in this Agreement, the Plan or any Collective
Bargaining Agreement, or as may be provided by applicable law) against such
Employer for the collection of any delinquent Employer contributions to the Plan
or Trust Fund (including, but not limited to, those rights and actions set forth in
this Article).
(d) A delinquent Employer shall be liable for all costs and expenses incurred in
effectuating its contributions or other payments due to the Trust Fund including
but not limited to:
(1)

The employer’s audit costs (as provided in Section 9.9(g));

(2)

The Trust Fund’s audit costs as provided in Sections 9.4(e) and

(3)

attorneys’ fees;

(4)

court costs;

9.9(f);

(5) other costs and expenses attributable to the collection of such
contributions or other payments; and
(6) interest for every calendar year (or portion thereof) during which the
delinquent contribution remained unpaid, calculated at the annual prime rate of
interest quoted in The Wall Street Journal on the first business day of that
calendar year, plus five percent, compounded monthly, or, if greater, any
minimum interest charge established by the Trustees.
(e) In addition to the right to assess an Employer with audit costs provided in
Section 9.9(f), the Board or the Audit Committee shall also have the right to
assess an Employer with all reasonable costs and expenses (including, without
limitation, all audit, accounting, and legal fees) attributable to the audit of the
Employer’s payroll, wage, and related business records with respect to the
contributions which the Employer is obligated to make to the Fund; provided,
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however, that the Board or the Audit Committee has determined that such
Employer has been delinquent in remitting such contributions or payments to the
Fund, and the aggregate amount of such delinquency, plus all accrued interest
thereon and the cost of the audit, exceeds twenty percent (20%) of the actual
audited amount determined by the Fund’s auditors to be due the Fund.
9.5 Enforcement Actions. In addition to any other remedies to which
the Board or the Audit Committee may be entitled hereunder, in the event that an
Employer fails to make required contributions to the Trust Fund, in accordance
with the terms and conditions of this Agreement and any rules or guidelines
promulgated by the Board or the Audit Committee pursuant hereto (hereinafter
collectively referred to as “Unpaid Contributions”), the Board may bring an action
on behalf of the Trust Fund pursuant to Sections 502(g)(2) and 515 of ERISA to
enforce the Employer’s obligation to contribute to the Trust Fund.
9.6 Payments Required by Court Award. In any action under this
Article IX in which a judgment is awarded by a court in favor of the Plan, the
Trust, or the Board, the Employer shall pay to the Trust, in accordance with the
court’s award, the following amounts:
(a) all Unpaid Contributions due and payable; plus
(b) interest on such Unpaid Contributions (computed in accordance with Section
9.4(d)); plus
(c) an amount equal to the greater of:
(1) the interest on the Unpaid Contributions (computed in accordance
with Section 9.4(d)), or
(2)

twenty percent (20%) of the Unpaid Contributions; plus

(d) attorneys’ fees, costs of the action, reasonable expenses attributable to any
audit of the Employer’s payroll, wage, and related business records with respect
to Unpaid Contributions or payments, and any other related expenses; and
(e) such other legal or equitable relief as the court deems appropriate.
9.7

No Waiver of Other Rights.

(a) The failure of any Employer to make Employer contributions to the Trust
Fund when due shall not relieve any other Employer of its obligations to make
Employer contributions to said Trust.

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(b) Nothing in this Article IX shall be construed as a waiver or limitation on the
right of the Plan, the Trust, the Board, or the Audit Committee to enforce an
Employer’s contribution obligation in any other type of proceeding, and the
provisions of this Article IX shall be without prejudice to the rights of the Union
to enforce the provisions of any Collective Bargaining Agreement to which it is a
party.
(c) The Board or the Audit Committee (or either of their duly authorized
designees) shall have the exclusive authority to compromise or discharge
Employer contributions to the Trust and any other Employer obligations that arise
under this Trust Agreement.
9.8

Remittance Reports.

(a) All contributions must be accompanied by a remittance report form that
includes the name of the Employer, the name, address and phone number of the
payor, if different (e.g., payroll company, affiliated entity), as well as all
Employee first and last names, addresses, social security numbers, type of
engagement(s) (e.g., name of applicable Collective Bargaining Agreement and
indication of original use, new use or re-use of recording), description of
engagement(s) (e.g., title of show, commercial, jingle or song and location of
engagement), all engagement date(s), “scale wage” and contribution amount(s)
and such other information as the Board may elect to prescribe in the future. The
Employer shall submit to the Fund separate remittance or other reports for each
type of engagement.
(b) If contributions due the Fund are not accompanied by a remittance form
containing all of the information set forth in subsection (a) above, the Fund may
assess a fee from the Employer in its sole discretion in an amount that the Audit
Committee prescribes for each day following the contribution due date for which
the remittance report is incomplete or not received by the Fund.
9.9

Audits.

