It's official: DOL fiduciary rule is dead

OMB Approves 18-Month Fiduciary Rule Delay, With ‘Change’

AUGUST 29, 2017

Originally published by ThinkAdvisor.

The delay must now be finalized by Labor Department

The Office of Management and Budget approved on Monday the 18-month delay for the more onerous provisions of the Labor Department’s fiduciary rule.

The OMB approval, which usually takes 90 days, took less than a month.

The office listed its action as “Consistent with Change,” which means OMB “had to make some changes as a result of the review, but not with the length of the extension because the title is the same,” says Fred Reish, partner in Drinker Biddle & Reath’s employee benefits and executive compensation practice group in Los Angeles. OMB likely had to “make changes to the economic analysis and maybe the length of the comment period.”

The delay must now be finalized by Labor.

Steve Saxon, partner at Groom Law Group, said that with the OMB review finalized, Labor will now release a proposed rule in the Federal Register with a comment period of no longer than 30 days.

“We do expect the delay to go through,” Saxon told ThinkAdvisor on Tuesday. “We think [Labor is] going to propose the extension and do a very short comment period and then approve it.”

And firms are waiting eagerly for that approval.

“People need confirmation that the delay will go through so they can hold off on the buildout of their systems and software and the like, which is very expensive,” Saxon said. “They don’t want to do that if there are going to be changes to the rule … recordkeepers and other retirement service providers are desperate for confirming of the delay.”

Labor Secretary Alexander Acosta told a Minnesota court on Aug. 9 that Labor had filed with OMB to delay the applicability date on three of the rule’s exemptions from Jan. 1, 2018 to July 1, 2019.

Labor proposed amendments to three exemptions, which were all approved by OMB:

  • The best-interest contract exemption, which opponents of the rule argued is the contract that would spark a slew of class-action lawsuits;
  • Class exemption for principal transactions in certain assets between investment advice fiduciaries and employee benefit plans and IRAs; and
  • Prohibited Transaction Exemption 84-24 for certain transactions involving insurance agents and brokers, pension consultants, insurance companies, and investment company principal underwriters.

“DOL is cognizant that the industry needs certainty on whether the deferred requirements will commence on Jan. 1,” said George Michael Gerstein, a lawyer with Stradley Ronon, a law firm in Washington that helps financial firms deal with regulators, in an email. “At this point, clarity is paramount.”

It's official: DOL fiduciary rule is dead

DOL Seeks 18-Month Delay of Fiduciary Rule

DOL Seeks 18-Month Delay of Fiduciary Rule

DOL Seeks 18-Month Delay of Fiduciary Rule








By John Hilton – InsuranceNewsNet – August 9, 2017

The Department of Labor moved today to delay phase two of the controversial Obama-era fiduciary rule by 18 months.

Documents (ß Notice of Administrative Action)were filed today with the Office of Management and Budget to delay phase two from Jan. 1, 2018, until July 1, 2019. The OMB will review the submission for publication in the Federal Register, which, barring any complications, makes the delay official.

Phase one of the DOL rule took effect June 9. It requires advisors and agents to act as fiduciaries, make no misleading statements and accept only “reasonable” compensation.

Still, opponents are far more concerned with phase two rules that establish a class-action right to sue under the Best Interest Contract Exemption. The BICE will be required to sell fixed indexed and variable annuities beginning Jan. 1, 2018.

In addition, the DOL said the delay will apply to two other exemptions, PTE 84-24 and PTE 2016-02. The latter exemption applies to advice to individual retirement accounts and employee benefit plans.

Potential Changes

As for potential changes during the delay, Bradford Campbell said last month that the BICE is likely to be weakened. Counsel at Drinker Biddle & Reath. Campbell previously led the DOL department responsible for the fiduciary rule during the Bush administration.

The BICE requires significant disclosures, and a signed contract with the client. That contract forms the basis of litigation liability.

Removing the class-action lawsuit from the BICE is a good possibility, Campbell said, basing his opinion on statements the DOL has made so far. If the class-action right isn’t scratched, it will cause problems in the courts, he predicted.

A delay will make even more likely the DOL and the Securities and Exchange Commission end up working together on a fiduciary standard the industry can live with, Campbell added.

It's official: DOL fiduciary rule is dead

Who Is Winning With the Fiduciary Rule? Wall Street

Who Is Winning With the Fiduciary Rule? Wall Street

Who Is Winning With the Fiduciary Rule? Wall Street








For now, the rule is setting money in motion

By Lisa Beilfuss – The Wall Street Journal – August 11, 2017

The brokerage business fiercely fought the new retirement advice rule. But so far for Wall Street, it has been a gift.

The rule requires brokers to act in the best interests of retirement savers, rather than sell products that are merely suitable but could make brokers more money. Financial firms decried the restriction, which began to take effect in June, as limiting consumer choice while raising their compliance costs and potential liability.

But adherence is proving a positive. Firms are pushing customers toward accounts that charge an annual fee on their assets, rather than commissions which can violate the rule, and such fee-based accounts have long been more lucrative for the industry. In earnings calls, executives are citing the Department of Labor rule, known varyingly as the DOL or fiduciary rule, as a boon.

