Peter Gulia

Concerning several organizations, I've handled problems of the kind you describe. It happens with many health systems and some other charities. Depending on the facts, there is a solution that has been successful (most often, with zero tax or sanction cost). Because it's not published by the IRS and has at least two aspects that are a little fact-sensitive, I prefer to discuss it directly. Please feel free to call me.

To Bird, david rigby, Everett Moreland, and jpod, thank you so much for your helpful pointers. Whether through these BenefitsLink boards or by telephone or e-mail, please let me return the professional courtesy when I can help you think through a situation.

In 1968, an employer established a money-purchase plan. The plan always has had only one participant, who also is the employer’s sole shareholder and sole director and is the plan’s administrator and trustee. The plan and trust documents are individually-designed. The employer now wants to terminate the plan, and the participant would instruct that her final distribution be paid as a direct rollover into an IRA. The participant’s vested accrued benefit is more than $1 million. A practitioner who preceded me seems to have furnished a regular course of plan amendments through 2003, and all of these are signed. If I accept, I’d be engaged to draw a plan amendment for recent years’ tax-law changes, if any (the plan already has a choice of 100%, 75%, and 50% survivor annuities), and the termination. There is NO IRS determination – ever. For terminating a plan, ordinarily one uses Form 5310 to get an IRS determination that the plan remains tax-qualified in form. Given the facts described above, is a Form 5310 application sensible? Would the IRS reviewer seek to retrace the entire 40-year history of plan documents and amendments? (The Instructions state that, in the absence of a preceding IRS determination, the applicant must submit the initial plan and all amendments.) If so, how worried should one be that the IRS would uncover some decades-ago document defect that disqualifies the plan? (If it matters, it would be difficult to find an operational defect because all that’s happened so far is that the employer contributed each year 25% of its employee’s compensation.) Assuming that the amendment I draw would be correct, is it “safe” to file a Form 5310 (without any preceding determination)? Or should I tell my prospective client that it’s wise not to open this door (and, without any IRS review of the plan, simply to believe it to have been tax-qualified)? I’d appreciate your views, especially about why it would be wise or unwise to use an IRS determination procedure.

Without commenting on any of the choices that Confused in WV faces: Some courts have interpreted the Contracts Clause of the U.S Constitution or a similar or related provision of a State constitution or statute to protect State and local government employees' rights under governmental pension plans. That protection might be less than, similar to, or more than what ERISA provides for those nongovernmental pension plans governed by ERISA. For example, New York law restrains not only a cutback of accrued benefits but also a cutback of an employee's right to obtain future benefit accruals. If understanding this law is important to a participant's decision-making, he or she might want his or her expert lawyer's advice.

The DoL has published some views on other aspects of its rule [29 C.F.R. § 2510.3-2(f)] of safe-harbor conditions under which a made-available 403(b) program is not a plan “established or maintained” by an employer. But on questions about how much choice of “funding media or products” or “contractors” is enough to be “reasonable” in the sense provided by the rule, it hasn’t published guidance beyond the rule itself and the 1977 and 1979 preambles to the interim and final rules. An ERISA Advisory Opinion is unlikely. The 1979 preamble to the final rule stated that “such decisions can be made properly only on a case by case basis” and noted ERISA Procedure 76-1, § 5.01 (“inherently factual”) to signal employers that the DoL didn’t want to “referee” these questions.

Darren, page 8 of Field Assistance Bulletin 2006-1 [http://www.dol.gov/ebsa/pdf/fab2006-1.pdf] includes a suggestion that might be useful in the circumstances you described. Reading that background might help the plan administrator prepare to ask for its lawyer's and other experts' advice. (Please understand that I express no view about whether the Bulletin is a correct explanation or application of relevant law.)

