US Labor Department obtains court order naming independent fiduciary for employee benefits plan of defunct Long Island, NY, employer

NEW YORK – Following legal action by the U.S. Department of Labor, the U.S. District Court for the Eastern District of New York has appointed M. Larry Lefoldt as independent fiduciary to manage the 401(k) plan of the defunct Windswept Environmental Group Inc. of Holtsville. The department filed suit in December 2012, asking the court to appoint an independent fiduciary to administer the plan and distribute its assets to the plan’s participants and beneficiaries.

“The department took this legal action so the plan’s participants can access the funds that rightly belong to them,” said Jonathan Kay, regional director for the department’s Employee Benefits Security Administration in New York. “Workers should know that they can turn to the department for assistance when their retirement plan has been abandoned, and they have not received the benefits to which they are entitled. We are here to help them.”

The 401(k) plan was established in May 2001. The plan’s administrator, trustee and sole fiduciary, Michael O’Reily, passed away in November 2008, and Windswept Environmental ceased operations in February 2009.  As a result, no one was administering the 401(k) plan, and certain former employees of the company did not receive a distribution of their benefits.

Under the Employee Retirement Income Security Act, plans must be managed by fiduciaries. In the absence of a plan fiduciary, participants and beneficiaries may not be able to obtain plan information, make investments or collect retirement benefits. In this case, the plan has 12 participants and more than $129,000 in assets.

This suit resulted from an investigation conducted by EBSA’s New York Regional Office. The case was litigated by the department’s Regional Office of the Solicitor in New York.

Employers and workers can contact EBSA’s New York office at (212) 607-8600 or toll-free at 866-444-3272 for help with any problems relating to private sector pension and health plans. Additional information can be found at www.dol.gov/ebsa.

Harris v. Windswept Environmental 401(k) Plan, doing business as Trade-Winds Environmental Restoration Inc.

Civil action number: 2:12-cv-06179-JS-WDW

U.S. Department of Labor news 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.