SEC Division of Investment Management staff letter: Department of Labor

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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\ ~ - S -qs ,~~.~._~:~."'.." ' ' ' \ji~U\ßlmber t~"ltUtilitr- ~~ - ..~ The Honorable Olena Berg

Assistant Secreta
Pension and Welfare Benefit Adminstration
United States Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Dear Ms. Berg:
You have asked for our advice with respect to the status under the Investment Advisers Act of 1940 ("Advisers Act") of employer sponsors of defined contribution plans that provide certain types of investment-related inormation to employees who are participants in those plans. This question arses in the context of a draft Interpretive Bulletin (the "Bulletin") being prepared by the Deparment of Labor ("Department"), which describes various categories of investment-related inormation that employer sponsors may provide to their employees, and concludes that the information does not constitute "investment advice" as defined in the Employee Retirement Income Security Act of 1974 ("ERISA") and the rules thereunder. We understand that, if the inormation provided by the employer is deemed not to be investment advice, the employer would not be subject to the fiduciary standards imposed under ERISA by reason of providing that inormation to participants in a paricipant-directed defined contribution plan. You have asked us to confir that employers that provide their employees with investment inormation of the type