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Hilda L. Solis, Sec'y of Labor, U.S. Dep't of Labor v. Rusty's Truck Serv.

August 3, 2012

HILDA L. SOLIS, SEC'Y OF LABOR, U.S. DEP'T OF LABOR, PLAINTIFF,
v.
RUSTY'S TRUCK SERV., INC. PROFIT SHARING PLAN DEFENDANT.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

JUDGMENT AND ORDER

WHEREAS, this action was filed by the Secretary of Labor ("the Secretary") pursuant to Title I of the Employee Retirement Income Security Act of 1971 ("ERISA"), 29 U.S.C. § 1001, et seq., and by the authority vested in the Secretary by ERISA Section 502(a)(5), 29 U.S.C. § 1132(a)(5) alleging that Rusty's Truck Service, Inc. Profit Sharing Plan ("the Plan") was in violation of ERISA Sections 402 and 403, 29 U.S.C. § 1102 and 1103; and

I. The Plan was, and is, an employee benefit plan within the meaning of ERISA Section 3(3), 29 U.S.C. § 1002(3), and was established to provide benefits to employees of the plan sponsor, Rusty's Truck Service, Inc., who were covered by a plan subject to Title I of ERISA; and

II. This Court has subject matter jurisdiction over this action pursuant to ERISA Section 502(e)(1), 29 U.S.C. § 1132(e)(1); venue of this action lies in the Northern District of New York pursuant to ERISA Section 502(e)(2), 29 U.S.C. § 1132(e)(2); this Court has personal jurisdiction over the Plan for all purposes relevant to this matter including the entry of this Order pursuant to ERISA Section 502(d)(1), 29 U.S.C. § 1132(d)(1); and at times relevant to this action, the Plan was a defined contribution pension plan qualifying as an employee benefit plan within the meaning of ERISA Section 3(3), 29 U.S.C. § 1002(d); and

III. The Secretary has duly made service on the Plan; and

IV. It appears that the Plan's former administrator and fiduciary, Mr. William D. Carlton, died on May 8, 2006; and

V. Although the Plan and its authorized representatives have not answered or otherwise formally appeared in this matter, Mr. Carlton's estate representative, Frank J. Vavonese, Esq. of Melvin & Melvin, PLLC, has filed a letter advising the Court that the estate has consented to the appointment of a successor administrator and fiduciary for the Plan;

IT IS NOW THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:

1. The status quo of the Plan shall be maintained pending an orderly transfer to the Independent Fiduciary.

2. The Court hereby appoints M. LARRY LEFOLDT, CPA as the Independent Fiduciary of the Plan ("the Independent Fiduciary") with authority to administer the Plan, and, if necessary, implement its orderly termination. In performing his duties, the Independent Fiduciary shall have and exercise full authority and control with respect to the management or disposition of the assets of the Plan. The Independent Fiduciary shall collect, marshal, and administer all of the Plan's assets, evaluate all claims outstanding against it, and pay the assets out to participants and other creditors of the Plan; and take such further actions with respect to the Plan as may be appropriate.

3. The Independent Fiduciary shall have all the powers to do the things that are necessary and appropriate to administer and terminate the Plan.

4. The Independent Fiduciary shall develop a plan for equitable adjudication and payment of outstanding participant claims for benefits. In developing this plan, the Independent Fiduciary shall consider the best interests of participants and beneficiaries of the Plan, and the resources expected to be available to the Plan. The Independent Fiduciary shall not be bound by any current or historic procedures or policies of the Plan which conflict with his or her duties under ERISA.

5. The Independent Fiduciary is empowered to require all custodians or record keepers of the Plan to deliver or otherwise make available to the Independent Fiduciary any information, documents, files, or other compilations, wherever and however stored, that are respecting the disposition of assets of the Plan held by them.

6. The Independent Fiduciary is empowered to give instructions to asset custodians respecting the disposition of ...


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