1102(a)(2); see also 29 U.S.C. § 1105(c)(1) permitting allocation of fiduciary responsibility pursuant to the plan instrument.
In determining who is a fiduciary under ERISA, courts consider whether a party has exercised discretionary authority or control over a plan's management assets or administration. See Painters of Philadelphia Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 1148-51 (3d Cir. 1989) (independent public accountants lack authority over fund assets and affairs and thus are not fiduciaries). If a person's authority or control does not concern "management," or "plan assets," that person is not a fiduciary under section 3(21)(A)(i). See Mack Boring & Parts v. Meeker Sharkey Moffitt Actuarial Consultants, 930 F.2d 267, 270 (3d Cir. 1991) (defendant who had discretionary control of funds would be "fiduciary only if those funds were plan assets"). Similarly, if a person's discretionary authority does not concern administration of a plan, that person is not a fiduciary. Anoka Orthopaedic Assocs. P.A. v. Lechner, 910 F.2d 514 (8th Cir. 1990).
Plaintiffs argue that NPS acted as fiduciary because Michael Meyers, NPS's representative, sold policies of whole life insurance to the participants, and that part of the plan's funds were invested in the policies. However, a recommendation to purchase life insurance does not constitute investment advice. See Flacche v. Sun Life Assur. Co. of Canada, 958 F.2d 730, 734-35 (6th Cir. 1992); Consolidated Beef Industries v. New York Life Insurance Co., 949 F.2d 960, 965 (8th Cir. 1991) (one who markets insurance is merely a salesperson not a fiduciary); American Federation of Union's Local 102 Health & Welfare Fund v. Equitable Life Assur. Society of the United States, 841 F.2d 658, 664 (5th Cir. 1988) ("simply urging the purchase of [insurance] does not make an insurance company an ERISA fiduciary"). Accordingly, we grant NPS's motion for summary judgment on these grounds.
C. Statutory Penalties
As noted above, plaintiffs in this case do not complain that they did not receive their benefits. Rather they seek redress for U.E.'s failure to provide them with the information they requested in 1991. Statutory penalties are provided for the failure or refusal to furnish information upon request to a participant or beneficiary. As noted above, Meyers did not respond to the April 24, 1991 letters. ERISA section 104(b)(4), 29 U.S.C. § 1024(b)(4) provides in relevant part, that the "administrator shall, upon written request of any participant, furnish a copy of . . . the . . . instrument under which the plan is established or operated." ERISA section 502(c), 29 U.S.C. § 1132(c) provides that any "administrator who fails or refuses to comply with a request for any information . . . (unless such failure or refusal results from matters reasonably beyond the control of the administrator) to furnish to a participant. . . may in the court's discretion be personally liable to such participant. . . in the amount of up to 100 dollars a day from the date of such failure or refusal." As other courts have made clear, the ERISA statute commits the assessment of penalties to the trial court's sound discretion. See Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 847 (11th Cir. 1990); Paris v. Profit Sharing Plan, 637 F.2d 357, 362 (5th Cir. 1981), cert. denied, 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140 (1982); see also Kascewicz v. Citibank, 837 F. Supp. 1312, 1322 (S.D.N.Y. 1993); Chambers v. European American Bank & Trust Co., 601 F. Supp. 630, 638 (S.D.N.Y. 1985).
In determining whether plaintiffs are entitled to a statutory award, we may consider whether Meyers's failure to respond prejudiced them. Kascewicz, 837 F. Supp. at 1322 (S.D.N.Y. 1993), citing, Sage v. Automation Inc. Pension Plan & Trust, 845 F.2d 885, 894 n. 4 (10th Cir. 1988). In this case, plaintiffs were not prejudiced. The plaintiffs were not entitled to any benefits in April of 1991 and there is no claim that any benefits were ultimately denied. However, prejudice in the form of a monetary loss is not a prerequisite to an award of civil penalties. See Kascewicz, 837 F. Supp. at 1320, 1322; Curry v. Contract Fabricators, 891 F.2d 842, 847 (11th Cir. 1990). We also consider whether defendants acted in bad faith. See Glavor v. Shearson Lehman Hutton, 879 F. Supp. 1028, 1035 (N.D.Cal. 1994); Pagovich v. Moskowitz, 865 F. Supp. 130, 137 (S.D.N.Y. 1994). Plaintiffs offer no evidence of bad faith. Each received his termination distribution shortly after submitting the necessary paperwork. In addition, U.E. sponsored meetings, which plaintiffs attended where benefits were explained, and furnished them with yearly statements concerning their participation in the pension plan. Under the circumstances in this case, any award to plaintiffs, where the absence of either bad faith or prejudice is so palpable, would be an unjustifiable windfall. Accordingly, we find that an award is not appropriate. See Hennessy v. F.D.I.C., 58 F.3d 908 (3d Cir. 1995), cert. dismissed, 116 S. Ct. 688 (1995).
D. Attorney's Fees
Plaintiffs also seek an award of attorney's fees for the present action. ERISA's authorization of recovery of attorney's fees is broad; section 1132(g) permits recovery of fees "in any action" under subchapter I (29 U.S.C. §§ 1001-1144) by a participant in a pension plan. Courts, including the Second Circuit, have established a five factor test as a guide in determining to award attorneys' fees in a given case. The governing factors are: (1) the offending party's bad faith or culpability; (2) the ability of the offending party to pay the fees and costs; (3) whether an award of fees would deter others from acting similarly under like circumstances; (4) the relative merits of the party's position; and (5) whether the action was filed to confer benefit on plan members generally. See Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987); New York State Teamsters Council Health and Hospital Fund v. The Estate of de Perno, 816 F. Supp. 138, 152 (N.D.N.Y. 1993); Eddy v. Colonial Life Insurance Company of America, 313 U.S. App. D.C. 205, 59 F.3d 201 (D.C.Cir. 1995).
This case does not warrant the application of attorney's fees. Any fault on the part of defendants was de minimus; second, while it is likely that defendants could afford plaintiffs' fees, this factor is far from dispositive; third, there is no indication that requiring defendants to pay the fees will deter him and other ERISA fiduciaries and administrators from eschewing pension beneficiary requests; fourth, plaintiffs' case has marginal technical merit; finally, there is no evidence that this case is likely to benefit the other members of the plan. Accordingly, as the balance of these factors tilts sharply against an award of attorney's fees, plaintiffs' application for them is denied.
For the reasons stated, the Court grants Defendants' motion for summary judgment. The above captioned cases are dismissed. The clerk shall enter judgment.
BARRINGTON D. PARKER, JR.
Dated: White Plains, New York
March 11, 1996
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