102 Iowa L. Rev. 505 (2017)

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Abstract

Pension and welfare benefit plans sponsored by private employers are big business. The sponsorship of these plans is the most heavily tax-subsidized private economic activity in the entire federal budget, with an estimated loss in federal tax revenues due to special tax breaks of over $1.485 trillion for the budget period 2014-2018. In exchange for these special tax breaks, the federal government heavily regulates private plans. To cope with the complexity, employers increasingly hire outside professional fiduciaries to run their employee benefit plans so that they can concentrate on running their businesses. Although this outsourcing of plan management and administrative functions is now widespread, minimal federal regulation governs these fiduciary outsourcing arrangements. As evidenced by a 2014 report issued by the Department of Labor's ERISA Advisory Council, both employers and the professional fiduciary-services industry want and need more guidance in the form of federal regulation. The need for regulation has become even more urgent in light of two subsequent developments: the Supreme Court's 2015 decision in Tibble v. Edison International, which further encourages employers to outsource plan asset management functions; and the Employees Benefit Security Administration's promulgation of new regulations in 2016, which expand the universe of professional investment advisors who are ERISA fiduciaries. This Article explains and analyzes the unresolved issues that have emerged in this complex area of law, and proposes specific solutions to regulate fiduciary outsourcing arrangements more effectively.