NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT DEC 29 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

AC HOUSTON LUMBER COMPANY No. 10-15170

EMPLOYEE HEALTH PLAN,

D.C. No. 2:08-cv-02374-JAM- Plaintiff - Appellee, GGH

v.

MEMORANDUM*

WILLIAM L. BERG; BERG INJURY

LAWYERS,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted December 8, 2010 San Francisco, California

Before: THOMPSON, COWEN** and SILVERMAN, Circuit Judges.

Defendants William Berg and Berg Injury Lawyers appeal the district

court’s grant of summary judgment in favor of plaintiff AC Houston Lumber

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation. Company Employee Health Plan. AC Houston, an ERISA1 plan, sued the

defendants pursuant to 29 U.S.C. § 1132(a)(3) to enforce a plan lien for medical

benefits paid on behalf of plan beneficiary Mark Freed. The defendants

represented Freed in his personal injury action and disbursed the settlement money

without paying the plan lien. The district court held that the plan’s lien had

priority over attorneys’ fees and ordered the law firm and attorney defendants to

pay $16,522.05 of the law firm’s fees and costs to the plan. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and reverse.

Hotel Employees & Rest. Employees Int’l Union Welfare Fund v. Gentner,

50 F.3d 719 (9th Cir. 1995), controls. Gentner held that an ERISA plan’s lien

cannot be enforced against an attorney who did not sign the reimbursement

agreement or expressly agree to honor the plan’s lien. Id. at 721-22.

The plaintiff here argues that Sereboff v. Mid Atlantic Med. Serv., Inc., 547

U.S. 356 (2006), overrules Gentner. We disagree. Sereboff concerned claims

against plan beneficiaries, parties who were bound by the plan terms. Id. at 359-

1 Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461. 2 60. Sereboff did not undermine the logic of Gentner, which dealt with lawyers

who are not parties to the plan.2

REVERSED.

2 Because we reverse on this ground, we do not consider the alternative arguments asserted by the defendants. 3

FILED

AC Houston Lumber Company v William Berg 10-15170 DEC 29 2010

MOLLY C. DWYER, CLERK

THOMPSON, Senior Circuit Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent. To the extent our decision in Hotel Employees &

Restaurant Employees Int’l Union Welfare Fund v. Gentner, 50 F.3d 719 (9th Cir.

1995), prevents an ERISA plan from recovering against an attorney who possesses

a portion of the settlement funds with knowledge of the subrogation agreement

between his client and the ERISA plan, it has been overruled by Sereboff v. Mid

Atlantic Medical Services, Inc., 547 U.S. 356 (2006).

Any difference between this case and Sereboff is illusory, because as the

Sereboff Court explained, the claim for equitable restitution attached “‘as soon as

the settlement fund was identified.’” See 547 U.S. at 364 (citation omitted). At that

point, in the present case, the funds were in Freed’s “constructive possession,” and

the Berg law firm was acting as Freed’s agent when it disbursed the funds to itself

as attorneys’ fees. See Bombardier Aerospace Emp. Welfare Benefits Plan v.

Ferrer, Poirot & Wansbrough, 354 F.3d 348, 356 (5th Cir. 2003). No further

tracing or maintenance of a fund is necessary for equity to allow repayment.

As two of our sister circuits recently concluded, once an ERISA § 502(a)(3)

claim attaches, there is no practical difference if the money is then disbursed to the

beneficiary, as was the case in Sereboff, or to a third party with knowledge of the

subrogation agreement. See Longaberger Co. v. Kolt, 586 F.3d 459, 469 (6th Cir. 2009) (allowing recovery against the beneficiary’s attorney where the attorney

already disbursed a portion of the funds to himself as attorney’s fees); Admin.

Comm. for the Wal-Mart Stores, Inc. Assocs.’ Health & Welfare Plan v. Horton,

513 F.3d 1223, 1227-29 (11th Cir. 2008) (allowing recovery against the

conservator of a special needs trust where the settlement funds were deposited).

Here, because the funds to which AC Houston was “entitled” under the

subrogation agreement were “specifically identifiable” and in the Berg law firm’s

“possession and control,” the district court properly imposed an equitable lien over

them pursuant to § 502(a)(3). See Sereboff, 547 U.S. at 362-64. The fact that the

law firm never signed the subrogation agreement is irrelevant, because the firm

knew of the agreement when it decided to represent Freed and before it disbursed a

portion of the funds to itself as attorneys’ fees. Accordingly, I would affirm.

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