Steps Hedge Fund Managers May Take Today to Avoid Being Deemed a Fiduciary Under the DOL’s New Fiduciary Rule

In February 2017, many investment advisers were relieved when President Trump ordered the Department of Labor to evaluate the likely impact of the revised fiduciary rule that, in its current form, expands the range of persons considered “fiduciaries” under the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. The initial set of requirements under the fiduciary rule became applicable on June 9, 2017; therefore, hedge fund managers may need to take steps to ensure they are not deemed fiduciaries under the rule in connection with their marketing activities. In a guest article, K&L Gates partner Robert L. Sichel provides an overview of the fiduciary rule, identifies the types of activities that may trigger fiduciary status thereunder, addresses common misconceptions under the rule and provides a roadmap for how a manager can avoid becoming a fiduciary under the rule in connection with its marketing activity. For a discussion of the evaluation of the fiduciary rule ordered by President Trump, see “Despite the DOL Fiduciary Rule’s Uncertain Future Under the Trump Administration, Managers Should Continue Preparing for Its April 2017 Implementation (Part Two of Two)” (Feb. 23, 2017).

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