29 U.S.C. § 1105 : US Code - Section 1105: Liability for breach of co-fiduciary

Search 29 U.S.C. § 1105 : US Code - Section 1105: Liability for breach of co-fiduciary

(a) Circumstances giving rise to liability
In addition to any liability which he may have under any other
provisions of this part, a fiduciary with respect to a plan shall
be liable for a breach of fiduciary responsibility of another
fiduciary with respect to the same plan in the following
circumstances:
(1) if he participates knowingly in, or knowingly undertakes to
conceal, an act or omission of such other fiduciary, knowing such
act or omission is a breach;
(2) if, by his failure to comply with section 1104(a)(1) of
this title in the administration of his specific responsibilities
which give rise to his status as a fiduciary, he has enabled such
other fiduciary to commit a breach; or
(3) if he has knowledge of a breach by such other fiduciary,
unless he makes reasonable efforts under the circumstances to
remedy the breach.
(b) Assets held by two or more trustees
(1) Except as otherwise provided in subsection (d) of this
section and in section 1103(a)(1) and (2) of this title, if the
assets of a plan are held by two or more trustees -
(A) each shall use reasonable care to prevent a co-trustee from
committing a breach; and
(B) they shall jointly manage and control the assets of the
plan, except that nothing in this subparagraph (B) shall preclude
any agreement, authorized by the trust instrument, allocating
specific responsibilities, obligations, or duties among trustees,
in which event a trustee to whom certain responsibilities,
obligations, or duties have not been allocated shall not be
liable by reason of this subparagraph (B) either individually or
as a trustee for any loss resulting to the plan arising from the
acts or omissions on the part of another trustee to whom such
responsibilities, obligations, or duties have been allocated.
(2) Nothing in this subsection shall limit any liability that a
fiduciary may have under subsection (a) of this section or any
other provision of this part.
(3)(A) In the case of a plan the assets of which are held in more
than one trust, a trustee shall not be liable under paragraph (1)
except with respect to an act or omission of a trustee of a trust
of which he is a trustee.
(B) No trustee shall be liable under this subsection for
following instructions referred to in section 1103(a)(1) of this
title.
(c) Allocation of fiduciary responsibility; designated persons to
carry out fiduciary responsibilities
(1) The instrument under which a plan is maintained may expressly
provide for procedures (A) for allocating fiduciary
responsibilities (other than trustee responsibilities) among named
fiduciaries, and (B) for named fiduciaries to designate persons
other than named fiduciaries to carry out fiduciary
responsibilities (other than trustee responsibilities) under the
plan.
(2) If a plan expressly provides for a procedure described in
paragraph (1), and pursuant to such procedure any fiduciary
responsibility of a named fiduciary is allocated to any person, or
a person is designated to carry out any such responsibility, then
such named fiduciary shall not be liable for an act or omission of
such person in carrying out such responsibility except to the
extent that -
(A) the named fiduciary violated section 1104(a)(1) of this
title -
(i) with respect to such allocation or designation,
(ii) with respect to the establishment or implementation of
the procedure under paragraph (1), or
(iii) in continuing the allocation or designation; or
(B) the named fiduciary would otherwise be liable in accordance
with subsection (a) of this section.
(3) For purposes of this subsection, the term "trustee
responsibility" means any responsibility provided in the plan's
trust instrument (if any) to manage or control the assets of the
plan, other than a power under the trust instrument of a named
fiduciary to appoint an investment manager in accordance with
section 1102(c)(3) of this title.
(d) Investment managers
(1) If an investment manager or managers have been appointed
under section 1102(c)(3) of this title, then, notwithstanding
subsections (a)(2) and (3) and subsection (b) of this section, no
trustee shall be liable for the acts or omissions of such
investment manager or managers, or be under an obligation to invest
or otherwise manage any asset of the plan which is subject to the
management of such investment manager.
(2) Nothing in this subsection shall relieve any trustee of any
liability under this part for any act of such trustee.