The Rising Need for ERISA Fiduciary Liability Protection For TPAs and Other Administrative Service Providers to Retirement Plans

Transcription

1 INVESTMENT ADVISOR SERIES The Rising Need for ERISA Fiduciary Liability Protection For TPAs and Other Administrative Service Providers to Retirement Plans Marcia Wagner - The Wagner Law Group On behalf of: North American Professional Liability Insurance Agency, LLC (NAPLIA) 161 Worcester Road, Suite 504, Framingham, MA Tel Fax W W W. N A P LI A. C OM

2 Important Information The Wagner Law Group has prepared this guide on behalf of North American Professional Liability Insurance Agency, LLC (NAPLIA). It is intended for third party administrators and other administrative service providers to 401(k) plans and other types of retirement plans that are subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA). This guide is intended for general informational purposes only, and it does not constitute legal, tax or investment advice on the part of The Wagner Law Group, NAPLIA or their respective affiliates. The information provided in this paper is intended solely for general educational purposes. It is not intended for the purpose of providing specific legal, insurance, or other professional advice to any particular recipient or with respect to any particular jurisdiction. The author, publisher, and distributor of this document (1) make no representations, warranties, or guarantees as to its technical accuracy or compliance with any law ( federal, state, or local) or professional standard; and, (2) assume no responsibility to any recipient of this document to correct or update its contents for any reason, including changes in any law or professional standard. You should formally retain the counsel of an attorney knowledgeable as to your industry, your practice, and the laws of any jurisdiction(s) within which you conduct your practice to ensure the document s maximum usefulness and compliance with applicable laws and professional standards. Important Information for ASPPA Members TPAs should consider adopting the best practices prevailing in the marketplace, including both compliance-related controls and insurance coverage, to manage the potential legal risks which may arise from providing their services to ERISA plan clients. For individualized legal advice concerning these practices, TPAs should consider engaging qualified ERISA counsel. For assistance concerning the sufficiency of their errors and omissions insurance and ERISA fiduciary coverage, TPAs should consider consulting a specialist in this area. NAPLIA has agreed to perform a no-cost policy review for ASPPA members who sign up at the conference. Please see Paul Smith pauls@naplia.com at the NAPLIA booth to arrange for the consultation.

3 Executive Summary When providing their administrative services, third party administrators and other similar administrative service providers ( TPAs ) customarily take the position that they are not acting in a fiduciary capacity for purposes of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ). However, even if a plan sponsor engages a TPA pursuant to a service agreement that expressly provides that the TPA will not be serving as a plan fiduciary; the TPA may nevertheless be deemed a fiduciary for ERISA purposes in certain circumstances. The courts have held that a person s fiduciary under ERISA must be determined by focusing on the function performed, rather than on the title held by the person. TPAs may be deemed de facto plan fiduciaries subject to the high standard of care under ERISA, even though their service agreements plainly state that their responsibilities are limited to providing non-fiduciary ministerial services. The following is a summary of the five ways in which courts have held that TPAs and other similar providers may inadvertently become plan fiduciaries. Encouraging Heavy Reliance on TPA s Expertise If a TPA were to encourage a plan sponsor to consistently rely on the TPA s advice for operating the plan, the TPA may be deemed a fiduciary to such plan. Failing to Process Benefit Payments on a Timely Basis If a TPA were to unreasonably delay or fail to process a participant s request for a plan loan or benefit payment, the TPA would in effect be exercising control over plan assets and may become a fiduciary. Providing Unsolicited Investment Advice to Plan Sponsor Even if it has not been formally engaged to provide any investment-related services, the TPA may become a fiduciary if it makes investment recommendations and the plan sponsor relies on them.

