In connection with publication of final regulations (the Rule) on the definition of “fiduciary” under the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the Internal Revenue Code of 1986, as amended (IRC), the United States Department of Labor (the Department) issued two new prohibited transaction class exemptions and amendments to several existing prohibited transaction class exemptions. Because the Rule will expand the universe of financial service providers that are subject to ERISA’s fiduciary duties, these new exemptions and revisions to existing exemptions are necessary to provide relief from the prohibited transaction provisions of ERISA and the Code for conflicts that may result.
One of the most anticipated exemptions is the Best Interest Contract Exemption (the BIC Exemption). Generally, this exemption allows entities, such as registered investment advisers, broker/dealers, and insurance companies and their agents and representatives, that are ERISA or Code fiduciaries by reason of the provision of investment advice, to receive compensation that could create a conflict of interest (such as commissions, sales loads, 12b-1 fees, revenue sharing, and other payments from third parties) if certain conditions are met.During the comment period relating to the proposed BIC exemption, the Department received a large number of comments, many from industry participants raising significant concerns about substantive and procedural items contained in the proposal. Below, we have outlined a number of the most significant issues raised in the comment process and the Department’s response in the final exemption.
Terminology and Overview:
The Department defined the parties to a typical transaction which would be covered by the Rule and BIC Exemption:
Essentially, the BIC Exemption requires that Financial Institutions and Advisers who render investment advice to Retirement Investors adhere to Impartial Conduct Standards, including the Best Interest Standard, as well as provide certain disclosures about their business model, conflicts of interest, and fees to Retirement Investors.Impartial Conduct Standards:
The change made in the final BIC Exemption makes the Impartial Conduct Standards more attainable for Financial Institutions and Advisers.The BIC Exemption also provided a more robust definition of when an investment recommendation is in the Best Interest of the Retirement Investor. The Financial Institution or Adviser will provide recommendations which are in the Best Interest of the Retirement Investor when they:
“act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, based on the investment objectives, risk tolerance, financial circumstances, and needs of the Retirement Investor, without regard to the financial or other interests of the Adviser, Financial Institution or any Affiliate, Related Entity, or other party.” (Emphasis added).
The proposed BIC Exemption released for comment in April 2015 required that the Financial Institution and the Adviser enter into a written contract with the Retirement Investor. A significant change is that generally the final BIC Exemption only requires a written contract for IRA accounts (not ERISA plans) and the IRA contracts only need to be between the Financial Institution and the Retirement Investor. The proposed BIC Exemption had required that the Adviser also be signatory to such contract. By requiring that only the Financial Institution and Retirement Investor be parties to the contract, the Department avoided the difficulties identified by many commenters regarding whether a new contract would be needed every time that a different employee of the Financial Institution engages with the Retirement Investor.
In the proposed BIC Exemption, the Department required that a contract be entered into with the Retirement Investor prior to, or contemporaneously with, the delivery of any investment advice. Given the broad interpretation of “investment advice” under the Rule, there were significant concerns that this requirement would prove impractical as it would require Retirement Investors to enter into formal contracts before they decided whether to engage the investment adviser. The Department responded to this concern by by stating that the contract must be executed to at the time of, or prior to, the entering into any transaction. This will make it easier for Advisers to communicate with Retirement Investors as they will not be required to initially ensure that a contract has been entered into before providing even basic information. It should be noted that when a contract is entered into, the BIC Exemption requires that the contract treat all advice provided to the Retirement Investor (even that given before the contract is signed) as subject to the Impartial Conduct Standard.
When the proposed BIC Exemption was released, there were considerable concerns that several of the required disclosures would be impossible to fulfill without violation of Federal or state securities or insurance law for those advisers which are subject to such laws. The Department has responded by removing such disclosures from the BIC Exemption. The Department also responded to concerns about the significant amounts of required disclosure by streamlining the amount and type of information to be provided to Retirement Investors under the BIC Exemption. Nonetheless, Financial Institutions seeking to comply with the BIC Exemption will have a substantial disclosure burden.
Proprietary and Third Party Payment Products:
The Rule has incorporated a quasi-safe harbor for Advisers to recommend proprietary products and products for which the Financial Institution receives third party payments (the Proprietary and Third Party Payment Products). We view this as only a quasi-safe harbor because the BIC Exemption expressly permits advisers to recommend Proprietary and Third Party Payment Products if it meets certain requirements. Instead of providing very objective and commonly understood requirements, the Proprietary and Third Party Payment Products quasi-safe harbor contains requirements that the Financial Institution adopt and adhere to “policies and procedures and incentive practices” that reflect the somewhat imprecise Impartial Conduct Standards. The Department did, however, more specifically define how to meet the Best Interest standard of the Impartial Conduct Standards in the context of Proprietary and Third Party Payment Products. Aside from this, the Department has not provided guidance on what such policies, procedures, and incentive practices must contain in order to meet this standard. Unlike in other areas of the BIC Exemption, the Department did not provide for the protection of good faith deviations in the policies, procedures, or incentive practices. As long as there is uncertainty on this point, Financial Institutions will incur some amount of risk in relying on this quasi-safe harbor.
The BIC Exemption permits grandfathering of relationships which were in existence prior to April 10, 2017 (the Applicability Date). Essentially, the BIC Exemption permits the receipt of compensation from contracts which had been entered into prior to the Applicability Date, provided that the advice was rendered prior to the Applicability Date or the transaction was made in accordance with a systemic purchase program put in place prior to the Applicability Date. Any compensation that the Financial Institution receives from such accounts will still be subject to a reasonableness standard, but provided that the compensation is not unreasonable, would not be subject to the prohibited transaction restrictions. Any advice that that Adviser renders to a grandfathered Retirement Investor after the Applicability Date would need to conform to the Best Interest Standard.
The Department has created a phased in approach to the conditions necessary for compliance with the BIC Exemption. The Department intended for the fiduciary rule and all exemptions, including the BIC Exemption, to become fully effective 8 months after the publication of the rule. The final BIC Exemption is instead to be implemented in stages, with an abbreviated version of the BIC Exemption being put into place on April 10, 2017 and the full BIC Exemption being effective January 1, 2018.
If you would like more information on the matters discussed here, please contact the authors. For more information see Locke Lord QuickStudy: Department of Labor Publishes New Fiduciary Rule Affecting Retirement Account Advisers.
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