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Dechert Comment Letter to SEC Regarding Standard of Conduct for Investment Advisers (PDF)

"[U]nless the standards provide appropriate flexibility to accommodate the vast diversity of advisers and clients, and allow for evolving and differing business models, they will harm advisers and clients, damage the industry, and stymie innovation. If the Commission decides to move forward with a final interpretation and does not withdraw the IA Proposal, we believe that the Commission must address a number of concerns."

Did You Send Your QPAM-a-Gram Yet? Show the DOL You Care Enough to Send the Very Best

"Managers currently relying on the QPAM Exemption (or expected to be relying on the QPAM Exemption) and wishing to continue to do so in respect of managing assets subject to the fiduciary responsibility provisions of [ERISA] or the prohibited transaction rules of Section 4975 of the Internal Revenue Code ... must provide notice to the DOL via email by September 14, 2024. The notice required is brief ... The notice must be provided on an entity-by-entity basis[.]"

Texas Court Issues DOL Fiduciary Stay

"[T]he Stay is not limited to the plaintiffs in the case or the jurisdiction of the Eastern District of Texas but, rather, applies nationwide....[T]he Stay does not impact the effective date of ... amendments to [PTE 2020-02] (which are scheduled to become effective September 23, 2024) ... [U]ntil further court action, the 2024 Fiduciary Rule and amendments to [PTE 84-24] will not become effective and the 1975 rule (the so called 'five part test') remains in effect." [FACC. v. DOL, No. 24-0163 (E.D. Tex. Jul. 25, 2024)]

Not Quite QPAMdemonium: DOL Issues Final Changes to the QPAM Exemption

"The Final Amendment imposes a variety of new requirements with potential impacts on both investment managers currently relying on (or those considering relying on) the QPAM Exemption and financial firms ... [F]or most market participants -- whether most large well-established investment managers managing Plan assets or financial counterparties and service providers with whom they trade -- Plan related business should not be substantially impacted."

New Halloween Fiduciary Proposal May Be a Real Scream

"[M]any of the concepts embedded in the Release's proposed new definition, as well as changes to several existing PTCEs may seem eerily reminiscent of the 2016 Fiduciary Rule.... [This article offers] initial reactions -- subject to revision and clarification -- as to what [the authors] believe would be the principal commercial impacts of the Release."

DOL Will Not Pursue Appeal of Federal Court Rollover Ruling, But Will the 'Regular Basis' of Fiduciary Rule Developments Continue?

"While the ASA decision is the second vacatur issued by a Federal court concerning the DOL's attempts to recraft the definition or interpretation of what it takes to be an 'investment advice' fiduciary, it is also the second Federal case to cast doubts on the DOL's analysis in its 2020 interpretation of the Five-Part Test. Nevertheless, there are indications that the DOL is set to propose yet another regulation to amend the Five Part Test -- perhaps during this year." [American Securities Association v. DOL, No. 22-0330 (M.D. Fla. Feb. 13, 2023; stipulation as to voluntary dismissal filed May 16, 2023; 11th Cir. No. 23-11266)]

The Latest in the 'Regular Basis' of DOL Fiduciary Rule Developments: Federal Court Vacates Certain Provisions Applicable to Rollover Advice

"Along with a September 2022 case in the Southern District of New York, the ASA Decision casts doubt on the DOL's 2020 interpretation of the 1975 Rule ... Additionally noteworthy is the fact that the ASA Decision marks the second vacatur that a Federal court has issued in connection with the DOL's efforts to recraft or interpret the investment advice fiduciary rule codified as the 1975 Rule[.]" [American Securities Association v. DOL, No. 22-0330 (M.D. Fla. Feb. 13, 2023)]

DOL Proposes Significant Changes to QPAM Exemption

"The proposal would generally: [1] Substantially expand disqualification events.... [2] Impose a one-year winding-down period for the QPAM -- triggered on covered conviction or prohibited misconduct.... [3] Require written assurances and indemnities to plan clients.... [4] Mandate QPAM registration with the DOL for national database.... [5] Impose recordkeeping requirements on QPAM exemption compliance and compel access by regulators, plans and participants and beneficiaries.... [6] Offer new color on QPAM as required decision-maker.... [7] Increase client assets under management and shareholder equity thresholds."

More ESGcitement from the DOL: New Proposed Investment/Proxy ERISA Regs (PDF)

15 pages. "Some may be reading the Proposed Regulation's operative language as requiring fiduciaries to consider certain ESG and ESG-type factors when making their investment and investment-related decisions.... Competing policy objectives may well be at play here, with those favoring a more expansive use of ESG factors to advance a climate-based agenda confronting the very real legal safeguards imposed by ERISA in connection with Plans' economic returns."

DOL Issues Limited Relief Regarding New Fiduciary Exemption

"[To] the extent that financial institutions had planned to complete their required retrospective reviews on or before the previous December 20, 2021 deadline on a special (e.g., non-calendar) schedule, they may wish to reconsider that choice in light of [FAB 2021-02], which, by providing general transition relief through January 31, 2021, now extends the relief to beyond the end of calendar-year 2021."