theory’s failure in part to the fact that the plan service provider had never exercised the power to substitute the funds on the menu. However, the Court still acknowledged the analytical significance of whether the Plan had the ultimate authority over investment option substitutions: “[The Plan Servicer] reserves the right to make substitutions to the funds that [the Plan Trustee] chooses to offer Plan participants, and thus there is at least some basis for questioning whether [the Plan Servi-cer] has ‘the final say on which investment options will be included.’ But Leimkueh-ler concedes that [the Plan Servicer] has never exercised this contractual right in a way that could give rise to a claim.” Id. at 911 (quoting Hecker, 556 F.3d at 583); see also Santomenno, 2013 WL 3864395, at *7 (<HOLDING>); Zang et al. v. Paychex, Inc., 728 F.Supp.2d
holding that plan servicer which provided 401k plan a menu of investment options was not a fiduciary because parties contract required servicer to give the plan notice of and opportunity to reject any changes to the menu holding that service provider which offered a big menu of investment options from which 401k the plan trustee selected a smaller plan menu was not a fiduciary because provider did not have ultimate authority over which investments were included in the plans holding that the plaintiff stated a claim for breach of fiduciary duty where he alleged that the plan offered funds that charged higher fees than available alternatives that underperformed during the relevant time period and that were included in the plan because of improper influence by the plans trustee holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary holding that insurer was a fiduciary to a 401k plan because the insurer had the ability to substitute investment options and the plan had no meaningful opportunity to reject substitutions because of the penalty charges associated with doing so