COLLECTED WISDOM™ on the DOL and SEC Fiduciary Rules

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DOL May Not Have the Authority Over IRAs It Thinks It Has

Critics of the Retirement Security Rule argue that the DOL should not regulate rollovers between individual retirement accounts. They view these rollovers as a weak point in the rule, finalized in April. Legal experts generally agree that the DOL likely lacks the authority to impose fiduciary responsibilities under ERISA's Title I on IRAs. Kendra Isaacson, a former Senate pension policy director, notes that the DOL's jurisdiction is particularly questionable for rollovers not involving employer-sponsored plans, such as those between IRAs or from IRAs to annuities.

Source: Plansponsor.com, May 2025

DOL Gets 60 More Days to Decide Next Steps in Fiduciary Rule Lawsuit

U.S. Circuit Judge Catharina Haynes of the 5th Circuit Court of Appeals has granted the Department of Labor an additional 60 days to consider its options regarding two court cases challenging the 2024 Retirement Security Rule. This extension, which moves the deadline to June 16, 2025, was approved as the DOL requested more time to adapt to changes in presidential administration and to allow new DOL leadership to understand the litigation issues. The motion for the extension was unopposed.

Source: Planadviser.com, April 2025

Walberg Calls for DOL to "Rescind or Withdraw" Fiduciary Rule

This week saw another request for the rescission of the Department of Labor's contentious final fiduciary rule. Chairman of the House Committee on Education and Workforce, Rep. Tim Walberg, sent a letter to newly confirmed DOL Secretary Lori Chavez-DeRemer on March 19, urging her to "rescind or withdraw" the fiduciary rule established by the Biden-Harris administration's prior DOL leadership.

Source: 401kspecialistmag.com, March 2025

"America First Investment Policy" Calls for Updated Fiduciary Standards

The Trump administration issued a policy memo on February 21 directing the Secretary of Labor to establish updated fiduciary standards regarding investments in companies deemed as "foreign adversaries," particularly highlighting concerns about Chinese firms potentially using U.S. investments to develop technologies that could threaten national security. The memo instructs the DOL to revise fiduciary standards under ERISA concerning investment in public market securities of these foreign adversary companies, to safeguard U.S. investors' savings and promote American economic growth.

Source: Napa-net.org, March 2025

Judge Grants DOL Motion to Pause Fiduciary Rule Litigation

A federal circuit court judge has granted the DOL a 60-day pause on two cases challenging the fiduciary rule. This decision allows new DOL officials time to familiarize themselves with the issues before determining their course of action. The DOL requested this pause after the recent change in administration on January 20, 2025, as the new leadership is still onboarding and assessing the pending litigation.

Source: Napa-net.org, February 2025

President Issues Regulatory Freeze: Will the DOL Fiduciary Rule Saga Continue?

Since Donald Trump's inauguration on January 20, 2025, there has been a movement toward deregulation. On his first day, he issued a presidential memorandum called "Regulatory Freeze Pending Review," which functions similarly to an executive order. This freeze memo is particularly important as it could jeopardize the 2024 Retirement Security Rule, known as the fiduciary rule, which outlines the definition of investment advice fiduciary under ERISA. Since the fiduciary rule had not yet been implemented, the article reviews how the freeze memo will affect its progress.

Source: Carltonfields.com, February 2025

DOL Files to Pause Appeal of Fiduciary Rule

The DOL has filed a motion in the U.S. 5th Circuit Court of Appeals to pause its appeals in two cases regarding the DOL’s fiduciary rule. The DOL stated that the new administration and agency officials need time to understand the cases. The opposing parties, including the American Council of Life Insurers and the Federation of Americans for Consumer Choice, are not opposed to this motion. The DOL requested to put the appeals on hold and provide status updates every 60 days.

Source: Planadviser.com, February 2025

The Best Interest Process for Plan-to-IRA Rollover

The effective date of the DOL's updated definition of fiduciary advice and amendments to PTE 2020-02 is currently stayed due to ongoing lawsuits. However, advisers may still be deemed fiduciaries under the existing DOL fiduciary rule when making rollover recommendations, which requires compliance with the current PTE and adherence to a best-interest process. This article also outlines the similarities between the best interest process mandated by the SEC for rollover recommendations and the DOL's requirements. The article originally appeared in the Autumn 2024 newsletter of the Journal of Pension Benefits.

