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

Filing 32

CONSENT JUDGMENT by Judge Otis D. Wright, II : IT IS HEREBY ORDERED, ADJUDGED, and DECREED that: 1. Schuh has no objection to the Courts granting of the Motion forDefault Judgment filed by the Secretary of Labor against Defendant XAF; to the removal of XAF from its position as fiduciary of the Plan; and to the appointment of Thomas A. Dillon, Esq. The Secretary and Defendant Schuh shall each bear their own costs, expenses, and attorneys fees incurred to date in connection with any stage of this proceeding, including but not limited to attorneys fees which may be available under the Equal Access to Justice Act, as amended. Defendant Schuh expressly waives any and all claims of any nature which he has or may have against the Secretary, the D epartment of Labor, or any of its officers, agents, attorneys, employees or repesentatives, arising out of or in connection with the allegations contained in the Complaint on file in this action, any other proceedings or investigation incident thereto or based on the Equal Access to Justice Act, as amended. This Court retains jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment & Order. (See order for further details). (shb)

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

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CASE CLOSED

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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

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Plaintiff,

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vs.

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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,

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

CONSENT JUDGMENT & ORDER
ENTERED INTO BY THE
SECRETARY OF LABOR and LEE
SCHUH

Defendants.

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

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2:15-cv-00391-ODW-AGR

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

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

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

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

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

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Technologies, Inc..

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A.

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

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

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

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

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

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

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

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matter.

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C.

The Secretary and Schuh expressly waive Findings of Fact and

Conclusions of Law.

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

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1.

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

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

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

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

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94010, as the Independent Fiduciary who:

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a.

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

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

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

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distributed to all Eligible Plan Participants and Beneficiaries;

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b.

Shall, pursuant to the procedures outlined in the Employee

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

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reasonable care and diligence to identify and locate each participant and

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

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Plan;
c.

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

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

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Is authorized to delegate or assign fiduciary duties as

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

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

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providers;
e.

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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.

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

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

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

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Shall provide any information regarding the Plan requested by

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

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administration of the Plan;

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h.

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assets of the Plan; and
i.

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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

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

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hold as trustee or other fiduciary of the Plan.

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3.

Defendant Schuh has no objection to the removal, upon consent

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judgment or motion by the Secretary, of Carl Weiss from any position he may now

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

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4.

Defendant Schuh has no objection to the removal, upon consent

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

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

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

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

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

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

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Defendant Schuh expressly waives any and all claims of any nature

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

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

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

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

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Access to Justice Act, as amended.
7.

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This Court retains jurisdiction of this action for purposes of enforcing

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

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

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

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Consent Judgment & Order.
9.

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This Consent Judgment & Order may be executed in counterparts,

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

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

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order.
IT IS SO ORDERED.

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Dated: July 25, 2015

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____________________________________
UNITED STATES DISTRICT JUDGE

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[Proposed] Consent Judgment & Order
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Dated:March 18, 2015

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M. PATRICIA SMITH
Solicitor of Labor

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JANET M. HEROLD
Regional Solicitor

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DANIELLE L. JABERG
Counsel for ERISA

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/s/ Katherine M. Kasameyer
KATHERINE M. KASAMEYER
Trial Attorney

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Attorneys for the Plaintiff

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Defendant consents to the entry of this Consent Judgment.

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[Proposed] Consent Judgment & Order
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