4 Offering Investment Guidance to Participants TPAs are susceptible to being characterized as fiduciaries because of their position of trust with participants, especially if they utilize confidential plan information when delivering investment guidance. Improper Use of Plan Funds by TPA If a TPA s employee misappropriates plan funds, the TPA may be viewed as exercising practical control over plan assets and it may be deemed a fiduciary. Even though TPA firms routinely arrange for coverage protection through professional liability insurance, many policies will not provide any protection for ERISA fiduciary liability claims made against the firm. All TPAs should take a hard look at their coverage. If their insurance policies do not protect them against such claims, they should strongly consider purchasing errors and omissions insurance with affirmative ERISA fiduciary coverage in light of the severity of the penalties under ERISA for inadvertently performing any fiduciary functions and the relatively modest cost of purchasing the appropriate coverage from a specialist in this area. The scope of this paper did not permit an examination of the ERISA bonding requirement for fiduciaries, and it should be noted that there would be a myriad of ERISA bonding issues that would be implicated by a TPA s potential as an ERISA fiduciary.

5 Introduction Potential Fiduciary Liability for TPAs In the retirement plan industry, third party administrators and other similar administrative service providers ( TPAs ) furnish invaluable and necessary services on behalf of tax-qualified retirement plans and their participants. When providing their administrative services, TPAs customarily take the position that they are not acting in a fiduciary capacity for purposes of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ). However, even if a plan sponsor engages a TPA pursuant to a service agreement that expressly provides that the TPA will not be serving as a plan fiduciary; the TPA may nevertheless be deemed a fiduciary for ERISA purposes in certain circumstances. The legal consequences of being characterized as a fiduciary may be dire, as ERISA will override the terms of the TPA s service agreement. If a TPA is deemed a plan fiduciary for any reason, its actions (and the failure to act) are automatically held to the same stringent standard of care that applies under ERISA to all plan fiduciaries. How ERISA May Impose Fiduciary Status A person may become a plan fiduciary under ERISA by being named as a fiduciary in the plan document. 1 In addition, a person may also become a fiduciary by performing any of the following fiduciary functions: 1) Exercising any discretionary authority or discretionary control over management of the plan; 2) Exercising any authority or control over the management or disposition of plan assets; 3) Rendering investment advice for a fee or other compensation, direct or indirect, with respect to any plan assets, or having any authority or responsibility to do so; or 4) Having any discretionary authority or responsibility in the administration of the plan. 2 1 ERISA Section ERISA Section 3(21)(A).

6 Even if it were not named as a fiduciary in a plan document, a TPA would automatically be deemed a fiduciary if it were to perform any of the four functions described above. In other words, such TPA would be deemed a plan fiduciary based on the TPA s conduct and its actions. If the TPA merely acts like a fiduciary, it would become a fiduciary. Thus, a TPA may accidentally become a fiduciary even if it is not formally appointed by the plan sponsor to serve as a fiduciary, and even if the TPA s service agreement formally provides that it will not be acting as a fiduciary. Because of this functional approach to determining fiduciary, ERISA is often said to have a functional fiduciary definition. The U.S. Department of Labor (the DOL ) has issued interpretive regulations providing guidance on the kind of ministerial activities that TPAs may engage in without subjecting themselves to fiduciary under ERISA. 3 According to this DOL guidance, the following functions are ministerial and, therefore, non-fiduciary in nature: application of rules to determine plan eligibility; calculating benefits; maintaining plan records; preparing reports required by governmental agencies; preparing employee communications; collecting contributions and applying them as specified in the plan; processing claims; and making recommendations to decision-makers with respect to plan administration. An attorney, accountant, actuary or consultant who renders services to a plan performing their usual professional functions ordinarily will not be considered fiduciaries. On the other hand, if such persons perform any fiduciary functions on behalf of the plan, they would be considered fiduciaries for purposes of ERISA. 4 3 DOL Regulation Section , D-4. 4 DOL Regulation Section , D-1.

