The U.S. Department of Labor’s (the “DOL”) new regulations re-defining an “advice fiduciary” have broad implications across the entire spectrum of the banking, insurance and financial services industries. This client alert only focuses on the new regulation’s potential effects on investment managers, particularly investment managers of private funds.

Bottom Line.

After years of proposals and re-proposals, the DOL issued the final regulation (the “Rule”) providing a new definition of an “advice fiduciary” under ERISA and the prohibited transaction provisions of Section 4975 of the Code. The Rule expands the scope of investment advice beyond the ordinary usage of the term and thereby expands the activities which create a fiduciary relationship with an ERISA plan or IRA to include customary arm’s-length interactions. Under the old definition of investment advice, which remains effective until April 10, 2017, a person is not considered to be a fiduciary to a plan or IRA by making sales pitches to a plan or IRA or providing recommendations that do not serve as a primary basis for their investment decisions. Under the Rule, ordinary course communications and sales pitches will have to be reviewed to determine whether the activity amounts to investment advice or falls within one of the safe harbors provided in the Rule.

Investment managers will be faced with three choices with respect to IRA, small plan or self-directed plan clients and/or investors in private funds they manage:

• stop accepting new IRA, small plan or self-directed plan clients/investors, as well as additional subscriptions from existing IRA, small plan or self-directed plan clients/investors;
• alter marketing and client communications to fit within a safe harbor and accept the attendant interpretive risk that those communications may be fiduciary acts; or
• rely on the BIC and adopt and implement the policies and procedures required to meet all the applicable conditions of the exemption.

The Rule’s Two-Step Fiduciary Test.

The Rule casts a much broader net for determining “fiduciary” status than current law. Under the Rule, an investment manager will be an ERISA fiduciary to a U.S. corporate pension plan, a participant-directed U.S. pension plan or an IRA if, for a fee or other compensation (direct or indirect), the investment manager or its employees –

(1) provide the plan, plan fiduciary, plan participant, IRA or IRA owner (an “advice recipient”) with:

• a recommendation as to the advisability of acquiring, holding, disposing or exchanging securities or other investment property;
• a recommendation as to the management of securities or other investment property, including, among other things:
  • a recommendation on investment policies or strategies;
  • a recommendation on portfolio composition;
• a recommendation regarding the selection of investment account arrangements (e.g., brokerage versus advisory / separate account versus private fund);
• a recommendation regarding the selection of other persons to provide investment advice or investment management services; or
• a recommendation with respect to rollovers, transfers or distributions from a plan or IRA, including whether, in what amount, in what form, and to what destination, such a rollover, transfer or distribution should be made and how securities or other investment property should be invested after the securities or other investment property are rolled over, transferred or distributed from the plan or IRA; and

(2) in providing the recommendation, the investment manager:

• directs the advice to a specific advice recipient or recipients regarding the advisability of a particular investment or management decision with respect to securities or other investment property of the plan or IRA;
• renders the advice pursuant to a written or verbal agreement, arrangement or understanding that the advice is based on the particular investment needs of the advice recipient; or
• represents or acknowledges that it is acting as a fiduciary within the meaning of ERISA or the Code.

What is a Recommendation?

Under the Rule, a “recommendation” is a communication that, based on its content, context and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action. The determination of whether a “recommendation” has been made is an objective rather than subjective inquiry. The Rule specifically notes that a series of actions that may not constitute a recommendation when viewed individually may amount to a recommendation when considered in the aggregate. The Rule provides that an investment manager claiming not to be an advice fiduciary has the burden of proving that any communications did not amount to a recommendation.

What is Not a Recommendation?

The Rule re-characterizes the “carve-outs” provided in the 2015 proposal as examples of communications that are not recommendations or safe harbors. The Rule provides four safe harbors. The following safe harbors could be relevant to investment managers: the safe harbors for professionally advised plans; general communications; and selection and monitoring assistance. In addition, while not a separate example identified in the Rule, the Rule provides for a “hire me” safe harbor.

