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Release Date: February 25, 2008
Release Number: 08-253-BOS/BOS 2008-050
Contact Name: John M. Chavez
Phone Number: 617.565.2075

Exeter, New Hampshire, employer restores almost $33,000 to employee 401(k) plan to resolve U.S. Labor Department lawsuit

Boston – A.J. DesJardins Roofing Co. Inc. of Exeter, New Hampshire, and its owner have repaid $32,700.83 to the company’s 401(k) plan to resolve a lawsuit filed by the U.S. Department of Labor for failure to timely deposit employee contributions owed to the plan and file reports required under the Employee Retirement Income Security Act (ERISA).

The department’s suit, filed in the U.S. District Court for the District of New Hampshire, alleged that Albeo DesJardins Jr., owner and president of the company as well as trustee of the plan, and the company violated ERISA from September 30, 2005, through December 31, 2006. The defendants allegedly withheld from the wages of company employees contributions to their 401(k) plan accounts but never transferred that money to the plan.

“Such breaches of fiduciary duty will not be tolerated,” said James Benages, regional director for the department’s Employee Benefits Security Administration (EBSA) in Boston. “The law requires the assets of employee benefit plans to be used only for the benefit of plan participants and beneficiaries. Employers cannot withhold plan contributions from employee paychecks and then use that money for their own purposes, and this case demonstrates that we will not hesitate to enforce the law through litigation when necessary.”

This case was investigated by EBSA’s Boston Regional Office. According to the consent judgment, the defendants repaid to the plan $32,700.83 as a result of EBSA’s actions. The judgment orders them to properly distribute the plan’s assets to the plan’s participants and beneficiaries. In addition, DesJardins must report evidence of the distributions to the Labor Department, and both defendants are ordered to properly file and submit all required annual reports to the department. Thereafter, DesJardins is barred from serving in a fiduciary capacity to any ERISA-covered plan.

Employers and workers can reach the Boston Regional Office of EBSA at 617.565.9600 or toll-free at 866.444.3272 for help with problems relating to private sector retirement and health plans. In fiscal year 2007, EBSA achieved monetary results of $1.5 billion related to pension, 401(k), health and other benefits for millions of American workers and their families. Additional information can be found at www.dol.gov/ebsa.

Chao v. Albeo DesJardins Jr.
Civil Action Number: 08-CV-00012 (SM)

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