US Labor Department files suit to recover losses to and obtain independent fiduciary for White Plains, NY, 401(k) plan

Date of Action: Nov. 13, 2013

Type of Action: Complaint

Name(s) of Defendants: Mark Pasdon, Oxygen Electronics LLC and the Oxygen Electronics LLC 401(k) Profit Sharing Plan  

Allegations: The Oxygen Electronics LLC 401(k) Profit Sharing Plan is an ERISA covered employee benefit plan established for the employees of Oxygen Electronics LLC in White Plains, N.Y.  Mark Pasdon, the company’s owner was the plan’s trustee and the company was the plan administrator.   

An investigation by the US Labor Department’s Employee Benefits Security Administration found that the defendants breached their fiduciary duties under ERISA. Specifically, from Jan. 16, 2009 through May 8, 2009 and July 30, 2010 through Dec. 31, 2011, defendants Oxygen and Pasdon withheld employees’ contributions from their wages but failed to deposit at least $23,501.60 of those contributions into the plan. From Dec. 28, 2007 through Dec. 31, 2008 and June 6, 2009 through July 16, 2010, the defendants failed to timely remit at least $2,795.10 in employee contributions into the plan.

Resolution: The Department is asking the court to require the defendants to restore all losses plus interest and/or lost opportunity earnings incurred by the plan as a result of their ERISA violations; remove defendant Pasdon as plan trustee and permanently enjoin him from serving as a fiduciary or service provider to any ERISA covered employee benefit plan; and appoint an independent fiduciary with authority oversee the plan, receive and distribute any restitution paid and, if necessary, terminate the plan.

Court: U.S. District Court for the Southern District of New York

Docket Number: 13 CV 8060

The Voluntary Fiduciary Correction Program (VFCP) encourages voluntary compliance by self-correcting violations of the law such as delinquent or non-remittance of employee contributions. The program also helps plan officials understand the law and gives immediate relief from payment of excise taxes under a class exemption. For more information, go to www.dol.gov/ebsa/newsroom/fs2006vfcp.html.

U.S. Department of Labor materials are accessible at www.dol.gov.  The information above is available in large print, Braille, audio tape or disc from the COAST office upon request by calling (202) 693-7828 or TTY (202) 693-7755.