United States of America v. Tomasino

Filing 3

ORDER Granting 2 Stipulated/Consent Judgment. CONSENT JUDGMENT is hereby entered in favor of United States of America against Alan Tomasino in the amount of $104,148.50. Signed by Judge Jennifer A. Dorsey on 8/29/16. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 1 of 3

2:16-cv-2036

ORDER and
CONSENT JUDGMENT

Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 2 of 3

August 29, 2016

Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 3 of 3

Exhibit A

SETTLEMENT AGREEMENT
This scnlerncnt Ag.cmcnt (Agrrcmcnt) is cnter€d into among the uniicd ststcs

of

America, acting through thc unitcd starcs Dcpartment ofJugice and on behalf ofthe Social
s€curity Administrarion (collcctivcly thc *unitcd Srars-) and Alan Tomasino (hercafter

collectivcly rcfened to as "thc Parties"), through thcir authorizcd reprcscntatives.
RECITALS

A.

Pasquale Tomasino was a bcncficiary of the Sociar sccurity Administration

("SSA") whcn he died on March 24, 1994. At rhe time of his dcath, his entitlemcnt to bcncfis
ceased. Alan Tomasino, Pasquale Tomasino's son, was

a

joint holdcr on the rccount into which

thc SSA dcposited bcnefit chccks. Because it was unaware of pasqualc Tomasino's d,cath,

bctween I 991 and 201 I , ssA continucd to deposit checks for thc benefit of pasquale Tomasino
into the joint bank account. Fmm 1994 to 201 I . Alan Tomasino knowingly withdrew and

rcaincd thc fedcral funds paid for the bencfit of pasquale Tomasino,

o

which Alan Tomasino

knew hc was not entitlcd.

B.
Act

3l

The Unitcd Statcs contcnds that Alan Tomasino is liablc undcr thc Falsc Claims

U.S.C. 3370 arising fiom his

witMnwal

and retcntion of SSA bcnefits funds

his fathcr, Pasquale Tomasino, bur poid after pasqualc Tomasino's death from

through Dccember 201

I

.

April

inrcnd for
1994

This conduct is refened to below as thc covcrcd Conducr.

To avoid the delay. unccrteinty, inconvenience, and expcnse of prouacted litigation of the
above claims, and in considcration

ofthc mutual promiscs

Agrccmcnt, thc Parties agrcc and covenant as follows:

and obligations of this scttlement

TERMS AND CONDITIONS

l.

Alan Tomasino shall poy to the Unitcd States forty thousand dollan (t40,0ffi)

(Settlement Amount) by ch€ck or electlonic funds transfer pursuEnt to writtcn instructions to be

provided by the oflice of the united stat€s Anomey for the District of Nevada no latcr than 5
days after the Effective Date of this Agreement.

2.

Alan Tomasino will pay an additional Fifty-Two Thousand and Fifty-Four Dollars

and Fifty Cens ($52,054.50) (Penahy Amoune, plus interest accruing at .53% pcr annum, by

permiaing SSA to withhold s3fi) per month from his monthly sSA retirement benefit poyments

until such withholding fully satisfies the Penalty Amount plus accru€d interest.

3.

Collectively the Senlement Amount, the Penalty Amount, 8nd intercst r€ceived by

thc United Statcs shall be rcfened to as the Settlement Proceds.

4.

Anached as hereto and incorporatcd as port ofthis Agreement is a Complsint 8nd

consent Judgnent (Exhibit A). with respect to the complaint and cons€nt Judgment, the parries
aSree:

The parties shall execute the Complaint and Conscnt Judgmenl at the time

this Agrccmcnt is executed.

b.

Within

will filc the Complaint

15 days

of the Effective Date of this Agreement, the Unitcd States

and Consent Judgment in the United States District Court for the

District of Ncvada.

5.

