Prefatory Comments on ERISA Fiduciary Law in 2016
ERISA Fiduciary Law - Second Edition, 2016 Cumul. Supp., S. Serota & A. Oringer, eds., Bloomberg BNA Books
5 Pages Posted: 6 Jun 2016
Date Written: March 31, 2016
Since ERISA’s enactment in 1974, the evolution of the ERISA practice has been an interesting one, culminating earlier in 2016 with the Department of Labor’s finalization of the fiduciary regulations governing what is “investment advice.” In the 1980s, the statute was still developing in fundamental ways, with the 1980 addition of rules governing multiemployer plans, the 1982-1984 amendments that came with the “TEFRA/DEFRA/REA” trifecta, and the far-reaching changes made by the Tax Reform Act of 1986. Pension plans became a major financial issue resulting in an increasingly significant role in corporate transactions; and the Pension Benefit Guaranty Corporation assumed an ever-more present role in a wide range of situations involving financially distressed companies. The mid-1980s saw the beginning of a dramatic increase in the number of “401(k)” plans and other participant-directed plans, together first with a number of termination/reestablishments of defined benefit plans and then a decline in the number of new defined benefit plans. ERISA litigation, which had started to become a specialized practice area of its own in the late 1970s, boomed in the 1990s. Over the course of this progression, one of the areas to which ERISA lawyers began to gravitate in earnest in the late 1980s was the fiduciary practice. The catalyst for the emergence of Title I as fertile ground for a growing practice area within ERISA may have been the role that ERISA-covered employee benefit plans, and in particular pension plans, came to play in the capital markets. This piece includes a survey of where the development of ERISA's fiduciary rules presently stands, and a brief discussion of the way in which ERISA specialists practice in the evolving and ever-expanding world of ERISA.
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