(a) The Board or the Audit Committee (or either of their duly authorized
designees) shall be authorized and empowered to initiate on behalf of the Fund
whatever action(s) or proceedings(s) it determines to be proper and necessary, in
its sole and absolute discretion, for the enforcement of an Employer’s contribution
obligations to the Trust (including, but not limited to, periodic audits or other
forms of examination of an Employer’s books and records, enforcement and/or
collection proceedings).
(b) The Board or the Audit Committee (or either of their duly authorized
designees) shall have the right to designate an accountant, attorney or other
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representative of the Fund (a “Fund Representative”) periodically to examine,
copy and audit, the Employer’s accounts, books and records at the Employer’s
place of business (or other mutually agreed upon location) which the Fund
Representative determines is necessary to confirm that the Employer has fully
satisfied its obligations to contribute to the Fund under the Employer’s Collective
Bargaining Agreement, this Agreement, the Plan, the rules and policies of the
Trustees, or under applicable law. The Employer must permit such Fund
Representative to conduct such periodic examinations and audits.
(c) The Fund Representative shall have the right to examine all of the
Employer’s accounts, books and records including, without limitation, all check
registers; payroll registers; general, production cost and other ledgers; royalty
statements; vouchers; payroll tax deductions; calculations supporting “scale
wage” determinations; IRS Forms 1096, 1099, W-2 and W-3; state employment
reports; evidence of unemployment insurance contributions; insurance company
reports; supporting cancelled checks; disability insurance premiums; certification
of workers’ compensation coverage; personnel files and/or other documentation
supporting employee job classifications; and any other items concerning the
Employer’s payroll(s) or contributions to the Fund deemed necessary by such
Fund Representative to determine the accuracy, completeness, and timeliness of
the Employer’s contributions and payments to the Fund (all of which are
hereinafter collectively referred to as “Records”). The Employer’s Records shall
be made available at the Employer’s place of business at all reasonable times for
examination, audit, and copying (at the Employer’s expense) by such Fund
Representative. In addition, the Records of any affiliate, subsidiary, alter ego,
joint venture, successor or related company of the Employer (including, where
applicable, payroll companies) shall also be made available at all reasonable times
for examination and audit by the Fund’s Representative, at the request of said
Fund Representative.
(d) The Employer shall retain, for a minimum period of six (6) years or such
longer period as may be required by applicable law (whichever is greater), all
Records necessary for the conduct of the examination and audit contemplated in
this Article IX.
(e) An Employer shall be entitled to thirty (30) days’ advance written notice of
any audit to be conducted under this Article IX. If, however, exigent
circumstances exist for conducting the audit on shorter notice, the Fund
Representative may do so, provided that it gives the Employer advance written
notice of such audit. Except where the Fund Representative has determined that
exigent circumstances require otherwise, the Employer shall be permitted to
adjourn the audit for up to ten (10) business days upon demonstrating to the Fund,
no less than ten (10) business days' in advance of the scheduled commencement
of the audit, a legitimate business need for such adjournment.
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(f) In the event that the Fund Representative has provided proper and timely
notice of the audit to the affected Employer in accordance with Section 9.9(e)
above, but the Employer nonetheless fails to produce the Records necessary for an
audit as set forth in this Article IX, and the Fund brings and prevails in a legal
action against said Employer to obtain an audit of said Employer’s Records, said
Employer shall be obligated to pay the reasonable costs and attorneys’ fees
incurred in pursuing said action, together with the full cost of such audit (without
regard to any of the limitations or other conditions on the amount that can be
assessed against such Employer set forth in Section 9.4(e)). In any such action,
the affected Employer consents to jurisdiction and venue in the Federal District
Court for the Southern District of New York.
(g) The Employer shall bear all of its own costs of the audit.

