“Advisory Opinion Asks DOL to Rule Contrary to Statute. What Next?”

We understand there has been one formal request to the U.S. Department of Labor ("DOL") – with copies to several members of Congress – to inquire as to the extent to which, if any, the underlying assets of mutual funds registered under the Investment Company Act of 1940 ("40 Act") could constitute "plan assets" under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). 

We firmly believe that there is little merit to the request and that nothing has changed to suggest that mutual funds regulated under the 40 Act have or should somehow become subject to ERISA.  Nevertheless, we circulate this Stroock Special Bulletin both to make readers aware of this inquiry and to address it head-on to avoid any potential confusion to clients and friends of the Firm to the extent this may already have come to their attention.