United States District Court, N.D. Illinois, Eastern Division
December 14, 2005.
ELAINE L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff,
MICHAEL LINDER, et al., Defendants.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
The Secretary of Labor has sued various individuals,
enterprises, and funds the funds, we are told, are nominal
parties. Defendant Brian Diskin has now moved to dismiss Count
XIII. That motion is denied.
Plaintiff alleges that Diskin was a Plan trustee of the Local
380 Retirement Plan, authorized to take any action he deemed
necessary for the protection of plan assets. The Plan invested in
a fund managed by Gartmore Trust Company (Gartmore), and Gartmore
paid fees to a third party plan administrator and plan
consultant, Joseph/Anthony & Associates, Inc. (JAA), in breach of
JAA's fiduciary obligations and contrary to the interests of the
Plan. Diskin allegedly knew about it and did nothing.
Diskin's motion contends that the claim is barred by the
six-year limitations provision, that it fails to allege the fees
were unlawful, that it fails to state specific statutory
violations, and that it fails to claim a harm to the Plan. The
complaint does state that the Plan invested in the Gartmore fund
on March 2, 1998, more than six years before suit commenced, but
the claim is not that the investment is actionable but that the
payment of fees to JAA is and we cannot tell from the complaint
when and on how many occasions that happened. The other three
grounds can be treated together. The Secretary, pursuant to
29 U.S.C. § 1132, may seek relief under 29 U.S.C. § 1109 for breaches of fiduciary duty. She
charges that JAA got kickbacks and Diskin knew about it but did
nothing. That is all she need allege.
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