Scenario No. 3—The Case of the Generous Owner—Answer 12
nThe Fish Mongers Plans also claim that the contract makes contributions Plan assets if not paid when due.  Because Ben retained control over those assets, he became a Plan fiduciary.  Who is correct?
A.The Fish Mongers Plans argue that Ben, as principal officer of Dover Sole, had Plan assets under his control—the unpaid contributions—but spent it for other corporate purposes, amounting to a violation of his fiduciary duty for which he is personally liable.
B.Ben contends that there were no “plan assets” because Dover Sole did not have the money to pay its contributions, and that, in any case, the contract language is not sufficient to make him a Plan fiduciary.
nAnswer:  A. Operating Engineers Local 17 Training Fund v. BDR Inc., 2006 U.S. Dist. LEXIS 70967 (N.D.N.Y. 2006); Connecticut Pipe Trades Local 777 Health Fund v. Nettleton Mechanical Contractors, Inc., 478 F. Supp. 2d 279 (D. Conn., 2007).