Source: Brokerdealerlawblog.com, January 2025

The 2024 Retirement Security Rule: What is Old is New Again

The DOL 2024 Fiduciary Rule, intended to replace the longstanding 1975 Regulation defining investment advice fiduciaries, has faced significant legal challenges. Now the political landscape following the recent election raises uncertainty about the DOL's commitment to continue with the appeal or withdraw it altogether. Depending on the new administration's approach, the 2024 Fiduciary Rule may face a fate similar to the 2016 rule, potentially reinforcing the precedent established by the Chamber case and complicating future efforts to redefine "investment advice fiduciary."

Source: Truckerhuss.com, January 2025

GAO Analysis Misrepresents Case for DOL Fiduciary Rule

The Government Accountability Office released a report supporting the DOL's Fiduciary rule, claiming that investors could lose significant sums by buying mutual funds through brokers, particularly highlighting that bundled funds (those compensating brokers) yield lower gross returns compared to unbundled funds. The Investment Company Institute expressed doubt about the GAO's findings, suggesting that performance differences are negligible and unrelated to the compensation structure. Further investigation using standard financial models confirmed this, indicating no significant difference in gross risk-adjusted returns between bundled and unbundled funds, thus disputing the claim that investors face substantial financial risks when purchasing mutual funds through brokers.

Source: Ici.org, December 2024

Industry Watchers Point to Fiduciary Rule, ESG, Markets After Trump Win

As of Wednesday morning, the U.S. financial services industry is bracing for potential changes under a Donald Trump-led Republican administration. This could impact various aspects of employer-sponsored retirement plans, particularly fiduciary standards and Department of Labor priorities. Matthew Eickman, chief legal officer for the Fiduciary Law Center, predicts that a Republican-controlled administration and Congress will likely reverse many of the Department of Labor's regulations established in the past four years, including the recent fiduciary rule abandoned during Trump's first term.

Source: Planadviser.com, November 2024

DOL Fiduciary Rule Update -- Where Are We Now and Best Practices for Retirement Investors: Podcast

This podcast features a "Lessons From The Front Lines" discussion focusing on the DOL Fiduciary Rule. The panel of experts, including Jason Berkowitz from the Insured Retirement Institute, David Kaleda from the Groom Law Group, and Jason Roberts from the Pension Resource Institute, will share insights on the current status of the rule, future developments, and best practices for firms regarding investment recommendations and services for retirement investors.

Source: Complianceincontextpodcast.com, November 2024

To Be a Fiduciary, or Not to Be a Fiduciary?

The fiduciary rule is gaining renewed attention following a survey indicating strong support for the DOL Retirement Security Rule among various types of financial advisors. The survey, which included over 230 advisors, revealed that there is a high consensus on the need for a fiduciary standard for insurance brokers providing retirement investment advice, with an average agreement score of eight. Fee-only advisors showed the strongest support, scoring 8.7, while hybrid RIAs and broker-dealer representatives rated their agreement at 6.8. David Lau, the survey's conductor, and CEO of DPL Financial Partners, noted a surprising finding: broker-dealers now advocate for a fiduciary standard, reflecting a significant shift in the industry's attitudes over the past 15 years, where commission-driven sales practices were more common.

Source: Investmentnews.com, October 2024

The New Fiduciary Rule: The Loper Bright Decision and What it Means for DOL Exemptions

In the context of the DOL's fiduciary regulation and its related exemptions, the Supreme Court's decision in Loper Bright Enterprises et al. v. Raimondo could have implications for ongoing litigation. While it may influence outcomes, it might do so in unexpected ways. The article explores this connection by examining the Department of Labor's Prohibited Transaction Exemptions 84-24 and 2020-02.

Source: Fredreish.com, October 2024

The New Fiduciary Rule: The Loper Bright Decision and What it Means for DOL Regulations

The Supreme Court's decision in Loper Bright Enterprises et al. v. Raimondo could potentially influence the litigation surrounding the validity of the DOL's fiduciary regulation and its related exemptions. While the impact is affirmative, it may not be as straightforward as expected. The article explores how the Loper Bright decision relates to the review of the DOL's fiduciary regulation.

