Tuesday, June 28, 2016

Watching for unintended consequences

John Schadl, Principal and Head of Vanguard ERISA and Fiduciary Services

I admit it—I am an ERISA nerd. As head of the ERISA & Fiduciary Services group in the Vanguard Legal Department, I truly get excited when big ERISA events occur: the occasional legislation with retirement plan provisions, benefits decisions from the Supreme Court, and big retirement plan regulatory packages.

The Department of Labor’s (DOL) April 6 release of its final rule updating the definition of fiduciary advice was one of those seminal events for ERISA lawyers—the biggest retirement plan development in ten years. The ERISA nerd in me sat down with a shot of caffeine, a fresh legal pad, a pencil, and a highlighter to dig into the 1,000-plus-page release.

One main theme coming out of earlier versions of this set of rules was the potential for unintended consequences. This was a big package that fundamentally changed the parameters of what constituted fiduciary conduct.

The vast majority of the provisions directly address the actions and behaviors of service providers—for example, responding to requests for proposal (RFPs), providing investment lineup monitoring support, or providing investment education to participants. But following the DOL’s 2015 proposal, the sheer breadth and reach of the rules caused some to question whether employees in a plan sponsor’s payroll, accounting, human resources, and financial departments would become plan fiduciaries when talking to participants and beneficiaries about plan investments or distribution options.

On this front, the final rule contains good news. The DOL explicitly concluded that it generally doesn’t consider such communications to be fiduciary advice unless the employee is paid specifically to provide such advice (reaching the sensible conclusion that the plan sponsor and its payroll, accounting, HR, and/or financial department employees typically don’t stand to benefit from such communications).

As such, this provision in the final rule represents a big win for plan sponsors and cause for celebration by ERISA nerds and non-ERISA nerds alike. Vanguard was proud to stand with plan sponsors in pointing out the proposal’s potential overreach and encouraging a more workable alternative.

Because of the scope of the fiduciary rule, Vanguard is spending considerable time wading through the DOL’s regulatory package and analyzing its wide-ranging impacts to make sure we identify all of its consequences (both intended and potentially unintended) for our clients. To achieve this objective, we’re preparing a more detailed analysis and will provide additional information about potential effects on different types of institutions. But in this particular instance, we’re pleased to report a good news story for plan sponsors.

About John Schadl
John Schadl is a principal and head of Vanguard ERISA and Fiduciary Services, which provides legal counsel on retirement and fiduciary topics for the company's institutional and retail businesses. Previously, Mr. Schadl led Vanguard Strategic Retirement Consulting, which works with plan sponsors on fiduciary and regulatory issues. Earlier in his career, Mr. Schadl handled retirement savings tax and fiduciary issues as an associate at the law firm of Susanin, Widman & Brennan, P.C. He earned a B.A. at the University of Notre Dame and a J.D. at Villanova University School of Law.