COMPLAINT

MARK R. ABEL, Magistrate Judge.

Plaintiff, HILDAL L. SOLIS, Secretary of Labor, United States Department of Labor ("Secretary"), alleges:

JURISDICTION AND VENUE

1. This action arises under Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001, et seq., and is brought by the Secretary under ERISA §§ 502(a)(2) and (5), 29 U.S.C. §§ 1132(a)(2) and (5), to enjoin acts and practices which violate the provisions of Title I of ERISA, to obtain appropriate equitable relief for breaches of fiduciary duty under ERISA § 409, 29 U.S.C. § 1109, and to obtain such further equitable relief as may be appropriate to redress the violations and to enforce the provisions of Title I of ERISA.

2. This court has jurisdiction over this action pursuant to ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1).

3. The Clark Graphics Defined Benefit Plan (the "DB Plan") is an employee benefit plan within the meaning of ERISA § 3(3), 29 U.S.C. § 1002(3), which is subject to the provisions of Title I of ERISA pursuant to ERISA § 4(a), 29 U.S.C. § 1003(a). The DB Plan is named as a defendant in this action pursuant to Rule 19(a) of the Federal Rules of Civil Procedure solely to assure that complete relief can be granted.

4. The Clark Graphics Profit Sharing Plan (the "PS Plan") is an employee benefit plan within the meaning of ERISA § 3(3), 29 U.S.C. § 1002(3), which is subject to the provisions of Title I of ERISA pursuant to ERISA § 4(a), 29 U.S.C. § 1003(a). The PS Plan is named as a defendant in this action pursuant to Rule 19(a) of the Federal Rules of Civil Procedure solely to assure that complete relief can be granted.

5. Venue of this action lies in the Southern District of Ohio, pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2), because the DB Plan and PS Plan (collectively referred to as "the Plans") are administered in Columbus, Franklin County, Ohio, within this district.

THE DEFENDANTS

6. At all relevant times, defendant Clark Graphics, Inc. (Clark Graphics), an Ohio corporation, was the sponsor of the Plans, the administrator of the Plans pursuant to § 3(16)(A) of ERISA, 29 U.S.C. § 1002(16)(A), and a fiduciary of the Plans within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A).

7. At all relevant times, defendant Mary Clark, was the President and majority owner of Clark Graphics, a trustee of the Plans, and a fiduciary of the Plans within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A).

8. At all relevant times, defendant James Clark, was an owner of Clark Graphics, a trustee of the PS Plan, and a fiduciary of the PS Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A).

9. At all relevant times, defendant Stephen Clark was an owner of Clark Graphics, a trustee of the PS Plan, and a fiduciary of the PS Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A).

10. Pension Retirement Planning ("PRP") was a third party administrator which was incorporated in Illinois in 1988, but never renewed its corporate status in Illinois or Ohio. PRP provided third party administrative and recordkeeping services to as many as 51 ERISA-covered pension plans over the past 10 years. The company ceased operations in 2010.

11. In 1988 defendant Mary Clark retained PRP to serve as the Plans' third party administrator. PRP served in this capacity until January 2011.

12. PRP handled all aspects of plan administration for the Plans, including: maintaining plan records, calculating participant account balances, preparing Form 5500 filings and liquidating plan assets for distribution to participants.

13. As part of its services, PRP maintained a checking account titled Trust Account (henceforth referred to as "Trust Account") at Huntington Bank into which plan assets from all of its ERISA-plan clients were placed. The assets in this account were commingled.

14. During the period May 2000 through June 2009 the DB Plan and the PS Plan had assets transferred into the Trust Account either directly by the Plans' trustees or through the liquidation of the Plans' investment accounts.

15. At all relevant times, Marcia Dowdell, was the president and sole owner of PRP and she was the sole signatory on the company's Trust Account.

16. At all relevant times, PRP exercised the administrative and investment and disbursement authority granted to it by the Plans through defendant Marcia Dowdell.

17. At all relevant times, defendant Marcia Dowdell made investment decisions with respect to the assets the Plans transferred to the Trust Account and determined which of the Plans' investments should be liquidated to make disbursements from the Plans.

18. At all relevant times, defendant Marcia Dowdell exercised authority and control over the investment and disbursement of funds from the Plans' investment accounts and the assets of the Plans held in the Trust Account.

19. As a result of her exercise of control and authority over the management of the Plans and the management and disposition of the Plans' assets as set forth in paragraphs 10 through 18 above, defendant Marcia Dowdell was a fiduciary of the Plans within the meaning of ERISA § 3(21)(A)(i), 29 U.S.C. § 1002(21)(A)(i).

FACTUAL ALLEGATIONS

20. Between May 30, 2000 and August 31, 2009, in excess of $1.1 million was transferred into the Trust Account maintained by PRP on behalf of the PS Plan.

21. Between May 30, 2000 and August 31, 2009, in excess of $1 million was transferred into the Trust Account maintained by PRP on behalf of the DB Plan.

22. In addition to the money transferred into the Trust Account by the Plans, PRP's other clients transferred in excess of $4 million in plan assets into the Trust Account maintained by PRP. All of the assets transferred into the Trust Account were commingled.

23. PRP and Marcia Dowdell have been unable to fully account for the plan assets placed into the commingled Trust Account.

24. Out of the $1.1 million the PS Plan placed into the Trust Account during the relevant period, only $796, 681.41 was transferred out of the Trust Account by Marcia Dowdell on behalf of the PS Plan for investment, to the IRS for withholding taxes or to participants as distributions. Marcia Dowdell could not account for the remaining $326,147.22 in PS Plan assets that had been transferred to the Trust Account.

