Title 29, LaborRelease 119-110

§1105 Liability for Breach of Co-fiduciary

Title 29 › CHAPTER 18 — EMPLOYEE RETIREMENT INCOME SECURITY PROGRAM › SUBCHAPTER I — PROTECTION OF EMPLOYEE BENEFIT RIGHTS › Subtitle B — Regulatory Provisions › part 4 — fiduciary responsibility › § 1105

Last updated Sep 22, 2026|Official source

Summary

Makes people who run a retirement plan responsible when they help, enable, or ignore another person in charge who does something wrong. A plan manager is liable if they join in or hide another manager’s bad act knowing it’s wrong, if they fail to do their own duties under section 1104(a)(1) so that the other manager can misbehave, or if they know about a breach and do not make reasonable efforts to fix it. When two or more trustees hold plan money, each must take care to stop a co-trustee from breaching and they usually manage the assets together. A trust document can assign specific duties to certain trustees, and a trustee not given a duty won’t be liable for another trustee’s mistakes. A plan can also set rules to divide duties among named managers and let them hire others to carry out tasks. If those rules are followed, the named manager is not liable for the hireling’s mistakes unless the named manager broke the duty in section 1104(a)(1) when making or keeping the arrangement. If an investment manager is appointed under section 1102(c)(3), trustees are not liable for that manager’s acts but remain liable for their own acts.

Full Legal Text

Title 29, §1105

Labor, Source: USLM XML via OLRC

(a)Circumstances giving rise to liability

In addition to any liability which he may have under any other provisions of this part, a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the following circumstances:

(1)if he participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is a breach;

(2)if, by his failure to comply with section 1104(a)(1) of this title in the administration of his specific responsibilities which give rise to his status as a fiduciary, he has enabled such other fiduciary to commit a breach; or

(3)if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach.

(b)Assets held by two or more trustees

(1)Except as otherwise provided in subsection (d) and in section 1103(a)(1) and (2) of this title, if the assets of a plan are held by two or more trustees—

(A)each shall use reasonable care to prevent a co-trustee from committing a breach; and

(B)they shall jointly manage and control the assets of the plan, except that nothing in this subparagraph (B) shall preclude any agreement, authorized by the trust instrument, allocating specific responsibilities, obligations, or duties among trustees, in which event a trustee to whom certain responsibilities, obligations, or duties have not been allocated shall not be liable by reason of this subparagraph (B) either individually or as a trustee for any loss resulting to the plan arising from the acts or omissions on the part of another trustee to whom such responsibilities, obligations, or duties have been allocated.

(2)Nothing in this subsection shall limit any liability that a fiduciary may have under subsection (a) or any other provision of this part.

(3)(A)In the case of a plan the assets of which are held in more than one trust, a trustee shall not be liable under paragraph (1) except with respect to an act or omission of a trustee of a trust of which he is a trustee.

(B)No trustee shall be liable under this subsection for following instructions referred to in section 1103(a)(1) of this title.

(c)Allocation of fiduciary responsibility; designated persons to carry out fiduciary responsibilities

(1)The instrument under which a plan is maintained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries, and (B) for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities (other than trustee responsibilities) under the plan.

(2)If a plan expressly provides for a procedure described in paragraph (1), and pursuant to such procedure any fiduciary responsibility of a named fiduciary is allocated to any person, or a person is designated to carry out any such responsibility, then such named fiduciary shall not be liable for an act or omission of such person in carrying out such responsibility except to the extent that—

(A)the named fiduciary violated section 1104(a)(1) of this title—

(i)with respect to such allocation or designation,

(ii)with respect to the establishment or implementation of the procedure under paragraph (1), or

(iii)in continuing the allocation or designation; or

(B)the named fiduciary would otherwise be liable in accordance with subsection (a).

(3)For purposes of this subsection, the term “trustee responsibility” means any responsibility provided in the plan’s trust instrument (if any) to manage or control the assets of the plan, other than a power under the trust instrument of a named fiduciary to appoint an investment manager in accordance with section 1102(c)(3) of this title.

(d)Investment managers

(1)If an investment manager or managers have been appointed under section 1102(c)(3) of this title, then, notwithstanding subsections (a)(2) and (3) and subsection (b), no trustee shall be liable for the acts or omissions of such investment manager or managers, or be under an obligation to invest or otherwise manage any asset of the plan which is subject to the management of such investment manager.

(2)Nothing in this subsection shall relieve any trustee of any liability under this part for any act of such trustee.

Reference

Citations & Metadata

Citation

29 U.S.C. § 1105

Title 29, Labor

Last Updated

Sep 22, 2026

Release point: 119-110