of such plan” if he “exercises any authority or control respecting management or disposition of its assets.” n with Beddall, in which the First Circuit broadly uses “discretion” as the touchstone for qualification as a functional fiduciary under subsection (i), but Beddall was not addressing arguments highlighting differences between the wording of the two prongs of the subsection. Both prongs of subsection (i) of the functional fiduciary definition require the actual “exercise” of authority or control — mere possession of authority is insufficient. Some courts have interpreted “exercise” to mean an affirmative act rather than an omission. See Trustees of the Graphic Communc’ns Int’l Union Upper Midwest Local 1M Health & Welfare Plan v. Bjorkedal, 516 F.3d 719, 733 (8th Cir.2008) (<HOLDING>); Leimkuehler, 713 F.3d at 914 (citing
holding that even though the summary plan description did not include discretionary language the grant of discretionary authority in the plan controlled holding that a denial of benefits will not be reviewed de novo where the language of an erisa plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan holding that primary shareholders failure to ensure that company employee and employer premiums were paid to erisa plan did not constitute exercise of authority an act of omission fails to satisfy the requirement that the individual exercise discretionary authority over plan assets 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 plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant