[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR2509.75-4]

[Page 325]
 
                             TITLE 29--LABOR
 
 CHAPTER XXV--EMPLOYEE BENEFITS SECURITY ADMINISTRATION, DEPARTMENT OF 
                                  LABOR
 
PART 2509_INTERPRETIVE BULLETINS RELATING TO THE EMPLOYEE RETIREMENT 
INCOME SECURITY ACT OF 1974--Table of Contents
 
Sec. 2509.75-4  Interpretive bulletin relating to indemnification of 
fiduciaries.

    On June 4, 1975, the Department of Labor issued an interpretive 
bulletin, ERISA IB 75-4, announcing the Department's interpretation of 
section 410(a) of the Employee Retirement Income Security Act of 1974, 
insofar as that section relates to indemnification of fiduciaries. 
Section 410(a) states, in relevant part, that ``any provision in an 
agreement or instrument which purports to relieve a fiduciary from 
responsibility or liability for any responsibility, obligation, or duty 
under this part shall be void as against public policy.''
    The Department of Labor interprets this section to permit 
indemnification agreements which do not relieve a fiduciary of 
responsibility or liability under part 4 of title I. Indemnification 
provisions which leave the fiduciary fully responsible and liable, but 
merely permit another party to satisfy any liability incurred by the 
fiduciary in the same manner as insurance purchased under section 
410(b)(3), are therefore not void under section 410(a).
    Examples of such indemnification provisions are:
    (1) Indemnification of a plan fiduciary by (a) an employer, any of 
whose employees are covered by the plan, or an affiliate (as defined in 
section 407(d)(7) of the Act) of such employer, or (b) an employee 
organization, any of whose members are covered by the plan; and
    (2) Indemnification by a plan fiduciary of the fiduciary's employees 
who actually perform the fiduciary services.
    The Department of Labor interprets section 410(a) as rendering void 
any arrangement for indemnification of a fiduciary of an employee 
benefit plan by the plan. Such an arrangement would have the same result 
as an exculpatory clause, in that it would, in effect, relieve the 
fiduciary of responsibility and liability to the plan by abrogating the 
plan's right to recovery from the fiduciary for breaches of fiduciary 
obligations.
    While indemnification arrangements do not contravene the provisions 
of section 410(a), parties entering into an indemnification agreement 
should consider whether the agreement complies with the other provisions 
of part 4 of title I of the Act and with other applicable laws.

[40 FR 31599, July 28, 1975. Redesignated at 41 FR 1906, Jan. 13, 1976]