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401(k) Self Directed Brokerage Accounts: Fiduciary Considerations

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With Guest
Thomas E. Clark, Jr.
Partner, ERISA Attorney
Wagner Law Group

Tom Clark leads the St. Louis office of the Wagner Law Group. His expertise encompasses all aspects of employee benefits programs, including the design, implementation and compliance of retirement plans, health and welfare plans, and executive and incentive compensation arrangements. He also has a robust practice assisting covered service providers in meeting their ERISA compliance needs.

Mr. Clark’s vast litigation experience complements the firm’s strong and growing ERISA and employment litigation department and includes work on landmark ERISA cases involving complicated ERISA fiduciary duty issues. He has been quoted extensively as an ERISA and employee benefits expert by outlets such as Reuters, the Associated Press, Bloomberg, and Forbes.

Mr. Clark teaches ERISA fiduciary law as an Adjunct Professor at The Washington University in St. Louis School of Law, his alma mater. He is a co-author of the Second Edition of "ERISA: Principles of Employee Benefits Law," the only treatise of its kind that provides an overview of the regulation of employee benefit plans by highlighting the central principles and competing policies of employee benefits law in a compact and accessible format for a broad audience of readers.

Recap, Highlights, and Thoughts

This episode is a follow on conversation to an episode a few months ago where we talked about the operational aspects of self-directed brokerage accounts in workplace retirement plans.  While you don’t have to listen to the prior episode first, it is definitely worth checking out if you are interested in the topic.  Today, Tom Clark, a Partner and ERISA Attorney with the Wagner Law Group and I jump into the sometimes scary and confusing fiduciary territory of offering self-directed brokerage accounts.  Tom shares great input on the general fiduciary concepts around self-directed brokerage, fee equity issues, discrimination issues, prohibited investments, the DOL’s attitude towards them and much more. Tom also talks about a few left turns employers can take off a cliff when offering self-directed brokerage accounts, a few great responses to participant questions about self-directed brokerage, thoughts on beanie babies  and his take on whether Ralphie will shoot his eye out.  

If you like what you hear or are looking for more from Tom, check out  He has compiled many of his white papers, presentations, podcasts he has been on and much more all in one spot.  

Finally, this will be our last episode prior to a brief hiatus in July.  Rest assured we will be back in August with some exciting new episodes.  During the break, check out some of the 160 episodes we have released.  Most of them are evergreen and do not have an expiration to them.  Also, I will be thinking about ways to make the podcast more valuable.  Please shoot me any ideas for improvement, future guests, topics or questions I should be asking.  Love to hear what you have to say, shoot me an email to  

Thanks for listening!​​

Sincerely Your Host, 

Rick Unser

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