Attachment 6 EDNY Hodge v Cuomo 21-cv-01421 Complaint

Case 1:21-cv-01421-NGG Case MDL No. 3011 Document 1 25-6 Filed 03/17/21 Filed 06/24/21 Page 44 Page of 154 44 of PageID 154 #: 300
326. Evidence shows that the diversion and conversion of Plan assets in this Complaint, cover
the period from 2010 to the present, although the Employers were sponsoring the ruse
of a Plan as far back as 2002, the records have had to be uncovered through forensic
investigations because the Employers never filed the required Internal Revenue Code
5500 Returns until some of the Employers filed partial 5500 Returns began to be filed at
the end of 2016, but even then failing to report the full extent of Plan assets that were
accumulated in Fund bank accounts. However, not reported are the same funds
identified in this Complaint as diverted and converted away from their intended purpose
of providing benefits to the employee Class, but instead were ensnared in transactions
prohibited under ERISA, transactions not identified in the IRC 5500 Returns.
327. The Plan as organized by the Owner Operator Defendants failed to provide any
mechanisms for the Employers to manage the operation of their Plan under the Program.
The Employers failed to monitor their Plan, failed to protect their Plan assets required
for the Program and failed to supervise their Plan to make certain their Plan and Program
functioned within the law as designed. Their Plan as organized failed to provide any
mechanisms to monitor, supervise and audit to ascertain that the funds were properly
being administered from the time Employers paid funds to provide employee benefits
until the funds were spent for Plan and Program purposes; the Employers were required
to, but did not, establish, supervise and maintain the operation of their Plan and Program
pursuant to authorization of ERISA and in accordance with the Program approved by the
State. Intervention Pg. 8 Par 4.
Precedent, Authority and Jurisdiction
328. This Complaint is based on the record in US SDNY Case 73-cv-04279, the case file
archived as potentially of national significance in St. Louis, Missouri, the case file
returned from St. Louis to the National archives in New York City, returned upon the
request on behalf of Albert Percy, to and certified by the National Archives to the United
States District Court for the Southern District of New York, which record was then filed
by ECF as the Docket on Appeal to the United States Second Circuit Court of Appeals.
329. One of the Causes of Action here seeks to enforce the United States District Court for the
Southern District of New York Order in the Case of Percy v Brennan Case 73-cv-04279
(the “Percy Action” or “Case 73-cv-04279” or “Percy v. Brennan”) reported at (384 F
Supp 800 [S.D.N.Y. 1974]), the Memorandum/Order, rendered by Judge Lasker on
November 8, 1974 in favor of Percy Class, and the Order of Judge Edelstein of May 4,
1977, page 740 of Appendix 1 at Docket #99 in 17-2273 and Document #6, Attachment 4
in EDNY Case No. 21-cv-001366,accepting Governor’s Executive Order 45 in settlement
of Case 73-cv-04279.
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