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ARTICLE X
AMENDMENT; TERMINATION; AND
TRANSFER OF ASSETS
10.1 Amendment. This Agreement and the Plan may be amended, at
any time and in any manner, by a vote of the Board (in the manner prescribed in
Section 6.4), and the provisions of any such amendment may be made applicable
to the Plan or the Trust Fund as constituted at the time of such amendment and to
any part of the Trust Fund subsequently acquired, as well as to the Executive
Director, all Trustees, all Contributing Employers, any Investment Manager, or
Custodian, and all others whosoever; provided that the amendment:
(a) is consistent with the purposes for which the Fund was established; and
(b) will not cause the Plan to be disqualified under Section 401(a), or the Trust to
lose its tax-exemption under Section 501(a), of the Code.
10.2 Limitation of Amendments. No amendment shall be made to this
Trust Agreement or the Plan which shall divert the Fund to any purpose other than
that of providing pension or related benefits or result in the return or diversion of
any part of the Fund to any of the Contributing Employers except as otherwise
permitted by ERISA.
10.3 Termination.
(a) This Agreement, and the Trust Fund established hereunder, may be
terminated:
(1) at any time, by a vote of the Board (in the manner prescribed in
Section 6.4); or
(2) by an instrument in writing duly executed by the Union and by
Employers which, in the aggregate, were responsible for 50% or more of the
contributions paid to the Trust Fund by Employers during the last complete six
(6) month period ended June 30 or December 31 immediately preceding the
submission of such instrument; or
(3) automatically, in the event that the obligation of all Employers to
make contributions to the Trust Fund shall terminate or there shall be no assets
remaining in the Trust Fund.
(4) In the event of the termination of the Trust, the Board shall apply the
assets of the Trust to pay or to provide for the payment of any and all obligations
of the Trust and distribute or apply any remaining surplus in a manner consistent,
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in their opinion, with this Agreement, the Plan, ERISA, the Code and any other
applicable law; provided, however, that no part of the corpus or income of the
Trust Fund shall be used for or diverted to purposes other than for the exclusive
benefit of the Covered Employees (except as otherwise provided in Section 4.4);
the payment of administrative expenses of the Trust Fund, or for other payments
in accordance with the provisions of this Trust Agreement. Under no
circumstances shall any portion of the corpus or income of the Trust Fund,
directly or indirectly, revert or accrue to the benefit of any Employer or the Union
except as otherwise permitted by ERISA.
(5) Upon termination of the Trust, the Board shall forthwith notify all
necessary parties, and the Board shall continue to act as Trustees for the purpose
of concluding the affairs of the Trust. The Board may take any action with regard
to insurance policies or group contracts that may be required by the insurance
carrier and which the Trustees, in their discretion, may deem appropriate.
10.4 Transfer of Assets.
(a) The Board may issue Instructions from time to time directing that all or a
portion of the assets of the Trust Fund shall be transferred to another trust
established and maintained for the custody or investment of assets of the Trust
Fund.
(b) Nothing herein contained shall be deemed to prohibit the Board, in its sole
and absolute discretion, from transferring any assets of the Fund to another
pension fund established or maintained by any Contributing Employer for
employees or former employees of the Contributing Employer who were
participants in the Plan on such terms and under such conditions as the Board may
determine; provided, however, that, in the case of any merger or consolidation
with, or transfer of assets and liabilities to, any other pension plan or trust,
provisions shall be made so that each Covered Employee affected thereby on the
date thereof would (as if the Plan or Trust then terminated) receive a benefit
immediately after the merger, consolidation, or transfer which is equal to or
greater than the benefit that he or she would have been entitled to receive
immediately prior to the merger, consolidation or transfer (as if the Plan or Trust
then terminated).
(c) To the extent permitted by applicable law, and in accordance with the terms
of the Plan and applicable law, the Executive Director shall direct the transfer of
assets of the Fund directly to another retirement fund established or maintained by
an employer in which an employee or former employee of a Contributing
Employer who was a participant in the Plan participates, or to an individual
retirement account established or maintained by a former Plan participant (or his

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or her spousal beneficiary), pursuant to the written authorization of such
participant (or his or her spousal beneficiary).

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ARTICLE XI
ACCOUNTS OF THE BOARD
11.1 Board to Maintain Trust Accounts. Unless otherwise delegated to
the Executive Director, Custodian, sub-custodian, Fund accountant, or another
entity or person, the Board shall:
(a) Act as a master recordkeeper for the Plan and Trust Fund, and its records
shall constitute the official records of the Plan and Trust Fund for all purposes;
(b) Maintain true, accurate and detailed books of account and records of all their
transactions, which shall be open to the inspection of each Trustee, each
Employer and the Union at the principal office of the Trust Fund at all reasonable
times, and which shall be examined at least annually by a certified public
accountant selected by the Board; and
(c) Maintain such information as will enable the Board to determine the fair
market value of each Security, and the aggregate fair market value of all other
assets of the Trust.
11.2 Valuation. For all purposes of this Agreement (including, without
limitation, the actuarial valuation of the Plan or an Investment Manager Account,
and any accounts as hereinabove provided), all Securities and other property on
any business day shall be valued at fair market value, computed in accordance
with such commercially acceptable valuation method or methods determined by
the Board (or, in the Board’s discretion, the Custodian), with prudence and in
good faith, to reflect their current fair market value.

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ARTICLE XII
MISCELLANEOUS
12.1 Situs. The Board and the Fund shall have and maintain a principal
office in the City of New York.
12.2 Choice of Law. This Agreement and the Trust Fund created hereby
shall be construed, regulated, enforced and administered in accordance with the
internal laws of the State of New York applicable to contracts made and to be
performed within the County and State of New York (without regard to any
conflict of laws provisions), to the extent that such laws are not preempted by the
provisions of ERISA (or any other applicable laws of the United States).
12.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall be considered the same instrument. The signature of a party on any
counterpart shall be sufficient evidence of his or her execution thereof.
12.4 Titles; Plurals; and Gender. Titles, headings, and subheadings for
sections and paragraphs are inserted for the convenience of reference only, and
this Agreement shall not be construed by reference to them. Wherever required by
context, the singular of any word used in this Agreement shall include the plural
and the plural may be read in the singular. Words used in the masculine shall be
read and construed in the feminine where they would so apply.
12.5 Service of Process. The Trustees are hereby designated as agents
for service of legal process on the Trust or the Plan.
12.6 Validity of Trustees’ Accounts and Instruments. No person,
partnership, corporation or association dealing with the Board shall be obliged to
see to the application of any funds or property of the Trust, to see that the terms of
this Agreement and Declaration of Trust have been complied with, or be obliged
to inquire into the necessity or expediency of any act of the Board. Every
Certificate or other instrument executed by the Co-Chairs shall be conclusive in
favor of any person, partnership, corporation or association relying thereon that:
(a) at the time of the delivery of said instrument the Trust was in full force and
effect;
(b) said instrument was effected in accordance with the terms and conditions of
this Agreement; and

