Chao v. Schofield

Full title: Elaine Chao, Secretary of the United States Department of Labor v. Jane…

Court: United States District Court, D. New Hampshire

Date published: Aug 28, 2007

07-mc-38-JM (D.N.H. Aug. 28, 2007)

Opinion

07-mc-38-JM.

August 28, 2007

ORDER

JAMES MUIRHEAD, Magistrate Judge

Plaintiff's "Petition to Enforce Administrative Subpoena" is granted. Jane Schofield is ordered to comply with the subpoena of April 18, 2007 attached to this order and produce all records subpoenaed to James M. Benages, Regional Director of the Employee Benefits Security Administration, U.S. Department of Labor, at John F. Kennedy Federal Building, Room 575, Boston, Massachusetts on September 28, 2007 at 9:00 a.m.

SO ORDERED.

SUBPOENA UNITED STATES OF AMERICA DEPARTMENT OF LABOR Employee Benefits Security Administration

To

Custodian of Records and Jane Schofield

Affordable Bookkeeping Services SIMPLE IRA Plan

Affordable Bookkeeping Services

4 Mound Court

Merrimac, NH 03054

You are hereby required to appear before James M. Benages, Regional Director of the Employee Benefits Security Administration, U.S. Department of Labor, at John F. Kennedy Federal Building, Room 575 in the City of Boston on the 2^nd of May at 9:00 o'clock am of that day, to testify in the Matter of an investigation of

Affordable Bookkeeping Services SIMPLE IRA Plan

being conducted pursuant to Section 504 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1134, in order to determine whether any person has violated or is about to violate any provision of Title I of ERISA or any regulation or order thereunder: And you are hereby required to bring with you and produce at said time and place the following books, papers, and documents:

SEE ATTACHMENT "A" AND PRECEDING DEFINITIONS PAGE

Fail not at your peril. In testimony whereof I have hereunto affixed my signature and the seal of the United States Department of Labor at Boston, Massachusetts this 18^th day of April, 2007 James M. Benages, Regional Director

_____________________________ ________________________________________________________

Definitions and Instructions

1 The term "Plan" means the Affordable Bookkeeping Services SIMPLE IRA Plan;

2. The term "Affordable Bookkeeping Services" is a business entity located at 4 Mound Court, Merrimack, NH 03054. Affordable Bookkeeping Services is the Sponsor of the Plan;

3. The term "document" means a tangible medium that contains information of any sort, including, but not limited to, contracts, agreements, correspondence, memoranda, reports, emails, word processing documents, electronic data files, electronic or instant mail messages or other exchanges of information between computers, facsimiles, electronic or taped voice messages, spreadsheets, charts, graphs, photographs, work papers, notes, drafts, marginal notations, tape recordings, bills, invoices, account statements, checks, receipts, confirmations of electronic transactions, ledger books and associated journals, summaries or records of telephone conversations, personal conversations, negotiations or interviews, minutes or records of meetings or conferences, and all other written, printed, electronic, recorded or photographic matter or sound reproduction, however produced or reproduced. A draft or non-identical copy is a separate document within the meaning of this term. Documents maintained in electronic form may be produced in electronic form;

4 The term "relating to" means constituting, referring to, pertaining to, responding to, regarding, evidencing, explaining, discussing, depicting, analyzing, or containing any information which in any way concerns, affects, or describes the terms or conditions, or identifies facts, with respect to the subject of the inquiry;

5 Unless otherwise specified, the time period covered by this request is from 1/1/03 to the date of production. Documents created prior to 1/1/03, but which have been used or relied on by the Plan since 1/1/03 or which describe legal duties which remain in effect after 1/1/03 (such as contracts and trust agreements), shall be considered as included within the time period covered by this subpoena;

6. The term "fiduciary" means "fiduciary" as defined in section 3(21) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(21);

7 The term "internal control report" means any report, memoranda or other document that relates to the process designed by, or under the supervision of, any principals to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that: (1) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of assets; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material affect on the financial statements;

8. The words "and" and "or" shall be construed conjunctively or disjunctively as necessary to make the request inclusive rather than exclusive;

9. The singular form of a word shall be construed to include the plural and vice versa; the present tense or a word shall be construed to include the past tense and vice versa;

10. All words and phrases shall be construed as masculine, feminine or gender neutral as necessary to bring within the scope of this subpoena documents that might otherwise be construed to be outside its scope;

11. You are required to produce all responsive documents, which are in your possession or custody or under your control. You are required to search for, obtain and produce all responsive documents, including without limitation, documents that are in your custody or control but not in your immediate possession. This includes any responsive documents, including without limitation documents that are in the custody or control of any person acting on your behalf or under your direction or control, such as your employees, accountants, agents, representatives, attorneys or advisors;

12 Please provide documents requested in this subpoena either (1) as they are kept in the usual course of business or (2) organized and labeled to correspond with the numbered requests;

13 If any document responsive to this subpoena had been but is no longer in your possession, custody or control, please provide a written response stating what disposition was made of the document, the date or dates on which such disposition was made, and the reason for such disposition;

