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EBSA News Brief

Office of Public Affairs Chicago IL
For Immediate Release: October 22, 2013
Contact: Scott Allen or Rhonda Burke
Phone: 312-353-6976
Email: allen.scott@dol.gov or burke.rhonda@dol.gov
Release Number: EBSA-CHI-13-37

Fiduciary to restore more than $12,000 to Spencer & Associates LLC Profit Sharing and 401(k) Plan in Springfield, Ohio

Date of Action: Oct. 22, 2013

Type of Action: Consent Order and Judgment

Names of Defendants: Bruce E. Spencer, Tannile Elizabeth Ortiz and Paul Olzeski, as fiduciaries to the Spencer & Associates, LLC Profit Sharing and 401(k) Plan.

Allegations: Spencer, Ortiz and Olzeski in their capacity as fiduciaries of the Spencer and Associates LLC employees 401(k) plan failed to remit employee contributions totaling $8,330.40 to the plan and untimely remitted other participant contributions. These contributions were used for business expenses of Spencer and Associates, LLC. Furthermore, Spencer closed the plan's account, transferred all of the assets to his personal bank account, and did not distribute account balances to participants.

Resolution: Following an investigation by the Cincinnati Regional Office into the plan, and the filing of a complaint by the Cleveland Associate Regional Solicitor of Labor in the United States District Court Southern District of Ohio Western Division, a consent order was entered in which Spencer agreed to distribute $12,837.21 to the plan participants for undistributed plan assets and unremitted participant contributions, and for lost opportunity costs related to the contributions and undistributed plan assets.

Ortiz has waived entitlement to amounts owed to her for her unremitted participant contributions and agreed to allocate his previously undistributed Plan assets to the remaining participants. Spencer will make payment directly to the nine participants affected by the violations of ERISA. Further, Spencer and Ortiz are permanently enjoined from serving or acting as fiduciaries or service providers to employee benefit plans subject to ERISA.

Court: United States District Court Southern District of Ohio, Western Division (Dayton)

Docket Number: 3:12-cv-283

Employers and workers can reach the Employee Benefits Security Administration toll-free at 866-444-3272 for help with problems related to private sector retirement and health plans. Additional information can be found at www.dol.gov/ebsa.

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.