Interesting Angles on the DOL's Fiduciary Rule #80

Is the New Fiduciary Rule Enforceable During the Transition Period? (Myth #5)

This is my 80th article about interesting observations concerning the Department of Labor’s (DOL) fiduciary rule and exemptions. These articles also cover the DOL’s FAQs interpreting the regulation and exemptions and related developments in the securities laws.

This is another in my series of articles about myths concerning the Fiduciary Rule. This article deals with the “myth” that the fiduciary rule will not be enforced during the transition period. As the word “myth” suggests, that’s not correct.

As background, the Department of Labor said that it will not, under appropriate circumstances, enforce the requirements of the fiduciary regulation and prohibited transaction exemptions (and, particularly, the Best Interest Contract Exemption [BICE]):

Accordingly, during the phased implementation period from June 9, 2017 to July 1, 2019, the Department will not pursue claims against fiduciaries who are working diligently and in good faith to comply with the Fiduciary Rule and applicable provisions of the PTEs [Prohibited Transaction Exemptions] or treat those fiduciaries as being in violation of the Fiduciary Rule and PTEs.”

The IRS has agreed to abide by that non-enforcement policy.

At first blush, that could be interpreted to be a free pass for compliance until the transition period ends on July 1, 2019. However, it would be a mistake to read it that way. The DOL went on to say:

At the same time, however, the Department emphasizes, as it has in the past, that firms and advisers should work “diligently and good faith to comply” with their fiduciary obligation during the Transition Period. The “basic fiduciary norms and standards of fair dealings” are still required of fiduciaries during the Transition Period (citations omitted).

As a result, we know that there is a “line in the sand” and crossing that line could result in DOL enforcement. However, we don’t know quite where the line is. Elsewhere, though, the DOL has said that it expects financial institutions (for example, broker-dealers and RIA firms) to develop policies, procedures and practices which are designed to ensure that advisors do not succumb to conflicts of interest and do not make recommendations that are not in the best interest of retirement investors. As a result, it would be poor risk management for broker-dealers and RIAs to provide investment advice to plans, participants and IRAs (“retirement investors”) without having adopted appropriate policies, procedures and practices . . . and then supervising compliance with those policies, procedures and practices. Stated slightly differently, there is a risk that the failure to take those steps could result in the DOL finding that a broker-dealer or RIA had not worked “diligently and in good faith” to comply with the fiduciary rule and the PTEs.

So, the first lesson is that the non-enforcement policy does not give a free pass during the transition period. Instead, there are expectations about good faith efforts to comply with the Impartial Conduct Standards and about the adoption and application of policies, procedures and practices to mitigate the effects of conflicts of interest and incentive compensation.

A second enforcement risk is that private claims by investors can be made under the fiduciary rule and the prohibited transaction exemptions. It is clear that, for advice to plans and participants (which would include, for example, recommendations of rollovers), there is a private right of action under ERISA. In other words, for advice to plans and participants, ERISA’s remedial provisions apply even during the transition period. As a result, while DOL and IRS enforcement may be limited, private claims can be filed on behalf of fiduciaries and participants.

The issue is somewhat more complex for claims of fiduciary breaches and failures to satisfy the PT exemptions for IRAs. However, it is likely that claimant’s attorneys will be asserting fiduciary claims with creative theories. For example, if an advisor with a broker-dealer engages in a prohibited transaction (that is, receives compensation from a third party, such as a mutual fund, or otherwise makes recommendations that affect the level of his or her compensation), the broker-dealer and advisor would need the benefit of a prohibited transaction exemption—probably BICE. That creates a Hobson’s choice. If the broker-dealer defends itself by saying that it was not claiming the benefit of the BIC exemption (and, therefore, was not bound by the Impartial Conduct Standards, including the best interest standard of care), that defense is effectively an admission of the commission of a prohibited transaction. On the other hand, if the broker-dealer responds by claiming the benefit of the exemption, the broker-dealer is agreeing that it is bound by the Impartial Conduct Standards. While neither of those may be explicit claims available to claimants, those choices can put financial institutions and their advisors in difficult positions.

Finally, there may be claims by state regulators. For example, the State of Massachusetts recently filed a claim against a broker-dealer on the basis that it violated its policies and procedures concerning sales contests. Those policies and procedures were developed as a result of the DOL’s Fiduciary Rule and prohibited transaction exemptions. In other words, the claim was not that the broker-dealer violated the Impartial Conduct Standards, but instead it violated its own policies and procedures, which were developed in order to comply with the those Standards. (By the way, individual investors and their attorneys could also assert claims on that basis.)

What does this mean? It means that the fiduciary “waters” are treacherous. It means that advisors and their financial institutions should re-double their efforts to provide documented advice that is in the best interest of retirement investors. The easiest way to avoid difficulties is to comply with the new rules.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.