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Be a Functional Fiduciary Without Doing Anything: Seventh Circuit Rejects DOL's Theory (PDF)
The Wagner Law Group, via 401(k) Advisor Link to more items from this source
July 1, 2013
"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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