Displaying items by tag: DoL
ESG Regulation Moving Forward
It appears that the Office of Management and Budget (OMB) has finished its review of a new rule on ESG investing in retirement plans. The regulation was submitted for review on October 6th to the White House’s OMB as “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights” in a “final rule stage.” “The rule implements Executive Order 13990 from January 20, 2021, titled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, and Executive Order 14030 from May 20, 2021, titled Climate-Related Financial Risks.” The rule was listed on the OMB’s review dashboard as of Friday but was removed over the weekend, suggesting that the review has now been completed. This means the Labor Department can now proceed with issuing the regulation.
Finsum:TheOffice of Management and Budget finished its review of a new rule on ESG investing in retirement plans which means that the Labor Department can now proceed with issuing the regulation.
New Fiduciary rule put on ice
Anyone say temporarily neutralized bucking bronco? John Elway? Nah. He’s moved on to other career opportunities.
Instead, despite attempts by the DOL to standardize fiduciary practices across financial professionals, they’ll remained sidelined until at least Q1 2023, according to forbes.com.
Stemming partially from two active and related legal cases, the regulation – aimed at creating a universal fiduciary guidance standard – probably will be tabled again. At least that’s the burgeoning consensus among retirement professionals.
Under the Trump presidency, the DOL released PTE 2020-02 in December 2020, according to worldnewsera.com. As a result, investment advice fiduciaries could receive payment linked with rendering fiduciary investment advice, including advice on rolling over the account of a participant in an employment retirement plan to, for example, an IRA.
That was in the aftermath of the Fifth Circuit Court of Appeals decision to overturn the fiduciary rule in 2018 from the Obama administration. The court not only cited it was “unreasonable”, it was said the execution of the rule by the DOL amounted to “an arbitrary and capricious use of regulatory power.”
Within the retirement plan sector, in the aftermath of the 2020 election, many thought the Trump administration’s rule would be deep sixed. Instead, while emphasizing it would review the five part criteria and – if it saw the need – implement changes, the Biden administration allowed it to go into force.
New Fiduciary Rule Facing Another Delay
According to retirement industry experts, the new DOL Fiduciary Rule is not expected to be released until the first quarter of 2023 due to two ongoing and related legal cases. The rule, which aims to create a universal fiduciary guidance standard for financial professionals, was previously expected to be released in December. The original Fiduciary Rule proposed under the Obama administration, was overturned by the Fifth Circuit Court of Appeals in New Orleans citing that the DOL's execution of the rule amounted to "an arbitrary and capricious use of regulatory power." Under the Trump presidency, the DOL released PTE 2020-02 in December 2020, allowing investment advice fiduciaries to receive payment in connection with rendering fiduciary investment advice. The Biden administration allowed that regulation to proceed and was expected to be published next month. However, the Federation of Americans for Consumer Choice (FACC) filed a lawsuit in federal court in Dallas claiming that the DOL does not have the jurisdiction to enlarge the list of advisors who are required to serve as fiduciaries for pension savings. Another lawsuit was filed by The American Securities Association in a federal court in Florida arguing that the rule breached the regulations requiring a period of public input.
Finsum:The release of the new Fiduciary Rule is facing additional delays as the DOL fights two separate, but related lawsuits.
DOL Claims Fiduciary Rule Lawsuit Lacks Standing
The Department of Labor has asked a Texas federal judge to toss a fiduciary rule lawsuit brought by a group of licensed independent insurance agents and the trade group Federation of Americans for Consumer Choice Inc. The agents and the trade group had sued the agency in February arguing that a December 2020 DOL regulation advances policies that the Fifth Circuit invalidated in 2016. Their complaint alleges that the 2020 rule illegally expands the definition of an Employee Retirement Income Security Act fiduciary. The plaintiffs moved for summary judgment in July asking the court to vacate the new interpretation of the law. They reasoned that the rule allows the DOL to "rewrite and expand" the definition of a fiduciary, much in the same way that the Fifth Circuit had ruled against it. The DOL, in a recent memorandum, said the plaintiffs adopted "several extreme positions" to conflate a 2016 agency rule with a newer version from 2020 and that they distorted Fifth Circuit precedent.
Finsum:The DOL asked a federal judge in Texas to toss a fiduciary rule lawsuit against the agency that claims its 2020 regulation advances the same policies that the Fifth Circuit invalidated in 2016.
ACLI Supports Challenge to Fiduciary Rule
The American Council of Life Insurers (ACLI) has put its support behind a lawsuit challenging the Labor Department’s subsequent guidance on the fiduciary rule. The ACLI is the nation’s largest life insurance trade association. The group added an amicus brief to an ongoing lawsuit by the Federation of Americans for Consumer Choices against the DOL. The suit, which was filed in March, claimed that agents “oftentimes make rollover recommendations for purchase of annuities to IRA owners and participants in employer-sponsored 401k and similar benefit plans, for which they receive commissions or other compensation from annuity issuers.” The concern is that these agents will be adversely affected by the DOL’s new interpretation of the Fiduciary Rule that categorizes their status as investment advice fiduciaries under ERISA. ACLI believes that the new interpretation would achieve the same outcome as the 2016 Fiduciary Rule, which was rejected in the Fifth Circuit court. ACLI was one of the lead plaintiffs in that decision.
Finsum:The American Council of Life Insurers has put its support behind an ongoing lawsuit against the DOL and their new interpretation of the Fiduciary Rule.