George Michael Gerstein

George Michael Gerstein advises financial institutions on the fiduciary and prohibited transaction provisions of ERISA. As co-chair of the fiduciary governance group, he assists clients with tracking, and understanding, the numerous fiduciary developments at the federal and state levels, including the rules and regulations of governmental plans. He also advises clients with respect to the fiduciary duty implications of ESG investing.

Bill Mandia on Latest DOL Fiduciary Rule Intervention Attempt

When the Fifth Circuit finally entered its mandate and judgment on June 21, 2018 “vacat[ing] the Fiduciary Rule in toto”, the DOL’s fiduciary rule, as a matter of law, officially became a dead letter.  But on remand, the United States District Court for the Northern District of Texas created a narrow opening through which, in theory, the parties who unsuccessfully sought to intervene in the Fifth Circuit could make yet another attempt to save the fiduciary rule.  Specifically, the district court issued an Order on June 28, 2018 requiring any party seeking “further relief” to notify the court by July 12, 2018.  The court further stated that “[i]f no notice is received, the case will be dismissed with prejudice and without further notice.”  The District Court did not specify any “further relief” that it believes could be sought, but the court may want to determine whether the unsuccessful attempted intervenors in the Fifth Circuit will file a petition for a writ of certiorari with the United States Supreme Court.  The deadline for the attempted  intervenors to do so is July 31, 2018.

The odds that the Supreme Court would grant certiorari to the attempted intervenors are extremely long because, among other reasons, the petitions to intervene were not well founded, as the Fifth Circuit recognized.  Nevertheless, the parties, including the DOL, in Thrivent Financial for Lutherans v. R. Alexander Acosta, et al., U.S.D.C. Minn., Civ. A. No. 16-cv-03289, have asked the United States District Court for the District of Minnesota to continue a previously entered stay in that litigation pending the July 12 deadline set by the United States District Court for the Northern District of Texas.  While it is highly unlikely that a petition for certiorari by the attempted intervenors will succeed, they may nonetheless seek further review as noted by the parties in Thrivent Financial.  It is important, however, to keep in mind that the fiduciary rule should still be deemed vacated, even if a petition for certiorari is filed, because the Fifth Circuit’s mandate remains effective absent a stay, which seems extremely unlikely at this point.  We will have a further update on June 12 regarding whether the attempted intervenors respond to the North District of Texas’ Order.

Asset management fees continue downward trajectory

A recent Cerulli report points to the continuation of fee compression.

Happy Fourth of July from the Fiduciary Governance Group

WSJ: Bond Managers See ESG as Risk Management

George Michael Gerstein to Compliance Reporter: Likely a ‘Holding Pattern’ for Now on Compensation Changes in Wake of Fiduciary Rule Sunset

Clayton floats possible extension of standard of conduct proposal comment period

Jim Podheiser on state of play re. prohibited transaction exemption relief for investment advice

“With the DOL’s fiduciary rule and the new and amended exemptions associated therewith (the “Rule”) officially vacated, many are wondering about the implications of the DOL’s last statement of its (and the IRS’) temporary enforcement policy (FAB 2018-02).  In the absence of the Rule we are back to the old “5-part test” for determining whether one is an investment advice fiduciary.  If one is an investment advice fiduciary under the 5-part test, the temporary enforcement policy would seem to provide what is the equivalent of a prohibited transaction exemption that did not exist prior to the Rule (for example, to permit the investment advice fiduciary to receive third-party compensation assuming the “impartial conduct standards” are satisfied).  Whether the DOL would agree with this analysis in all cases and how long this temporary enforcement policy will be maintained remains to be seen.”

State enforcement remains risk in wake of DOL Fiduciary Rule sunset

FX, Meet ESG

Record Currency Management, a currency manager, has signed on to the UN Principles for Responsible Investment, broadening the types of assets classes incorporating ESG factors. We are seeing growing interest among fixed income and real asset managers, as well. Coverage of this development can be found here. 

Live Blogging: Chicago Chief Compliance Officers Gathering

Larry Stadulis, Sara Crovitz, and Alan Goldberg joined me in explaining the SEC standard of conduct release to a gathering of chief compliance officers in Chicago! We discussed a number of the key issues associated with the proposed Interpretive Release applicable to RIAs, and described our “stoplight” schematic on how broker-dealers are affected by Reg BI. We also got everyone up to speed on the various state developments. It was great spending the week here meeting so many great people.