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Employee Benefits Security Administration

News Release

EBSA News Release: January 29, 2013
Contact Name: Ted Fitzgerald or Andre J. Bowser
Phone Number: 617-565-2075 or 617-565-2074
Email: or

Release Number: 12-2494-NEW/BOS 2013-013

US Department of Labor takes action to free up 401(k) assets for former
workers at defunct Long Island, NY, company

NEW YORK – The U.S. Department of Labor has filed suit in the U.S. District Court for the Eastern District of New York seeking the appointment of an independent fiduciary to manage the 401(k) plan of defunct Windswept Environmental Group Inc. of Holtsville, N.Y.

The 401(k) plan was established in May 2001. The plan’s administrator, trustee and sole fiduciary, Michael O’Reilly, passed away in November 2008, and Windswept Environmental ceased operations in February 2009.  As a result, former employees of the company have been unable to access their 401(k) accounts.
Under the Employee Retirement Income Security Act, plans must be managed by fiduciaries. In the absence of a plan fiduciary, participants and beneficiaries cannot obtain plan information, make investments or collect retirement benefits. In this case, the plan has 12 participants and more than $129,000 in assets. The department’s lawsuit asks the court to appoint an independent fiduciary to administer the plan and distribute the assets to its participants and beneficiaries.

“The department has taken this legal action so the plan’s participants can access the funds that rightly belong to them,” said Jonathan Kay, regional director for the department’s Employee Benefits Security Administration in New York. “Workers should know that they can turn to the department for assistance when they find themselves locked out of access to their retirement plan. We are here to help them.”

This suit resulted from an investigation conducted by EBSA’s New York Regional Office. The case is being litigated by the department’s regional solicitor in New York.

Workers participating in employer-sponsored health and retirement benefit plans who feel that they have been denied a benefit inappropriately or have questions about benefits laws can contact an EBSA benefits adviser by visiting or calling 866-444-EBSA (3272).

Solis v. Windswept Environmental 401(k) Plan
Civil Action Number: 2:12-cv-06179-JS-WDW

U.S. Department of Labor news materials are accessible at 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.