Is a person who renders investment advice for a fee an ERISA fiduciary?

A person who renders investment advice for a fee may be an ERISA fiduciary even if another fiduciary has the authority to make the ultimate decision to make an investment. Under the Department of Labor regulations, a person renders "investment advice" if he provides an opinion concerning the value of securities or other property or makes recommendations about buying or selling them and either directly or indirectly: (a) has discretionary authority or control, whether or not pursuant to an agreement, with respect to purchasing or selling securities or other property for the plan; or (b) renders such advice on a regular basis to the plan pursuant to a mutual agreement that such services will serve as a primary basis for investment decisions with respect to plan assets.

Courts may also find that a person provides "investment advice" on the basis of the facts in a particular case. For example, a court conferred fiduciary status on a person who provided consulting, administrative and insurance brokerage services to union pension and welfare funds, when the trustees relied heavily on his advice and, in substance, delegated to him decisions concerning the scope of insurance coverage and the selection of carriers.