Solis et al v. Opt, Inc et al

Filing 58

Order by Hon. Lucy H. Koh granting 57 Stipulation By Petition Hilda L. Solis and Defendants Opt, Inc. and Joyce Olszewski to Appoint Independent Fiduciary.(lhklc3, COURT STAFF) (Filed on 4/7/2013)

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SUSAN E. BISHOP, CA STATE BARNO. 187253
BERLINER COHEN
TEN ALMADEN BOULEYARD
ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: [phone]
FACSIMILE: [phone]
susan. [e-mail]

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ATTORNEYS FOR DEFENDANTS OPT, INC. AND
JOYCE OLSZEWSKI, AS EXECUTOR OF THE ESTATE OF
ANTHONY OLSZEWSKI

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JOSEPH MICHAEL LAKE
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
90 7TH STREET
SUITE 3-700
SAN FRANCISCO, CA 94103
TELEPHONE: [phone]
FACSIMILE: [phone]
[e-mail]

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ATTORNEYS FOR PETITIONER HILDA SOLIS,
DEPARTMENT OF LABOR

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HILDA L. SOLIS, Secretary of Labor, United
States Department of Labor,
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Petitioner,
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v.
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CASE NO. 10-CV-04363 JW
STIPULATION BY PETITIONER HILDA L.
SOLIS AND DEFENDANTS OPT, INC. AND
JOYCE OLSZEWSKI TO APPOINT
INDEPENDENT FIDUCIARY AND
PROPOSED ORDER

OPT, INC., a corporation; JOYCE
OLSZEWSKI, THE EXECUTOR OF THE
ESTATE OF ANTHONY OLSZEWSKI, a
deceased individual; JOYCEL YN TRAN, an
individual; JONATHAN JONES, an
individual; and the OPT, INC. 401(k) PROFIT
SHARING PLAN, an employee pension
benefit plan;
Defendants.

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STIPULATION AND PROPOSED ORDER TO APPOINT FIDUCIARY

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SUMMARY OF FACTS
1.

On September 28, 2010, the Secretary filed her Complaint for violations of the

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Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001-1191c, in this

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Court, against Defendants Opt, Inc., a California corporation and Joyce Olszewski, as Executor

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of the Estate Of Anthony Olszewski, a deceased individual and Joycelyn Tran, an individual;

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Jonathan Jones, an individual; and the OPT, Inc. 401(k) Profit Sharing Plan, (hereinafter

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collectively referred to as "Defendants"). (See Doc. 1 (Complaint).)

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2.

A default Judgment was taken against Joycelyn Tran and Jonathan Jones on May

2, 2011 (See Doc.40 (Default Judgment).)
3.

A Consent Judgment was entered into as to Defendants Opt, Inc. and Joyce

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Olszewski, the Executor ofthe Estate of Anthony Olszewski on May 14, 2012 (See Doc. 54

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(Consent Judgment).)

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4.

The Consent Judgment specifically provides for the appointment of an

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Independent Fiduciary, who shall have full discretionary authority over the administration and

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management of the Plan.

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provides that:

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a.

(Doc. 54, ,-r6(a-i).)

Among other things, the Consent Judgment

said Independent Fiduciary

shall be responsible for collecting,

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marshalling, paying out, and administering all of the Plan's assets and taking further action with

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respect to the Plan as appropriate, establishing a trust account to receive those funds, and

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terminating the Plan when all of its assets are distributed to all eligible participants and

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beneficiaries (Id. ,-r 6(a)&(b));

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b.

said Independent Fiduciary shall have his or her reasonable costs and fees

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paid by Defendant Joyce Olszewski, as Executor of the Estate of Anthony Olszewski. Should

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there be insufficient funds in the Estate of Estate of Anthony Olszewski to pay the costs of the

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Independent Fiduciary, in accordance with the governing Plan documents, the Plan shall bear

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such costs, to be reimbursed to the Plan by all Defendants upon motion by the Secretary of Labor

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setting forth the sum of such costs for this Court to enter judgment against all Defendants for

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same. (Id. ,-r 6(i));
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STIPULATION AND PROPOSED ORDER TO APPOINT FIDUCIARY

c.

