U.S. Code » Title 29 » Chapter CHAPTER 18— EMPLOYEE RETIREMENT INCOME SECURITY PROGRAM › Subchapter SUBCHAPTER I— PROTECTION OF EMPLOYEE BENEFIT RIGHTS › Subtitle Subtitle B— Regulatory Provisions › Part part 4— fiduciary responsibility

29 U.S.C. § 1105

Liability for breach of co-fiduciary

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(a) Circumstances giving rise to liabilityIn 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) 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) 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).(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), 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.(Pub. L. 93–406, title I, § 405, Sept. 2, 1974, 88 Stat. 878.)
Notes of Decisions
Cited in 611 cases (86 in the last 5 years), 1975–2026 · leading case: In Re Enron Corp. Sec., Derivative & ERISA, 284 F. Supp. 2d 511 (S.D. Tex. 2003).
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In Re Enron Corp. Sec., Derivative & ERISA, 284 F. Supp. 2d 511 (S.D. Tex. 2003). · cites it 13× “Under section 405(a) of ERISA, 29 U.S.C. § 1105 (a), In addition to any liability which he may have under any other provision of this part, a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility with respect to the same plan in the following…”
Beddall v. State Street Bank & Trust Co., 137 F.3d 12 (1st Cir. 1998). · cites it 8× “Then, citing ERISA § 405(d), 29 U.S.C. § 1105 (d), the judge determined that, even if the Bank knew or should have known of Hawthorne’s indiscretions, co-fiduciary liability did not attach in the absence of an allegation that the Bank had participated actively in, or concealed,…”
Nat'l Labor Relations Bd. v. Amax Coal Co., 453 U.S. 322 (1981). · cites it 4× “29 U. S. C. § 1105 (a). Moreover, the fiduciary requirements of ERISA specifically insulate the trust from the employer's interest.”
Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d 1079 (M.D. Ala. 2006). · cites it 9× “Pursuant to 29 U.S.C. § 1105 , a plan administrator may delegate its fiduciary duties to a third party if the plan provides a clear process for such delegation.”
Narda, Inc. v. Rhode Island Hosp. Trust Nat'l Bank, 744 F. Supp. 685 (D. Maryland 1990). · cites it 12× “See 29 U.S.C. § 1105 (a). Accordingly, a resolution of these motions requires the determination in each case whether the moving party is a fiduciary, whether the charges against him are based on a breach of a fiduciary duty by him or by another fiduciary.”
Carr v. Int'l Game Tech., 770 F. Supp. 2d 1080 (D. Nev. 2011). · cites it 11× “ERISA renders a fiduciary liable for the breach of another fiduciary if he or she (i) participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is a breach; or (ii) enables another fiduciary to commit…”
Pension Benefit Guar. Corp. Ex Rel. Saint Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705 (2d Cir. 2013). · cites it 2× “See 29 U.S.C. § 1105 (d)(1). 19 separate trust, such other information as is required by the administrator in order to comply with this subsection.”
Mertens v. Hewitt Assocs., 508 U.S. 248 (1993). · cites it 2× “See § 405(a), 29 U. S. C. § 1105 (a). That limitation appears all the more deliberate in light of the fact that "knowing participation" liability on the part of both cotrustees and third persons was well established under the common law of trusts.”
Appvion, Inc. Ret. Sav. & Emp. Stoc v. Douglas Buth, 99 F.4th 928 (7th Cir. 2024). · cites it 4× “Two of these require that the fiduciary knew of her co-fiduciary’s breach, and that the fiduciary either knowingly participated in or concealed that breach, 29 U.S.C. § 1105 (a)(1), or that the fiduciary failed to make reasonable efforts to remedy the 26 No.”
Earlene Jenkins v. Michael D. Yager & Mid Am. Motorworks, Inc., Formerly Known as Mid Am. Direct, Inc., 444 F.3d 916 (7th Cir. 2006). · cites it 4× “29 U.S.C. § 1105 (c)(1). Section 405(c) further defines “trustee responsibilities” as “any responsibility provided in the plan’s trust instrument (if any) to manage or control the assets of the plan.”
Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262 (5th Cir. 2005). · cites it 2× “§ 1002 (16)(A), but the "claims administrator" or "claims fiduciary,” as defined in 29 U.S.C. § 1105 (c). Although our standard of review could hinge on which title is applicable to Liberty, independent research satisfies us that Liberty is a "fiduciary” as defined under 29 U.”
Geddes v. United Staffing All. Emp. Med. Plan, 469 F.3d 919 (10th Cir. 2006). · cites it 3× “But the district court omitted a critical phrase from the statute, which actually reads: “The instrument under which a plan is maintained may expressly provide for procedures .”
Show all 611 citing cases →
— 29 U.S.C. § 1105(a)(1) — 1 case
Perrone v. Johnson & Johnson (D.N.J. 2020).
— 29 U.S.C. § 1105(a)(3) — 2 cases
Vanderkam v. Pension Benefit Guar. Corp., 943 F. Supp. 2d 130 (D.D.C. 2013).
Pension Benefit Guar. Corp. v. Don's Trucking Co., Inc., 309 F. Supp. 2d 827 (E.D. Va. 2004).
— 29 U.S.C. § 1105(c) — 1 case
Kreml v. Diamond Shamrock Corp., 701 F. Supp. 1400 (N.D. Ill. 1988).
— 29 U.S.C. § 1105(c)(1) — 1 case
Schetter v. Prudential-Bache Sec. Inc., 695 F. Supp. 1077 (E.D. Cal. 1988).
— 29 U.S.C. § 1105(c)(1)(B) — 2 cases
Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir. 2003).
Barrus v. Dick's Sporting Goods, Inc., 732 F. Supp. 2d 243 (W.D.N.Y. 2010).
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