Thomas E Perez v. G&H Technology, Inc. 401(k) Retirement Savings Plan et al

Filing 30

CONSENT JUDGMENT AND ORDER ENTERED INTO BY THE SECRETARY OF LABOR and CARL WEISS by Judge Otis D. Wright, II. (SEE DOCUMENT FOR SPECIFICS REQUIREMENTS THEREIN ) ( MD JS-6. Case Terminated ) (lc)

1
2
3
4
5
6
7
8
9

JANET M. HEROLD, Regional Solicitor
California State Bar Number 186419
DANIELLE L. JABERG, Counsel for ERISA
California State Bar No. 256653
KATHERINE M. KASAMEYER, Trial Attorney
California State Bar No. 261820
Email: [e-mail]
United States Department of Labor
Office of the Solicitor
90 7th Street Suite 3-700
San Francisco CA 94103
Telephone: [phone]
Facsimile: [phone]

JS-6

Attorneys for Plaintiff, Thomas E. Perez,
Secretary of Labor, United States
Department of Labor

10
11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13
14
15
16

THOMAS E. PEREZ, Secretary of
Labor, United States Department of
Labor,

17

Plaintiff,

18

vs.

19

G&H TECHNOLOGY INC.
401(K) RETIREMENT SAVINGS
PLAN, an employee benefit plan;
LEE SCHUH, an individual; CARL
WEISS, an individual; XAF, INC.,
A Delaware Corporation;
PROCYON TECHNOLOGIES,
INC., A Delaware Corporation,

20
21
22
23
24
25

(
Case No. 2:15-cv-00391-ODW-AGR

XXXXXXXXXXXXX
[PROPOSED] CONSENT
JUDGMENT & ORDER ENTERED
INTO BY THE SECRETARY OF
LABOR and CARL WEISS

Defendants.

26
27
28

Plaintiff THOMAS E. PEREZ, Secretary of Labor, UNITED STATES
DEPARTMENT OF LABOR (“Secretary”) pursuant to his authority under §§

[Proposed] Default Judgment & Order
2:15-cv-00391-ODW-AGR

Page 1 of 5

1

502(a)(2) and (5) of the Employee Retirement Income Security Act of 1974

2

(“ERISA”), 29 U.S.C. §§ 1132(a)(2) and (5), has filed a Complaint against

3

Defendant XAF, Inc. (“XAF”). The Secretary also named as parties under Rule

4

19(a) the G&H Technology Inc. 401(k) Retirement Savings Plan (“Plan”), an

5

employee benefit plan, Lee Schuh, Carl Weiss (“Weiss”), and Procyon

6

Technologies, Inc..

7

A.

The Secretary and Weiss (collectively, “the parties”) admit that the

8

Court has jurisdiction over this action pursuant to ERISA § 502(e)(1), 29 U.S.C. §

9

1132(e)(1), and that venue lies in the Central District of California pursuant to

10
11

ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2).
B.

The parties agree to the entry of this Consent Judgment & Order. The

12

parties further agree that this Consent Judgment & Order shall bind the Secretary

13

and Weiss as to all claims of the Secretary asserted in the Complaint filed in this

14

matter.

15
16

C.

The Secretary and Weiss expressly waive Findings of Fact and

Conclusions of Law.

17

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

18

1.

Weiss has no objection to the Court’s granting of the Motion for

19

Default Judgment filed by the Secretary of Labor against Defendant XAF; to the

20

removal of XAF from its position as fiduciary of the Plan; and to the appointment

21

of Thomas A. Dillon, Esq., of 851 Burlway Road, Suite 216, Burlingame, CA,

22

94010, as the Independent Fiduciary who:

23

a.

Will be responsible for collecting, marshalling, paying out, and

24

administering all of the assets of the Plan and take further action with respect to the

25

Plan as appropriate, including terminating the Plan when all of its assets have been

26

distributed to all Eligible Plan Participants and Beneficiaries;

27
28

b.

Shall, pursuant to the procedures outlined in the Employee

Benefits Security Administration’s Field Assistance Bulletin 2014-01, exercise

[Proposed] Default Judgment & Order
2:15-cv-00391-ODW-AGR

Page 2 of 5

1

reasonable care and diligence to identify and locate each participant and

2

beneficiary of Plan who is eligible to receive a distribution under the terms of the

3

Plan;
c.

4
5

Shall have all the rights, duties, discretion, and responsibilities

of a trustee, fiduciary, and Plan Administrator under ERISA;
d.

6

Is authorized to delegate or assign fiduciary duties as

7

appropriate and allowed under the law and may retain such as assistance as she

8

may require, including attorneys, accountants, actuaries, and other service

9

providers;
e.

10
11

Shall be authorized by the Court to receive up to $2,600.00 in

reasonable fees and expenses, payable from the assets of the Plan;
f.

12

Shall have full access to all data, information, and calculations

13

in the possession of the Plan and under its control, including information and

14

records maintained by the custodial trustees or service providers of the Plan;
g.

15

Shall provide any information regarding the Plan requested by

16

the Secretary, including any documents or records requested, regarding the

17

administration of the Plan;

18

h.

19

assets of the Plan; and
i.

20
21

Is authorized to give instructions respecting the disposition of

2.

Shall comply with all applicable rules and laws.

Upon the appointment of the Independent Fiduciary as described in

22

paragraph 1, Defendant Weiss will be hereby removed from any position he may

23

hold as trustee or other fiduciary of the Plan.

24

3.

Defendant Weiss has no objection to the removal, upon consent

25

judgment or motion by the Secretary, of Lee Schuh from any position he may now

26

hold as a trustee, fiduciary and/or administrator to the Plan.

27
28

4.

Defendant Weiss has no objection to the removal, upon consent

judgment or motion by the Secretary, of Procyon Technologies, Inc. from any

[Proposed] Default Judgment & Order
2:15-cv-00391-ODW-AGR

Page 3 of 5

1

position it may now hold as a trustee, fiduciary and/or administrator to the Plan.
5.

2

The Secretary and Defendant Weiss shall each bear their own costs,

3

expenses, and attorneys’ fees incurred to date in connection with any stage of this

4

proceeding, including but not limited to attorneys’ fees which may be available

5

under the Equal Access to Justice Act, as amended.
6.

6

Defendant Weiss expressly waives any and all claims of any nature

7

which he has or may have against the Secretary, the Department of Labor, or any

8

of its officers, agents, attorneys, employees or representatives, arising out of or in

9

connection with the allegations contained in the Complaint on file in this action,

10

any other proceedings or investigation incident thereto or based on the Equal

11

Access to Justice Act, as amended.
7.

12
13

This Court retains jurisdiction of this action for purposes of enforcing

compliance with the terms of this Consent Judgment & Order.
8.

14

By signing their names to this Consent Judgment & Order, the parties

15

represent that they are informed and understand the effect and purpose of this

16

Consent Judgment & Order.
9.

17

This Consent Judgment & Order may be executed in counterparts, and

18

such counterparts may be transmitted via facsimile and/or e-mail, each of which

19

shall be deemed to be an original, but all of which, taken together, shall constitute

20

one and the same instrument.
The Court directs the entry of this Consent Judgment & Order as a final

21
22
23
24
25

order.
IT IS SO ORDERED.
June 24, 2015

Dated: _________

26

____________________________________
____________________________________
_ _ _ _
_
UNITED STATES DISTRICT JUDGE
STATES DISTRICT
A

27
28

[Proposed] Default Judgment & Order
2:15-cv-00391-ODW-AGR

Page 4 of 5