Employee Rights and Employment Policy Journal

ERISA imposes stringent standards of behavior on pension plan fiduciaries with respect to the performance of their duties, establishing both a set of affirmative obligations on fiduciaries and a prohibition on certain transactions concerning a plan and its assets. It is clear that the enforcement provisions of the statute permit suit against a fiduciary for breach of its duties, as well as against a co-fiduciary who participates in a breach. However, there may be occasions on which the ability to bring suit against a fiduciary is insufficient to make a plaintiff whole, thus raising the question whether liability for violation of ERISA's fiduciary obligations and prohibitions is limited to fiduciaries, or whether non-fiduciaries who participate in a violation may be sued under ERISA's enforcement provisions. That is the issue explored in this Article. Analyzing the language of ERISA, its legislative history, the common law of trusts on which the statute was based, and policy considerations, the Article concludes that courts should recognize a cause of action under ERISA against any non-fiduciary who participates in a breach of the affirmative duties imposed on fiduciaries or in a transaction prohibited by the statute. In so concluding, the Article rejects the distinctions that seems to have been drawn by the Supreme Court between non-fiduciaries who have the statute of parties-in-interest to a plan and those that do not, and between violation of ERISA's affirmative fiduciary duties and its prohibited transactions. Thus, it argues for a wider scope of nonfiduciary liability than has been recognized thus far by the Supreme Court.