Solis v. Hi-Country Electric, Inc. et al.

Filing 10

CONSENT JUDGMENT AND ORDER signed by District Judge Lawrence J. O'Neill on 6/27/2012. CASE CLOSED. (Jessen, A)

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Janet M. Herold
Regional Solicitor
Daniel J. Chasek
Associate Regional Solicitor
Danielle L. Jaberg, Counsel for ERISA
Luis A. Garcia, Attorney (CSBN #146876)
Office of the Solicitor
United States Department of Labor
350 South Figueroa Street, Suite 370
Los Angeles, California 90071-1202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for the Plaintiff
United States Department of Labor

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

) Case No. 1:12-CV-00482-LJO-SKO
)
)
) CONSENT JUDGMENT AND
Plaintiff,
) ORDER
v.
)
)
HI-COUNTRY ELECTRIC, INC. a Cali- )
fornia corporation; ROB L,
)
FRITZEMEIER, an individual; and HI)
COUNTRY ELECTRIC 401(k) PLAN,
)
)
Defendants
)
)

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Plaintiff HILDA L. SOLIS, Secretary of Labor, United States Department of La-

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bor (“Secretary”) pursuant to her authority under Sections 502(a)(2) and (5) of the Em-

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ployee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132(a)(2)

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and (5), has filed a Complaint against Defendant HI-COUNTRY ELECTRIC, INC.

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(“Hi-Country” or “Company”), a California corporation, Defendant ROB L.

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FRITZEMEIER (“Fritzemeier” or “Trustee”), an individual, and Defendant HI-

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CONSENT JUDGMENT AND ORDER

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COUNTRY ELECTRIC 401(k) PLAN (“401(k) Plan” or the “Plan”), an employee bene-

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fit plan within the meaning of Section 3(3) of ERISA, 29 U.S.C. § 1002(3).1

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A.

The Secretary, Hi-Country, Fritzemeier, and the Plan (collectively, the

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“Parties”) admit that the Court has jurisdiction over this action pursuant to ERISA Sec-

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tion 502(e)(1), 29 U.S.C. § 1132(e)(1), and that venue lies in the Eastern District of Cali-

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fornia pursuant to ERISA Section 502(e)(2), 29 U.S.C. § 1132(e)(2).

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B.

dants”) waive filing of an Answer and entering any affirmative defense, counterclaim, or
third-party complaint, or any other defenses that they may have in this case.
C.

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the Secretary asserted in the Complaint filed in this matter.
D.

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2.

Defendant Hi-Country is hereby removed as Plan Administrator and fidu-

ciary of the Plan.
3.

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Defendant Fritzemeier is permanently enjoined and restrained from violat-

ing the provisions of Title 1 of ERISA, 29 U.S.C. §§1001-1191(c).

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All parties expressly waive Findings of Fact and Conclusions of Law.

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

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The Parties agree to the entry of this Consent Judgment and Order. The

parties further agree that this Consent Judgment and Order shall fully settle all claims of

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Defendants Hi-Country, Fritzemeier, and the Plan (collectively the “Defen-

Defendant Fritzemeier is hereby removed as a fiduciary of the Plan, subject

to the exceptions set forth in Paragraphs 4, 7 and 8 below.
4.

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Defendant Fritzemeier shall succeed as Plan Administrator and shall remain

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a fiduciary of the Plan solely for the purpose of making distributions of the assets of the

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Plan and implementing the termination of the Plan, in accordance with the instructions

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set forth below in Paragraphs 7 and 8. After Defendant Fritzemeier fulfills the duties set

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The Plan is named in the Secretary’s Complaint as a party necessary for complete relief pursuant to Fed.R.Civ.P. 19(a).

CONSENT JUDGMENT AND ORDER

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forth in Paragraphs 7 and 8, he shall immediately be removed from his positions as Plan

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Administrator and fiduciary of the Plan.

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5.

Defendant Fritzemeier is permanently enjoined and restrained from future

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service as a fiduciary of, or service provider to, any ERISA-covered employee benefit

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plan subject to the exceptions set forth in Paragraphs 4, 7 and 8 herein.

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6.

Within fifteen (15) calendar days following the Court’s entry of this Con-

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sent Judgment and Order, Defendant Fritzemeier shall provide a copy of this Consent

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Judgment and Order to the Plan’s custodial trustee, ING, North America Insurance Cor-

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poration (“ING”).

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7.

