Empower, the third largest record keeper by DC assets, is sending notices to its plan sponsors that it does not intend to be plan fiduciary on its $400bn of AUA (assets under administration). While this is less than ideal for its clients, at least they know where they stand! Many record keepers have no indicated whether or not they intend to be named fiduciaries----adding an extra layer of complexity and confusion around what already exists around DOL.
"I think Empower is an outlier" among other record keepers, Marcia Wagner, principal of The Wagner Law Group, said of the notice to plan sponsors. "I think it'll upset a lot of Empower's clients who thought they were fiduciaries," she added. "Putting it in people's faces like this, I'm not sure is helpful, and I'm not sure why they're doing it." An Empower spokesman was not immediately available to comment on the notice. In its adviser email, Empower said the document is "part of our ongoing DOL fiduciary rule communication and documentation plan."