Private Citizen Can File Complaint Over 401(k) Funds

May 25, 2004 (—A plan participant can file a criminal complaint against her employers for allegedly withholding money from paychecks designated for a retirement plan but never investing it, the Wisconsin state Supreme Court ruled today, upholding a circuit court decision, the Associated Press reported.

Using a rarely-used state law, the complaint alleges felony theft against Ralph and Jackie Kalal.   The Kalals argued that Madison attorney Michele Tjader, as a private citizen, should not be allowed to circumvent a prosecutor’s decision and file the complaint alone.   Tjader asked to be allowed to file her own criminal complaint because she had written to Dane County District Attorney Brian Blanchard asking him to pursue her allegations, but he had suggested she approach a law enforcement agency to investigate or file a civil lawsuit instead.

The Supreme Court upheld Portage County Circuit Judge John Finn’s decision, which rejected the Kalals argument that there was no evidence that the district attorney had refused the case, affirming that Blachard’s response was a refusal under the law, and the court held that Finn’s ruling, made while presiding over the case in Dane County, was consistent with law.

The complaint alleges that Tjader and co-worker Sarah Schmeiser enrolled in a 401(k) plan through their employer, Kalal and Associates law office, and that from January 1999 to July 2001, $12,350 was withheld from Tjader’s paychecks, and $5,282 from Schmeiser’s and contributed to the plan, which was to be invested through Firstar Bank, according to the AP.