Plan providers love to say, “We’re not the fiduciary.” And in many cases, that’s true. But here’s the uncomfortable reality: silence can still get you pulled into a lawsuit.
I’ve seen it happen more times than I can count. A provider spots a problem—questionable forfeiture usage, rising fees without benchmarking, payroll errors that keep repeating—but says nothing. Or worse, mentions it casually once and moves on. Years later, when litigation hits, plaintiffs’ counsel asks a simple question: “What did the provider know, and when did they know it?”
That’s when silence becomes Exhibit A.
ERISA doesn’t require providers to be fiduciaries to be relevant witnesses. Emails, service logs, and internal notes suddenly matter. If a provider had visibility into an issue and failed to flag it in a meaningful way, plaintiffs will argue that the provider enabled imprudence—even if the claim ultimately fails.
The fix isn’t to overstep. It’s to document escalation. Providers should clearly identify risks, communicate them in writing, and explain consequences. If the sponsor ignores the advice, that’s on them—but only if the record shows the provider spoke up.
Being helpful doesn’t mean being quiet. And being quiet doesn’t mean being safe.
In today’s litigation environment, the most dangerous thing a provider can do is assume that saying nothing is neutral. It isn’t. Silence gets interpreted. Often badly.
If you see something, say something. Then document it. That’s not fiduciary overreach—it’s professional self-preservation.
