I 

111TH CONGRESS 

1ST SESSION H. R. 1988 

To amend title I of the Employee Retirement Income Security Act of 1974 

to provide for independent investment advice for participants and beneficiaries under individual account plans. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 21, 2009 

Mr. ANDREWS introduced the following bill; which was referred to the 

Committee on Education and Labor 

A BILL 

To amend title I of the Employee Retirement Income Security Act of 1974 to provide for independent investment 

advice for participants and beneficiaries under individual 

account plans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Conflicted Investment 

5 Advice Prohibition Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds as follows: 


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1 (1) The market downturn of 2008 had a dev2 astating effect on the retirement security income of 

3 millions of American workers. 

4 (2) According to the Congressional Budget Of5 fice, $2 trillion of Americans’ retirement savings was 

6 wiped out over a 15-month period starting in 2008. 

7 (3) According to Congressional Budget Office 

8 estimates, the value of pension funds and retirement 

9 accounts dropped by roughly $1 trillion last year. 

10 (4) Individual average losses of participants in 

11 401(k) plans ranged from 7.2 percent to 11.2 per12 cent in the first nine months of 2008, according to 

13 an Employee Benefit Research Institute analysis of 

14 2.2 million retirements account participants. 

15 (5) During the first nine months of 2008, 

16 stocks were down, with the S&P 500 index losing 

17 more than 19 percent. With over two-thirds of the 

18 assets in 401(k)-style defined contribution plans in19 vested in equities, either directly or through mutual 

20 funds, participants are exposed to increased risk and 

21 lack meaningful access to independent investment 

22 advise to help them better plan for their retirement. 

23 (6) Currently, 401(k) plan account holders have 

24 access to a self-interested or conflicted investment 

25 adviser. 


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1 (7) In 2007, the Government Accountability Of2 fice concluded that conflicts of interest can have an 

3 adverse affect on defined benefit and defined con4 tribution plans. 

5 SEC. 3. INDEPENDENT INVESTMENT ADVISERS FOR INDI6 VIDUAL ACCOUNT PLANS. 

7 (a) IN GENERAL.—Section 3 of the Employee Retire8 ment Income Security Act of 1974 (29 U.S.C. 1002) is 

9 amended by adding at the end the following new para10 graph: 

11 ‘‘(43) INDEPENDENT INVESTMENT ADVISER.— 

12 ‘‘(A) IN GENERAL.—The term ‘inde13 pendent investment adviser’ means, with respect 

14 to an individual account plan that permits a 

15 participant or beneficiary to direct the invest16 ment of assets in their individual account, a 

17 person who is a fiduciary of the plan by reason 

18 of the provision of investment advice referred to 

19 in section 3(21)(A)(ii) by the person to the plan 

20 or a participant or beneficiary of the plan and 

21 who meets the requirements of either subpara22 graph (B) or (C). 

23 ‘‘(B) REQUIREMENTS APPLICABLE TO IN24 VESTMENT ADVISER.—An investment adviser 


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1 meets the requirements of this subparagraph, 

2 if— 

3 ‘‘(i) such adviser is— 

4 ‘‘(I) registered as an investment 

5 adviser under the Investment Advisers 

6 Act of 1940 (15 U.S.C. 80b–1 et seq.) 

7 or under the laws of the State in 

8 which the adviser maintains its prin9 cipal office and place of business, 

10 ‘‘(II) a bank or similar financial 

11 institution referred to in section 

12 408(b)(4) or a savings association (as 

13 defined in section 3(b)(1) of the Fed14 eral Deposit Insurance Act (12 U.S.C. 

15 1813(b)(1))), but only if the invest16 ment advice referred to in section 

17 3(21)(A)(ii) which is provided by such 

18 bank or institution is provided 

19 through a trust department of the 

20 bank or similar financial institution or 

21 savings association which is subject to 

22 periodic examination and review by 

23 Federal or State banking authorities, 

24 or 


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1 ‘‘(III) any other person, but only 

2 if every individual providing the in3 vestment advice referred to in section 

4 3(21)(A)(ii) on behalf of such person 

5 (or on behalf of any affiliate thereof) 

6 is a registered representative, 

7 ‘‘(ii) such adviser (and any affiliate 

8 thereof) does not provide or manage any 

9 investments in which plan assets of any in10 dividual account plan is invested, 

11 ‘‘(iii) the fees or other compensation 

12 received, directly or indirectly, by such ad13 viser (and any affiliate thereof) with re14 spect to the provision of investment advice 