Subject to the exceptions in Paragraph 5 (conceming excludei claims) bclow, and

conditioned upon Alan Tomasino's full payment ofthe Settlement Amount and cons€nt to
ongoing withholding of$3fl) per month to rcpay the Penalty Amount, and subject to paragraph
I

l. below (conccming bankruptcy proceedings

commenced within

2

9l &ys of the Elfcctive

Date

of this Agrcemcnt or any psym€nr or withholding mo& undcr rhis Agr€cmcnt), rhc unit d ststrs
tcmporarily agrces not to cnforcc thc conscnt Judgnrcnt or othcrwisc prnuc against Alan

Tomasino any civil or administrativc monaary claim thc unitcd Sorcs has for thc covcred
conduct undcr the False claims Acr,
Rcmcdies

Acr,3l u.s.c.

3l u.s.c.

gg 3229-3233; thc pmgram

$s 3t0l-3812; or thc common law rhcorics of

Fnrd civil

brerh of contract,

psymcnt by mistake. unjust auichmcnr" and fraud. once Alrn Tomasino has
fully and timely
paid the rcrnaining Scnlcmcnt Procccds, the Unitcd Surcs agrces that Alan
Tomasino is rclcased

from the Conscnt Judgmcnt and any civil or administralive morctrry claim rhe Unitcd
Statcs h8s
for the covcrcd conduct undcr thc Falsc claims Acr,
Fraud

civil

Remcdies

Acr,3l U.S.c.

gg

3t0l-3fl2;

3l u.s.c. g$ 3229-3733;

thc pmgram

or the common law rheories of brcach

of

contract, payment by mistakc, unjust cnrichment, and fraud.

6.

Notwithstanding thc rerears givan in paragrrph 4 of this Agrccmcnt, or any othcr

term of this Agrecment, thc following claims of thc Unitcd Sutcs rre specifically
rcscrved and
are not relcascd:

a.
b.
c.

Any liability arising undcr Tirle 25, U.S. Code (lntcrnal Rcvenuc Codc);
Any criminal tiability;

Exccp as cxplicitly stated in this Agrecmcnq any administrativc liability,
including thc suspension and dcbarmcflt rights of any lbdcral agcncy;

d.

Any liEbility ro the Unitcd Sratcs (or is agcncics) for any conduct other
than the Coverad Conduct;

e.
f.

Any liability bascd upon obligations crcetcd by this Agrcerncn!;
Any liability of indivaduals other than Alan Tomasino;

7.

Alan Tomasino has providcd swom finsncial disclosure statemens (Financial

Statements) to the United States and rhc Unitcd States has rclied on the accuracy and
completeness of thosc Financial statemcnts in rcaching this Agr€erncnt. Alan Tomasino

warants that the Financial slrtements arE complete, accurate, and curtent. Ifthe United States
learns of asset(s) in which Alan Tomasino had an intcrcst at the time of this Agreemant that were

not disclosed in the Financial Statements, or if the United States leams of any misrcprcsentation

by Alan Tomasino on, or in connection with, the Financial Statements, and if such nondisclosurc
or misrcpresentation changes the estimated net worth set forth in the Financial statements by
$5,000 or morc, the united States may at its option: (a) rcscind this Agreement and file suit
rcinstate its suitl based on thc covered conduct, or (b)

la

[oR

the Agreement stand and collect the

full Senlement Proceeds plus one hundrcd percenr (10fflo) of the value of the net worth of Alan
Tomasino previously undisclosed. Alan Tomasino agrGes noi to contest any collection action
undertaken by the United sr.tes puBuant to this pmvision, and immediately to pay the United
States

all rcasonable coss incurrrd in such an acrion, including attorney's fees and expenses.

8.

ln the event that the United States, pursuant to paragraph 6 (conceming disclosure

of assets), above, opts to rcscind this Agrcemenl Alan Tomasino agrees not to plead, argue, or
otherwise raise any defenses undcr thc theories of statutc of limitations, laches, estoppcl, or

similar theories, to any civil or administrative claims that (a) arc filed by the United Statcs within
60 calendar

&ys of writtan notification to Alan Tomasino that this Agreement

has been

rescinded, and (b) relate to the covered conduct, except to th€ extcnt thes€ dcfcnscs wer€
available on March 25,2016.

9.