7 How TPAs May Be Deemed Fiduciaries Consistent with the DOL s regulatory guidance, the courts have similarly held that a person s fiduciary under ERISA must be determined by focusing on the function performed, rather than on the title held by the person. 5 For example, there is a significant and growing line of case law under which claims administrators for welfare benefit plans (e.g., health plans, dental plans) were deemed to be ERISA fiduciaries because they exercised practical or effective discretionary control over the administration of the plan or its assets, even though they were not formally charged with such responsibilities under their service agreements. 6 There is a similar line of case law for TPAs and other similar administrative service providers to retirement plans in which the courts have ruled that they are de facto plan fiduciaries subject to the high standard of care under ERISA, even though their service agreements plainly stated that their roles and responsibilities would be limited to providing non-fiduciary ministerial services. This case law is highly informative, and we have summarized the five ways in which courts have held that TPAs and other similar providers may inadvertently become plan fiduciaries. Encouraging Heavy Reliance on TPA s Expertise Retirement plans are subject to strict regulation under ERISA and must adhere to a myriad of complex requirements. In order to furnish their administrative service properly, TPAs must possess sufficient expertise in the operation and regulation of retirement plans. Unfortunately, plan sponsors may have little or no experience with managing plans and may not understand the numerous rules which govern their operation. Such plan sponsors are highly likely to ask their TPAs for advice on the day-to-day management of their plans. If a TPA were to encourage or induce a plan sponsor to rely on the TPA s advice exclusively for purposes of operating the plan, the TPA may be deemed a fiduciary to such plan. 5 See, e.g., Amato v. Western Union International, Inc., 773 F.2d 1402 (2d Cir. 1985), cert. dismissed, 474 U.S (1986); Donovan v. Mercer, 747 F.2d 304 (5 th Cir. 1984). 6 See, e.g., Borroughs Corp. v. Blue Cross Blue Shield of Michigan, No. 2:11-cv VAR-PJK (E.D. Mich. Sept. 7, 2012); Harold Ives Trucking Co. v. Spradley & Coker, Inc., 178 F.3d 523 (8th Cir. 1999).

8 In Brock v. Self, the court concluded that the TPA for a defined contribution plan ( DC Plan ) had effectively exercised discretionary authority over the plan s administration and its investments, as evidenced by the plan sponsor s heavy reliance on the TPA to answer any and all questions regarding the administration and management of the plan. 7 In reaching this conclusion, the court specifically observed that the TPA had consistently induced the plan sponsor s reliance on the TPA by providing informational advice as to ERISA requirements and by assuring the plan sponsor that the TPA would handle everything to ensure compliance with ERISA. Similarly, in Eaton v. D Amato, the court ruled that a TPA providing administrative services to both a retirement plan and a welfare benefit plan was an ERISA fiduciary, despite the TPA s assertion that it was merely providing non-fiduciary ministerial services under the direction of the plan sponsor. 8 The court cited ERISA s legislative history as supporting authority for its decision, stating that Congress enacted ERISA in full expectation that the fiduciary definition would encompass consultants and advisors whose special expertise leads them to formulate and act on discretionary judgments while performing administrative functions not otherwise contemplated as fiduciary (emphasis added). 9 Thus, when a TPA s expertise and a plan sponsor s heavy reliance on such expertise causes the TPA to exercise effective control over the plan s administration, such circumstances can result in the TPA becoming a fiduciary even when the TPA s services would not otherwise be viewed as fiduciary in nature. Failing to Process Benefit Payments on a Timely Basis TPAs are routinely involved in the processing of plan loans, withdrawals and other benefit payments. If a TPA were to fail or refuse to process a participant s benefit payment for any reason, would the TPA be viewed as having effective control over the plan assets in the participant s account? F.Supp. 1509, 1521 (W.D. La. 1986) F.Supp. 743 (D.D.C. 1980). 9 See, also, H.R. Rep. No. 1280, 93d Cong., 2d Sess. 323 (1974) (Conf. Report).

