Following Bos v. Bd. of Trustees, 795 F.3d 1006 (9th Cir. 2015), which held that employers are not fiduciaries under ERISA as to unpaid contributions to ERISA benefit plans, this decision holds that the ERISA benefit fund cannot collect the unpaid contributions from the employer corporation’s officers and directors on the theory that the officers and directors are fiduciaries exercising control over unpaid contributions that are ERISA trust assets.
Ninth Circuit Court of Appeals (Friedland, J.; Gleason, J., dissenting); July 19, 2018; 2018 U.S. App. LEXIS 20080