Is the third time the charm? In our most recent client alert, we take a look at how the Department of Labor's long-awaited fiduciary rule Proposal (the third one in about a decade) has been re-conceptualized. This time, more than ever before, the DOL Proposal is just one part of a larger standards of care puzzle, which includes the DOL Proposal, Reg BI and the Massachusetts Fiduciary Rule (which has an enforcement date of September 1, 2020). Our initial reactions focus on the expansion of the five-part fiduciary test; the Proposal's broader and more flexible relief, supplemented with disclosure; the strong emphasis on investor protection, which has the potential to insulate the Proposal from both litigation and political risk; the Proposal's explicit intention to not create a private right of action; and broader enforcement risk.
In this initial alert, we consider the Proposal in the context of Reg BI and the SEC examination program, particularly with regard to the DOL's coordination with and deference to the SEC. The next layer of analysis will include the Massachusetts Fiduciary Rule and how the intersection of Reg BI, the Massachusetts Fiduciary Rule and now the DOL Proposal impact broker-dealer firms and their relationships with clients.
The DOL's Proposal is a departure from the ERISA regime of prohibited transactions with narrow exemptions. Instead, the Proposal creates an exemption that builds on the impartial conduct standard, bolstered with disclosure and additional compliance obligations. In this way, the DOL permits financial institutions to continue to rely on existing controls put in place in reliance on Field Assistance Bulletin No. 2018-02, after the 2016 DOL fiduciary rule was vacated, and leverage the existing SEC framework for disclosure and controls under Reg BI and the Advisers Act. This Proposal demonstrates coordination and deference to the SEC.
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