9 This seemingly theoretical question is actually addressed in Blatt v. Marshall & Lassman. 10 This case involved a multiple employer plan (the MEP ) administered by an annuity platform. 11 Following his severance from employment, a participant requested a lump sum distribution from the annuity platform. However, before this benefit claim could be processed, the annuity platform requested confirmation from the participating employer that the participant had in fact terminated his employment. Because the participating employer unreasonably delayed its confirmation of this fact, the participant was unable to receive his lump sum distribution on a timely basis. The court ruled in favor of the participant, holding that the employer s delay in confirming the employment of the participant was itself an exercise of actual control over plan assets. Thus, the participating employer, which was not otherwise involved in the day-to-day administration of the MEP, was deemed to be a fiduciary in breach of its duties to the plan. The Blatt case involved a passively participating employer in a MEP (rather than a TPA), but the court s legal reasoning would be equally applicable to TPAs. If a TPA were to unreasonably delay or fail to process a participant s request for a plan loan or benefit payment, the TPA would in effect be exercising actual control over the assets in the participant s account. Based on the legal reasoning of the Blatt decision, such TPA may be considered a plan fiduciary and it may also be viewed as being in breach of its fiduciary duties. Providing Unsolicited Investment Advice to Plan Sponsor Many TPAs do not purport to provide any investment advisory services as part of their customary administrative services. However, if a TPA were to make investment recommendations which served as the primary basis for the plan sponsor s decisions, such TPA would be deemed a fiduciary even if the plan sponsor had not formally engaged the TPA to provide any investment-related services F.2d 810 (2d Cir. 1987). 11 A multiple employer plan is a retirement plan in which two or more unrelated employers contribute to the plan for the benefit of their respective employees. Typically, the MEP is under the control of a lead employer, and the other participating employers are not involved in the administration of the plan.

10 For example, accountants ordinarily are not viewed as fiduciaries when providing their services to plan clients in the ordinary course of business. However, in Martin v. Feilen, the court held that the retirement plan s accountants transcended their normal role by recommending investments and structuring related transactions for the plan. Since their services went well beyond their expected services as accounting professionals, the court ruled that they had exercised effective control over the retirement plan s assets. And, therefore, the accountants were considered plan fiduciaries as a result of their ongoing investment advice to the plan sponsor and subject to fiduciary liability for any related breaches. 12 The accountants argument that they were merely hired to provide accounting services was wholly disregarded by the court. Offering Investment Guidance to Participants Many TPAs and other similar administrative service providers offer assistance to participants through written communication materials, call centers and in-person meetings. But even if they intend to limit their services to investment education and other non-fiduciary guidance for participants, TPAs may be viewed as plan fiduciaries under certain circumstances. The case of Young v. Principal Financial Group, Inc. involved a 401(k) plan administered by Principal s recordkeeping platform. 13 According to the allegations, participants nearing retirement received letters from Principal urging them to call a benefits counselor. The reality is that these benefits counselors were actually sales representatives of Principal s affiliated broker-dealer, encouraging participants to roll over their plan accounts to proprietary IRA products. The court suggested that a one-time phone conversation with a sales representative may not in and of itself rise to the level of a fiduciary act. However, the court noted that the conduct in question was much broader than the participants phone conversations alone. Specifically, Principal had used confidential information and a position of trust to encourage participants to call their sales department and the participants had spoken with the sales representative with the belief that they were benefit counselors for the plan F.2d 660 (8th Cir. 1992) F.Supp.2d 96 (S.D. Iowa 2008).

