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Frank L. Rudy, As An Individual, and In His Individual Capacity As A v. David Bolstad

May 1, 2012

FRANK L. RUDY, AS AN INDIVIDUAL, AND IN HIS INDIVIDUAL CAPACITY AS A SHAREHOLDER OF WESTERN MIXERS, INC., PLAINTIFF,
v.
DAVID BOLSTAD, AN INDIVIDUAL; ROBERT J. FISHER, AN INDIVIDUAL, DEFENDANTS HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
FRANK L. RUDY, DAVID H. BOLSTAD, ROBERT J. FISCHER, WESTERN MIXERS, INC., WESTERN MIXERS INC. MONEY PURCHASE PENSION PLAN, DEFENDANTS



The opinion of the court was delivered by: Jacqueline H. NguyenUnited States District Judge

MARY K. ALEJANDRO Acting Regional Solicitor DANIELLE L. JABERG (CSBN 256653) Counsel for ERISA Andrew J. Schultz (CSBN 237231) Trial Attorney Office of the Solicitor United States Department of Labor 90 7th Street, Suite 3-700 San Francisco, California 94103 Direct: (415) 625-7745 Facsimile: (415) 625-7772 Email: schultz.andrew@dol.gov Attorneys for Plaintiff United States Department of Labor

JS-6

CONSENT JUDGMENT AND ORDER BETWEEN THE PLAINTIFF SECRETARY OF LABOR AND DEFENDANTS FRANK L. RUDY, DAVID H. BOLSTAD, ROBERT J. FISCHER, WESTERN MIXERS, INC., and the WESTERN MIXERS, INC. MONEY PURCHASE PENSION PLAN

Plaintiff HILDA L. SOLIS, Secretary of Labor, United States Department of Labor ("Secretary"), pursuant to her authority under Sections 502(a)(2) and (5) of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(2) and (5), has filed a Complaint against Defendants FRANK L. RUDY, DAVID H. BOLSTAD, ROBERT J. FISCHER, WESTERN MIXERS, INC. ("the Company"), and the WESTERN MIXERS INC. MONEY PURCHASE PENSION PLAN ("the Plan").

A. The Secretary, the Company, Rudy, Bolstad, Fischer, and the Plan (collectively, the "Parties") admit that the Court has jurisdiction over this action pursuant to Section 502(e)(1) of ERISA, 29 U.S.C. § 1132(e)(1), and that venue lies in the United States District Court for the Central District of California pursuant to Section 502(e)(2) of ERISA, 29 U.S.C. § 1132(e)(2).

B. The Parties agree to the entry of this Consent Judgment and Order. The Parties further agree that this Consent Judgment and Order shall fully settle all claims of the Secretary asserted in the Complaint.

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

1. Judgment is hereby entered against Defendants Rudy, Bolstad, Fischer and Company in the amount of $802,901.07 ("Amount Due").

2. Within 10 days of entry of this Consent Judgment and Order, Defendants Rudy, Bolstad and Fischer shall restore the Amount Due to the Plan as described in Paragraphs 4-7, below.

3. Following restoration of the Amount Due as described in Paragraphs 4-7, below, the Independent Fiduciary appointed under this Consent Judgment and Order shall distribute all of the Plan's assets, $1,795,391.63, to the participants in the amounts designated on Exhibit A attached to this Consent Judgment and Order.

4. The governing Plan documents are hereby amended to allow for the offset of a participant's Plan benefits against an amount that the participant is required to pay as a result of this Consent Judgment and Order.

5. Defendant Rudy shall restore to the Plan $20,000.00. Pursuant to ERISA Section 206(d)(4), 29 U.S.C. § 1056(d)(4), Defendant Rudy shall restore such amount by forfeiting $20,000.00 of his Plan account balance. In so forfeiting, Defendant Rudy waives any further allocations into his Plan account and agrees that this sum offset from his Plan Account shall be reallocated to the participants listed on Exhibit A to this Consent Judgment and Order in order to satisfy Paragraphs 1 and 2 of this Consent Judgment and Order.

6. Defendant Bolstad shall restore to the Plan $630,678.15. Pursuant to ERISA Section 206(d)(4) of ERISA, 29 U.S.C. § 1056(d)(4), Defendant Bolstad shall restore such amount by forfeiting his entire Plan account balance in the amount of $508,161.75 and, within 10 days of the entry of this Consent Judgment and Order, by separately paying to the Plan the sum of $122,516.40. In so forfeiting, Defendant Bolstad waives any further allocations into his Plan account and agrees that this sum offset from his Plan account shall be reallocated to the participants listed on Exhibit A to this Consent Judgment and Order in order to satisfy Paragraphs 1 and 2 of this Consent Judgment and Order. Should Defendant Bolstad fail to timely separately pay the Plan $122,516.40, the outstanding amount shall become immediately due and payable. Interest shall accrue on the outstanding amount at the rate set forth in 26 U.S.C. § 6621 until such time as the entire outstanding amount plus any applicable interest is restored.

7. Defendant Fischer shall restore to the Plan $152,222.92. Pursuant to ERISA Section 206(d)(4), 29 U.S.C. § 1056(d)(4), Defendant Fischer shall restore such amount by forfeiting his entire Plan account balance in the amount of $152,222.92. In so forfeiting, Defendant Fischer waives any further allocations into his Plan account and agrees that this sum offset from his Plan account shall be reallocated to the participants listed on Exhibit A to this Consent Judgment and Order in order to satisfy Paragraphs 1 and 2 of this Consent Judgment and Order.

8. The spouses of Defendants Rudy, Bolstad and Fischer have consented to the offset of Defendants' Plan account balances ordered in Paragraphs 5 through 7 of this Consent Judgment and Order, as evidenced by the spousal consent forms submitted by the parties contemporaneously with the filing of this Consent Judgment and Order ("Waiver of Benefits and Spousal Consent Form").

9. Defendants Rudy, Bolstad and Fischer are permanently enjoined and restrained from violating the provisions of Title I of ERISA, ...


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