Thursday, November 20, 2014

What Might Mid-Term Elections Mean for Retirement Saving?


Charles Dickens could have been describing the biennial American election cycle when he set down the opening lines to A Tale of Two Cities: “It was the best of times; it was the worst of times...”  The months leading up to the first Tuesday in November every two years remind us that we’re part of a great experiment in self-government, clearly a “best,” as many systems of government go.  But the debates, the partisan media dialogues, and the advertising of the political seasons sometimes remind us that politics can bring out the worst in us when it comes to decency, honesty, and respect for differing opinions. 
That said, when we consider the alternative – a system without citizen choice – there’s no question that our imperfect system is preferable to the alternatives.  Now that the nation’s voters have spoken, and the U.S. Congress has realigned with the Republican Party in the majority in both House and Senate, what might it all mean for legislation in general, and retirement plans and retirement saving in particular? 

Unlike a novel, we can’t sneak a peek at the final pages to see how this drama may end.  More like a TV series approaching a finale, the writers and directors – our lawmakers in Congress – are still scripting the outcome.  Even the lawmakers don’t know how things will play out.  Will we see a major overhaul of the Internal Revenue Code?  Will current tax incentives to save for retirement be maintained, or will they be cut back to provide revenue to balance a chronically strapped federal budget?  Or will stalemate continue on Capitol Hill, with a Congress controlled by Republicans and a Democrat in the Oval Office?  
Some optimists feel that a Republican Senate and a now-more-overwhelmingly Republican House may want to prove to the electorate before the 2016 presidential election that they can get things done.  In the Senate, that will require some degree of cooperation with Democrats, who can still block most actions with a filibuster, since Republicans do not hold a filibuster-proof majority of 60.  House of Representatives Speaker John Boehner, with a more solid majority in that body, may have less need to fear mutiny within his party ranks, and as a result may be willing to advance legislation that has at least some nonpartisan appeal in order to attract the support of some Democrats. 

Speaker Boehner knows that passing legislation in the House is not enough to get a bill to President Obama’s desk.  It must also pass in the Senate, and Democrats there will likely be very willing to filibuster legislation they can’t support.   President Obama, conscious of his legacy as presidents usually are in the waning days of their leadership, may want something to show for his final two years in office.  This would certainly require that he meet Republicans halfway on any legislative initiatives, foreign or domestic. 
Some are less optimistic.  Pessimists point to new Republican senators coming from solidly red states, and having decidedly conservative rather than moderate credentials.  Some of the Democrats who lost, like Senator Mark Pryor of Arkansas, were middle-of-the-road lawmakers who tended to work across the aisle.  Result?  Some feel it will be a more partisan Senate than before the election.  Reinforcing this is the fact that Republican campaigns in this cycle ran against President Obama as much as against the Democratic incumbent, and won – at least in part – by linking that incumbent to the President.  How willing will those electorate-conscious newcomers be to support legislation that might be moderate enough to attract a presidential signature, rather than a veto? 

But incumbency is a two-edged sword, and while a recent Associated Press poll showed only 30% of interview subjects were satisfied with the job being done by President Obama, only 25% said they were satisfied with the Republican Party as a whole.  The Democrats enjoy similarly low stock as a political party.  That sounds like anything but job security.  These days simply being in office is enough to make you unpopular, and those who have just been elected will have to face their constituents again in the next cycle.  That might be enough to temper uncompromising partisanship, but that remains to be seen.
Being optimistic, let’s assume that the 114th Congress being seated in January of 2015 will find it possible to work together occasionally, and bring at least some legislation to President Obama’s desk for signature and enactment.  What might that legislation look like?  If it doesn’t happen during the lame duck session between now and the 2014 adjournment, one area of likely agreement is a group of expiring tax provisions that have come to be known as “tax extenders.”  There are many, and include such things as a research and development credit, alternative energy generating incentives, and the IRA qualified charitable distribution, the latter allowing taxpayers age 70 ½ and older donate up to $100,000 per year tax-free to charitable organizations.  That has enjoyed bipartisan support in the past, and probably will again.

