roration and, therefore, the plan did not


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receive adequate consideration, CountercI. PI. Opp. at 22. These are factual

disputes that cannot be resolved on summary judgment. Therefore, counterclaim

defendants' motion for summary judgment on Count I as to the stock repurchase

claim is DENIED.

    II.      Breach of Fiduciary Duty to the Welfare and Auxiliary Plans

          Counterclaim plaintiffs argue that counterclaim defendants' alleged self-

dealing, which resulted in internal and government investigations costing millions

of dollars, harmed the Welfare and Auxiliary plans because ULLICO funded those

plans out of its general treasury. However, despite whatever harm counterclaim

defendants may have done to ULLICO, they cannot, as a matter of law, be liable

under ERISA's fiduciary provisions for decisions they made as corporate officers.

          As with the allegations of breach of fiduciary duty to the Qualified Plan, the

threshold question with these claims is "whether that person was acting as a

fiduciary (that is, was performing a fiduciary function) when taking the action

subject to complaint." Pegram, 530 U.S. at 225. An employee assumes fiduciary

status "when and to the extent that they function in their capacity as plan

administrators, not when they conduct business that is not regulated by ERISA."

Sys. Council EM-3 v. AT&T Corp., 972 F. Supp. 21, 30 (D.D.C. 1997) (internal

quotations omitted); see also Barry v. Trustees o/the Int'l Ass 'n Full-Time

Salaried Officers and Employees o/Outside Local Unions, 404 F. Supp. 2d 145,

151 (D.D.C. 2005) ("the ERISA statute recognizes that individuals may be both

ERISA plan fiduciaries and officers or other employees in a corporation"). The


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allegations with respect to the Welfare and Auxiliary plans clearly implicate the

counterclaim defendants' roles as corporate officers rather than plan fiduciaries.

       Counterclaim plaintiffs do not alle