NEW DOL FIDUCIARY GUIDANCE

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1 NEW DOL FIDUCIARY GUIDANCE TOP 10 PRACTICAL ACTION ITEMS FOR EMPLOYERS AND 401(K) INVESTMENT COMMITTEES ADAM B. CANTOR, ESQ. CHIESA SHAHINIAN & GIANTOMASI PC ONE BOLAND DRIVE, WEST ORANGE, NJ WEST ORANGE NEW JERSEY TRENTON NEW JERSEY NEW YORK NEW YORK CSGLAW.COM

2 BACKGROUND Statutory Definition of Fiduciary under ERISA 1. Anyone who exercises any discretionary authority or discretionary control over management of plan. 2. Anyone who exercises any authority or control over management or disposition of plan assets. 3. Anyone who has any discretionary authority or discretionary responsibility in administration of plan. 4. Anyone who renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of a plan, or has any authority of responsibility to do so.

3 BACKGROUND (CONTINUED) 1975 Definition of Investment Advice under ERISA A person renders investment advice if such person: 1. Makes recommendations as to the advisability of investing in, purchasing, or selling securities or other property, 2. On a regular basis, 3. Pursuant to a mutual agreement, arrangement or understanding, written or otherwise, between such person and the plan or a fiduciary with respect to the plan, 4. That such recommendations will serve as a primary basis for investment decisions with respect to plan assets and 5. That such person will render individualized investment advice to the plan based on its particular needs.

4 BACKGROUND (CONTINUED) Department of Labor s Primary, and Longstanding, Concerns with 1975 Definition of Investment Advice 1. Broker-dealers ( BDs ) and registered investment advisers ( RIAs ) easily can avoid the fiduciary standards of ERISA by manipulating the regular basis, mutual understanding and individualized investment advice requirements. 2. BDs believing they are not fiduciaries under ERISA because they do not hold themselves out as RIAs, who are fiduciaries under the Investment Advisors Act of 1940 (the Act ), even though they often market their services as retirement or financial planners. 3. If BDs and RIAs are not fiduciaries under ERISA, they may operate under undisclosed conflicts of interest, have limited liability for any harms they cause, give imprudent and disloyal service and steer investments toward those vehicles generating the greatest compensation for them, rather than toward those vehicles serving the financial interests of their clients. 4. Plans and participants need to be able to rely upon sophisticated advice. 5. Regarding the Act, the SEC s suitability standard affords insufficient protection to the plan and plan participants.

5 BACKGROUND (CONTINUED) SEC s Suitability Standard under the Investment Advisors Act of 1940 Investment Advisor is a fiduciary under the Act and, therefore, owes its clients a duty to provide only suitable investment advice. This duty generally requires an investment advisor to determine that the investment advice it gives to a client is suitable for the client, taking into consideration the client s financial situation, investment experience and investment objectives. The standard is considerably weaker than that under ERISA, which requires a fiduciary to act solely in the interest of the participants and beneficiaries.

6 PROPOSED DEFINITION OF INVESTMENT ADVICE UNDER ERISA A person generally renders investment advice if such person: Makes a recommendation as to the advisability of acquiring, holding, disposing or exchanging securities or other property, including a recommendation to take a distribution or to roll over account dollars to an IRA, and Either directly or indirectly (e.g., through or together with an affiliate): Represents that it is a fiduciary under ERISA on account of making such recommendation or Renders the advice pursuant to a written or verbal agreement, arrangement or understanding that the advice is individualized to, or that such advice is specifically directed to, the advice recipient for consideration in making investment or management decisions with respect to securities or other property of the plan or IRA.

7 PROPOSED DEFINITION OF INVESTMENT ADVICE UNDER ERISA (CONTINUED) So, What s New? 1. Regular basis, mutual understanding and primary basis requirements of 1975 regulation are eliminated. 2. Representation of fiduciary status under ERISA obviates need for written or verbal agreement, but note BICE, discussed below. 3. IRAs now covered! This reverses a decade-long DOL position that advice regarding plan distributions does not constitute investment advice. IRA is defined to include Health Savings Accounts.

