Where is a recordkeeper “located”?

A recordkeeper’s set of IRS-preapproved documents states the user’s plan is governed, to the extent ERISA does not supersede, by “the laws of the state in which [the recordkeeper] is located[.]”

The recordkeeper is organized under Delaware law and its registered office is in Delaware.

But the principal office is in another State.

What does “is located” mean?

Is it Delaware? Or is it the other State?

Based on the language of the prototype plan, our view is that it is the recordkeeper's physical location... where it does its business.   This is probably also the state in which jurisdiction and venue will lie.  A corporate entity's location for general jurisdiction is the state where it is incorporated or the state where it has its principal place of business and specific jurisdiction is any state in which the corporation has a continuous and systematic activity that gives rise to the action in the lawsuit.

Artie M, thank you for confirming my fear about that text.

What’s sad is that the recordkeeper sets up this text for a plan under which the recordkeeper (and every affiliate) has no responsibility.

And the State so chosen has no connection to the plan’s sponsor, employer, administrator, trustee, or any named fiduciary.

Yet, a participant, beneficiary, alternate payee, or other claimant might argue that the State’s law somehow has some effect regarding the plan.

Right.  We always strike any language like that and always explicitly provide that the governing law is a specified State usually the State in which the Plan Administrator, in our documents invariably a committee of the sponsoring employer, is physically located.  This State usually is the State where the Plan, from the Sponsor's perspective, is administered and all documents related to its administration are kept, and usually where most (or at least a not insignificant portion) of the participants are also physically employed.  The governing law could of course be set as any State, however, we find that since we also advise specifically providing in the plan where jurisdiction and venue will lie (e.g., the United States District Court for the Southern District of Texas in Houston, Texas), which again will coincide with where the plan administration, from the sponsor's perspective, actually occurs, we believe that the sponsor would want the State law in which that court is located to apply because it is the law most familiar to the plan sponsor (and the specified court) and the plan sponsor usually has attorneys with boots on the ground in that State.  (FWIW  we also advise that the plan specifically provide that all parties will waive any jurisdictional issues or forum of non convieniens arguments regarding the specified venue.)

Note that it is likely that the recordkeeper's service agreement is governed by the law of the State in which the recordkeeper is located, which I would not necessarily disagree with because their services are being provided in that State.  The recordkeeper will often utilize this in the prototype language to ensure that they are "covered" on all bases.  However, this is a contractual issue between the Plan sponsor and a vendor.  The choice under the service agreement should have nothing to do with the State law that will apply to the Plan's governance and interpretation.  

There of course are some issues that will apply State law other than the State law as provided under the plan, for instance if there is QDRO at issue and the divorce took place in another State so that the law of the State in which the divorce occurred would apply to the QDRO, but those issues, if any, would be on an individual by individual basis.  The State law that applies to the plan's governance and interpretation could affect a lawsuit on a class action basis.... which is something that a plan sponsor likely will be extremely unhappy with.  

When I’m stuck with doing meatball surgery on IRS-preapproved documents, I tack on many risk-management provisions, including an exclusive-forum provision.

Some clients like the Federal district and its division in which the plan’s administrator has its principal office.

Some specify the place that’s most convenient or most effective for the law firm the plan’s administrator or another employer-associated fiduciary would turn to for ERISA litigation.

Some specify a district in a circuit with the most favorable set of precedents on questions of law likely to matter (in the client’s particular circumstances) in defending against a fiduciary-breach claim, or in shifting or sharing a liability or expense.

Does "location" come into play when evaluating whether disaster relief applies?  For example:

• Suppose plan sponsor's main location is not in disaster area (as declared by IRS/DOL/etc.), but it's HR department is in such area, and this causes delay in filing of Form 5500? 
• Similarly, suppose plan sponsor is not affected by natural disaster but the vendor who prepares 5500 is in disaster area?
• Corollary, suppose plan sponsor is not in disaster area nor is "main office" of the vendor, but the vendor's remote employee with such responsibility is in such disaster area?

While BenefitsLink neighbors can describe more detail, EBSA’s, IRS’s, and PBGC’s guidance about relief following from a declared disaster generally has recognized not only an employer’s or administrator’s, but also a service provider’s, place of business in a covered disaster area.

About David Rigby’s third question:

Has anyone seen an executive agency expressly grant relief when not the organization but a particular worker is in a disaster area?

Might the question never have been raised because the agencies administer the relief by following a filer’s self-certifying statement that a relief applies?