NEW ORLEANS - A 401(k) service provider is not a fiduciary under the Employee Retirement Income Security Act because it did not exercise discretionary authority and, therefore, it was not liable for any damages that might have occurred during an alleged freezing of the plan participants' accounts, the Fifth Circuit U.S. Court of Appeals ruled July 9 in an unpublished opinion (Sonya Turner, et al. v. Pan American Life Insurance Company, No. 11-31006, 5th Cir.; 2012 U.S. App. LEXIS 1396).