The Massachusetts Fiduciary Rule became effective on March 6, 2020, two weeks after adoption, but all eyes remained on the enforcement date of September 1, 2020. Just two months after the implementation date of the Securities and Exchange Commission's Regulation Best Interest, the Massachusetts rule's enforcement date now means that firms may be responding to two regulators rather than one. Furthermore, the Massachusetts Securities Division may be moving more quickly than the SEC (see statement by Secretary of State Galvin) in terms of assessing firms' compliance with the rule.
While the final version of the Massachusetts Fiduciary Rule aligns more closely to Reg BI than the proposal, there are some key differences between the two rule regimes, including the treatment of conflicts of interest, sales contests, and when an ongoing obligation is triggered. Furthermore, the intersection between the Massachusetts rule and the Department of Labor's recent proposal for a best interest class exemption raises additional concerns, particularly the question of whether a firm can be a fiduciary under ERISA and the Internal Revenue Code and still provide episodic advice under the Massachusetts Fiduciary Rule.
Amy Greer, a partner with the law firm Baker McKenzie, said on a webinar last week that she believed Massachusetts may try to move quickly on pursuing robust enforcement of the rule, which would not be out of line with the state’s previous approach on other rules.