By MATT CHANDLER
Buffalo Law Journal

The U.S. Department of Labor obtained a default judgement against Buffalo attorney Thomas Barnes, who was indicted last year by a federal grand jury on charges that he embezzled $69,000 from the 401(k) plan of now-defunct Franbuilt Inc. of Lockport.

Barnes, former owner of the company, was ordered to pay $145,094 in restitution to the plan as part of the judgment. The charges, filed by the Labor Department in March 2009, charged Barnes, along with Franbuilt COO and CFO Michael Burns, of allowing the company to delay forwarding employee contributions to the company-sponsored retirement plan. That caused the plan to miss out on opportunities for financial growth.

Additionally, both men were charged with allowing the company to request more than $125,000 from the plan, money that was never forwarded to plan participants.

The default judgment against Barnes removes him as trustee of the plan, bars him from ever acting as a fiduciary to any other ERISA-covered plan, and appoints an independent fiduciary to manage the plan, distribute the plan's assets and then terminate the plan.

Attempts to reach Barnes' attorney, Mark Mahoney of Harrington & Mahoney, to comment on the judgment, as well as the status of the previously filed criminal charges against his client, were unsuccessful.