Why Retirement Plan Sponsors Should Be Careful About Buying “Fiduciary Services”

Ary Rosenbaum
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When I was a kid, going to the supermarket seemed easier than it is today. Sure, we had no UPC scanners at checkout, but it seemed we needed less time to shop because we had less choice. Back in those days, we had one variety of Cheerios, one variety of Tide, and life was OK (except for the stagflation days of the late 1970s). These days we seem to have about a dozen or so varieties of Cheerios and enough varieties of Tide for its very own aisle. I remember there used to be only form of Listerine that came in a wrapped glass bottle. Gargling that stuff was like gargling gasoline. So over the years, they added more varieties and concoctions of it. So a few weeks back, I purchased their Listerine Zero because it has no alcohol and was less intense than the original formula. The problem is that after buying it, I noticed that it didn't fight against plaque or gingivitis. It only killed germs that caused bad breath. So I got that going for me. A mouthwash without plaque protection is like beer without alcohol. The point of this supermarket history is to point out that despite the fact the product is named Listerine; you actually have to look closely at the label to make sure that you are getting what you are expecting. The same thing goes for plan sponsors in buying plan services especially when using the word, fiduciary.

Many of the actions involved in operating a plan make the person or entity performing them a fiduciary. The fiduciary status is based on the functions performed for the plan, not just a person’s title. A plan sponsor is a fiduciary, so are the individual trustees. A fiduciary duty is the highest standard of care at either equity or law. A plan fiduciary is expected to be extremely loyal to the plan and a breach of that fiduciary duty may involve personal liability. Since the duty of a plan fiduciary is extremely important, plan sponsors need to hire plan providers that will help minimize that potential liability. One of the ways to minimize that liability other than best practices is to hire a financial advisor that will serve in a plan fiduciary role as well, so that advisor will either stand in the shoes of or stand next to the plan fiduciaries. Having an advisor serving is a fiduciary is a great way for the plan sponsor to spread the blame and liability when they get sued by plan participants. The problem is that many plan sponsors think when they are getting a plan provider offering “fiduciary services” is that they are getting someone serving in a fiduciary capacity. Too often, they found that not be the case the hard way, in a court of law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ary Rosenbaum, The Rosenbaum Law Firm P.C. | Attorney Advertising

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