15 to any individual account plan or the par16 ticipants or beneficiaries of such a plan ei17 ther— 

18 ‘‘(I) are not received from any 

19 person or persons (or anyone affili20 ated with such persons) that market, 

21 sell, manage or provide investments in 

22 which plan assets of any individual ac23 count plan are invested, or 

24 ‘‘(II) do not vary depending on 

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1 lected, and are calculated pursuant to 

2 one or more of the following bases— 

3 ‘‘(aa) a flat-dollar basis, 

4 ‘‘(bb) a flat percentage of 

5 total plan assets basis, or 

6 ‘‘(cc) a per-participant basis, 

7 and 

8 ‘‘(iv) such adviser provides the invest9 ment advice pursuant to a written arrange10 ment with the individual account plan 

11 that— 

12 ‘‘(I) provides that the investment 

13 adviser is a fiduciary of the plan with 

14 respect to the provision of the advice, 

15 ‘‘(II) requires that the advice be 

16 provided only by registered represent17 atives of the investment adviser or an 

18 affiliate thereof, 

19 ‘‘(III) discloses whether the in20 vestment adviser or any affiliate 

21 thereof has any material financial, re22 ferral, or other relationship or ar23 rangement with a money manager, 

24 broker, other client of the investment 

25 adviser or any affiliate thereof, other 


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1 service provider to the plan, or any 

2 other entity that creates or may cre3 ate a conflict of interest for the in4 vestment adviser in performing serv5 ices pursuant to the arrangement with 

6 the plan and, if so, includes a descrip7 tion of such relationship or arrange8 ment, 

9 ‘‘(IV) includes a representation 

10 by the investment adviser that, before 

11 the arrangement was entered into (or 

12 extended or renewed), the investment 

13 adviser provided to the plan fiduciary 

14 that has authority to cause the em15 ployee benefit plan to enter into (or 

16 extend or renew) the arrangement a 

17 written statement disclosing all fees or 

18 other compensation that the invest19 ment adviser or any affiliate thereof 

20 anticipates to receive with respect to 

21 the advice during the first year, or 

22 other period if less than a year, of the 

23 arrangement, and 

24 ‘‘(V) provides that the investment 

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1 ciary (and the participant and bene2 ficiary receiving the advice, if applica3 ble) a statement annually disclosing 

4 all fees or other compensation that 

5 the investment adviser or any affiliate 

6 thereof has received with respect to 

7 the advice during the prior year. 

8 ‘‘(C) ADVICE PROVIDED TO PARTICIPANTS

9 AND BENEFICIARIES UNDER AN INVESTMENT

10 ADVICE PROGRAM MEETING REQUIREMENTS.— 

11 An investment adviser meets the requirements 

12 of this subparagraph if the investment advice 

13 provided by the adviser, to the extent that such 

14 advice is provided to participants and bene15 ficiaries of individual account plans, is provided 

16 under an investment advice program with re17 spect to which the requirements of clauses (i) 

18 through (x) are met. 

19 ‘‘(i) ADVISER REQUIREMENTS.—The 

20 requirements of this clause are met if the 

21 investment adviser providing the invest22 ment advice under the program is— 

23 ‘‘(I) described in subclauses (I) 

24 or (II) of subparagraph (B)(i), 


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1 ‘‘(II) an insurance company 

2 qualified to do business under the 

3 laws of a State, 

4 ‘‘(III) a person registered as a 

5 broker or dealer under the Securities 

6 Exchange Act of 1934 (15 U.S.C. 78a 

7 et seq.), 

8 ‘‘(IV) an affiliate of a person de9 scribed in any of subclauses (I) 

10 through (III), or 

11 ‘‘(V) an employee, agent, or reg12 istered representative of a person de13 scribed in subclauses (I) through (IV) 

14 who satisfies the requirements of ap15 plicable insurance, banking, and secu16 rities laws relating to the provision of 

17 the advice. 

18 ‘‘(ii) COMPUTER MODEL.—The re19 quirements of this clause are met if the in20 vestment advice provided under the invest21 ment advice program is provided pursuant 

22 to a computer model that— 

23 ‘‘(I) applies generally accepted 

24 investment theories that take into ac25 count the historic returns of different 


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1 asset classes over defined periods of 

2 time, 

3 ‘‘(II) utilizes relevant information 

4 about the participant, which may in5 clude age, life expectancy, retirement 

6 age, risk tolerance, other assets or 

7 sources of income, and preferences as 

8 to certain types of investments, 

9 ‘‘(III) utilizes prescribed objective 

10 criteria to provide asset allocation 

11 portfolios comprised of investment op12 tions available under the plan, 

13 ‘‘(IV) operates in a manner that 

14 is not biased in favor of investments 

15 offered by the investment adviser or 

16 any person with a material affiliation 

17 or contractual relationship with the 

18 investment adviser, and 

19 ‘‘(V) takes into account all in20 vestment options under the plan in 

21 specifying how a participant’s account 

22 balance should be invested and is not 

23 inappropriately weighted with respect 

24 to any investment option. 

