3(21) or 3(38)—What’s the Difference?

2023 | By Fred Reish Defined Contribution Insights

Once the fiduciaries at a plan sponsor make the decision to hire investment expertise, they need to decide whether to engage with a 3(21) or a 3(38) investment advisor.

When a company sponsors a retirement plan such as a 401(k) plan, the officers and managers who make decisions about the investments and administration of the plan become fiduciaries. As a number of courts have said, they are subject to the highest standard known to the law—the prudent person rule. Under that rule, fiduciaries must engage in prudent processes to make decisions about the investments and must act with a duty of loyalty to the employees who participate in the plan.

The views expressed here are those of Fred Reish. They should not be construed as investment advice or as the views of Hartford Funds or the employees of Hartford Funds. They are based on available information and are subject to change without notice. The information above is intended as general information and is not intended to provide, nor may it be construed as providing, tax, accounting or legal advice. As with all matters of a tax or legal nature, please consult with your tax or legal counsel for advice. This material and/or its contents are current at the time of writing and may not be reproduced or distributed in whole or in part, for any purpose, without the express written consent of Fred Reish.

MFDC073 3287210

About The Author

Fred Reish

JD, Partner, Faegre Drinker Biddle & Reath LLP

Fred Reish is an ERISA attorney whose practice focuses on fiduciary responsibility, retirement income, and plan operational issues. He has been recognized as one of the “legends” of the retirement industry by both PLANADVISER magazine and PLANSPONSOR magazine.