Locke Lord QuickStudy: DOL Issues Final Fiduciary Rule: How Does The New Definition Affect Plan Sponsors

On April 8, 2016, the Department of Labor (DOL) issued its final regulations significantly redefining the standards for determining when an adviser is a fiduciary under the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the Internal Revenue Code of 1986, as amended (Code). Generally, the revised fiduciary definition is to the advantage of plan sponsors, plan participants, and owners of individual retirement accounts (IRA) because it now extends fiduciary status to a broader range of brokers, insurance agents and financial service provisions that provide investment advice to ERISA retirement plans and IRAs.

Background of the Definition of Fiduciary 
Under ERISA, a person is a fiduciary to a plan if that person renders “investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan.” In 1975, the DOL issued the first regulations clarifying the definition of fiduciary and explaining when a person became an investment fiduciary. The 1975 fiduciary rule used a five factor test to determine fiduciary status and was issued during a time when the most prevalent employer-sponsored retirement plan was a defined benefit pension plan. At that time, most employers did not provide participant-directed plans and in fact, 401(k) plans did not exist in 1975. Today, however, an overwhelming majority of employer-sponsored retirement plans are 401(k) plans which permit participant direction of investments and the number of employers sponsoring  pension plans has decreased significantly.

As retirement plans evolved, the DOL became concerned that the existing fiduciary rule did not treat many investment advisers as fiduciaries, allowing such advisers to engage in practices, including self-dealing, generally prohibited by ERISA and the Code. Further, the prior fiduciary rule did not address investment advice provided to owners of IRAs, which generally are not subject to ERISA’s fiduciary rules. In response to these concerns, the DOL has spent the past several years developing the new fiduciary rule, which is intended to ensure that investment advisers are acting in the best interests of their clients when they provide advice to retirement plans, plan sponsors, plan participants and IRA owners.
It should be noted that the new fiduciary rule was first proposed during 2010, which resulted in a significant level of criticism.  That proposal was soon thereafter withdrawn and reintroduced during 2015 as a set of proposed regulations.  Those proposed regulations have now been finalized, with significant modifications, as the final rule issued on April 8, 2016.

Definition of Fiduciary under the Rule
The final rule replaces the five factor test with a new standard.  The new test for determining whether a person would be an investment advice fiduciary under ERISA focuses on whether the adviser provides certain categories or types of investment advice for a fee or other compensation, and whether the advice is provided in connection with certain types of relationships. 

What is Investment Advice?
The final rule defines “investment advice” as a “recommendation” to a plan, plan sponsor, plan fiduciary, plan participant or IRA owner for compensation, direct or indirect, as to the advisability of buying, holding, selling or exchanging investment property. Investment advice also includes recommendations as to the management of investment property, such as recommendations on investment policies or strategies, selection of other persons to provide investment advice or investment management services or recommendations with respect to rollovers, distributions or transfers from a retirement plan or IRA.  For this purpose, the term  “recommendation” is defined broadly, to include any “communication that, based on its content, context and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.”  

Investment Adviser Relationship
The final rule describes the types of relationships that must exist for the investment “recommendations” described above to give rise to fiduciary investment advice responsibilities.  A party (either directly or through an affiliate) who make recommendations for a fee will be considered a fiduciary with respect to a retirement plan or IRA if the person:

• represents that he is acting as a fiduciary within the meaning of ERISA,
• renders advice pursuant to a written or verbal agreement and the advice is based on the particular circumstances of the recipient, or
• directs advice to a specific recipient regarding the advisability of a particular investment decision with respect to property in the plan or IRA.

In short, if an adviser is making a recommendation as to the investment of plan assets, and the adviser is receiving compensation, direct or indirect, from a plan or an IRA, the adviser will be an investment fiduciary with respect to the plan or IRA.