The opinion of the court was delivered by: Mihm, District Judge
Now before the Court is Defendant Lyle Dickes' ("Dickes") Motion for
Summary Judgment. For the reasons set forth below, the Motion for Summary
Judgment [#318] is GRANTED IN PART and DENIED IN PART.
The basic factual background has been sufficiently set forth in the
prior orders of this Court, and familiarity therewith is presumed. The
present motion is brought by Dickes, the former Executive Vice President
of Foster & Gallagher. The matter is now fully briefed and ready for
resolution. This Order follows.
Summary judgment should be granted where "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The moving party has the responsibility of
informing the Court of portions of the record or affidavits that
demonstrate the absence of a triable issue. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The moving party may meet its burden of showing
an absence of disputed material facts by demonstrating "that there is an
absence of evidence to support the non-moving party's case." Id. at 325.
Any doubt as to the existence of a genuine issue for trial is resolved
against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the
burden of presenting specific facts to show that there is a genuine issue
of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e)
requires the non-moving party to go beyond the pleadings and produce
evidence of a genuine issue for trial. Celotex, 477 U.S. at 324.
Nevertheless, this Court must "view the record and all inferences drawn
from it in the light most favorable to the [non-moving party]." Holland
v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989).
Summary judgment will be denied where a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928,
931 (7th Cir. 1995).
Dickes remains a Defendant in this case only as a non-fiduciary
party-in-interest pursuant to § 406(a) of ERISA, which prohibits a
"sale or exchange . . . of any property between the plan and a party in
interest," and also prohibits a "transfer to . . . a party in interest
. . . of any assets of the plan." 29 U.S.C. § 1106(a)(1)(A) and (D).
ERISA further defines a "party in interest" to include any fiduciary,
person providing services to the plan, an employer, an
employee/officer/director or 10% shareholder of an employer, or any
relative of these individuals. 29 U.S.C. § 1002(14). This much Dickes
and the Plaintiffs agree on; however, any agreement ends there.
That being said, § 406 imposes a duty only on the fiduciary who
causes the plan to engage in prohibited transaction. Harris Trust and
Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 120 S.Ct.
2180, 2186 (2000). Any liability of a non-fiduciary party-in-interest
stems from duties imposed by § 502(a)(3):
A civil action may be brought . . . by a participant,
beneficiary, or fiduciary (A) to enjoin any act or
practice which violates any provision of [ERISA Title
I] or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provisions of this
title or the terms of the plan.
29 U.S.C. § 1132(a)(3); Harris Trust, 120 S.Ct. at 2186-88.
[I]t has long been settled that when a trustee in
breach of his fiduciary duty to the beneficiaries
transfers trust property to a third person, the third
person takes the property subject to the trust, unless
he has purchased the property for value and without
notice of the fiduciary's breach of duty. The trustee
or beneficiaries may then maintain an action for
restitution of the property (if not already disposed
of) or ...