8 PROPOSED DEFINITION OF INVESTMENT ADVICE UNDER ERISA (CONTINUED) Exemptions include, most notably, and only if the person or entity does not represent that it is a fiduciary under ERISA: 1. Platform Providers. A platform provider is exempt if it (1) merely markets and makes available investment alternatives, without regard to individualized needs, and (2) discloses to employer that it is not undertaking to provide impartial investment advice or to give advice in a fiduciary capacity. In connection with serving as such, a platform provider also is exempt if it merely identifies investment alternatives that meet objective criteria specified by the employer or merely provides objective financial data with independent benchmarks to the employer. 2. Investment Education. The proposed rules are substantially similar to existing DOL guidance in that they focus on generalized investment information. 3. Brokerage Transactions. A BD who merely executes trades at the direction of a plan fiduciary does not become a fiduciary by virtue of such action. 4. Provision of Incidental Investment Advice by Hedge Funds and Private Equity Firms. This is the so-called counterparty exemption, pursuant to which a hedge fund or private equity firm seeking investments by a plan with at least $100 million in assets will and at least 100 participants will be deemed not to be providing investment advice, by virtue of providing investment-related advice, if an independent plan fiduciary manages such assets and represents that it will not rely on such advice as being impartial and in the best interest of the plan. Other requirements apply, including that the counterparty must not receive a fee for any such advice.

9 BEST INTEREST CONTRACT EXEMPTION ( BICE ) Concern Is Prohibited Transaction Rule In the absence of an exemption, the provision of investment advice for a fee, in which the advisor receives revenue sharing fees, commissions, 12b-1 fees, etc., would constitute a prohibited transaction under ERISA and the IRC. Scope of Exemption Provides an exemption for the receipt of compensation for investment advice provided to Retirement Investors.

10 BEST INTEREST CONTRACT EXEMPTION ( BICE ) (CONTINUED) Who s a Retirement Investor? Plan participant or beneficiary in a plan, including a 403(b) plan, that permits participants and beneficiaries to direct investments of their accounts. Plan sponsor of a plan that does not permit participant direction of investments and that has fewer than 100 participants. Certain welfare benefit plans.

11 BEST INTEREST CONTRACT EXEMPTION ( BICE ) (CONTINUED) Principal Conditions for Relief 1. Written contract between advisor and Retirement Investor. 2. Advisor must acknowledge fiduciary status under ERISA on account of providing investment advice for a fee. 3. Advisor must contractually commit to certain impartial conduct standards, including putting the best interest of its clients first. The best interest standard essentially is the general ERISA standard applied to the provision of investment advice: a. The advisor must act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person would exercise based on the investment objectives, risk tolerance, financial circumstances and the needs of the Retirement Investor. 4. Advisor must warrant that it has adopted written policies designed to prevent conflicts of interest. 5. Advisor must identify any material conflicts of interest.

12 BEST INTEREST CONTRACT EXEMPTION ( BICE ) (CONTINUED) Principal Conditions for Relief (Continued) 6. Contract must not contain any provisions limiting liability to Retirement Investor or requiring Retirement Investor to waive right to sue. 7. Advisor must provide certain disclosures to Retirement Investor, including quarterly disclosures of direct and indirect fees received.

13 STATUS OF PROPOSED DEFINITION OF INVESTMENT ADVICE AND BICE Comment period has ended. Numerous comments received from a variety of constituents, including substantial push-back from the financial services industry on BICE. Congress may act to thwart the DOL s actions, at least until the SEC completes an update to its guidance on the fiduciary status of BDs and RIAs, but President Obama has promised to veto any such action by Congress.

14 WHAT SHOULD AN EMPLOYER OR INVESTMENT COMMITTEE DO NOW? Option 1: Do Nothing. Stated differently, do not act until the proposed regulation is finalized or Congress acts and President Obama signs a bill into law. Option 2: Assume the Proposed Regulation and BICE Will Be Finalized Substantially As Is. Based on the volume of comments and the strong push-back from the financial services industry, we would expect the most material of the changes that will be made will be to BICE. Option 3: Be Practical. Although there never can be any guarantees as to outcome, it appears that a substantial portion of the DOL guidance will go into effect as early as 2016.

