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other hand, “Where language is included in one section of a
statute but omitted in another section of the same statute, it is
generally presumed that the disparate inclusion and exclusion was
done intentionally and purposely.” United States v. Lamere, 980
F.2d 506, 513 (8th Cir. 1992); see also 2B Singer, Sutherland
Statutory Construction, sec. 51.02, at 122-123 (5th ed. 1992)
(“where a statute, with reference to one subject contains a given
provision, the omission of such provision from a similar statute
concerning a related subject is significant to show that a
different intention existed”).
ERISA section 404 pertains to fiduciary duties. Under ERISA
section 404(a) a fiduciary shall discharge his duties with the
care of a prudent man and diversify the investments. It is
against this background that we must read ERISA section
404(c)(1), which provides that (1) the participant, who exercises
control of the assets, is not deemed to be a fiduciary and,
therefore, is not subject to ERISA section 404(a), and (2) any
other fiduciary is not liable “under this part for any loss * * *
which results” from the participant’s exercise of control of the
assets.
“[T]his part” refers to part 4, Fiduciary Responsibility,
subchapter I, subtitle B, Regulatory Provisions, encompassing
ERISA sections 401 through 414, 29 U.S.C. sections 1101 through
1114, and includes provisions for fiduciary liability contained
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