Ary Rosenbaum - The Rosenbaum Law Firm P.C.

People can promise you the moon, but they may deliver far less. That is why despite the promises made by your plan providers; you should always read their contract to determine whether they are delivering you what they promised.

A few years ago, an advisor looking at a prospective client showed me their agreement with their current ERISA §3(38) fiduciary. The only problem is that there was nothing in the contract that suggested that the fiduciary was an ERISA §3(38) fiduciary or was exercising discretionary authority over the fiduciary process. So for all intensive purposes, the provider may be providing the service, but the contract says differently. So imagine if the plan sponsor has to sue the fiduciary for a breach of fiduciary duty and realize that the contract doesn’t protect them because the contract never claimed they were getting that 3(38) service.

So rather than taking the plan provider’s word, I recommend all plan sponsors to read those contracts to make sure they got what they bargained for. Otherwise, it’s another breach of fiduciary duty.

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