Alan Tomasino waives and shall not assert any defenses Alan Tomasino may

have to any criminal prosecution or administrativc action relating to thc Covercd Conduct that

{

may be bosd in wholc or in pan on

I contcntion

that, undcr thc Doublc Jeopardy clausc in the

Fifth Amcndmcnt of thc constitution, or un&r the Excessivc Fincs clausc in thc Eighth
Amcrrdmcnt of the constitution, this Agrecmcnt bars a rvncdy sought in such criminal
prosccution or adminisrrativc action. Nothing in this pengrrph or any
othcr provision of this
Agreerncnt constitutcs an agrecmcnt by thc Unitcd Sancs conccming thc chaoctcrization
of rhc

senlcmcnt Prccccds for purposcs of the lntcrnal Revcnuc laws, Title 26 of rhe Unitcd Sutes
Codc.

10.

Alan Tomasino fully and finally rclcascs thc Unitcd Stucs, irs agencies, ofticcrs.

agents, cmployccs, and scrvants, fmm any claims (including auorney's fccs, costs, and cxpenscs

ofevery kind and howcver dcnominaad) that AIan Tomasino has arscrtd could havc asscncd.
or rnay rssert in the future ageinst thc Unitcd stites, its agcocics, ofliccrs, agcntg employccs,
and servants, related to thc

coverrd conduct and the Unitcd Surcs' investigation and

Prosccution thcrrof.
I

l.

Alan Tomasino warrants that lrc has revicwcd his financial situarion and that he

cur€ntly is solvcnr within the mcaning of I I u.s.c. gg 547(b[3) and 548(aXtxBXiixl), and
shall rcmain solvcnt following poymcnt to the Unitcd Statcs of thc Scttlcrncnt Amount. Furthcr,
thc Parties wanant that, in evaluating whahcr to exccutc this Agreemcnt, they (a) havc
intcnded
that the mutual promiscs, covenants, and obligarions set forih constitute
exchange for ncw value givcn to Alan Tomasino, within rhc mcaning

I

contemporatrGow

of I I U.S.c.

g 5a7(c)( I ).

and (b) conclude that these mm.rel pmmiscs, covenants, and obligations do, in fact, consitute
such

I

contcmporaneous exchange. Furthcr, thc partics warrant rhat thc murual promises,

covenanB, and obligations sct forth hcrein are intcnded to and do, in fact, represcnt a reasonably

equivalcnt exchange ofvaluc that is not intcnded to hindcr, delay. or defraud any antity to which

Alan Tomasino was or bccamc indchcd to on or aftcr the date of this transfer, within the
meaning

of I I U.S.C.

12.

g 5a8(aXl ).

lfwithin 9l

days

ofthe Effectivc Date ofthis Agreement or ofany payment or

withholding made under this Agreement, Alan Tomasino commcnces, or a third party
commences, any case. procceding or other action undcr any law rclating to bankruptcy,
insolvency, reorganization, or rclief of dcbtors (a) sccking to have any ordcr for relicf of Alan

Tomasino's debs, or seeking to adjrdicate Alan Tomasino as banknrpt or insolvent; or (b)
seeking appointment of a receiver, trustce, custodian, or othcr similar

official for Alan Tomasino

or for all or any substantial pan of Alan Tomasino's asscts, Alan Tomasino agrces as follows:

a.

Alan Tomasino's obligations under this Agreement may not be avoidcd

pusuant lo I I U.S.C. $ 547, and Alan Tomasino shall not argue or othcrwise take thc position in
any such casc, goceeding, or action rhat: (i) Alan Tomasim's obligarions under this Agreement

may be avoidcd under I

I

U.S.C. $ 547;

(ii) Alan Tomasino

was insolvent at the timc rhis

Agrccment was entercd into, or became insolvena as a rcsult of the payment madc to the United
states; or

(iii) thc mutual promises, covenants, and obligations

set fonh in this Ageement do not

constitute a contemporancous exchange for new value givcn to Alan Tomasino.

b.
reason.

lf Alan Tomasino's obligations

undcr this Agtsement 8re avoidcd for any

including but not limited to, through the excrcise ofa trustec's avoidance powes under

the Bankruprcy Code, thc United States, at its sole option, mEy r€scind the releases in this
Agrecment and bring any civil and/or adminisrative claim, action, or proceeding against Alan
Tomasino for the claims that would otherwise bc covercd by thc rcleases providcd in paragraph
4 above, including any civil or administrative monctary claim the united states has for the
Covered Conduct under the False Claims Acr.