At the outset of this post, I’ll mention my personal view: anyone – whether a lawyer, accountant, actuary, or none of those – ought to be permitted to render legal advice. Along with this, a person should be responsible (as provided or limited by contracts, negligence, and other law) for his, her, or its legal advice. But until we change today’s law, John Simmons has a good idea that we need clearer communication about what that law is. Although it might be nice to have a playbook, it’s doubtful that a nongovernmental association could publish anything that would state enough “bright-line” conclusions to be much help. While I’m reluctant to serve as a messenger of unhappy tidings, here’s one reason why. From 1937 to 1978, lawyers’ associations and associations of persons in other professions and occupations negotiated “peace treaties” that tried to state agreed-on views about what expressions of information are or aren’t legal advice. (And some of the businesses then wanted a “law” or rule to support not answering a question.) Also, some bar associations published advisory opinions. Among these, the New York State Bar Association in 1975 and the American Bar Association in 1977 published opinions on what they thought ought to be allowable or “out-of-bounds” for a nonlawyer’s services concerning employee-benefit plans. The United States Government challenged some of the “treaty” efforts as contrary to antitrust law. See, for example, United States v. New York County Lawyers’ Ass’n, 1981-2 Trade Cases (CCH) ¶ 64,371, 1981 U.S. Dist. LEXIS 16250 (S.D.N.Y. Oct. 14, 1981) (consent decree enjoining lawyers’ association from “[a]dopting, promulgating, publishing or seeking adherence to any statement of principles, code of ethics[,] or other guide, rule or standard which [sic] restricts or governs, or delineates as proper or improper, practices or activities of corporate fiduciaries[.]”). Bar associations withdrew many of the “treaties”. See, for example, 105 Reports of the American Bar Association 291, 382, 637, 789 (1979). A few years ago, an ABA task force tried a project that would publish a model definition of the practice of law. In the face of many negative comments, including a letter from the U.S. Department of Justice and Federal Trade Commission, the ABA abandoned that project. That said, the antitrust concerns don’t preclude employee-benefits professionals (acting personally, rather than for trade associations) from communicating about what makes sense for a practitioner or service provider to answer and how.

I am not aware of a particular authority. A standard in considering the reasonableness of a plan's expense asks whether "the service is appropriate and helpful to the plan ... in carrying out the purposes for which the plan is ... maintained." 29 C.F.R. 2550.408b-2(b). Ordinarily, a fiduciary incurring expenses to be paid from the fiduciary entity must use prudence and diligence to avoid duplicative or otherwise excessive expenses. But considering differences in the circumstances of those who serve as trustees of a multiemployer pension plan's trust, it's perhaps understandable that those trustees might need to consult two or more law firms to assure that each trustee gets advice from a lawyer he or she trusts. Courts often interpret ERISA in ways similar to the common law of fiduciary relationships. However, 29 U.S.C. 186 and other Federal labor law, to the extent that it requires or prefers that a multiemployer plan be administered by trustees from "union" and "employer" classes, might vary somewhat the contours of a fiduciary's duty to cooperate with his or her co-fiduciaries.

mjb, thank you for the very helpful information.

A trustee can’t ever allow trust assets to be outside of its possession or control. For a plan that’s governed by ERISA’s Part 4, a fiduciary (including a plan’s trustee or investment manager) must not maintain the indicia of ownership of any plan asset outside the jurisdiction of the United States’ courts. ERISA § 404(b). There are some variations with some financial-responsibility conditions. 29 C.F.R. § 2550.404b-1. A recent ERISA Advisory Opinion describes a system of sub-custodianships under which every sub-custodian is a branch, subsidiary, or agent of a U.S.-domiciled bank. http://www.dol.gov/ebsa/pdf/ao2008-04a.pdf

