Is an employer a fiduciary in the establisment of an ERISA plan?
| In establishing an ERISA plan, is an employer an ERISA fiduciary? |
|
A certain class of discretionary activities involves only the formation, and not the management, of plans. These so-called "settlor" functions include decisions relating to the establishment, termination and design of plans which are not fiduciary activities. Courts have utilized this analysis when reviewing a decision to terminate a plan. Absent violation of the pension agreement itself or affirmative misrepresentations to participants and beneficiaries, an employer terminating a plan acts solely as an employer, not as a fiduciary. |
