Opinion
Case No. C10-03823 LHK
November 23, 2011.
M. PATRICIA SMITH, Solicitor of Labor
LAWRENCE BREWSTER, Regional Solicitor
DANIEL J. CHASEK, Associate Regional Solicitor
DANIELLE L. JABERG, Counsel for ERISA
BORIS ORLOV, Trial Attorney
Attorneys for HILDA L. SOLIS, Secretary of Labor, United States Department of Labor
LARS T. FULLER, FULLER LAW FIRM, Attorneys for Defendants, Cuong Viet Do and The Mill Group, Inc.
CUONG VIET DO
THE MILI GROUP, INC., CUONG VIET DO, President
THE MILI GROUP RETIREMENT PLAN, MICHAEL FITZGIBBONS, Initial Independent Fiduciary
Lawrence Brewster Regional Solicitor, Daniel J. Chasek, Associate Regional Solicitor, Danielle L. Jaberg, (CSBN 256653) Counsel for ERISA Boris Orlov, Attorney (CSBN 223532), Office of the Solicitor United States Department of Labor
Attorneys for the Plaintiff, United States Department of Labor
MODIFICATION OF THE JULY 7 2011 CONSENT JUDGMENT ORDER
Plaintiff HILDA L. SOLIS, Secretary of Labor, United States Department of Labor, Employee Benefits Security Administration ("Secretary") and Defendants Cuong Viet Do, The Mili Group, Inc. and The Mili Group Retirement Plan ("Plan), an employee benefit plan respectfully request this Court to Modify the Consent Judgment Order that it approved on July 7, 2011 as listed below:
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the July 7, 2011 Consent Judgment and Order is fully incorporated herein by reference with the exception of Paragraph 5(b), which is modified as follows:
5(b). On the 45th day after the sale of the Florida Property, unless the Plan has been terminated and the Pension Benefit Guaranty Corporation ("PBGC") appointed trustee of the Plan, Jeanne Bryant, Receivership Management Inc., 783 Old Hickory Blvd., Suite 255, Brentwood, TN 37027, shall be appointed as the Successor Independent Fiduciary to the Plan. The termination of the Plan and the appointment of the PBGC as the trustee of the Plan may occur by a written agreement between the PBGC and the Initial Independent Fiduciary without the need for a further order from this Court. Prior to the sale of the Florida Property and until the transfer of Plan assets described in Para-graph 5(a)(1), the Successor Independent Fiduciary shall have no fiduciary responsibili-ties. If the Plan is terminated and PBGC is appointed as trustee of the Plan prior to the transfer of the Plan assets described in Paragraph 5(a)(1) then the Successor Independent Fiduciary shall have not be appointed and shall have no fiduciary responsibilities. Immediately upon receipt of the transferred Plan assets pursuant to Paragraph 5(a)(1), the Successor Independent Fiduciary shall have the following duties and responsibilities:
(1). The Successor Independent Fiduciary shall have the discretionary authority to collect, marshal, pay out and administer all of the assets of the Plan, and to take further action with respect to the Plan as appropriate, including termination of the Plan when all of the assets have been distributed to all eligible Plan participants and benefici-aries;
a.The eligible Plan participants and beneficiaries entitled to allocations/distributions pursuant to the governing Plan Documents and the Consent Judgment Order are identified on Exhibit A attached to the May 27, 2011 Consent Judgment Order; and
b.In allocating any benefits due under the Plan and this Consent Judgment Order, the Successor Independent Fiduciary shall, pursuant to Article 3, section 2.3.1(e) of the Plan Document, adjust any amounts due to Minha Do by recognizing that she obtained a $50,000 distribution from the Plan in July of 2007.
(2). The Successor Independent Fiduciary shall, pursuant to the procedures out-lined in the Employee Benefits Security Administration's Field Assistance Bulletin 2004-02, exercise reasonable care and diligence to identify and locate each participant and beneficiary of the Plan who is eligible to receive a distribution under the terms of the Plan;
(3). The Successor Independent Fiduciary shall have all the rights, duties, discretion, and responsibilities of a trustee, fiduciary, and Plan Administrator under ERISA;
(4). The Successor Independent Fiduciary is authorized to delegate or assign fiduciary duties as appropriate and allowed under the law and may retain such as assistance as he may require, including attorneys, accountants, actuaries, and other service providers;
(5). The Successor Independent Fiduciary shall have full access to all data, in-formation, and calculations in the possession of the respective Plans and under their control, including information and records maintained by the custodial trustees or service providers of the Plan;
(6). The Successor Independent Fiduciary is authorized to give instructions respecting the disposition of assets of the Plan;
(7). The Successor Independent Fiduciary shall comply with all applicable rules and laws;
(8) The Successor Independent Fiduciary shall be bonded as required by ERISA § 412, 29 U.S.C. § 1112.
(9). Pursuant to Article 2, Section 3.2.7 of the governing Plan document, the Successor Independent Fiduciary's reasonable expenses and fees may be charged against the assets of the Plan;
(10). Following appointment, the Successor Independent Fiduciary shall be required to present to the Court and the Secretary an itemized application for the payment of fees and expenses on a quarterly basis (except that, if all the proceeds from the sale of the Florida Property have been distributed and there are no assets in the Plan, the Successor Independent Fiduciary may submit this application on an annual basis, until the commencement of the payment plan under paragraph 6 (b) of the May 27, 2011 Consent Judgment Order). The Fee Application shall include the hourly rates of pay, dates and hours of work, a description of work performed, and an itemized statement of expenses. The Secretary requests that the Fee Application shall be deemed approved, unless the Secretary specifically objects to the Fee Application within fifteen business days. In the event the Secretary objects to the Fee Application, the Secretary requests that the Court decide whether the Independent Fiduciary's application should be granted.
The Court directs the entry of this Modification to the July 7, 2011 Consent Judgment Order as a final order.