Cite as: 510 U. S. 86 (1993)
Thomas, J., dissenting
Justice Thomas, with whom Justice O'Connor and Justice Kennedy join, dissenting.
Insurance companies hold more than $332 billion in their general accounts pursuant to group annuity contracts with pension plans. See American Council of Life Insurance, 1993 Life Insurance Fact Book Update 27. Today, the Court abruptly overturns the settled expectations of the insurance industry by deeming a substantial portion of those funds "plan assets" and thus subjecting insurers to the fiduciary regime of the Employee Retirement Income Security Act of 1974 (ERISA). Although I agree with the Court that the guaranteed benefit policy exception, § 401(b)(2) of ERISA, 29 U. S. C. § 1101(b)(2), does not—as petitioner Hancock contends—exclude all general account assets from ERISA's coverage, the Court, in making the exception depend upon whether investment risk is allocated to the insurer, ante, at 106, proposes a new test that bears little relation to the statute Congress enacted. The relevant question under the statute is not whether the contract shifts investment risk, but whether, and to what extent, it "provides for benefits the amount of which is guaranteed." 29 U. S. C. § 1101(b)(2)(B). In my view, a contract can "provide for" guaranteed benefits before it actually guarantees future payouts—that is, before it shifts the investment risk as to those benefits to the insurer. Accordingly, I respectfully dissent.
I
The guaranteed benefit policy exception, § 401(b)(2) of ERISA, excludes from the scope of ERISA's fiduciary requirements assets held pursuant to "an insurance policy or contract to the extent that such policy or contract provides for benefits the amount of which is guaranteed by the insurer." 29 U. S. C. § 1101(b)(2)(B). In interpreting this exception, I begin, as in any case of statutory construction, with "the language of the statute," Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992), and with the
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