It's time Washington gives a clear signal on the fiduciary rule

The Office of Management and Budget (OMB) completed its meetings with retirement plan industry stakeholders this week, and many anticipate an imminent announcement of a delay to the April 10 compliance deadline of the U.S. Department of Labor’s (DOL) fiduciary rule. A series of mixed messages over the last few weeks has created a cloud of uncertainty for the regulated community, and all parties would be best served by an immediate and definitive announcement. Adding to the cloud of uncertainty are recent signals that the anticipated delay of 180 days may be shortened to 60 days.

No matter what decision is made, it is hard to argue against the underlying principle that financial professionals provide advice in the best interest of their customers when advising retirement plan participants and individual retirement account (IRA) owners, which will help protect American investors. Many retirement plan investors probably assume that their advisers are required by law to provide investment advice in their best interest already.

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It is important to note that a delay does not necessarily mean the rule will be rescinded. The recent U.S. district court decision in Texas on challenges to the rule is clearly a significant setback for organizations that had hoped to have it blocked or rescinded, particularly those most impacted, such as brokers, anyone in the IRA rollover business, and anyone that offers or sells fixed indexed annuities or variable annuities.

 

But the context and precedent of such a decision are valuable to understand here. In the case of the Texas decision, plaintiffs handpicked the jurisdiction believing that their chances for success would be improved because of its business-friendly reputation. However, the court rejected the attack on the fiduciary rule and issued the third ruling on this topic favoring the DOL.

Moreover, the court appears to have attempted to address some of the directives to the DOL in the presidential memorandum that require the agency to reevaluate the impact of the rule, and also seemed intended to postpone its implementation.

The circumstances are similar to those when President Obama took office and delayed a pending participant investment advice rule that had not yet gone into effect. After an initial temporary delay, that rule was eventually withdrawn and replaced by Obama appointees at the Labor Department.

Where the circumstances are technically different, however, is that with the fiduciary rule, the DOL took a novel approach by making it “effective” last year, even though after the effective date, nothing changed because compliance was not mandated until the April 10 “applicability date.”

It is not uncommon for the effective or applicability date for rules of similar magnitude to the fiduciary rule to be delayed when the regulated community is unable to comply in time after making diligent efforts to do so. Historically, the DOL would wait until shortly before the compliance date approaches before issuing a delay. However, many in the regulated community have been expressing a need for more time, including organizations that support the best interest standard.

The DOL has mandated a very aggressive compliance deadline for the rule. This is especially true because with any new rule, particularly one as comprehensive as this, there are always issues that come up during implementation. And while many organizations are fully prepared for compliance, others may benefit from additional time. The possible delay will provide a good opportunity for further deliberation about and clarification of the rule.

The stakes are much higher now than before with the participant investment advice rule, which did not impact organizations that did not wish to adhere to it. In contrast, the pending fiduciary rule will impact virtually every retirement plan service provider who interacts with plan participants regarding investments, including all financial adviser and brokers.

So despite the conflicting messages and emotions about the fiduciary rule, it seems that the Trump administration is not blazing a new trail by wanting to review a DOL regulation when such rule has not yet technically been implemented.

While the different constituencies within the retirement plan community will dispute the technical aspects of the rule — because they are consternate over the uncertainties that expose service providers to potential enforcement and litigation risk — and those whose products and services are less viable or appealing under the rule will claim that it is not needed, it is hard to argue that financial professional should not be required to act in the best interests of their clients.

So the clock is ticking. The regulated community would be well served by having the cloud of uncertainty cleared with an immediate announcement about a delay so that they are not faced with spending more time, money and resources trying to comply with specifics of a rule that may ultimately be modified, if not repealed.

Larry Goldbrum is senior vice president and director of ERISA fiduciary services in the retirement strategies group of Reliance Trust, a company of FIS, the world's largest global provider dedicated to financial technology solutions. He previously served as the executive vice president and general counsel for the SPARK Institute.


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