Mertens v. Hewitt Associates, 508 U.S. 248, 7 (1993)

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254

MERTENS v. HEWITT ASSOCIATES

Opinion of the Court

gations upon nonfiduciaries, including actuaries,4 no provision explicitly requires them to avoid participation (knowing or unknowing) in a fiduciary's breach of fiduciary duty. It is unlikely, moreover, that this was an oversight, since ERISA does explicitly impose "knowing participation" liability on cofiduciaries. See 405(a), 29 U. S. C. 1105(a). That limitation appears all the more deliberate in light of the fact that "knowing participation" liability on the part of both co-trustees and third persons was well established under the common law of trusts. See 3 A. Scott & W. Fratcher, Law of Trusts 224.1, p. 404 (4th ed. 1988) (hereinafter Scott & Fratcher) (cotrustees); 4 Scott & Fratcher 326, p. 291 (third persons). In Russell we emphasized our unwillingness to infer causes of action in the ERISA context, since that statute's carefully crafted and detailed enforcement scheme provides "strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." 473 U. S., at 146-147. All of this notwithstanding, petitioners and their amicus the United States seem to assume that respondent's alleged action (or inaction) violated ERISA, and address their arguments almost exclusively to what forms of relief are available. And respondent, despite considerable prompting by its amici, expressly disclaims reliance on this preliminary point. See Brief for Respondent 18, n. 15; Tr. of Oral Arg. 46. Thus, although we acknowledge the oddity of resolving a dispute over remedies where it is unclear that a remediable wrong has been alleged, we

4 For example, a person who provides services to a plan is a "party in interest," 29 U. S. C. 1002(14)(B), and may not offer his services or engage in certain other transactions with the plan, 1106(a), for more than reasonable compensation, 1108(b)(2). See also 1023(d)(8) (annual reports must include certification by enrolled actuary); 1082(c)(3) (minimum funding standards for plan to be based on "reasonable" actuarial assumptions).

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