Revenue-sharing payments may be used to offset part or all of a level fee paid to a 401(k) plan adviser under the final rule, consistent with DOL Advisory Opinion 97-15A (also known as the Frost Letter).

"Free meal" seminars offered by investment advisers are not considered general communications automatically excepted from being considered fiduciary investment advice.

Third-party administrator (TPA) recommendations of recordkeepers for which they receive revenue-sharing payments, without representations about specific investment options available under the respective platforms, would not be considered fiduciary investment advice.

Call-center employee communications with plan participants describing the menu of available investment options, or the benefits of increasing the participant's contribution to maximize the available matching contribution, would typically be considered investment education and not fiduciary investment advice.

The $50 million asset under management (AUM) threshold for the independent fiduciary exception may be satisfied using a combination of plan and non-plan assets, including proprietary company money.

Neither an IRA owner or her family member may be considered an independent fiduciary under the independent fiduciary exception, regardless of whether they can satisfy the $50 million AUM threshold.

Financial service providers may receive revenue-sharing payments to offset part or all of a level fee paid to a plan investment adviser as a result of a plan's investment in mutual funds selected by the adviser without engaging in a non-exempt prohibited transaction, consistent with the DOL's analysis in Advisory Opinion 97-15 (also known as the Frost Letter).

A financial service company's internal employee communications regarding their job responsibilities, including training materials, would not be considered fiduciary investment advice unless these communications were forwarded or made available to a retirement investor.

An investment adviser who acts as an insurance agent and recommends that a retirement investor receiving a required minimum distribution from his retirement plan (see Practice Note, Required Minimum Distributions from Retirement Plans) should invest the proceeds in a life insurance product, from which he would receive a commission, is making an investment recommendation that constitutes fiduciary investment advice under the final rule.

A plan sponsor or vendor's disclosures or explanations to retirement investors to implement a plan's automatic under-$5,000 cash-out or rollover provision are not considered fiduciary investment advice under the final rule.

Call center representatives of a financial services company provide non-fiduciary investment education and not fiduciary investment advice to retirement investors when they describe:

Interactive investment tools that permit a participant to input their individual characteristics (age, expected retirement date, expected savings, and so on) will be considered non-fiduciary investment education and not fiduciary investment advice so long as they satisfy the requirements of the final rule.

Referrals of third parties in connection with investment education provided by financial center employees for which the financial service representative receives a referral fee are considered fiduciary investment advice subject to the final rule and the receipt of the referral fee would be a prohibited transaction unless an applicable exemption applies (see Practice Note, Prohibited Transactions and Exemptions Under ERISA and the Code).

Asset allocation models provided by financial providers and advisers will be treated as non-fiduciary investment education, provided they satisfy the required conditions of the final rule, including describing the designated investment alternatives available under the plan, even if they do not describe the options available through a plan's brokerage windows (see Practice Note, Fee and Investment Disclosure Requirements for Participant-Directed Plans).

"Free meal" seminars offered by investment advisers to retirement investors are not considered general communications that are automatically deemed to not be fiduciary investment advice. Rather, whether the particular communication at the seminar is viewed as a recommendation (and, therefore, fiduciary investment advice) is a matter of facts and circumstances.

A life insurance wholesaler's remarks to a conference targeted towards retirement plan professionals regarding the quality of its products and their applicability to "many" retirement plans would be considered general communications and not fiduciary investment advice under the final rule.

A TPA's recommendation of two separate recordkeepers to plan fiduciaries, without any representations as to the underlying investment options available in each recordkeeper's platform, is not considered fiduciary investment advice under the final rule (though whether the TPA made a recommendation regarding available investment options would be evaluated based on the facts and circumstances of each case).

A financial service provider's employee's description of the services it provides to a new customer, including a statement that it provides quality services at "competitive fees," does not constitute fiduciary investment advice under the final rule, unless the person actually recommended a particular account type or service.

The independent fiduciary exception permits the $50 million AUM to be satisfied by an independent fiduciary by taking into account both plan and non-plan assets, including proprietary company money. For example, a CFO who has management authority over a $42 million ERISA plan and is also responsible for $10 million in company cash and securities would satisfy this threshold.

The independent fiduciary exception applies to communications a party has with an independent fiduciary who is a representative of a registered investment adviser (RIA), provided the representative is acting under the control of the RIA in accordance with applicable law.

A recordkeeper may rely on the independent fiduciary exception in a meeting with a RIA acting as a plan investment fiduciary, even if members of the plan's fiduciary committee are present, so long as the the recordkeeper knows or reasonably believes the RIA is acting as a fiduciary in making the recommendations and the other conditions of the final rule are satisfied. Note, however, that ongoing communications between the recordkeeper and the fiduciary committee would not fall within the exception unless the RIA participated in those discussions and it was clear that the RIA continued to have and exercise independent judgment in making their fiduciary recommendations.

The independent fiduciary exception is not available to an IRA owner or her relatives, regardless of whether they can satisfy the $50 million AUM threshold with personal assets.

A broker-dealer hired to assist a plan in selecting investment options (including mutual funds) from a recordkeeper's platform may be considered to be independent under the exception even if it receives revenue-sharing or 12b-1 fees as a result of the plan's investment in those mutual funds, provided that the other conditions of BICE are satisfied. This analysis would depend on the facts and circumstances of each case presented.

Fees paid between financial intermediaries for model portfolio services are not considered "direct fees" for fiduciary investment advice under the exception, unless the adviser is subsequently or separately being reimbursed by the retirement investor.

A life insurance provider can rely on the platform provider exception when it offers a range of investment alternatives to a 401(k) plan sponsor as part of a group annuity contract that includes recordkeeping services.

A recordkeeper is not providing fiduciary investment advice under the final rule by providing a list of investment options that satisfy a plan's investment policy statement, unless it exercises discretion in narrowing the response to a selective list of investment options (for a sample investment policy statement, see Standard Document, Investment Policy Statement for Defined Contribution Plan).