LAWRENCE BREWSTER, Regional Solicitor DANIELLE L. JABERG, Counsel for ERISA California State Bar No. 256653 NORMAN E. GARCIA, Senior Trial Attorney California State Bar No. 215626, firstname.lastname@example.org United States Department of Labor Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, California 94103 Telephone: (415) 625-7747 Facsimile: (415) 625-7772 Attorneys for Hilda L. Solis, Secretary of Labor, United States Department of Labor, Plaintiff
Plaintiff HILDA L. SOLIS, Secretary of Labor, United States Department of Labor ("Secretary") pursuant to her authority under §§ 502(a)(2) and (5) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(2) and (5), has filed a Complaint against Defendants BUILDING SYSTEMS TECHNOLOGY, INC. ("BST"), RONALD CONSTANTINO ("Constantino"), an individual, and BUILDING SYSTEMS TECHNOLOGY, INC.'S SAVING INCENTIVE MATCH
PLAN FOR EMPLOYEES OF SMALL EMPLOYERS (the "Plan" or "SIMPLE Plan"), an employee pension benefit plan.*fn1
A. The Secretary, BST, Constantino, and the Simple Plan (collectively, "the parties") admit that the Court has jurisdiction over this action pursuant to ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1), and that venue lies in the Central District of California pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2).
B. The parties agree to the entry of this Consent Judgment & Order. The parties further agree that this Consent Judgment & Order shall fully settle all claims of the Secretary asserted in the Complaint filed in this matter.
C. Constantino, BST and the Simple Plan acknowledge receipt of the Secretary's Complaint in this action and hereby waive service of process of the Summons and Complaint.
D. All parties expressly waive Findings of Fact and Conclusions of Law. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:
1. Defendants BST and Constantino are jointly and severally liable for $15,132.06 in losses caused to the Plan as alleged in the Secretary's Complaint, and judgment is hereby entered against them in that amount.
2. Defendant Constantino shall restore $15,132.06 in Plan losses and lost-opportunity costs to the Plan.
3. Defendant Constantino shall pay $951.25 in interest for paying the $15,132.06 in Plan losses over 36 months.
4. The identified losses in Paragraph 2 and the interest in Paragraph 3 shall be restored to the Plan in accordance with the payment schedule set forth in Paragraph 7, infra.
5. Defendant Constantino is permanently enjoined and restrained from violating the provisions of Title I of ERISA, 29 U.S.C. §§ 1001-1191c.
6. Defendant Constantino is hereby permanently enjoined and restrained from future service as a fiduciary of, or service provider to, any ERISA-covered employee benefit plan.
7. Defendant Constantino shall restore to the Plan the amount of $15,132.06 in losses and pay interest as follows:
a. By December 1, 2010, Defendant Constantino shall remit $446.76 to the Plan's custodian, American Century Investment Services, Inc. ("American Century"). American Century shall allocate this $446.76 payment to the Plan's five non-fiduciary participants: Leslie Arthur, Phillip Axtell, Travis Humphries, Erik Lindell, and Raymond Ortega as identified in Exhibit A attached hereto.
b. Thereafter, beginning on January 1, 2011, Defendant Constantino shall remit thirty-five consecutive monthly payments in the amount of $446.76 to American Century for the Simple Plan. The first installment is due and payable on January 1, 2011, and the remaining installments shall be due and payable on or before the same day of each succeeding month thereafter until all installments have been paid.
The payments described are summarized as follows: