The definition of fiduciary "'focuses on the exercise, as well as the possession, of authority or control' over a pension plan's assets, without regard to the title of the person exercising such control." Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 223 (2d Cir. 2018) (quoting Blatt v. Marshall & Lassman, 812 F.2d 810, 812-13 (2d Cir. 1987)). "Even if a person is not a named fiduciary of an ERISA plan, [she] can be a de facto fiduciary" if she has discretionary control or authority over the plan assets.

In Allen v. Credit Suisse Securities (USA) LLC, 895 F.3d 214, 217 (2d Cir. 2018), the plaintiffs sued a number of banks for breach of ERISA fiduciary duty, alleging that the defendant banks had “fraudulently manipulated benchmark rates to maximize the profit they reaped from” foreign exchange (“FX”) transactions and that they were “performing a fiduciary function when they executed FX transactions for the plans.” Id.

In doing so, it imposes an unwarranted burden at the pleadings stage on plaintiffs seeking to protect their rights under ERISA-a statute Congress intended to "function as a comprehensive remedial statute." Allen v. Credit Suisse Securities (USA) LLC, 895 F.3d 214, 223 (2d Cir. 2018) (internal quotation marks and citation omitted)

. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 571 (2d Cir. 2016). Therefore, in every case charging breach of a fiduciary duty under ERISA, the threshold question is “whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.” Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 222-23 (2d Cir. 2018).

, the Circuit “held that a multitude of analogous fix transactions performed by HSBC did not give rise to ... fiduciary status.” (Reply at 13-14 (citing Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 223 (2d Cir. 2018)).) However, this case involves different relationships between Johnson and Cairn than the relationships considered in Allen, and Allen was expressly limited to the ERISA context, considering the ERISA definition of fiduciary which focuses on “the exercise, as well as the possession, of authority or control over a pension plan's assets.

A "threshold question" for each of the Fiduciary Counts is whether the Contractors and DOE were "acting as [ ] fiduciar[ies] ... when taking the action subject to the complaint." Pegram v. Herdrich , 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) ; Allen v. Credit Suisse Secs. , 895 F.3d 214, 222 (2d Cir. 2018). ERISA § 3(21)(A) provides in pertinent part that "a person is a fiduciary with respect to a plan to the extent ... he [1] exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets ... or ... [2] he has any discretionary authority or discretionary responsibility in the administration of the plan."

Cases holding that insurers like Mass Mutual are not ERISA fiduciaries are numerous.") (collecting cases); Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 224 (2d Cir. 2018) ("[O]ne factor weighing against the conclusion that the defendant banks controlled the Plans' assets is that the transactions at issue were initiated not by the banks but at the discretion of the Plans' independent investment managers."); Leimkuehler v. Am. United Life Ins. Co., 713 F.3d 905, 910 (7th Cir. 2013) (rejecting a fiduciary theory where the funds and share classes included by the service provider on its platform shaped the compensation it would receive, and concluding that the plan sponsor had "the final say on which investment options" would be included);

Allen v. Credit Suisse Secs. (USA) LLC, 895 F.3d 214, 222 (2d Cir. 2018).

Allen v. Credit Suisse Secs. (USA) LLC, 895 F.3d 214, 222 (2d Cir. 2018).

"We review denials . . . of leave to amend for abuse of discretion, unless denial was based on an interpretation of law, such as futility, in which case our review is de novo." Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 227 (2d Cir. 2018) (internal citations and quotation marks omitted). While we have sometimes held denial of leave to amend without explanation, as here, to be an abuse of discretion, see, e.g., Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990), our review of a district court's denial of leave to replead ultimately "involves the appraisal of numerous factors, and a court of appeals exercises considerable discretion in addressing the question," Porat v. Lincoln Towers Cmty. Ass'n, 464 F.3d 274, 276 (2d Cir. 2006) (per curiam); see also In re: Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir. 2006)