In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1313

MICHAEL R. KING, MARK D. URBANSKI,

DONALD E. RENFRO, et al.,

Plaintiffs-Appellants,

v.

NATIONAL HUMAN RESOURCE COMMITTEE, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:96CV0907 AS--Allen Sharp, Judge.

Argued May 11, 2000--Decided June 30, 2000

 Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.

 EVANS, Circuit Judge. In this action, filed

pursuant to the Employee Retirement Income

Security Act, 29 U.S.C. sec. 1001 et seq., a

large number of workers at a stamping plant in

South Bend, Indiana, alleged violations in the

way their 401(k) plan was handled when the assets

of their employer were sold.

 The employees who brought the action were

members of a collective bargaining unit

represented by the United Automobile, Aerospace

and Agricultural Implement Workers of America--

the UAW. Their former employer, EWI, Inc., had a

401(k) plan for the collective bargaining unit at

South Bend that was administered by Prudential

Mutual Fund Services. On April 30, 1996, EWI

filed for chapter 11 bankruptcy in the Northern

District of Ohio. On August 2, 1996, EWI and

Tecumseh Metal Products, Inc. executed an asset

purchase agreement for the sale of EWI’s assets

in South Bend. The sale was approved by the

bankruptcy court on September 10, 1996. The

agreement provided for Tecumseh to assume the

union contract, to maintain a defined

contribution 401(k) plan, to receive the account

balances for the union members participating in

the EWI plan, and to transfer the balances to a

plan established by Tecumseh for the funds or to

an already existing plan.
 Tecumseh did not have the capacity to handle

the payroll and benefit issues associated with

the large, unionized work force it acquired from

EWI. For that reason, on September 3, 1996, it

executed a client services agreement with the

Human Resource Committee, an affiliate of the

defendant National Human Resource Committee

(NHRC). The former EWI employees, as employees of

NHRC, kept their jobs in the stamping facility at

the same rates of pay as before. NHRC also had a

pension plan called the H.R. Leasestaff 401(k)

Plan, provided by Allmerica Financial

Institutional Services, in which it originally

intended to enroll the South Bend employees.

However, the union and Tecumseh determined that

Leasestaff was not, in fact, a suitable plan for

the South Bend employees. After negotiations

among the union, Tecumseh, NHRC, and Allmerica,

a new plan called the Human Resource Committee,

Inc. Collective Bargaining Unit 401(k) Plan was

formed. The plan was not ready until April 1997,

but coverage was made retroactive to November 15,

1996.

 The actual transfer of the funds from the old

EWI plan had occurred before NHRC and Allmerica

were ready to receive them. On November 15, 1996,

Allmerica received the account balances from the

EWI plan in the amount of $2,661,772, but

documentation of the individual accounts was not

provided at this time. For that reason, the total

amount of money transferred was credited with a

short-term interest rate of 5.02 percent through

December 31 and then placed in a money market

fund from December 31, 1996, through mid-April

1997.

 Tecumseh and NHRC terminated their contractual

relationship sometime in late September 1997, and

workers at the South Bend plant became direct

employees of Tecumseh. On October 1, 1997,

Tecumseh took over the ERISA plan, and it was

"restated" into an Allmerica prototype pension

plan.

 In part, it is the delay in getting the Human

Resources Committee plan set up which the plan

participants claim violated their rights under

ERISA. One of the things of which they complain

is that their assets were not invested pursuant

to their individual choices. Also, they allege

that nonunion employees at the South Bend plant

were given several options regarding their EWI

balances, including rolling them into their own

Individual Retirement Accounts, but the

plaintiff-union employees were not. The employees

also say they did not receive information about

their funds and did not know until February 1997

whether their employer was Tecumseh or NHRC. The
employees also see a number of things wrong with

the way the new fund was set up. First, they

claim that NHRC and its president, Edward

Gudeman, did not solicit bids other than the one

from Allmerica and did not familiarize themselves

with the EWI Plan to ensure they were getting a

comparable plan. Also, they say that Jeffrey

Perlstein stood to benefit from the establishment

of the new plan. He was the sales agent NHRC used

to acquire the new plan with Allmerica and he was

also a founder of NHRC and an insurance broker

with offices inside NHRC.

