THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Employee Retirement Income Security Act of 1974. * * * An employer that forms an ERISA plan is a statutory fiduciary. See 29 U.S.C. § 1102(a). But, a party not named in the plan also becomes a fiduciary if (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. * * * 29 U.S.C. § 1002(21)(A). Such non-named fiduciaries are sometimes referred to as "functional" fiduciaries, and plan service providers, such as TLIC, can under the named circumstances become functional fiduciaries. See, e.g., IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1419-22 (9th Cir. 1997); Parker v. Bain, 68 F.3d 1131, 1139-40 (9th Cir. 1995). Santomenno v. Transamerica Life Ins. Co., 883 F. 3d 833 (9th Cir. 2018). * * * Whether named or functional, an ERISA fiduciary has a "duty of care with respect to management of existing [] funds, along with liability for a breach of that duty." Lockheed Corp., 517 U.S. at 887, 116 S.Ct. 1783. The fiduciary must "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and [] for the exclusive purpose of [] providing benefits to participants and their beneficiaries." 29 U.S.C § 1104(a)(1). The fiduciary also must conduct business on behalf of the plan "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man 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." 29 U.S.C. § 1104(a)(1)(B). Accordingly, the fiduciary cannot "deal with the assets of the plan in his own interest or for his own account" or "receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan." 29 U.S.C. § 1106(b)(1), (3). Santomenno v. Transamerica Life Ins. Co., ibid.
