Being a fiduciary under the Employee Retirement Income Security Act ("ERISA") is a huge responsibility fraught with responsibilities and the risk associated with those responsibilities. When claims of impropriety in the management of a retirement plan or its investments are alleged, courts will first scrutinize a plan's fiduciaries (which may include, among others, the sponsor, the sponsor's employees responsible for operating the plans, investment advisors, investment managers, and potentially certain other advisors) to determine whether their duties were carried out in accordance with the high standards required by ERISA. When a breach of fiduciary duty is found, there could be many negative effects on the plan and parties dealing with the plan or its assets. In addition, each fiduciary responsible for the breach may be subject to personal liability, which could be devastatingly expensive.
Because the stakes are so high, Epstein Becker Green's Employee Benefits attorneys guide employers, investment managers and advisors, trustees, investment fund managers, and other plan service providers, as well as parties dealing with or entering into transactions with plans, through the maze of ERISA's fiduciary provisions and the applicable regulations by the U.S. Department of Labor ("DOL").
We help clients understand and comply with ERISA's complex—and not always intuitive—requirements and prohibitions in order to minimize their risk of liability. Specifically, our services in this area include:
- Counseling clients on their fiduciary responsibilities under ERISA
- Structuring and documenting the delegation and allocation of fiduciary and other responsibilities with respect to a plan
- Conducting comprehensive strategic reviews of clients' current operations to avoid or mitigate against any exposure to ERISA enforcement or risk of civil and criminal charges being brought against a sponsor's employees, shareholders, and trustees, and other advisors and service providers, and recommending best practices to limit fiduciary exposure
- Guiding employers through 404(c) participant-directed investment plans, participant education, and reporting and disclosure requirements
- Advising on the proper handling of claims disputes
- Fixing fiduciary breaches and providing legal support in any audits, investigations, or lawsuits resulting from those breaches
- Providing training for persons acting in a fiduciary capacity, including, among other things, counseling retirement committees on their fiduciary responsibilities
- Advising on the hiring of fiduciaries and other outside advisors and service providers generally, and negotiating their engagement
- Advising fiduciaries on prudence questions in the investment of plan assets and how to avoid prohibited transactions involving such assets
- Advising on issues covered by advisory opinions and prohibited transaction exemptions and other guidance issued by the DOL
- Providing support for reporting and disclosure of fees by service providers, and counseling clients on the reasonableness of fees paid to plan vendors
- Advising managers of plan assets, including investment managers and private equity and fund managers of plan investments, in order to avoid prohibited transactions
- Advising owners and advisors of IRAs on issues involved in making alternative and non-traditional investments