15 PRACTICAL ACTION ITEMS FOR 401(K) INVESTMENT COMMITTEES 1. Identify All Investment Service Providers. This means all platform providers, BDs, RIAs and consultants to the plan or to its participants and beneficiaries. Prepare a chart of who does what. a. That 401(k) plan that was set up 15 years ago by your brother-in-law or best friend who is a broker? Him, too. All means all! 2. Review the Service Contract with Each Investment Service Provider. If no contract exists, engage counsel to assist in drafting/negotiating one, as the failure to include a contract could expose the employer and/or the Investment Committee to prohibited transaction liability under ERISA. 20% at the DOL level, 15% annually at the IRS level, jumping, potentially, to 100%! a. Counsel can assist in reviewing existing contracts for compliance with current law and identify areas that would need to be revised to comply with the new definition of investment advice and BICE.

16 PRACTICAL ACTION ITEMS FOR 401(K) INVESTMENT COMMITTEES (CONTINUED) 3. Review All ERISA Fee Disclosures. This is a good way to cross-check the information that the service provider gives you. Counsel can assist in identifying potentially undisclosed fees. 4. Obtain Commitment from Service Provider to Acknowledge, in Writing, Its Fiduciary Status under Revised Definition of Investment Advice and to Comply with BICE. In each case, the commitment would relate to the requirements of the applicable rule, as finalized. Any service provider who refuses to make such a commitment should be viewed with heightened concern. 5. Reach Out to All BDs, RIAs and Certified Financial Planners ( CFPs ) to Gauge Whether They Will Continue to Provide Investment Services. The DOL guidance has spurred many BDs, RIAs and CFPs to reconsider whether they want to be in the 401(k) plan and IRA business. This is particularly acute for BDs who never have viewed themselves as fiduciaries under ERISA.

17 PRACTICAL ACTION ITEMS FOR 401(K) INVESTMENT COMMITTEES (CONTINUED) 6. Adopt Investment Policy Statement or Revise Same, as Necessary or Appropriate. This serves the purpose of facilitating compliance by the employer or the Investment Committee with its fiduciary duty under ERISA to monitor investment professionals. 7. Review 401(k) Plan Distribution Forms and IRA Rollover Agreement. These forms and this agreement, which many plans have with their platform providers, almost certainly need to be updated to reflect the new DOL guidance. a) Counsel can assist in identifying the provisions of the forms and the agreement that would require modification. 8. Review Scope of Investment Education to Determine Whether It Crosses the Line and Actually Is Investment Advice. Think that providing generalized investment information equates to education, whereas providing formal or informal investment recommendations equates to advice. Often, the line is blurred. If education is desired, but advice is provided, the employer and the Committee have a real problem on their hands.

18 PRACTICAL ACTION ITEMS FOR 401(K) INVESTMENT COMMITTEES (CONTINUED) 9. Ask Your Investment Provider or Counsel to Provide You With a Vocabulary Test. The point is not to become overloaded with arcane investment terminology, but rather to learn the basic lingo. Under ERISA, you are not expected to be a financial analyst; however, you are expected to ask good questions of anyone who is and who provides services to the plan or its participants or beneficiaries. 10. Take a Deep Breath. The DOL guidance represents a sea change for the financial services industry and, accordingly, the push-back against such guidance from the industry has been extensive. No matter what form the final guidance takes, it is clear that there will be an evolution in the business practices of the financial services companies and professionals vis a vis 401(k) plans and IRAs. In short, get ready for a long and bumpy ride.

19 DISCLAIMER THIS PRESENTATION IS NOT INTENDED TO CONSTITUTE AND DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE, AND CHIESA SHAHINIAN & GIANTOMASI PC EXPRESSLY DISCLAIMS ANY VIEW BY ANY PARTY TO THE CONTRARY. ANY PARTY EVALUATING ANY OF THE ISSUES CONTAINED IN THIS PRESENTATION SHOULD OBTAIN LEGAL ADVICE WITH RESPECT TO THE SAME.

20 NEW DOL FIDUCIARY GUIDANCE TOP 10 PRACTICAL ACTION ITEMS FOR EMPLOYERS AND 401(K) INVESTMENT COMMITTEES ADAM B. CANTOR, ESQ. CHIESA SHAHINIAN & GIANTOMASI PC ONE BOLAND DRIVE, WEST ORANGE, NJ WEST ORANGE NEW JERSEY TRENTON NEW JERSEY NEW YORK NEW YORK CSGLAW.COM

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