Plan providers love to say, \u201cWe\u2019re not the fiduciary.\u201d And in many cases, that\u2019s true. But here\u2019s the uncomfortable reality: silence can still get you pulled into a lawsuit.<\/p>\n
I\u2019ve seen it happen more times than I can count. A provider spots a problem\u2014questionable forfeiture usage, rising fees without benchmarking, payroll errors that keep repeating\u2014but says nothing. Or worse, mentions it casually once and moves on. Years later, when litigation hits, plaintiffs\u2019 counsel asks a simple question: \u201cWhat did the provider know, and when did they know it?\u201d<\/p>\n
That\u2019s when silence becomes Exhibit A.<\/p>\n
ERISA doesn\u2019t require providers to be fiduciaries to be relevant witnesses. Emails, service logs, and internal notes suddenly matter. If a provider had visibility into an issue and failed to flag it in a meaningful way, plaintiffs will argue that the provider enabled imprudence\u2014even if the claim ultimately fails.<\/p>\n
The fix isn\u2019t to overstep. It\u2019s to document escalation. Providers should clearly identify risks, communicate them in writing, and explain consequences. If the sponsor ignores the advice, that\u2019s on them\u2014but only if the record shows the provider spoke up.<\/p>\n
Being helpful doesn\u2019t mean being quiet. And being quiet doesn\u2019t mean being safe.<\/p>\n
In today\u2019s litigation environment, the most dangerous thing a provider can do is assume that saying nothing is neutral. It isn\u2019t. Silence gets interpreted. Often badly.<\/p>\n
If you see something, say something. Then document it. That\u2019s not fiduciary overreach\u2014it\u2019s professional self-preservation.<\/p>\n
<\/span><\/p>","protected":false},"excerpt":{"rendered":" Plan providers love to say, \u201cWe\u2019re not the fiduciary.\u201d And in many cases, that\u2019s true. But here\u2019s the uncomfortable reality: silence can still get you pulled into a lawsuit. I\u2019ve seen it happen more times than I can count. A … Continue reading