“3(21)” and “3(38)” are two types of fiduciary advisors described in Employee Retirement Income Security Act (ERISA) regulations.
The 3(21) advisor is generally someone who acts as a co-fiduciary—he or she is equally responsible for fund selection and fund monitoring, but the plan sponsor makes final decisions. Under the 3(38) model, the entity or person who appoints that outside investment manager still has fiduciary liability for the appointment and for monitoring the actions of the investment manager. At the end of the day, the ultimate responsibility still resides with the plan sponsor, whether it is a 3(21) or 3(38) model.
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