25 ‘‘(iii) CERTIFICATION.— 


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1 ‘‘(I) IN GENERAL.—The require2 ments of this clause are met with re3 spect to the program if an eligible in4 vestment expert certifies, prior to the 

5 utilization of the computer model and 

6 in accordance with rules prescribed by 

7 the Secretary, that the computer 

8 model meets the requirements of 

9 clause (ii). 

10 ‘‘(II) RENEWAL OF CERTIFI11 CATIONS.—If, as determined under 

12 regulations prescribed by the Sec13 retary, there are material modifica14 tions to the computer model, the re15 quirements of this subparagraph are 

16 met only if a certification described in 

17 subclause (I) is obtained with respect 

18 to the computer model as so modified. 

19 ‘‘(III) ELIGIBLE INVESTMENT

20 EXPERT.—For purposes of this 

21 clause, the term ‘eligible investment 

22 expert’ means any person— 

23 ‘‘(aa) which meets such re24 quirements as the Secretary may 

25 provide, and 


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1 ‘‘(bb) does not bear any ma2 terial affiliation or contractual 

3 relationship with any investment 

4 adviser or a related person there5 of (or any employee, agent, or 

6 registered representative of the 

7 investment adviser or related per8 son). 

9 ‘‘(iv) EXCLUSIVITY OF RECOMMENDA10 TION.—The requirements of this clause are 

11 met with respect to the program, if— 

12 ‘‘(I) the only investment advice 

13 provided under the program is the ad14 vice generated by the computer model 

15 described in clause (ii), and 

16 ‘‘(II) any transaction pursuant to 

17 the investment advice occurs solely at 

18 the direction of the participant or 

19 beneficiary. 

20 ‘‘(v) EXPRESS AUTHORIZATION BY

21 SEPARATE FIDUCIARY.—The requirements 

22 of this clause are met with respect to the 

23 program if the program is expressly au24 thorized by a plan fiduciary other than— 


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1 ‘‘(I) the person offering the pro2 gram, 

3 ‘‘(II) any person providing in4 vestment options under the plan, and 

5 ‘‘(III) any affiliate of either per6 son described in subclause (I) or (II). 

7 ‘‘(vi) ANNUAL AUDIT.—The require8 ments of this clause are met with respect 

9 to the program if an independent auditor, 

10 who has appropriate technical training or 

11 experience and proficiency and so rep12 resents in writing— 

13 ‘‘(I) conducts an annual audit of 

14 the program for compliance with the 

15 requirements of this subparagraph, 

16 and 

17 ‘‘(II) following completion of the 

18 annual audit, issues a written report 

19 to the fiduciary who authorized use of 

20 the program which presents its spe21 cific findings regarding compliance of 

22 the program with the requirements of 

23 this subsection. 

24 For purposes of this clause, an auditor is 

25 considered independent if it is not related 


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1 to the person offering the program to the 

2 plan and is not affiliated with any person 

3 providing investment options under the 

4 plan. 

5 ‘‘(vii) DISCLOSURE.—The require6 ments of this clause are met with respect 

7 to the program, if— 

8 ‘‘(I) the investment adviser pro9 vides to the participant or beneficiary 

10 receiving investment advice under the 

11 program with regard to any security 

12 or other property offered as an invest13 ment option, before providing the ad14 vice, a written notification (which may 

15 consist of notification by means of 

16 electronic communication)— 

17 ‘‘(aa) of the role of any 

18 party that has a material affili19 ation or contractual relationship 

20 with the investment adviser in 

21 the development of the invest22 ment advice program and in the 

23 selection of investment options 

24 available under the plan, 


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1 ‘‘(bb) of all fees or other 

