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.”

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.

Fifth Circuit’s Ruling – Nationwide Effect

Per Bill Mandia, “I don’t see there being any question about the nationwide impact.  The Fifth Circuit determined that the DOL’s actions were not a proper exercise of its statutory authority.  That ruling should, under the Administrative Procedures Act, vacate the rule nationwide.  The mandate is drafted in that manner because it provides that the Fifth Circuit “vacat[ed] the Fiduciary Rule in toto.””