11 This case illustrates how administrative service providers, including TPAs, are susceptible to being characterized as fiduciaries because of their position of trust with participants, especially if they utilize confidential plan information when delivering guidance to participants. Even if the investment guidance provided by a TPA would normally be viewed as educational or even sales-related in nature, if any confidential information concerning the participant is utilized in the delivery of such guidance, the TPA could be deemed to be acting in a fiduciary capacity. Improper Use of Plan Funds by TPA TPAs often directly or indirectly facilitate the transfer of plan funds to various parties. For example, a TPA may oversee the distribution of benefits to a participant or the reimbursement of plan expenses incurred by the plan sponsor. If the TPA is a bundled provider of both high-level administrative services (e.g., preparation of 5500, nondiscrimination testing) as well as core recordkeeping services (e.g., maintaining participant accounts, platform of investment alternatives), the TPA customarily also maintains custody of the plan s assets. Ordinarily, so long as the TPA is acting at the direction of the plan sponsor or another plan fiduciary, this level of involvement in the transfer or custody of plan funds would not cause the TPA to become a fiduciary. However, if the TPA misappropriates any of the plan s assets, the TPA s discretionary use of plan assets could be viewed as a fiduciary act. In Guyan International, Inc. v. Professional Benefits Administrators, Inc., the TPA for various welfare benefit plans used plan funds for its own purposes causing hundreds of thousands of dollars worth of medical claims to go unpaid. 14 After noting that the TPA s use of plan funds was contrary to the TPA s service contract, the court ruled that this fact demonstrated that the TPA had practical control over plan assets and that the TPA was subject to liability as a fiduciary under ERISA. Although the TPA had argued that its service contract limited its to that of a non-fiduciary service provider, the court explained that a contract cannot override a TPA s functional as a fiduciary. 14 No , 2012 WL (6th Cir. Aug. 20, 2012).

12 This decision and other similar rulings highlight how, when the misappropriation of plan funds is involved, ERISA may impose fiduciary liability on TPAs even when they have been formally engaged to provide non-fiduciary services only. 15 It should also be noted that the bad faith acts of one or more employees of the TPA could subject the entire TPA firm to fiduciary liability, to the extent an applicable employee is viewed as acting on behalf of the TPA firm. Legal Implications for Different Types of TPAs There is a wide variety of TPAs servicing defined benefit pension plans ( DB Plans ) and DC Plans. For purposes of this paper, it may be helpful to categorize TPAs in the following 5 groups: 1) Unbundled TPAs for DC Plans provide high-level administrative services only for DC Plans. Recordkeeping services would be provided by a separate firm. 2) Bundled TPA/Recordkeepers for DC Plans provide both high-level administrative services and core recordkeeping services for DC Plans. These TPAs are often large firms and they customarily maintain custody of the plan s assets. 3) TPAs for DB Plans provide high-level administrative services for DB Plans. Such TPAs may also calculate the plan s funded and serve as the plan actuary. 4) Producing TPAs provide both administrative and investment-related services on behalf of DB Plans and DC Plans. They are often brokers furnishing non-fiduciary investment guidance, who also provide plan-related administrative support to the plan sponsor. 15 See, also, Bouton v. Thompson, 764 F.Supp. 20 (D. Conn 1991); Yeseta v. Baima, 837 F.2d 380 (9th Cir. 1989).

13 The table below summarizes how these various categories of TPAs may be deemed plan fiduciaries if they engage in the functional activities described above in this paper. TABLE 1 - How Different Types of TPAs May Be Deemed Fiduciaries 1. Encouraging Heavy Reliance on TPA s Expertise 2 Failing to Process Benefit Payments on a Timely Basis 3. Providing Unsolicited Investment Advice to Plan Sponsor 4. Offering Investment Guidance to Participants 5. Improper Use of Plan Funds by TPA Unbundled TPA for DC Plans fiduciary fiduciary fiduciary fiduciary fiduciary Bundled TPA/ Recordkeeper for DC Plans fiduciary fiduciary fiduciary fiduciary fiduciary TPA for DB Plans fiduciary fiduciary fiduciary fiduciary n/a Producing TPA fiduciary fiduciary n/a (No unsolicited advice provided) fiduciary fiduciary Fiduciary Liability and Protection The potential liability and related penalties under ERISA for any fiduciary breach are numerous and severe. First, the fiduciary is personally liable for any losses to the plan resulting from such breach, and any profits that the fiduciary gains through such breach must be restored to the plan. 16 Second, a fiduciary is subject to liability for another co-fiduciary s breach if the first fiduciary has knowledge of the co-fiduciary s breach, unless the first fiduciary makes reasonable efforts to remedy the co-fiduciary s breach. 17 Third, the DOL may assess a civil penalty equal to 20% of the amount recovered by the plan from the fiduciary for its breach. Fourth, the Internal Revenue Service may impose punitive excise taxes 16 ERISA Section 409(a). 17 ERISA Section 405(a).