The DOL also made clear that any communication that falls outside the safe harbors would not automatically be considered a recommendation, but must instead be analyzed under the two-step analysis of the Rule set forth above.

• Professionally Advised Plans.  Providing advice to independent fiduciaries with financial expertise is not a recommendation. Under this safe harbor, any advice with respect to an arm’s-length transaction related to the investment of securities or other investment property provided to an independent fiduciary of a plan or IRA will not make the provider of the advice a fiduciary if, prior to entering into the transaction, the investment manager:
  • knows or reasonably believes that the independent fiduciary is: a bank; an insurance company; a registered investment adviser; a registered broker-dealer; or any independent plan fiduciary that holds, or has under management or control, total assets of at least $50 million;¹
  • knows or reasonably believes that the independent fiduciary is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investments;
  • knows or reasonably believes that the independent fiduciary is a fiduciary under ERISA or the Code with respect to the transaction and is responsible for exercising independent judgment in evaluating the transaction;
  • fairly informs the independent fiduciary that it is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transaction;
  • fairly informs the independent fiduciary of the existence and nature of any financial interests in the transaction; and
  • does not receive a fee or other compensation directly from the plan, plan fiduciary, plan participant, IRA or IRA owner for the provision of investment advice (as opposed to receiving an indirect fee for acting as investment manager to a private fund in which the plan invests).

This safe harbor does not apply to recommendations made to plan participants or IRA owners, even if they have a net worth in excess of $50 million; however, if the investment manager is communicating with a professional adviser of a plan participant or IRA owner, the safe harbor will be available if its conditions are satisfied.

• General Communications. Furnishing or making available to a plan, plan fiduciary, plan participant, IRA or IRA owner a general communication that a reasonable person would not view as an investment recommendation is not a recommendation. The Rule provides the following examples of general communications:
  • general circulation newsletters, commentary in publicly broadcasted shows, remarks and presentations in widely attended speeches and conferences;
  • research or news reports prepared for general distribution; or
  • general marketing materials, general market data, including data on market performance, market indices, or trading volumes, price quotes, performance reports, or prospectuses.

Without additional guidance, there are significant questions regarding the boundaries of this safe harbor. It is safest to view this safe harbor as applying to communications to the public at large, as opposed to communications that could be viewed as general because they have not been individually tailored to a particular investor.

• Selection and Monitoring Assistance. Responding to requests for proposals or identifying investment alternatives that meet objective criteria specified by the plan fiduciary (e.g., stated parameters concerning expense ratios, size of fund, type of asset, credit quality or objective financial data and comparisons with independent benchmarks) is not a recommendation, provided that the person responding to the request discloses in writing whether the person or an affiliate has a financial interest in any of the identified investment alternatives, and, if so, the precise nature of such interest.

  This safe harbor does not apply to an IRA owner or plan participant.

• Hire Me. The DOL did not intend that the Rule would make an investment manager a fiduciary merely by engaging in the normal activity of marketing itself or its affiliate. Accordingly, the DOL stated that a person or firm can tout the quality of its own advisory or investment management services or those of an affiliate without triggering fiduciary obligations. However, the DOL distinguished between an investment manager’s marketing of the value of its own advisory or investment management services, on the one hand, and making recommendations to retirement investors on how to invest or manage their savings, on the other. An investment manager can recommend that a retirement investor enter into an advisory relationship with the investment manager without acting as a fiduciary, but when the investment manager recommends, for example, that the retirement investor invest in a particular fund managed by the investment manager, that advice is given in a fiduciary capacity, even if it is part of a presentation in which the adviser is also recommending that the retirement investor enter into an advisory relationship. Thus, the DOL concluded that when a recommendation to ”hire me” effectively includes a recommendation on how to invest or manage plan or IRA assets, that recommendation would need to be evaluated separately under the Rule.