While many of both conservative and liberal leanings believe that a comprehensive rewrite of the tax code is needed to restore simplicity and fairness, it will be anything but easy.  Several constituencies have a big stake in maintaining major elements of the current tax code.  The home mortgage interest deduction, the exclusion for employer-provided health insurance, and deferred taxation of retirement savings – to name three of the most high-profile – are highly valued.  Giving them up, or seeing them seriously restricted, would not be readily accepted. 
In order to reduce individual or corporate tax rates – oft-stated goals of tax reform – restricting these or other targeted tax incentives has often been proposed as a way to free up the necessary fiscal resources.  The only major tax reform proposal to come out of the current Congress, proposed by retiring Ways and Means Committee Chairman Dave Camp, included major new restrictions on retirement savings tax incentives.  Curbing these incentives to some degree has been mentioned in virtually every serious discussion of tax reform.  Retirement saving  tax incentives are definitely in the budget-balancing crosshairs, even though they serve a very, very important purpose in American quality of life.  Hopefully that can be made clear to lawmakers, if they ever get to the point of deliberating tax reform.

“If” seems to be the operative word.  In a post-election analysis published by USA Today, a University of Minnesota political scientist predicted continued partisan strife in Congress, believing that we will see “…even more bitter, partisan, white-knuckle politics.”  We surely hope that he’s wrong for the sake of good governance of our country.  For retirement saving, on the other hand, perhaps the status quo is not so bad.

Friday, October 17, 2014

What are EBSA’s Plans for Brokerage Windows?


The Department of Labor’s Employee Benefits Security Administration (EBSA) has had brokerage windows on its radar since the agency issued final regulations on investment and fee disclosure for participant-directed retirement plans in October of 2010.  The latest evidence is EBSA’s request-for-information (RFI) in August of this year asking for public comment on these investing arrangements in individual account-type plans, such as 401(k)s.  EBSA is asking the public and those in the industry a series of “39” questions, the stated purpose being to determine “… whether, and to what extent, regulatory standards or other guidance concerning the use of brokerage windows…are necessary to protect participants’ retirement savings.” 
For the unfamiliar, a brokerage window in a retirement plan is a portal through which a participant can select from a virtually limitless array of investment choices; much broader than a typical selection of investments available to retirement plan participants.  It is an option we most often see used by experienced investors who are motivated to research and inform themselves on both conventional and unconventional investments, and do not want to be restricted to a preselected menu of mutual funds, annuity products, or other traditional investments. 

A year and a half after issuing its 2010 investment and fee disclosure regulations, in May of 2012, EBSA issued field assistance bulletin (FAB) 2012-02 to add clarity to these regulations.  FAB 2012-02 contained more than three dozen items in question-and-answer format.  Based on EBSA’s approach in FAB 2012-02, many felt the agency viewed brokerage windows as a “bogey” on their radar, something to aim for with their regulatory armament.

Under EBSA’s regulations and FAB 2012-02, employers are required to identify specific designated investment alternatives – DIAs—and provide for each of these such details as investment performance history, expense ratios, risk-and-return characteristics, and fees.  But EBSA went beyond the reach of its regulations in FAB 2012-02.  The agency attempted to adapt the legitimate DIA disclosure requirements in the regulations – which are suited to specific individual investments – to the brokerage window option, which can offer almost limitless choices.  FAB 2012-02 proposed rules for brokerage windows that would have required a level of participant investment monitoring virtually impossible under current platforms. 
FAB 2012-02 set arbitrary thresholds for participant choices of investments that might be made through a plan’s brokerage window.  If enough participants chose a particular investment through that brokerage window, that investment would become a de facto DIA, with all of the information gathering and investment disclosure requirements that entails.  Why?  EBSA has repeatedly expressed a suspicion that plans may identify few – or no – DIAs, and establish only a brokerage window, in an effort to circumvent the disclosure requirements for DIAs.   