“Primarily because of DOL” and market appreciation, assets are growing in fee-based accounts, said Stifel Financial Corp. Chief Executive Ronald Kruszewski, on a call in July. In an interview, he said such accounts can be twice as costly for clients.

Morningstar Inc. has said $3 trillion in tax-advantaged retirement savings are at stake, but some firms say even more is in play, as policies and marketing filter to nonretirement accounts.

For some consumers, a fee-based account could make economic sense. Such accounts can also come with more services, and they theoretically align a broker’s interest with that of the client. Some customers are negotiating discounts on the fees they pay, and some are moving to lower-cost firms, data suggests and industry executives say.

“Whether it’s in clients’ best interest is unclear,” said Steven Chubak, an analyst at Nomura Instinet. But the fiduciary rule is ”incentivizing firms to accelerate conversions“ to fees from commissions, he said, and “certainly the amount charged on a fee-based account versus a [commission-based] brokerage account is higher.” The push is speeding up an industry trend toward fees, which offer more predictable revenue that commission-based accounts.

“They are crying crocodile tears,” said Phyllis Borzi, a former Obama administration official who was an architect of the rule, referring to complaints from financial firms on the rule. That administration had said conflicted advice was costing individuals $17 billion a year and 1% in annual returns, figures that critics dispute.

The full effect of the rule remains to be seen. It has only partially gone into effect, with the Trump administration considering significant changes, including adjustments designed to lower compliance costs. Earlier this week, the Labor Department proposed delaying the rule’s compliance deadline by 18 months, a move that experts say suggests revisions are in the offing.

Even some benefiting from it still fault it, including Mr. Kruszewski from Stifel, whose business is largely based on commissions and who has said the rule limits choice.

For now, the rule is setting money in motion.

Bank of America Corp.’s Merrill Lynch has embraced the rule, even running an ad campaign around the idea of fiduciary advice. The firm, which for years has promoted fee-based accounts, last year gave its more than 14,000 brokers more flexibility to cut fees for clients moved onto its advisory platform without a reduction in their own pay. A big investment in adviser technology several years ago has aided the process by making it easier for advisers to convert brokerage accounts to fee-generating advisory accounts.

At Bank of America’s global wealth unit, which includes Merrill Lynch, fee-based assets rose 19% from a year earlier to $991 billion in the second quarter, or to 38% of client assets. More than two-thirds of Merrill’s advisers now have at least half of their client assets under a fee-based relationship, the firm said. The firm is also moving some clients to its online, commission-based “Merrill Edge” platform.

Morgan Stanley , meanwhile, has taken a different tack. Unlike Merrill, which has largely eliminated commissions in retirement accounts, Morgan Stanley has lowered commission costs to aid compliance with the regulation’s “reasonable compensation” standard. It, too, is rolling out a new computer-driven “robo” advisory tool.

For Morgan Stanley, fee-based assets grew 17% from a year earlier to $962 billion in the quarter, representing 43% of overall money in the wealth unit. On Morgan Stanley’s earnings call in July, finance chief Jonathan Pruzan credited the rule in part for gains in fee-based assets. “The Department of Labor’s fiduciary rule has contributed to these fee-based flows,” he said, and “revenues continue to grow with fee-based assets.”

Observers also note that market performance has helped drive assets higher, regardless of account type.

Discount brokers, which traditionally have catered to investors seeking to manage their own investment accounts and pay per transaction, also may gain business.

TD Ameritrade Holding Corp. said net new client assets in the latest period climbed to a record $22 billion from $13.6 billion a year ago. “The DOL fiduciary rule is driving a lot of momentum,” said Chief Executive Tim Hockey.

At Charles Schwab & Co., clients in the first half of the year brought roughly $2 to Schwab for every $1 that they moved from Schwab to a competitor, including traditional brokerage firms, the company has said. In dollar terms, that is about an 86% improvement from a year earlier. In the latest quarter, Schwab’s new retail brokerage accounts climbed 36% from a year earlier.

The fiduciary rule also is supporting the shift to lower-cost index funds that seek to match market moves instead of beat them, observers say, due to the rule’s requirement that brokers justify an investment’s costs.

Laurence Fink, chief executive of indexing giant BlackRock Inc., on the most-recent earnings call attributed “accelerated” flows partly to the fiduciary rule.

Other changes stemming from the fiduciary rule could hurt over the longer term. Aside from compliance costs and increased potential liability, products such as higher-cost mutual funds face pressure from lower-cost passively managed funds, said Devin Ryan, a JMP Securities analyst. The move away from such products could bring down the profitability of fee-based accounts over time, he said.

For now, though, the growth in these accounts have been another positive for Wall Street’s advisory businesses.

“The wealth-management business is almost like a yield stock,” James Gorman, Morgan Stanley’s chief executive, said on the firm’s latest earnings call. “So you can imagine the dividend coming out of wealth-management earnings.”