 These ERISA allegations are sorted--not entirely

successfully--into three counts. Count I alleges

a violation of 29 U.S.C. sec. 1103(c)(1), which

says that the assets of a plan "shall never inure

to the benefit of any employer and shall be held

for the exclusive purposes of providing benefits

to participants . . . and defraying reasonable

expenses of administering the plan." Count II is

for a violation of 29 U.S.C. sec. 1103(d), which

deals with duties upon the termination of a plan

and provides that upon termination the assets

shall be distributed in accordance with the terms

of the plan. Count III alleges a violation of 9

U.S.C. sec. 1104: that the defendants/1 violated

their fiduciary duty in the selection of a new

plan and in the investment decisions which were

made. Specifically, the claim is that the

defendants failed to timely effectuate the

employees’ investment decisions and wrongly

invested the assets in a money market fund while

the difficulty with the transfer of the records

was going on.

 Both sides moved for summary judgment in the

district court. The motion of NHRC and Tecumseh

was granted and judgment was entered dismissing

the case against all defendants, including Frank

Beardman, an administrator of the EWI plan, who

plays no part in this appeal. After the judgment

was entered, Tecumseh itself filed a petition for

reorganization under chapter 11 of the Bankruptcy

Code. The action is therefore stayed as to

Tecumseh, 11 U.S.C. sec. 362(a), leaving NHRC as

the only appellee before us. We review the

decision on summary judgment de novo, keeping in

mind that summary judgment is proper if there is

no genuine issue of material fact and the moving

party is entitled to a judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317 (1986).

 On appeal, the employees raise three issues:

whether officials at NHRC were fiduciaries under

ERISA; whether they breached their duty; and

whether certain evidence regarding damages should

have been considered by the district court.
 Before we tackle those issues, we will note

that some of the employees’ claims are undermined

simply on the basis of uncontested facts in the

record. For instance, there is nothing except

bare allegations to indicate that Mr. Perlstein

received any benefit, even a commission, from the

establishment of the Human Resources plan. Nor is

there anything else in the record to show any

violation of the anti-inurement provisions of

ERISA. Thus, Count I fails.

 Also, the employees claim that they should have

received their funds so that they could invest

them as they pleased when the plan was

terminated. But the facts show that what happened

was not a plan termination; it was a spin-off to

a new plan. The employees remained employed at

the same jobs as before, and at the same

location. The only difference was that they were

employed by a different entity. Spin-offs and

transfers of assets from one qualified plan to

another are allowed under both the Internal

Revenue Code and ERISA. See 26 U.S.C. sec.

414(I), 26 C.F.R. sec. 1.414(I)-1, and 29 U.S.C.

sec. 1058. Furthermore, a spin-off is what was

contemplated in the asset purchase agreement and

the order approving it; plus, the union contract

required the establishment and maintenance of a

pension plan. Additionally, there are specific

provisions in the code regulating when assets may

be distributed to participants or beneficiaries

and this was not one of them. See 26 U.S.C.

sec.sec. 401(k)(2)(B)(i) and 401(k)(10)(A).

 Which brings us to whether NHRC was acting as a

fiduciary when it set up the Human Resources

plan. The short and well-established answer is

that it was not. It is clear that a person can be

a fiduciary for some purposes but not others. See

Lockheed Corp. v. Spink, 517 U.S. 882 (1996);

Hughes Aircraft Co. v. Jacobson, 119 S. Ct. 755

(1999); Ames v. American National Can Co., 170

F.3d 751 (7th Cir. 1999). It is also clear that

the defined functions of a fiduciary do not

include plan design, the amendment of a plan, or

the termination of a plan. Ames; McNab v. General

Motors Corp., 162 F.3d 959 (7th Cir. 1998). This

is not the first time we have considered this

issue in the context of a spin-off and the

attendant dissatisfaction with transitional plan

provisions. In Ames we said:

Plaintiffs wish that ANC had designed its

transitional programs so that their group would

be entitled to the bridging benefits given to the

corporate staff department, or at least to the

extra credit for ANC pensions that the unionized

employees won for themselves. But in order to

maximize the value of Food Metal when it conveyed

that division to Silgan, ANC chose to structure
its plan differently. This is a design decision,

not a decision implicating an individual’s rights

to specific benefits, and as such, ANC was free

to make it for business reasons.

