- 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