Thomas E Perez v. Scot Brain et al

Filing 510

FINAL JUDGMENT AND PERMANENT INJUNCTION filed by Judge John A. Kronstadt. (MD JS-6. Case Terminated) (ah)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

THOMAS E. PEREZ,
Secretary of Labor,
United States Department of Labor,
v.
SCOTT BRAIN, et al.,

Plaintiff,

LA CV14-03911 JAK (AGRx)
FINAL JUDGMENT AND
PERMANENT INJUNCTION
JS-6

Defendants.

A bench trial in this action resulted in findings of fact and conclusions of law.
Consequently,
IT IS ORDERED that judgment be entered in favor of Plaintiff, Thomas E. Perez,
Secretary of Labor, U.S. Department of Labor, as follows:
1) Defendant Scott Brain (“Brain”) violated ERISA § 510, 29 U.S.C. § 1140,
by causing Cheryle Robbins (“Robbins”) to be placed on paid
administrative leave in retaliation for protected conduct;

2) Defendants Melissa Cook and Melissa W. Cook & Associates, P.C.
(collectively, “Cook Defendants”) violated ERISA § 510, 29 U.S.C. § 1140,
by causing Robbins to be placed on paid administrative leave in retaliation
for protected conduct;
3) Defendant Brain violated ERISA § 510, 29 U.S.C. § 1140, by causing the
termination of Cory Rice (“Rice”) in retaliation for protected conduct and
for an improper purpose;
4) The Cook Defendants, and each of them, violated ERISA § 510, 29 U.S.C.
§ 1140, by causing the termination of Rice in retaliation for protected
conduct and for an improper purpose;
5) Defendant Brain violated ERISA § 510, 29 U.S.C. § 1140 by causing the
removal of Robbins from her employment with the Cement Masons
Southern California Trust Funds Administrative Corporation and by
preventing her from performing any services or work for the Cement
Masons Southern California Trust Funds,1 both of which were in retaliation
for protected conduct;
6) The Cook Defendants, and each of them, violated ERISA § 510, 29 U.S.C.
§ 1140, by causing Robbins to be removed from her employment with the
Cement Masons Southern California Trust Funds Administrative
Corporation and by preventing her from performing any services or work
for the Cement Masons Southern California Trust Funds, both of which
were in retaliation for protected conduct;
7) Defendant Brain violated his fiduciary duties to the Cement Masons
1

As used in this Judgment and Permanent Injunction, the Cement Masons Southern California Trust
Funds refers to the Cement Masons Southern California Health and Welfare Trust Fund, the Cement
Masons Southern California Pension Trust, the Eleven Counties Cement Masons Vacation Savings
Plan Trust, the Cement Masons Joint Apprenticeship Trust, and the Cement Masons Southern
California Individual Retirement Account Defined Contribution Trust.

Southern California Trust Funds under ERISA §§ 404(a)(1)(A) and (B), 29
U.S.C. § 1104(a)(1)(A) and (B), when he caused Robbins to be placed on
paid administrative leave in retaliation for her protected conduct; and
8) The Cook Defendants, and each of them, violated ERISA §§ 404(a)(1)(A)
and (B), 29 U.S.C. §§ 1104(a)(1)(A) and (B), by knowingly participating in
Defendant Brain’s breach of his fiduciary duties with respect to causing
Robbins to be placed on paid administrative leave in retaliation for
protected conduct.
IT IS FURTHER ORDERED AND ADJUDGED that, within 30 days of the date
of the entry of this Judgment, the Cook Defendants shall disgorge $61,480.62 to the
Southern California Cement Masons Trust Funds, which is the amount of fees received
as a result of work performed that was prohibited conduct, and that post-judgment
interest be paid thereon as provided by 28 U.S.C. § 1961;
IT IS FURTHER ORDERED AND ADJUDGED that, the following permanent
injunction is entered against Brain, Melissa W. Cook, and Melissa W. Cook &
Associates, P.C.:
1)

Defendant Brain is removed as a Trustee for any and all of the

Cement Masons Southern California Trust Funds.
Defendant Brain is hereby permanently restrained and enjoined from:
(a)

serving in any fiduciary capacity, including but not limited to
serving as a Trustee, for any of the Cement Masons Southern
California Trust Funds, their successors, or their assigns; and

(b)

applying for, or accepting any fiduciary position with any
ERISA-covered plan, unless in connection with such an
application and prior to accepting any such position that is
offered, Defendant Brain first discloses the terms of this Final
Judgment and Permanent Injunction.
2)

Any attorney-client relationship between the Cook Defendants,

or either of them, and any of the Cement Masons Southern California Trust
Funds, is terminated.
3)

Defendant Melissa W. Cook, her agents, and any other person

acting with her or on her behalf are hereby permanently restrained and
enjoined from providing any services to any of the Cement Masons
Southern California Trust Funds, their successors, or their assigns.
4)

Defendant Melissa W. Cook & Associates, P.C., its owners, its

officers and directors, its affiliates and subsidiaries, its employees and
agents, its successors and assigns, and any other person or entity acting with
it or on its behalf are hereby permanently restrained and enjoined from
providing any services to any of the Cement Masons Southern California
Trust Funds, their successors, or their assigns.
5)

Within 14 days of the entry of this Final Judgment and

Permanent Injunction, Brain shall provide notice of the Final Judgment and
Permanent Injunction to all trustees, participants, and beneficiaries of the
Cement Masons Southern California Trust Funds.
6)

Within 14 days of the entry of this Final Judgment and

Permanent Injunction, each of the Cook Defendants shall provide notice of
this Final Judgment and Permanent Injunction to all owners, officers,
directors, affiliates, subsidiaries, employees, and agents of Melissa W.
Cook & Associates, P.C.
IT IS FURTHER ORDERED that judgment be entered in favor of
Defendant Brain as follows:
1) Plaintiff has failed to show by a preponderance of the evidence that Brain
violated ERISA § 510, 29 U.S.C. § 1140, by causing the termination of
Louise Bansmer (“Bansmer”) in retaliation for protected conduct; and
2) Plaintiff has failed to show by a preponderance of the evidence that Brain

violated ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and
(B) by failing adequately to investigate allegations Robbins made as to
wrongful conduct by Brain.
IT IS FURTHER ORDERED that judgment be entered in favor of the Cook
Defendants as follows:
1) Plaintiff has failed to show by a preponderance of the evidence that the
Cook Defendants, or either of them, violated ERISA § 510, 29 U.S.C.
§ 1140, by causing the termination of Bansmer in retaliation for protected
conduct.
IT IS FURTHER ORDERED that judgment be entered in favor of
Defendant Jaime Briceno (“Briceno”) as follows:
1) Plaintiff has failed to show by a preponderance of the evidence that Briceno
violated ERISA § 510, 29 U.S.C. § 1140 by engaging in retaliatory acts
against Robbins;
2) Plaintiff has failed to show by a preponderance of the evidence that Briceno
violated ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and
(B) by failing adequately to investigate allegations that Robbins made as to
wrongful conduct by Brain; and
3) Plaintiff has failed to show by a preponderance of the evidence that Briceno
violated ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and
(B) by voting to use assets of the Trust Funds to pay the cost of settlement
of a civil action that was brought by Robbins.

IT IS FURTHER ORDERED that Plaintiff, Brain, Briceno, and the Cook
Defendants each shall bear his or its own costs.
IT IS SO ORDERED.

Dated: October 14, 2016
______________________________
John A. Kronstadt
United States District Judge