2 compensation relating to the ad3 vice that the investment adviser 

4 or any affiliate thereof is to re5 ceive (including compensation 

6 provided by any third party) in 

7 connection with the provision of 

8 the advice or in connection with 

9 the sale, acquisition, or holding 

10 of the security or other property, 

11 ‘‘(cc) of any material affili12 ation or contractual relationship 

13 of the investment adviser or af14 filiates thereof in the security or 

15 other property, 

16 ‘‘(dd) of the manner, and 

17 under what circumstances, any 

18 information relating to the par19 ticipant or beneficiary which is 

20 provided under the program will 

21 be used or disclosed, 

22 ‘‘(ee) of the types of services 

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1 vision of investment advice by the 

2 investment adviser, and 

3 ‘‘(ff) that a recipient of the 

4 advice may separately arrange 

5 for the provision of advice by an6 other adviser, that could have no 

7 material affiliation with, and 

8 could receive no fees or other 

9 compensation, in connection with 

10 the security or other property, 

11 and 

12 ‘‘(II) at all times during the pro13 vision of advisory services to the par14 ticipant or beneficiary, the investment 

15 adviser— 

16 ‘‘(aa) maintains the infor17 mation described in subclause (I) 

18 in accurate form and in the man19 ner described in clause (ix), 

20 ‘‘(bb) provides, without 

21 charge, accurate information to 

22 the recipient of the advice no less 

23 frequently than annually, 

24 ‘‘(cc) provides, without 

25 charge, accurate information to 


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1 the recipient of the advice upon 

2 request of the recipient, and 

3 ‘‘(dd) provides, without 

4 charge, accurate information to 

5 the recipient of the advice con6 cerning any material change to 

7 the information required to be 

8 provided to the recipient of the 

9 advice at a time reasonably con10 temporaneous to the change in 

11 information. 

12 ‘‘(viii) OTHER CONDITIONS.—The re13 quirements of this clause are met with re14 spect to the program, if— 

15 ‘‘(I) the investment adviser pro16 vides appropriate disclosure, in con17 nection with the sale, acquisition, or 

18 holding of the security or other prop19 erty with respect to which the invest20 ment advice is provided under the 

21 program, in accordance with all appli22 cable securities laws, 

23 ‘‘(II) the sale, acquisition, or 

24 holding occurs solely at the direction 

25 of the recipient of the advice, 


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1 ‘‘(III) the compensation received 

2 by the investment adviser and affili3 ates thereof in connection with the 

4 sale, acquisition, or holding of the se5 curity or other property is reasonable, 

6 and 

7 ‘‘(IV) the terms of the sale, ac8 quisition, or holding of the security or 

9 other property are at least as favor10 able to the plan as an arm’s length 

11 transaction would be. 

12 ‘‘(ix) STANDARDS FOR PRESENTATION

13 OF INFORMATION.— 

14 ‘‘(I) IN GENERAL.—The require15 ments of this clause are met with re16 spect to the program if the notifica17 tion required to be provided to partici18 pants and beneficiaries under clause 

19 (vii)(I) is written in a clear and con20 spicuous manner and in a manner cal21 culated to be understood by the aver22 age plan participant and is sufficiently 

23 accurate and comprehensive to rea24 sonably apprise such participants and 

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1 quired to be provided in the notifica2 tion. 

3 ‘‘(II) MODEL FORM FOR DISCLO4 SURE OF FEES AND OTHER COM5 PENSATION.—The Secretary shall 

6 issue a model form for the disclosure 

7 of fees and other compensation re8 quired in clause (vii)(I)(bb) which 

9 meets the requirements of subclause 

10 (I). 

11 ‘‘(x) MAINTENANCE FOR 6 YEARS OF

12 EVIDENCE OF COMPLIANCE.—The require13 ments of this clause are met with respect 

14 to the program if the investment adviser 

15 who provides advice under the program 

16 maintains, for a period of not less than 6 

17 years after the provision of the advice, any 

18 records necessary for determining whether 

19 the requirements of the preceding provi20 sions of this subparagraph and of sub21 section (b)(14) have been met. A trans22 action prohibited under section 406 shall 

23 not be considered to have occurred solely 

24 because the records are lost or destroyed 

25 prior to the end of the 6-year period due 


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1 to circumstances beyond the control of the 

2 investment adviser. 

3 ‘‘(D) DEFINITIONS.—For purposes of this 

4 paragraph— 

5 ‘‘(i) AFFILIATE.—The term ‘affiliate’ 

6 of an investment adviser means any person 

7 directly or indirectly (through one or more 

8 intermediaries) controlling, controlled by, 

9 or under common control with the invest10 ment adviser, or any officer, director, 

11 agent, or employee of, or partner with, the 

12 investment adviser. 

