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The investment-advice fiduciary rule might allow a counterparty to communicate as a non-fiduciary if, among other conditions, the communication is directed to a plan's fiduciary that manages at least $50 million (and the communicator reasonably believes the fiduciary is capable of evaluating the investment decision). Conversely, if a plan's fiduciary does not manage at least $50 million and is not advised by a registered investment adviser or some other "institutional" fiduciary, a service provider that prefers to be a non-fiduciary must avoid a communication that a reasonable person would perceive as investment advice. What do BenefitsLink people guess as the percentage of 401(k) plans (by number of plans, not assets of plans) that have less than $50 million?
