The issue of fiduciary status is often cumbersome because while a fiduciary can be directly named by a plan, someone can also be deemed to be a fiduciary by virtue of having discretionary authority, or even by exercising some discretionary authority through plan administration. Consider the case of Perez v. Geopharma, a case from the Middle District of Florida brought by the Department of Labor.

Before reading further, consider that this decision is only on a motion to dismiss; this is hardly a definitive decision relating to what it takes to become a fiduciary. However, the ruling from the court does seem to suggest that at least some argument can be made that company officers could be liable for fiduciary breaches unless they can demonstrate that they did not control plan assets. Therefore, it might be worthwhile for employers as plan sponsors actually formally separating plan assets to limit the signatory authority on those accounts to people actually intended to be plan fiduciaries. Here is why:

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