14. If no document exists responsive to a particular request, please state so in a written response;

15 If you do not produce documents because you object to part of or an aspect of a request, please provide a written response stating the precise basis for the objection and produce all documents responsive to the remaining part or aspect of the request;

16. If any documents required to be produced pursuant to this subpoena are withheld because of a claim of privilege, please identify the documents you claim are privileged in a written response, and please indicate for each such document: (1) the nature of the privilege or protection claimed; (2) the factual basis for claiming the privilege or protection asserted; (3) the subject matter of the document; (4) the type, length and date of the document; (5) the author of and/or signatory on the document; and (6) the identity of each person to whom the document was directed or distributed;

17. If any document required to be produced pursuant to this subpoena has been destroyed, identify with respect to each document: (1) the date destroyed; (2) the method of destruction; (3) the reason for the destruction; (4) the person or persons who authorized the destruction; and (5) the subject matter of the document destroyed.

ATTACHMENT A Documents To Be Produced

1. Plan Document, including any Adoption Agreement, and all Amendments;

2. Plan Trust Agreement, and all Amendments;

3. Summary Plan Description;

4. Sample Enrollment Form and sample documents given to Plan participants regarding their enrollment in the Plan;

5 IRS Forms 5305-SIMPLE for Plan Years 2003, 2004, and 2005;

6. Fidelity bonds, including the declaration page and ERISA Compliance Endorsement identifying the Plan as a named insured and specifying the amount of coverage and name of surety company;

7. Any and all documents relating to any claims made under the fidelity bond during the most recent three years;

8. Fiduciary liability insurance policy or policies;

9. Most recent IRS Determination Letter;

10. Any and all Minutes of any Plan Board of Trustees' Meetings;

Any and all documents relating to all loans, other than participant loans, including those secured by mortgages, made, held, or acquired by or to the Plan at any time from January 2003 through the present, including but not limited to the following:

a All promissory notes and loan applications;

b. All amortization and/or repayment schedules; and

c Documents that identify any collateral, such as UCC-1 filings and trust deeds;

12 Any and all documents relating to participant loans involving the Plan, including loan applications, promissory notes, mortgages, amortization schedules, repayment schedules, repayment statements or records, and documents relating to payroll deductions for loan repayments;

13 Investment policy statement(s) for the Plan with any and all amendments or changes;

14 Plan investment performance reports for Plan Years 2003, 2004, 2005 and 2006;

15. Custodial account statements for Plan Years 2003, 2004, 2005 and 2006;

16. Internal control reports for the Plan Years 2003, 2004, 2005 and 2006;

17. Auditor's letters to Plan Sponsor, and any letters sent by the Plan Administrator to the auditor, relating to Plan Years 2003, 2004, 2005 and 2006;

18. All contracts and/or agreements, including fee schedules, with all service providers to the Plan;

19. Documents relating to the Plan's current investments and the current value of such investments, including the current investment portfolio for the Plan and any and all statements or reports of assets prepared during the past three months;

20. Documents which set forth the identities of any and all Plan fiduciaries, including addresses and telephone numbers for each fiduciary;

21 Documents which set forth the identities of any and all Plan trustees, including addresses and telephone number for each trustee;

22. Documents which set forth the identities of any and all participants in the Plan, including addresses and telephone numbers for each participant;

23 Documents which set forth the identities of any and all Plan service providers, including addresses and telephone number for each service provider;

24 Documents which set forth the identities of Affordable Bookkeeping Services' corporate directors and/or officers, including addresses and telephone numbers;

25 Documents relating to all bank accounts maintained by or on behalf of the Plan, such as checking accounts, savings accounts, certificates of deposit, and money market accounts, including but not limited to signature cards, account statements, correspondence, cancelled checks, wire or electronic transfer confirmations, stop payments, and deposit slips;

26. Documents which set forth any and all amounts withheld from Plan participant wages for contribution to the Plan, and any and all amounts withheld from Plan participant wages as Plan loan repayments, including but not limited to all payroll records that identify the dates pay periods ended, the dates wages were paid, and the amounts withheld from wages for each pay period;

Documents which set forth any and all employer matching contributions made to the Plan and any and all employer discretionary contributions made to the Plan, including but not limited to all documents that identify the dates such contributions were made, the amounts contributed, and the method by which the amounts contributed were calculated;

Documents which set forth any and all transfers to the Plan's custodian of assets of amounts withheld from Plan participant wages as contributions to the Plan or as Plan loan repayments, including but not limited to all documents that identify the dates transfers of employee withholding monies were made, the amounts of the transfers, and the pay periods when the amounts transferred had been withheld from participant wages;

29. Documents which set forth any and all transfers to the Plan's custodian of assets of any and all employer matching contributions made to the Plan and any and all employer discretionary contributions made to the Plan, including but not limited to all documents that identify the dates such transfers were made, the amounts transferred, and the method by which the amounts transferred were calculated.