United States of America v. Tomasino, No. 2:2016cv02036 - Document 3 (D. Nev. 2016)

Court Description: ORDER Granting 2 Stipulated/Consent Judgment. CONSENT JUDGMENT is hereby entered in favor of United States of America against Alan Tomasino in the amount of $104,148.50. Signed by Judge Jennifer A. Dorsey on 8/29/16. (Copies have been distributed pursuant to the NEF - MMM)
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United States of America v. Tomasino Doc. 3 Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 1 of 3 : 6-cv- 6 ORDER and CONSENT JUDGMENT Dockets.Justia.com Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 2 of 3 August 29, 2016 Case 2:16-cv-02036-JAD-GWF Document 2 Filed 08/26/16 Page 3 of 3 Exhibit A SETTLEMENT AGREEMENT This scnlerncnt Ag.cmcnt (Agrrcmcnt) is cnter€d into among the uniicd ststcs of America, acting through thc unitcd starcs Dcpartment ofJugice and on behalf ofthe Social s€curity Administrarion (collcctivcly thc *unitcd Srars-) and Alan Tomasino (hercafter collectivcly rcfened to as "thc Parties"), through thcir authorizcd reprcscntatives. RECITALS A. Pasquale Tomasino was a bcncficiary of the Sociar sccurity Administration ("SSA") whcn he died on March 24, 1994. At rhe time of his dcath, his entitlemcnt to bcncfis ceased. Alan Tomasino, Pasquale Tomasino's son, was a joint holdcr on the rccount into which thc SSA dcposited bcnefit chccks. Because it was unaware of pasqualc Tomasino's d,cath, bctween I 991 and 201 I , ssA continucd to deposit checks for thc benefit of pasquale Tomasino into the joint bank account. Fmm 1994 to 201 I . Alan Tomasino knowingly withdrew and rcaincd thc fedcral funds paid for the bencfit of pasquale Tomasino, o which Alan Tomasino knew hc was not entitlcd. B. Act 3l The Unitcd Statcs contcnds that Alan Tomasino is liablc undcr thc Falsc Claims U.S.C. 3370 arising fiom his witMnwal and retcntion of SSA bcnefits funds his fathcr, Pasquale Tomasino, bur poid after pasqualc Tomasino's death from through Dccember 201 I . April inrcnd for 1994 This conduct is refened to below as thc covcrcd Conducr. To avoid the delay. unccrteinty, inconvenience, and expcnse of prouacted litigation of the above claims, and in considcration ofthc mutual promiscs Agrccmcnt, thc Parties agrcc and covenant as follows: and obligations of this scttlement TERMS AND CONDITIONS l. Alan Tomasino shall poy to the Unitcd States forty thousand dollan (t40,0ffi) (Settlement Amount) by ch€ck or electlonic funds transfer pursuEnt to writtcn instructions to be provided by the oflice of the united stat€s Anomey for the District of Nevada no latcr than 5 days after the Effective Date of this Agreement. 2. Alan Tomasino will pay an additional Fifty-Two Thousand and Fifty-Four Dollars and Fifty Cens ($52,054.50) (Penahy Amoune, plus interest accruing at .53% pcr annum, by permiaing SSA to withhold s3fi) per month from his monthly sSA retirement benefit poyments until such withholding fully satisfies the Penalty Amount plus accru€d interest. 3. Collectively the Senlement Amount, the Penalty Amount, 8nd intercst r€ceived by thc United Statcs shall be rcfened to as the Settlement Proceds. 4. Anached as hereto and incorporatcd as port ofthis Agreement is a Complsint 8nd consent Judgnent (Exhibit A). with respect to the complaint and cons€nt Judgment, the parries aSree: The parties shall execute the Complaint and Conscnt Judgmenl at the time this Agrccmcnt is executed. b. Within will filc the Complaint 15 days of the Effective Date of this Agreement, the Unitcd States and Consent Judgment in the United States District Court for the District of Ncvada. 