Opinion
02 C 1216
August 14, 2002
Plaintiff moves to strike defendant's fifth affirmative defense, which asserts that Bud Layoff (who might be a possible Trustee of one or more of plaintiffs funds) committed fraud in the inducement. Specifically, plaintiff points to governing law that fraud in the inducement by the Union is not a defense to a fund action. See Central States, Southeast and Southwest Areas Pension Fund v. Transport, Inc., 183 F.3d 623, 628 (7th Cir. 1999) (citation omitted). Defendant does not contest plaintiffs statement of the law but rather argues that he is alleging that "if Mr. Layoff was a Trustee of the Funds, then he committed fraud in both his capacity as a Union official and as a Fund official."
However, a Trustee of a fund "cannot be considered [an] agentjl] of the person or organization responsible for appointing [him]." Yares v. Greater Cleveland Pipefitting Training Fund, 782 F. Supp. 68, 70 (N.D. Ohio 1990) (supported by Cruz v. Central States Joint Bd. Health W4fare Trust Fund, 1993 U.S. Dist. LEXIS 9251 (ltD. 111. 1993)). Nevertheless, defendant's allegation that Mr. Layoff may have been acting as an agent of the Fund is sufficient to defeat plaintiffs motion to strike. At some point, defendant will have to decide whether Mr. Layoff acted as the Union's or the Fund's agent, but for the time being, defendant has met the pleading requirement. Therefore, plaintiff's motion to strike is denied.