I see two problems with this vein of thought.  First, brokerage windows investments are typically reported to retirement plan recordkeepers and administrators in aggregate amounts, not in discrete “by-the-investor” totals with transaction activity.  Those providing recordkeeping services simply do not have the ability to link to all the possible brokerage options a plan participant may choose from. In other words, FAB 2012-02 was asking for information that was essentially beyond the ability of the industry to obtain, and plan administrators could scarcely comply.  This is information, by the way, which the individual participant does get from the self-directed brokerage provider.  This led to a major backlash of industry opposition.  As a result of the reaction, EBSA at least temporarily changed course, issuing FAB 2012-02R in July of that year to give brokerage windows an exemption from being treated as a DIA. 
Second, I haven’t seen evidence of any trend toward plan sponsors offering a brokerage window to the exclusion of DIAs.  Ascensus provides recordkeeping services to some 40,000 retirement plans, and a query of these plans’ features left us hard-pressed to find any plans, other than owner only plans, that offered only a brokerage window for plan investing.  As we’ve said before, this heightened level of EBSA concern can be characterized as a solution in search of a problem – a perceived problem that from my perspective appears not to exist.

Despite backing down in FAB 2012-02R, EBSA left the door ajar for possible future action.  The close of FAB 2012-02R stated that “The Department intends to engage in discussions with interested parties to help determine how best to assure compliance with these [fiduciary] duties in a practical and cost effective manner, including, if appropriate, through amendments of relevant regulatory provisions.” 
The DOL’s Semiannual Regulatory Agenda released in May of this year listed “Standards for Brokerage Windows – PreRule” as a priority. This agenda item was fulfilled with EBSA’s August RFI.  A reading of the 39 questions and their subparts does not give comfort to those who fear that EBSA is committed to restricting the use of brokerage windows, one way or another.  Let’s just hope that the agency was sincere when it used the term “practical” in the sign-off to its FAB.

Monday, September 29, 2014

Let’s Enable More Edelivery


The electronic data revolution has been a blessing in many, many ways.  It has had a few bumps in the road, to be sure.  Data breaches in the systems of major retailers have put sensitive customer data at risk.  We’re all familiar with the communications monitoring and data sharing that has taken place between phone and internet providers and government agencies, which some of us find troublesome from a privacy standpoint.  Theft of laptops, hacking of computers, and high-profile security leaks by so-called whistleblowers are further examples of the risks involved when information is stored electronically.
That said, very few of us would want to go back to paper shuffling and hard-copy transmission, storage and retrieval of information where we don’t have to.  Losing the electronic efficiencies we now almost take for granted would be like stabling a horse in the garage instead of a sedan or an SUV, and feeding hay and grain instead of gasoline.  From internet banking and investing to online purchasing, just about any action or transaction you can name has – or likely soon will have – an electronic dimension or means to execute.  I suspect that very few of us would really want to roll back the clock.   

The world of retirement plans is pretty comfortable with electronic functions, too.  A 401(k) plan participant can change investments, request a distribution, apply for a plan loan, and generally interact with their employer’s plan at its web site with a few keystrokes.  The tax return of a retirement plan, Form 5500, is typically submitted electronically to the Department of Labor on behalf of the sponsoring employer.  The same is true of the information returns that track qualified plan and IRA transactions, Forms 1099-R and 5498 among them. 
But not all dimensions of retirement plan administration are as electronically streamlined as they could be.  One example is what I believe to be the unnecessarily conservative posture of the Department of Labor’s Employee Benefits Security Administration, which we know more familiarly by its acronym EBSA.  In many electronic communication situations in the wider world there is a presumption that information will be delivered electronically.  If a person wishes to receive that information in paper form they must indicate this.  If they fail to do so, they are “defaulted” to electronic delivery.  This is the “new normal” in a great and growing share of communications in modern commerce.