 This may cause investment managers with separately managed accounts whose investment management agreements provide that cash is swept into an affiliate money market fund or an affiliated bank   account to become advice fiduciaries with respect to the sweep vehicle and require the investment manager to rely upon the exemptive relief provided by PTE 77-4 or 408(b)(4) of ERISA.

What is a Fee or Other Compensation?

The Rule broadly defines the term “fee or other compensation, direct or indirect” as any explicit fee or compensation for providing advice received by the investment manager or an affiliate from any source, and any other fee or compensation received from any source in connection with, or as a result of, the purchase or sale of a security or the provision of investment advice services. The Rule provides the following examples of compensation: commissions; loads; finder’s fees; revenue sharing payments; shareholder servicing fees; marketing or distribution fees; underwriting compensation; gifts; gratuities; and expense reimbursements. A fee or compensation is paid “in connection with or as a result of” such transaction or service if the fee or compensation would not have been paid but for the transaction or service, or if eligibility for, or the amount of, the fee or compensation is based in whole or in part on the transaction or service. This broad definition of compensation would include the management fee or performance fee the investment manager or an affiliate receives in connection with managing a private fund.

Other than with respect to small plans maintained by the investment manager, or IRAs of principles and employees, for which all management and incentive compensation is waived, it is unlikely that an investment manager will be able to avoid fiduciary status by claiming the investment recommendation was not for a fee or other compensation.

Consequences of Being an Advice Fiduciary.

If an investment manager becomes an advice fiduciary, it will be subject to the ERISA fiduciary conduct standards and prohibited transaction regime for the advice provided to ERISA covered plans and subject to the prohibited transaction regime for the advice provided to IRAs. However, the DOL reiterated that an investment manager is only an advice fiduciary when providing investment recommendations and, in other dealings with a plan or IRA, the investment manager is merely a party in interest.

General Fiduciary Duties.

Section 404(a) of ERISA imposes specific duties on a fiduciary. In providing investment advice to an ERISA plan (e.g., offering to sell the plan an investment in a private vehicle), an investment manager must: act solely in the interest of the plan and defray reasonable expenses of the plan (the “exclusive benefit rule”); use the care, skill, prudence and diligence of a prudent person under the circumstances then prevailing, acting in a like capacity and familiar with such matters (the “prudent expert standard”); and consider the diversification of the plan investments so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so (the “diversification rule”).

Section 406(a) Party in Interest Prohibited Transactions.

Section 406(a) of ERISA and Section 4975(c)(A)-(D) of the Code prohibit transactions between a plan or IRA and a “party in interest” to that plan or IRA. The term “party in interest” includes fiduciaries, providers of services to the plan, and certain of their affiliates, including a private fund whose investment manager is an advice fiduciary that holds 50% or more of the value or voting interests of the private fund. Prohibited transactions are sales, exchanges or leases of any property, lending of money or other extension of credit, and furnishing of goods, services or facilities between a plan or IRA and a party in interest.

Section 406(b) Self-Dealing Prohibited Transactions.

Section 406(b) of ERISA and Section 4975(c)(E)-(F) of the Code prohibit a fiduciary from dealing with the assets of a plan or IRA in its own interest or for its own account, or receiving any consideration for its personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.

Effect of the Rule on Investment Managers.

The Rule will require all investment managers to private funds to review and amend applicable private fund offering and subscription documents by April 10, 2017. The Rule will impact an investment manager that offers IRAs, small plans or plan participants interests in the private funds that the investment manager or any of its affiliates manages. The Rule may impact an investment manager that offers IRAs, small plans or plan participants separately managed accounts utilizing a model portfolio.² The Rule will also impact communications made after April 10, 2017 to an IRA, a small plan or a plan participant regarding the continued holding of an investment in a private fund.

