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Scalia v. Day-Mont Behavioral Health Care, Inc.

United States District Court, S.D. Ohio, Western Division

November 20, 2019

EUGENE SCALIA, Secretary of Labor, [1] United States Department of Labor, Plaintiff,
v.
DAY-MONT BEHAVIORAL HEALTH CARE, INC, an Ohio Corporation; DAY-MONT WEST TAX-DEFERRED ANNUITY PLAN, an employee benefit plan; DAY-MONT BEHAVIORAL HEALTH CARE INC. EMPLOYEE BENEFIT PLAN, an employee benefit plan; GAYLE JOHNSON, an individual; and AKIL SHARIF, an individual; Defendants.

          ADAM LUBOW Trial Attorney for Plaintiff U.S. Department of Labor KATE S. O'SCANNLAIN Solicitor of Labor CHRISTINE Z. HERI Regional Solicitor BENJAMIN T. CHINNI Associate Regional Solicitor.

          LYNNETTE DINELER Attorney for Defendant Gayle Johnson Dinkier Law Office, LLC.

          KEVIN BOWMAN Attorney for Defendant Akil Sharif Brannon & Associates.

          DOUGLAS DENNIS Attorney for Defendant Gayle Johnson Frost Brown Todd LLC.

          BRIAN NALLY Attorney for Defendants Day-Mont BHC, Inc., Annuity Plan, and Health Plan Reminger Co.

          CONSENT ORDER AND JUDGMENT

          Thomas M. Rose Untied States District Judge.

         Plaintiff Eugene Scabs, Secretary of Labor, United States Department of Labor, pursuant to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §1001, et seq., filed a complaint against defendants Day-Mont Behavioral Health Care, Inc. ("Day-Mont"), Gayle Johnson (“Johnson"), and Akil Sharif ("Sharif) (collectively "Defendants") alleging breaches of their fiduciary responsibilities under ERISA with respect to the Day-Mont West Tax-Deferred Annuity Plan ("Annuity Plan") and the Day-Mont Behavioral Health Care Inc, Employee Benefit Plan ("Health Plan") (collectively "Plans"). The Plans were joined as parties pursuant to Rule 19 of the Federal Rules of Civil Procedure, solely to ensure that complete relief may be granted.

         Defendants and the Plans have waived service of process of the complaint and have admitted to the jurisdiction of this Court over them and the subject matter of this action.

         Plaintiff, Defendants, and the Plans (collectively "Parties") have agreed to resolve all matters in controversy in this action between them (including the imposition by Plaintiff of any penalty pursuant to ERISA § 502(I), 29 U.S.C; §1132(I), and any proceedings related thereto), and said parries do now consent to entry of a Consent Order and Judgment by this Court in accordance therewith.

         Upon consideration of the record herein, and as agreed to by the parties, the Court finds that it has jurisdiction to enter this Consent Order and Judgment, IT IS THEREFORE ORDERED that:

         1. Defendants are permanently enjoined and restrained from violating the provisions of Title I of ERISA, 29 U.S.C §1001 et seq.

         2. Defendants are jointly and severally liable to the Annuity Plan in the amount of $64, 582.49 and to the Health Plan in the amount of $77, 084.18.

         3. Within 30 days of the entry of the Consent Order and Judgment, Defendants shall pay or cause to be paid a total of $170, 000 as follows:[2]

a. $64, 582.49 to the Annuity Plan, by payment of a certified check payable to MG Trust Company F/B/O Day-Mont West Tax-Deterred Annuity Plan, mailed to AMI Benefit Plan Administrators, Inc., 100 Terra Bella Drive, Youngstown, OH 44505 ("AMI"). These monies shall be credited to any individuals who: (1) were employees of Day-Mont, (2) were Annuity Plan participants during die period January 13, 2012 through August 5, 2016, and (3) had voluntary employee contributions withheld from their pay for contribution to the Annuity Plan during this period and such contributions were remitted to the Annuity Plan in an untimely manner or not remitted at all. AMI, as the Annuity Plan's court appointed independent fiduciary pursuant to ...

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