Edward Clasby and C.T. Garrahan Insurance Agency, Inc. - Page 16




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          1974 (ERISA), Pub. L. 93-406, sec. 3, 88 Stat. 833, 29 U.S.C.               
          section 1109(a), against self-dealing by fiduciaries.  The                  
          complaint against Walckner for breach of fiduciary duties was               
          dismissed because it contained no factual allegations that he was           
          a fiduciary.  The District Court made no finding as to Walckner's           
          status as a fiduciary; rather, it noted that the complaint                  
          alleged no facts to support the assertion that Walckner possessed           
          or exercised fiduciary powers.  Id. at 1488.  The complaints                
          against petitioner and the Garrahan Agency for breach of                    
          fiduciary duty were not dismissed.  The District Court held that            
          FUH and the FUH plan could sue petitioner and the Garrahan                  
          Agency, among others, under ERISA for breach of fiduciary duty.             
          Petitioners rely on this case to show that petitioner was not a             
          disqualified person.  We disagree.  Walckner's relationship to              
          the FUH plan is irrelevant here.  Petitioner was a fiduciary                
          within the meaning of section 4975(e)(2)(A) because he exercised            
          authority and control regarding management of the FUH plan or               
          disposition of its assets.  Further, as an officer of FUH and               
          trustee of the FUH plan, petitioner was a disqualified person               
          under section 4975(e)(2)(H).                                                
               In Framingham Union Hosp., Inc. v. Travelers Ins. Co., 744             
          F. Supp. 29, 31-32 (D. Mass. 1990), the Secretary of Labor                  
          alleged that petitioner and the Garrahan Agency knowingly                   
          participated in prohibited transactions and other breaches of               
          fiduciary duty.  The complaint was dismissed because it did not             
          allege that petitioner or the Garrahan Agency was a fiduciary.              

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