On September 19, 2011, the Employee Benefits Security Administration (EBSA) announced that it would re-propose its rule to amend the definition of fiduciary under ERISA. According to the EBSA's press release, it expects to issue the new proposed rule in early 2012. The decision to re-propose is designed to allow an opportunity for additional input on the rule from the public and for enhanced review, research and consideration by EBSA.

The original proposal expanded the circumstances under which a person is considered to be a "fiduciary" under ERISA by reason of giving investment advice to employee benefit plans or plan participants for a fee.

When re-proposed, the goal of the new rule will be to ensure that potential conflicts of interest do not affect the quality of investment advice received by retirement plans and plan participants. The EBSA expects to clarify that fiduciary advice is limited to individualized guidance directed to specific parties and to address the continued applicability of certain exemptions for common fee practices, while protecting plan participants from abuse and conflicted advice.

For more information on fiduciary duties under ERISA, see Practice Note, ERISA Fiduciary Duties: Overview.