DOL

Wells Fargo reportedly drops plans to use T shares in retirement accounts

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.

White House retirement security announcement coming Friday

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.

George Michael Gerstein discusses additional DOL guidance and state activity with Investment Advisor magazine

I remarked to Melanie Waddell that the “nature and timing” of the promised DOL guidance in the aftermath of the Fiduciary Rule remains uncertain and discussed what we can expect from the states now that we have a better sense of where they may be going. The interview is in the August edition of Investment Advisor magazine.

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.

George Michael Gerstein interviewed by InvestmentNews on state enforcement risk

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.

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.

Asset management fees continue downward trajectory

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

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.

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

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.

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.”

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.

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.””

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.

The Fiduciary Rule: Gone, But Not Forgotten

With yesterday’s action by the Fifth Circuit Court of Appeals effectively unwinding the Department of Labor (DOL) Fiduciary Rule, financial institutions now only become investment advice fiduciaries to retirement plans subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA) and individual retirement accounts if they satisfy the original five-part test, a higher threshold (for becoming a fiduciary) to be sure. While the road to the Fifth Circuit officially vacating the Fiduciary Rule unnerved some, we urged calm, and believe that a measured approach continues to work best.

As a reminder, under the five-part test, one becomes an investment advice fiduciary under ERISA if he or she (1) provides advice as to the value of securities or other property, or makes recommendations as to the advisability of investing in, purchasing or selling securities or other property, (2) on a regular basis, (3) pursuant to a mutual agreement, arrangement, or understanding with the plan or a plan fiduciary, that (4) the advice serves as a primary basis for investment decisions with respect to plan assets, and where (5) the advice is individualized based on the particular needs of the plan or IRA.

With the Fiduciary Rule now just a memory, various firms’ fiduciary status is likely to change, particularly around rollover recommendations. Because of this, we continue to recommend:

  1. Inventorying the type and nature of typical communications with retirement investors (e.g., other fiduciaries, plan participants, IRAs, etc.) and tagging those that might no longer be fiduciaries under the five-part test.
  2. Identifying any representations, disclosures or statements regarding fiduciary status that were made in light of the Fiduciary Rule’s scope, which may at some point need correction.
  3. Re-examining what changes were made to internal policies and procedures to account for the Fiduciary Rule, particularly as state regulators have used non-compliance as a basis for blue sky law violations.
  4. Reconsidering any revisions to contracts in order to satisfy the DOL’s guidance on 408(b)(2) disclosures that it issued last August.
  5. Re-evaluating whether to continue excluding small plans and IRAs from investing in private funds, if that determination had been made to prevent a fund manager from inadvertently becoming an investment advice fiduciary to an IRA investor or small plan during the sales and subscription process.

But the DOL is not the only show in town. Fiduciary rulemaking over retail advice continues to evolve, as we highlight in the timeline below.

Timeline Fiduciary Governance Retail Investment Advice
(Click image to enlarge)

Firms continue to comb through the Securities and Exchange Commission’s (SEC) standard of conduct release. Investment advisers, for instance, may be seeking clarity from the SEC on its proposed Interpretive Release on the extent to which the adviser may satisfy its fiduciary duties through disclosure. Both broker-dealers and investment advisers are also considering the extent to which proposed Form CRS would help alleviate investor confusion.

The SEC also proposed (A) to require broker-dealers and investment-advisers to prominently disclose their registration status; and (B) to restrict standalone broker-dealers and their financial professionals from using the terms “adviser” and “advisor” as part of their name or title. These proposed changes are part of greater scrutiny by federal and state regulators over the titles financial professionals use that could confuse investors as to the nature of the relationship, which has been the focus of a number of state legislatures. Interestingly, the states are taking different approaches to title reform.

Various bills, including New York’s Investment Transparency Act, which either attempt to impose fiduciary status and other heightened obligations on federally-regulated broker-dealers and investment advisers or seek enhanced disclosure of whether a firm is acting in a fiduciary capacity, are advancing. Some of these bills interplay with the SEC standard of conduct release with the prospect that the risk associated with these bills will not be known until the SEC finalizes its standard of conduct release, assuming SEC Chair Jay Clayton can garner enough votes from his fellow commissioners.

The Fiduciary Rule may be gone, but it hasn’t been forgotten. Investor confusion over fiduciary status and conflicts of interest have the attention of the SEC and the states.

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.