While mjb is correct in what he or she wrote, some further background might be helpful to some readers. There are two different analyses: (1) whether a retirement plan should accept a disclaimer and, if the plan accepts it, (2) what tax effect it might or might not have. Nontax law (usually ERISA) Even if a disclaimer could qualify for some or all Federal tax purposes, it might not accomplish much if the retirement plan doesn’t accept it. A plan administrator decides whether the plan permits or precludes a beneficiary’s disclaimer, and a plan might specify (or a plan administrator in its discretion might decide) what conditions a disclaimer must meet for the retirement plan to accept it. If a plan isn’t governed by ERISA, it’s likely that at least one State’s law will be relevant in the plan administrator’s evaluation on whether to accept the disclaimer. If a plan is ERISA-governed, a plan administrator might assume that ERISA’s preemption of “State laws insofar as they may … relate to” the plan allows the plan administrator to ignore State laws. Under that view, a disclaimer complies with applicable State law because the State law that might not be met isn’t applicable. Some documents of some ERISA-governed plans recognize a disclaimer only if it complies with a relevant State’s law. And if a plan is silent on what conditions make a disclaimer, the plan might permit or require its administrator to interpret what the word disclaimer means. Federal tax 26 C.F.R. § 25.2518-1©(1)(i) states that “[a] disclaimer of an interest CREATED IN A TAXABLE TRANSFER BEFORE 1982 which [sic] otherwise meets the requirements of a qualified disclaimer under section 2518 and the corresponding regulations but which [sic], by itself, is not effective under applicable local law to divest ownership of the disclaimed property from the disclaimant and vest it in another, is nevertheless treated as a qualified disclaimer under section 2518 IF, under applicable local law, the disclaimed interest in property is transferred, as a result of attempting the disclaimer, to another person without any direction on the part of the disclaimant.” There is no similar rule stated for a disclaimer of an interest created after 1981. A possible (but not my) interpretation 26 C.F.R. § 25.2518-2 is that a disclaimer need not be effective under nontax law if its effect meets all of the conditions required by the tax regulations. In practice, it’s rare to find a disclaimer that’s ineffective under nontax law but nevertheless qualifies for IRC § 2518 tax treatment. Often, an ineffective disclaimer can’t meet the tax condition that the benefit must pass without any direction by the disclaimant. (If a disclaimer isn’t effective and thus the beneficiary/disclaimant isn’t deemed to have predeceased, what makes it proper for the retirement plan not to provide the benefit to the named beneficiary?) Likewise, it’s not clear that a disclaimer is irrevocable if the disclaimer is, under nontax law, void or ineffective. And even for Federal tax purposes, treatment as a qualified disclaimer under IRC § 2518 isn’t the whole ballgame. Although following IRC § 2518 provides some relief for some other Federal tax purposes, it doesn’t directly provide relief for Federal income tax purposes. If a disclaimer isn’t effective under nontax law (whether State law or ERISA) one might worry about what arguments the IRS could assert concerning why the beneficiary isn’t really rid of the income. mjb is right to explain that a disclaimer of a specified portion of a benefit can be permitted. Receiving the first minimum-distribution payment but promptly disclaiming all else is one frequent use of the partial-disclaimer opportunity.

Here’s an overview of a few of the wider points. A disclaimer (also called a renunciation in some States) is a writing in which a beneficiary states that he or she doesn’t want to receive a benefit. To be valid and, if desired, to achieve tax purposes, the disclaimer must carefully state specified conditions. Is a disclaimer permitted under a retirement plan? A retirement plan won’t permit a participant to disclaim his or her benefit because a retirement plan provides that a participant cannot forfeit or transfer any right he or she has under the contract. But a retirement plan might permit a beneficiary to disclaim a benefit. See IRS General Counsel Memo 39858 (Sept. 9, 1991); IRS Letter Rulings 9226058, 9037048, 8922036. If permitted (or at least not precluded) by the retirement plan, a plan administrator may accept a beneficiary’s disclaimer. If a beneficiary makes a valid disclaimer that the plan administrator accepts, the retirement plan benefit will be distributed (or distributable) as if the beneficiary/disclaimant had died before the participant’s death or before the creation of the benefit disclaimed. Tax consequences: If a beneficiary makes a valid disclaimer that also meets all requirements of IRC § 2518 (see below), the disclaimed benefit won’t belong to the disclaimant for Federal estate, gift, and generation-skipping-transfer tax purposes. IRC § 2518; 26 C.F.R. § 25.2518-1(b). Many States have a similar rule for State death tax purposes. See, for example, 72 Pa. Consol. Stat. § 9116©. The Internal Revenue Code’s qualified-disclaimer provision doesn’t refer to Federal income tax and doesn’t say that the disclaimed benefit isn’t income. But for tax years that began or begin after 1981, IRC § 402 taxes “any amount actually distributed” from a § 401(a) plan. Requirements: To be effective for Federal tax purposes, a disclaimer must meet all of the following requirements: • The disclaimer must be made before the beneficiary accepts or uses any benefit. • The disclaimant must not have received any consideration for the disclaimer. • The writing must state an irrevocable and unqualified refusal to accept the benefit. • The benefit must pass without any direction by the disclaimant. • The disclaimer must be in writing and must be signed by the disclaimant. • The writing must be delivered to the plan administrator. • The writing must be so delivered no later than nine months after the date of the participant’s death, or the date the beneficiary attains age 21, whichever is later. • The disclaimer must meet all requirements of applicable State law. IRC § 2518; 26 C.F.R. § 25.2518-2; GCM 39858, 1991 WL 776304 (Sept. 9, 1991); see generally, UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT. State law may provide further requirements. For example, in some States a disclaimer must state the disclaimant’s belief that he or she has no creditor that could be disadvantaged by the disclaimer. Even without a requirement for such a statement, some State laws apply fraudulent-transfer doctrines to a disclaimer that, if given effect, would disadvantage a disclaimant’s creditor. In some situations, especially when the beneficiary is a minor or an incapacitated person, a disclaimer may require court approval. Even when court approval isn’t required, State law may require that a disclaimer isn’t valid unless it is filed in the appropriate probate court. In addition to State law and tax-law requirements, a retirement plan may impose further requirements. Of course, this is discussion among practitioners, and not advice to anyone.

