Under the investment advice prong of ERISA, a “fiduciary,” is anyone who “renders in- vestment 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.” 29 U.S.C. § 1002(21)(A)(ii). Department of Labor regulations provide that “[a] person shall be deemed to be rendering ‘investment advice’ to an employee benefit plan” if: (i) Such person renders advice to the plan as to the value of securities or other prop- erty, or makes recommendation as to the advisability of investing in, purchasing, or selling securities or other property; and Case 1:10-cv-00333-JMS-TAB Document 136 Filed 10/11/11 Page 33 of 43 PageID #: 2329 28 (ii) Such person either directly or indirectly (e.g., through or together with any affili- ate)— (A) Has discretionary authority or control, whether or not pursuant to agreement, arrangement or understanding, with respect to purchasing or selling securities or other property for the plan; or (B) Renders any advice described in paragraph (c)(1)(i) of this section on a regu- lar basis to the plan pursuant to a mutual agreement, arrangement or understand- ing, written or otherwise, between such person and the plan or a fiduciary wi

A line of business, as opposed to a corporation, is not a person. See 29 U.S.C. § 1002(9) (defining “person”). Case 1:12-cv-02548-JGK Document 30 Filed 07/17/12 Page 27 of 28 -22- Dated: July 17, 2012 New York, New York Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP By: /s Melissa D. Hill Melissa D. Hill 101 Park Avenue New York, NY 10178-0060 Tel. 212.

Although ERISA does not explicitly define the term “plan assets,” the language of the statute itself and the court decisions interpreting that statute indicate that the term encompasses only those assets in which a plan has a direct or beneficial ownership interest. See ERISA § 3(21), 29 U.S.C. § 1002(21) (“A person is a fiduciary . . . to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or . . . 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. . .”) (emphasis added). The courts have consistently recognized that assets do not become “plan assets” merely because a plan has a disputed claim to them or because the manner in which the assets are handled might arguably affect the plan in some way.

.” Id. ¶33; see 29 U.S.C. §1002(16)(B), §1002(21)(A). In annual reports filed with the Department of Labor (Form 5500), Insperity states that the Plan is a “single-employer plan.” AC ¶¶10, 80; Doc. 41-7 at 2.

This is not surprising: FMTC does not occupy any of the defined roles that are charged by statute and regulation with the obligation to make disclosures to participants. Instead, responsibility for such disclosures is placed squarely in the hands of the plan “administrator” as that term is used in ERISA § 3(16), 29 U.S.C. § 1002(16), whom the Complaint alleges to be the Benefits Committee and the Plan Manager, and not FMTC. Compl.

In enacting ERISA, Congress specifically referred to the Adviser’s Act when it created an exception to the requirement that plan trustees have exclusive authority and control over plan assets. 29 U.S.C. §§ 1002(38)(B), 1103(a)(2). Yet, it did not reference the Adviser’s Act when it defined a fiduciary as someone who renders investment advice for a fee.

’” Id. at *6 (quoting 29 U.S.C. § 1002(33)(A)); St. Peter’s, 2014 WL 1284854, at *6; CHI, 2014 WL 3408690, at *8. Defendants’ ignore these textual arguments and misconstrue Plaintiffs’ position as being based only on legislative history.

¶¶ 266-280, a fee which must, by its very title, entail compensation for investment management. Investment Managers are fiduciaries under ERISA 3(21)(A)(ii), 29 U.S.C. § 1002(21)(A)(ii). Therefore TLIC is a fiduciary for the precise conduct that is challenged in this case.

For that, the Fidelity Defendants rely on 29 U.S.C. §1101(b)(1).6 But Defendants cite no authority (and Plaintiffs are unaware of such authority) for construing §1101(b)(1) to preclude a claim for restitution of fees gained on participant investments in mutual funds. Instead, one district court has held, relying upon ERISA’s legislative history, that the purpose of §1101(b)(1), in conjunction with 29 U.S.C. §1002(21)(B), is only to prevent a mutual fund adviser from becoming a fiduciary merely by dint of plan participants investing in the mutual fund. IATSE Local 33 §401(k) Plan Bd.

¶¶ 54-55; Facts ¶¶ 33, 38). Under ERISA, although transactions between a parent and a subsidiary are properly described as transactions between parties-in-interest, see Section 3(14)(G), 29 U.S.C. § 1002(14)(G) (50% ownership establishes party-in-interest relationship), such transactions are not examples of fiduciary self-dealing because the entities are legally separate. See M&R Inv.