Shedco, Inc. - Page 25

                                       - 25 -                                         

          because the Shedds, who were the sole shareholders of petitioner,           
          were also its only employees.  Petitioner asserts that the                  
          failure to diversify is irrelevant to a determination of prudence           
          with respect to plans not subject to title I of ERISA.                      
               Petitioner maintains further that under ERISA, even when               
          title I applies to a pension plan, a fiduciary cannot breach the            
          prudent investor rule by failing to diversify where the asserted            
          failure to diversify is because of a beneficiary-directed                   
          investment.  Accordingly, petitioner contends, a failure to                 
          diversify is not a violation of the prudent investor rule where,            
          as in the instant case, title I does not apply and the sole                 
          participants of the plan, in effect, make investment decisions in           
          their capacity as the ultimate beneficiaries, and not as                    
          fiduciaries of the plan.                                                    
               Citing H. Conf. Rept. 93-1280, at 302 (1974), 1974-3 C.B.              
          415, 463, infra pp. 28-29, respondent contends that the ERISA               
          section 404(a) fiduciary requirements for investing trust funds             
          under the prudent investor rule--i.e., that (1) a fiduciary must            
          discharge his duties with respect to a plan solely in the                   
          interest of the participants and their beneficiaries, and (2) he            


               10(...continued)                                                       
                    (1) An individual and his or her spouse shall not be              
               deemed to be employees with respect to a trade or business,            
               whether incorporated or unincorporated, which is wholly                
               owned by the individual or by the individual and his spouse,           
               and * * *                                                              




Page:  Previous  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Next

Last modified: May 25, 2011