On October 31, 2023, the Department of Labor (“DOL”) issued a much-anticipated proposal to amend its 1975 “investment advice fiduciary” regulation, which defines when a person who provides investment advice for a fee or other compensation to a retirement plan subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), is a “fiduciary” to such plan. The proposed amendment (the “2023 Proposed Amendment”) arrives more than five years after the Fifth Circuit invalidated the DOL’s 2016 amendment to the regulation. Like the 2016 amendment, the 2023 Proposed Amendment would expand the regulation’s coverage to include investment advice fiduciaries with respect to individual retirement accounts (“IRAs”). The DOL is also proposing to amend certain related prohibited transaction exemptions (“PTEs”).
