Public Investors Arbitration Bar Association 

2415 A Wilcox Drive Norman, OK 73069 Phone: (405) 360-8776 Fax: (405) 360-2063 

Toll Free: (888) 621-7484 Website: www.PIABA.org Email: piaba@piaba.org

Public Investors Arbitration Bar Association

Via email to e-ORI@dol.gov

February 3, 2011 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

Attn: Definition of Fiduciary Proposed Rule 

Room N-5655 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210 

Re: Definition of the Term “Fiduciary,” RIN 1210-AB32 

Dear Mr. Wong: 

On behalf of the Public Investors Arbitration Bar Association (“PIABA”), 

I thank you for the opportunity to comment on the Department of Labor’s 

proposed broadened definition of the term “fiduciary” under the Employee 

Retirement Income Security Act. This expansion of the term “fiduciary” 

specifically seeks to protect beneficiaries of pension plans and individual 

retirement accounts by including those individuals, who give advice to either an 

employee benefit plan or to such a plan’s participants, in said definition and 

responsible to the resulting regulations. 

PIABA is a national, not-for-profit bar association comprised of attorneys, 

including law school professors and regulators, both former and current, who 

devote a significant portion of their practice to the representation of public 

investors in securities arbitrations. As a result, PIABA and its members take great 

interest in any action that seeks to alter investor protection. 

 PIABA generally supports the proposed regulation to the extent that it 

broadly defines who would be considered a fiduciary under ERISA. Specifically, 

we support the expansive definition of investment advice that will ensure that 

persons providing advice to both plan participants and beneficiaries are subject to 

the standards of fiduciary conduct. 

 Despite the aforementioned holistic support, PIABA would seek to revise 

certain particular exclusions still within the proposed expanded term “fiduciary.” 

The Department has requested specific comment on the following maintained 

position. Under the current definition of fiduciary status, as a general matter, a 

recommendation to a plan participant to take an otherwise permissible plan 

distribution does not constitute investment advice within the meaning of the 

current regulation, even when that advice is combined with a recommendation as 

2011 Officers 

Peter J. Mougey 

President

Ryan K. Bakhtiari 

Vice-President/ 

President-Elect

Jenice L. Malecki 

Secretary

Jason Doss 

Treasurer 

2011 Directors 

Ryan K. Bakhtiari 

California

Gail E. Boliver 

Iowa

Steven B. Caruso 

New York 

Jason Doss 

Georgia

Scott Ilgenfritz 

Florida 

William A. Jacobson 

New York 

Richard A. Lewins 

Texas

Jenice L. Malecki 

New York

Peter J. Mougey 

Florida

Joseph C. Peiffer 

Louisiana

Kirk Reasonover 

Louisiana

J. Pat Sadler 

Georgia

Scott R. Shewan 

California

Brian N. Smiley 

Georgia

Jeffrey Sonn 

Florida

Robin S. Ringo 

Executive Director
Public Investors Arbitration Bar Association 

2415 A Wilcox Drive Norman, OK 73069 Phone: (405) 360-8776 Fax: (405) 360-2063 

Toll Free: (888) 621-7484 Website: www.PIABA.org Email: piaba@piaba.org

to how the distribution should be invested. PIABA believes that the regulation 

should include this advice as investment advice. There is no reason to exempt this 

specific type of advice from the protections of the regulation. Notwithstanding the 

fact that this advice may be covered by other rules or regulations, retirement funds 

provide for the care of our aging population, and all available means should be 

employed to protect those funds. This type of advice is fraught with potential for 

abuse. Specifically in this situation, the individual offering the advice may be 

recommending that the plan participant take a distribution and inappropriately 

invest the money. This is precisely the type of advice the regulation should protect 

against. 

 As a whole, the adoption of the proposed amendment will increase investor 

protection through its broadened scope of fiduciaries and the resulting standards to 

which the affected advisors shall be held. Accordingly, PIABA requests that the 

Department adopt the proposed amendment; however, in the adoption process, 

PIABA maintains that additional amendments that would protect the investing 

public in the interest of the current regulation should be considered. We thank you 

for the opportunity to comment on this proposal. 

Respectfully submitted, 

PUBLIC INVESTORS ARBITRATION 

BAR ASSOCIATION 

/s/ 

Peter J. Mougey 

President 

Mr. Mougey’s Contact Information: 

Peter J. Mougey 

Shareholder/Chair, Securities Department 

Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. 

316 S. Baylen Street, Suite 600 

Pensacola, FL 32502 

Telephone: (850) 435-7068 

Facsimile: (850) 436-6068