Lori H Posted June 12, 2006 Share Posted June 12, 2006 a 401(k) had an account in the name of a ex-wife of the president of an auto dealership. balance as of 12/31/04 was just over 30K. they had been divorced for a few years and the wife's status was terminated and had been listed on the schedule SSA for a few years as well. in 2005 a check was cut to the still employed ex husband for the full balance of the ex-wife's account. no taxes were with held. ex husband was 55 at time of distribution. in a situation as such were the ex husband is our client, how much should we pry to determine legitimacy of such distribution? seems as if such distribution would be directed in a QDRO. ex-husband has yet to return calls to explain transaction. Link to comment Share on other sites More sharing options...
david rigby Posted June 13, 2006 Share Posted June 13, 2006 Presumably the ex-husband in the owner of the company, and the company is your client. A few thoughts: What documentation is in writing? Who cut the check? Who authorized a cash distribution w/o tax withholding? Why was the account in the ex-wife's name: due to a prior QDRO? was she also a plan participant? Is is a legitimate QDRO? Does the plan sponsor have an auditor? Assuming you are the TPA and/or recordkeeper, you may wish to discuss the situation with your ERISA counsel before proceeding. I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice. Link to comment Share on other sites More sharing options...
Locust Posted June 13, 2006 Share Posted June 13, 2006 What are your responsiblities for payment? What does your contract say and what do you actually do? Are you a fiduciary? If so, you may have violated your fiduciary duties to the ex-wife. If you're not a fiduciary, you're just a recordkeeper and not responsible. The problem is that the definition of "fiduciary" is often a factual issue, and the ex-wife might consider you a fiduciary. Link to comment Share on other sites More sharing options...
Lori H Posted June 13, 2006 Author Share Posted June 13, 2006 the ex husband is the owner of the company and we are the companies tpa. we have no fiduciary obligation whatsoever. the check was requested by the trustee, the ex husband, and made payable to him. i actually received a return phone call this am from him and he started the conversation by "you are calling to see why i stole this money". i hesitantly laughed and asked if their was a qdro in place. he had no idea what that was. he said he has no idea where his ex-wife is and she is not getting the money. i gently explained to him that the funds were hers and that she had been terminated for years. he said she was too stupid to even know she had the money. i then explained that we had been filing schedule SSA's with her name on them for a few years and while the SSA is slow they will in fact notify the former participant that she has benefits in this plan and that it is his fiduciary duty to make every attempt to contact former missing participants. he said that he would put the money back and write a check today. in 12 years working on qualified plans, this is a new one. i guess formally documenting our conversation would cover me as their tpa in the event of an audit. Link to comment Share on other sites More sharing options...
Kirk Maldonado Posted June 13, 2006 Share Posted June 13, 2006 Lori H: I think your firm needs to retain competent ERISA counsel to obtain advice on how to proceed. That is a truly ugly situation and it could get even worse if the employer gets an IRS or DOL audit. Your firm needs to take prudent action to minimize its risk exposure (to the extent that you can). Kirk Maldonado Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted June 13, 2006 Share Posted June 13, 2006 And you may want to take a more proactive approach about trying to locate the ex-wife so you can pay her out. Needless to say, don't trust the ex-husband to forward plan related documents to her, you should do it yourself. Link to comment Share on other sites More sharing options...
Lori H Posted June 13, 2006 Author Share Posted June 13, 2006 well, that might be a bit too proactive. Obviously, there is bad blood between the two. I'd rather not lose the client, by going behind the client's back and doing what they should be doing. I think just including her on the SSA each year and letting the SSA do their job should suffice. We have no contact or forwarding info on the ex-wife. Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted June 13, 2006 Share Posted June 13, 2006 Ok, let me put it this way. Your client has informed you that he doesn't know where his ex-wife is located. Therefore, you need to inform the client that he is legally obligated to follow the terms of the plan. Now what does your plan document say about missing participants? You can't just let someones money sit in the plan forever, especially if you know they are missing. Seek ERISA counsel quickly. Putting your head in the sand will not resolve the problem. P.S. - Thanks for the laugh. "I think just including her on the SSA each year and letting the SSA do their job should suffice." Link to comment Share on other sites More sharing options...
