July 30, 2014
Authored by: Lisa Van Fleet and Denise Erwin
Broker-dealers and financial advisers may have gained some breathing room as a congressional battle to broaden ERISA’s definition of “fiduciary” loses steam. In the following discussion, we will summarize the current state of that battle.
At issue is the innocuous-sounding “Conflict of Interest Rule” proposed by the Employee Benefit Security Administration (“EBSA”), that has nonetheless sparked searing critiques from the investment advice industry, which contends it could dramatically increase costs and reduce access to quality investment advice for millions of American workers. The re-proposal of the controversial rule has been delayed again, this time until January 2015, well after the mid-term elections in November. Assuming a six-month comment period and six months of hearings to develop final regulations, the final rule could be up for a vote in early 2016. But pundits have expressed doubt that such a controversial rule could be passed in an election year, which means that the Conflict of Interest Rule may be stalled indefinitely. Amidst this uncertainty and uproar, many in the benefits community are asking where a new rule would draw the line for determining who is a fiduciary, and how it would impact plan sponsors and participants.
The current definition of investment advice fiduciary still stands as it was established under ERISA in 1974. The regulation sets forth a five-part test, and an individual must satisfy all five