US Labor Department To Broaden Fiduciary Classification

By Mark Barnicutt on October 24, 2010

If you want to get a sense of how the US is moving ahead of Canada in terms of the classification of who are considered “investment fiduciaries” in servicing employer sponsored retirement plans, the US Department of Labor’s Employee Benefits Security Administration recently announced a proposed expansion of whom the agency would consider a fiduciary to include:

  1. Consultants that offer advice to retirement plans on proxy voting; and,
  2. The hiring of investment managers.

In addition, broker-dealers who make securities recommendations to retirement plans would fall under fiduciary requirements.

A key target of the proposed rule is the third-party payments that some investment consultants receive when retirement plans hire money managers recommended by the consultants, ERISA attorneys said.

The new rule would subject investment-related advice of consultants, broker-dealers and others to all ERISA fiduciary obligations, including prohibitions on self-dealing and other conflicts.

In its proposed regulation, DOL contends that an overhaul of its fiduciary definition is sorely needed because the current rule makes it too easy for entities offering investment-related advice to avoid a fiduciary obligation to the plan.

The (existing) rules have really become a barrier to the department’s ability to protect participants and beneficiaries,” said Phyllis Borzi, assistant Labor secretary for the EBSA, in a teleconference for reporters Thursday on the proposed rule.

Under the existing fiduciary definition, the entity offering advice to the plan has to be doing so on a “regular basis,” subject to a “mutual” understanding that the advice will serve as a “primary basis” for investment decisions involving plan assets, according to the text of the proposed rule.

The proposal would eliminate key existing rule exceptions, making clear that parties that offer investment advice to employee benefit plans for a fee could not avoid fiduciary responsibility, or are registered with the SEC as investment advisers, and the advice “may be considered in connection with making investment or management decisions with respect to plan assets,” the proposed rule says.

In the text of its proposed rule, the DOL said plan representatives want impartial advice from consultants, appraisers and other advisers.

“These persons significantly influence the decisions of plan fiduciaries, and have a considerable impact on plan investments,” the text of the DOL’s proposed regulation says. “However, if these advisers are not fiduciaries under ERISA, they may operate with conflicts of interest that they need not disclose to the plan fiduciaries who expect impartiality and often must rely on their expertise,” the DOL said in the text of its proposed rule.

This compares to the environment in Canada in which far too many consultants and financial institutions offer their products and services to corporate sponsors without being considered, and held to the higher standard of care, of an “investment fiduciary“.

With a looming retirement crisis in Canada, we believe that it’s time for Canadian regulators to provide greater clarity around the definition, inclusion & best practices of “investment fiduciary” as well as requiring that independent & objective investment advice is provided to Plan Sponsors and their members.  CAP Guidelines are a good start but don’t go far enough in protecting investors!

To view this proposal rule, please click here.

To review our recent article on investment issues within the Canadian money accumulation plan segment, please click here.

About Mark Barnicutt

As HighView’s President, CEO, and Co-Founder, Mark Barnicutt is knowledgeable in all major functional areas of the family wealth business. He is an expert in wealth management, leading HighView with over 25 years of experience in the industry.
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