Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
-------------------------------------------------------------THOMAS E. PEREZ, SECRETARY OF LABOR, :
UNITED STATES DEPARTMENT OF LABOR, :
:
Plaintiff,
:
Civil Action
:
v.
:
No. ________
:
:
TARRY BRATTON, BC, INC., and
:
BC, INC., 401(k) PLAN,
:
:
Defendants.
:
------------------------------------------------------------COMPLAINT
Thomas E. Perez, Secretary of Labor, United States Department of Labor,
hereby alleges:
Jurisdiction and Venue
1.

This cause of action arises under the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. 1001, et seq., and is brought by the
Secretary under Sections 502(a)(2) and (5) of ERISA, 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 relief for breaches of fiduciary duty under ERISA Section 409,
29 U.S.C. 1109, and to obtain such other further relief as may be appropriate to
redress violations and enforce the provisions of Title I of ERISA.
2.

This Court has subject matter jurisdiction over this action pursuant to

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 2 of 8

Section 502(e)(1) of ERISA, 29 U.S.C. 1132(e)(1).

3.

The BC, Inc., 401(k) Plan (the Plan) is an employee benefit plan

within the meaning of Section 3(3) of ERISA, 29 U.S.C. 1002(3), and is

therefore subject to the coverage of the Act, pursuant to Section 4(a) of ERISA, 29
U.S.C. 1003(a). The Plan is administered in Brogue, Pennsylvania.
4.

Venue with respect to this action lies in the Middle District of

Pennsylvania, pursuant to Section 502(e)(2) of ERISA, 29 U.S.C. 1132(e)(2).

The Parties
5.

The Secretary, pursuant to Sections 502(a)(2) and (5) of ERISA, 29

U.S.C. 1132(a)(2) and (5), has the authority to enforce the provisions of Title I
of ERISA by, among other means, the filing and prosecution of claims against
fiduciaries and others who commit violations of ERISA.
6.

At all relevant times, BC, Inc. (the Company) has been the Plan

Sponsor and Plan Administrator of the Plan. At all relevant times, the Company
has exercised discretionary authority or discretionary control respecting
management of the Plan, exercised authority or control respecting management or
disposition of the Plans assets and had discretionary authority or discretionary
responsibility in the administration of the Plan. The Company, therefore, is a
fiduciary of the Plan within the meaning of Section 3(21) of ERISA, 29 U.S.C.

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 3 of 8

1002(21), and a party-in-interest as that term is defined in Sections 3(14) (A) and
(C) of ERISA, 29 U.S.C. 1002(14) (A) and (C).
7.

At all relevant times, Tarry Bratton (Bratton) has been the President

and sole owner of the Company, and a plan trustee. Bratton made decisions
regarding the Plan, including decisions as to the disposition of plan assets, and
performed functions of the Plan Administrator. At all relevant times, Bratton has
exercised discretionary authority or discretionary control respecting management
of the Plan, exercised authority or control respecting management or disposition of
the Plans assets and had discretionary authority or discretionary responsibility in
the administration of the Plan. Bratton, therefore, is a fiduciary of the Plan within
the meaning of Section 3(21) of ERISA, 29 U.S.C. 1002(21), and a party-ininterest as that term is defined in Sections 3(14) (A) and (H) of ERISA, 29 U.S.C.
1002(14) (A) and (H).
8.

The Plan is joined as a party defendant pursuant to Rule 19(a) of the

Federal Rules of Civil Procedure solely to assure that complete relief can be
granted.
General Allegations
9.

The Company established the Plan on or about October 1, 2004.

10.

The Plan required that the company make contributions equal to the

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 4 of 8

amount of fringe benefits paid under various prevailing-wage contracts, pursuant to

the Davis-Bacon Act, 40 U.S.C. 276a et seq.
11.

During the period from January 2009 to July 2012 Bratton and the

Company failed to remit mandatory employer contributions to the Plan and failed
to take any action to collect the contributions from the Company payable to the
Plan.
12.

