PEREZ v. KWASNY et al

Filing 55

ORDER THAT PLAINTIFF'S UNOPPOSED MOTION FOR DEFAULT JUDGMENT IS GRANTED AND DEFAULT JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT KWASNEY IN THE TOTAL AMOUNT OF $50,215.15. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/8/16. 2/10/16 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS E. PEREZ, Secretary of Labor:
United States Department of Labor :
:
Plaintiff,
:
:
v.
:
:
RICHARD J. KWASNY, et al.
:
:
Defendants.
:
E N T R Y

O F

D E F A U L T

CIVIL ACTION
NO. 14-4286

J U D G M E N T

AND NOW this 8th day of February, 2016, Plaintiff,
having filed his complaint, and Defendant Kwasny and Reilly,
P.C., having failed to answer or otherwise defend against the
complaint; and Plaintiff having moved the Court to enter default
judgment in favor of Plaintiff and against Defendant Kwasny and
Reilly, P.C. for failure to answer or otherwise defend against
Plaintiff's complaint; and it appearing by
declarations filed of record that Defendant Kwasny and Reilly,
P.C. is the administrator and a fiduciary of the Kwasny and
Reilly 401(k) Profit Sharing Plan (“the Plan”) and in that
capacity, at relevant times, Defendant Kwasny and Reilly, P.C.
violated ERISA §§ 404(a)(l)(A), 404(a)(l)(B), 403(a), 403(c)(l),
406(a)(l)(D), and 406(b)(l), 29 U.S.C. §§ 1104(a)(l)(A),
1104(a)(l)(B), 1103(a), 1103(c)(l), 1106(a)(l)(D), and

1106(b)(l), and in that capacity, at relevant times, Defendant
Kwasny and Reilly, P.C. is also liable as a co-fiduciary
under ERISA §§ 405(a)(l), 405(a)(2), and 405(a)(3), 29 U.S.C. §§
1105(a)(l), 1105(a)(2), and 1105(a)(3); and that such violations
caused losses to the Plan in the amount of $40,416.30 plus
interest of $9,798.85; it is hereby ORDERED that:
1.

The Plaintiff’s unopposed “Motion for Default

Judgment” against Defendant Kwasny and Reilly, P.C. (ECF No.
42), is GRANTED and Default Judgment is entered in favor of the
Plaintiff and against Defendant Kwasny and Reilly, P.C.
2.

Defendant Kwasny and Reilly, P.C. shall restore

to the Plan all losses the Plan has incurred as the result of
his violations of ERISA, in the total amount of $50,215.15.
3.

Upon the appointment of an independent fiduciary

for the Plan, Defendant Kwasny and Reilly, P.C. shall be removed
as administrator of the Plan and permanently enjoined from
serving as trustee, fiduciary, advisor, or administrator to any
employee benefit plan, as that term is defined at Section 3(3)
of ERISA, 29 U.S.C. §1002(3), or from serving in any capacity
that involves decision-making authority or custody or control of
the moneys, funds, assets, or property of any employee benefit
plan.

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4.

Plaintiff shall submit within thirty (30) days of

the resolution of this matter as to all Defendants a proposal
for the appointment of an independent fiduciary by this Court.
5.

The independent fiduciary shall be appointed with

plenary authority over the administration, management, and
disposition of the assets of the Plan and directed to marshal
assets on behalf of the Plan, to pursue claims on behalf of the
Plan, and to take all appropriate action for the liquidation of
the Plan and the distribution of benefits to the Plan’s
participants and beneficiaries.
6.

The independent fiduciary shall receive

reasonable compensation for the performance of its duties,
together with costs reasonably and necessarily incurred.

Upon

court approval, the compensation and expenses of the independent
fiduciary shall be paid from the Plan's assets, but Defendant
Kwasny and Reilly, P.C. shall reimburse the Plan for the cost of
the independent fiduciary.
7.

Defendant Kwasny and Reilly, P.C., its agents,

representatives, servants, employees and all persons acting by or
under their authority shall cooperate fully with the independent
fiduciary in its efforts to administer the Plan by delivering or
otherwise making available to the independent fiduciary all
books, records, bank accounts, brokerage statements, electronic
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hardware and software, and data files, however stored, relating
in any manner to the management and operation of the Plan as
well as all corporate records relating to employee elective
salary deferrals to the Plan, including but not limited to
payroll records, cancelled checks, and W-2 forms.
8.

This Court retains jurisdiction of this action

for purposes of enforcing compliance with the terms of this
Default Judgment.
9.

The Court directs the entry of this Default

Judgment as a final order as to Defendant Kwasny and Reilly,
P.C.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

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