Within thirty (30) calendar days following the Court’s entry of this Consent

Judgment and Order, Defendant Fritzemeier shall take the following action:
(a)

Defendant Fritzemeier shall notify ING of the Plan’s terminated status in

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writing, and shall authorize and direct ING, in writing, to make distributions to all eligi-

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ble participants and/or beneficiaries in accordance with the Plan terms and the partici-

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pant’s and/or beneficiary’s elected method of receipt of the funds (e.g., via lump-sum

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distribution to the participants or a direct rollover into another qualified retirement ac-

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count belonging to the participant and/or beneficiary). Defendant Fritzemeier shall mon-

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itor and ensure ING carries out his directions consistent with the Plan terms and ERISA.

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(b)

Defendant Fritzemeier shall provide, within 10 business days, documenta-

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tion to the Secretary of his written notification to ING of the Plan’s terminated status as

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set forth in Paragraph 7(a).

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(c)

Defendant Fritzemeier shall, pursuant to the procedures outlined in the Em-

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ployee Benefit Security Administration Field Bulletin 2004-02, exercise reasonable care

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and diligence to identify and locate each participant and beneficiary of the Plan who is

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eligible to receive a distribution under the terms of the Plan.

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(d)

Defendant Fritzemeier shall timely file a Final Form 5500 for the Plan.

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CONSENT JUDGMENT AND ORDER

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8.

Within fifteen (15) calendar days of the completion of all actions set forth

above in both Paragraphs 7(a) and 7(c):

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(a)

Defendant Fritzemeier shall provide documentation verifying the final li-

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quidation and disposition of the Plan’s assets to the Secretary, and thereafter, he shall

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immediately be removed from his positions as Plan Administrator and fiduciary of the

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Plan.

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(b)

Defendant Fritzemeier shall also provide to the Secretary upon request any

other documentation related to its investigation.
9.

The final liquidation and disposition of the Plan’s assets shall occur no later

than February 28, 2013.
10.

Each time a submission to the Secretary is required under this Consent

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Judgment and Order, such submission shall be made by reliable overnight delivery and

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facsimile to:

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Jean Ackerman, Regional Director

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United States Department of Labor

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Employee Benefits Security Administration

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90 7th Street, Suite 11300

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San Francisco, California 94103

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Fax: [phone]

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Defendants expressly waive any and all claims of any nature which they

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have or may have against the Secretary, the Department of Labor, or any of its officers,

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agents, attorneys, employees or representatives, arising out of or in connection with the

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allegations contained in the Complaint on file in this action, any other proceedings or in-

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vestigation incident thereto or based on the Equal Access to Justice Act, as amended.

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12.

The parties shall each bear their own costs, expenses, and attorneys’ fees

incurred to date in connection with any stage of this proceeding, including but not li-

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CONSENT JUDGMENT AND ORDER

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mited to attorneys’ fees which may be available under the Equal Access to Justice Act,

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as amended.

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13.

Nothing in this Consent Judgment and Order is binding on any governmen-

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tal agency other than the United States Department of Labor, Employee Benefits Securi-

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ty Administration.

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14.

This Court retains jurisdiction of this action for purposes of enforcing com-

pliance with the terms of this Consent Judgment and Order.
15.

By signing their names to this Consent Judgment and Order, the Parties

represent that they are informed and understand the effect and purpose of this Consent
Judgment and Order.
16.

This Consent Judgment and Order may be executed in counterparts, each of

which shall be deemed an original, but all of which taken together, shall constitute one
and the same instrument. For purposes of this Consent Judgment and Order, a facsimile
signature shall be deemed an original signature with the same force and legal effect.
The Court directs the entry of this Consent Judgment and Order as a final order.

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*****
Entry of this Consent Judgment is hereby consented to:
Dated: June 26, 2012

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M. PATRICIA SMITH
Solicitor of Labor
JANET M. HEROLD
Regional Solicitor
DANIEL J. CHASEK
Associate Regional Solicitor
DANIELLE L. JABERG
Counsel for ERISA
_______ /s/ Luis A. Garcia _____________
LUIS A. GARCIA, Attorney
Attorneys for Plaintiff, U.S. Dept. of Labor

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CONSENT JUDGMENT AND ORDER

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IT IS SO ORDERED.

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Dated:

June 27, 2012

/s/ Lawrence J. O’Neill
UNITED STATES DISTRICT JUDGE

DEAC_Signature-END:

b9ed48bb

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CONSENT JUDGMENT AND ORDER

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