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(c) the Co-Chairs were duly authorized and empowered to execute such
instrument.
12.7 Definitions. All words and phrases defined in the Plan shall have
the same meaning in this Agreement, except as otherwise expressly provided
herein.
12.8 Notices. Unless otherwise specified herein, all notices, instructions
and advice with respect to Securities transactions, or any other matters
contemplated by this Agreement, shall be deemed duly given to the Board when
deposited in first-class mail, hand delivered, or transmitted by facsimile or
electronic mail, addressed as follows:
Board of Trustees
American Federation of Musicians
and Employers’ Pension Fund
One Penn Plaza, Suite 3115
New York, New York 10119
or to such other address as the Board shall subsequently designate. Any notice or
other communication shall be deemed to have been given to, or received by, the
Board as of the date on which it is personally or electronically delivered or, if
mailed, on the first (1st) business day after the date of the postmark applied by the
United States Postal Service.
12.9 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement (or any amendment hereto) shall be held
contrary to any provision of law, or shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms (or amendments)
shall:
(a) be enforced only to the extent not contrary to law or invalid;
(b) be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement; and
(c) shall in no way affect the validity or enforceability of the other provisions of
this Agreement or the rights of the parties hereto.
12.10 Legal Compliance. The Board, Executive Director, each Trustee,
each Committee, the Custodian and each Investment Manager shall carry out its
respective duties and responsibilities under this Agreement in accordance with,
and be limited in the exercise of its rights and obligations by, the provisions of
ERISA, the Code and other applicable law.
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12.11 Successor Provisions of Law. Any references to a section of
ERISA or the Code, or to any regulations or administrative pronouncements
thereunder, shall be deemed to include a reference to any successor provision of
ERISA or the Code (or of any successor federal law) or to any successor
regulations or administrative pronouncements thereunder.
12.12 Entire Agreement.
This Agreement sets forth the entire
agreement of the parties hereto with respect to the subject matter hereof, is
intended to be the complete and exclusive statement of the terms hereof, and may
not be modified or amended except pursuant to the procedure set forth in Section
10.1.
12.13 Construction. Anything in this Agreement, or any amendment
hereof, to the contrary notwithstanding, no provision of this Agreement shall be
construed so as to violate the requirements of ERISA, the Code, or other
applicable law.
12.14 Inurement. This Agreement shall inure to the benefit of the Board
and its successors and assigns, and the Covered Employees (or their
Beneficiaries).
12.15 Rights In Fund. No Employee, or other person, or group of
persons, nor any organization (other than the Board), nor any person claiming
through them, shall have any right, title or interest in any of the income or
property of any character received or held by or for the account of the Fund (by
reason of having been named a beneficiary or otherwise), and no person shall
have any right to any benefit provided by the Plan, nor shall any person be
entitled to any payment or other equity in the assets of the Fund unless and until
the Board determines that he or she fulfills all the requirements for a benefit in
accordance with the specific provisions of the Plan.
12.16 Trust Grants No Interest to Employees. Neither the creation of
this Fund nor anything contained in this Agreement or the Plan shall be construed
as giving any Covered Employee entitled to benefits hereunder or under the Plan
any right to be continued in the employ of any Contributing Employer or any
equity or other interest in the assets of the Fund, except as set forth in the Plan.
12.17 Duration of Agreement. This Agreement shall continue in effect
without limit as to time; subject, however, to the provisions of this Agreement
relating to amendment, modification and termination thereof set forth in
Article X.
12.18 Interpretation of Agreement. Should any provision of this
Agreement require interpretation or construction, it is agreed by the parties that
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the court, administrative body or other entity interpreting or construing this
Agreement shall not apply a presumption that the provisions hereof shall be more
strictly construed against one party by reason of the rule of construction that a
document is to be construed more strictly against the party who itself or through
its agents prepared the same, it being agreed that all parties, by their respective
representatives and agents, have fully participated in the preparation of all
provisions of this Agreement.

