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2023 DOL Fiduciary Rule Developments: Recent Cases, Five-Part Test, Rollover Advice, Next Steps for Advisers

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, April 19, 2023

Recorded event now available

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This CLE webinar will guide employee benefits counsel in understanding the implications of recent cases in applying the DOL fiduciary rule for retirement plan sponsors, plan advisers, service providers, and other key groups. The panel will discuss recent court decisions that significantly impact the application of the DOL fiduciary rule, the courts' application of the five-part test to determine fiduciary status, and key considerations for financial advisers. The panel will also discuss the expanded definition of investment advice, approaches to avoid fiduciary status, exemptions for fiduciary investment advice, compliance and implementation strategies, and more.


The DOL's fiduciary rule has undergone many revisions and challenges over the last few years. The DOL’s rule changes in 2016 expanded the definition of "investment advice," resulting in additional entities being deemed fiduciaries. Under that rule, essentially any recommendation made to a plan or its participants to take a particular course of action was considered fiduciary advice subject to few exclusions. Although those rule changes were overturned by the courts, the DOL has continued to try and expand the scope of the fiduciary rule.

Recent DOL guidance provided that recommendations to take a rollover from a plan and guidance on how to invest rollover assets as well as the selection of investment managers and investment account arrangements would often be considered fiduciary advice under the DOL fiduciary rule. However, recent cases applying the five-part test cast doubt on the application of the DOL fiduciary rule.

In American Securities Association v. U.S. Department of Labor, et al., the court decided that the "regular basis" element of the five-part test should be applied on a plan-by-plan basis as such relates to rollover investment advice. The court stated that assets cease to be assets of an ERISA plan after the rollover is complete and any future provision of advice is no longer to that ERISA plan. This case marks another vacatur that a federal court has issued in connection with the DOL's interpretation of the investment advice fiduciary rule.

Benefits counsel must understand the impact of the rule on retirement plan sponsors, advisers, and service providers to advise their clients on compliance and implementation best practices.

Listen as our panel discusses recent court decisions that significantly impact the application of the DOL fiduciary rule, courts' application of the five-part test to determine fiduciary status, and key considerations for financial advisers and plan sponsors.



  1. Overview of current DOL fiduciary rule
  2. The "fiduciary advice" definition, exclusions, and exemptions
  3. Recent court decisions
  4. Key considerations for sponsors, administrators, and advisers
  5. Compliance planning
  6. Implementation


The panel will discuss these and other key issues:

  • Unpacking the DOL fiduciary rule and key issues for advisers
  • The definition of investment advice and its exclusions
  • Prohibited transaction exemptions and the impact of recent court decisions
  • Compliance planning tactics


Rabitz, Steven
Steven W. Rabitz


Mr. Rabitz focuses his practice on the fiduciary responsibility, prohibited transaction and funding rules of ERISA,...  |  Read More

Zanotti, Kristina
Kristina M. Zanotti

K&L Gates

Ms. Zanotti is a partner in the investment management practice group, concentrating in the ERISA fiduciary and...  |  Read More

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