If an investment manager becomes an advice fiduciary:

• the investment manager cannot receive any compensation from a small plan, plan participant, IRA, or the private fund for the investment; unless the conditions of the BIC exemption are satisfied;
• any security recommended for purchase cannot be sold to a small plan or IRA by the investment manager and any security recommended for sale cannot be purchased from a small plan or IRA by the investment manager; unless a prohibited transaction exemption is available;
• a small plan or IRA cannot purchase an interest in a private fund of which the investment manager holds 50% or more of the value or vote; unless a prohibited transaction exemption is available (generally, the “service provider” exemption under 408(b)(17) could be used to exempt these transactions); and
• if the offer is made to a small plan or a plan participant, the recommendation must: be given with the “best interest” of the plan or plan participant in mind; consider the expenses associated with the investment; and account for the diversification of the plan’s or participant’s investments.

Under the Rule, arm’s-length selling activities may well be characterized as fiduciary investment advice, subjecting an investment manager to the prohibited transaction regime described above. An investment manager that decides to continue to offer its private funds and/or provide investment management services to small plans and IRAs will have to restructure its operations to avoid engaging in non-exempt prohibited transactions, as well as to meet the fiduciary standards imposed by ERISA in the case of small plans subject to ERISA and fiduciary standards imposed by the BIC in the case of IRAs. Acknowledging the magnitude of the changes resulting from the Rule, the DOL concurrently issued new class exemptions that, provided all their conditions are satisfied, will permit an investment manager to provide and be compensated for investment advice to small plans, plan participants and IRAs.³

Best Interest Contract Exemption.

The “best interest contract” exemption (the “BIC”) permits investment managers to receive compensation for the provision of investment advice, which would otherwise be prohibited, as long as certain requirements are met. The BIC provides broad relief for “grandfathered accounts” and specific conditions for recommending “proprietary products”. The BIC also provides three levels of the conditions based on the fee structure of the investment manager and the advice recipient.

Grandfathered Accounts.

With respect to communications made after April 10, 2017 to small plans, plan participants and IRAs that are investors in private funds or direct clients prior to April 10th, the BIC will exempt the receipt of compensation as a result of investment advice in connection with the holding, sale or exchange of securities or investment property. The grandfathered relief will also apply to an investment that is acquired pursuant to a recommendation to continue a systematic purchase program established before April 10, 2017, but not to additional subscriptions or new investments made by existing small plan or IRA clients or investors. The grandfathered relief provided by the BIC is conditioned on the compensation received by the investment manager not being in excess of reasonable compensation within the meaning of Section 408(b)(2) of ERISA and Section 4975(d)(2) of the Code.

Proprietary Products.

If an investment manager is providing recommendations regarding a proposed investment in a product that is managed or sponsored by it or an affiliate (a “Proprietary Product”), it will be subject to the conditions of the BIC specifically applicable to Proprietary Products, in addition to conditions applicable to level-fee fiduciaries, small plans and plan participants and IRAs and IRA owners.

• Required Disclosures.
  • the investment manager prominently informs the advice recipient that it limits its recommendations to its Proprietary Products and receives compensation from its Proprietary Products;
  • the advice recipient is fully informed of any material conflicts of interest with respect to an investment in the Proprietary Product; and
  • a link to the investment manager’s website, where specified information must be provided (to the extent this information is in the investment manager’s ADV, a link to the SEC IARD site is sufficient).
• Required Procedures.
  • the investment manager adopts and complies with policies and procedures designed to prevent conflicts of interest from causing violations of the “impartial conduct standard”;
  • the investment manager designates the individuals responsible for addressing conflicts of interest and adherence to the impartial conduct standard;
  • the investment manager documents in writing its reasoning as to why the limitation to its Proprietary Products will not result in the investment manager receiving unreasonable compensation; and
  • the investment manager exercises the prudent expert standard of care in recommending an investment in a Proprietary Product.⁴

Level-Fee Fiduciaries.

