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Austin: Read the rule - it lays out the requirements to be a fiduciary. It can be complex, but it's been being discussed for about 7 years now - no lack of information out there about it. And it is possible that if you recommend to a friend that they sell investments and close an account, you could (if you meet the few other requirements) be a fiduciary. Seyfarth Shaw's summary is (emphasis mine): The general rule is that a person is a fiduciary if the person provides recommendations or advice for a fee (MoJo comment - whether direct or indirect!) regarding: the advisability of acquiring, holding, disposing or exchanging plan or IRA assets. This includes a recommendation as to taking a distribution from a plan or making a rollover to an IRA; the management of such assets, including assets rolled over or otherwise distributed from a plan or IRA to another plan or an IRA; or an appraisal, fairness or similar statement, verbal or written, with respect to the value of such assets in regard to a specific transaction(s) involving the acquisition, disposition or exchange of such assets by the plan or IRA; Another good summary is here: https://www.whitecase.com/publications/alert/dol-issues-final-fiduciary-rule-defining-investment-advice-under-erisa-and-code And another (attached as a pdf) And of course, the source: https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/completed-rulemaking/1210-AB32-2 As I said in a previous post, the ROBS promoters I've seen actually do "promote" the use of plan/IRA money - which is a recommendation to sell. My employer has spend 3 years and MILLIONS of dollars to ensure we are in the right place. In some instances, we have morphed to ensure we aren't a fiduciary (and to ensure the advisors who bring us business are paid a "fee" instead of a "commission" to meet certain exemptions for them and us), and in others, we have chosen specifically to be a fiduciary. Case in point - our outbound call center - where we deal with large balance vested terms and ask if we can help them establish an IRA for a rollover of plan balances. WE MAKE NO SPECIFIC INVESTMENT RECOMMENDATIONS. WE CHARGE NO FEE FOR THAT SERVICE (but indirectly will make money off of an IRA we open). Both internally, and Groom law have concluded that makes us a fiduciary - so we accepted that are are now a fiduciary with respect to that activity (and FINRA licensed all those reps to better be in compliance). Schwab (a former employer) took the other approach and disbanded their outbound efforts to capture rollovers (and rumor has it, shopped around to sell their retirement services business - because they are in the game for the rollovers). 'nuff said. Whos-a-Fiduciary-Now.pdf

Is the ROBS itself not an investment? Is the ROBS not expected to pay off as an investment in your franchise or business? If it isn't, how can we justify putting investable plan assets at risk?

You are not missing anything. I agree with one of my co-workers who pointed out that controversy fills conference seats.

I don't see 4/1 factoring into this at all. He is past his RBD, the only reason he wasn't paid is that is vested AB was zero.

Although I do recall in the '80s the legal profession did try and go after the CPAs for practicing law without a license about their tax practices. Had the lawyers won that my guess Austin couldn't prepare prototypes. I also know a few lawyers that don't think a non-lawyer is qualified to complete the prototype check list.

The service providers would presumably just provide the necessary information and a form permitting the participant to elect to roll the money over to an IRA. This would not represent a recommendation to roll the money over, and (one presumes) they would not be recommending a specific IRA in any event. Those who do make such recommendations are the people who should perhaps be worrying whether that makes them fiduciaries. Isn't the idea to make it so that the people suggesting investments are not being self-serving in doing so? The employer may have some responsibility in selecting a default IRA provider but otherwise one presumes that the wise employer will not otherwise be trying to push people to cash out of the plan (unless mandated by the terms of the plan) or where to put the money.

As far as I can tell the responsibility is on the service providers to document they discussed/ determined it was in the best interest of the participant to roll to an IRA. The plan sponsor would not have the necessary information to make determinations if the IRA service provider was acting in the best interest of the participant. The participant would need to hand over personal/private information to the plan that the plan sponsor/trustee has no right to demand.

KInda, sorta, like when they call the 3% non-elective a "match"

Unfortunately, with characteristics of a hostile takeover!