The Regulatory Agendas for the U.S. Securities and Exchange Commission (SEC) and Department of Labor (DOL) were recently issued. Both have plans for guidance by September of 2019, but the anticipated timing of the guidance has, by and large, been misinterpreted. To understand what I mean, read on.
The SEC’s Agenda said that Final Action on the Regulation Best Interest proposal for broker-dealers and the Interpretation of Standard of Conduct for investment advisers would be “09/00/2019.”
Similarly, the Department of Labor Agenda said that there would be a final rule on the “Fiduciary Rule and Prohibited Transaction Exemptions” with the date of “09/00/2019.”
Let’s start with the dates. For those inclined towards conspiracy theories, it was interpreted to mean that the DOL and SEC were conspiring to issue combined and comprehensive new fiduciary/best interest rules. But that doesn’t make any sense. While the two regulators are certainly communicating with each other, that doesn’t mean that there is behind-the-scenes plotting and planning.
Another interpretation was that the SEC and DOL were both going to issue guidance in September 2019. But that’s not right either. This is the short-term agenda for the government fiscal year that ends in September 2019. The September dates just mean that both regulators are planning on getting out their guidance during the upcoming government fiscal year.
Here’s my bet on what the dates will really be. Based on meetings with the SEC, it appears that Reg BI and the RIA Interpretation are moving along towards completion. That probably means that the final rules will be completed near the end of the first quarter or early in the second quarter of 2019. There will then be a delayed implementation date. That could be January 1, 2020, or even later, e.g., one year after the final rule is published.
As a word of warning, though, the SEC takes the position that most of the guidance in the RIA Interpretation reflects the Commission’s view of the current requirements for RIAs. There are only three true proposals in the Interpretation and none of those deal with the standard of care.
What about the DOL? I believe that the DOL’s guidance will be sequential rather than concurrent. By that I mean that the DOL’s guidance will probably be, to a large degree, based on the SEC’s final rules. As a result, their guidance will follow the SEC’s, rather than being released at the same time.
I think the DOL guidance will, at the least, include a new class exemption to cover prohibited transactions resulting from nondiscretionary fiduciary investment advice. It would replace the joint DOL/IRS non-enforcement policy (Field Assistance Bulletin 2018-02). My best guess is that it would include, as some of its conditions, compliance with parts of Reg BI and perhaps even the RIA Interpretation. But I think that it will also include the Impartial Conduct Standards, that is, adhering to the DOL’s best interest standard, receiving no more than reasonable compensation, and making no materially misleading statements.
It’s less clear what the DOL plans to do about the fiduciary rule. There may be nothing. On the other hand, there may be some tinkering, for example, saying that a fiduciary under the securities law is also a fiduciary under ERISA. That would obviously cover RIAs. However, I don’t see any possibility that the Department would re-propose the vacated Fiduciary Rule or anything close to it.
Caveat: The future in unknowable. The educated guesses in this article are just that . . . “guesses.” But they are educated by experience and information. Don’t take them to the bank, but don’t toss them out either.
C. Frederick Reish is a partner in Drinker Biddle’s Employee Benefits & Executive Compensation Practice Group, chair of the Financial Services ERISA Team and a member of the Retirement Income Team. His practice focuses on fiduciary issues, prohibited transactions, tax-qualification and retirement income. Subscribe to his blog at http://fredreish.com/insight.
C. Frederick Reish is a partner in Faegre Drinker’s Benefits & Executive Compensation practice group, the Investment Management group, and the Financial Services ERISA Team. His practice focuses on fiduciary issues, prohibited transactions, tax-qualification and retirement income.
