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Rules & Regulations

Handicapping How Fiduciary Rule Will Likely Play Out

February 10, 2017

With April 10th fast approaching, the financial services industry can only guess what will happen with the new Labor Department’s Fiduciary Rule.

 

The fiduciary rule, due to take effect April 10, is meant to ensure that advisers who work with tax-advantaged retirement savings put clients’ interests ahead of their own.

 

Here are some possible scenarios for how the review could play out.

 

DELAY.    Many experts say a delay in the regulation’s April 10 implementation deadline is likely as the Labor Department conducts its review. A draft of last week’s memo from the White House said the fiduciary rule’s implementation date would be put off by six months, but the final memo didn’t include specifics and left the call on a delay up to the department.

 

REVISION.    The Labor Department could reopen the comment period on the fiduciary rule to reassess the industry’s concerns, experts say, and could then under a new secretary rework the rule in a way that makes compliance less onerous. Mr. Trump’s pick to lead the department, Andrew Puzder, is set for a confirmation hearing next week.

 

A revised rule could potentially relax the requirements of an exemption that allows brokers and other financial advisers to continue business as usual if their clients sign a contract freeing them from strict fiduciary care. It also could potentially drop the private right of action - which allows for class-action suits - and instead require clients to take their adviser to arbitration in the event of disputes over conduct and investments. The rule’s review also could result in a carve-out of certain sales.

 

REPEAL.    Many experts say a repeal without replacement is an unlikely scenario, in part because the fiduciary rule is already a regulation, albeit one that isn’t yet being enforced. That reality makes it difficult for the administration to quash the rule without putting forth an alternative rule.

 

In the final days of Barack Obama’s presidency, the Labor Department issued a set of frequently asked questions targeting consumers that could help entrench the concept in the public’s mind. The market was already trending toward a higher standard of care, Mr. Oringer said, and some firms “will point to it as a marketing opportunity.”

 

Finally, a trifecta of court decisions upholding the fiduciary rule also makes it tougher for the new administration to altogether kill the rule.

 

CONGRESS OR SEC ACTION.    The legislative route remains a viable option, particularly if the implementation date is delayed as it would give Congress time to come up with a replacement. Late last year, after Mr. Trump’s presidential victory, Rep. Brad Sherman (D - CA), a member of the House Financial Services Committee, said he could conceive of a “pared-down rule that at least limits the size of commissions.” Such pay, which brokers and annuities sellers generate by selling investment products, can usher in conflicts of interest and is at the heart of the fiduciary rule.

 

Some experts say a delay would give the Securities and Exchange Commission an opportunity to produce a uniform standard that covers all savings, not just retirement savings. However, many say it would take at least a couple of years for the SEC to craft such a rule and give the industry time to comply.

 

Let’s have a show of hands. Would anyone mind waiting until 2019? Didn’t think so.