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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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