At 757. The choice of the Human Resources plan

does not implicate NHRC’s fiduciary duties.

 But, given that an entity can be a fiduciary

for some purposes and not others, we could arrive

at a different answer when the question involves

the administration of the plan, including the

investment of the money transferred from the EWI

plan. ERISA provides at 29 U.S.C. sec.

1002(21)(A) that:

[A] person is a fiduciary with respect to a plan

to the extent (i) he 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, (ii) he renders

investment advice for a fee or other

compensation, direct or indirect, with respect to

any moneys or other property of such plan, or has

any authority or responsibility to do so, or

(iii) he has any discretionary authority or

discretionary responsibility in the

administration of such plan.

Here, when the money was received from EWI and

deposited in the money market account, there was

no plan, other than the Leasestaff plan, in

effect. While some funds were apparently

deposited in Leasestaff, the employees’ biggest

complaint seems to be that the funds were

deposited in money market funds, rather than

accounts which reflected their individual

elections. Even though there was no actual plan

in effect when the funds were precipitously

transferred, these are pension funds, subject to

ERISA, and under the circumstances we think it

fair to say that someone had a fiduciary

obligation to manage the funds appropriately.

 Thus we reach the next issue, which is whether

those fiduciary duties were breached. The alleged

breach involves the deposit of the funds into a

money market account, rather than into

individually selected investments. For several

reasons, we find no breach. First, it is

uncontested that NHRC--through no fault of its

own--did not have sufficient information to allow

it to invest the funds into individual accounts

until April 1997. Secondly, investing in a money

market fund can hardly be characterized as

irresponsible.

 Finally, as the district judge said, "No harm;

no foul." The employees suffered no damages. The
evidence in the record shows that during this

time period the participants fared better in the

money market funds than they would have in the

individual investments they had previously

chosen. If one measures the gains the assets made

in the money market accounts and the gains they

would have made had they been invested in

November 1996 according to the employees’

elections, one finds that the employees suffered

no loss. The funds earned $23,886 in the money

market accounts and would have lost $24,983

otherwise, a total benefit of $48,869.

Furthermore, the investment was not a risky

choice which could give rise to liability even in

the absence of damages. Cf. Leigh v. Engle, 727

F.2d 113 (7th Cir. 1984).

 The facts on which the calculations are made

cause us to detour to the final issue the

employees raise: should affidavits, including

those on which the calculations are based, have

been stricken from the record. The affidavits are

those of Michael Sweeney and Michael Davis.

Sweeney provides factual data regarding earnings,

and based on that information, Davis provides the

expert opinion that plaintiffs did not lose, but

actually gained, from the deposit of the money in

money market accounts.

 The employees say the affidavits should be

stricken for failure to comply with disclosure

orders entered by the district court. They say

that, in fact, the documents on which Sweeney

relies were never produced or disclosed to the

plaintiffs. Also, plaintiffs say no information

about Davis was disclosed prior to the filing of

the summary judgment motion. Therefore, the

argument goes, NHRC should be precluded from

using his affidavit. NHRC responds by saying that

this is a last-ditch effort to avoid summary

judgment and that the employees knew what NHRC’s

position was on damages and how it intended to

prove it early on. Besides, NHRC says, even if

all of the evidence were stricken, it would not

matter because it is plaintiffs’ burden to prove

loss and they haven’t done so.

 Our only role on this issue is to determine

whether the ruling was arbitrary and capricious.

Cleveland v. Porca Co., 38 F.3d 289 (7th Cir.

1994). We find that it was not. Accordingly, the

affidavits were properly before the court. The

judgment of the district court is AFFIRMED.

/1 The original defendants were Tecumseh and NHRC.

The appeal as to Tecumseh was dismissed on March

13, 2000.