Court Dismisses 403(b) ERISA Claim Against Employer, But Not the Plan’s Adviser

The sponsor, a Texas counseling service, was protected by a safe harbor provision, but the adviser might not be so fortunate.


In December 2020, Robert Roton and Jacqueline Juarez filed a complaint in the U.S. District Court for the Northern District of Texas against their employer, Legacy Counseling Center, Inc.—a mental health center that provides counseling for people with HIV and treatment for substance addiction—and the plan’s manager, Peveto Financial Group, LLC. Both businesses are based in Texas.

The court filed a partial order on December 29, 2022, ruling on summary judgment motions from both defendants. District Judge Brantley Starr ruled that the plaintiffs have standing to bring the suit, but Legacy is exempt from the ERISA requirements in this case. Peveto, on the other hand, cannot be held liable for IRS corrective damages, yet can still be held liable for not permitting wider plan participation if they are found to be a fiduciary.

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The 2020 suit alleged that Legacy sponsored a 403(b) plan managed by Peveto Financial but only permitted “high-level” employees to participate, denying the opportunity to “rank-and-file” employees. The suit alleged that this violated the “universal availability” rule found in Internal Revenue Code 403(b)(12)(A)(ii). The plaintiffs alleged that they have a right to participate in the plan, and this participation opportunity must be offered at least once per year to employees who work 20 or more hours per week.

According to the initial filing, Roton lost out on $231,500, and Juarez lost $58,347.17 in hypothetical contributions and IRS mandatory corrective earnings to offset opportunity cost from lost investment revenue.

Peveto had argued that the plaintiffs did not have standing because recovery of this kind can only be for a plan itself, not for individual participants. Starr rejected this argument and said that standard would only apply for a defined benefit plan, not a defined contribution plan, because DC plans are invested on an employees’ behalf at the employees’ risk.

Peveto also argued that IRS corrective payments are extra-contractual damages, and Starr agreed that these payments are an administrative correction done voluntarily to avoid IRS penalties, not a remedy guaranteed by law.

Legacy argued that it should be exempt from the ERISA violations alleged, and Starr agreed. An employer is exempt from ERISA requirements related to a 403(b) plan if it meets certain criteria, including: participation in the plan is voluntary; employer involvement the products available to participants; and the employer receives no compensation except that which is used to offset the costs associated with payroll deducting.

The court found that Legacy was indeed in a safe harbor, based on these criteria.

Peveto asserted it was not a plan fiduciary and merely provided investment advice, and was therefore also not liable under ERISA. In a motion for summary judgment, facts must be read in the light most favorable to the other party, in this case the plaintiffs. Starr found that there was a factual dispute, and one-on-one consultations with participants. Peveto also collected a fee every time a participant enrolled. Since these facts are contested, the case must continue for Peveto.

The two defendants, Peveto and Legacy, also did not agree on who administered the plan, which Starr’s ruling called a game of “high stakes hot potato.” Since Legacy is in a safe harbor, it would not necessarily matter if it was responsible for administration, but since Peveto is not, administrative responsibility could suggest it was, in fact, a fiduciary and therefore liable under ERISA.

Starr did not rule on Peveto’s fiduciary status, only ruling that there is a dispute to be adjudicated at a later point.

Recordkeepers Beat Out External Managers for IRA Rollovers

While new research finds recordkeepers took the lead for overall rollover count in 2022, IRA providers outside of employer retirement plans kept their dominance for accounts of $250,000 or more.



The tug of war over who will manage the assets of hundreds of billions of retirement saving rollovers has seen at least a symbolic shift toward recordkeepers and away from external IRA providers, according to research released Thursday.

The portion of rollover transactions going to IRAs outside the recordkeeper was 39% last year, as compared to 42% of rollovers keeping an affiliation with their employer-sponsored plan and 18% going to a plan with a new employer, according to research from Hearts & Wallets. That’s the biggest rollover take-home for recordkeepers since the research and benchmarking firm started collecting the data in 2010.