Without questioning the logic of the ordering rule that JanetM describes, it illustrates another reason for stating the ordering rule in each plan’s documents. As a plan’s creator or “settlor”, an employer may provide an employee-benefit plan on the provisions that it chooses (except a provision that’s void because it violates ERISA). But when a plan doesn’t specify what to do and the plan’s administrator makes a rule, that might be a use of discretion. It’s okay to have discretion, but a plan's fiduciary must use its discretion “for the exclusive purpose of providing [the plan's] benefits to participants and their beneficiaries” and “with the care, skill, prudence, and diligence” of a prudent-expert fiduciary. That care and the statutory duty of ERISA § 406 preclude a plan fiduciary from using its discretion to benefit itself, or to benefit a person other than the participant. It wouldn’t take much creativity for a person disappointed by smaller retirement savings (including the participant or his or her beneficiary or alternate payee) to argue that a plan administrator’s discretionary decision to favor a payment to itself over a payment to a participant’s retirement plan account is a self-dealing prohibited transaction. (The analysis might be different if the lender/employer had a legal right of setoff such that the loan repayment never became the participant’s wages.) And when a plan’s auditor asks for a “management representation” confirming the absence of a prohibited transaction, the plan’s administrator couldn’t responsibly furnish an unqualified representation. Please don’t misunderstand: I don’t say that the ordering rule that JanetM describes is inappropriate. Rather, I suggest that an employer specify the plans’ ordering rule so that each plan’s administrator will restrict its act to applying the plan without resort to interpretation.

Even if the agreements have clear "get-out" provisions, that might not be useful by itself. If the custodian is a directed trustee or otherwise has similar fiduciary duties, it can't deliver the assets until it knows that it is delivering the assets to (or as properly instructed by) a duly appointed trustee who or that is competent to serve and not known to be untrustworthy. Often, that rules out most or all of the employer's executives and their subordinates. The facts that motivate a recordkeeper or tpa to get rid of a customer often also could be used to show that a directed trustee or custodian knew (or in the exercise of proper care would have known) that the employer and its people are untrustworthy. In some circumstances, a fiduciary might use other procedures in an effort to protect plan assets.

A further question: If we accept the idea that a typical worker needs a welfare benefit with more immediacy than he or she needs a retirement benefit, what's the right priority among welfare benefits? For example (assuming all health and welfare benefits are not insured and instead "self-funded" with the employer), should a worker prefer to lapse first his or her child-care "FSA" coverage, or health coverage? One is tempted to argue that maintaining health coverage ought to be more important than saving money to become able to pay a child-care provider. But some might argue that in the absence of child-care services the parent might become unable to keep his or her job and, even with an opportunity to pay COBRA premiums, the absence of a paycheck could result in an absence of health coverage and further losses to the family. These choices aren't easy, and principled arguments might be made for a range of different ordering rules.

After first meeting any priorities required by Federal law and those State laws that are not preempted, it would seem that an employer could amend each relevant plan's governing document and summary plan description to state the ordering rules that the plan sponsor prefers. (Also, it would be smart for each salary-reduction form to include one sentence that mentions a "not-enough" rule and refer to the SPD.) A related question: what do benefitslink readers think about what ought to be the desired order when a paycheck doesn't have enough money to meet all of the contributions that a participant elected?

