Judge Denise Cote
In 2000 Fastener Dimensions Inc.’s president Hinkle hired Tumminia to manage its combined pension and employee profit sharing plans (Plan) and its life insurance policies. Over the next six years Tumminia and coconspirators stole $3 million from the Plan. Among other things, Tumminia created sham firm MassMutual Contracting Corp. into which checks from Fastener made out to “MassMutual” were deposited. District court granted defendants Massachusetts Mutual Life Insurance Co. and MassMutual Financial Group (collectively MassMutual) partial dismissal of the amended complaint in Ippolitov v. Fastener Dimensions alleging breach of fiduciary duty violating ERISA. The complaint inadequately alleged the MassMutual defendants a Plan fiduciary under ERISA. However, the amended complaint stated a claim for breach of fiduciary duty under ERISA as to Fastener and Hinkle. Because they exercised discretionary control over the Plan, both were fiduciaries under ERISA. Further, noting that Tumminia’s theft went unabated and undetected for six years, Hinkle and Fastener failed to exercise the “care, skill, prudence and diligence…that a prudent man acting in a like capacity and familiar with such matters would use.”
