Acosta v. Brain, No. 16-56529 (9th Cir. 2018)
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Scott Brain, a former trustee of the Trust Funds, and the Cook Defendants appealed the district court's entry of judgment against them in a civil enforcement action by the Secretary of the Department of Labor for violations of the Employee Retirement Income Security Act (ERISA).
The Ninth Circuit affirmed in part and held that the district court did not err in concluding that Brain violated ERISA section 510 by retaliating against a whistleblower. The panel vacated and reversed in part and held that the district court erred in concluding that Brain breached his fiduciary duty in violation of ERISA section 404 by placing the whistleblower on administrative leave. The panel also held that the district court erred in basing the permanent injunction on ERISA section 409; ERISA section 502(a)(5) did not provide an alternative basis for the district court's permanent injunction; the district court did not err in determining that the Cook Defendants were not immune under the attorney immunity doctrine; and the Cook Defendants' remaining arguments were meritless.
Court Description: ERISA The panel affirmed in part, reversed in part, and vacated in part the district court’s judgment in a civil enforcement action brought by the Secretary of the Department of Labor against Scott Brain, a former trustee, and Melissa Cook and Melissa W. Cook & Associates, PC, former counsel to the Cement Masons Southern California Trust Funds, alleging violations of the Employee Retirement Income Security Act of 1974 (“ERISA”). The action alleged violations of two sections of ERISA – unlawful retaliation in violation of ERISA section 510, 29 U.S.C. § 1140, and breach of fiduciary duty in violation of ERISA section 404, 29 U.S.C. § 1104. The panel held that the district court did not err in concluding that Brain violated ERISA section 510 by retaliating against whistleblower Cheryle Robbins, the Director of the Trust Funds’ internal Audit and Collections Department. The panel held that Robbins’s participation in the Department of Labor (“DOL”) investigation of Brain was unmistakably protected activity under ERISA, and constituted an independently sufficient ground for the
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