Wealth Management


For the last couple of months it has been pretty easy to assume that the new version of the DOL’s fiduciary rule would not have nearly as heavy a hand as the first iteration. Most have thought it would likely sing to the same tune as the SEC’s best interest rule. One of the integral reasons for this view is that the DOL is now under the leadership of Eugene Scalia, son of Antonin Scalia, the former of which is one of the top securities lawyers in the country and long a fierce critic of the fiduciary rule. However, a major new development this week—Scalia says he may have to recuse himself from the whole fiduciary rule process because of federal ethics rules. Scalia was part of the lawsuit that defeated the rule last year, which is the reason for the recusal.

FINSUM: It now seems very likely that Scalia won’t be leading this process, which means it is commensurately more likely the DOL rule 2.0 could be much tougher than expected.

(New York)

It has been a decade in the making, but it finally, unceremoniously, happened. The AUM in passive investment vehicles, like ETFs, has finally overtaken that in actively managed ones, like mutual funds. As of August 31, money in passive funds totaled $4.27 tn, just a touch higher than the $4.25 tn in actively-managed funds. In a good summary of the overall change in landscape, the Wall Street Journal says “That shift lowered the price of investing for individuals, reduced the influence of stock pickers and turned a handful of Wall Street outsiders into the biggest power brokers in the industry”.

FINSUM: Every advisor reading this column knows exactly why this happened, but it is nonetheless a landmark moment. It is also perhaps a warning sign—which side is driving the market?


It feels like a complete repeat of the DOL’s fiduciary rule. With less than a year to go until implementation (June 2020), the SEC’s new Regulation Best Interest has just entered legal limbo. Perhaps even more worrying than the recent lawsuit from seven states is the fact that leading industry figure Michael Kitces’ firm, XY Planning Network, has just sued the SEC in New York to help block the rule. Kitces is trying to build on the FPA’s legacy of defeating regulators, such as it did in 2005 with the “Merrill Lynch rule”. It is highly unclear what the ultimate outcome of these suits might be, which means brokerages are having trouble committing resources to comply with them.

FINSUM: The chances that this rule gets implemented in its current form seem small, which means it that it is unwise to invest too much into compliance at this point. Everyone still has a bad taste from the money spent complying with the defunct DOL fiduciary rule.

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