Displaying items by tag: fiduciary rule

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.

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.

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.

Western International Securities Inc., which is the first broker-dealer to be sued by the SEC for alleged violations of its Regulation Best-Interest fiduciary rule, is expected to spend at least $1 million on its defense. The broker-dealer is accused of failing to meet its fiduciary obligations by selling $13.3 million in high-risk, unrated junk bonds that were not in the best interest of retirees and other risk-averse retail customers. Western said it plans to “actively defend” itself against the SEC’s allegations. Brian Rubin, a partner at Eversheds Sutherland LLP, estimated that Western’s legal fees will cost anywhere from several hundred thousand dollars to well over $1 million. He believes that it’s likely that the SEC demanded too much to settle due to it being its first Reg BI enforcement case. Since the conduct took place after the effective date of Reg BI in June 2020, the SEC brought the charges under Reg BI as opposed to its predecessor suitability standard. 

Finsum: Western International Securities is expected to spend at least $1 million on attorney fees as it fights the first Reg BI lawsuit.

Legal experts are predicting there could be an expansion coming to the DOL fiduciary. Partners at Faegre Drinker are expecting a proposal in the next quarter or two which would label one-time advisors involved in retirement rollover or IRA assets to be labeled fiduciaries. One time advice-givers particularly those trying to establish a relationship would now be labeled as fiduciary advice. Reporters reached out to the Department of Labor but they did not respond to a request for a comment about the change. However, legal federations are expected to challenge the further expansion of the DOL fiduciary classification.

Finsum: This would be a major change to the DOL Fiduciary rule and could really impact advisors trying to gain clients.