For Immediate Release: March 24, 2011
Contact: Leni Fortson or Joanna Hawkins
Release Number: 11-373-PHI (ebsa 11-020)
US Labor Department sues Virginia Beach, Va., construction company
to forward employee contributions to 401(k) plan
VIRGINIA BEACH, Va. − The U.S.
Department of Labor has sued McIntyre Construction Inc. of Virginia
Beach and its vice president, Robert Berkopec, for failing to remit
employee contributions to the company’s 401(k) plan in violation of
the Employee Retirement Income Security Act.
The lawsuit alleges that the defendants failed to
remit employee contributions to the plan from 2006 through 2009, and
used the money to fund corporate operations and pay other creditors.
“This case demonstrates a clear breach of fiduciary
duty on the part of the company and its officer,” said Mabel Capolongo,
regional director of the Labor Department’s Employee Benefits Security
Administration in Philadelphia. “When plan fiduciaries fail to act in
the best interest of plan participants, they will be held accountable.”
Filed in the U.S. District Court for the Eastern
District of Virginia, the suit seeks to restore to the plan all losses,
including interest, lost opportunity costs and the cost of an
independent fiduciary. The suit also seeks to permanently bar the
company and Berkopec from serving in a fiduciary capacity to any
employee benefit plan covered by ERISA.
Berkopec filed for individual bankruptcy protection
under Chapter 7 on Oct. 26, 2010. Under a separate legal action, the
department filed an adversary complaint in the U.S. Bankruptcy Court for
the Eastern District of Virginia to prevent him from discharging any
debt he owes to the plan.
McIntyre Construction Inc. is a residential
This case is part of EBSA’s national enforcement
initiative to safeguard workers’ contributions to 401(k) and health
benefit plans. The department’s legal action resulted from an
investigation by EBSA’s Washington District Office in Silver Spring,
Md., and the cases were filed by the department’s regional solicitor
in Philadelphia. Employers and workers can contact that office at
202-693-8700 or toll-free at 866-444-3272 for help with problems
relating to private sector pension and health plans. Additional
information can be found at http://www.dol.gov/ebsa.
Solis v. Berkopec
Civil Action Number: 1:11-cv-273
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