Guest mjb Posted June 13, 2006 Share Posted June 13, 2006 Have you considered whether her benefits can be forfeited under the terms of the plan if she cannot be located? Since you are not a fid/ plan admin you should let the H take the necessary action under the plan. PIP who is going to seek and pay for ERISA counsel since the advice is not free and Lori is not a PA with resposibility as Plan admin? I dont think Lori can use plan assets to pay for such advice. and I dont think that she should pay for such advice out of pocket. Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted June 13, 2006 Share Posted June 13, 2006 mjb - and why exactly shouldn't Lori pay for legal advice out of her own pocket? Just because she isn't the fid/plan admin doesn't mean she doesn't need legal advice. But I forgot, your only concern is whether she can be sued. My concern is doing what's right. And don't forget that before you can forfeit someone's money you need to be able to prove that you attempted to locate them. Ex-husband's word don't cut it. Link to comment Share on other sites More sharing options...
wsp Posted June 13, 2006 Share Posted June 13, 2006 Can't forfeit without reasonable steps to locate her. Putting her on SSA isn't attempting to locate. I'd prepare and send him the letters associated with the IRS locator service. Doing so will cost him postage but it'll save him (and you) litigation down the road if his ex ever remembers about her balance and he didn't take that step to find her. Link to comment Share on other sites More sharing options...
Guest mjb Posted June 13, 2006 Share Posted June 13, 2006 PP Why dont you ask Lori how much she is will to pay to get advice on the Plan fids problem. I have no problem with her paying for advice but she should know what it will cost up front. Least costly solution is to have plan admin try to locate ex-. Link to comment Share on other sites More sharing options...
Lori H Posted June 14, 2006 Author Share Posted June 14, 2006 i agree. my strategy is too address the irs/dol locator options in a letter. the husband should send a certified letter return receipt requested to his ex's last known address and if that does not produce a response, consider the locator services. first the money has to get back in the trust with interest and i have advised the agent on the plan that he needs to follow up on this. i really don't want to shell out my money to an attorney because of some wild stunt the trustee thought he could getaway with. Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted June 14, 2006 Share Posted June 14, 2006 Don't forget the PT issues..... Link to comment Share on other sites More sharing options...
Guest zora Posted June 16, 2006 Share Posted June 16, 2006 I want to make sure I understand the facts. 1. You are custodian and probably a directed trustee of assets of an ERISA plan. 2. A former participant had an account balance in the plan. 3. The trustee instructed you to distribute that participant's funds to him. 4. There is no QDRO or no other basis that you are aware of that supports distributing the funds to the trustee. If this is correct, you need to hire counsel right away. You might even be able to pay counsel's fees with plan assets, but ask your counsel about that. This is a classic example of how things like Enron and the White House torture papers can come about. You may arguably be following the letter of the law (though I don't think you are), but certainly not the spirit. No reasonable person who is hired as a trustee - directed or not - can assume they have no obligation to question instructions from another trustee to distribute to that other trustee monies not allocated to that other trustee. If Jimmy Hoffa were your client and he instructed you to distribute money to him that you know doesn't belong to him, would you do that without reservation? I realize you want to keep the client, but it sounds to me that you would be better off not having this client. If SSA does do its job and the wife comes knocking, you could have a serious problem on your hands, and potentially be subject to a court order that would bar you for 13 years from acting as a TPA to any ERISA plan. If you don't want to hire counsel, at least call your local DOL office and ask them what you should do. Link to comment Share on other sites More sharing options...
