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Hilda L. Solis, Secretary of Labor, United States Department v. Elecom

October 16, 2012

HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
ELECOM, INC., JESSE MEJORADO, AND CONTRACTORS AND EMPLOYEES 401(K) PLAN AS ADOPTED BY ELECOM, INC.,
DEFENDANTS.



CONSENT JUDGMENT AND ORDER

Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor ("the Secretary"), pursuant to her authority under sections 502(a)(2) and (5) of the Employee 22 21 Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(2) and (5), has filed a 23 Complaint against ELECOM, INC. ("Elecom"), JESSE MEJORADO ("Mejorado"), 24 individually, and the CONTRACTORS AND EMPLOYEES 401(K) PLAN (the "Plan"), an 25 employee benefit plan within the meaning of section 3(3) of ERISA, 29 U.S.C. § 1002(3). 26

A. The Secretary, Elecom, Mejorado and the Plan (collectively, the "parties") admit 27 that the Court has jurisdiction over this action pursuant to ERISA Section 502(e)(1), 29 U.S.C. § 1132(e)(1), and that venue lies in the Eastern District of California pursuant to ERISA 2 Section 502(e)(2), 29 U.S.C. § 1132(e)(2). 3

B. Defendants Elecom, Mejorado and the Plan (collectively "Defendants") waive 4 filing of an Answer and further waive entering any affirmative defense, counterclaim, or third-5 party complaint, or any other defenses that they may have in this case. 6

C. The parties agree to the entry of this Consent Judgment and Order. The parties 7 further agree that this Consent Judgment and Order shall fully settle all claims of the Secretary 8 asserted in the Complaint filed in this matter. 9

D. All parties expressly waive Findings of Fact and Conclusions of Law.

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

1. Defendants Elecom and Mejorado are jointly and severally liable for $16,435.87*fn1 in losses plus lost-opportunity costs caused to the Plan ("Loss Amount"), and judgment is hereby 13 entered against them in that amount.*fn2 14

2. Defendant Mejorado is permanently enjoined and restrained from violating the 15 provisions of Title I of ERISA, 29 U.S.C. §§ 1001-1191c. 16

3. Defendant Elecom is hereby removed as Plan Administrator and fiduciary of the Plan. 18

4. Defendant Mejorado is hereby removed as a fiduciary of the Plan, subject to the 19 exceptions set forth in Paragraphs 5, 6, 15 and 16, infra. 20

5. Defendant Mejorado shall remain a fiduciary of the Plan solely for the purpose of 21 restoring losses to the Plan, making or causing the distributions of the assets of the Plan and 22 subsequent termination of the Plan, in accordance with the instructions set forth below in 23 Paragraphs 15 and 16. After Mejorado fulfills the duties set forth in Paragraphs 15 and 16, infra, 24 he shall immediately be removed from his position as a fiduciary of the Plan. 25

6. Defendant Mejorado is permanently enjoined and restrained from future service 26 as a fiduciary of, or service provider to, any ERISA-covered employee benefit plan, subject to 27 the exceptions set forth in Paragraphs 5, 15 and 16 herein. 2

7. Based on the representations made by Defendant Mejorado, including those made 3 by him in his personal bankruptcy case (Case No. 10-11876-A-7) regarding his ability to pay, the 4 Secretary declines to seek collection of the Loss Amount at this time. The Secretary reserves the 5 right to bring a collection action against Defendant Mejorado for the full Loss Amount at any 6 time. Prior to initiating a collection action, the Secretary shall send Defendant Mejorado a 7 written demand letter ("Secretary's Demand Letter") to the last home address that he provided to 8 the Secretary. Within fifteen (15) calendar days of receiving the Secretary's Demand Letter, 9 Defendant Mejorado shall provide the Secretary with financial documents including, but not 10 limited to, tax returns (for the three most recent years), bank statements, investment statements, 11 and other similar financial statements relevant to Defendant Mejorado's ability to restore the 12 Plan's losses. 13

8. Defendant Mejorado expressly agrees that the Secretary has the right, on an 14 annual basis, to review his financial condition for the next five (5) calendar years.following the 15 entry of this Consent Judgment. Should the Secretary elect this right, the Secretary will notify 16 Defendant Mejorado of this demand in writing at the last home address provided to the 17 Secretary. Defendant Mejorado affirms that, at time of this Consent Judgment and Order's 18 execution, such address is: 5297 West Osprey Way, Fresno, CA 93722. Within fifteen (15) ...


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