Alert April 15, 2008

DOL Issues Advisory Opinion on Indicia of Ownership Requirements for Offshore Pooled Funds

The Department of Labor (the “DOL”) recently issued Advisory Opinion 2008-04A under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  This advisory opinion addresses ERISA’s indicia of ownership requirements in the context of The Northern Trust Company’s “Multinational Cross-Border Pooling Products” or “MCBPPs.”  The DOL stated that when the MCBPPs, which are offshore pooled investment vehicles utilized by multinational corporations to hold and invest assets of U.S. and non-U.S. benefit plans on a commingled basis, are deemed to hold “plan assets” subject to ERISA, ERISA’s indicia of ownership requirements must be satisfied.  In this regard, the DOL noted that a U.S. bank’s foreign branch that is not a separate legal entity and that is subject to regulation by U.S. state or federal banking agencies constitutes a “U.S. bank” for purposes of Section 404(b) of ERISA.