Court declares $27k owed to printing services employee benefit plans non-dischargeable in bankruptcy

On May 23, 2016, the United States Bankruptcy Court for the Eastern District of Michigan, Southern Division, entered an order removing William Robin Rose, a fiduciary to the Rose Printing Services Inc. Employees 401(k) Retirement Savings Plan, Rose Printing Services Inc. Employees Health Plan and Rose Printing Services Inc. Employees Dental, along with the company, from any position held as a fiduciary and permanently enjoined him from serving as a fiduciary or service provider to any ERISA-covered employee benefit plan in the future. The case is In re: William Robin Rose, No. 15-03109-dof.

According to the U.S. Department of Labor’s Employee Benefit Security Administration’s (EBSA’s ) Cincinnati office, Rose, in his capacity as a plan fiduciary, failed to remit participant contributions to the 401(k) plan, health plan and dental plan and allowed these funds to remain part of the company’s general assets and thereby used them to pay for business expenses. The company operated in Southfield and Fowlerville, Michigan.

Additionally, the EBSA alleged that Rose and the company failed to remit premiums, which included participant contributions, to both the health and dental plans resulting in the cancellation of both the participants’ health and dental insurance. The EBSA also said that the fiduciaries failed to timely remit participant contributions to the 401(k) Plan and to maintain a fidelity bond for the 401(k) plan.

Bankruptcy filing. On March 12, 2015, Rose filed a Chapter 11 bankruptcy case, which was converted to a Chapter 7 bankruptcy case on Oct. 1, 2015. On July 20, 2015, the Secretary of Labor filed an adversary complaint in the bankruptcy case to have the debts owed to the plans declared non-dischargeable. Rose failed to respond to the Secretary’s discovery requests. On March 23, 2016, the Secretary filed a motion to compel Rose to answer the discovery requests. On April 7, 2016, the Court granted the motion to compel discovery, but Rose failed to comply with the court’s order.

On May 23, 2016, the Court granted the Secretary’s motion for default judgment against Rose. The amounts owed were previously determined by the U.S. District Court for the Eastern District of Michigan in Case No. 2:14-cv-14495.

The court appointed an independent fiduciary who terminated the 401(k) Plan, distributed its assets to the participants and beneficiaries in March 2016, and concluded any 401(k) plan-related matters. Investigators from the EBSA determined Rose owes a total of $27,709.81, including lost opportunity costs, to the three plans.

SOURCE: EBSA press release, May 24, 2016.

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