ERISA has given 401(k) plan sponsors several alternatives when it comes to addressing unwanted fiduciary liability (see “3 Ways 401k Plan Sponsors Can Reduce Fiduciary Liability,”, Nov. 11, 2014). Two of the methods outlined in the law focus on the provision of investment services.

While both can deal with discretionary investment authority, convention has deemed the 3(21) ERISA fiduciary as offering non-discretionary services while the 3(38) ERISA fiduciary offers discretionary services. In addition, only certain specifically enumerated entities can offer 3(38) services while there are no qualification requirements for 3(21) providers. 

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