534
Thomas, J., dissenting
502 (quoting 3 A. Scott & W. Fratcher, Law of Trusts § 186, p. 6 (4th ed. 1988)).13
The majority's approach is flawed in at least two respects. First, the standard that it borrows from the common law of trusts is not the common-law standard for determining whether a person is a fiduciary. Rather, it is the standard the common law uses to define the scope of a fiduciary's authority once it is settled that a person is a fiduciary. Thus, the Court inexplicably takes a common-law standard that presumes that a person is a fiduciary and applies it to determine whether, under the statute, that person is a fiduciary in the first place. The majority's approach ignores the patent differences between the definition of a fiduciary under ERISA and the common law, and in the process expands the activities that are governed by fiduciary standards beyond those designated by the statutory text.14
13 Also, the majority twice looks to § 404(a) in attempting to determine the scope of fiduciary status under ERISA. See ante, at 502, 511. Specifically, the majority relies on § 404(a)(1)(D), which requires a fiduciary to discharge his duties "in accordance with the documents and instruments governing the plan." But § 404(a)(1)(D) does not determine whether a person is acting as a fiduciary. Like the other provisions of § 404, it merely establishes a ground rule for functions performed by a person deemed to be a fiduciary under § 3(21)(A). The majority cannot rely on § 404(a)(1)(D) to determine whether a person has assumed fiduciary status, since that provision applies only after it has been established that a person is a fiduciary.
14 The majority's reliance on Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559 (1985) (cited ante, at 502), illustrates the flaw in the majority's approach. Although we quoted there the same passage from the Scott treatise that the majority substitutes for the text of § 3(21)(A), see Central States, supra, at 570, the Court was not attempting to determine in that case, as we are here, whether a person was acting as a fiduciary with respect to a plan under § 3(21)(A). There was no question that the trustee in Central States was a fiduciary under § 3(21)(A), and there was no question that the audit the trustees wished to perform was a fiduciary function. The only question in Central States was whether the plan trustees, who were admittedly
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