SEC Staff Says ERISA Performance Info Complies; Filing Not Required
The staff of the Division of Investment Management has issued a no-action letter indicating that performance information delivered to 401(k) plan participants under ERISA need not be filed with FINRA and will be deemed compliant with the fund advertising rules. Rule 404a-5 of ERISA requires plan administrators to deliver comparative performance information to plan participants. Although the required information differs somewhat from the information required under Securities Act Rule 482 (requirements for fund advertising), the staff indicated that it would treat ERISA compliant materials as meeting the requirements of Rule 482. Moreover, plan administrators need not file the materials with FINRA.
OUR TAKE: It would have made more sense for the Department of Labor to incorporate Rule 482 by reference. Nevertheless, the staff made the right call by coordinating the regulatory efforts.