EBSA’s preference – reflected in its regulations governing electronic delivery of retirement plan communications of many kinds – requires that plan participants and beneficiaries affirmatively declare their willingness to receive notices, election requests, summaries and other information, electronically.    Many in our industry, myself included, believe EBSA should be more flexible and more in line with the rest of financial industry in this area.  Given the inclination of many people to put off decision making, or to fail to take action simply out of inertia, it is likely that the lack of an election to receive communications electronically is not necessarily a rejection of that form of delivery.  An argument often made in favor of more automatic enrollment and automatic escalation of deferrals in 401(k) plans – without affirmative election beforehand – is that people often simply fail to act, for no good reason and that this "negative" consent method results in increased participation.   This same logic seems to apply to other plan related communication as well.
I’m not oblivious of the need for safeguards to avoid harming the interests of participants and beneficiaries who are unable or unwilling to receive plan communications in electronic form.  Their rights must be protected, and not everyone chooses to do things in the most modern and up-to-date way.  The option to request things in paper must be preserved.  But it is worth noting that the IRS is onboard with a more streamlined, almost negative consent method for electronic delivery of some important plan communications.  It's clear EBSA seems not to be.  I believe EBSA should take another step into the modern electronic world and relax its current electronic delivery requirements.

Thursday, September 11, 2014

IRS Verdict is in, But Buyer Jury is Out, on QLACs


The Internal Revenue Service took a needed step toward making delayed or longevity annuities a viable option for retirement savers, with its July issuance of qualifying longevity annuity contract (QLAC) final regulations.  This action will make it more attractive for savers to use retirement assets to purchase longevity annuities, which begin their payment stream at an advanced age, such as age 80 or 85.  The key to QLAC appeal will be the ability to exclude annuity contract costs from required minimum distribution (RMD) calculations, and the resulting taxation that generally begins at age 70 ½ .  Up to 25 percent of aggregate IRA and employer retirement plan accumulations – not to exceed $125,000 – can be used for QLAC purchase and still be excluded from the balances that will determine taxpayer RMDs.
The question no one is able to answer at this point is how attractive this investment option will be to those with assets accumulated in IRAs or employer plans.  It is a safe assumption that it will take time for interest to grow.  Longevity annuities are not actually a new product, but until now they did not offer the tax benefits provided by these final regulations. 

Another term some use for longevity annuities is “death insurance.”  If structured to begin payout at an advanced age and to last throughout the annuitant’s lifetime, he or she can be assured that they will not outlive these funds.  A valuable assurance to be sure.  Until now, longevity annuities have typically been purchased with nonqualified assets as part of a comprehensive financial plan intended to provide for an individual or a couple throughout their retirement years. 
At the risk of over-generalizing, it is likely that the buyer of a longevity annuity is a person of above-average wealth, able and willing to part with a substantial sum to purchase a contract whose promised return does not begin until at a date that may be 10, 15 or 20 years in the future.  The younger the buyer, the less expensive the longevity annuity, but the longer one will wait before seeing a return on the investment.  In some cases, depending on how a longevity annuity is structured, there could be no return if the annuitant dies and there is no residual payment stream guaranteed to a beneficiary.  Given these realities, the longevity annuity has understandably been a niche product to date.

The QLAC, after years of congressional and public policy advocacy for it, now offers the special tax incentive of excluding the purchase value from RMD calculations.  Will workers and younger retirees seriously consider this option?  How will it mesh with today’s qualified retirement plan environment?  Will QLACs be embraced, or remain a niche investment product that lacks the broad appeal its advocates have hoped for?
It’s no secret that there is a certain amount of hesitation on the part of plans participants and IRA owners today to annuitizing an IRA or retirement plan balance.  In an earlier time when defined benefit pension plans were common, a “promise to pay” was accepted with less hesitation.  But in today’s largely defined contribution world, in which I will include IRAs, there is greater reluctance to give up control of a large sum of money in exchange for a promise to pay.  Failures of insurance companies, the source of annuities, are not an everyday event.  But high-profile insurance company failures of the past, and the late financial meltdown that led us into the recent recession, have made many savers reluctant to give up control of their assets.  A longevity annuity that does not begin payments until well into the future may take some getting used to for a lot of savers.  Even in cases where this is an alternative that should be considered. 

