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Acosta v. Beverly

United States District Court, E.D. North Carolina, Western Division

May 2, 2018

R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
THOMAS E. BEVERLY, SR., HOUSE OF LIGHTS, INC. PENSION PLAN & TRUST, and HOUSE OF LIGHTS, INC. PROFIT SHARTNG PLAN. Defendants.

          JASON XUTTLE Attorney for Defendant

          ROBERT M.LEWIS, JR. Counsel Trial Attorney' Office of the Solicitor U.S. Department of Labor Attorneys for Plaintiff

          AMENDED CONSENT TUDGMENT AND ORDER

         Plaintiff, Secretary of Labor, United States Department of Labor, pursuant to his authority under §§ 502(a)(2) and 502(a)(5), 29 U.S.C. §§ 1132(a)(2) and 1132(a)(5), of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et sec., ("ERISA") has filed a Complaint against Defendants Mr. Thomas E. Beverly, Sr. (" Defendant Mr. Beverly), House of Lights, Inc. Pension Plan & Trust, and House of Lights Inc. Profit Sharing Plan (collectively "the Plan)[1]. The Secretary named the Plan as a Defendant pursuant to Fed.R.Civ.P. 19(a). Upon entry of this Consent Judgment, the Plan may be dismissed without prejudice. Defendant and the Secretary have agreed to resolve all matters in controversy in this action except for the imposition by the Secretary of any penalty pursuant to ERISA § 502(1), 29 U.S.C. § 1132(1), and any proceedings related thereto, and said parties do now consent to entry of a Judgment and Order by this Court in accordance herewith.

         A. The Secretary's Complaint alleges that Defendant Mr. Beverly breached his fiduciary duties with respect to the Plan by failing to discharge his duties under the Plan and by violating provisions of §§ 403, 404 and 406 of ERISA, 29 U.S.C. §§ 1103, 1104 and 1106, as set forth in the Complaint

         B. Defendant Mr. Beverly hereby admits to the jurisdiction of the Court over him and over the subject matter of this action. Defendant Mr. Beverly admits that this Court has the authority to enforce this Order and that this Court is the most appropriate venue for any enforcement action which may be required as a result of this Order.

         C. Defendant Mr. Beverly admits each and every allegation in the Complaint.

         D. Defendant Mr. Beverly admits that he is, or was at all times relevant to this action, acting as a fiduciary within the meaning of 11 U.S.C. § 523(a)(4). Defendant Mr. Beverly further admits that his conduct with respect to the Plan and with respect to Plan assets constitutes defalcation while acting in a fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4). Defendant Mr. Beverly further admits, therefore, that the debt arising from his fiduciary breaches is non-dischargeable under the Bankruptcy Code.

         E. Defendant Mr. Beverly expressly waives any and all claims of whatsoever nature that he has or may have against the Secretary, or any of his officers, agents, employees, or representatives, arising out of or in connection with the filing, prosecution, and maintenance of this civil action or any other proceeding and investigation incident thereto.

         F. This Order represents a complete settlement of all the Secretary's claims asserted in this action against Defendant Mr. Beverly. This Order is not binding upon any government agency other than the U.S. Department of Labor and only resolves claims arising out of this action as between the Secretary and Defendant Mr, Beverly.

         G. The Secretary and Defendant Mr. Beverly expressly waive Findings of Fact and Conclusions of Law, except as otherwise set forth and addressed herein, and consent to the entry of this Order as a full and complete resolution of all claims and issues which were, or might have been, alleged in this action without trial or adjudication of any issue of fact or law raised in the Complaint.

         Accordingly, it is ORDERED ADJUDGED AND DECREED that:

         1. The Court has jurisdiction over the parties to this Order and the subject matter of this action and is empowered to provide the relief herein.

         2. Defendant Mr. Beverly, his agents, servants, employees and all persons in active concert or participation with him be and they hereby are permanently enjoined and restrained from violating the provisions of Title I of ERISA.

         3. Defendant Mr. Beverly be and he hereby is permanently enjoined from acting as a fiduciary, trustee, agent, or representative in any capacity to ...


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