Leimkuehler Ex Rel. Leimkuehler, Inc. v. American United Life Insurance, 713 F.3d 905

Leimkuehler, Inc. runs a 401(k) plan; AUL provides services via a separate account structure and revenue sharing with mutual funds; plan menu is narrowed to 383 funds with specified share classes; AUL designs menu and may substitute funds; Leimkuehler sues for ERISA fiduciary breach; district court grants summary judgment for AUL; issues concern whether AUL is a fiduciary through revenue sharing and separate-account management.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does AUL’s fund-menu design make it a fiduciary under 29 U.S.C. §1002(21)(A)(i)?	Leimkuehler: AUL’s fund/share-class selection controls assets.	AUL: Selection alone does not create fiduciary status.	No fiduciary status from menu design alone.
Does AUL’s maintenance of the separate account render it a fiduciary over plan assets?	Separate-account management gives AUL control over assets.	Separate account management is ministerial, not fiduciary.	Separate account management does not make AUL fiduciary here.
Can DOL’s theory that negative exercise (non-substitution) of rights creates fiduciary duties be sustained?	AUL’s non-exercise could still create duties.	Non-exercise cannot create fiduciary duties.	Rejected; non-exercise cannot create fiduciary liability.

Pegram v. Herdrich, 530 U.S. 211 (2000) (limits ERISA fiduciary liability to Acts performed in a fiduciary capacity)
Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) (fund-menu design alone does not create fiduciary status)
Caremark, Inc. v. Chicago Dist. Council of Carpenters Welfare Fund, 474 F.3d 463 (7th Cir. 2007) (requires fiduciary acting in capacity at time of action)
Bjorkedal v. Trustees of Graphic Communications Int'l Union Upper Midwest Local 1M Health & Welfare Plan, 516 F.3d 719 (8th Cir. 2008) (acts of omission do not satisfy discretionary authority over plan assets)