Perez v. Tincher et al
CONSENT JUDGMENT - This Court shall retain jurisdiction over this action and the parties hereto as may be necessary to enforce the provisions of the Consent Judgment. The Court directs the entry of this Consent Judgment as a final order. Ordered by Judge John M. Gerrard. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THOMAS E. PEREZ, Secretary of
Labor, United States Department of
MARK TINCHER, an individual, and
OLDSMOBILE 401(K) PLAN,
Plaintiff, Thomas E. Perez, Secretary of Labor, United States
Department of Labor, pursuant to the provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001 et seq.,
filed a complaint against Defendants Mark Tincher ("Tincher") and the
Tincher Chevrolet Oldsmobile 40l(k) Plan (the "Plan"), alleging breaches of
their fiduciary responsibilities under ERISA §§ 402(a) and (b)(4), 403(a), and
404(a)(l)(A), (B), and (D) with respect to the Plan. Defendants have waived
service of process of the complaint and admit that this Court has jurisdiction
over the parties and that this Court has jurisdiction of this action pursuant to
ERISA § 502(e)(l), 29 U.S.C. § 1132(e)(l), and that venue lies with the United
States District Court for the District of Nebraska pursuant to ERISA §
502(e)(2), 29 U.S.C. § 1132(e)(2).
A representative of the Employee Benefits Security Administration
("EBSA") has identified Grabel, Schneiders, Hollman & Co., PC, Certified
Public Accountants located in Kirkwood, Missouri, to serve as an independent
fiduciary of the Tincher Chevrolet Oldsmobile 40l(k) Plan. The parties have
agreed to entry of this Consent Decree without contest. It appears that the
Court has jurisdiction over the parties and subject matter of this action and
that the Court is empowered to provide the following equitable relief, and
that cause has been shown.
IT IS ORDERED:
Defendant Tincher is removed as fiduciary to the Plan.
Grabel, Schneiders, Hollman & Co., PC, Certified Public
Accountants located in Kirkwood, Missouri, is hereby
appointed as the Independent Fiduciary of the Plan, with
plenary authority to verify and secure the Plan assets held
by Principal Financial Group, to determine and verify
participant records, to contact participants regarding
distribution options, and to make final distributions of the
Plan's assets to participants and beneficiaries, according to
the terms of the Plan.
The independent fiduciary shall exercise reasonable care
and diligence to identify and locate each participant and
beneficiary of the Plan who is eligible to receive a payment
under the terms of this Consent Judgment and to disburse
to each such eligible participant or beneficiary the payment
to which he or she is entitled.
The independent fiduciary shall have full access to all data,
information, and calculations in the Plan's possession or
under its control, including that information contained in
the records of the Plan's custodial trustees and other
service providers, bearing on the distribution of benefit
payments, participant account balances and current plan
The independent fiduciary shall obtain bonding in an
amount that meets the requirements of ERISA § 412, 29
U.S.C. § 1112. The costs incurred by the independent
fiduciary in obtaining such bonding shall by paid by the
Within 30 days of the distribution of all of the Plan's assets,
the independent fiduciary shall provide the EBSA Regional
Director with a report identifying the distributions made by
the Plan since the independent fiduciary's appointment.
Grabel, Schneiders, Hollman & Co., PC is further granted
the authority and duty to terminate the Plan.
The Plan shall pay Grabel, Schneiders, Hollman & Co., PC
a fee of $1,500.00 to effectuate distribution of the Plan's
assets and for the administration and termination of the
Nothing in this Consent Judgment is binding on any
governmental agency other than the United States
Department of Labor, Employee Benefits Security
Each party shall bear his or its own attorney's fees, costs
and other expenses incurred by such party to date in
connection with any stage of the above-referenced
proceeding including, but not limited to, attorney's fees,
costs and other expenses which may be available under the
Equal Access to Justice Act, as amended.
The parties to this Consent Judgment expressly waive any
and all claims of any nature which each may have against
the other, or any of their officers, agents, attorneys,
employees or representatives, arising out of or in
connection with the Plan, or based on the Equal Access to
Justice Act, as amended.
This Court shall retain jurisdiction over this action and the
parties hereto as may be necessary to enforce the
provisions of the Consent Judgment.
The Court directs the entry of this Consent Judgment as a
By signing their names to this Consent Judgment, the
parties hereto represent that they are informed and
understand the effect and purpose of this Consent
This Consent Judgment may be executed in counterparts,
each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same
Dated this 2nd day of July, 2014.
BY THE COURT:
John M. Gerrard
United States District Judge
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