When the Department of Labor issued Field Assistant Bulletin (FAB) 2012-02, the private sector was “shocked” by the DOL’s position on fiduciary responsibilities for brokerage windows in defined contribution plans, such as 401(k) plans. The Department subsequently partially reversed part of its guidance. However, significant portions of that guidance remain, and it continues to be a DOL position that plan sponsors have fiduciary responsibilities for brokerage windows in retirement plans.
My partner, Bruce Ashton, and I recently wrote an article about brokerage windows for TD Ameritrade. As explained in the introduction to the article:
“The first topic of this article, and its principal focus, is the fiduciary process for deciding whether to offer a brokerage window and selecting the provider of the window. The second covers the requirements under the new participant disclosure rules. Finally, we consider the implications of the fiduciaries or a participant selecting an RIA to serve as an investment manager or advisor for a participant’s individual brokerage window.”
We think the article is a valuable contribution to understanding the fiduciary responsibility for brokerage accounts and retirement plans. You can obtain a copy here: http://www.tdainstitutional.com/resource-center.page; once on the TDA home page, then search for “brokerage window” in the search field on the upper right of the screen.
We hope the article is helpful to you.
Fred Reish, Chair, Drinker Biddle Financial Services ERISA Team