14 on any fiduciary breach involving a prohibited transaction. 18 Lastly, the fiduciary is also subject to such other equitable or remedial relief as a court may deem appropriate, and it may be required to pay the legal fees of the plan party seeking enforcement of ERISA on behalf of the plan (e.g., plan sponsor, participant). TPAs routinely arrange for coverage protection through professional liability insurance or errors and omissions insurance. However, many policies expressly provide that they will not provide protection for any ERISA fiduciary liability claims made against the TPA. Other policies are silent or ambiguous on whether such protection is available. Accordingly, many TPAs may not realize that they do not have any actual protection from the potential fiduciary liability that may be imposed on them under ERISA, or even realize that insurance coverage is available. Special Considerations for Producing TPAs Producing TPAs customarily provide their services through dual legal entities, one legal entity for investment-related services ( Investment Firm ) and another legal entity for administrative services ( Administrative Firm ). For example, a group of professionals doing business as a Producing TPA may provide their investment-related services as registered representatives of an independent broker-dealer (Investment Firm), while providing their administrative services through a small professional corporation (Administrative Firm). Although both services would be delivered by the same group of professionals, for legal purposes, each service type would be delivered by a different legal entity. Even if a Producing TPA s Investment Firm were to maintain insurance for ERISA fiduciary liability, such coverage would not provide protection against any ERISA fiduciary liability imposed on the Producing TPA s Administrative Firm. For this reason, many Producing TPAs have exposure to potential ERISA fiduciary liability, even if their respective Investment Firms maintain errors and omissions insurance with ERISA fiduciary liability coverage Section 4975 of the Internal Revenue Code of 1986, as amended. 19 A Producing TPA s Investment Firm may restrict its brokers activities so that they cannot provide any fiduciary advice. With respect to Investment Firms with these restrictions, presumably, their professional liability insurance would not cover any ERISA fiduciary liability claims made against the Investment Firm. Thus, such Producing TPA s Investment Firm and Administrative Firm may both have exposure to ERISA fiduciary liability claims.

15 Given the fact that Producing TPAs customarily provide their services through a separate Investment Firm and a separate Administrative Firm, they should strongly consider obtaining errors and omissions insurance with adequate ERISA fiduciary coverage for both of their legal entities. It should also be noted that, due to the broad nature of the investment-related and administrative services furnished by Producing TPAs, plan sponsors may be more likely to defer to the Producing TPA s expertise on plan management matters. To the extent Plan sponsors place a heavy reliance on a Producing TPA s expertise, the Producing TPA would be subject to heightened fiduciary risks from an ERISA liability perspective. Accordingly, Producing TPAs in particular should consider paying careful attention to the scope and level of their insurance protection against such potential ERISA liability. Conclusions All TPAs should take a hard look at their professional liability insurance or errors and omissions insurance. If their insurance coverage does not protect them against potential ERISA fiduciary liability, they should seriously consider purchasing such coverage. In light of the severity of the penalties under ERISA for inadvertently performing any fiduciary functions and the relatively modest cost of purchasing errors and omissions insurance with ERISA fiduciary coverage, it would be highly prudent for TPAs to ensure that they are adequately protected. The purpose of this paper is to examine how TPAs may be subject to ERISA fiduciary liability claims and the nature of such potential ERISA liability. The scope of this paper did not permit an examination of the ERISA bonding requirement for fiduciaries and other persons who are deemed to be handling plan funds. However, it should be noted that there would be a myriad of ERISA bonding issues that would be implicated by a TPA s potential as an ERISA fiduciary.

