Adding yet another wrinkle to efforts by the U.S. Department of Labor ("DOL") to redefine the term "fiduciary" under the Employee Retirement Income Security Act of 1974 ("ERISA"), ten senators voiced opposition to the DOL's efforts in a letter to the Office of Management and Budget ("OMB") on August 2, 2013, cautioning that the DOL's pending re-proposal of the definition may conflict with efforts by the Securities and Exchange Commission ("SEC") to create a uniform fiduciary standard of care for broker-dealers and investment advisers.
The DOL has been working to redraft the definition of "fiduciary" after withdrawing its proposed definition in 2010 in response to significant criticism from stakeholders, including the brokerage community, which generally advised that the definition, as proposed, could cause broker-dealers servicing individual retirement accounts ("IRAs") to be treated as ERISA fiduciaries.
Meanwhile, the SEC, in March of this year, issued a request for information on whether it should propose a rule creating a uniform fiduciary standard of care for broker-dealers and investment advisers, two years after the SEC's staff, as mandated by Section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), released a study reviewing this issue and recommending that a uniform fiduciary standard of care be adopted.
The crux of the senators? message to OMB was: if the DOL's proposed definition of "fiduciary" had been adopted in 2010, such adoption would have resulted in IRA holders (referred to as, "Main Street investors") having limited access to meaningful investment services; the SEC's consideration of a uniform fiduciary standard of care is consistent with Section 913 of Dodd-Frank, while the DOL "seems poised to issue" a rule that could conflict with the SEC's work; and OMB should be aware of the potential for conflict between the DOL and SEC rules and review any DOL proposed rule to ensure that it does not undermine the SEC's implementation of a uniform fiduciary standard of care for the benefit of retail investors.
Phyllis C. Borzi, assistant secretary of labor for the DOL's Employee Benefits Security Administration, emphasized at a regulatory update sponsored by the Worldwide Employee Benefits Network in May, 2013 that she could not promise that there would be a single fiduciary rule, but promised generally that compliance with SEC rules would not result in noncompliance with ERISA rules.