Judge Paul Crotty
FHA Firedoor Corp. and K-D Frame and Door Corp. had substantially identical management, and shared ownership, customers, equipment and employees. Prevailing in arbitration over FHA’s alleged failure to make contributions required by a collective bargaining agreement (CBA), plaintiff funds were awarded $207,695, $150,172 of which represented contributions due them between Jan. 1, 2005, and Dec. 31, 2008. The Funds failed to enforce the award against FHA, which neither complied with the award nor sought its vacatur or modification. District court denied dismissal of the Funds’ Sept. 19, 2012, ERISA litigation. In addition to rejecting claims that res judicata barred the court from addressing and concluding that the doctrine of election of remedies did not prevent the Funds from asserting both contract and ERISA claims that were not inconsistent and which arose from a single course of events, the court concluded that the Funds’ failure to enforce the CBA was not a material representation to FHA that no fringe benefit contributions would be owed. The court also found that the Funds adequately pleaded that FHA and K-D were alter egos.