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“The affiliated IRAs with recordkeepers are really well positioned to capture rollovers because the number one money motivator is simplification,” says Laura Varas, CEO and founder of Hearts & Wallets. “It’s not simple to have a  bunch of former employer plans scattered around at different companies. It has been pretty simple to roll them into IRAs, but what’s getting simpler is to roll them into a new plan – so I think the choices of rolling into an IRA or into a new plan is good for consumers, and I’m happy to see that the volume is increasing.”

The outcome, however, is not as simple as participant count. While recordkeepers were found to capture the most rollovers, third-party providers remain more likely to get bigger rollovers of $250,000 or more, the researchers found. About half (51%) of rollovers greater than $250,000 went to external firms, while affiliated IRAs dominated the smaller rollover amounts, capturing 52% of rollovers between $5,000 and $10,000.

The shift in rollover placement toward recordkeepers signifies a potential threat to the hopes of retirement advisories, who increasingly are adding or partnering with wealth management firms and are positioned to manage rollover assets. More than 5 million taxpayers rolled about $548 billion into traditional and Roth IRAs in 2019, the latest data available from the Internal Revenue Service, a figure that some researchers have estimated will grow in coming years.

Financial consultancy Cerulli Associates noted in September 2022 what it called “coopetition” between plan advisers and recordkeepers as they work together with plan sponsors while simultaneously competing for participant rollovers. The Boston-based firm predicted this competition between partners would increase in coming years, “given the attractive economics of wealth management.”

But while third-party IRA providers may be losing the participant numbers game, they have an opportunity to offer higher-touch service to wealthier savers. Participants rolling over $250,000 or more are motivated not just by simplicity, but by a desire for “better planning,” “better service” and to “get more involved,” researcher Varas found. In addition, wealthier participants were more motivated than those with smaller rollovers by putting “more money at the firm that offers me better investment results, including better interest rates.”

Varas says these motivating factors, as opposed to advisers “trolling” for participants, is what will continue driving large rollovers to out-of-plan IRAs. According to the research, only 15% of rollovers come from advisers recommending them, and are even less common for larger rollovers.

“What is generally happening is that participants with these big rollovers already have a relationship with an adviser, and they’d been planning to do it,” Varas said.

Meanwhile, even though more 401(k) recordkeepers are interested in keeping participant assets in plan, they are not generally equipped to provide the more complex advice and support for bigger rollovers, Varas says.

“I don’t think that the most appropriate place for most big retirement accounts is in plan, as the servicing capabilities of many recordkeepers in plan is simply not adequate,” she says.

When it came to specific firms winning rollovers, Bank of America and its Merrill subsidiaries were at the top with 27% of rollovers, followed by Fidelity Investments and Wells Fargo at 15% each, J.P. Morgan Chase & Co. fourth at 13%, and Capital One (12%) fifth, among others. The researchers noted that the survey was done among households that in some cases may have gravitated toward names they knew best on sight, as opposed to the correct firm for their rollover.

In Cerulli’s September 2022 report, the firm noted that both defined contribution recordkeepers and retirement aggregator firms are “seizing opportunities at the intersection of DC and wealth management by creating synergies across these two business lines.” The firm said that revenue generated from converting participants to wealth management relationships may bring higher fees for plan advisers and recordkeepers.

“For wealth managers looking to capture rollovers from DC plans, this data underscores the importance of establishing and nurturing relationships with participants earlier in their careers, years before potential rollover events,” Shawn O’Brien, associate director of Cerulli’s retirement research practice, said in the report.

For recordkeepers, O’Brien recommended “initiating direct, constructive conversations with plan advisers to address their respective approaches to capturing rollovers.” He also noted that recordkeepers can lean into a “tiered wealth management service model” in which they use digital solutions to offer lower-cost options to less affluent participants.

The analysis by Rye, New York-based Hearts & Wallets was drawn from surveying completed in August 2022 and September 2022, and it drew on trends from its database of more than 70,000 participants dating back to 2010.

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