25. Out of the $1 million the DB Plan placed into the Trust Account during the relevant period, only $970,658.89 was transferred out of the Trust Account by Marcia Dowdell on behalf of the DB Plan for investment, to the IRS for withholding taxes or to participants as distributions. Marcia Dowdell could not account for the remaining $110,174.85 in DB Plan assets that had been transferred to the Trust Account.

26. During the relevant period, PRP was responsible pursuant to its agreement with the Plans to allocate investment gains and losses for each of the Plans' investments so that the Plans' financial records stated the current value of the plan assets.

27. PRP and Marcia Dowdell failed to accurately account for investments on the Plans financial records for several years, including forms PRP prepared for filing with the United States Department of Labor.

28. During the relevant time period, PRP was responsible pursuant to its agreement with the PS Plan to allocate investment gains and losses amount to the PS Plan's participants' individual account balances. PRP was also responsible for calculating the participant's individual account balances in the PS Plan and the vested defined benefits owed to the participants in the DB Plan.

29. During the relevant period, PRP and Marcia Dowdell made individual distribution calculations for the participants in the Plans, however, no records exist to determine how these calculations were made. On of the participants in the DB Plan received inaccurate retirement benefits as a result of Marcia Dowdell's failure to have the benefit properly calculated.

30. During the relevant time period, PRP was responsible pursuant to its agreement with the Plans to liquidate plan investments in order to make plan distributions. On two occasions, Marcia Dowdell liquidated investments from the DB Plan's investment accounts to fund requests from the PS Plan's participants for loans. On at least one occasion, Marcia Dowdell liquidated an investment from the PS Plan to pay for a participant distribution owed by the DB Plan.

31. Marcia Dowdell used plan assets contained in the Trust Account to, among other things, pay business expenses and herself.

32. Throughout the time period that PRP and Marcia Dowdell provided services to the DB Plan, defendant Mary Clark relied upon Marcia Dowdell to administer and manage all aspects of the DB Plan.

33. During the relevant period, Mary Clark had no knowledge of where the DB Plan's investments were held. Defendant Mary Clark took no steps to monitor PRP or Marcia Dowdell's actions, to review or reconcile account statements or Form 5500 filings, require participant statements or review participant distribution calculations.

34. Throughout the time period that PRP and Marcia Dowdell provided services to the PS Plan, defendants Mark Clark, Stephen Clark and James Clark relied upon Marcia Dowdell to administer and manage all aspects of the PS Plan.

35. During the relevant period, Mary Clark, Stephen Clark and James Clark had no knowledge of where the PS Plan's investments were held. They took no steps to monitor PRP or Marcia Dowdell's actions, to review or reconcile account statements or Form 5500 filings, require participant statements or review participant distribution calculations.

ERISA VIOLATIONS

36. By the conduct described in paragraphs 10 through 31 above, defendant Marcia Dowdell:

a. failed to act solely in the interest of the participants and beneficiaries of the DB Plan and PS Plan and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of the Plans' administration, in violation of ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A); and

b. failed to discharge her duties with respect to the DB Plan and PS Plan solely in the interests of plan participants and beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims in violation of ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B).

37. By the conduct described in 32 through 35 above, defendant Mary Clark:

a. failed to act solely in the interest of the participants and beneficiaries of the DB Plan and PS Plan and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of the Plans' administration, in violation of ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A); and

b. failed to discharge her duties with respect to the DB Plan and PS Plan solely in the interests of plan participants and beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims in violation of ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B).

38. By the conduct described in 34 and 35 above, defendants Stephen Clark and James Clark:

a. failed to act solely in the interest of the participants and beneficiaries of the PS Plan and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of the PS Plan's administration, in violation of ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A); and

b. failed to discharge their duties with respect to the PS Plan solely in the interests of plan participants and beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims in violation of ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B).

39. Defendant Mary Clark is liable, pursuant to ERISA § 405(a)(2), 29 U.S.C. § 1105(a)(2), for the breaches of fiduciary responsibility by a cofiduciary, as described in paragraph 36 above, because by failing to comply with ERISA § 404(a)(1) in the administration of her specific responsibilities which gave rise to her status as a fiduciary of the DB Plan, she enabled such other fiduciary to commit a breach.

40. Defendants Mary Clark, Stephen Clark, James Clark are liable, pursuant to ERISA § 405(a)(2), 29 U.S.C. § 1105(a)(2), for the breaches of fiduciary responsibility by a cofiduciary, as described in paragraph 36 above, because by failing to comply with ERISA § 404(a)(1) in the administration of their specific responsibilities which gave rise to their status as a fiduciary of the PS Plan, they enabled such other fiduciary to commit a breach.

PRAYER FOR RELIEF

WHEREFORE, the Secretary prays for judgment:

A. Permanently enjoining all defendants from violating the provisions of Title I of ERISA, including participating in the violation of others;

B. Ordering defendant Marcia Dowdell, Mary Clark, Stephen Clark and James Clark to restore all losses incurred by the DB Plan and PS Plan as a result of the violations of ERISA committed by them or for which they are liable, with appropriate interest;

C. Permanently enjoining defendants Marcia Dowdell, Mary Clark, Stephen Clark and James Clark from serving as a fiduciary or service provider to any ERISA-covered employee benefit plan;

D. Awarding the Secretary the costs of this action; and

E. Ordering such further relief as is appropriate and just.