5. Subject to the exceptions in Paragraph 5 (conceming excludei claims) bclow, and conditioned upon Alan Tomasino's full payment ofthe Settlement Amount and cons€nt to ongoing withholding of$3fl) per month to rcpay the Penalty Amount, and subject to paragraph I l. below (conccming bankruptcy proceedings commenced within 2 9l &ys of the Elfcctive Date of this Agrcemcnt or any psym€nr or withholding mo& undcr rhis Agr€cmcnt), rhc unit d ststrs tcmporarily agrces not to cnforcc thc conscnt Judgnrcnt or othcrwisc prnuc against Alan Tomasino any civil or administrativc monaary claim thc unitcd Sorcs has for thc covcred conduct undcr the False claims Acr, Rcmcdies Acr,3l u.s.c. 3l u.s.c. gg 3229-3233; thc pmgram $s 3t0l-3812; or thc common law rhcorics of Fnrd civil brerh of contract, psymcnt by mistake. unjust auichmcnr" and fraud. once Alrn Tomasino has fully and timely paid the rcrnaining Scnlcmcnt Procccds, the Unitcd Surcs agrces that Alan Tomasino is rclcased from the Conscnt Judgmcnt and any civil or administralive morctrry claim rhe Unitcd Statcs h8s for the covcrcd conduct undcr thc Falsc claims Acr, Fraud civil Remcdies Acr,3l U.S.c. gg 3t0l-3fl2; 3l u.s.c. g$ 3229-3733; thc pmgram or the common law rheories of brcach of contract, payment by mistakc, unjust cnrichment, and fraud. 6. Notwithstanding thc rerears givan in paragrrph 4 of this Agrccmcnt, or any othcr term of this Agrecment, thc following claims of thc Unitcd Sutcs rre specifically rcscrved and are not relcascd: a. b. Any criminal tiability; c. Exccp as cxplicitly stated in this Agrecmcnq any administrativc liability, Any liability arising undcr Tirle 25, U.S. Code (lntcrnal Rcvenuc Codc); including thc suspension and dcbarmcflt rights of any lbdcral agcncy; d. Any liEbility ro the Unitcd Sratcs (or is agcncics) for any conduct other than the Coverad Conduct; e. f. Any liability bascd upon obligations crcetcd by this Agrcerncn!; Any liability of indivaduals other than Alan Tomasino; 7. Alan Tomasino has providcd swom finsncial disclosure statemens (Financial Statements) to the United States and rhc Unitcd States has rclied on the accuracy and completeness of thosc Financial statemcnts in rcaching this Agr€erncnt. Alan Tomasino warants that the Financial slrtements arE complete, accurate, and curtent. Ifthe United States learns of asset(s) in which Alan Tomasino had an intcrcst at the time of this Agreemant that were not disclosed in the Financial Statements, or if the United States leams of any misrcprcsentation by Alan Tomasino on, or in connection with, the Financial Statements, and if such nondisclosurc or misrcpresentation changes the estimated net worth set forth in the Financial statements by $5,000 or morc, the united States may at its option: (a) rcscind this Agreement and file suit rcinstate its suitl based on thc covered conduct, or (b) la [oR the Agreement stand and collect the full Senlement Proceeds plus one hundrcd percenr (10fflo) of the value of the net worth of Alan Tomasino previously undisclosed. Alan Tomasino agrGes noi to contest any collection action undertaken by the United sr.tes puBuant to this pmvision, and immediately to pay the United States all rcasonable coss incurrrd in such an acrion, including attorney's fees and expenses. 8. ln the event that the United States, pursuant to paragraph 6 (conceming disclosure of assets), above, opts to rcscind this Agrcemenl Alan Tomasino agrees not to plead, argue, or otherwise raise any defenses undcr thc theories of statutc of limitations, laches, estoppcl, or similar theories, to any civil or administrative claims that (a) arc filed by the United Statcs within 60 calendar &ys of writtan notification to Alan Tomasino that this Agreement has been rescinded, and (b) relate to the covered conduct, except to th€ extcnt thes€ dcfcnscs wer€ available on March 25,2016. 9. Alan Tomasino waives and shall not assert any defenses Alan Tomasino may have to any criminal prosecution or administrativc action relating to thc Covercd Conduct that { may be bosd in wholc or in pan on I contcntion that, undcr thc Doublc Jeopardy clausc in the Fifth Amcndmcnt of thc constitution, or un&r the Excessivc Fincs clausc in thc Eighth Amcrrdmcnt of the constitution, this Agrecmcnt bars a rvncdy sought in such criminal prosccution or adminisrrativc action. Nothing in this pengrrph or any othcr provision of this Agreerncnt constitutcs an agrecmcnt by thc Unitcd Sancs conccming thc chaoctcrization of rhc senlcmcnt Prccccds for purposcs of the lntcrnal Revcnuc laws, Title 26 of rhe Unitcd Sutes Codc. 10. Alan Tomasino fully and finally rclcascs thc Unitcd Stucs, irs agencies, ofticcrs. agents, cmployccs, and scrvants, fmm any claims (including auorney's fccs, costs, and cxpenscs ofevery kind and howcver dcnominaad) that AIan Tomasino has arscrtd could havc asscncd. or rnay rssert in the future ageinst thc Unitcd stites, its agcocics, ofliccrs, agcntg employccs, and servants, related to thc coverrd conduct and the Unitcd Surcs' investigation and Prosccution thcrrof. I l. Alan Tomasino warrants that lrc has revicwcd his financial situarion and that he cur€ntly is solvcnr within the mcaning of I I u.s.c. gg 547(b[3) and 548(aXtxBXiixl), and shall rcmain solvcnt following poymcnt to the Unitcd Statcs of thc Scttlcrncnt Amount. Furthcr, thc Parties wanant that, in evaluating whahcr to exccutc this Agreemcnt, they (a) havc intcnded that the mutual promiscs, covenants, and obligarions set forih constitute exchange for ncw value givcn to Alan Tomasino, within rhc mcaning I contemporatrGow of I I U.S.c. g 5a7(c)( I ). and (b) conclude that these mm.rel pmmiscs, covenants, and obligations do, in fact, consitute such I contcmporaneous exchange. Furthcr, thc partics warrant rhat thc murual promises, covenanB, and obligations sct forth hcrein are intcnded to and do, in fact, represcnt a reasonably equivalcnt exchange ofvaluc that is not intcnded to hindcr, delay. or defraud any antity to which Alan Tomasino was or bccamc indchcd to on or aftcr the date of this transfer, within the meaning of I I U.S.C. 12. g 5a8(aXl ). lfwithin 9l days ofthe Effectivc Date ofthis Agreement or ofany payment or withholding made under this Agreement, Alan Tomasino commcnces, or a third party commences, any case. procceding or other action undcr any law rclating to bankruptcy, insolvency, reorganization, or rclief of dcbtors (a) sccking to have any ordcr for relicf of Alan Tomasino's debs, or seeking to adjrdicate Alan Tomasino as banknrpt or insolvent; or (b) seeking appointment of a receiver, trustce, custodian, or othcr similar official for Alan Tomasino or for all or any substantial pan of Alan Tomasino's asscts, Alan Tomasino agrces as follows: a. Alan Tomasino's obligations under this Agreement may not be avoidcd pusuant lo I I U.S.C. $ 547, and Alan Tomasino shall not argue or othcrwise take thc position in any such casc, goceeding, or action rhat: (i) Alan Tomasim's obligarions under this Agreement may be avoidcd under I I U.S.C. $ 547; (ii) Alan Tomasino was insolvent at the timc rhis Agrccment was entercd into, or became insolvena as a rcsult of the payment madc to the United states; or (iii) thc mutual promises, covenants, and obligations set fonh in this Ageement do not constitute a contemporancous exchange for new value givcn to Alan Tomasino. b. reason. lf Alan Tomasino's obligations undcr this Agtsement 8re avoidcd for any including but not limited to, through the excrcise ofa trustec's avoidance powes under the Bankruprcy Code, thc United States, at its sole option, mEy r€scind the releases in this Agrecment and bring any civil and/or adminisrative