Has anyone dealt with the issue of a fiduciary liable for breach of fiduciary duty waiving his share of benefits from restorative payments to the plan? The result would be a smaller restorative payment, but would still restore participant accounts properly. A DOL agent commented that he had seen guidance disallowing this type of waiver, but I have not been able to find anything. I'm sure he would like to disallow it because it would also reduce the amount of any penalty. I did find some PLRs that approved restorative payments with this structure but nothing from the DOL. Any thoughts or citations?
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