"[W]hat was initially considered a 'pick me because you like me' decision on the part of the prospect has been reframed as a 'pick me because I sold you investments' decision. It's a subtle distinction, but it drives the difference between a fiduciary act and a non-fiduciary act.... This distinction is important because of the way the DOL views its oversight of fiduciaries versus what has traditionally been allowed under trust law (which, outside of ERISA, has generally governed fiduciary law)."