In the employer-sponsored retirement plan realm, with the exception of defined benefit pension plans, most participants receive lump sum payouts.  The defined contribution plan world has to an increasing degree moved away from annuitized distributions.  If a QLAC is purchased under an employer plan the assets would essentially leave that plan when paid to an annuity provider, but continue to be accounted for as a plan investment in order to enforce the QLAC purchase limits.  It’s clear that shifts in both philosophy and logistics may be needed if QLACs are to make inroads in DC plans. 
For these reasons some feel that QLACs are most likely to gain initial acceptance as IRA investments.  This, in turn, has led to speculation as to whether there could be some “asset flight” from employer plans when a plan participant eligible for a distribution wants to purchase a QLAC when it is most affordable.  For many this will be while they are still in the work force. 
With QLACs, more so than many retirement issues today, the operative expression is “more to come.”

Friday, August 22, 2014

Happy Anniversary, ERISA!


Because summer is a popular time for weddings, it’s also a time of many anniversaries.  2014 marks an important anniversary that is unrelated to marriage but most certainly marks an important commitment to fidelity.  2014 is the 40 anniversary of the Employee Retirement Income Security Act of 1974, or ERISA as it has come to be known. ERISA is the statutory foundation for the regulation and rules that retirement plans must follow to qualify for the tax benefits employers receive when they offer qualified retirement plans to their employees. 

Given the amount of criticism that has been directed at the private sector retirement system recently, some might ask whether ERISA’s 40th anniversary is something to celebrate.  We can certainly find imperfections.  But when we judge something as complex as this body of law, we should view it not with the eye of a perfectionist, but the eye of a realist.  That’s not much different than having a reasonable perspective on interpersonal relationships.  If we’re looking for perfection we are likely to be disappointed.

Very few who are working in the retirement industry today were “in the business” in 1974, the year of ERISA’s enactment.  But an objective look at the state of retirement plans before that time leads to the inescapable conclusion that things have changed for the better.  There may be shortcomings in the implementation and operation of plans under the ERISA umbrella.  But these shortcomings generally have little to do with the intent of its provisions. 

Human weakness and error, intentional or inadvertent, can lead to such failings as unsatisfactory investment choices, inappropriate fees, conflicted investment advice, fiduciary abuses like diverting retirement assets for other business purposes; even such outright crimes as embezzlement.  But such miscarriages of ethics or justice should not unfairly taint the concept of ERISA retirement plans.  There will always be vultures, scavengers and scalawags looking for opportunities to enrich themselves at others’ expense.  That’s not the fault of ERISA. In fact, ERISA is the safeguard to prevent or address these failings.  And, at least in my opinion, ERISA has addressed these pretty well.

Some bemoan the fact that we do not have in place a national retirement program that ensures lifetime benefits to all American workers, benefits like those available to the fortunate minority with defined benefit plans.  As desirable as that might be, in the private sector there are competitive economic forces that play a huge role in determining what benefits an employer can provide to employees and still remain solvent.  And taxpayer funding of such a national program and the accompanying “mandate” is certainly not politically viable at this time.

ERISA has, without question, improved the retirement security prospects of American workers.  Prior to ERISA it was not unusual for profit sharing plans to require 10 or 15 years to reach full vesting, or for defined benefit plan vesting to be reached only at normal retirement age, or upon plan termination.  There were no controlled group rules to prevent abusive business structures that favored the delivery of retirement benefits to a limited group of owners or employees at the expense of others.