Source: Fredreish.com, October 2024

The New Fiduciary Rule: What is a Best Interest Process?

The article outlines the expectations of different standard-setters regarding the development of best interest recommendations. Both the DOL and the SEC have consistent and rigorous requirements for creating these recommendations for ERISA-governed retirement plans, their participants, and IRA owners. In contrast, the National Association of Insurance Commissioners model rule is less demanding in this respect. The article elaborates on the essential requirements needed for a best-interest recommendation process.

Source: Fredreish.com, October 2024

Sen. Warren Issues Report to Boost Argument for Retirement Security Rule

Arguing that it provides evidence that supports the DOL's currently stayed Retirement Security Rule, Sen. Elizabeth Warren has released a report concerning industry activity she suggests the rule is intended to address. The report is based on an investigation that began in April 2024, shortly after the rule was issued. According to the report, the investigation found that conflicts are pervasive in the annuity industry, third parties often facilitate these conflicts, and insurers use complicated and opaque disclosures when discussing these conflicts.

Source: Asppa-net.org, October 2024

Senior DOL Official Defends Fiduciary Rule; Says Appeals Could Take Years

Ali Khawar, the Principal Deputy Assistant Secretary of Labor for EBSA, at the CFP Board's 2024 Connections Conference defended the Retirement Security Rule and noted that the Department of Labor will appeal the court decisions that have paused its implementation. Khawar explained that the Retirement Security Rule is an important priority for the DOL.

Source: Asppa-net.org, October 2024

The Retirement Security Rule Would Have Taken Effect This Week, Now What?

The Retirement Security Rule, currently stayed by two district courts in Texas, would have taken effect Sept. 23 for most of its provisions. Now what? Jason Roberts, CEO of the Pension Resource Institute, says that fiduciaries should follow the rules that are currently in effect while the Retirement Security Rule is in litigation, meaning the five-part test. In the event DOL is victorious in litigation, an outcome many consider unlikely, new compliance dates would be issued.

Source: Napa-net.org, September 2024

Texas Federal Court Judge Issues Preliminary Injunction Blocking DOL's New Fiduciary Rule

A Texas federal judge has issued a nationwide preliminary injunction blocking the DOL's new fiduciary rule, which classifies more retirement advisors as fiduciaries under ERISA. The DOL's rule was set to go into effect on September 23, 2024, until the Court issued its order in Federation of Americans for Consumer Choice, et al. v. Department of Labor, et al., which stayed the rule until further order of the Court.

Source: Hallbenefitslaw.com, September 2024

Last-Minute Appeal of Fiduciary Rule's Stay by the DOL

On September 20 -- three days before the rule's original effective date -- the DOL appealed to the Fifth Circuit for a reversal of the ruling by the U.S. District Court for Eastern Texas that temporarily suspended the implementation of the 2024 Retirement Security Rule, also known as the fiduciary rule.

Source: Asppa-net.org, September 2024

Regulatory Monitor: ERISA Update

In the article, Groom principal David Kaleda examines the DOL's 2024 fiduciary rule. He gives an overview of the rule and covers its potential impacts, examples of how the rule might apply, and when it is expected to go into effect.

Source: Groom.com, September 2024

DOL Seeks to Keep ERISA Investment Advice Regulations in Place

The DOL recently filed a reply brief in a lawsuit brought by insurance industry groups seeking to block new regulations that expand the definition of fiduciary under ERISA. In its brief, the DOL asked the Court to deny a motion for a preliminary injunction that would prevent the agency from implementing and enforcing the new regulations.

Source: Hallbenefitslaw.com, September 2024

The New Fiduciary Rule: Recommendations to Transfer IRAs (SEC)

Two Texas Federal District Courts have "stayed" the effective dates of the DOL's new fiduciary regulation and related exemptions. As a result, one-time recommendations to plans, participants, and IRAs will not be fiduciary advice for purposes of ERISA and the Internal Revenue Code. However, one-time recommendations are regulated by the SEC for broker-dealers and investment advisers and by state insurance departments for insurance producers. In this article, Fred Reish discusses SEC and SEC staff guidance on recommendations to transfer IRAs.

