re: Nakamoto Strikes Again: BR Coastal Bridge Company Owner Mickey Mouse Show

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ERISA expressly contemplates that an officer, employee or other representative of a company may also serve as a fiduciary of a plan. ERISA §408(c) (3); 29 U.S.C. §1108 (c)(3). Because of the obvious risks arising from their dual-capacity status, fiduciaries are expressly prohibited from dealing with the plan assets for their own advantage and from acting on behalf of a party whose interests are adverse to the participants. ERISA §406(b); 29 U.S.C. §1106(b). A fiduciary who does not pay contributions to a 401(k) plan or health insurance claims in order to pay the company's other creditors may be dealing with plan assets for his own account (i.e., his investment in the company) and/or acting on behalf of the interests of the company when its interests are adverse to those of the participants (i.e., they both want the same money). The fiduciary may also be construed to be loaning plan assets to the company, which is expressly prohibited. ERISA §406(a); 29 U.S.C. §§1106(b). See, also, IRC §4975(c). Included in the duty to act in the best interests of the plan participants is a duty to inform participants of material information regarding their benefits. See Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 380 (4th Cir. 2001). This duty obviously includes a duty to inform participants of circumstances that threaten their interests in a plan. Mira v. Nuclear Measurements Corp., 107 F.3d 466, 472 (7th Cir. 1997) [b](holding that the company and its officers breached their fiduciary duties by failing to advise employees in a fully insured health plan that their insurance coverage had lapsed because of the non-payment of premiums)b](holding that the company and its officers breached their fiduciary duties by failing to advise employees in a fully insured health plan that their insurance coverage had lapsed because of the non-payment of premiums).

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