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ARTICLE XIII
WITHDRAWAL LIABILITY
13.1 In General.
Each Employer shall pay to the Fund all amounts due as withdrawal liability
resulting from a partial or complete withdrawal from the Fund in accordance with
ERISA, as amended by the Multiemployer Pension Plan Amendments Act of
1980 and as it may be subsequently amended. The Trustees shall have full
authority to adopt rules and regulations governing the determination and payment
of withdrawal liability, consistent with the statute and any governmental
regulations promulgated under it, and such rules and regulations adopted by the
Trustees shall be binding on all Employers.

IN WITNESS WHEREOF, the undersigned do hereby cause this instrument to
be executed as of the day and year first above written for and on behalf of all
Contributing Employers or the Union (as the case may be) and as Trustees of the
Fund.

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WE HEREBY AGREE to act as Trustees in accordance with the terms and
conditions of this Agreement and Declaration of Trust. By our signatures below,
we hereby signify and acknowledge that we have read the foregoing instrument,
fully understand the contents thereof and agree to comply with all of its terms and
provisions.
EMPLOYER TRUSTEES
and on behalf of
Contributing Employers,
as Employer Trustees of
Fund):

(for
all
and
the

UNION TRUSTEES (for and on
behalf of the Union, and as Union
Trustees of the Fund):

/s/ Irving Cheskin

/s/ Harold Bradley

IRVING W. CHESKIN

HAROLD BRADLEY

/s/ J. Nicholas Counter III

/s/ Hal Espinoza

J. NICHOLAS COUNTER, III

HAL ESPINOZA

/s/ Arnie Kaplan

/s/ William L. Foster

ARNIE KAPLAN

WILLIAM L. FOSTER

/s/ JoAnn Kessler

/s/ Thomas F. Lee

JOANN KESSLER

THOMAS F. LEE

/s/ Marion Preston

/s/ David Lennon

MARION PRESTON

DAVID LENNON

/s/ Alan H. Raphael

/s/ William Moriarity

ALAN H. RAPHAEL

WILLIAM MORIARITY

/s/ Jeffrey Ruthizer

/s/ Melinda Wagner

JEFFREY RUTHIZER

MELINDA WAGNER

/s/ Norman K. Samnick

/s/ Ed Ward

NORMAN K. SAMNICK

ED WARD

/s/ Harriet Slaughter

/s/ Phil Yao

HARRIET SLAUGHTER

PHIL YAO

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Case 1:17-cv-05361-VEC Document 186 Filed 07/30/20 Page 192 of 240

IN WITNESS WHEREOF, Board has executed this Amendment on this 20th day
of September, 2006.

By: /s/ Norman K. Samnick

By: /s/ Thomas F. Lee

By: /s/ JoAnn Kessler

By: /s/ Hal Espinosa

By: /s/ Jeff Ruthizer

By: /s/ Melinda Wagner

By: /s/ Lovie Smith-Schenk

By: /s/ Philip Yao

By: /s/ Irving W. Cheskin

By: /s/ William Foster

By: /s/ Alan H. Raphael

By: /s/ Marion Preston

By: /s/ Arnie Kaplan

By: /s/ Harold Ray Bradley

By: /s/ Harriet Slaughter

By: /s/ David Lennon

By: /s/ J. Nicholas Counter

By: /s/ Gary Matts

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IN WITNESS. WHEREOF, the Board has executed this Amendment on this 3lst day of
May 2007
/s/ Norman K. Samnick
Norman K. Samnick, Co-Chairperson

/s/ Thomas F. Lee
Thomas F. Lee, Co-Chairperson

/s/ Irving W. Cheskin
Irving Cheskin

/s/ Harold Ray Bradley
Harold Bradley

/s/ J. Nicholas Counter III
J. Nicholas Counter, III

/s/ Hal Espinosa
Hal Espinosa

/s/ Arnie Kaplan
Arnie Kaplan

/s/ William L. Foster
William L. Foster

/s/ JoAnn Kessler
JoAnn Kessler

/s/ Mary Landolfi
Mary Landolfi

/s/ Marion Preston
Marion Preston

/s/ Gary Matts
Gary Matts

/s/ Jeffrey Ruthizer
Jeff Ruthizer

/s/ Lovie Smith-Schenk
Lovie Smith-Schenk

/s/ Alan H. Raphael
Alan H. Raphael

/s/ Melinda Wagner
Melinda Wagner

/s/ Harriet Slaughter
Harriett Slaughter

/s/ Philip Yao
Phil Yao

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IN WITNESS WHEREOF, the Board has executed this Amendment on this 29th day of
May, 2008.
By:

/s/ Thomas F. Lee
Thomas F. Lee, Co-Chair

By:

/s/ Norman K. Samnick
Norman K. Samnick, Co-Chair

2

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AMENDMENT NUMBER FOUR TO THE
AGREEMENT AND DECLARATION OF TRUST ESTABLISHING
THE AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS'
PENSION FUND
(As Amended and Restated Effective as of April 1, 2005)
WHEREAS, the Board of Trustees (the "Board") of the American Federation of

