Solis v. Do et al

Filing 39

ORDER re (37 in 5:10-cv-03823-LHK) Modification of the July 7, 2011 Consent Judgment & Order. Signed by Judge Lucy H. Koh on 11/23/11. (lhklc3, COURT STAFF) (Filed on 11/23/2011)

Case5:10-cv-03823-LHK Document37-1

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Filed08/30/11 Page1 of 7

Lawrence Brewster
Regional Solicitor
Daniel J. Chasek
Associate Regional Solicitor
Danielle L. Jaberg, (CSBN 256653)
Counsel for ERISA
Boris Orlov, Attorney (CSBN 223532)
Office of the Solicitor
United States Department of Labor
350 S. Figueroa St., 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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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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) Case No. C10-03823 LHK
)
)
) MODIFICATION OF THE JULY 7,
) 2011 CONSENT JUDGMENT &
Plaintiff,
) ORDER
)
v.
)
CUONG VIET DO, an individual, THE MILI )
GROUP, INC. A California corporation, and )
THE MILI GROUP RETIREMENT PLAN, )
)
an employee benefit plan.
)
)
Defendants.
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)
)
)
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)
)
HILDA L. SOLIS,
Secretary of Labor,
United States Department of Labor,

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Modification of the July 7, 2011 Consent Judgment & Order

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Case5:10-cv-03823-LHK Document37-1

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

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bor, Employee Benefits Security Administration (“Secretary”) and Defendants Cuong

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Viet Do, The Mili Group, Inc. and The Mili Group Retirement Plan (“Plan), an em-

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ployee benefit plan respectfully request this Court to Modify the Consent Judgment &

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Order that it approved on July 7, 2011 as listed below:

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the July 7,

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2011 Consent Judgment and Order is fully incorporated herein by reference with the ex-

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ception of Paragraph 5(b), which is modified as follows:

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5(b). On the 45th day after the sale of the Florida Property, unless the Plan has

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been terminated and the Pension Benefit Guaranty Corporation (“PBGC”) appointed

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trustee of the Plan, Jeanne Bryant, Receivership Management Inc., 783 Old Hickory

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Blvd., Suite 255, Brentwood, TN 37027, shall be appointed as the Successor Independ-

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ent Fiduciary to the Plan. The termination of the Plan and the appointment of the PBGC

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as the trustee of the Plan may occur by a written agreement between the PBGC and the

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Initial Independent Fiduciary without the need for a further order from this Court. Prior

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to the sale of the Florida Property and until the transfer of Plan assets described in Para-

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graph 5(a)(1), the Successor Independent Fiduciary shall have no fiduciary responsibili-

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ties. If the Plan is terminated and PBGC is appointed as trustee of the Plan prior to the

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transfer of the Plan assets described in Paragraph 5(a)(1) then the Successor Independent

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Fiduciary shall have not be appointed and shall have no fiduciary responsibilities. Im-

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mediately upon receipt of the transferred Plan assets pursuant to Paragraph 5(a)(1), the

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Successor Independent Fiduciary shall have the following duties and responsibilities:

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(1).

The Successor Independent Fiduciary shall have the discretionary authority

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to collect, marshal, pay out and administer all of the assets of the Plan, and to take fur-

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ther action with respect to the Plan as appropriate, including termination of the Plan

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when all of the assets have been distributed to all eligible Plan participants and benefici-

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aries;

Modification of the July 7, 2011 Consent Judgment & Order

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Case5:10-cv-03823-LHK Document37-1

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a.

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The eligible Plan participants and beneficiaries entitled to alloca-

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tions/distributions pursuant to the governing Plan Documents and the Consent Judgment

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& Order are identified on Exhibit A attached to the May 27, 2011 Consent Judgment &

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Order; and

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b.

In allocating any benefits due under the Plan and this Consent Judg-

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ment & Order, the Successor Independent Fiduciary shall, pursuant to Article 3, section

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2.3.1(e) of the Plan Document, adjust any amounts due to Minha Do by recognizing that

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she obtained a $50,000 distribution from the Plan in July of 2007.

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(2).

The Successor Independent Fiduciary shall, pursuant to the procedures out-

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lined in the Employee Benefits Security Administration’s Field Assistance Bulletin

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2004-02, exercise reasonable care and diligence to identify and locate each participant

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

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Plan;

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(3).

The Successor Independent Fiduciary shall have all the rights, duties, dis-

cretion, and responsibilities of a trustee, fiduciary, and Plan Administrator under ERISA;
(4).

The Successor Independent Fiduciary is authorized to delegate or assign fi-

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duciary duties as appropriate and allowed under the law and may retain such as assis-

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tance as he may require, including attorneys, accountants, actuaries, and other service

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providers;

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(5).

The Successor Independent Fiduciary shall have full access to all data, in-

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formation, and calculations in the possession of the respective Plans and under their con-

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trol, including information and records maintained by the custodial trustees or service

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providers of the Plan;

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(6).

The Successor Independent Fiduciary is authorized to give instructions re-

specting the disposition of assets of the Plan;

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(7).

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and laws;

The Successor Independent Fiduciary shall comply with all applicable rules

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Modification of the July 7, 2011 Consent Judgment & Order

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(8)

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The Successor Independent Fiduciary shall be bonded as required by

ERISA § 412, 29 U.S.C. § 1112.
(9).

Pursuant to Article 2, Section 3.2.7 of the governing Plan document, the

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Successor Independent Fiduciary’s reasonable expenses and fees may be charged against

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the assets of the Plan;

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(10). Following appointment, the Successor Independent Fiduciary shall be re-

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quired to present to the Court and the Secretary an itemized application for the payment

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of fees and expenses on a quarterly basis (except that, if all the proceeds from the sale of

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the Florida Property have been distributed and there are no assets in the Plan, the Suc-

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cessor Independent Fiduciary may submit this application on an annual basis, until the

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commencement of the payment plan under paragraph 6 (b) of the May 27, 2011 Consent

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Judgment & Order). The Fee Application shall include the hourly rates of pay, dates

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and hours of work, a description of work performed, and an itemized statement of ex-

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penses. The Secretary requests that the Fee Application shall be deemed approved,

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unless the Secretary specifically objects to the Fee Application within fifteen business

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days. In the event the Secretary objects to the Fee Application, the Secretary requests

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that the Court decide whether the Independent Fiduciary’s application should be granted.

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The Court directs the entry of this Modification to the July 7, 2011 Consent
Judgment & Order as a final order.

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November 23, 2011
Dated: _____________

________________________
Lucy H. Koh,
United States District Judge

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