PEREZ v. COMMANDER CARBON SALARY SAVINGS PLAN

Filing 7

ORDER granting 6 Motion for Default Judgment, & appointing Thomas Forese as the Independent Fiduciary of the Plan with the authority to administer the Plan and, if necessary, implement its orderly termination; etc ***CIVIL CASE TERMINATED. Signed by Judge Stanley R. Chesler on 4/7/14. (sr, )

Case 2:13-cv-06791-SRC-CLW Document 6-2

Filed 03107/14

Page 1 of 4 PagelD: 28

SOl L\.R
(13)00447
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,
Civil Action File No.
Plaintiff.
1: 13-cv-0679i-SRC-CLW
V.

COMMANDER CARBON SALARY SAVINGS
PLAN.

PROPOSED JUDGMENT
AND ORDER

Defendant,

WHEREAS, this action was filed by the Secretary of Labor (the ‘Secretary’) pursuant to
Title I of the Employee Retirement Income Security Act of 1971 (“ERISA” of the “Act”). 29
U.S.C.

§ 1001 et seq.. and by the authority vested in the Secretary by ERISA § 502(a)(5). 29

U.S.C.

§ 1132(a)(5) alleging that the Commander Carbon Salary Savings Plan (the “Plan”) was

in violation of ER1SA
1.

§ 402 and 403. 29 U.S.C. § § 1102 and 1103; and

The Plan was and is an employee benefit plan within the meaning of ERISA

§

3(3). 29 U.S.C. § 1002(3), and was established to provide benefits to employees of the plan
sponsor, Commander Carbon Machine Co, Inc. who were covered by a pian subject to Title I of
ERISA: and

II.

This Court has subject matter un sdiction o\ en this action oursuant to ERTSA

502(e)( 1). 29 U.SC.
to ERIS

&

.

§ 1 132.(e)(i); venue of this action lies in the District of New Jersey pursuant

D02(eH2) 29 1. s C

11

2

th

ourt has peisonal lunsdlLtlun o Lr the Plan

for all purposes relevant to this matter including the entry of this Order pursuant to ERISA §
o2 d

I

29 h S C

i

I 2 d H 1) and

il

trnes cie ant to this aLtion the P’an u as ar anpIo cc

Case 2:la-cv-06791-SRC-CLW Document 6-2

benefit plan within the meaning of ERISA
Ill.
ERISA

Flied 03/07/14 Page 2 of 4 PageiD: 29

§ 3(3). and 29 U.S.C. § 1002(3): and

The Secretary has duly made service on the Plan as required by the provisions of

§ 502W)(l), 29 U.S.C. § 502(d)(l); and
IV.

The Plan and its authorized representatives have not answered or otherwise

appeared in this mailer, and
V.

The Secretary now applies for entry of an Order in this matter, and no answer

being made in this matter. and no opposition to the application being filed;
IT IS THEREFORE ORDERED. ADJUDGED AND DECREED THAT:

1.

The status quo of the Plan shall be maintained pending an orderly transfer to the

Independent Fiduciary.
2.

The Court hereby appoints /

Y O/J I

as the Independent Fiduciary

of the Plan with authority to administer the Plan and, if necessary, implement its orderly
termination. In performing his or her duties, the Independent Fiduciary shall have and exercise
full authority and control with respect to the management or disposition of the assets of the Plan.
The Independent Fiduciary shall collect, marshal, and administer all of the Plan’s assets, evaluate
all claims outstanding against it, and pay the assets out to participants and other creditors of the
Plan; and take such further actions with respect to the Plan as may be appropriate.
3.

The Independent Fiduciary shall have all the powers to do the things that are

necessary and appropriate to administer and tern mate the Plan.
4.

The independent Fiduciary shall develop a plan for equitable adjudication and

payment of outstanding participant claims for benefits, In developing this plan, the Independent
Fiduciary shall consider the best interests of participants and beneficiaries of the Plan, and the
resources expected to be available to the Plan. The Independent Fiduciary shall not he bound by

Case 2:13-cv-06791-SRC-CLW Document 6-2

Filed 03/07/14 Page 3 of 4 PagelD: 30

any current or historic procedures or policies of the Plan which conflict with his or her duties
under ER1SA.
5.

The Independent Fiduciary is empowered to require all custodians or record

keepers of the Plan to deliver or otherwise make available to the Independent Fiduciary any
information, documents, files or other compilations, wherever and however stored: that are
reasonably necessary to perform the duties of Independent Fiduciary under this Order.
6.

The Independent Fiduciar is empowered to give instructions to asset custodians

respecting the disposition of assets of the Plan held by them.
7.

The Independent Fiduciary shall distribute or cause the distribution of the assets

of the Plan in accordance with applicable Plan documents and Federal law.
8.

Upon completing such distribution, the Independent Fiduciary shall consider

whether termination of the Plan in accordance with applicable plan documents, ERISA, and
other applicable Federal law is appropriate.
9.

The Independent Fiduciary shall be subject to the orders of this Court. Within

twenty days after the date of this Order, the Independent Fiduciary shall submit to this Court for
approval his schedule of anticipated fees and expense for this matter with copies of his
submissions to be sent to all parties to this matter.
10.

In the performance of his or her duties. the Independent Fiduciary ma retain such

assistance as he may reasonably require. including attorneys, accountants. actuaries and other
servi.ce providers.
II

The payment of administrative expenses and fees to the Independent Fiduciary.

her assistants. attorneys, accountants, actuaries and other necessary service providers shall be
considered p’ionty adnunistrati e cxpense at the Plan ‘upenor to any other Llass ot expense oi

Case 2:13-cv-06791-SRC-CLW Document 6-2

obligation.

Filed 03/07/14 Page 4 of 4 PagelD: 31

The Independent Fiduciary’s second priority shall be the payment of legitimate

claims on the Plan by its participants and beneficiaries.
12.

The Independent Fiduciary shall not be held personally responsible for any claims

against the Plan or which existed, arose. mature or vested prior to the appointment of the
Independent Fiduciary.
13.

Upon approval by this Court of the Independent Fiduciary’s anticipated fees and

expenses. this matter shall be deemed closed, However the Independent Fiduciary may apply to
the Court for clarification of this Order or enforcement of this Order’s terms.
14.

The Independent Fiduciary shall determine whether it is appropriate to obtain a

bond pursuant to ERISA

§

412, 29 U.S.C.

§

1112. and then obtain a bond consistent with the

requirements of ERISA and the regulations issued thereunder. Since the beneficiary of the bond
is the Plan, the Plan may pay fir the cost of the bond. This provision may be satisfied by the
Independent Fiduciary securing coverage for himself under any bond currently in force with
respect to the Plan, provided that the bond satisfies the provisions of the Act.
15.

Nothing in the foregoing Order shall be construed in derogation of the Court’s

authority over the Independent Fiduciary’s actions.
DATED:

New Jersey

IT IS SO ORDERED’
...

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——

UNITED STATES DiSTRICT JUDGE

4