Perez v. American Therapeutic Corp. Inc. involving abandoned plan in Miami, Fla.

Date of Action: March 5, 2014

Type of Action: Complaint

Name(s) of Defendant(s):  American Therapeutic Corp. Inc., Marianella Valera, and American Therapeutic Corp. Inc. 401(k) Profit Sharing Plan

Allegations: American Therapeutic Corp. Inc. filed dissolution papers with the Florida Department of State, Division of Corp. on March 26, 2007. The last contributions remitted to the plan were on Dec. 8, 2010.  On Sept. 19, 2011, defendant Marianella Valera was sentenced to 35 years in prison for 21 felony counts of Medicare fraud and is due for release on April 18, 2046. As a result of her conviction, Valera is not permitted to serve as a fiduciary, administrator, officer, trustee, custodian, agent, employee, representative, or have control over the assets of any employee benefit plan subject to the Employee Retirement Income Security Act during or for the period of 13 years after her conviction, or after the end of her imprisonment, whichever is later. The defendants failed to administer the plan and to ensure that the funds in the plan were appropriately distributed to participants after American Therapeutic Corp. ceased operations in December 2010. Since the company ceased operations, defendants have failed to administer the plan and have effectively abandoned it. As a result, participants are unable to receive information about their funds and cannot gain access to their funds. The plan currently has approximately 17 participants and assets of approximately $83,657.94, which are held by Nationwide Financial.

Resolution: The department is asking the court to permanently enjoin defendants from serving as a fiduciary, administrator, officer, trustee, custodian, agent, employee, representative, or having control over the assets of any employee benefit plan subject to ERISA; enjoin defendants from engaging in any further action in violation of Title I of ERISA; appoint an independent fiduciary at defendants’ expense to arrange for the wind down of the plan and the distribution of its assets; offset the individual plan account of Valera against the amount of losses, including the independent fiduciary expenses, resulting from fiduciary breaches if the losses are not otherwise restored to the plan by the defendants; and award plaintiff court costs and fees.

Court: United States District Court for the Southern District of Florida

Docket Number: 1:14-cv-20835-UU

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.