US Department of Labor secures appointment of independent fiduciary to free 401(k) assets of defunct Syracuse, NY, construction company

NEW YORK — The U.S. Department of Labor has obtained a default judgment from the U.S. District Court for the Northern District of New York that orders the appointment of M. Larry Lefoldt, Lefoldt & Co. PA, as independent fiduciary to the 401(k) plan of the defunct David J. Hardy Construction Co. of Syracuse. With his appointment, Lefoldt can administer and distribute assets to plan participants and beneficiaries.

The 401(k) plan was established in July 1992. The Hardy Construction Co. closed in June 2008, and all assets were sold at bank auction in August 2008. Hardy, the plan's sole trustee, filed for bankruptcy in January 2010. Since 2008, no individual has come forth to assume fiduciary responsibility for the plan or to distribute the plan's assets to participants. The department filed suit against the plan in May 2013 and sought the appointment of an independent fiduciary.

"The abandonment of a 401(k) plan by its fiduciaries strands the plan's participants, leaving them unable to access their funds. This appointment starts the process for participants to claim assets that are theirs," said Susan Hensley, regional director of the department's Employee Benefits Security Administration in Boston. "Workers can turn to the department for assistance when they are unable to access their retirement plan."

Under the Employee Retirement Income Security Act, plans must be managed by fiduciaries and their assets held in trust by trustees. Lacking a plan fiduciary and trustee, participants and beneficiaries cannot obtain plan information, make investments or collect retirement benefits. The Hardy Construction Co. 401(k) plan has 19 participants and more than $270,000 in assets.

The case resulted from an investigation conducted by EBSA's Boston Regional Office. The department's Regional Office of the Solicitor in New York litigated the case.

Workers participating in employer-sponsored health and retirement benefit plans, who feel that they have been denied a benefit inappropriately or have questions about benefits laws, can visit http://www.askebsa.dol.gov or call an EBSA benefits adviser at 866-444-EBSA (3272).

EBSA protects the retirement, health and other workplace-related benefits of America's workers, retirees and their families. The agency oversees approximately 684,000 active private sector retirement plans, 2.4 million health plans and other plans that provide benefits to more than 141 million Americans. Collectively, these plans hold more than $7.6 trillion in assets. For more information, visit http://www.dol.gov/ebsa.

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Civil Action Number: 5:13-CV-536 [FJS/DEP], Perez v. David J. Hardy Construction Co. Inc. 401(k) Plan