Recent Developments Affect Classifications of Control Groups and Fiduciaries Under ERISA

The Employee Retirement Income Security Act of 1974 (ERISA) imposes a complex regulatory regime onto hedge fund and other private fund managers managing “plan assets.” Two recent developments carry implications for managers under ERISA: the ruling by the U.S. Court of Appeals for the First Circuit about whether a private equity (PE) fund can be treated as a “trade or business” for purposes of the pension funding rules and withdrawal liability under ERISA; and the release of the DOL’s final rule revising the definition of “fiduciary” under ERISA. These were among the ERISA-related topics discussed during a recent segment of the Practising Law Institute’s “Pension Plan Investments 2016: Current Perspectives” seminar. The program was moderated by Arthur H. Kohn, a partner at Cleary Gottlieb Steen & Hamilton; and featured Jeanie Cogill, a partner at Morgan, Lewis & Bockius; David M. Cohen, a partner at Schulte Roth & Zabel; and Steven W. Rabitz, a partner at Stroock & Stroock & Lavan. This article summarizes the key takeaways from the program with respect to the foregoing matters. For more on ERISA, see our three-part series on ERISA Considerations for European hedge fund managers: “Liability and Incentive Fee Considerations” (Sep. 24, 2015); “Prohibited Transaction, Reporting and Side Letter Considerations” (Oct. 1, 2015); and “Indicia of Ownership and Bond Documentation Considerations” (Oct. 8, 2015). 

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