"Certain common marketing or offering activities for private investment funds and separately managed accounts involving ERISA plans and/or IRAs may be considered 'investment advice' under the final rule, potentially constituting 'conflicted' advice offered in a fiduciary capacity that could result in a violation of fiduciary duty and/or a prohibited transaction absent an exemption. Discussions with Targeted ERISA/IRA Parties may be considered 'investment advice' and fiduciary in nature if they are considered tantamount to a 'recommendation' to invest (or maintain an investment) in the fund or establish (or maintain) a separately managed account arrangement, even though, in the case of a prospective investor or client, a fee will not be charged until after the investor invests in the fund or the separately managed account is established."  MORE >>