Regarding the opinion letter issued by the DOL stating that anyone that provides 401(k) Plan participant advice is considered a Plan Fiduciary.

[Guest DS_61427]

Greetings to all members, I am currently a law student doing research on this particular topic and any insight would be of great assistance. This question is in regards to the opinion letter issued by the DOL stating that anyone that provides 401(k) Plan participant advice is considered a Plan Fiduciary. Are there currently any cases that anyone is aware of, where a person has sued a financial planner for breach of fiduciary duty?

[ERISAnut]

Unless something changed recently, I think the criteria of being a fiduciary is providing investment advise for a fee. There are two ways to determine a fiduciary (title and action). For instance, you know the plan sponsor is going to be a fiduciary regardless of any action since they have the title of plan sponsor. Then, regardless of your title, you may be considered a fiduciary by acting in that capacity. This is where there may be language in the plan stating that you are not a fiduciary, but this language gets preempted by the fact that your actions qualify you as a fiduciary. It gets very detailed, and would depend on the facts and circumstances of each case. But, you are right in that sometimes people giving advise will cross the line into being a fiduciary.

Not sure if this helps, but I would re-read the Opinion Letter and look for the details of what makes a fiduciary. To make a blanket statement of "anyone" does not appear consistent.

[GBurns]

There have been a few discussions on Boards such as this that might be of interest, for example:

http://benefitslink.com/boards/index.php?s...opic=30424&st=0

Read any links given.

You might want to do a Google search and also visit a good law library, where you might be able to access Lexis, Tax Analyst and BNA for cases or comments on the issue.