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Hilda L. Solis, Secretary of Labor v. D.L. Silva

April 14, 2011

HILDA L. SOLIS, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
D.L. SILVA, INC., DBA CUSTOM AIR, FDBA, SUNSET HOME AND HEARTH, A CORPORATION; DENNETTE DORES, AN INDIVIDUAL; DANIEL SILVA, AN INDIVIDUAL; ESTATE OF DENNIS L. SILVA, PROBATE ESTATE OF AN INDIVIDUAL; THE CUSTOM AIR EMPLOYEE BENEFIT TRUST, AN EMPLOYEE HEALTH BENEFIT PLAN..
DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, JR United States District Judge

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, garcia.norman@dol.gov 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

CONSENT JUDGMENT & ORDER

Plaintiff HILDA L. SOLIS, Secretary of Labor, United States Department of Labor ("the 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 D.L. SILVA, INC. dba CUSTOM AIR, fdba SUNSET HOME AND HEARTH, a corporation ("Custom Air");

DENNETTE DORES ("Dores"), an individual; DANIEL SILVA ("Silva"), an individual; ESTATE OF DENNIS L. SILVA, probate estate of an individual ("the Estate"); the CUSTOM AIR EMPLOYEE BENEFIT TRUST, an employee health benefit plan ("the Plan") (collectively, "the Defendants").*fn1

A. The Secretary and Defendants (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 Eastern 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. All parties expressly waive Findings of Fact and Conclusions of Law.

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

1. Defendants Custom Air, Dores, Silva, and the Estate are jointly and severally liable for $120,603.90 in Plan losses and lost-opportunity costs caused to the Plan as alleged in the Secretary's Complaint, and judgment is hereby entered against them in that amount.

2. Defendants Custom Air, Dores, Silva, and the Estate shall, by May 15, 2011, restore $120,603.90 in Plan losses and lost-opportunity costs to the Plan by tendering such amount to the Independent Fiduciary identified in Paragraph 5, infra.

3. Defendants Custom Air, Dores and Silva are permanently enjoined and restrained from violating the provisions of Title I of ERISA, 29 U.S.C. §§ 1001-1191c.

4. Defendants Dores and Silva are hereby permanently enjoined and restrained from future service as a fiduciary of, or service provider to, any ERISA-covered employee benefit plan.

5. Defendants Custom Air and Silva hereby appoint Stephen Page as the Independent ...


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