Source: Fredreish.com, September 2024

Stop and Go? The Fiduciary Rule and Forfeiture Suits: Podcast

The so-called fiduciary rule has been stayed and legal challenges regarding forfeiture reallocation are picking up. Nevin Adams and Fred discuss what you should be doing now.

Source: Napa-net.org, September 2024

New DOL Fiduciary Rule Stayed: What Advisors and Insurance Agents Recommending Rollovers Should Do Now

The stay of the new DOL fiduciary rule will remain in effect until the lawsuits challenging the rule are decided and appeals are resolved. In the meantime, the fiduciary status of advisors and agents will be measured under the current regulation's five-part test. However, in some cases, the application of that test could result, as this article explains, in apparent one-time recommendations being deemed to satisfy the five-part test. As a result, advisors, agents, and their firms should carefully consider where fiduciary status for retirement accounts may apply and, in those cases, should consider complying with the conditions of an applicable prohibited transaction exemption.

Source: Faegredrinker.com, August 2024

DOL's Fiduciary Rule: The Latest Developments

A financial professional that is an ERISA fiduciary engages in a prohibited transaction if the financial professional uses its fiduciary authority to generate additional fees for itself or a person in whom the financial professional has an interest that may affect its best judgment as a fiduciary. To address this risk, many financial professionals rely on PTE 2020-02. The Fiduciary Rule would have amended the exemption's conditions. Because of two recent court orders, parties relying on PTE 2020-02 should continue to comply with the current (non-amended) version of PTE 2020-02.

Source: Klgates.com, August 2024

The New Fiduciary Rule: The Regulation and Exemptions are Stayed. What Remains?

In the past two weeks, two courts have agreed to stay the effective date of the DOL's new fiduciary rule, pending the resolution of the cases. The next step will be for those courts to determine if the regulation and exemptions are valid or should be vacated. However, there are still compliance issues.

Source: Fredreish.com, August 2024

ERISA Attorneys Outline Next Steps, Actions Item After DOL Fiduciary Rule Stays

Industry reaction is pouring in as the DOL faces a grave setback in implementing its Retirement Security Rule this fall. Two legal challenges filed in Texas have stalled the fiduciary rule from its September 23 effect, with the second stay having been issued late last Friday night. Despite initial shock from the industry, the challenges aren't unexpected, nor staggering for advisors already in compliance with the current fiduciary regulation, according to Bonnie Treichel, ERISA attorney and founder of Endeavor Retirement.

Source: 401kspecialistmag.com, August 2024

The New Fiduciary Rule: The Regulation and Exemptions are Stayed

Shortly after the DOL's new regulation defining fiduciary advice and Amended Prohibited Transaction Exemptions 2020-02 and 84-24 were finalized, two lawsuits were filed in Federal District Courts in Texas. The lawsuits sought to "vacate", or overturn, the regulation and exemptions as being beyond the authority of the DOL. In addition, the plaintiffs requested that the courts "stay" the effective dates of the regulation and exemptions pending the outcome of the lawsuits. In the past two weeks, both courts have agreed to stay the effective dates, pending resolution of the cases. This article discusses the consequences of the stays for broker-dealers, investment advisers, and insurance companies.

Source: Fredreish.com, August 2024

Two Texas District Courts Issue Orders Delaying the Effective Date of DOL Fiduciary Rule

Orders issued by the Eastern District of Texas on July 25th and the Northern District of Texas on July 26th indefinitely delayed the September 23, 2024, effective date of the DOL's revised regulation defining when a party becomes an "investment advice" fiduciary and amendments to seven related prohibited transaction exemptions.

Source: Beneficiallyyours.com, August 2024

The Never-Ending Fiduciary Rule Story Continues

Following the U.S. District Court for the Eastern District of Texas's stay of the Final Rules and related amendments to PTE 84-24, the next day the U.S. District Court for the Northern District of Texas issued a broader stay that applies to all of the prohibited transaction exemption amendments related to the Final Rules. The Court found that the plaintiff insurance agents, in this case, were "virtually certain" to succeed on the merits of their claims to vacate the Final Rules and the related exemption amendments.

Source: Erisapracticecenter.com, July 2024

Another Federal Court Slams Fiduciary Rule

A federal judge in a second suit challenging the DOL's fiduciary rule has put a hold on the rule, one more comprehensive than its predecessor. This second suit was also filed in a Texas federal court, but a different one, and by different plaintiffs, albeit arguing similar issues with the DOL's Retirement Security Rule, led by the American Council of Life Insurers.

Source: Asppa.org, July 2024

Federal Judge Slams Brakes on Fiduciary Rule

A federal judge put a hold on the effective date of the DOL's new fiduciary rule. In ordering the stay, United States District Judge Jeremy D. Kernodle explained that "the 2024 Fiduciary Rule suffers from many of the same problems" that were found in the version vacated by the Fifth Circuit back in 2018.

Source: Asppa.org, July 2024

Texas Judge Puts DOL Fiduciary Rule on Ice

U.S. District Judge Jeremy Kernodle, of the U.S. District Court for the Eastern District of Texas, issued a preliminary injunction to freeze the DOL's Retirement Security Rule. The preliminary injunction had been requested by the Federation of Americans for Consumer Choice, which brought the suit along with several independent insurance agents.

Source: 401kspecialistmag.com, July 2024

The New Fiduciary Rule: Rollovers and the Insurance License Issue

The definition of investment advice in the regulation includes recommendations about "securities or other investment property" which includes life insurance with an investment component and annuities. Under both PTE 84-24 and PTE 2020-02, a compliant rollover recommendation generally requires the consideration of the investments, services, and expenses in the retirement plan. As a result, the question has been raised about whether an insurance-licensed only insurance agent can legally "consider" a plan's investments, as is required by the PTEs.

Source: Fredreish.com, July 2024

The New Fiduciary Rule: Qualified Annuity Exchanges

A fiduciary recommendation to exchange "qualified annuities" is subject to the new fiduciary rules. In this article, Fred Reish discusses the requirements in NAIC Model Regulation #275 and the similarities and differences between the Model Rule and the PTE requirements.

Source: Fredreish.com, July 2024

Republican Congressmen Rail Against Biden Administration's Fiduciary Rule

Saying the Biden Administration's "overly restrictive" fiduciary rule put forth by the DOL "will only complicate financial planning with burdensome overregulation," authors of the Congressional Review Act Joint Resolution of Disapproval recently introduced in the House and Senate seeking overturn the rule, this week contributed an op-ed in the Washington Examiner explaining their rationale.

Source: 401kspecialistmag.com, July 2024

Insurers Respond to DOL to Forward Fiduciary Rule Lawsuit

A group of insurers seeking to halt the DOL's Retirement Security Rule from taking effect has responded to a counter-filing by the regulator alleging that "changes" the department made from a 2016 fiduciary proposal are not enough to make the 2024 proposal viable.

Source: Planadviser.com, July 2024

The New Fiduciary Rule: The Fiduciary Acknowledgment

The Impartial Conduct Standards and the Fiduciary Acknowledgment disclosure are effective September 23, 2024. The remaining conditions in the PTEs are effective on September 23, 2025. This article discusses the fiduciary acknowledgment.

Source: Fredreish.com, July 2024

Lawsuit vs. ESG Investing in 401k Plans Marks Courts' First Test After Chevron Ruling

A lawsuit challenging a Biden administration rule permitting socially conscious investing by employee retirement plans will test the courts' approach to federal regulations following a pivotal Supreme Court decision. The New Orleans-based 5th US Circuit Court of Appeals will hear arguments from 25 Republican-led states opposing the DOL's rule on Tuesday, reported Reuters.

Source: Investmentnews.com, July 2024

Fiduciary Rule Fate Clouds in Wake of SCOTUS Chevron Doctrine Ruling

The U.S. Supreme Court's 6-3 decision last week in Loper Bright Enterprises v. Raimondo to overturn the Chevron doctrine -- a central doctrine of administrative law that had stood since 1984 -- could very well derail the DOL's Retirement Security Rule. The Court held that Chevron, which grants significant deference to agency interpretations of federal statutes, conflicts with the Administrative Procedure Act's command that courts, not agencies, are to "decide all relevant questions of law" and "interpret statutory provisions."

