Like most Circuits who have addressed the issue, the Sixth Circuit recently affirmed that a person who controls plan assets acquires fiduciary responsibility irrespective of whether that control is discretionary. The defendant, PHP, “still controlled plan assets after the formal conclusion of its relationship with the Company and with the plan participants. Documents in the record demonstrate that PHP terminated its contract with the Company on May 17, 2001, by which time PHP had already removed from the plan account its administrative free of $5,793.40. PHP continued to receive COBRA payments from plan participants and controlled a small amount of funds previously received from the Company. On June 6, 2001, PHP sent a letter and two checks to the Company – one covering the amount of COBRA payments that it had received through May 23, and another ‘representing the funds remaining in the M. Fine & Sons, Inc. claim account.’ PHP of course knew by this time that the Company was in dire financial straits and was unable to fund the healthcare plan. Although PHP contends that its actions correspond to its obligations under clause 9.2 of its Agreement with the Company, these actions nonetheless refute the district court’s conclusion that PHP was an ERISA fiduciary only with respect to the processing of healthcare claims. The terms of the Agreement may have limited PHP’s discretion over the remaining funds, but did not affect its control over those funds. Because fiduciary status as to plan assets does not turn on the exercise of discretion or the existence of discretionary authority, the Agreement does not alter the fact that PHP acted as a signatory and unilaterally disposed of the remaining funds.” Briscoe v. Fine,444 F.3d 478 (6th Cir. 2006).
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