16 Contact Paul Smith, AIF is Vice President of North American Professional Liability Insurance Agency, LLC (NAPLIA). He can be reached at or Prior to NAPLIA, Paul had a long tenure at Transamerica beganinng at Transamerica Asset Management in 1994, as a consultant throughout the New England area, supporting the Investment Advisory community, followed by a VP role in the Business Development Group at Transamerica Retirement Services. Paul s expertise in qualified plan design and current Fiduciary procedures make him a significant resource to the NAPLIA team. Gary Sutherland, CIC is CEO of North American Professional Liability Insurance Agency, LLC (NAPLIA). He can be reached at garys@naplia.com or Gary founded NAPLIA in 1998 and has grown it to be a national leader in the Errors & Omissions insurance industry. Gary is a regular presenter on risk management and insurance for Accountants, Investment Advisors, and other Financial Professionals. He speaks annually at conferences for fi360 and The Center for Due Diligence, both nationally recognized associations for Investment professionals. He has further served on several national panel discussions regarding best practices, claim mitigation and Errors & Omissions insurance for Accounting/Investment professionals. About NAPLIA Established in 1998, North American Professional Liability Insurance Agency, LLC (NAPLIA) specializes in providing professional liability insurance, errors and omissions insurance and related products to the financial industry. Our focused approach makes us leaders in the industry. NAPLIA has been named to the INC 5000 list of the fastest growing private companies in America every year since 2008.

17 About Marcia Wagner The Wagner Law Group MARCIA S. WAGNER is a specialist in pension and employee benefits law, and is the principal of The Wagner Law Group, which she founded 15 years ago. A summa cum laude and Phi Beta Kappa graduate of Cornell University and a graduate of Harvard Law School, she has practiced law for over twenty-four years. Ms. Wagner is recognized as an expert in a variety of employee benefits issues and executive compensation matters, including qualified and nonqualified retirement plans, rabbi trusts, all forms of deferred compensation, and welfare benefit arrangements. Ms. Wagner is a frequent lecturer and author in the ERISA/employee benefits area and author. Ms. Wagner has been listed as a Massachusetts Super Lawyer by Boston Magazine, Who s Who Among Executive and Professional Women Honors Edition by both Empire Who s Who and Manchester s Who s Who, and has been selected to be listed in The Best Lawyers in America for 2003 through Ms. Wagner also appears on the following top lists: MA Super Lawyers Boston Magazine top 100 overall lawyers and top 50 female lawyers; and New England Super Lawyers top 100 overall lawyers and top 50 female lawyers. For the past four years, 401k Wire has listed Ms. Wagner as one of its 100 Most Influential Persons in the 401(k) industry.

18 Additional Resources Errors & Omissions Insurance for TPAs Investment Advisor ERISA Bonds: An Overview Bonding Requirements under ERISA Section Using your Insurance as a Marketing Tool (for Investment Advisors) How to inform your clients about Fiduciary Insurance The information provided in this paper is intended solely for general educational purposes. It is not intended for the purpose of providing specific legal, insurance, or other professional advice to any particular recipient or with respect to any particular jurisdiction. The author, publisher, and distributor of this document (1) make no representations, warranties, or guarantees as to its technical accuracy or compliance with any law ( federal, state, or local) or professional standard; and, (2) assume no responsibility to any recipient of this document to correct or update its contents for any reason, including changes in any law or professional standard. You should formally retain the counsel of an attorney knowledgeable as to your industry, your practice, and the laws of any jurisdiction(s) within which you conduct your practice to ensure the document s maximum usefulness and compliance with applicable laws and professional standards.