Musicians and Employers' Pension Fund (the "Fund") adopted the Agreement and Declaration
of Trust Establishing the American Federation of Musicians and Employers' Pension Fund, as
amended and restated effective as of April 1, 2005. (the "Trust Agreement"); and
WHEREAS, pursuant to Article X, Section 10.1 of the Trust Agreement, the Board
reserves the right to amend the Trust Agreement at any time; and
WHEREAS, on October 14, 2009, the Board adopted a resolution describing changes in a
collective bargaining agreement that would result in the collective bargaining agreement and
employer being unacceptable to the Board; and
WHEREAS, the Board now wishes to amend the Trust Agreement to formally

incorporate the terms of the resolution;
NOW, THEREFORE, Section 2.4 of the Trust Agreement (Participation by

Contributing Employers) is amended to read as follows, effective October 15, 2009:
"(a) Any Employer may participate in the Trust and the Plan by:
(1)
Executing a copy of a Collective Bargaining Agreement, or otherwise
establishing a consistent pattern of contributing to the Trust Fund pursuant to a Collective
Bargaining Agreement;
(2)

Designating a date on which such participation shall become effective;

(3)
Designating the categories of employment and its Covered Employees for
participation in the Plan; and

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(4)
and Trust.

Acceptance by the Board of the participation by such Employer in the Plan

(b) E x cept as ot h er w i s e pr o v i d ed b y t h e Bo a r d , a n E mp lo y e r a n d a Co l l e ctiv e
Bargaining Agreement is not acceptable to the Board in the event that: (i) in the case of a
Collective Bargaining Agreement the terms of which were in effect (by agreement or
operation of law) on October 15, 2009, the effective contribution rate applicable to any
period of that Collective Bargaining Agreement is reduced (by agreement or otherwise, on
or after October 16, 2009); or (ii) in the case of any future extension of or successor to
any Collective Bargaining. Agreement the terms of which were in effect (by agreement or
operation of law) on October 15, 2009, the effective contribution rate is reduced to a rate
that is lower than the effective contribution rate in effect on the last day of the expiring
Collective. Bargaining Agreement (based on the terms of the Collective Bargaining
Agreement as they existed on October 15, 2009)."
IN WITNESS WHEREOF, the Board has executed this Amendment on this 24th day of
February, 2010

By:

/s/ Thomas F. Lee
Thomas F. Lee, Co-Chair

By:

/s/ Alan H. Raphael
Alan H. Raphael, Co-Chair

2

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b.

Subsection (f) is amended to read as follows:
"Any member of the Audit Committee may resign by delivering his or
her written resignation to the Board and to the other members of the
Audit Committee, and another Trustee shall be appointed in his or her
place in the manner set forth in subsection (a) above; provided,
however, that there shall always be an equal number of Employer
Trustees and Union Trustees appointed to such Committee (except in
situations in which a vacancy is pending and waiting to be filled)."

5.

The first two lines of Section 7.4(b) are amended to read as follows:
"Subject to the actions of the Board and the provisions of the
Investment Policy Statement and the Plan, the functions of the
Investment Committee shall be to:"

6.

The amendments to Sections 7.3, 7.4 and 7.5 of the Trust Agreement made by Amendment

Number 2 to the Trust Agreement shall be moved to immediately after the first sentence of Sections
7.3(c), 7.4(c) and 7.5(c), respectively.
7.

A new Section 9.10 shall be added to read as follows:
Applicability of Article IX to Statutory Employer Surcharge
For purposes of Section 9.3, 9.4, 9.5, 9.6, 9.7 and 9.9, the terms
"contribution," "contributions", and "Unpaid Contributions" shall
include employer surcharges required under Section 432(e)(7) of the
Code.
*

*

IN WITNESS WHEREOF, the undersigned have executed this Amendment on this 19th

day of May 2010.

By:

/s/ Thomas F. Lee
Thomas F. Lee, Co-Chair

By:

/s/ Alan H. Raphael
Alan H. Raphael, Co-Chair

3

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AMENDMENT NUMBER SIX TO THE
AGREEMENT AND DECLARATION OF TRUST ESTABLISHING
THE AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS^
PENSIONFUND
(As Amended and Restated Effective as of April 1, 2005)
WHEREAS, the Board of Trustees (the "Board") ofthe American Federation of
Musicians and Employers' Pension Fund (the "Fund") adopted the Agreement and
Declaration of Trust Establishing the American Federation of Musicians and Employers'
Pension Fund, as amended and restated effective as of April 1, 2005 (the "Trust
Agreement"); and
WHEREAS, pursuant to Article X, Section 10.1 ofthe Trust Agreement, the Board
reserves the right to amend the Trust Agreement at any time; and
WHEREAS, the Board has agreed to amend the Trust Agreement to clarify the
definition of Employer in Section 1.13 and to conform the provisions of Article VIII with
the Investment Policy Statement adopted by the Board effective May 19, 2010, and has
delegated to the undersigned the authority to execute this Amendment.
NOW, THEREFORE, the Trust Agreement is hereby amended to read as follows,
effective as ofthe date of adoption:
1.
Section 1.13 (Employer) is amended to read as follows, effective as of the April 1,
2005 restatement date;
1.13 "Employer", "Employers" or "Contributing Employers" shall mean
any employer acceptable to the Board (through Board approval or otherwise in
accordance with procedures it.establishes) that heretofore or hereafter is required
or otherwise undertakes to contribute to the Plan and/or the Trust Fund on behalf
ofits Covered Employees pursuant to a Collective Bargaining Agreement,
including (without limitation) an employer that is no longer obligated to
contribute to the Plan and/or Trust Fund with respect to.all periods of time during
which such employer had such an obligation. The term "Employer", "Empioyers"
or "Contributing Employers" shall not include unincorporated self-employed