There also was no insurance program like today’s Pension Benefit Guarantee Corporation (PBGC) for defined benefit plan.  An example of the consequences of this was the 1963 closure of the Studebaker automobile plant in Indiana.  Its underfunded pension plan left thousands of workers with little, if any, retirement benefits.  There was also no EBSA to ensure that defined contribution plan fiduciaries met their responsibilities of fairness to rank and file employees. 

It was more than a decade – and numerous committees, commissions, surveys and reports later – when Congress finally acted.  Some believe that ERISA legislation only got the support needed for enactment when private businesses became fearful that the states would act individually, creating a patchwork of dissimilar rules that would have made compliance difficult.  Whether such support was motivated by generosity or self-interest, the result – ERISA – was a greater degree of predictability and equity than had existed before.

U.S. retirement plans are at a crossroads.  They are considered a federal budget luxury by some who are more concerned about their perceived impact on tax revenues than they are concerned about our citizens’ retirement security.  Conversely, they are considered by others to be not generous enough, and to provide insufficient guarantees of a dignified retirement. 

Those in the middle of this political and policymaking tug-of-war are most apt to appreciate today’s ERISA-governed retirement plans for the giant positive stride in employee benefits that they represent.   There is more work to be done to lead more Americans to a secure retirement.  But ERISA is the path that has taken us a long, long way toward a highly desirable destination.

Monday, August 4, 2014

Dudenhoeffer Dust Will Take Time to Settle


The U.S. Supreme Court has spoken.  In a June, 2014, decision the Court held in Fifth Third Bank v. Dudenhoeffer that fiduciaries of a retirement plan designed to offer employer securities – an ESOP – are not entitled to a special presumption of prudence in offering employer securities as plan investments.  Specifically at issue was whether such a plan’s fiduciaries are duty-bound to restrict or remove such an investment option when the employer’s financial health is in question, and the value of its securities may be in doubt.
In the background behind the ESOP specifics of this case was the broader issue of whether offering employer securities in any qualified plan should be presumed to be prudent.  Under such a presumption, referred to as the “Moench presumption” for the case after which it is named, the burden of proof that offering employer securities is inappropriate rests with the plaintiff alleging a fiduciary breach.  But, not only did the Court rule that plans designed to offer employer securities have no special presumption of prudence, it rejected the Moench presumption out of hand.  This finding is contrary to several Appeals Court rulings that supported in principle such a presumption of prudence.    

Some have seen the Supreme Court’s ruling as a blow to fiduciaries of plans offering employer securities, expecting a rash of new stock drop lawsuits.  We, as consultants and as retirement plan recordkeepers, have already been asked by some plan sponsors how they might gracefully and in a compliant, participant-friendly manner remove employer securities as plan investments.  Although the selection of prudent investments is clearly the province of a plan’s fiduciaries, we would caution plan sponsors not to react in knee-jerk fashion and blindly remove what might be a prudent option from its investment lineup.
A close look at the Court’s ruling may conclude that it actually raised the bar and made it more difficult for stock drop cases to be brought successfully.  The Court stated in its opinion that it would not be enough for a plaintiff to allege that a fiduciary armed with publicly available information should have recognized that the employer securities being held and offered to participants were over-valued.  To successfully bring a cause of action a plaintiff would also have to plausibly present that

 - a fiduciary could have acted on its knowledge of the business’s solvency and its securities’ value – for example ceasing to offer, or liquidating, plan investments in employer securities – without  violating insider trading laws, and

 - a prudent fiduciary in the same circumstances would not have viewed such actions as more likely to harm the investment fund than to help it; meaning, that market reaction to the fiduciary’s investment changes could actually cause the value of existing investments to drop, to the detriment of participants holding those investments.
Some ERISA litigation analysts are of the opinion that these will be formidable obstacles for a plaintiff, or a class of plaintiffs, to overcome in order to prevail in a stock drop lawsuit.  It will be no surprise if we initially see a spike in the number of lawsuits alleging impropriety in offering employer securities as plan investments.  But it may be that only when lower courts have applied the standards in the Supreme Court’s opinion that we can draw conclusions about the prospects for the success of such litigation in the future.  