13 ‘‘(ii) REGISTERED REPRESENTA14 TIVE.—The term ‘registered representa15 tive’ of another entity means a person de16 scribed in section 3(a)(18) of the Securi17 ties Exchange Act of 1934 (15 U.S.C. 

18 78c(a)(18)) (substituting the entity for the 

19 broker or dealer referred to in such sec20 tion) or a person described in section 

21 202(a)(17) of the Investment Advisers Act 

22 of 1940 (15 U.S.C. 80b–2(a)(17)) (sub23 stituting the entity for the investment ad24 viser referred to in such section). 


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1 ‘‘(iii) FEES OR OTHER COMPENSA2 TION.—The term ‘fees or other compensa3 tion’ includes money or any other thing of 

4 monetary value (for example, gifts, awards, 

5 and trips) received, or to be received, di6 rectly from the plan or plan sponsor or in7 directly (i.e., from any source other than 

8 the plan or the plan sponsor) by the invest9 ment adviser or any affiliate thereof in 

10 connection with the advice to be provided 

11 pursuant to the arrangement or because of 

12 the investment adviser’s or any affiliate’s 

13 position with the plan. Fees or other com14 pensation may be expressed in terms of a 

15 monetary amount, percentage of the plan’s 

16 assets, or per capita charge for each par17 ticipant or beneficiary of the plan. The 

18 manner in which compensation or fees are 

19 expressed shall contain sufficient informa20 tion to enable the plan fiduciary to evalu21 ate the reasonableness of such compensa22 tion or fees.’’. 

23 (b) FIDUCIARY DUTIES WITH RESPECT TO INVEST24 MENT ADVICE.—Section 404(a) of such Act (29 U.S.C. 


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1 1104(a)) is amended by adding at the end the following 

2 new paragraph: 

3 ‘‘(3)(A) The fiduciary of an individual account plan 

4 that permits a participant or beneficiary to direct the in5 vestment of assets in the individual account shall not ap6 point, contract with, or otherwise arrange for an invest7 ment adviser to provide investment advice referred to in 

8 section 3(21)(A)(ii) to the plan or the participant or bene9 ficiary unless the investment adviser is an independent in10 vestment adviser (as defined in section 3(43)(A)). 

11 ‘‘(B) The independent investment adviser providing 

12 investment advice to a plan or to a participant or bene13 ficiary shall provide, before the initial provision of the ad14 vice, a written notification (which may consist of notifica15 tion by means of electronic communication)— 

16 ‘‘(i) of the past performance and historical 

17 rates of return of the investment options available 

18 with respect to the plan and comparisons of such op19 tions to relevant benchmarks, and 

20 ‘‘(ii) that the investment adviser is acting as a 

21 fiduciary of the plan in connection with the provision 

22 of the advice. 

23 ‘‘(C) Nothing in this paragraph shall be construed to 

24 exempt a plan sponsor or other person who is a fiduciary 

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1 tion and periodic review of an independent investment ad2 viser with whom the plan sponsor or other person enters 

3 into an arrangement for the provision of investment advice 

4 referred to in section 3(21)(A)(ii). The plan sponsor or 

5 other person who is a fiduciary has no duty under this 

6 part to monitor the specific investment advice given by the 

7 independent investment adviser to any particular recipient 

8 of the advice. 

9 ‘‘(D) Nothing in this part shall be construed to pre10 clude the use of plan assets to pay for reasonable expenses 

11 in providing investment advice referred to in section 

12 3(21)(A)(ii).’’. 

13 (c) CONFORMING AMENDMENTS.—Section 408 of 

14 such Act (29 U.S.C. 1108) is amended— 

15 (1) by striking subsection (g); and 

16 (2) by striking subsection (b)(14)(B) and in17 serting the following: 

18 ‘‘(B) the investment advice is provided by 

19 an independent investment adviser (as defined 

20 in section 3(43)).’’. 

21 (d) REGULATORY AUTHORITY.—The Secretary of 

22 Labor may issue regulations providing that an investment 

23 adviser can still be considered as meeting the requirements 

24 of section 3(43)(B) of the Employee Retirement Income 

25 Security Act of 1974 despite the receipt of a de minimus 


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1 amount of compensation that fails to meet the require2 ments of section 3(43)(B)(iii) of such Act due to the exist3 ence of previously existing contracts. 

4 (e) EFFECTIVE DATE.—The amendments made by 

5 this section shall apply to plan years beginning after one 

6 year after the date of the enactment of this Act. 

Æ 


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