Issue: Whether, when an Employee Retirement Income Security Act plan permits the use of retained
asset accounts to settle life-insurance claims but leaves
discretion to the insurer to determine the interest rates
and other features of those accounts, the insurer
ceases to act as a fiduciary when it creates the account (as
the Second and Third Circuits have held) or its
subsequent discretionary acts remain subject to
ERISA’s protections (as the First Circuit has held).