Included in the definition of a fiduciary in Section 3(21) of the Employee Retirement Income Security Act (“ERISA”) is someone who provides investment advice for a fee. Regulations issued in 1975 by the U.S. Department of Labor (“DOL”) included a five-part test for determining whether someone is a fiduciary under this provision of ERISA. However, in response to developments since 1975, e.g., the growth of participant-directed defined contribution plans (“DC Plans”) and individual retirement accounts (“IRAs”), the DOL concluded that the 1975 regulations were outdated and did not adequately address conflict of interest considerations.
After many years of back and forth (including two sets of proposed regulations), the DOL issued final regulations on April 6, 2016 that changed the definition of fiduciary by way of the provision of investment advice. These regulations are expected to change key aspects of the retirement benefits landscape, especially for those who advise, provide services, or engage in transactions at the retail or institutional level with IRA owners, defined contribution or defined benefit plans or their participants or internal fiduciaries.