Skip to page content
Employee Benefits Security Administration

News Release

Boston MA Office of Public Affairs
For Immediate Release: May 22, 2013
Contact: Ted Fitzgerald or Andre J. Bowser
Phone: 617-565-2075 or 617-565-2074
Email: or
Release Number: 13-962-NEW/BOS 2013-069

US Department of Labor acts to free 401(k) assets for former workers of
defunct Syracuse, NY, construction company

NEW YORK – The U.S. Department of Labor has filed suit in the U.S. District Court for the Northern District of New York seeking the appointment of an independent fiduciary to manage the 401(k) plan of the defunct David J. Hardy Construction Co. of Syracuse.

The 401(k) plan was established in July 1992. The company closed its doors in June 2008, and all its assets were sold at bank auction in August 2008. David Hardy, the plan’s sole trustee, filed for bankruptcy in January 2010. Since 2008, no individual has come forth to assume fiduciary responsibility for the plan or to distribute the plan’s assets to its participants.

Under the Employee Retirement Income Security Act, plans must be managed by fiduciaries and their assets held in trust by trustees. In the absence of a plan fiduciary and trustee, participants and beneficiaries cannot obtain plan information, make investments or collect retirement benefits.

In this case, the David J. Hardy Construction 401(k) plan has 19 participants and more than $270,000 in assets. The department’s lawsuit asks the court to appoint an independent fiduciary and trustee to administer the plan and distribute its assets to plan participants and beneficiaries.

“When a 401(k) plan is abandoned by its fiduciaries, the plan’s participants are deserted as well, unable to access the funds that rightly belong to them,” said Susan Hensley, regional director for the department’s Employee Benefits Security Administration in Boston. “We are here to help these workers. We want them to know that they can turn to the department for assistance when they find themselves locked out of access to their retirement plan.”

This suit resulted from an investigation conducted by EBSA’s Boston 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).

Harris v. David J. Hardy Construction Co. Inc. 401(k) Plan
Civil Action Number: 5:13-CV-536 [FJS/DEP]

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.