The preamble to the final rule [attached] says nothing about the 403(b) anti-conditioning rule. One imagines that the Treasury department would defend that particular rule as an interpretation of the word "elect" as it appears in the context of IRC 403(b)(12)(A)(ii). A counter-argument is that IRC 401(k)(4) expressly states its anti-conditioning rule, and the absence of a similar text in IRC 403(b) means that Congress didn't provide that rule as a condition of 403(b) treatment. 07_3649.pdf

You're not alone in thinking that the 403(b) anti-conditioning rule might be one that a court might decline to apply. If an employer wants to provide something that would violate that rule (and is prepared to take on a fight in defending its position after examination), it should consider buying the protection of a lawyer's written opinion that, more likely than not, a court should find that the rule is not a proper interpretation of the statute. Until there's a paying client who wants advice about the rule, it's too time-consuming to get into the arguments that support or attack why the rule is or isn't a proper interpretation.

Ohio is another example of a State that requires a public-schools employer to allow any provider: If the governing board of a public institution of higher education or the board of education of a school district procures a tax-sheltered annuity for an employee, pursuant to section 9.90 of the Revised Code, that meets the requirements of section 403(b) of the Internal Revenue Code of 1954, 26 U.S.C. 403(b), the employee has the right to designate the li-censed agent, broker, or company through whom the board shall arrange for the placement or purchase of the tax-sheltered annuity. In any case in which the employee has designated such an agent, broker, or company, the board shall comply with the designation, provided that the board may impose either or both of the following as conditions to complying with any such designations: (A) The designee must execute a reasonable agreement protecting the institution or district from any liability attendant to procuring the annuity; (B) The designee must be designated by a number of employees equal to at least one per cent of the board's full-time employees or at least five employees, whichever is greater, except that the board may not require that the agent, broker, or company be designated by more than fifty employees. Ohio Revised Code 9.91. Clause (A) has not yet been interpreted by a court decision. As mjb suggests, it's important to be careful about following State laws. Among other reasons, a "purchase" that's outside the State's enabling statute likely is void.

The attachment. per_stirpes_illustration.pdf

As Bird suggests, the attachment is an example that compares two different per-stirpes regimes. For mjb's query, a plan could specify a particular rule by stating it in the plan's text (as my earlier post mentioned) or by referring to a particular statute. However, such a provision (even with a clear warning to a participant who makes a beneficiary designation) doesn't assure an absence of competing claims, disputes, and (much worse) litigation. In almost any such litigation, the plan is the real loser because only rarely will a plan collect a reimbursement of its attorneys' fees from the non-prevailing claimants. Even an interpleader costs something. For the reasons that mjb suggests (and a few more), I write a plan (and its SPD and forms) to treat as not a beneficiary designation a purported designation that fails to specify each beneficiary by name. Likewise, these plans require a participant to specify the percentage that each beneficiary gets. Further, in my estate-planning practice, any beneficiary designation that I draft carefully avoids asking a plan's administrator to decide or compute any allocation. If something involves more than one taker (or potential taker), I advise naming a trustee as the plan's beneficiary and putting dispositive provisions in a trust document.

