Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Acosta v. Cogswell

United States District Court, D. Montana, Great Falls Division

March 13, 2018

R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
EDWARD B. COGSWELL, JR., EDWARD B, COGSWELL, III, NATIONAL ASSOCIATION OF PREVAILING WAGE EMPLOYERS, COGSWELL BENEFITS, INC., NORTHWEST ADMINISTRATORS, INC., AMERICAN CONTRACTORS TRUST AND PLAN, Defendants.

          Tyler P. McLeod (CO Bar #39894) United States Department of Labor Office of the Solicitor Attorneys for Plaintiff

          Holland & Hart LLP Attorney for Defendant Cogswell Benefits, Inc.

          CONSENT JUDGMENT AND ORDER

         This action was brought by Plaintiff, Secretary of Labor, United States Department of Labor, against Defendants Edward B. Cogswell, Jr., Edward B. Cogswell, III (together as the "Cogswells"), National Association of Prevailing Wage Employers ("NAPWE"), Cogswell Benefits, Inc. ("CBI"), Northwest Administrators, Inc. ("Northwest"), and American Contractors Trust and Plan ("Plan") (collectively "Defendants") pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"). Defendants admit to the jurisdiction of this Court over them and over the subject matter of this action, and have agreed to the entry of judgment without contest.

         It is therefore, upon motion and for good cause shown, ORDERED ADJUDGED AND DECREED that:

         1. Edward B. Cogswell, Jr. ("Cogswell, Jr."), at all times herein mentioned, was a named Trustee, Committee Member of the Plan, the President of the NAP WE Board of Directors, and an officer and shareholder of Northwest and CBI. He was a fiduciary to the Plan within the meaning of ERISA Section 3(21), 29 U.S.C. § 1002(21) in that he had or exercised discretionary authority and responsibility with respect to Plan administration and Plan management and exercised actual control over Plan assets.

         2. Edward B. Cogswell, III ("Cogswell, III"), at all times herein mentioned, was a named Trustee, Committee Member of the Plan, the Vice President of the NAP WE Board of Directors, and an officer and shareholder of Northwest and CBI. He was a fiduciary to the Plan within the meaning of ERISA Section 3(21), 29 U.S.C. § 1002(21) in that he had or exercised discretionary authority and responsibility with respect to Plan administration and Plan management and exercised actual control over Plan assets.

         3. NAP WE is an association of employers within the meaning of ERISA Section 3(5), 29 U.S.C. § lOO2(3)(5) and the Plan Sponsor of the Plan. NAPWE's Board of Directors includes Cogswell, Jr. as president and Cogswell, III as vice president. The Board manages and controls NAPWE. NAPWE, in turn, appoints and monitors the Committee, which is the named fiduciary. As such, NAPWE at all relevant times has been a fiduciary and party in interest pursuant to ERISA Sections 3(21) and 3(14), 29 U.S.C. §§ 1002(21) and 1002(14) in that it had or exercised discretionary authority and responsibility over Plan administration and management.

         4. CBI provided marketing services for the Plan, received payment for its services from the Plan, and was wholly-owned by the Cogswells. As such, CBI at all relevant times has been a party in interest pursuant to ERISA Section 3(14), 29 U.S.C. § 1002 (14).

         5. The Plan is an employee benefit plan within the meaning of ERISA Section 3(3), 29 U.S.C. § 1002(3) in that it provides supplemental unemployment benefits to employees of participating employers. The Plan was established by NAP WE, an association of employers engaged in commerce or in industries or activities affecting commerce, and is subject to Title I, including Title I, Part 4 of ERISA, pursuant to ERISA Sections 4(a)(1) and 401(a), 29 U.S.C. §§ 1003(a)(1) and 1101(a).

         6. The Secretary alleges that the Cogswells breached their fiduciary duties by causing the Plan to pay improper fees and commissions to CBI and Northwest, failing to prudently administer the Plan's benefit payments, and failing to collect and review Employer certified payroll reports as required by the Plan documents in violation of ERISA §§ 404(a)(1)(A), (B), and (D), 29 U.S.C. § 1104(a)(1)(A) (B), and (D).

         7. The Secretary alleges that the Cogswells engaged in prohibited transactions by causing the Plan to use CBI and Northwest to provide administrative services and authorizing and paying improper fees in violation of ERISA §§ 406(a)(1)(C), 29 U.S.C. § 1106(a)(1)(C) and 406(a)(1)(D), 29 U.S.C. § 1106(a)(1)(D).

         8. The Secretary alleges that the Cogswells engaged in prohibited self-dealing by using CBI and authorizing the Plan's fee payments remitted to CBI in violation of ERISA §§ 406(b)(1), 29 U.S.C. § 1106(b)(1) and 406(b)(2), 29 U.S.C. § 1106(b)(2).

         9. The Secretary alleges that as a result of their fiduciary breaches, prohibited transactions, and prohibited self-dealing, the Cogswells caused the Plan to suffer financial losses for which they are jointly and severally liable pursuant to ERISA section 409(a), 29 U.S.C. § 1109(a).

         10. To redress the ERISA violations and aforementioned Plan losses alleged by the Secretary and to avoid the time, expense, and risk of prolonging this action, Defendants have completed and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.