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Employee Benefits Security Administration
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EBSA News Brief

U.S. Department of Labor
Office of Public Affairs
Chicago, Ill.
Release Number: EBSA-CHI-12-6

For Immediate Release: February 5, 2013
Contact: Scott Allen or Rhonda Burke
Phone: 312-353-6976 or 312-353-4807
E-mail: allen.scott@dol.gov or burke.rhonda@dol.gov

Judge orders fiduciaries, company to restore losses to
Herbís Carpet & Tile SIMPLE IRA Plan in Fremont, Mich.

Date of Action: Feb. 4, 2013

Type of Action: Default judgment

Names of Defendants: Philip Oakes, Herb’s Carpet & Tile, Inc., and the Herb’s Carpet & Tile Savings Incentive Match Plan for Employees Individual Retirement Account Plan in Fremont, Newaygo County, Mich.

Allegations: Herb’s Carpet & Tile, Inc., is the sponsor of the Herb’s Carpet & Tile SIMPLE IRA Plan which provides retirement benefits.  At all relevant times, defendants Herb’s Carpet & Tile, Inc., and Philip Oakes were fiduciaries and parties in interest to the plan.

From at least Jan. 4, 2008, to the present, defendants Oakes and the Herb’s Carpet & Tile Inc. withheld money from the paychecks of employees as elective salary deferrals for remittance to the plan but did not segregate these employee contributions from the company’s general assets as soon as it reasonably could be done.  Additionally, the defendants did not remit all of these employee contributions to the plan; rather, defendants Oakes and the company used these plan assets for the benefit of themselves and not for the benefit of the plan’s participants and beneficiaries. 

Resolution: The judgment requires Oakes and Herb’s Carpet & Tile to repay a total of $6,939.10 due four participants in the plan, which includes $6,121.94  in unremitted employee contributions as well as $817.16 in interest. It also enjoins the defendants from serving as fiduciaries for any employee benefit plan subject to the Employment Benefit Security Act in the future.

Court: United States District Court for the Western District of Michigan, Grand Rapids, Mich.

Docket Number: 1:12-cv-00372

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.