The Second Circuit recently held that Morgan Stanley and others were not de facto ERISA fiduciaries by virtue of having authority and means to fund company contributions with stock rather than cash. In so ruling, the Court explained that at the time of the decision to fund contributions with company stock, the stock was not a plan asset and thus the decision to fund company contributions with stock was not a fiduciary act. The Court also dismissed conflict of interest claims against the Chairman of the Board of Directors because such claims are not viable when based solely on the fact that compensation was linked to the company’s stock. The case is Coulter v. Morgan Stanley & Co. Inc., 2014 U.S. App. LEXIS 10027 (2nd Cir. May 29, 2014).