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Is Participant Data a Plan Asset?

This question is now the basis for a new claim against record-keepers servicing 401(k) ad 403(b) plans. Unfortunately, Federal law is silent on this matter as is ERISA. The only provision in ERISA that remotely applies to this issue is that fiduciaries must act in the best interest of plan participants and beneficiaries for the exclusive purpose of providing retirement benefits.

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What are the Fiduciary's Responsibilities

The fiduciary of a retirement plan is legally responsible for the plan’s financial and administrative decisions. Any mistakes, errors, or wrongdoing that occurs in the operation of the plan is the fiduciary’s responsibility. If the plan sponsor does not have the funds to fix the fiduciary breach the personal assets of the fiduciary are at risk. Actions of a fiduciary must be consistent with the Prudent Man Rule as defined in Title 29 of the U.S. Code §1104

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