“Large, complex financial institutions such as Merrill offer different products and services and our advisors interact with their clients and prospects in diverse ways. In our view, it would not be reasonably practicable on a case by case basis (or even on a service by service basis) to make that factual determination of fiduciary status. To address the practical issue, we could essentially be forced to comply with the exemption conditions in situations where we are not acting as a fiduciary, but there is some risk that fiduciary status could attach to a particular interaction,” Morgan Stanley Managing Director Patricia Anne Kuhn said in her comment letter.
The proposed rule will dictate the fiduciary level of investment advice received by the approximately 102 million workers who participate in the 660,000 defined contribution plans covered by ERISA that the DOL oversees.
Those who want to testify at the hearing have just three days to apply to do so. “Requests to testify at the hearing on the proposed exemption must be submitted to EBSA on or before Aug. 28, 2020,” the agency said.
Testimony will be limited to individuals or parties who have already submitted a comment or hearing request on the proposed exemption before the close of the comment period, EBSA said.
Outlines of remarks submitted by potential witnesses “should present material factual issues and demonstrate that the proposed testimony is both germane to factual issues needing exploration at the hearing that could not have been submitted in writing, and not duplicative of arguments and factual material previously included in the requestor’s comment letter,” EBSA said.
The proposal and notice of hearing are available here.