Guest mjb Posted June 16, 2006 Share Posted June 16, 2006 Zora: you are making the mistake of assuming facts not presented in concluding that Lori's TPA firm is a custodian/directed trustee since she did not make such a rep and stated that there is no fiduciary relationship. TPAs who perform ministerial tasks are not fiduciaries under ERISA. Your unsubstantiated claims of liability are contrary to case law which holds that TPAs are not fiduciaries under ERISA because they notify the plan trustee of violations that they have discovered in plan administration and require that the trustee take action to correct the violation. See CSA 401k Plan v. PPI 195 F3d 1135. Indeed, Lori did the right thing by requesting that the trustee return the funds to the plan in order to correct the violation. Also a TPA has to be careful regarding just what action they take in these situations in order to avoid creating the impression that they are a fiduciary under ERISA by taking action that only a fid can take. She will need to consult counsel if H does not return the funds to the plan and conduct search to locate ex-spouse as he has promised. I dont know how the TPA could authorize payment of its counsel fees from plan assets since that would be an indicia of a fiduciary because only fids have discretion to disburse plan assets which is the position that the TPA wants to avoid. No attorney would recommend such action. Link to comment Share on other sites More sharing options...
Guest zora Posted June 19, 2006 Share Posted June 19, 2006 Whoa, chill. That's why I prefaced my statement with a request for clarification that I have the facts right. CSA is clearly different because in that case there was no long relationship between the TPA and the plan sponsor (the TPA found the "error" only six months after being hired) and the TPA quickly withdrew. It sounds here like there has been a long relationship. The longer the relationship, the greater chance the TPA has of being a fiduciary. Moreover, depending on the type of TPA, TPAs often do act as directed trustees. My ultimate conclusion is the TPA should either hire an attorney or call the DOL and ask for their advice. Do you disagree with that conclusion? Link to comment Share on other sites More sharing options...
WDIK Posted June 19, 2006 Share Posted June 19, 2006 The longer the relationship, the greater chance the TPA has of being a fiduciary. Would you elaborate? ...but then again, What Do I Know? Link to comment Share on other sites More sharing options...
Guest mjb Posted June 20, 2006 Share Posted June 20, 2006 I dont recollect that either court based its decision (the district ct gave a summary judgement for the TPA) on the duration of the relationship but instead focused on whether the actions of the TPA in demanding that the plan take action to correct the error made the TPA a fiduciary which the courts said did not occur. How does the length of the relationship increase the likehood that the TPA is a fiduciary? What type of TPAs become directed trustees? Link to comment Share on other sites More sharing options...
Kirk Maldonado Posted June 20, 2006 Share Posted June 20, 2006 CSA 401(K) PLAN v. PENSION PROFESSIONALS, INC. Docket: Nos. 98-56012, 98-56353. , 195 F3d 1135 , 1999 Daily Journal D.A.R. 11,811 , 1999 WL 1054907 Court: U.S. Court of Appeals, 9th Circuit, Date Argued: 11/01/1999 Date: 11/23/1999 Participants in employer's 401(k) plan brought action against plan's third- party administrator under Employee Retirement Income Security Act (ERISA), alleging that administrator was liable as fiduciary for funds embezzled from plan by employer's chief executive officer (CEO). The United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, entered summary judgment in favor of administrator. Participants appealed. The Court of Appeals, Goodwin, Circuit Judge, held that: (1) administrator did not become fiduciary when it discovered that embezzlement, notified plan trustees, and conditioned its continuance as administrator upon repayment of the underfunding, and (2) administrator had no duty to warn 401 participants beyond including disclosure notice in plan material stating that portion of 401(k) benefits had not yet been received by trust. Affirmed. [*pg. 1137] Mark K. Drew, Pick&Boydston, Los Angeles, California, for the plaintiffs-appellants. Cynthia A. Goodman, Robinson, Di Lando&Whitaker, Los Angeles, California, for the defendant-appellee. Appeals from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV 96-05190-RSWL. Before: Goodwin, Schroeder, and Alarcon, Circuit Judges. GOODWIN, Circuit Judge: Levi Carey, the CEO of Computer Software Analysts, Inc. (“CSA”) and a co-trustee of CSA's 401(k) employee benefit plan (the “Plan”), embezzled funds from the Plan. After