The fiduciary rule saga presses on. Just when it looked like it was all over and the DOL had finally avoided its own rule, the court battle is not over. A new group of state attorney generals has just asked the to be allowed to appeal the fifth circuit court’s ruling against the DOL rule. California, Oregon, and New York have all asked for a rehearing of the court’s May 2nd decision to deny their request to step in as defendant. In their appeal, the states said “The federal government is no longer pursuing this appeal … Given that posture, the exceptional importance of the issues, and the grave harm the states will suffer as a result of the panel opinion — billions of dollars in lost retirement income to their residents and tens of millions of dollars in lost tax revenue — the states respectfully request that the court reconsider the decision”.
FINSUM: This is dragging on so long it is even getting annoying to report on! This does not seem likely to be granted, but one can never be sure.
The saga of the fiduciary rule seems to be never ending. Odysseas had an easier time. Now, just when things were starting to look clear—the DOL rule is effectively gone and the SEC has proposed a new one—everything is murky again. A senior figure, Michael Piwowar, at the SEC has just resigned. According to InvestmentNews, “Mr. Piwowar’s departure could significantly delay a rulemaking that already was projected to last for months — or make it impossible to complete”. Piwowar was a major ally of SEC chief Clayton, and now there are an equal number of Democrats to Republicans on the SEC commission. Trump could try to replace Piwowar and Democrat Kara Stein (whose term has lapsed) all at once, but the Senate would need to fast track approval.
FINSUM: Even if everything gets fast-tracked by Trump, the Senate needs to get the approval done, and that very well may not happen soon, especially because the Democrats might take the Senate back.
One of the senior-most figures at the SEC, Michael Piwowar, who has been a commissioner for five years, has just announced he will step down from his post after July 7th. The resignation has massive implications for advisors because Piwowar has been a strong opponent of the DOL version of the fiduciary rule and has generally been very pro de-regulation. His stepping down will leave just four commissioners active, two of whom are Democrats. This means the new SEC version of the fiduciary rule, universally seen as more accommodating to the industry, might have some severe difficulties in getting approved, as the Democrats are likely to vote against its implementation.
FINSUM: So in order to alleviate this risk, the White House and Senate would need to move quickly to nominate and approve a new commissioner/s. Nonetheless, this remains a major risk.
On Friday we reported that the DOL had let its deadline for asking for an appeal to its fifth circuit court loss pass. That meant the DOL could no longer challenge the ruling and was effectively letting the rule die. However, the AARP, as well as the states of California, Oregon, and New York, had all requested the court to let them stand in as defendants in an appeal. After about a week of time in limbo, the court has now denied all the requests, meaning case-closed, the DOL’s fiduciary rule is no more.
FINSUM: The DOL rule is so dead, that even the Consumer Federation of America, which was a major champion of it, has said it is now just focused on getting the best version of an SEC fiduciary rule.
Ding, dong, the fiduciary rule is dead. As was widely expected, the Department of Labor missed its deadline this week to file for an appeal of the fifth circuit court ruling against its fiduciary rule. That means that the ruling given by the fifth circuit court, which vacated the rule, now stands, leaving the rule is all but dead. However, other bodies, including the AARP and the states of California, New York, and Oregon, have all applied to stand in as defendants in the case. None of these requests have been processed yet.
FINSUM: So it will be very interesting to see whether the fifth circuit court approves these requests, especially considering it was so adamantly against the rule.