An investment manager offering small plans and plan participants an interest in a private fund that has a single asset-based management and/or performance fee⁵ and for which the investment manager does not receive any third-party payments will be a level-fee fiduciary.⁶ As a level-fee fiduciary, the relief provided by the BIC is subject to all of the following conditions:

• Fiduciary Acknowledgement. The investment manager must acknowledge in writing that it is acting as an ERISA fiduciary with respect to any investment recommendations provided to the advice recipient.
• Impartial Conduct Standard. The investment manager must affirmatively state that it will:
  • provide investment advice that is in the “best interest” of the retirement investor (the “best interest” standard is similar to ERISA’s exclusive benefit rule);
  • not recommend transactions that cause compensation to be paid that is in excess of reasonable compensation under Section 408(b)(2) of ERISA (which section requires specific disclosure of all fees and other compensation received by the investment manager); and
  • refrain from making materially misleading statements regarding the retirement investor’s investment decisions.

Small Plans and Plan Participants.

An investment manager offering small plans or plan participants investments in a private fund that has multiple management and/or performance fee options (i.e., a potential investor can select a straight management fee or a reduced management fee and a performance fee), or where the investment manager receives any third-party payments, will be able to rely on the BIC if it meets all of the conditions applicable to level fee fiduciaries and the following additional conditions:

• Required Warranties. The investment manager must affirmatively warrant to the following:
  • the investment manager has adopted, and will comply with, written procedures designed to prevent conflicts of interest from causing violations of the impartial conduct standard;
  • the investment manager has taken a collection of specified steps regarding material conflicts of interest; and
  • the compensation structure of the investment manager and its affiliated entities would not reasonably be expected to cause the investment manager to make a recommendation not in the “best interest” of the plan or plan participant.
• Required Disclosures. In a written disclosure, the following must be provided:
  • a description of the standard of care owed, the services provided, how the retirement investor will pay, all material conflicts of interest, and fees or charges by the investment manager or affiliates against the account;
  • a statement that the plan or plan participant has the right to obtain copies of the investment manager’s policies and procedures regarding the impartial conduct standard and material conflicts of interest;
  • contact information including a telephone number and email for a representative of the investment manager to whom concerns about the advice or services received should be addressed; and
  • a statement as to whether the advice relationship is ongoing.
• Prohibited Contract Provisions. The following cannot be included in the contract:
  • a disclaimer of responsibility or liability to the extent prohibited by Section 410 of ERISA;
  • any waiver or qualification of the right to bring a class action lawsuit;
  • agreements to arbitrate or mediate claims in venues that are distant or otherwise unreasonable; but
  • arbitration is allowed and rescission does not have to be a remedy.
• Disclosure to the DOL. Before receiving compensation in reliance on the BIC, the investment manager must notify the DOL of its intention to rely on the BIC.
  Recordkeeping. The investment manager is required to keep records sufficient to allow a determination of whether the conditions of the exemption have been met for a six-year period.

IRAs and IRA Owners.

An investment manager offering investments in a private fund to IRAs will be able to rely on the BIC if it meets all of the conditions applicable to level fee fiduciaries and to small plan and plan participants and the following additional conditions:

• Contract Requirements. The advice must be subject to an enforceable written contract on the part of the investment manager and the contract:
  • is entered into prior to or at the execution of the recommended transaction (existing contracts can fulfill this requirement by negative consent);
  • states that the investment manager is acting as a fiduciary;
  • is enforceable against the investment manager; and
  • provides the IRA and IRA owner with an enforceable contractual remedy if the investment manager fails to act in the “best interests” of the IRA when recommending that the IRA invest in the private fund.

Action Steps.

All Investment Managers.

The Rule will effectively require all investment managers to private funds to review and amend applicable private fund offering and subscription documents by April 10, 2017.

Investment managers should review their existing client base and investor base in private funds managed by the investment manager to determine whether or not there are any clients or investors that are ERISA plans or IRAs. With respect to ERISA plans, the investment manager will need to determine whether such plans are small plans or self-directed plan accounts. The IRA, small plan and participant directed client/investor accounts and the value of their investments as of April 7, 2017 should be recorded since those accounts will be “grandfathered” and the investment manager will be able to rely on the expansive exemptive relief provided by the BIC for accounts that the investment manager has prior to April 10, 2017.

