He or she might be a fiduciary, but not an "investment manager."

A broker (or dealer) registered under the Securities Exchange Act of 1934 is not deemed a fiduciary by virtue of executing securities transactions on behalf of a plan as a part of its normal business activity.

And a general rule, broker/dealer firms will contend that they or their broker representatives are not fiduciaries to a Plan.

If a broker/dealer is deemed a fiduciary due to any of the circumstances referenced in Department of Labor Reg. Paragraph 2510.3-21(d)(1), ERISA does not provide any statutory relief of liability to other Plan Fiduciaries.

Statutory protection from liability is available only if investment responsibilities have been delegated to an "investment manager." Under ERISA statutes, a person registered only as a broker/dealer cannot be named as an investment manager.

The Department of Labor Reg. Paragraph 2510.3-21(d)(1) articulates the circumstances that cause a broker/dealer to be deemed a fiduciary as follows:

1. The broker/dealer is affiliated with a fiduciary of the plan.

2. The broker/dealer exercises discretion (as opposed to receiving specific instructions from the plan fiduciaries) with respect to

security to be purchased or sold;
price range within which the security may be bought or sold;
execution time span (generally exceeding 5 days) for the buy or sell;
minimum or maximum number of shares to be traded.