Wednesday, July 2, 2014

Be Cautious of Offers to Pass the Fiduciary Buck


The term “fiduciary” is certainly one of the lightning-rods of these times in our industry.  In a period of intense scrutiny of the management and operation of retirement plans, and the arrangements between plans and those who provide services to them, to be a fiduciary is to be under a regulatory and legal microscope.  One need look no further than the dockets of our district and appeals courts, or the news releases published by the Department of Labor (DOL), to conclude that a great deal of time and energy go into policing retirement plans.  Unfortunately, even the most honest and well-intentioned plan administrators and service providers can be exposed to lawsuits or regulatory sanctions for outcomes seen as or alleged to be damaging the interests of benefit plan participants.  And, when the layers of the legal or regulatory onion are peeled away, “fiduciary” is as often as not at the core.
The most high-profile regulatory event of these times is the effort by the DOL’s Employee Benefits Security Administration (EBSA) to issue regulations defining who should be considered a fiduciary with respect to retirement plans, and the standards to which they will be held.  These regulations have several times been delayed, and it is unclear when, or if, they will ultimately be issued.  But, with or without such regulations, the mandates of the Internal Revenue Code and ERISA, and the eagerness with which lawsuits alleging fiduciary breaches are filed, already are enough to make potential plan fiduciaries uneasy. 

Given the demonstrated responsibility and related risk in being a fiduciary to a retirement plan, it’s not too surprising that some enterprising individuals and companies are offering themselves as solutions to this risk.  And, also not surprising, some employers, fearful of the risks accompanying fiduciary status, are listening.  They recognize that they don’t necessarily understand their obligations and responsibilities and the prospect of insulating themselves from risks involved in administering a retirement plan is appealing.  And in many cases, a course of action that results in the plan fiduciary hiring an expert is in the best interest of both the fiduciary and plan.  This said caution and understanding on the part of the plan fiduciary is still needed.
The most aggressive of these fiduciary service marketers propose to transfer all employer fiduciary risk to themselves by the delegation of certain functions that may include plan administration, investment management or a combination thereof.  With all fiduciary obligation for those functions lifted from the employer’s shoulders, they claim, the employer can focus on making their enterprise successful, rather than on the sometimes-indecipherable details of employee benefit administration. 

The marketing pitch is likely to contain official-sounding references to one of several classes of fiduciary, and tout the level of protection – even immunity – that the fiduciary service provider can give the employer.  But, whether the marketer presents itself as a 3(16) fiduciary, a 3(21) fiduciary, a 3(38) fiduciary, or what-have-you, there is one inescapable fact that often times you will not see prominently advertised.  While a service provider can take on fiduciary liability by the tasks it performs, the employer is always ultimately responsible for fiduciary decisions.  That’s because it is under the employer’s ultimate fiduciary authority that entities such as investment managers, third-party administrators, or those who only perform ministerial functions, and all who serve the plan, are chosen.   The employer is ultimately responsible for the providers they appoint to fulfill these roles and has an ongoing obligation to monitor the actions of each provider.  While use of experts to fulfill these roles is often a prudent course of action for the plan fiduciary, they must always remember that their fiduciary obligation doesn’t end with this appointment. 
When you dig deeper into the fine print of some of these fiduciary promotions you will typically find disclaimers.  These disclaimers, when interpreted with only a modicum of legal expertise, make it all too clear where the buck stops. It stops with the employer.  It is imperative that an employer understand exactly what is being provided and any limitations when choosing to use these types of fiduciary services.  All else being equal, an employer will be in better hands working with an administrator or service provider that acknowledges an employer’s fiduciary risk – and will help limit it through good services and administration and in some cases may even assume some of that risk – rather than someone who proposes to eliminate it all and doesn’t provide the entire fiduciary story.