Investment managers should also review how they communicate with prospective and existing clients/investors in light of the safe harbors described above. Some investment managers may determine that their communications with prospective and existing clients/investors clearly fit within one of the safe harbors, but, given the uncertainty regarding several interpretive issues, we expect that many investment managers will have communications that do not clearly fit within a safe harbor.

Managers with no small plan, plan participant or IRA clients or investors.

If, after reviewing its client/investor base, an investment manager that does not wish to become an advice fiduciary determines that it does not have any fee-paying IRA, participant-directed or small plan accounts, it will need to:

• impose an absolute ban on investment by these types of investors in its offering documents;
• amend its offering subscription documents to add representations from ERISA plans that the plan is advised by an independent fiduciary with financial expertise so that the investment manager can rely on the “Professionally Advised” safe harbor; and
• take affirmative steps to implement and monitor this ban, including amending the relevant offering and subscription documents.

Managers with grandfathered small plan, plan participant or IRA clients or investors.

If, after reviewing its client/investor base, an investment manager that does not wish to become an advice fiduciary determines that it does have fee-paying IRA, participant-directed plan or small plan accounts, but will rely on the “grandfathered” relief provided by the BIC, it will need to:

• impose an absolute ban on future investment by these types of investors in its offering documents;
• amend its offering subscription documents to add representations from ERISA plans that the plan is advised by an independent fiduciary with financial expertize so that the investment manager can rely on the “Professionally Advised” safe harbor;
• ban any additional investments by the grandfathered accounts;
• provide fee disclosures as required under Section 408(b)(2) of ERISA to the grandfathered investors in funds that are below the 25% ERISA threshold (the 408(b)(2) fee disclosure is currently required for private funds that are subject to ERISA); and
• take affirmative steps to implement and monitor this ban, including amending the relevant offering and subscription documents.

Managers that will continue to accept IRA, small plan or plan participant clients or investors and rely on the BIC.

If, after reviewing its client/investor base, an investment manager determines that it has fee-paying IRA, participant-directed plan or small plan accounts and wishes to continue to accept these investors and become an advice fiduciary under ERISA and/or the prohibited transaction provisions of the Code, it will need to:

• determine which of the BIC conditions are applicable to its offerings of investment products and/or activities;
• adopt the required policies and procedures;
• review and amend the relevant offering and subscription documents to provide the required disclosure and contract provisions;
• notify the DOL of the investment manager’s reliance on the BIC exemption, if required;
• develop procedures to meet the impartial conduct standard; and
• develop procedures to document and retain records of compliance with the BIC.

For further information on this regulation, please contact S. John Ryan at (212) 574-1679, Michael O’Brien at (212) 574-1505, or your contact attorney at Seward & Kissel.

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¹ An ERISA plan that has less than $50 million in assets and is not professionally advised is herein referred to as a “small plan”.

² If an investment manager offers separately managed accounts that follow a model portfolio to IRAs, small plans or plan participants, it should provide some flexibility within the model if it wants to avoid the conclusion that it is effectively recommending specific securities.

³ The DOL also amended several class exemptions, notably PTE 77-4 and PTE 86-128, adding significant new conditions for managers relying on these exemptions. The changes to existing class exemptions will be the subject of a separate client alert.

⁴ See the discussion regarding the potential prohibited transaction in the “Effect of the Rule on Investment Managers” and the need to rely on the service provider exemption for purchasing an interest in a private fund in which the manager holds 50% or more of the value or voting shares of the private fund.

⁵ A private fund with different fee arrangements in series or classes offered to investors based on the amount invested in the fund should be a “single fee” for these purposes.

⁶ Soft dollars, gifts and gratuities will likely be viewed as third-party payments by the DOL.