ERISA sections 3(16), 3(21) and 3(38)

In our experience, the ERISA terms "fiduciary" (ERISA 3(21)), "administrator" (ERISA 3(16)) and "investment manager" (ERISA 3(38)) are used conversationally in discussions about outsourcing in ways that don't always correspond to the way they are defined by ERISA. For employers, it's critical to be clear about what authority they are transferring to the outsourcing provider and what duties and liabilities they are retaining. In that regard, terminology matters.

In this article we review the meaning of the terms. We then consider, in each case, how those terms are used when discussing outsourcing. Finally, we briefly discuss the significance of these distinctions for purposes of the outsourcing relationship and contracting.

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