the employees learned that their trustee had absconded with the funds, the Plan sued Pension Professionals, Inc. (“PPI”), in district court. The Plan appeals a summary judgment in favor of PPI. We affirm. FACTUAL & PROCEDURAL BACKGROUND In July of 1991, PPI was hired by CSA to prepare financial reports and perform other third-party administrative services for the Plan. The terms of the agreement that CSA and PPI entered into (the “Service Agreement”) specified that PPI was to provide its services as a third-party administrator and not as a fiduciary of the Plan. A “fiduciary” and its duties are defined in the Employee Retirement Security Income Act (“ERISA”), 29 U.S.C. §§ 1001, et seq. Approximately six months into the job, PPI discovered what appeared to be discrepancies between the amount of funds that CSA withheld from employee paychecks for investment in the Plan and the amounts actually deposited in the employee 401(k) retirement accounts. PPI sought to ascertain whether the missing assets were located elsewhere, but suspected embezzlement by the Plan's co-trustee and chief executive officer of CSA, Levi Carey. PPI formally notified the Plan trustees, Carey and Louis King, that the failure to deposit employees' funds into their retirement accounts violated Internal Revenue Service and Department of Labor regulations, and could be classified as both embezzlement and a breach of their fiduciary duties under ERISA. PPI further indicated that it would have to disclose the shortage on the financial reports that it was required to prepare. Carey reassured PPI that CSA intended to bring all Plan assets current, and agreed to a repayment schedule as set out in a March 31, 1993 letter to PPI. Upon consulting with legal counsel, PPI agreed to continue its third-party administration duties for the Plan as long as Carey fulfilled certain “conditions.” PPI required Carey to adhere to the repayment schedule that he outlined in his March 31, 1993 letter, and stated that PPI would need to place the following language on all employee participant (the “Plan Participants”) account statements: “Contrary to the requirements of the Department of Labor and the Internal Revenue Service, a portion of the 401(k) benefits have not yet been received by the trust.” PPI also required verification of Carey's compliance with the repayments (i.e., copies of deposited checks), and indicated that it would withdraw as third-party administrator of the Plan if Carey failed to follow the repayment schedule. Carey signed a letter witnessing his agreement, and deposited approximately $35,000 of previously missing Plan funds. Carey later told PPI that he would like to modify the repayment schedule. His request was rebuffed by PPI, which again stated that it would discontinue its administrative services unless Carey honored his repayment agreement. In July of 1994, after receiving falsified financial statements from CSA, PPI resigned as third-party administrator of the Plan. PPI did[*pg. 1138] not warn law enforcement authorities or the Plan Participants of Carey's suspected embezzlement after its resignation. In July of 1998, Carey pleaded guilty to embezzling the missing funds. On October 3, 1996, several former employees of CSA and participants in the Plan filed suit in federal court against PPI, seeking to recover the embezzled funds. The employees asserted that PPI is liable as a fiduciary under ERISA for the misappropriated money because it exercised authority and control over Plan administration after its discovery of Carey's embezzlement, and failed to take reasonable steps to warn the Plan Participants or governmental authorities of Carey's conduct as trustee. The district court granted summary judgment in favor of PPI, concluding that PPI did not exercise any discretionary authority or control over the Plan, and therefore was not rendered a fiduciary under ERISA, 29 U.S.C. § 1002(21)(A) . CSA timely filed its notice of appeal on May 14, 1998, and also filed a motion for reconsideration, which was denied on June 19, 1998. That denial was appealed on July 15, 1998, thus giving CSA two appeals relating to the district court's grant of summary judgment. Those appeals were consolidated on August 25, 1998. I. Fiduciary Status Under ERISA [1] Liability for breach of fiduciary duty under ERISA may be imposed only against ERISA-defined fiduciaries. Gibson v. Prudential Ins. Co., 915 F.2d 414, 417 (9th Cir.1990). Although responsibility is originally vested upon the “named fiduciary” of an employee benefit plan, ERISA § 402(a) , 29 U.S.C. § 1102(a) , such status may be imposed on anyone who carries out fiduciary duties. ERISA § 405 , 29 U.S.C. § 1105 . [2] [3] [4] Under ERISA, a person is deemed a fiduciary if he “exercises discretionary authority or control respecting the management or administration of an employee benefit plan.” Kyle Rys., Inc. v. Pacific Admin. Serv., Inc., 990 F.2d 513, 516 (9th Cir.1993); 29 U.S.C. § 1002(21)(A) . 