As industry awaits what insiders say is an imminent delay of the Labor Department’s fiduciary rule, one consultant says many financial institutions are planning to keep compliance protections in place even if the rule is ultimately dismantled.

“A number of our clients are saying they don’t intend to turn back,” said Jason Roberts, CEO of the Pension Resource Institute and a founder of the Retirement Law Group, which represent upwards of 90 financial institutions, accounting for 100,000 investment professionals.

He and other consultants have received credible information that the Trump administration will release several directives that would delay the rule’s implementation date anywhere from 60 days to a year.

One alleged directive will instruct the new leadership at Labor to delay the rule until private litigation has run its course in three federal courts.

Another will instruct Labor to propose a one-year delay, which would be subject to a notice and 14-day comment period.

Yet another directive reportedly instructs Labor to withdraw the rule and rewrite it in consideration of another comment period.

If a delay does come, service providers, brokers, and insurance agents will be able to continue to operate as they have, selling commission-based investments without having to use the rule’s Best Interest Contract Exemption.

They will also be able to advise retirement savers on rollovers from 401(k) plans without being contractually obligated to give advice in the best interest of savers.

But Roberts does not expect a wholesale return to the status quo if the rule is delayed and ultimately rewritten.

“Many are saying they will continue to train and supervise advisors to the higher standard of care the rule creates, leaving safeguards in place to comply,” said Roberts.

In doing so, institutions can assure they are going above and beyond what the Securities and Exchange Commission and FINRA require to manage conflicts of interest, he said.

While some portion of the industry appears ready to embrace a higher standard in the event of a delay, most are not willing to do so under contract, according to Roberts.

Most institutions plan to work under the five-part fiduciary test that existed prior to Labor’s rule, which did not consider one-time advice on IRA rollovers and a one-time recommendation of a third-party manager to be fiduciary acts.

A few of the firms Roberts consults with will adopt the rule’s more stringent standards on rollover, distribution and third-party recommendation advice in spite of a delay. Firms willing to fully implement the rule are hoping to leverage marketing and recruiting opportunities.

“It will be interesting to see how many other firms are taking this approach,” said Roberts. “If the majority of the industry goes this direction, then those who don’t might not only be subject to competitive pressures--both with respect to clients and advisor recruitment--but also may begin to be viewed as outliers by FINRA and the SEC.”

Some questions answered, some raised in latest technical FAQ

In its last formal action regarding the fiduciary rule, the outgoing Obama Labor Department issued a 35-question technical FAQ addressing service provider and financial institution compliance requirements under the rule.

The FAQ reiterated how the rule distinguishes advice from education, and other areas that have been readily interpreted by industry.

It also provided a number of useful clarifications, and raised new questions by interpreting the rule in an “unhelpful manner,” said Kent Mason, a partner at Davis & Harman who advises plan sponsors and service providers.

“Both the helpful FAQs and the unhelpful ones underscore one fundamental point— the April 10 applicability date is even more unrealistic than it was before,” said Mason, who has testified before Congress as to the unworkability of the rule.

The FAQs address guidance on record-keeper recommendations, call center recommendations to increase deferrals in order qualify for company matches, and questions about fee offsets to compensate 401(k) plan advisors, among other technical questions.

Where helpful, the guidance is “woefully late,” said Mason.

Worse, new questions raised in the FAQ will require service providers to alter compliance plans. That further underscores the necessity of the delay the Trump administration is considering, he said.

Mason noted what he said was an ambiguous answer on so-called free-dinner seminars offered by financial institutions, and whether such marketing events qualify as education seminars.

And Labor’s clarification that an insurance agent is a fiduciary when recommending life insurance on required distributions from a 401(k) contradicts language in the rule, because the recommendation is on assets that were required to be distributed, and reside outside of a qualified retirement account, explained Mason.

BenefitsPro asked several large service providers if the technical FAQ was enough to sufficiently prepare record-keeper call centers for the fiduciary rule’s April 10 implementation date.

Only Fidelity responded to requests for comment, saying the firm was still reviewing the information in the FAQ.

A request for comment from the Labor Department as to whether it has sufficiently supplied stakeholders with the information necessary to comply with the April 10 deadline was not returned.

The genie's out of the bottle

Legal experts have told BenefitsPro that the Trump administration will have to write a new rule if it wants to change the existing one.

That may mean addressing how the rule redefines investment advice, and what the rule considers to be a prohibited transaction.

Roberts reminds that both a fiduciary standard and prohibited transactions have existed for more than 40 years under the Employee Retirement Income Security Act.

While there may be ways to make the BIC Exemption more functional, Roberts thinks the Trump administration will be bound by the rule’s intention to protect retirement investors’ best interests.

“We believe the genie is out of the bottle,” he said. “It will be difficult for the new administration, from a PR and political perspective, to water down the rule significantly, but there may be some ways to appease all sides by lessening the burdens associated with the BIC Exemption.”

Instant Insights /

Even if DOL fiduciary rule is delayed, many firms preparing to serve as fiduciaries

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