As fiduciaries, Bratton and the Company were obligated to collect all

employer contributions but failed to make efforts to collect the contributions

beginning in January 2009 through the present.
13.

Bratton and the Company could have successfully collected

contributions at the time that they were due because the funds were available
through the prevailing wage and fringe benefit provisions of the Davis-Bacon Act,
supra., and the financial health of the Company at that time.
14.

Bratton and the Company participated knowingly in or knowingly

undertook to conceal each others acts or omissions that they knew to be violations
of ERISA.
15.

Bratton and the Company failed to comply with Section 404(a)(1) of

ERISA in the administration of their specific fiduciary responsibilities and each

enabled the other to commit breaches of ERISA.

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 5 of 8

16.

Bratton and the Company knew that the other had violated ERISA,

but did not make reasonable efforts under the circumstances to remedy the others
breaches.

Violations
17.

Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the

Secretary adopts by reference the averments and allegations of paragraphs 1-16

inclusive.
18.

By the actions and conduct described above, Defendants Bratton and

the Company, as fiduciaries of the Plan:

a.

failed to discharge their duties with respect to the Plan solely in

the interest of the participants and beneficiaries and for the
exclusive purpose of providing benefits to participants and their
beneficiaries and defraying reasonable expenses of
administering the Plan, in violation of Section 404(a)(1)(A) of
ERISA, 29 U.S.C. 1104(a)(1)(A);

b.

failed to discharge their duties with respect to the Plan solely in

the interest of the participants and beneficiaries and with the
care, skill, prudence, and diligence under the circumstances

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 6 of 8

then prevailing that a prudent person 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
Section 404(a)(1)(B) of ERISA, 29 U.S.C. 1104(a)(1)(B);
c.

failed to discharge their duties in accordance with the

documents and instruments governing the plan insofar as such
documents and instruments are consistent with the provisions of
Title I and IV of ERISA in violation of Section 404(a)(1)(D) of
ERISA, 29 U.S.C. 1104(a)(1)(D);

d.

dealt with assets of the Plan in their own interest or for their
own account, in violation of Section 406(b)(1) of ERISA, 29
U.S.C. 1106(b)(1).

e.

acted on both sides of a transaction in violation of Section

406(b)(2) of ERISA, 29 U.S.C. 1106(b)(2).

19.

By participating knowingly in the fiduciary breaches of the others,

knowing such acts or omissions to be breaches of fiduciary duty, Bratton and the
Company are each liable for the others breaches of fiduciary responsibility,
pursuant to Section 405(a)(1) of ERISA, 29 U.S.C. 1105(a)(1).
20.

By failing to comply with Section 404(a)(1) of ERISA in the

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 7 of 8

administration of their specific fiduciary responsibilities and thereby enabling the

others to commit breaches of ERISA, Bratton and the Company are liable for the
others breaches of fiduciary responsibility, pursuant to Section 405(a)(2) of
ERISA, 29 U.S.C. 1105(a)(2).
21.

By failing to make reasonable efforts under the circumstances to

remedy the others breaches of which they had knowledge, Bratton and the
Company, as fiduciaries of the Plan, are liable for each others fiduciary breaches,
pursuant to Section 405(a) (3) of ERISA, 29 U.S.C. 1105(a)(3).
Prayer for Relief
22.

WHEREFORE, the Secretary prays that this Court issue an order:

a. Ordering Bratton and the Company to restore to the Plan all losses,
including interest or lost opportunity costs, which were caused by
their fiduciary misconduct;
b. Ordering the defendants, their agents, employees, service
providers, banks, accountants, and attorneys to provide the
Secretary with all of the books, documents, and records relating to
the finances and administration of the Plan, and to make an
accounting to the Secretary of all contributions to the Plan and all
transfers, payments, or expenses incurred or paid in connection

Case 1:16-cv-00719-CCC Document 1 Filed 04/29/16 Page 8 of 8

with the Plan;

c. Awarding plaintiff, Secretary of Labor, the costs of this action; and
d. Awarding such other relief as is equitable and just.
Respectfully submitted,