claim, action, or proceeding against Alan Tomasino for the claims that would otherwise bc covercd by thc rcleases providcd in paragraph 4 above, including any civil or administrative monctary claim the united states has for the Covered Conduct under the False Claims Acr. 3l 6 U.S.C. gg 3729-3733: the program Fnud Civil Remedies Act,3l u.s.c, $$ 3801-3812; or thc common law theorics of brcach of contract, psyment by mistakc, unjust anrichment, and fraud. Alan Tomasino agrccs that (i) any such claims, actions, or procecdings brought by the unitcd Statcs are not subject to an "automatic stay" pursuant to I I u.s.c. $ 362(a) as a result of the action, case, or procccdings dcscribcd in the first clausc of this Paragraph, and Alan Tomasino strall not argue or otherwise contend that the Unitcd States' claims, actionq or procccdings arc subject to an automatic stay; (ii) Alan Tomasino shall not plead, argue, or othcrwisc raise any &fcnscs undcr the thcorics of statutc of limitations, lachcs, estoppcl, or similar theorics, to any such civil or administrative claims, actions, or proceeding that are brought by thc United Statcs within 60 calendar days of wriccn notification to Alan Tomasino that tlre releases have bcen rescindcd pursuant to this paragraph, except to the extent such defcnses were availablc on March 25,2016; and has a valid claim againsr Alan Tomasino in the amount (iii) rhe Unitcd sotes of t43 I ,g25.50 plus pcnaltics, and the United Statcs may pursuc is claim in tlrc casc, action, or proceeding refercnced in the first clause of this Paragraph, as well as in any other case, action, or procecding. c. Alan Tomasino acknowlcdgcs that thc agrecments in this paragraph are prcvided in exchange for valuablc considerarion providcd in this Agreement. 13. 14. This Agreement is intended Each Party shall bcar o is own be for thc bcrrcfit of thc parties only. legal and other costs incuned in conncction with this matter, including the prcporsfion snd pcrformance of this Agrccment. 15. Each parry and sigratory to this Agrecmcnt r€prrs€nts that it frecly and voluntadly enters in to this Agreemcnt without any degrce of duress or compulsion. 16. This Agreement is governed by the laws of the Unitcd Stares. Thc excrusive jurisdiction and venue for any disputc relating to this Agr€ement is the United States District 7 Court for the District of Nevada. For purposcs of construing this Agrremenl this Agraement shall be dccmcd to havc bccn dnfted by all Partics to this Agreerncnt and shall not, thercforc, bc construd againsl any Pany for that reason in any su@ucnt dispule. 17. This Agrecmcnt constitutcs thc complctc agrccrnent betwecn thc Parries. This Agreement may not be amended except by wrifien consent ofthe Parries. 18. The undcrsigred counscl r€prtsent and warrant that thcy are fully authorizcd to execute this Agreement on bchalf 19. ofthe pcrsons and cntitics indicatcd below. This Agreement may be exccuted in counterparts, each ofwhich constitutes an original and all of which constitutc one and the same Agreernent. 20. This Agreement is binding on Alan Tomasino's successols, transfet€es, heirs, and assigns. 21. All panics consent to thc Unitcd States' disclosurc of this Agtemenl and information about this Agrccmert, to the public. 22. This Agrccment is effcctive on thc date of signature ofthe last signatory to the Agreement (Effective Datc of this Agreemeflt). Facsimiles of signatures shall constitute acceptable, binding signaturcs for purposcs ofthis Agrecrnent. THE UNITED STATES OF AMERICA oereo, *lz uitr, :- k ffx'lffff*, BY: District of Nevada TROY K. FLAKE Assistant United States Attomey 8 - DEFENDANT oorrr, S f t//L BY: ALAN TOMASINO t^rrr, 414fft By: llr,r,il/ DAVID OLSHAN Nevada Legal Aid Counscl for Alan Tomasino 9