Text of DOL Advisory Opinion 2012-04A Rejecting 'Single Employer' Status for 401(k) Plan Covering Employees of Multiple Unrelated Employers
"401(k) Advantage LLC ('Advantage') ... is a limited purpose corporation formed to operate the [Advantage Plan, which is] intended to be a single 'multiple employer' 401(k) profit-sharing plan covering employees of Advantage as well as employees of other unrelated employers that adopt the Plan.... [There] are currently over 500 unrelated employers participating in the Plan.... Under the participation agreement, participating employers delegate to ['TAG', an investment advisory firm,] the 'full responsibility of Plan Administrator' which includes resolving beneficiary disputes, interpreting plan terms, completing audited financial statements, and appointing investment advisors and investment managers.... [Where] several unrelated employers merely execute identically worded trust agreements or similar documents as a means to fund or provide benefits, in the absence of any genuine organizational relationship between the employers, no employer group or association exists for purposes of ERISA section 3(5).... [T]here is no employment based common nexus or other genuine organizational relationship that is unrelated to the provision of benefits between Advantage or TAG and the employers of employees that benefit from the Plan, or among the different groups of employees that participate in the Plan. Rather than acting in the interest of an employer with respect to the Plan, Advantage and TAG appear to be acting more as service providers to the plan, much like a third party administrator or investment advisor. As a result, in the Department's view, neither Advantage nor TAG would constitute an employer for purposes of section 3(5) of ERISA that is capable of sponsoring the plan as a single 'multiple employer' plan." (Employee Benefits Security Administration)

Text of DOL Advisory Opinion 2012-03A on Combination of Terminated or Abandoned Plans
"NRP is a Minnesota corporation with the sole business purpose of taking over employee retirement plans that, for a variety of reasons, have been abandoned by their employer plan sponsors.... NRP intends to merge unrelated, abandoned, individual account plans into the the NRP Plan and thereafter manage and administer the NRP Plan as an ongoing individual account retirement plan.... Although the NRP Plan will provide retirement benefits described in ERISA section 3(2), to be an employee pension benefit plan under ERISA, the plan must also ... be established or maintained by an employer, an employee organization, or both.... [In this application, there is] no employment-based common nexus that is unrelated to the provision of benefits between the NRP Plan and the employers of employees that benefit from the abandoned plans or among the different groups of employees that participate in these plans. Rather than acting in the interest of an employer with respect to the plan, NRP appears to be acting more as a service provider to the plan, much like a third party administrator or investment advisor.... [Therefore] it is the view of the Department that the NRP Plan does not constitute a single employee benefit plan for purposes of Title I of ERISA. Rather, the Department would view the NRP Plan as a collection of separate, albeit apparently abandoned, employee benefit plans." (Employee Benefits Security Administration)