Free Motion to Expedite - District Court of California - California

Case 3:08-cv-04128-PJH

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Filed 08/29/2008

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STANLEY E. KEEN Regional Solicitor ROBERT M. LEWIS, JR. Counsel for ERISA DANE L. STEFFENSON GA Bar No. 677780 Trial Attorney Office of the Solicitor UNITED STATES DEPARTMENT OF LABOR 61 Forsyth St., Room 7T10 Atlanta, Georgia 30303 Telephone (404) 302-5435 Fax (404) 302-5438 Email: [email protected] Attorneys for Petitioner, United States Department of Labor UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) Case No. ) ) ) Petitioner, ) MOTION FOR EXPEDITED HEARING ) v. ) ) MATTHEW J. DONNELLY d/b/a/ The ) BUSINESS APPRAISAL INSTITUTE, ) ) Respondents. ) ) PETITIONER, Elaine L. Chao, Secretary of Labor, United States Department of Labor, hereby files this Motion for Expedited Hearing, to request an expedited hearing on her Petition to Enforce Administrative Subpoena Duces Tecum Issued by the Employee Benefits Security Administration ("EBSA"), which has been filed contemporaneously herewith. On March 13, 2008, EBSA issued an Administrative Subpoena Duces Tecum ("Subpoena") to Matt Donnelly and the Business ELAINE L. CHAO, Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR,

Secretary's Motion for Expedited Hearing

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Case 3:08-cv-04128-PJH

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Appraisal Institute ("BAI") to produce documents relevant to EBSA's Atlanta Regional Office's ongoing investigation of the Bruister & Associates Employee Stock Ownership Plan (the "ESOP") and Bruister & Associates Eligible Individual Account Plan (the "EIAP")(collectively, the "Plans"), including service providers and others related to the Plans, being conducted pursuant to ERISA § 504(a), 29 U.S.C. § 1134(a), to determine whether any person has violated or is about to violate any provision of Title I of ERISA or any regulation or order promulgated thereunder. Respondents have acknowledged receipt of the

Subpoena on March 24, 2008, but have refused to comply with the Subpoena. EBSA's on-site investigation of the Plans began on March 26, 2007. The investigation involves, among other things,

transactions in which the ESOP purchased employer securities beginning December 30, 2002. Section 413 of ERISA, 29 U.S.C. §

1113, requires that fiduciary breaches resulting in violations of ERISA be brought within six years of the breach. Thus, using

the most conservative analysis, EBSA may be required to complete its investigation, submit the case to the Department of Justice for approval, and then file the case in the next four months. As discussed in the Secretary's Petition and Memorandum in Support, the documents requested by the Subpoena are essential to EBSA completing its investigation. Respondents' utter

failure to comply with the Subpoena severely prejudices the Secretary's investigation and carry out her statutory obligations in this matter. Because of the identified time

Secretary's Motion for Expedited Hearing

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considerations, the Secretary respectfully requests an expedited hearing on the Petition to Enforce Administrative Subpoena Duces Tecum. As stated in the Certificate of Service, a copy of this

Motion along with the Secretary's Petition to Enforce Administrative Subpoena, Memorandum in Support, and proposed order have been served on Respondents' counsel, who stated he was authorized to accept service.

GREGORY F. JACOB Solicitor of Labor STANLEY E. KEEN Regional Solicitor ROBERT M. LEWIS, JR. Counsel for ERISA By: DANE L. STEFFENSON Trial Attorney SOL Case No. 08-60050 Attorneys for Petitioner U.S. Department of Labor

Secretary's Motion for Expedited Hearing

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