The American Bankers Association today welcomed the Department of Labor’s long-awaited re-proposal to regulate investment advice fiduciaries under the Employee Retirement Income Security Act. In June, DOL proposed two major regulatory actions: a reinstatement of the so-called “five-part test,” which determines whether a person renders investment advice under ERISA, and a proposed class exemption. Both are designed to preserve wide availability of investment advice arrangements and products for retirement investors.
ABA also offered several recommendations to improve the rule, including urging DOL to accommodate the distinct business models of banks and the unique legal and regulatory framework of the banking industry with respect to the provision of investment advice. ABA also encouraged DOL to confirm that under its regulations a rollover from a retirement plan to an individual retirement account generally does not constitute investment advice and that customer-directed bank IRA programs and bank networking arrangements do not constitute investment advice.
ABA has long advocated for an investment advice standard that is consistent with the provisions of ERISA and that preserves consumer choice and protections. Previous DOL proposals—including a 2016 final rule that was later vacated by a federal appeals court—had resulted in a definition of investment advice that was overbroad and created considerable uncertainty and risk as to when a person is, or is not, acting as a fiduciary under ERISA.
