Are Personal Advisers ERISA Fiduciaries? Maybe yes, if advising about a 401(k)

Los Angeles partner Fred Reish and Florham Park counsel Joan Neri co-authored “Are Personal Advisers ERISA Fiduciaries? Maybe yes, if advising about a 401(k),” which appeared in Planadviser Magazine in April 2019. The answer lies in whether the adviser provides investment advice to a participant about his 401(k) account in a way that meets the DOL’s five-part test: (1) you provide advice to the plan participant about investments for a fee, (2) on a regular basis, (3) under a mutual understanding, (4) that the advice will form a primary basis for investment decisions, and (5) that the advice is individualized based on the participant’s unique needs.