Those that use – or permit a participant to use – a “per stirpes” or “by representation” phrase should be aware that not all States’ laws are the same. (West’s UNIFORM LAWS ANNOTATED includes an explanation and comparison of some of the several different by-the-roots regimes for allocating a class gift; you’d find this in the comments and notes under § 2-106 of the Uniform Probate Code recommended by the National Conference of Commissioners on Uniform State Laws.) To avoid disputes about which rule a participant intended, which rule a plan administrator applies, and which rule a beneficiary could fairly expect, a plan sponsor or plan administrator should take control of defining what the phrase means. Imagine an illustration of what can happen if a plan doesn’t define this point: A participant lives in New Jersey, and works at a Pennsylvania business location of a Massachusetts corporation that’s an indirect subsidiary of a Delaware corporation that has its headquarters in New York. The plan-administrator committee meets only in New York. The trustee is a New Hampshire trust company. After signing his “per stirpes” beneficiary designation (which he does in Pennsylvania, during a business day) the participant retires, moves to Florida, and makes no change to his beneficiary designation. It happens that among these seven States there are several variations of a per-stirpes rule. Some of the participant’s children and grandchildren, who live in yet more different States, argue different ways to select which rule ought to apply. One claimant suggests Florida’s rule, arguing that, because the domicile at death governs a will’s administration, the participant would have expected and intended Florida’s rule. Another argues for New Jersey’s rule because that’s where the participant lived when he made the designation. Another argues for Pennsylvania’s rule because that’s where the participant signed all of the relevant contracts, including his beneficiary designation and his agreement to participate in the plan. Another argues that any resolution of competing claims necessarily involves the trustee and so calls for New Hampshire’s rule. The plan administrator would prefer to apply New York’s rule to every claim, no matter how strong the contacts with other States are. But the plan document has a “boilerplate” governing-law clause that could be argued to require Delaware law. What a headache! And if applying one rule or another could affect how much or how little a claimant gets, it doesn’t take much imagination to see that a claimant might make the plan administrator’s task at least unpleasant. If an employer uses a phrase such as “per stirpes” or “by representation” in a plan document (and there are many reasons why a plan sponsor might prefer that a plan preclude any possibility that the plan’s administrator ever could be required to decide a by-representation allocation), the document should define what that phrase means. The plan’s rule should include provisions for defining who is or isn’t a child of a relevant person, which generation is the starting point, whether survivors are counted as of the date of the participant’s death or on the date the claim is decided, whether a division is equal within the survivors or living persons of a generation or equal across some measure of branches of descendants Because a plan other than a governmental plan or a church plan usually is governed by ERISA rather than by any State’s law, nothing outside the plan requires a plan administrator to apply any State’s law. Concerning an ERISA-governed plan, a court should defer to the plan administrator’s prudent selection of a rule, especially if it’s one that can be fairly described as the majority view or the Federal common law of ERISA. But a plan administrator will be in a much stronger position if it applied a rule that’s clearly specified in the plan documents. If a plan allows a participant to use a phrase such as “per stirpes” or “by representation” in a beneficiary designation (some plans preclude this), the form should warn its maker that the phrase means what the plan says it means. Further, the form should warn that the plan’s rule might differ from the maker’s expectations. Although it’s easier if you’re not stuck with someone else’s document, even with a prototype plan it’s possible to fix these kinds of provisions.

GMK, you're right that some plan administrators and their service providers use extra procedures as an effort to protect plans from frauds. For example, some use appearance tests and docket look-ups to try to consider whether a paper that appears to have been signed by a judge as a domestic-relations court's order likely was so signed. One assumes that you're merely referring to what papillon described as resulting in a 'fraudulent DRO' without adopting papillon's description. However, in "QDRO from Hades", papillon didn't entirely say that the court's order was other than an order. Rather, he or she suggested that a litigant made a false presentation to the court: "My ex-wife fradulently submitted a bogus DRO that she had drafted - misrepresenting to the MO circuit court judge that it was a product of the attorneys. The judge signed ...." An outside-the-order procedure of the kind that "QDROs" described Fidelity as requesting would be unlikely to detect a litigant's misdescription of a draft order. And the fact that a draft order was misdescribed before the judge signed the court's order might be irrelevant to a plan administrator. Aside from these observations, is it possible that Fidelity's request relates to the payer's tax-reporting duties? If there is an absence of evidence (in the court order or otherwise) that an alternate payee was the participant's spouse, a payer might assume that it should tax-report a QDRO distribution as the participant's income.

I have some suggestions about how to manage this liability, but they're not appropriate for public posting. Please feel free to call me (off the clock).

Some of the rules say that an electronic means must or should be designed to deliver the information in a way "that is no less understandable to the recipient than a written paper document." Considering this, some practitioners prefer a .pdf (over .html or other means) because a print-out from a .pdf is similar in appearance to the securities issuer's printed prospectus. If attaching a .pdf to the e-mail would be burdensome to the plan's administration, a link to an appropriate Internet or intranet site from which a user may download and print the .pdf might be enough if it's accompanied by clear explanations about how to use everything (in addition to the required explanation that a participant, beneficiary, or alternate payee may require the plan administrator to furnish a paper copy). Again, I believe in making "self-service" so easy that it's obviously more convenient than asking the plan administrator. A plan administrator should consider furnishing a link only to the plan's site (or a site that the plan administrator controls), and not to an investment provider's site. In managing plan communications, a plan's administrator must act as a prudent expert would act. Some believe that it's appropriate for a plan fiduciary to consider the likelihood of participants' irrational behavior. If a plan fiduciary believes that some participants would ignore a warning that the plan fiduciary is not responsible for a third person's communications, a fiduciary might consider participants' mistaken thinking in considering whether it's in the plan's and participants' best interests to provide a link to communications that the plan fiduciary can't control.