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June 26, 2018

TIPS for TPAs: TPAs as Fiduciaries . . . of Their Own Plans

By Fred Reish and Heather B. Abrigo


A Message to Third-Party Administrators

Heather Abrigo and I will be writing a series of articles about risk management and compliance issues for third-party administrators (TPAs). Our goals are to help the TPA community identify areas of risk and to offer possible solutions—or, if solutions are not available, suggest corrections.

While TPAs might anticipate the possibility of legal problems arising from their services for qualified retirement plans, our first article takes a different approach: it’s about the TPA’s own plan.

We hope that these articles are helpful and provide a good foundation for managing the risks of being in such a complicated business.

Fred Reish


As you probably know, the 5th U.S. Circuit Court of Appeals threw out the DOL’s Fiduciary Rule. While the decision left no doubt, the consequences are not well understood.

To grasp the full impact of the court’s decision, it’s important to distinguish between non-discretionary investment advice and discretionary management and control. The DOL’s fiduciary rule—and the 5th Circuit decision—only applied to non-discretionary investment advice. It does not affect other types of fiduciary activities; for example, discretionary investment management and discretionary administrative decisions.

That, in turn, brings us to fiduciary issues, and prohibited transactions, for plans sponsored by TPA firms. When a TPA firm, or its officers or owners, makes decisions about plan investments and services, it is acting in a discretionary fiduciary capacity. In that role, the firm’s duty of loyalty is to the participants, not to the firm.

So, for example, if a TPA places its 401(k) plan with a recordkeeper that makes payments to the TPA firm, the payments attributable to the TPA’s plan belong to the participants, not to the TPA firm. If the firm receives and retains those payments, it is a prohibited transaction.

Similarly, if the firm or one of its owners or officers, receives compensation (e.g., commissions or fees) for its plan, it would also be a prohibited transaction. That money would belong to the plan and the participants, not to the firm or its officers or owners.

These are not academic issues. We have seen the DOL raise these issues in investigations of TPA plans. As a word to the wise, make sure that any payments to the TPA that are attributable to the plan, or its services or investments, are deposited into the plan and are not retained by the TPA firm or any of its officers or owners.

Moral of the Story

When it comes to a TPA’s own plan, it’s important to understand the discretionary fiduciary status of the firm and the prohibited transactions that could result from any payments. These issues can be easily resolved where the firm is obligated to deposit those payments into the plan, rather than retaining them.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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