Flahertys Arden Bowl, Inc. - Page 9




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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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