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5.

OPT, Inc., shall be removed as fiduciary and trustee to the Plan (Id.

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3).

Petitioner and Counsel for OPT, Inc. and Joyce Olszewski, the Executor of the

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Estate of Anthony Olszewski have met and conferred about an appropriate fiduciary and matter

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and the Secretary has no objection to the appointment of M. Larry Lefoldt, CPA. Attached as

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Exhibit A is a copy of Mr. Lefoldt's Curriculum Vitae and Retirement Plan Experience. M.

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Larry Lefoldt, CPA has agreed to act as the fiduciary.

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WHEREFORE, IT IS HEREBY STIPULATED THAT:

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1.

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OPT, Inc. and Joyce Olszewski, the Executor of the Estate of Anthony Olszewski

shall removed as fiduciary and trustee to the Plan;
2.

M. Larry Lefoldt, CPA of Lefoldt & Co., P.A., 690 Towne Center Blvd., P.O.

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Box 2848, Ridgeland, MS 39158-2848, [phone], shall be appointed as the Independent

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Fiduciary, who:

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a.

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

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administering all of the Plan's assets and taking further action with respect to the Plan as

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appropriate, establishing a trust account to receive those funds, and terminating the Plan when all

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of its assets are distributed to all eligible participants and;

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b.

Pursuant to the procedures outlined in the Employee Benefits Security

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Administration's Field Assistance Bulletin 2004-02, shall exercise reasonable care and diligence

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to identify and locate each Plan participant and beneficiary who is eligible to receive a

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distribution under the terms of the Plan to the extent the Plan has distributable assets;

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c.

Has all the rights, duties, discretion and responsibilities of a trustee,

fiduciary and Plan Administrator under ERISA, including filing a final Form 5500;
d.

Has the authority to delegate or assign fiduciary duties as appropriate and

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allowed under the law and may retain assistance as he may require including attorneys,

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accountants, actuaries and other service providers;

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e.

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

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Plan's possession and under its control, including information and records maintained by the

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Plan's custodial trustee or service provider;
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STIPULATION AND PROPOSED ORDER TO APPOINT FIDUCIARY

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f.

Shall have the authority to give instructions respecting the disposition of

assets of the Plan, including the authority to amend the Plan document, as necessary;

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g.

Shall be authorized to receive up to $3,721.15 in reasonable costs and fees

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paid by Defendant Joyce Olszewski, as Executor of the Estate of Anthony Olszewski. Should

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there be insufficient funds in the Estate of Estate of Anthony Olszewski to pay the costs of the

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Independent Fiduciary, in accordance with the governing Plan documents, the Plan shall bear

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such costs, to be reimbursed to the Plan by all Defendants upon motion by the Secretary of Labor

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setting forth the sum of such costs for this Court to enter judgment against all Defendants for

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same.

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h.

Shall comply with all applicable rules and law.

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DATED: MARCH_, 2013

BERLINER COHEN

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BY: //SUSAN E. BISHOP//
SUSAN E. BISHOP
ATTORNEYS FOR DEFENDANTS OPT, INC. AND
JOYCE OLSZEWSKI, AS EXECUTOR OF THE
ESTATE OF ANTHONY OLSZEWSKI

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DATED: MARCH_, 2013

U.S. DEPARTMENT OF LABOR

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BY: //JOSEPH MICHAEL LAKE//
JOSEPH MICHAEL LAKE
ATTORNEYS FOR PETITIONER HILDA SOLIS,
UNITED STATES DEPARTMENT OF LABOR

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IT IS SO ORDERED.

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DATED: MARCH_,2013

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UNITED STATES DISTRICT COURT

April 7, 2013
BY:

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JUDGE LUCY KOH

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STIPULATION AND PROPOSED ORDER TO APPOINT FIDUCIARY