Perez et al v. Schrepfer et al

Filing 24

CONSENT JUDGMENT AND ORDER by Judge William J. Martinez on 15-cv-1701.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1701-WJM-MJW
THOMAS EDWARD PEREZ, Secretary of Labor, and
UNITED STATES DEPARTMENT OF LABOR,
Plaintiffs,
v.
M. PETER SCHREPFER,
SCHREPFER INDUSTRIES, INC. 401(k) PLAN,
SCHREPFER INDUSTRIES, INC. HEALTH BENEFITS PLAN,
TRINIDAD GOLF, LLC SIMPLE IRA PLAN, and
TRINIDAD GOLF, LLC HEALTH BENEFITS PLAN,
Defendants.

CONSENT JUDGMENT AND ORDER

This action was brought by Plaintiffs, Thomas E. Perez, Secretary of Labor, and
the United States Department of Labor, against Defendants M. PETER SCHREPFER,
individually; the SCHREPFER INDUSTRIES, INC., 401(k) PLAN; SCHREPFER
INDUSTRIES, INC., HEALTH BENEFITS PLAN; the TRINIDAD GOLF, LLC, SIMPLE
IRA PLAN; and the TRINIDAD GOLF, LLC, HEALTH BENEFITS PLAN, pursuant to
Sections 502(a)(2) and 502(a)(5), 29 U.S.C. §§ 1132(a)(2) and 1132(a)(5), of the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 10011461 (“ERISA”). Defendant M. Peter Schrepfer (“Schrepfer”), individually, having
appeared pro se, admits to the jurisdiction of the Court over him and over the subject
matter of this action and has agreed to the entry of judgment without contest.
It is therefore, upon joint motion and for good cause shown,

ORDERED ADJUDGED AND DECREED that:
1.

Defendant, Trinidad Golf, LLC (“Trinidad Golf”), was formed in 2007 to

construct and operate a golf course, resort hotel, and adjoining housing community in
Trinidad, Colo.
2.

Schrepfer served as president of Schrepfer Industries, Inc. (“Schrepfer

Industries”), which performed some construction for that golf course, resort, and
housing.
3.

Both Trinidad Golf and Schrepfer Industries (jointly, the “Companies”) are

now insolvent, have no employees, and have dissolved with the Secretary of State for
the State of Colorado.
4.

Schrepfer was the named fiduciary for the Schrepfer Industries, Inc.

401(k) Plan; the Schrepfer Industries, Inc. Health Benefits Plan; the Trinidad Golf, LLC
SIMPLE IRA Plan; and the Trinidad Golf, LLC Health Benefits Plan (collectively, the
“Plans”).
5.

The Schrepfer Industries, Inc. 401(k) Plan is an employee retirement

savings plan that Schrepfer Industries established on January 1, 2005.
6.

Schrepfer Industries is the employer sponsoring the Schrepfer Industries,

Inc. 401(k) Plan; it is also that Plan’s named plan administrator.
7.

American Funds Distributors, Inc. serves as the custodian of assets for

the Schrepfer Industries 401(k) Plan.
8.

The Schrepfer Industries, Inc. Health Benefits Plan is a health benefits

plan for that company’s employees.

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9.

The Trinidad Golf, LLC SIMPLE IRA is a SIMPLE IRA Plan that Trinidad

Golf established on October 1, 2007.
10.

Trinidad Golf is the employer sponsoring the Trinidad Golf, LLC SIMPLE

IRA Plan; Trinidad Golf also administers that Plan.
11.

Van Kampen Investments, Inc. was the custodian of assets for the

Trinidad Golf, LLC SIMPLE IRA Plan.
12.

The Trinidad Golf, LLC Employee Health Benefits Plan is a health benefits

plan for that company’s employees.
13.

To keep the Companies financially viable, Schrepfer withheld, but did not

deposit to the Plans approximately $42,157.63 in employee contributions. This sum
remains unpaid to participants, who have been denied lost opportunity earnings and
interest on that sum as well. Schrepfer is jointly and severally liable for these amounts
under Section 409 of ERISA.
14.

The Plans are all subject to the protections of ERISA.

15.

None of the Plans have been terminated.

16.