3l

6

U.S.C. gg 3729-3733: the program Fnud

Civil

Remedies

Act,3l u.s.c,

$$ 3801-3812; or thc common law theorics of brcach of contract,

psyment by mistakc, unjust anrichment, and fraud. Alan Tomasino agrccs that (i)
any such

claims, actions, or procecdings brought by the unitcd Statcs are not subject to an "automatic
stay" pursuant to I

I u.s.c.

$ 362(a) as a result

of the action, case, or procccdings dcscribcd in

the first clausc of this Paragraph, and Alan Tomasino strall not argue or otherwise contend that

the Unitcd States' claims, actionq or procccdings arc subject to an automatic stay;

(ii) Alan

Tomasino shall not plead, argue, or othcrwisc raise any &fcnscs undcr the thcorics of statutc

of

limitations, lachcs, estoppcl, or similar theorics, to any such civil or administrative claims,
actions, or proceeding that are brought by thc United Statcs within 60 calendar days of wriccn

notification to Alan Tomasino that tlre releases have bcen rescindcd pursuant to this paragraph,
except to the extent such defcnses were availablc on March 25,2016; and
has a valid claim againsr Alan Tomasino in the amount

(iii)

rhe Unitcd sotes

of t43 I ,g25.50 plus pcnaltics, and the

United Statcs may pursuc is claim in tlrc casc, action, or proceeding refercnced in the first clause
of this Paragraph, as well as in any other case, action, or procecding.

c.

Alan Tomasino acknowlcdgcs that thc agrecments in this paragraph are

prcvided in exchange for valuablc considerarion providcd in this Agreement.

13.

This Agreement is intended

14.

Each Party shall bcar

o

is own

be for thc bcrrcfit of thc parties only.

legal and other costs incuned in conncction with

this matter, including the prcporsfion snd pcrformance of this Agrccment.

15.

Each parry and sigratory to this Agrecmcnt r€prrs€nts that it frecly and

voluntadly enters in to this Agreemcnt without any degrce of duress or compulsion.

16.

This Agreement is governed by the laws of the Unitcd Stares. Thc excrusive

jurisdiction and venue for any disputc relating to this Agr€ement is the United States District

7

Court for the District of Nevada. For purposcs of construing this Agrremenl this Agraement
shall be dccmcd to havc bccn dnfted by all Partics to this Agreerncnt and shall not, thercforc, bc

construd againsl any Pany for that reason in any su@ucnt dispule.

17.

This Agrecmcnt constitutcs thc complctc agrccrnent betwecn thc Parries. This

Agreement may not be amended except by wrifien consent ofthe Parries.

18.

The undcrsigred counscl r€prtsent and warrant that thcy are fully authorizcd to

execute this Agreement on bchalf

19.

ofthe pcrsons and cntitics indicatcd below.

This Agreement may be exccuted in counterparts, each ofwhich constitutes an

original and all of which constitutc one and the same Agreernent.

20.

This Agreement is binding on Alan Tomasino's successols, transfet€es, heirs, and

assigns.

21.

All

panics consent to thc Unitcd States' disclosurc of this

Agtemenl

and

information about this Agrccmert, to the public.

22.

This Agrccment is effcctive on thc date of signature ofthe last signatory to the

Agreement (Effective Datc of this Agreemeflt). Facsimiles of signatures shall constitute
acceptable, binding signaturcs for purposcs ofthis Agrecrnent.

THE UNITED STATES OF AMERICA

oereo,

*lz uitr,

:- k ffx'lffff*,

BY:

District of Nevada

TROY K. FLAKE
Assistant United States Attomey

8

-

DEFENDANT

oorrr,

S

f t//L

BY:

ALAN TOMASINO

t^rrr, 414fft

By:

llr,r,il/

DAVID OLSHAN

Nevada Legal Aid
Counscl for Alan Tomasino

9