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persons or sole proprietorships with no other employees, or partnerships that have
nO employees other than partners.
2.
sections 8.1 and 8.2 of Atticle VIU (INVESTMENT MANAGERS) are amended
to read a^ follows, effective May 19, 2010:
8.1

Appointment of Investment Managers.

(a) In its sole and absolute discretion, the Board or the Investment Committee
may, from time to time, appoint one or more Investment Managers to manage and
invest (including the power to acquire and dispose of) all or a portion ofthe assets
of the Trust Fund. In the event that more than one Investment Manager is
appointed, the Board or the Investment Committee shall separately segregate, or
request the Custodian or sub-custodian to segregate, each portion of the assets
constituting the account to be managed by each respective Investment Manager
into a separate Investment Manager Account.
(b) The Board or the Investment Committee may also supervise and direct the
investment ofany portion ofthe Trust Fund that is not subject to the management
arid control of an Investment Manager, by exercising any ofthe powers set forth
in Section 5.5 ofthis Agreement with respect to the Securities or Real Property or
Interests in Real Property ofthe Trust Fund so invested.
(c) In addition, in its sole and absolute discretion, the Board or the Investment
Committee may, from time to time, appoint one or more Investment Managers to
s^rve as a "named fiduciary" (within the meaning of Section 402 of ERJSA) for
such specific purposes as may be provided by the Board or Investment
Committee.
8.2

Authorization.

(a) Any appointment of an Investment Manager shall be authorized by the Board
or' the Investment Committee, and shall become effective as ofthe date specified
by the Board or the Investment Committee. The Investment Manager shall also
identify to the Board or the Investment Committee the person or persons
authorized to give Instructions or directions to the Board on behalf of the
Investment Manager.
(b) The Investment Manager shall have full discrefion and authority, to the extent
required, permitted or not prohibited by ERISA and other applicable law, to invest
and reinvest the portion of Trust Fund assets allocated to it by the Board or the
Investment Committee, without further nofice, consent or approval of any party,
e\cept as expressly provided to the contrary in this Agreement or any agreement
between the Board and the Investment Manager, and subject to any directions or
guidelines as may be delivered from time to lime to the Investment Manager by
the Board or the Investment Committee (pursuant to Section 8.7).

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(c) The duties and responsibilities of each Investment Manager shall be expressed
in a written agreement to be entered into and executed on behalf of the Board and
by such Investment Manager. Each Investment Manager so employed shall be
compensated in such manner as shall be mutually agreed upon in such agreement.
(d) The Board or the Investment Committee shall meet periodically with any
Investment Manager appointed hereby for the purpose of reviewing the activities
of the Investment Manager, monitoring its investment performance (including the
voting of any proxies that the Investment Manager has been delegated the right to
vote), and determining if the Investment Manager has complied with any
Invest ment Guid el ines th a t m a y h a v e b e e n p r o mu l g at e d b y t h e B o a r d o r
Investment Committee (pursuant to Section 8.7).

IN WITNESS WHEREOF. the Board executed this Amendment on this 1st day of
September, 2010.

By:

/s/ Raymond M. Hair, Jr.
Raymond Hair, Jr., Co-Chair

By:

/s/ Alan H. Raphael
Alan H. Raphael, Co-Chair

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AMENDMENT NUMBER SEVEN TO THE
AGREEMENT AND DECLARATION OF TRUST ESTABLISHING
THE AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS'
PENSION FUND
(As Amended and Restated Effective as of April 1, 2005)
WHEREAS, the Board of Trustees (the "Board") of the American Federation of
Musicians and Employers' Pension Fund (the "Fund") adopted the Agreement and
Declaration of Trust Establishing the American Federation of Musicians and Employers'
Pension Fund, as amended and restated effective as of April 1, 2005 (the "Trust
Agreement"); and
WHEREAS, pursuant to Article X, Section 10.1 of the Trust Agreement, the
Board reserves the right to amend the Trust Agreement at any time; and
WHEREAS, the Board wishes to amend the Trust Agreement in the manner set forth
below, and has delegated to the undersigned the authority to execute this Amendment.
NOW, THEREFORE, Section 9.1 of the Trust Agreement is hereby amended to
add the following new subsection (d), effective January 13, 2012:
Notwithstanding the provisions of Section 9.1(c) above, an Employer may also make
contributions to the Trust Fund in accordance with a Collective Bargaining Agreement
that provides for contributions to be made on a basis other than scale wages if the
Collective Bargaining Agreement provides that any such contributions will not be taken
into account in determining any benefit payable under the Plan.
IN WITNESS WHEREOF, the Board executed this Amendment on this 16th day of
February, 2012.

