In Advisory Opinion 2013-01A (February 7, 2013), the Department of Labor (DOL) issued an important advisory opinion addressing the treatment under the Employee Retirement Income Security Act of 1974, as amended (ERISA), of cleared swap transactions conducted pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) or otherwise, to which an ERISA plan is a party.
In brief, pursuant to the Dodd-Frank Act, ERISA plans, as financial entities, will be required to clear certain over-the-counter swaps (i.e., not executed on an exchange) at a “derivatives clearing organization” (DCO), as required by Commodity Futures Trading Commission (CFTC) regulations, via futures commission merchants that are members of the relevant DCO (Clearing Members). (ERISA plans could also voluntarily elect to clear certain swaps.) Upon acceptance of the swap by the DCO for clearing, the original swap between the parties is extinguished and replaced by two equivalent swaps between the DCO and each of the original counterparties. In the event of default by one of the parties to its Clearing Member, the defaulting party’s cleared swap contract with the DCO may be liquidated, and collateral posted by it as margin may be sold to pay off losses suffered in the account. In certain circumstances, the Clearing Member or DCO is also authorized to engage in offsetting or other risk-reducing transactions with respect to a party’s account.
Retirement plans are regular and sophisticated users of swap contracts in their investment portfolios. These plans are also regularly subject to the fiduciary responsibility and prohibited transaction rules of ERISA or the Internal Revenue Code. A concern had arisen about the potential ERISA consequences of the participation by retirement plans in mandatory clearing, including whether a Clearing Member could be deemed an ERISA “fiduciary,” subject to ERISA statutory obligations to act exclusively for a retirement plan in a manner fundamentally inconsistent with its obligations as a clearing member.
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