have confused respondeat superior liability with direct liability.”). Although the Second Circuit has not spoken on this issue, several district courts in this circuit have declined to apply respondeat superior in the ERISA context as an independent theory of liability. See In re Morgan Stanley ERISA Litig., 696 F.Supp.2d 345, 355 (S.D.N.Y.2009) (“[F]iduciary responsibility ... based on a respondeat superior theory is not established in view of the split of authority over whether ERISA provides for such a cause of action.”); Harris v. Finch, Pruyn & Co., Inc., 2008 WL 2064972, at *7 (N.D.N.Y. May 13, 2008) (“Respondeat superior liability does not exist under ERISA’s fiduciary liability scheme.”); In re AOL Time Warner, Inc. Sec. & ERISA Litig., 2005 WL 563166, at *4 n. 5 (S.D.N.Y.2005) (<HOLDING>). Courts that have recognized claims based on a
holding that a fiduciary who receives consideration in connection with a transaction involving plan assets violated section 406b and a nonfiduciary who facilitated that transaction could be liable holding that erisa does not contain a provision which permits a nonfiduciary to be held liable for breaches of fiduciary duties by others holding that a sellers superior knowledge of a product does not justify imposition of a fiduciary relationship in the absence of a conscious assumption of fiduciary duties holding that relief for nonfiduciary liability only available where nonfiduciary is engaged in prohibited transaction under section 1106a1 holding defendants were not liable under erisa because the alleged misstatements were made while acting in a corporate rather than erisa fiduciary capacity