Why the New DOL Fiduciary Rule Is Scarier Than Ever

It’s again!

Simply once we thought the endless saga of market conduct requirements is perhaps coming to decision, the federal company that may by no means take “no” for reply is again at it.

And identical to any good horror flick, the U.S. Division of Labor’s new fiduciary rule bundle is scarier than ever. Whereas it might seem to be we’ve seen this film earlier than, there are key variations with this sequel and we can not assume the identical ending.

In 2010, DOL premiered its preliminary fiduciary proposal, which was quickly retracted after a poor reception. DOL’s primary characteristic till now was its 2016 fiduciary rule, which was finally shot down by the courts.

DOL’s 2020 steerage on rollovers or “fiduciary lite” was principally nullified by a federal court docket in Florida whereas the rest hangs within the stability in a lawsuit filed by the group I lead, the Federation of People for Shopper Alternative. In late 2023, the DOL unveiled — on Halloween with no sense of irony — the most recent formulation of this Nightmare on Foremost Road regulation.

Invoking the specter of “junk charges,” the DOL seeks to embroil the monetary companies trade in one more spherical of turmoil and lawsuits.

DOL retains resorting to the identical script, which is to show all brokers and brokers into fiduciaries as a result of apparently there’s a lack of regulation round an trade that’s in any other case awash in regulatory necessities. This isn’t meant to be cynical however displays exasperation with the DOL’s 15-year fixation on extending its regulatory energy via fiduciary responsibility.

‘Plot Twists’

But this time round there are a few plot twists.

For one, this time the DOL is attempting to overtake PTE 84-24, altering it in basic ways in which threaten the essential enterprise mannequin of unbiased distribution. Not solely does DOL wish to flip each agent and dealer right into a fiduciary, it additionally needs to impose on them an untested regime of regulation beneath amended PTE 84-24 which is essentially unworkable for these brokers working with a number of corporations representing a wide range of merchandise.

This reconstituted PTE 84-24 shuns the Securities and Change Fee’s Regulation Greatest Curiosity and the Nationwide Affiliation of Insurance coverage Commissioners’ mannequin regulation in favor of recent necessities that drive brokers and brokers to declare they’re fiduciaries, strangulates many types of compensation, makes insufficient allowances for the function of unbiased advertising and marketing organizations, and imposes draconian supervisory obligations upon insurers.

It ought to ship chills up the spines of brokers and IMOs who cherish their independence and present means of doing enterprise.

The opposite frightful concern is how the DOL is accelerating adoption primarily for political causes.  The DOL’s expansive rule bundle — almost 500 pages containing a rewrite of the longstanding five-part check, overhaul of PTE 84-24, and modifications to different PTEs — is on a quick monitor.

The DOL rule bundle had a brief 60-day remark interval and its proposed efficient date is a mere 60 days after promulgation of the ultimate rule.

This stands in distinction to the 2016 rule, which was accompanied by prolonged remark durations along with post-adoption short-term enforcement durations and a smart two-year transition. This time round, the DOL makes use of the pretense that these are previous points and the trade is ready when in truth what DOL is proposing radically alters accepted enterprise practices and can be extremely disruptive.

In view of those developments, FACC reckons solely the courts can cease the DOL, despite the fact that appreciable assist abides in Congress and different regulatory authorities share in criticism of  DOL’s encroachments.

FACC introduced its lawsuit difficult the PTE 2020-02 steerage on rollovers as a result of it knew then — and believes it has been vindicated since — that DOL is possessed by a wrongheaded notion that each one salespeople are fiduciaries. By no matter means, the DOL seeks however one finish, which is to show on a regular basis brokers and brokers into fiduciaries.