Rollovers are one of the key areas of focus for advisors within the new SEC Best Interest rule (“Reg BI”). This is not just because of their importance for advisors generally, but because there was still a good degree of uncertainty over how the new rule would be applied to the area. Recent edits to the rule clarify its application, and the results are likely to seem a little unfavorable, as they are more strict than previously. In the past, rollovers were only subject to Rule 2111 if securities were to be bought or sold in the plan. This left a bit of wiggle room. However, the new Reg BI has been modified and Rule 2111 now applies to any situation, regardless of whether securities are involved. Thus, rollover recommendations by broker-dealers are now completely governed by the best interest standard in all scenarios.
FINSUM: Not unexpected, but many were hoping for more flexibility. At least there is now confirmation.
Regulators might be about to really shake up the all important annuities market. The National Association of Insurance Commissioners, which is comprised of state level regulators, has just proposed a new suitability standard for annuities transactions. The new rule would require insurance brokers to act in the best interest of clients when recommending products. The specific wording used says that the insurance salesperson must act “without placing the producer’s or the insurer’s financial interest ahead of the consumer’s interest” and that they must “without placing the producer’s or the insurer’s financial interest ahead of the consumer’s interest”. Speaking about the rule, the NAIC says “It’s in harmony with what the SEC did but goes a little further in providing clarity as to what the conduct standard actually is”.
FINSUM: The annuities market has had some bad behavior so a clean up to give peace of mind to all involved is warranted, but this will likely mean big changes if it comes to pass.
Over the last month or so, the biggest risk for advisors in the regulatory space has been the reemergence of the fiduciary rule. The DOL is set to release a new version of the rule as soon as by the end of this year. While this caused anxiety in itself, the most worrying aspect has been that Eugene Scalia, new head of the DOL, appeared likely to have to recuse himself from involvement in the new rule-making process because of his involvement as a private lawyer with the first version of the rule. However, government ethics lawyers have just announced that after consideration of the situation, Scalia will NOT need to recuse himself and can take part in making a new rule.
FINSUM: This is a big win for those who do not want a new DOL rule, or at least not a new one that looks anything like the first version. Consumer advocacy groups are very upset about the decision.
Regulation Best Interest could be on the verge of being struck down in court just like the DOL’s Fiduciary Rule. A consortium of state attorney generals and fiduciary advisers has brought a consolidated lawsuit aiming to stop the rule. The case was rapidly dismissed by the Southern District of New York because of a lack of subject matter experience and it will now be heard by the 2nd Circuit Court. The plaintiffs are arguing that in its current form the rule does not meet the clear demands laid out in the Dodd-Frank Act.
FINSUM: The smart money is on the SEC prevailing, but we expect this will just be an opening salvo in a long legal battle over the rule.
Yes, you read the headline correctly. The original DOL rule—the one vacated by the courts in 2018—is seeing new life breathed into it. We are not talking about the DOL Rule 2.0 effort being led by Scalia and company at the DOL, we are talking about the Obama era proposal. So who is bringing the new rule back, or at least proposing to do so—Elizabeth Warren. In a little covered policy release earlier this month, Warren vowed she would restore the Fiduciary Rule (1.0). She wanted to bring back “The Labor Department’s fiduciary rule that the Trump administration delayed and failed to defend in court, so that brokers can’t cheat workers out of their retirement savings”.
FINSUM: Add this to the long list of CFPB-oriented measures Warren wants to enact if she wins the election. On a separate note, it is very annoying how politicians so casually call all brokers cheaters when it is really a small sample of bad actors.