In Advisory Opinion 2011-08A, the Department of Labor (DOL) concluded that the prohibited transaction exemption (PTE) under Class PTE 86-128 applies to "investment advice” fiduciaries. Class PTE 86-128 provides relief from the prohibited transaction restrictions of Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) for fees paid to a plan fiduciary for executing securities transactions for the plan. Specifically, Class PTE 86-128 allows a plan fiduciary or an affiliate to engage in a securities transaction for a fee as an agent on behalf of the plan.
Class PTE 86-128 does not define "fiduciary" for purposes of the exemption. However, the DOL noted that the definition of "fiduciary" in ERISA section 3(21)(A) provides guidance on the scope of the term. Based on this definition of "fiduciary," the DOL concluded that Class PTE 86-128 is available to any fiduciary within the meaning of ERISA section 3(21)(A), including those fiduciaries who provide only investment advice.