Retirement Committee of DAK Americas LLC, et al v. Smith, et al

Filing 50

AMENDED CONSENT ORDER FOR PRELIMINARY INJUNCTION - Signed by District Judge Louise Wood Flanagan on 03/24/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

RETIREMENT COMMITTEE OF DAK
AMERICAS LLC, as Plan Administrator of
the DAK Americas LLC Pension Plan, et al.,
Plaintiffs,
v.
DAVID W. ALLEN, et al.,
Defendants.

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Civil Action No. 7:14-CV-36-FL

AMENDED
CONSENT ORDER FOR PRELIMINARY INJUNCTION
Plaintiffs Retirement Committee of DAK Americas LLC (the “Committee”), as Plan
Administrator of the DAK Americas LLC Pension Plan (the “Plan”), and Transamerica
Retirement Solutions Corporation (“Transamerica”) (collectively, “Plaintiffs”), and Defendants
Mark Stephen Brewer, Harold E. Corbett, Warren Albert Garrison, James F. Holland, William
Lacey Nelson, Sidney Hugh Rhodes, and Jimmie Ray Sellers, and David W. Allen, Joseph
Alexander Bellamy, Jerome Bryant, Kelvin L. Galloway, Mendell W. Smith, Otella Irene Webb,
Michael Lynn Bass, and Rodney B. Smith (collectively, “Consenting Defendants”), by and
through their undersigned counsel, hereby stipulate and agree to the following:
1.

Plaintiffs filed this action against David W. Allen, Michael Lynn Bass, Joseph

Alexander Bellamy, Mark Stephen Brewer, Jerome Bryant, Harold E. Corbett, Kelvin L.
Galloway, Warren Albert Garrison, James F. Holland, William Lacey Nelson, Sidney Hugh
Rhodes, Jimmie Ray Sellers, Mendell W. Smith, Rodney B. Smith, and Otella Irene Webb
(collectively, “Defendants”) on February 20, 2014, seeking to recover certain pension benefit

overpayments that Plaintiffs allege were erroneously distributed to Defendants. See Dkt. 1. The
amounts in question are listed on Exhibit 1 to this Order under the column titled “Lump Sum
Overpayment Amount.” The amounts are also listed on Exhibit 2 to the Complaint under the
column titled “Lump Sum Overpayment Amount.” See Dkt. 1-2.
2.

Plaintiffs also filed a motion for preliminary injunction, seeking a preliminary

injunction imposing a constructive trust and/or equitable lien over all monies allegedly
erroneously paid to Defendants and enjoining Defendants from spending, transferring, or
otherwise disposing of such monies. See Dkt. 6.
3.

Each Consenting Defendant is currently holding the amount of the alleged

overpayment in an eligible retirement plan, account, or annuity.
4.

Consenting Defendants deny that any monies are owed to Plaintiffs.

5.

Plaintiffs and Consenting Defendants have consented to the entry of this

preliminary injunction pending final resolution of this matter.
6.

Nothing contained in this Consent Order shall be deemed to have waived any

rights, remedies, or defenses of any party. This Consent Order is being entered solely for
purposes of judicial economy and efficiency.
7.

Because Plaintiffs and Consenting Defendants have consented to this Order,

inquiry into the likelihood of success on the merits, irreparable harm, public interest, and any
balancing of the hardships is not necessary at this time.
Until further order of this Court, IT IS ORDERED THAT
1.

Pending final resolution of this matter, each Consenting Defendant is enjoined

from spending, transferring, disposing of, or otherwise diminishing the monies that Plaintiffs
claim were erroneously distributed to Consenting Defendants. The amounts in question in this

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action and that are subject to this Consent Order are listed on Exhibit 1 of this Order under the
column titled “Lump Sum Overpayment Amount” and Exhibit 2 to the Complaint under the
column titled “Lump Sum Overpayment Amount.” See Dkt. 1-2.
2.

Nothing in this Consent Order shall limit or restrict the Consenting Defendants

from making investment changes within the Consenting Defendants investment accounts
wherein the amounts in question in this action are currently being held, except that Consenting
Defendants shall make no changes that diminish the monies that Plaintiffs claim were
erroneously distributed to Consenting Defendants.
3.

This Consent Order shall become effective upon entry by the Court.

IT IS SO STIPULATED AND AGREED, this 24th day of March, 2014.
/s/J. Scott Flowers
J. Scott Flowers (State Bar No. 31525)
Sarah D. Miranda (State Bar No. 29354)
HUTCHENS LAW FIRM
4317 Ramsey Street
Fayetteville, NC 28311
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/s/Thomas S. Babel __
Thomas S. Babel (State Bar. No. 35004)
WARD AND SMITH, P.A.
Post Office Box 7068
Wilmington, NC 28406
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Consenting Defendants Mark
Steven Brewer, Harold E. Corbett, Warrant
Albert Garrison, James F. Holland, William
Lacey Nelson, Sidney Hugh Rhodes, and
Jimmie Ray Sellers

William J. Delany
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiffs

/s/ H. Mitchell Baker, III
H. Mitchell Baker, III (State Bar No. 6990)
BAKER & SLAUGHTER, P.A.
705 Princess Street
Wilmington, NC 28401
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Consenting Defendants David W.
Allen, Joseph Alexander Bellamy, Jerome
Bryant, Kelvin L. Galloway, Mendell W. Smith,
and Otella Irene Webb

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/s/W. Cory Reiss_______________
W. Cory Reiss (State Bar No. 41549)
SHIPMAN & WRIGHT, LLP
575 Military Cutoff Road
Wilmington, NC 28405
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant Rodney B. Smith
/s/ H. Scott Overholt
H. Scott Overholt (State Bar No. 18462)
Post Office Box 1288
Wilmington, NC 28402-1288
Telephone:
[phone]
Facsimile:
[phone]
Email/ [e-mail]
Counsel for Defendant Michael Lynn Bass
/s/ Michael S. Davenport
Michael S. Davenport (State Bar No. 23956)
2505 South College Road
Wilmington, North Carolina 28412
Telephone/ [phone]
Facsimile/ [phone]
Email/ [e-mail]
Counsel for Defendant Michael Lynn Bass
IT IS SO ORDERED, this 24th day of March, 2014.
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__________________________

The Honorable Louise Wood Flanagan
U.S.D.J.

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