"According to the judge, the litigator's ERISA-based claims against Merrill Lynch -- which included allegations of excessive fees and impermissible kickbacks -- could succeed only if Merrill Lynch qualified as an ERISA fiduciary. The litigator argued that Merrill Lynch became an ERISA fiduciary through its actions in selecting a roster of investment funds for the Clifford Chance 401(k) plan. The judge disagreed, explaining that courts have consistently declined to impose fiduciary status on service providers that create a menu of investment options for plan trustees." [Walker v. Merrill Lynch, No. 15-cv-01959 (S.D.N.Y. Mar. 25, 2016)]

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