"In ... Liemkuehler v. American United Life Insurance Company, the [DOL] filed an amicus brief [arguing that] an insurer offering investment options under a group annuity contract [should be held] responsible as a fiduciary on the ground that the contract gave the insurer management control over plan assets.... [T]he insurer merely invested plan monies as directed by participants.... In other words, in the right circumstances, a service provider could exercise the requisite authority over plan assets and become a fiduciary by doing nothing. In the view of the Seventh Circuit Court of Appeals, this '"non-exercise" theory of exercise' was not only unworkable, but unsupported by precedent."

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