In the article, Theresa Gee discusses the U.S. Department of Labor's (DOL) proposal to change its long-standing fiduciary definition of investment adviser for a fee under ERISA and the Internal Revenue Code. The proposal has drawn thousands of comments and petitions and triggered numerous hearings before congressional committees and DOL officials, as well as meetings with various industry groups, Gee said. The proposed change would significantly broaden the scope of persons who would qualify as fiduciaries under ERISA as investment advisers for a fee.
Despite legislative attempts to delay or change the rule, including by narrowing the definition of an investment adviser for a fee, broadening the exceptions and permitting disclaimers, "these bills could well languish or suffer the same fate as previous efforts to derail the proposed regulation," Gee said. "Regardless of what befalls the Congressional proposals, the expectation is that the Department will announce its final rule by mid-2016." Gee addresses the proposal to replace the existing requirement that the investment adviser can become a fiduciary when the advice recipient "primarily relies" on the advice with a new requirement that the recipient only need to "consider" the advice in order to impose fiduciary status on the adviser. She also discusses the potential repercussions of the change if the rule is adopted.