The Secretary of Labor filed suit against an agent who accepted hundreds of thousands of dollars from twenty-nine ERISA-covered employee benefit plans for the purchase of insurance for the plans. “Under his brokerage scheme, Day sent invoices to the plans for various insurance policies, the plans paid the bills by sending checks to Day, and Day deposited the checks into his corporate account. Instead of using the plans’ checks to purchase insurance, however, Day kept the money and provided the plans with fake insurance policies.” The Court rejected the defendant’s argument that he was not a fiduciary because he did not exercise any discretion over the disposition of plan assets. “Because the disposition clause contains no ‘discretion’ requirement, it is irrelevant whether Day exercised discretion in his thievery. ‘Any authority or control’ is enough.” Chao v. Day, 436 F.3d 234 (D.C. Cir. 2006).
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