Mertens v. Hewitt Associates, 508 U.S. 248, 15 (1993)

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262

MERTENS v. HEWITT ASSOCIATES

Opinion of the Court

sion Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 646-647 (1990). This is especially true with legislation such as ERISA, an enormously complex and detailed statute that resolved innumerable disputes between powerful competing interests—not all in favor of potential plaintiffs. See, e. g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 54-56 (1987). The text that we have described is certainly not nonsensical; it allocates liability for plan-related misdeeds in reasonable proportion to respective actors' power to control and prevent the misdeeds. Under traditional trust law, although a beneficiary could obtain damages from third persons for knowing participation in a trustee's breach of fiduciary duties, only the trustee had fiduciary duties. See 1 Scott & Fratcher 2.5, p. 43. ERISA, however, defines "fiduciary" not in terms of formal trusteeship, but in functional terms of control and authority over the plan, see 29 U. S. C. 1002(21)(A), thus expanding the universe of persons subject to fiduciary duties—and to damages—under 409(a). Professional service providers such as actuaries become liable for damages when they cross the line from adviser to fiduciary; must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by 406, and pay related civil penalties, see 502(i), 29 U. S. C. 1132(i), or excise taxes, see 26 U. S. C. 4975; and (assuming nonfiduciaries can be sued under 502(a)(3)) may be enjoined from participating in a fiduciary's breaches, compelled to make restitution, and subjected to other equitable decrees. All that ERISA has eliminated, on these assumptions, is the common law's joint and several liability, for all direct and consequential damages suffered by the plan, on the part of persons who had no real power to control what the plan did. Exposure to that sort of liability would impose high insurance costs upon persons who regularly deal with and offer advice to ERISA plans, and hence upon ERISA plans themselves. There is, in other words, a "tension between the primary [ERISA] goal of benefiting employees and the

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