EVERY BROKER DEALER SHOULD KNOW

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Presentation transcript:

EVERY BROKER DEALER SHOULD KNOW BACK TO THE FUTURE ERISA PTEs EVERY BROKER DEALER SHOULD KNOW Stephen P. Wilkes, Esq. swilkes@wagnerlawgroup.com 300 Montgomery Street, Suite 600, San Francisco, CA 94104 415-625-0002

Agenda Introduction: Who is covered? Types of PTs? Exemptions: Different Types – Admin or Statutory Trading: Agency or Principal Securities Lending Underwriting Margin Lending Soft Dollar Correction Advice – Land of the Unknown?

Agenda Affiliated Product Mutual Fund Insurance

Introduction ERISA Creates Duty and Prohibits Certain Transactions Who is covered? Employee Pension and Welfare Plans as well as commingled vehicles, certain bank and insurance funds. Who is excluded? ERISA Plan v Qualified Retirement Plan? Discretionary Plans are outside scope of Fiduciary Rule Execution of securities transactions

PTs and Exemptions - Types Per Se PTs Under 406(a) Fiduciary / Conflict PTs under 406(b) IRC parallel provisions Statutory exemptions Class exemptions Individually granted exemptions

Expansive Class Exemptions QPAM – very broad based; PTE 84-14 (See also INHAM PTE 96-23) BD obtains certain reps and warranties What makes a fiduciary “independent”? Source of Funds Exemptions (PTE 95-60, 90-1, 91-38)

ERISA Statutory Exemptions PPA Section 408(b)(17) – Service Provider Section 408(b)(14) – Participant Investment Advice Section 408(b)(15) – Block Trades Section 408(b)(18) – FX Section408(b)(19) – Cross Trading Section 408(b)(2) – Corrections Section 408(b)(2); Section 408(b)(4), (6) and (8) Section 408(g) – participant advice

Agency Trades PTE 86-128 Cross Trades Agency Trades : Affiliated or unaffiliated adviser/fiduciary? Fate of ICS unknown at the moment IRA accounts Cross Trades PTE 2002-12

Principal Trades PTE 75-1 – BD is non – fiduciary BD is registered Ordinary course of business Arms length BD as fiduciary – limited under PTE 75-1

Securities Lending PTE 2006-16 Borrower qualifications No discretion or advisory role for borrower/affiliates Collateral Documentation: financial statements, written loan agreement Reasonable fee Termination rights

Soft Dollars Section 28(e) ERISA Technical Release 86-1

Underwriting Transactions PTE 75-1 BD as Fiduciary BD as Non-Fiduciary

Margin Lending PTE 75-1 BD is registered Non-fiduciary role Credit for securities transaction and is otherwise lawful

Repurchase and Reverse Repurchase PTE 81-8 for Repurchase PTE 2006-16 /QPAM /Source of Funds for Reverse Repurchase Conditions for PTE 81-8 Seller requirements No discretionary or advisory role Collateral

Rebates Rebate to plan involved Best Execution For authorized Plan expenses

Corrections Section 408(b)(20) For securities and commodities 14 day cure period

Insurance Section 408(b)(8) PTE 84-24 PTE 77-4

Mutual Funds PTE 84-24 PTE 77-4

Important Information This presentation is intended for general informational purposes only, and it does not constitute legal, tax or investment advice from The Wagner Law Group.

EVERY BROKER DEALER SHOULD KNOW BACK TO THE FUTURE ERISA PTEs EVERY BROKER DEALER SHOULD KNOW Stephen P. Wilkes, Esq. swilkes@wagnerlawgroup.com 300 Montgomery Street, Suite 600, San Francisco, CA 94104 415-625-0002