NASHVILLE, Tenn. – The U.S. Department of Labor is suing Empact Medical Services Inc., and its officers Angela Cotter and Elizabeth Gail DeBusk to restore $10,582 in assets to the company’s 401(k) plan that allegedly were mishandled by the defendants in violation of the Employee Retirement Income Security Act.
An investigation by the department’s Employee Benefits Security Administration found that between January 2006 and August 2008 the defendants withheld $10,582 in employee contributions to the plan, but failed to segregate the contributions from the company assets as soon as they could do so and failed to forward them to the plan in a timely manner, resulting in lost opportunity costs for the plan participants. Additionally, Cotter and DeBusk comingled the contributions with the company’s general assets.
“Employees contributing to a 401(k) plan expect that their funds will be available for retirement. These defendants betrayed that trust, and the Labor Department is committed to seeing that the plan participants’ funds are fully restored,” said Isabel Colon, director of EBSA’s regional office in Atlanta.
The suit seeks to require the defendants to restore all losses to the plans, including lost interest or lost opportunity costs, and to offset the defendants’ 401(k) plan accounts by the amount of losses if the losses are not otherwise restored by the defendants. In addition, the suit asks that the defendants be permanently barred from serving as fiduciaries of any employee benefit plan subject to ERISA and for a fiduciary successor to be appointed at the defendant’s expense.
The company was located in LaVergne, Tenn., and provided ambulance services before it filed bankruptcy in March 2009. The plan has currently 15 participants.
The case is being litigated by the department’s Regional Office of the Solicitor in Atlanta.
Workers in participating 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 www.askebsa.dol.gov or calling 866-444-EBSA (3272).
Harris v. Angela Cotter, Elizabeth Gail DeBusk and Empact Medical Services Inc.
Civil Action Number: 3:13-cv-0339
U.S. Department of Labor news 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.