US Labor Department sues Virginia Beach, Va., construction company for failing to forward employee contributions to 401(k) plan

VIRGINIA BEACH, Va. − The U.S. Department of Labor has sued McIntyre Construction Inc. of Virginia Beach and its vice president, Robert Berkopec, for failing to remit employee contributions to the company’s 401(k) plan in violation of the Employee Retirement Income Security Act.

The lawsuit alleges that the defendants failed to remit employee contributions to the plan from 2006 through 2009, and used the money to fund corporate operations and pay other creditors.

“This case demonstrates a clear breach of fiduciary duty on the part of the company and its officer,” said Mabel Capolongo, regional director of the Labor Department’s Employee Benefits Security Administration in Philadelphia. “When plan fiduciaries fail to act in the best interest of plan participants, they will be held accountable.”

Filed in the U.S. District Court for the Eastern District of Virginia, the suit seeks to restore to the plan all losses, including interest, lost opportunity costs and the cost of an independent fiduciary. The suit also seeks to permanently bar the company and Berkopec from serving in a fiduciary capacity to any employee benefit plan covered by ERISA.

Berkopec filed for individual bankruptcy protection under Chapter 7 on Oct. 26, 2010. Under a separate legal action, the department filed an adversary complaint in the U.S. Bankruptcy Court for the Eastern District of Virginia to prevent him from discharging any debt he owes to the plan.

McIntyre Construction Inc. is a residential construction company.

This case is part of EBSA’s national enforcement initiative to safeguard workers’ contributions to 401(k) and health benefit plans. The department’s legal action resulted from an investigation by EBSA’s Washington District Office in Silver Spring, Md., and the cases were filed by the department’s regional solicitor in Philadelphia. Employers and workers can contact that office at 202-693-8700 or toll-free at 866-444-3272 for help with problems relating to private sector pension and health plans. Additional information can be found at http://www.dol.gov/ebsa.

Solis v. Berkopec
Civil Action Number: 1:11-cv-273

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