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HARRIS TRUST AND SAV. BANK Opinion of the Court
tion phase of th[is] contract . . . ." Peoria Union, 698 F. 2d, at 327.
In the Second Circuit's words, "[t]o the extent that [Hancock] engages in the discretionary management of assets attributable to that phase of the contract which provides no guarantee of benefit payments or fixed rates of return, it seems to us that [Hancock] should be subject to fiduciary responsibility." 970 F. 2d, at 1144.
Hancock urges that to the full extent of the free funds— and hence, to the full extent of the contract—GAC 50 "provides for" benefits the amount of which is guaranteed, inasmuch as "Harris Trust . . . has the right . . . to use any 'free funds' to purchase future guaranteed benefits under the contract, in addition to benefits previously guaranteed." Brief for Petitioner 26; see also Mack Boring & Parts v. Meeker Sharkey Moffitt, Actuarial Consultants of New Jersey, 930 F. 2d 267, 273 (CA3 1991) (statute's use of phrase "provides for" does not require that the benefits contracted for be delivered immediately; it is enough that the contract provides for guaranteed benefits "at some finite point in the future").
Logically pursued, Hancock's reading of the statute would exempt from ERISA's fiduciary regime any contract, in its entirety, so long as the funds held thereunder could be used at some point in the future to purchase some amount of guaranteed benefits.13 But Congress did not say a contract is
13 This argument resembles one rejected in SEC v. United Benefit Life Ins. Co., 387 U. S. 202 (1967). In United Benefit, the policyholder was protected somewhat against fluctuations in the value of the contract fund through a promise that the cash value of the contract would not fall below the aggregate amount of premiums deposited with the insurer. Id., at 205, 208, n. 10. We held that although this "guarantee of cash value based on net premiums reduces substantially the investment risk of the contract holder, the assumption of an investment risk cannot by itself create an insurance provision under the federal definition. The basic difference between a contract which to some degree is insured and a contract of insurance must be recognized." Id., at 211 (citation omitted).
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