The Department of Labor (DOL) successfully sued former owners of a company for violations of ERISA relating to their failure to remit approximately $12,000 to $14,000 in employee contributions to the company’s retirement plan over a period of four years. The contributions were deposited in the general account of the company and used to pay creditors. One of the owners involved in the suit was the plan administrator, and the other owner was the company’s president. Although the owners acknowledged that the contributions were handled improperly, the owner-president argued that he was not a fiduciary and that the owner-administrator should be solely liable for the plan losses. He asserted that he was only a minority shareholder and relied on the owner-administrator to make required payments to the plan. The U.S. District Court for the District of Minnesota disagreed with the owner-president, ruling on the DOL’s motion for summary judgment that both owners were fiduciaries. The owneradministrator was clearly a fiduciary because plan administrators have discretionary authority/responsibility in administering a plan. With regard to the owner-president, the court found that he was a “functional fiduciary.” First, the court explained that individuals who appoint plan administrators are fiduciaries. Second, the owner-president had admitted to having responsibility to make administrative decisions and authority to direct payment to the plan. Finally, the owner-president paid the company’s creditors from an account in which plan assets were commingled with company funds, which constituted an exercise of control over plan assets. Therefore, because both owners were fiduciaries and the mishandling of employee contributions resulted in violation of at least five provisions of ERISA, the court ruled that the owners were “jointly and equally responsible” for paying the amount of unremitted employee contributions plus interest to the plan. This case serves as a reminder that an individual who is not formally serving in a fiduciary role but takes actions that affect a retirement plan and plan assets, may be considered a plan fiduciary and be subject to fiduciary liability under ERISA. (Solis v. Blackford, D. Minn. 2011).