1 Fiduciary liability depends not on how one's duties are formally characterized in an ERISA plan, but rather upon functional terms of control and authority over the plan. IT Corp. v. General American Life Ins., 107 F.3d 1415, 1419 (9th Cir.1997). A person's “actions, not the official designation of his role, determines whether he enjoys fiduciary status,” regardless of what his agreed- upon contractual responsibilities may be. Id. at 1418; Acosta v. Pacific Enterprises, 950 F.2d 611, 618 (9th Cir.1991). [5] [6] While the express terms of the Service Agreement between CSA and PPI provided that PPI was not a fiduciary of the Plan, CSA contends that PPI became one by virtue of its actions subsequent to its hire. However, third-party administrators are not fiduciaries if they merely perform ministerial functions, including the preparation of financial reports. 2 See Pacificare [*pg. 1139] v. Martin, 34 F.3d 834, 837 (9th Cir.1994). Section 2509.75-5 of the Department of Labor Regulations provides that attorneys, accountants, actuaries, or consultants who perform their usual professional functions in rendering legal, accounting, actuarial, or consulting services to an employee benefit plan are not considered fiduciaries of the plan solely by virtue of rendering such services. Similarly, § 2509.75-8 states that persons who have no power to make decisions as to plan policy interpretations, practices or procedures but who perform specific administrative functions within a framework of policies, interpretations, rules, practices and procedures made by others are not deemed fiduciaries of the plan. The policy behind this exception to fiduciary status is to encourage professionals to provide their necessary services without fear of incurring fiduciary liability or feeling the need to charge a higher price to compensate for such risk. Arizona Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 722 (9th Cir.1997). In the instant case, PPI's functions included the preparation of quarterly and annual financial reports based upon information provided to PPI by CSA, both of which are ministerial tasks that do not give rise to fiduciary liability. See 29 C.F.R. § 2509.75-8 . However, the question becomes: Did PPI step outside the scope of rendering administrative services and in fact exercise discretionary authority or control over the Plan when it discovered apparent embezzlement and notified Plan trustees, and thereafter conditioned its continuance as a third-party administrator upon their repayment? CSA contends that PPI's conditions for continued employment established effective control over the Plan and constituted actual decision-making power. However, the conditions that PPI proposed were designed to assert control over its own engagement, and not to exercise discretionary authority or control over the Plan's management or administration. We have held that “[t]o become a fiduciary, the person or entity must have control respecting the management of the plan or its assets, give investment advice for a fee, or have discretionary responsibility in the administration of the plan.” Arizona, 125 F.3d at 722 (citations omitted). In Arizona, the court determined that Citibank did not become a fiduciary by “devising and controlling its own reporting system, ... regularly analyzing the delinquency information, deciding whether it suggested a problem serious enough to warrant reporting to the Trustees, and determining that the delinquency information was sufficiently alarming to question the investment manager.” Id. at 721. In the case at bar, PPI similarly discovered financial discrepancies, brought them to the attention of the Plan trustees, insisted on placing a disclosure notice in Plan material, and informed Carey that it would discontinue its administrative services if the underfunding was not remedied. PPI explicitly noted, however, in a letter to CSA that PPI had “no authority, nor the ability, to make the needed changes to the CSA 401(k) Plan; that is your [CSA's] responsibility.” Carey claims that he relinquished his discretion and decision-making power, but the facts do not bear that out. He was free to accept or reject PPI's condition that he replace the missing funds, and he had the option of retaining another third-party administrator to prepare financial reports if he so chose. His decision to deposit $35,000 back into the Plan was his alone; PPI had no authority or control to make this happen. Likewise, Carey's subsequent decision to continue his embezzlement and[*pg. 1140] to present fraudulent reports to PPI (which led to the termination of the Service Agreement) indicates that control over the Plan was always within his hands. Thus, there has been no showing that PPI exercised actual control or discretionary authority over the Plan itself, and therefore it cannot be deemed a fiduciary under ERISA. See Mertens v. Hewitt Associates, 948 F.2d 607, 610 (9th Cir.1991); Arizona, 125 F.3d at 722 . In an analogous First Circuit case, the court held that a bank did not become an ERISA fiduciary by questioning suspicious real estate valuations, engaging an independent appraiser to investigate them, and ultimately threatening to report the unlawful practices to the authorities. Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 21 (1st Cir.1998). The court stated that as a matter of policy and principle, ERISA does not impose Good Samaritan liability. Id. at 21. As we noted in Arizona, to convert a depository into a volunteer fiduciary “would discourage depository institutions from voluntarily making information available to fund administrators, investment managers, and other fiduciaries. It would also risk creating a climate in which depository institutions would routinely increase their fees to account for the risk that fiduciary liability might attach to nonfiduciary work.” Arizona, 125 F.3d at 722 . “Imputing fiduciary status to those who gratuitously assist a plan's administrators is undesirable in a variety of ways, and ERISA's somewhat narrow fiduciary provisions are designed to avoid such incremental costs.” Beddall, 137 F.3d at 21 (citing Mertens v. Hewitt, 508 U.S. 248 , 262-63, 113 S.Ct. 2063 , 124 L.Ed.2d 161 (1993)). CSA cites cases where persons have been held to be fiduciaries despite the presence of express contractual language rejecting the role. See IT Corp., 107 F.3d at 1418-19 (administrator who interpreted plan, controlled money in plan's bank account, and who had authority to disallow benefits is a fiduciary); Parker v. Bain, 68 F.3d 1131, 1140 (9th Cir.1995) (exercising discretionary authority over plan assets makes one a fiduciary whether or not the plan names one as such); Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1459 (9th Cir.1995) (corporate officer could be held liable as fiduciary on the basis of his conduct and authority even if the officer was not a named plan fiduciary); Reich v. Lancaster, 55 F.3d 1034, 1048 (5th Cir.1995) (authority to grant, deny or review denied claims can make one a fiduciary). However, these cases involve fact patterns in which the alleged fiduciary exercised substantially greater discretion or control than PPI did, including the active interpretation of employee benefit plans, the management and disbursement of fund assets, the approval and rejection of claims, and the rendering of ultimate decisions regarding benefits eligibility. In contrast, PPI had no power over the management or disposition of Plan assets and was never confronted with making discretionary eligibility or claims decisions. Rather, PPI was conditioning its continued provision of third-party administrative services upon the Plan trustees bringing themselves within the bounds of the law by replacing the missing funds. Hence, since PPI lacked discretionary authority or control over the management and administration of the Plan, it cannot be deemed a fiduciary under ERISA. II. Duty to Report Suspicion of Trustee Embezzlement [7] CSA further contends that PPI had a duty to report to the Plan Participants its suspicions regarding possible criminal breach of fiduciary duties by Carey. CSA states that the Ninth Circuit has found a broad duty to investigate suspicious activity of another fiduciary's management activities that threaten the funding of retirement benefits. See Barker v. American Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir.1995). Further, the Barker court held that “[a] fiduciary has an obligation to convey complete and accurate information material to the beneficiary's circumstance, even when a beneficiary has not specifically[*pg. 1141] asked for the information.” Id. at 1403 (citing Bixler v. Central Pa. Teamsters Health&Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.1993)). Hence, CSA argues that PPI had a responsibility to investigate the threat to the employees' funds under the Plan, and inform the Plan Participants of its findings. [8] However, CSA's argument presumes that PPI was already a fiduciary of the Plan (or became one) and therefore had a duty to protect the beneficiaries. While it is true that an “ERISA fiduciary has an affirmative duty to inform beneficiaries of circumstances that threaten the funding of benefits,” Acosta, 950 F.2d at 619 , CSA can point to no case holding that non- fiduciaries have a similar duty. As discussed in Part I, supra, PPI never did incur