Post Office Address:

M. Patricia Smith
Solicitor of Labor

Oscar L. Hampton III

Regional Solicitor
Office of the Solicitor
U. S. Department of Labor
Suite 630 East, The Curtis Center
170 South Independence Mall West
Philadelphia, PA 19106-3306
Telephone No. (215) 861-5122
Facsimile No. (215) 861-5162
E-mail: epstein.matthew.r@dol.gov

Oscar L. Hampton III

Regional Solicitor

/s/Matthew R. Epstein
Matthew R. Epstein
Attorney
U.S. DEPARTMENT OF LABOR
Attorneys for Plaintiff

Case 1:16-cv-00719-CCC Document 1-1 Filed 04/29/16 Page 1 of 1

CIVIL COVER SHEET

JS 44 (Rev. 11/15)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Thomas Perez, Secretary of Labor, U.S. Department of Labor

Tarry Bratton,
BC, Inc.,
BC, Inc., 401(k) Plan

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

York

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Matthew R. Epstein, Office of the Regional Solicitor, U.S. Department of

Labor
170 S. Independence Mall West, Suite 630 E, Phila. PA 19106

II. BASIS OF JURISDICTION (Place an X in One Box Only)

u 1

U.S. Government
Plaintiff

u 3

Federal Question
(U.S. Government Not a Party)

u 2

U.S. Government
Defendant

u 4

Diversity
(Indicate Citizenship of Parties in Item III)

Robert Chernicoff
Cunningham Chernicoff and Warshawsky
2320 North 2nd Street, Harrisburg, PA 17110

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
u 1

DEF
u 1

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
u 4
u 4
of Business In This State

Citizen of Another State

u 2

Incorporated and Principal Place

of Business In Another State

u 5

u 5

Citizen or Subject of a
Foreign Country

u 3

Foreign Nation

u 6

u 6

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
u
u
u
u
u
u
u

u
u
u
u
u

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

u
u
u
u
u
u
u
u
u
u

u
u
u
u
u
u

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

u
u
u
u
u
u
u

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
u 365 Personal Injury Product Liability
u 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
u 463 Alien Detainee
u 510 Motions to Vacate
Sentence
u 530 General
u 535 Death Penalty
Other:
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition
u 560 Civil Detainee Conditions of
Confinement

u 625 Drug Related Seizure

of Property 21 USC 881
u 690 Other

BANKRUPTCY
u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark

LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Management
Relations
u 740 Railway Labor Act
u 751 Family and Medical
Leave Act
u 790 Other Labor Litigation
u 791 Employee Retirement
Income Security Act

u
u
u
u
u

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS

u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRSThird Party
26 USC 7609

IMMIGRATION
u 462 Naturalization Application
u 465 Other Immigration
Actions

OTHER STATUTES
u 375 False Claims Act
u 376 Qui Tam (31 USC
3729(a))
u 400 State Reapportionment
u 410 Antitrust
u 430 Banks and Banking
u 450 Commerce
u 460 Deportation
u 470 Racketeer Influenced and
Corrupt Organizations
u 480 Consumer Credit
u 490 Cable/Sat TV
u 850 Securities/Commodities/
Exchange
u 890 Other Statutory Actions
u 891 Agricultural Acts
u 893 Environmental Matters
u 895 Freedom of Information
Act
u 896 Arbitration
u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an X in One Box Only)

u 1 Original
Proceeding

u 2 Removed from
State Court

u 3

Remanded from
Appellate Court

u 4 Reinstated or
Reopened

u 5 Transferred from
Another District
(specify)

u 6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1001

VI. CAUSE OF ACTION Brief description of cause:

Breaches of Fiduciary Duty, failure to make employer contributions to 401(k) plan

u CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:

u Yes
u No
JURY DEMAND:

DEMAND $

249,989.09

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/Matthew R. Epstein

04/29/2016
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE