Just when it finally felt like it was gone, the fiduciary rule appears to be back from the dead. Not only is the DOL working on a new version to be debuted in 2019, but it is reportedly enforcing the current version intensely. According to ThinkAdvisor, “attorneys with Drinker, Biddle and Reath report that both the Labor Department and Securities and Exchange Commission are leveraging enforcement initiatives at a historic level of tenacity”. Fred Reish, top industry lawyer concurred, saying “Now that the fiduciary rule has been terminated, I think the focus at DOL is more on enforcement”. In terms of how the DOL is opening up investigations, a partner at Drinker, Biddle & Reath says that “They start with ‘hello, we are the DOL, show us how you do ERISA,’ and from there take a very broad based approach”.
FINSUM: We are confused by what is going on at the DOL. Following Trump’s appointment of the new chief at the DOL there seemed to be a hands-off approach being adopted (e.g. not pushing the rule further in court). Now everything seems to have reversed. Stay tuned.
In what we think might be the worst case scenario for the industry, it is looking like the DOL and SEC are in a full scale partnership to regulate the wealth management industry. With the DOL’s announcement that it is taking another crack at the fiduciary rule, and its guidance that it would issue a new rule in September 2019 (the same month the SEC says it will debut an updated best interest rule), many insiders now expect that the DOL and SEC are working together to craft a comprehensive package of fiduciary regulations. According to Fred Reish, a top industry lawyer, “It appears that DOL and the SEC have coordinated their agendas so that the SEC's rules can be incorporated into a new exemption for prohibited transactions resulting from non-discretionary fiduciary advice”.
FINSUM: Some think this is a good sign, but more partnership between the regulators means a more diverse set of rules to adhere to. Further, there will inevitably be significant gaps between the different agency rules, leaving a lot of doubt and grey area, which causes headaches for anyone trying to play by the rules.
In what arrives as fairly shocking and quite alarming news, the DOL rule is coming back. After being effectively killed seven months ago, the DOL rule had all but disappeared. However, in an unpredictable turn of events, the DOL has announced it is working on a new version of the rule that will be debuted in 2019. The DOL released in its fall agenda that is was working on an updated rule in light of the 5th circuit court’s ruling, and that this would be debuted in Fall 2019. One prominent industry lawyer comments that “With both DOL and the SEC working on investor protection rules (and with both agencies targeting the same deadline), this hints that the two agencies may be working together to develop coordinated rules to protect American savers”.
FINSUM: A new DOL rule? Just when everyone thought we were past it! We expect this will be a toned down rule compared to the first version, however.
In what seemed an attention-grabbing and worrying story, it appears that the DOL and SEC rules are merging into some sort of hybrid, but not in the way you might think. Despite the DOL rule being effectively dead due to a court ruling, the DOL seems to be pressing ahead and is planning to modify its Conflicts of Interest rule to mirror the SEC’s new language in its BI rule. “It’s the DOL and the SEC trying to end up in the same place in terms of regulation”, says a senior policy official.
FINSUM: While this is not as worrying as if the SEC were trying to mirror the DOL, it does seem like the DOL is pressing ahead with the regulation. Perhaps we have not heard the last of the fiduciary rule?
The SEC received over 6,000 comment letters in its public comment period for its new best interest rule. The regulator is currently reviewing those, but the big question is what is the rule’s implementation timeline? A top director at the SEC recently declined to comment on a timeline, saying “We are in the process of going through comments to see what changes if any we should be recommending”, but refused to give a date.
FINSUM: The anecdotal evidence and chatter we are hearing is that the SEC is going to try to move quickly to finalize and implement this rule. Stay tuned.
In a sign of just how wide-reaching the coming SEC Best Interest rule truly is, FINRA has just acknowledged that the Suitability Rule might be on the chopping block. FINRA’s Suitability Rule requires that brokers choose a product suitable for their client, but is a weaker standard than the proposed BI rule. “If [Regulation Best Interest] is adopted, then we would need to look at our rule set to see if any changes are appropriate … For example, is our suitability rule appropriate? But that is down the road. We need to see how Reg BI is adopted”, says Robert Cook, the CEO of FINRA.
FINSUM: This is not really a surprise, as the BI rule would basically make the Suitability Rule redundant. However, it is certainly a wake up call that things are changing quickly.