Jan 29, 2014 – Secretary of Labor, Thomas E. Perez, has filed a federal court brief disputing a district court’s dismissal of John Hancock’s liability in an excessive fee case.
Perez says in an amicus curiae brief in the 3rd U.S. Circuit Court of Appeals regarding the case Santomenno v. John Hancock that a district court in New Jersey was wrong to find John Hancock was not a fiduciary under the Employee Retirement Income Security Act (ERISA) for the purpose of any of the claims asserted in the case. The brief notes Section 3(21)(A) of ERISA defines “fiduciary” broadly to confer fiduciary status with respect to a plan on any person to the extent that “(i)he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, … or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.”
The brief points out that plaintiffs’ allegations that John Hancock exercised “discretionary authority or discretionary control” over plan management within the meaning of the first clause of 29 U.S.C. § 1002(21)(A)(i) satisfy the threshold question in every fiduciary breach case, which is whether the defendant was acting as a fiduciary with respect to the challenged conduct.
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