To redress the fiduciary breaches that occasioned the aforementioned

Plans’ losses, it is further ORDERED, ADJUDGED, AND DECREED that:
(a)

To the extent he has not already done so, Schrepfer shall make

restitution in the amount of $21,500 to the Plans’ participants within 180 days of the
entry of this Consent Order and Judgment as follows:
Schrepfer Industries, Inc. 401(k) Plan Participants
(i)

Frank Castillo: $1,313.95

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(ii)

Brian Duran: $715.59

(iii)

Dave Foster: $226.44

(iv)

Rob Fransua: $990.34

(v)

Karl Gabrialson: $1,267.88

(vi)

Lois Keeler: $911.68

(vii)

Stephen Parker: $1,205.75

(viii)

Andre Richert: $673.86

(ix)

Mary Romero: $559.19

(x)

Angela Sepulveda: $782.97

(xi)

Jason Sepulveda: $2,097.81

(xii)

Jeff Sepulveda: $1,965.05

(xiii)

Wade Stalker: $2,863.39

(xiv)

Anna Till: $633.44

(xv)

Anthony Tortorice: $598.90

(xvi)

Genaro Trevino: $249.13

(xvii) Roy Woelhert: $1,467.90

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(xviii) Glenna Zamora: $119.15
Trinidad Golf, LLC SIMPLE IRA Participants
(i)
(ii)

Craig Horton: $781.60

(iii)

Matt Reams: $51.21

(iv)
(b)

Chanelle Garlutzo: $783.33

Jimmy Rodriguez: $1,241.44

Within ten calendar days of making the payment pursuant to

paragraph 16(a), above, Schrepfer shall provide to the Secretary, via first class mail,
proof of each such payment in the form of cancelled checks, wire transfer receipts, or
other indicia of actual payment to the United States Department of Labor, Employee
Benefits Security Administration, Attention Investigator Brian Peterson, 2300
Main St., Suite 1100, Kansas City, Missouri, 64108.
(c)

Defendant, M. Peter Schrepfer, his agents, servants, employees

and all persons in active concert or participation with him be and hereby are
permanently enjoined and restrained from violating the Title I of ERISA.
(d)

Subject to the limited exception in ¶¶ 16(e-f), below, Defendant M.

Peter Schrepfer shall be permanently enjoined and restrained from acting as a
fiduciary, trustee, agent or representative in any capacity to any employee benefit plan,
as defined by ERISA, unless Defendant M. Peter Schrepfer agrees to obtain and does
obtain, on or before March 15, 2017, no less than 12 hours of education and training in
the duties and responsibilities of fiduciaries and trustees to ERISA-covered plans.

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(e)

Defendant M. Peter Schrepfer may pursue such education and

training through self-study or formal instruction. The education and training materials
shall be prepared or provided or approved by a nationally recognized authority or
organization involved in fiduciary training such as, but not limited to, the International
Foundation of Employee Benefit Plans or the Canon Financial Institute.
(f)

Defendant M. Peter Schrepfer further agrees to provide written

evidence of any such education and training to the Employee Benefits and Security
Administration, United States Department of Labor, Attention: Brian Peterson, Two
Pershing Square, 2300 Main Street, Suite 1100, Kansas City, Missouri, 64108, within
30 days of completing such training.
17.

This Judgment does not affect or bind any governmental agency other

than the United States Department of Labor.
18.

This Judgment does not adjudicate or otherwise affect any potential civil

money penalties that may be assessed under Section 502(l) of the Act.
19.

This Court retains jurisdiction for purposes of enforcing compliance with

the terms of this Consent Judgment and Order.
20.

Each party shall bear its own cost and expenses, including attorneys’

fees, arising in connection with any stage of the above-referenced proceeding including
but not limited to, attorney’s fees which may be available under the Equal Access to
Justice Act, as amended.
21.

No Plan assets will be used to pay the attorneys’ fees, costs, and other

litigation expenses incurred by any of the Defendants in this action.

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Dated this 3rd day of March, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

The parties approve the Consent Judgment and Order as to form and substance:

For Plaintiff:

For Defendants:

M. Patricia Smith
Solicitor of Labor

/s/ M. Peter Schrepfer
M. Peter Schrepfer
P.O. Box 1051
Trinidad, CO 81082
In Pro Se
Tel. [phone]
[e-mail]

James E. Culp
Regional Solicitor
John Rainwater
Associate Regional Solicitor
Robert A. Goldberg
ERISA Counsel
/s/ Matthew B. Finnigan
Matthew B. Finnigan
Senior Trial Attorney
U. S. Department of Labor
Attorneys for the Secretary of Labor
Office of the Solicitor
1244 Speer Boulevard, Suite 515
Denver, CO 80204
ph. 303-844-7014
fax [phone]
[e-mail]
Signed this 19th day of
February, 2016

Signed this 19th day of
February, 2016

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