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Employee Benefits Security Administration
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EBSA News Brief

Office of Public Affairs Chicago IL
For Immediate Release: February 20, 2014
Contact: Scott Allen or Rhonda Burke
Phone: (312) 353-6976 or (312) 353-4807
Email: allen.scott@dol.gov or burke.rhonda@dol.gov
Release Number: EBSA-CHI-14-9

US Department of Labor files suit to restore losses to
employee benefit plan of The Anesthesia & Pain Center of Akron, Ohio

Date of Action: Feb. 19, 2014

Type of Action: Complaint

Names of Defendant: The Anesthesia & Pain Center of Akron Inc., The Anesthesia & Pain Center of Akron Inc. 401(k) and Profit Sharing Plan, Frank Kousaie

Allegations: The Anesthesia & Pain Center of Akron Inc. was the plan sponsor and plan administrator of The Anesthesia & Pain Center of Akron Inc. 401(k) and Profit Sharing Plan. Frank Kousaie was sole shareholder of the company. From Feb. 28, 2007, to at least Nov. 16, 2011, Kousaie and the company withheld money from the paychecks of employees as contributions to the plan, but failed to segregate and remit all contributions to the employee benefit plan. The contributions were commingled with the general assets of the company and used for general operating expenses. Furthermore, the company and Kousaie failed to maintain a fidelity bond to protect plan assets and to maintain accurate records of employer contributions allegedly made by the company in violation of the Employee Retirement Income Security Act.

Kousaie’s debt to the plan, including lost opportunity cost, is estimated to be $12,793. As of Dec. 31, 2009, the plan held over $150,000.00 in assets.

Resolution: The complaint seeks an order requiring the defendants to restore to the plan all losses, including lost opportunity costs, resulting from fiduciary breaches; permanently enjoining them from serving as fiduciaries to any ERISA-covered plan; appointing an independent fiduciary to distribute the plan’s assets and terminate the plan. The suit also seeks to require the plan to set off from Kousaie’s individual account the amount of losses resulting from his fiduciary breaches and to disgorge any profits received as a result of the prohibited transactions in which they engaged.

The department has also filed a complaint against Kousaie to prevent his liability to the plan from being discharged under a bankruptcy petition he filed with the U.S. Bankruptcy Court, Northern District of Ohio, on Oct. 18, 2013, Case No. 13-53034-mss.

Court: U.S. District Court for the Northern District of Ohio, Akron, Ohio

Docket Number: 5:14-cv-366

Employers and workers can reach EBSA’s toll-free at 866-444-3272 for help with problems relating 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.