Source: 401kspecialistmag.com, July 2024

House Committee Vote on "Stop Biden's Fiduciary Rule" Set

A resolution to disapprove the DOL's "Retirement Security Rule" could come up for a full floor vote of the House of Representatives before long if a House committee passes the resolution during a vote on Wednesday in Washington, D.C.

Source: 401kspecialistmag.com, July 2024

The Retirement Security Rule: Designed for Permanency?

This article outlines the DOL's objectives and enhancements to the definition of fiduciary investment advice in the final rule, and how it differs from the proposed rule and the vacated 2016 fiduciary rule. It also discusses the final rule's potential impact on investors and investment professionals who are currently subject to the existing regulatory landscape. The article also addresses related prohibited transaction exemptions that form the regulatory package, and how the package aims to level the playing field and provide clear and equal application of fiduciary protections in rendering investment advice.

Source: Truckerhuss.com, July 2024

The New Fiduciary Rule: Confusion About Incentive Compensation

The DOL's fiduciary regulation will be effective on September 23 of this year. While some of the requirements of PTEs 2020-02 and 84-24 also become effective on September 23, others will not be effective until a full year later on September 23, 2025. Both PTEs have provisions limiting incentive compensation and some have taken that to mean that incentive compensation is prohibited. That is not the case.

Source: Fredreish.com, July 2024

DOL ERISA Fiduciary Changes

The DOL's new fiduciary rule significantly expands the circumstances under which a person could be treated as providing investment advice that is subject to the ERISA fiduciary standards. Until we have a final decision on the rule, as plan sponsors, you should review your service agreements and reach out to your financial service providers to ensure that they are planning on complying with the new rules, including full disclosure of any potential conflicts of interest when this is settled.

Source: Consultrms.com, July 2024

Could SCOTUS Chevron Decision Undermine Fiduciary Rule?

With far-reaching implications -- likely including the DOL's fiduciary rule -- the nation's highest court has set aside a long-standing judicial deference to federal regulators in interpreting the law. While the full implications will take time to emerge, it's almost certainly going to produce more litigation, and in the process, less certainty for advisors, plan sponsors, and recordkeepers trying to operate within those boundaries.

Source: Asppa.org, July 2024

CFP Board Backs DOL Fiduciary Rule in Federal Court

Writing in an amicus, the CFP Board cautions that "If the Court accepts Plaintiffs’ arguments, then this will leave open significant regulatory gaps that allow advisors to recommend financial products, including insurance products, that are not in the best interests of retirement investors, in contravention of [ERISA's] mandate to provide a high level of protection for retirement assets."

Source: Napa-net.org, June 2024

What Plan Sponsors Should Know About DOL's Final Fiduciary Rule

While the direct effect of the DOL's final fiduciary rule on plan sponsors appears modest, plan vendors may decide to modify their service models -- including associated fees -- and sales practices. This is a comprehensive review of the rule including implications for plan sponsors.

Source: Mercer.com, June 2024

DOL Files Counter-Brief to Retirement Security Rule Challenge

The DOL answered one of two open lawsuits in the federal courts challenging the Retirement Security Rule on June 14. The regulator's first response in court argued that the new rule is compliant with existing case law and is substantially different from a 2016 regulation that was vacated by the U.S. 5th Circuit Court of Appeals.

Source: Planadviser.com, June 2024

First Lawsuit Filed Against DOL Over New ERISA Investment Advice Regulations

Texas-based insurance industry plaintiffs, including a nonprofit trade group, have filed the first lawsuit to challenge the DOL's recently issued final regulations that broaden the definition of fiduciary under ERISA. The plaintiffs allege that the regulations exceed DOL's authority under ERISA, the Internal Revenue Code, and the Administrative Procedure Act. They also claim that the rule and transaction amendments violate the APA because they are arbitrary, capricious, and incompatible with ERISA and the IRC.

Source: Hallbenefitslaw.com, June 2024

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