fiduciary status because it failed to exercise control or discretionary authority over the Plan, and therefore had no duty to warn the Plan Participants. The Fourth Circuit has held that a third-party insurer of an ERISA plan did not have a duty to warn the beneficiaries that their eligibility for healthcare benefits was threatened by their employer's failure to pay premiums. Coleman v. Nationwide Life Insurance Co., 969 F.2d 54 (4th Cir.1992), cert. denied, 506 U.S. 1081 , 113 S.Ct. 1051 , 122 L.Ed.2d 359 (1993). The court asked whether the plan documents granted the insurer the “discretionary authority or responsibility to notify all Plan beneficiaries of circumstances, such as the failure of a Plan sponsor to pay policy premiums, that would affect the availability of benefits to all.” Id. at 61. Because the plan documents did not bestow such power on the insurance company, it could not have a duty to warn as a fiduciary. Id. Further, the statutory language of ERISA imposes such notification duties on a plan's administrator, i.e., the employer. Similarly, in the case at bar, the Service Agreement that PPI signed contained no provision for communication between PPI and the Plan Participants, and all statements that PPI made were reviewed by CSA prior to distribution to the Plan Participants. Thus, PPI did not have the authority to notify the Plan Participants directly, and did fulfill its responsibilities by insisting on a disclosure notice in the Plan material stating that “[c]ontrary to the requirements of the Department of Labor and the Internal Revenue Service, a portion of the 401(k) benefits have not yet been received by the trust.” As a non-fiduciary, PPI's duty to warn ended there. Hence, PPI did not fail any duty to report its suspicions of trustee embezzlement to the Plan Participants, and cannot be held liable as a fiduciary under ERISA because it did not exercise discretionary authority over the Plan. AFFIRMED. -------------------------------------------------------------------------------- 1 29 U.S.C. § 1002(21)(A) defines a “fiduciary” as follows: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. -------------------------------------------------------------------------------- 2 Section 2509.75-8 of the Department of Labor regulations provides that persons who perform the following administrative functions will not be deemed a fiduciary with respect to an employee benefit plan: (1) Applications of rules determining eligibility for participation or benefits; (2) Calculation of services and compensation credits for benefits; (3) Preparation of employee communications material; (4) Maintenance of participant' service and employment records; (5) Preparation of reports required by governmental agencies; (6) Calculation of benefits; (7) Orientation of new participants and advising participants of their rights and the options under the plan; (8) Collection of contributions and application of contributions as provided in the plan; (9) Preparation of reports concerning participants' benefits; (10) Processing of claims; (11) Making recommendations to others for decisions with respect to plan administration. Kirk Maldonado Link to comment Share on other sites More sharing options...
Belgarath Posted June 20, 2006 Share Posted June 20, 2006 I assume the 5500 forms will be prepared showing the prohibited transaction? And the PT tax will be paid? Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted June 20, 2006 Share Posted June 20, 2006 mjb - could you explain why you now feel Lori should consult counsel if the client does not do as he's told. In your prior posts you clearly stated Lori is not responsible for anything and shouldn't spend her money on this. And then you state she should. Link to comment Share on other sites More sharing options...
Guest zora Posted July 13, 2006 Share Posted July 13, 2006 Who cut the check? Link to comment Share on other sites More sharing options...
Lori H Posted July 13, 2006 Author Share Posted July 13, 2006 the check was cut to the plan's money market/checking acct, which was then cut to the husband/trustee. we have no fiduciary relationship to this plan. also, i am a bit apprehensive about reflecting this as a prohibited transaction on the 5500 as that could be a nice big red flag for an audit. Link to comment Share on other sites More sharing options...
Guest Pensions in Paradise Posted July 13, 2006 Share Posted July 13, 2006 Lori - heck, why even have the ex-husband repay the money. I mean, if you are gonna fudge the 5500, why not go all the way and just let him keep the money? Sorry, but this is a PT plain and simple. It's supposed to raise a red flag. Link to comment Share on other sites More sharing options...
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