Solis v. Amtren Corporation et al

Filing 14

JUDGMENT directing that, in accordance with the 13 memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) The 10 motion for default judgment is granted; (2) Judgment is entered in favor of plainti ff Labor Secretary and against defendants Amtren Corporation, Amtren Corporation Profit Sharing Plan, and Charles Kirk Lamberth; (3) Defendants Lamberth and Amtren Corporation, their agents, servants, employees, and all persons in active concert or p articipation with them are permanently ENJOINED and RESTRAINED from violating the provisions of Title I of Employee Retirement Insurance Security Act of 1964 (ERISA), 29 U.S.C. § 1001 et seq; (4) Defendants Lambert and Amtren Corporation are her eby removed as fiduciary to Amtren Corporation Profit Sharing Plan and are permanently ENJOINED and RESTRAINED from acting as a fiduciary, trustee, agent, or representative in any capacity to any employee benefit plan, as defined by ERISA; (5) Any pa rticipant interest defendant Lamberth may have in any existing or future assets of defendant Amtren Corporation Profit Sharing Plan shall be applied as an offset against the amounts that plaintiff Secretary of Labor has alleged are due to defendant A mtren Corporation Profit Sharing Plan, as authorized by ERISA § 206(d)(4), as further set out; (6) Defendants Lamberth and Amtren Corporation are to restore $114,255.03 to the Sharing Plan, representing the portion of the prohibited loan wh ich came from the Sharing Plan accounts of non-fiduciary participants, plus lost opportunity costs, as further set out; (7) Jeanne B. Bryant of Receivership Management, Inc., 783 Old Hickory Blvd., Suite 255, Brentwood, Tennessee 37027, is appointed as successor fiduciary for the SharingPlan, as further set out; (8) Each party shall bear its own attorney fees and expenses in connection with this action, and the defendants waive any rights pursuant to the Equal Access to Justice; (9) The court ma intains jurisdiction over this matter only for the purposes of enforcing this final judgment and accompanying opinion; (10) Nothing in this judgment is binding on any government agency other than the United States Department of Labor; further ORDERED that costs are taxed to the defendants Lambert and Amtren Corporation, for which execution may issue; the clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by Honorable Judge Myron H. Thompson on 12/6/11. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

HILDA L. SOLIS, Secretary
of Labor, United States
Department of Labor,

)
)
)
)
Plaintiff,
)
)
v.
)
)
AMTREN CORPORATION, AMTREN )
CORPORATION PROFIT SHARING )
PLAN, and CHARLES KIRK
)
LAMBERTH,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv460-MHT
(WO)

JUDGMENT
In accordance with the memorandum opinion entered
this date, it is the ORDER, JUDGMENT, and DECREE of the
court as follows:
(1) The motion for default judgment (doc. no. 10),
filed by plaintiff Hilda L. Solis, Secretary of Labor,
United States Department of Labor, is granted.
(2) Judgment is entered in favor of plaintiff Labor
Secretary

and

against

defendants

Amtren

Corporation,

Amtren Corporation Profit Sharing Plan, and Charles Kirk
Lamberth.
(3) Defendants Lamberth and Amtren Corporation, their
agents, servants, employees, and all persons in active
concert

or

participation

with

them

are

permanently

ENJOINED and RESTRAINED from violating the provisions of
Title I of Employee Retirement Insurance Security Act of
1964 (ERISA), 29 U.S.C. § 1001 et seq.
(4) Defendants Lambert and Amtren Corporation are
hereby removed as fiduciary to Amtren Corporation Profit
Sharing Plan and are permanently ENJOINED and RESTRAINED
from

acting

as

a

fiduciary,

trustee,

agent,

or

representative in any capacity to any employee benefit
plan, as defined by ERISA.
(5) Any participant interest defendant Lamberth may
have in any existing or future assets of defendant Amtren
Corporation Profit Sharing Plan shall be applied as an
offset against the amounts that plaintiff Secretary of
Labor has alleged are due to defendant Amtren Corporation

2

Profit Sharing Plan, as authorized by ERISA § 206(d)(4).
The Sharing Plan document is deemed amended to permit the
distribution

and

offset

of

defendant

Lamberth’s

participant interest, as provided herein. A full executed
copy of this opinion and judgment shall be maintained by
the Sharing Plan administrator with all other documents
and instruments governing the plan.
(6) Defendants Lamberth and Amtren Corporation are to
restore $ 114,255.03 to the Sharing Plan, representing the
portion of the prohibited loan which came from the Sharing
Plan accounts of non-fiduciary participants, plus lost
opportunity costs. This judgment is enforceable against
each defendant individually, as each defendant’s liability
is joint and several.
(7) Jeanne B. Bryant of Receivership Management, Inc.,
783 Old Hickory Blvd., Suite 255, Brentwood, Tennessee
37027, is appointed as successor fiduciary for the Sharing
Plan and:

3

a.

The

successor

fiduciary

shall

collect,

marshal, and administer all of the Sharing Plan’s assets
and take such further actions with respect to the Plan as
may be appropriate.
b. The successor fiduciary shall have all the
rights, duties, and responsibilities of any fiduciary or
trustee described under the Sharing Plan documents or the
applicable law, with respect to the successor fiduciary’s
duties.
c.

The

successor

fiduciary is authorized to

delegate or assign fiduciary duties as appropriate and
allowed under the law.
d. The successor fiduciary shall be entitled to
receive reasonable fees and expenses for her services,
payable from the assets of the Sharing Plan.

Defendants

shall be jointly and severally liable for reimbursing the
Sharing

Plan

for

the

entire

successor

fiduciary’s

reasonable fees and expenses with respect to services
performed for the Sharing Plan.

4

e. Defendants Lamberth and Amtren Corporation
shall deliver or otherwise make available to the successor
fiduciary

any

compilations,
reasonably

information,

documents,

wherever

however

necessary

and
to

perform

files

stored,

the

duties

or

other

that

are

of

the

successor fiduciary.
f.

The successor fiduciary is authorized to give

instructions respecting the disposition of assets of the
Sharing Plan.
g.

The successor fiduciary, in the performance

of her duties, may retain such assistance as she may
require, including attorneys, accountants, actuaries, and
other service providers.
h.

The payment of administrative expenses and

all fees to the successor fiduciary, her assistants,
attorneys, accountants, actuaries and other necessary
service

providers

are

to

be

considered

administrative expenses of the Sharing Plan.

5

priority

i.

The

successor

fiduciary

or

her

agents,

employees or representatives may not be held personally
responsible for any claims against the Plan which existed,
arose, matured, or vested prior to the appointment of the
successor fiduciary.
j.

The successor fiduciary is to comply with all

applicable rules and laws.
(8) Each party shall bear its own attorney fees and
expenses

in

connection

with

this

action,

and

the

defendants waive any rights pursuant to the Equal Access
to Justice.
(9) The court maintains jurisdiction over this matter
only for the purposes of enforcing this final judgment and
accompanying opinion.
(10) Nothing in this judgment is binding on any
government agency other than the United States Department
of Labor.

6

It is further ORDERED that costs are taxed to the
defendants

Lambert

and

Amtren

Corporation,

for

which

execution may issue.
The clerk of the court is DIRECTED to enter this
document on the civil docket as a final judgment pursuant
to Rule 58 of the Federal Rules of Civil Procedure.
This case is closed.
DONE, this the 6th day of December, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE