Courts in the Second Circuit Reaffirm the Test for Fiduciary Status as a Bi-Furcated Test; Status Can Be Predicated on Either the Granting or the Exercise of Discretionary Authority.

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Both the Second Circuit and a District Court sitting in the Northern District of New York recently rejected the argument that parties who were vested with discretionary authority, but did not actually exercise such authority, were not ERISA fiduciaries. The defendants attempted to argue that the Second Circuit’s decision in Blatt v. Marshall rendered formal designations of trusteeship irrelevant. Blatt merely stated that a party who exercised discretion could be a fiduciary, even if he or she were not formally appointed as a trustee; but that does not relieve a party who has been formally appointed Plan Administrator from fiduciary responsibility. The statute, the courts reaffirm, “creates a bifurcated test: Subsection one imposes fiduciary status on those who exercise discretionary authority, regardless of whether such authority was ever granted. Subsection three describes those individuals who have actually been granted discretionary authority, regardless of whether such authority is ever exercised.” Chao v. Docster, No. 3:01-cv-827 (N.D.N.Y. March 31, 2006); citing, Bouboulis v. Transp. Workers Union of America, 442 F.3d 55 (2d Cir. 2006).

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