By:

/s/ Raymond M. Hair, Jr.
Raymond M. Hair, Co-Chair

By:

/s/ Alan H. Raphael
Alan H. Raphael, Co-Chair

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contribution due date for which the remittance report is incomplete or not received by the
Fund.

IN WITNESS WHEREOF, the Board executed this Amendment on this 20th day of May, 2015
By:

_/s/ Christopher J.G. Brockmeyer______
Christopher J.G. Brockmeyer, Co-Chair

By:

_/s/ Raymond M. Hair______
Raymond M. Hair, Co-Chair

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AMENDMENT NUMBER NINE TO THE
AGREEMENT AND DECLARATION OF TRUST ESTABLISHING
THE AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS’
PENSION FUND
(As Amended and Restated Effective as of April 1, 2005)
WHEREAS, the Board of Trustees (the “Board”) of the American Federation of
Musicians and Employers’ Pension Fund (the “Fund”) adopted the Agreement and Declaration
of Trust Establishing the American Federation of Musicians and Employers’ Pension Fund, as
amended and restated effective as of April 1, 2005 (the “Trust Agreement”); and
WHEREAS, pursuant to Article X, Section 10.1 of the Trust Agreement, the Board
reserves the right to amend the Trust Agreement at any time; and
WHEREAS, the Board wishes to amend Section 9.1(d) of the Trust Agreement in the
manner set forth below for clarification, and has delegated to the undersigned the authority to
execute this Amendment;
NOW, THEREFORE, Section 9.1(d) of the Trust Agreement is hereby amended to read
as follows:
Notwithstanding the provisions of Section 9.1(c) above, an Employer may also make
contributions to the Trust Fund in accordance with a Collective Bargaining Agreement
(or settlement of a claim under a Collective Bargaining Agreement) that provides for
contributions to be made on a basis other than scale wages if the Collective Bargaining
Agreement (or settlement agreement) provides that any such contributions will not be
taken into account in determining any benefit payable under the Plan.
IN WITNESS WHEREOF, the Board executed this Amendment on this 5th day of August, 2015.

By:

_/s/ Christopher J.G. Brockmeyer___________________________
Christopher J.G. Brockmeyer, Co-Chair

By:

__/s/ Raymond M. Hair __________________________
Raymond M. Hair, Co-Chair

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AMENDMENT NUMBER TEN
TO THE AGREEMENT AND DECLARATION OF TRUST ESTABLISHING THE
AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS’ PENSION FUND
(As Amended and Restated Effective as of April 1, 2005)
WHEREAS, the Board of Trustees (the “Board”) of the American Federation of
Musicians and Employers’ Pension Fund (the “Fund”) adopted the Agreement and Declaration
of Trust Establishing the American Federation of Musicians and Employers’ Pension Fund, as
amended and restated effective as of April 1, 2005 (the “Trust Agreement”); and
WHEREAS, pursuant to Article X, Section 10.1 of the Trust Agreement, the
Board reserves the right to amend the Trust Agreement at any time; and
WHEREAS, the Board wishes to amend the Trust Agreement in the manner set
forth below, and has delegated to the undersigned the authority to execute this Amendment;
NOW, THEREFORE, the Trust Agreement is hereby amended to read as follows:
1.

Section 6.1(c) shall be deleted and replaced with the following:
(c) The Co-Chairs of the Board shall choose one of themselves to
preside over each meeting of the Board.

2.

Section 9.4(a) shall be amended by adding the following paragraphs (4)

and (5):
(4) to the extent contributions are due with respect to all or a
portion of an electronic media guarantee (“EMG”) under a
Collective Bargaining Agreement between the Union and a
symphony orchestra under which musicians receive a periodic
wage payment that also counts towards wages payable for
electronic media work, the due date for contributions due on
account of such EMG shall be the due date for such contributions
as set forth in the Collective Bargaining Agreement, but no later
than the end of the second month following the month in which the
symphony’s season ends.
(5) to the extent contributions are due on amounts other than scale
wages, paid pursuant to Section 9.1(d) above, the due date for
contributions on such amounts shall be the due date in the
Collective Bargaining Agreement.
1
00815315.1

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IN WITNESS WHEREOF, the Board executed this Amendment on this 16th day
of February 2017.

By:

/s/ Christopher Brockmeyer_______
Christopher J.G. Brockmeyer

By:

/s/ Raymond M. Hair, Jr. ___
Raymond M. Hair, Co-Chair

2

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EXHIBIT 5

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EXHIBIT 6

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I CERTIFY that I have not Objected to a Class Action Settlement in the last five years.

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