DISGORGEMENT CLAIMS CONTINUE TO CONFOUND COURTS IN ERISA CLASS ACTIONS

Courts continue to be split over the availability of disgorgement and “accounting for profits” in ERISA class actions involving in-house investment plans. On March 3, 2017, in Brotherston v. Putnam Investments, LLC, No. 1:15-cv-13825-WGY (D. Mass. March 3, 2017), the court declined to resolve the dispute at the summary judgment stage, allowing the certified class of employees to move forward with their claim that the company should be forced to disgorge profits earned from defendant’s in-house 401k plan.  Previously, the court denied defendant’s motion to dismiss this claim.

This decision is in contrast to recent decisions in other courts. In Urakhchin v. Allianz Asset Management of America LP, 2016 U.S. Dist. LEXIS 104244 (C.D. Cal. Aug. 5, 2016), plaintiffs brought claims against fiduciary and non-fiduciary defendants involved in the plan under Section 502(a)(3) 29 U.S.C. §1132(a)(3). The court granted the non-fiduciary defendant’s motion to dismiss plaintiffs’ disgorgement claim, finding that the plaintiffs failed to allege that any of the money sought to be disgorged could be traced to particular funds in those defendants’ possession.

Relying in part on the Urakchin decision, the court in Moreno v. Deutsche Bank Americas Holding Corp., 2016 U.S. Dist. LEXIS 142601 (S.D.N.Y. Oct. 13, 2016), likewise held that plaintiffs could not state a claim for disgorgement and accounting of funds against the defendants, which included both fiduciary defendants and defendants whom the court determined Plaintiff had not sufficiently pled as fiduciaries.  The Moreno plaintiffs asserted that they were only seeking “an accounting of profits” under 29 U.S.C. section 1132(a)(3) and that therefore the traceability requirement did not apply.  The court held, however, that because the complaint failed to limit the request for equitable relief to an accounting, and the plaintiffs did not allege facts to meet the traceability requirement, the claim should be dismissed.

More recently, in Wildman v. American Century Services, LLC, 2017 U.S. Dist. LEXIS 31700 (W.D. Mo. Feb. 27, 2017), the court held that plaintiffs had sufficiently met the traceability requirement by alleging that the payments in question were “traceable to specific transactions that have been taken on specific dates.”  The court noted that the complaint alleged that the non-fiduciary defendant employer, American Century, had actual or constructive knowledge of the circumstances that rendered the transactions unlawful.  Accordingly, the plaintiffs were allowed to proceed with their disgorgement claim against both fiduciary and non-fiduciary defendants.

The upshot is that in some of these cases, the reason for the dismissal appears to turn on fiduciary status. In the Urakhchin and Moreno cases, the claims were asserted by non-fiduciary parties alone.  As the Urakhchin court explained, accounting and disgorgement claims are claims for equitable relief, but claims seeking these remedies against non-fiduciary parties are generally considered legal (i.e., not equitable) claims.  As a result, the court required tracing.

On the other hand, in both the Wildman and Putnam cases, the disgorgement claims were asserted against fiduciary and non-fiduciary parties (in Putnam, Plaintiff argued that all defendants were fiduciaries, but the employer/plan sponsor defendant and its CEO are disputing that claim in their pending motion for summary judgment), but the courts do not appear to have drawn distinctions based on fiduciary status.

DOL Announces Temporary Enforcement Policy and Proposes to Extend Application of Rules Under Best Interest Contract Exemption by 60 Days

In response to a February 3, 2017 memorandum by the President to the Secretary of Labor, on March 2, 2017, the DOL proposed to extend for 60 days the applicability date for final rules on the Best Interest Contract Exemption (the “BIC Exemption”), the Principal Transactions Exemption, certain other prohibited transaction exemptions, and the definition of who is a “fiduciary” under ERISA and the Internal Revenue Code.

The final rule defining a “fiduciary,” promulgated on April 8, 2016, significantly broadened the class of persons treated as fiduciaries with regard to an employee benefit plan by including persons who provide investment advice or recommendations regarding plan assets in exchange for compensation. Administrative class exemptions from the prohibited transaction rules provided very specific rules that broker-dealers, insurance agents and investment advisors were required to follow in order to avoid engaging in prohibited transactions, which if engaged in would subject them to excise taxes and civil liability. Together, these “Rules” have been viewed as over-reaching and burdensome by the investment advisor and financial services communities. Plan sponsors and fiduciaries commonly viewed the Rules as one more plan administration due diligence “headache.”

By Notice published on March 10, 2017, the DOL also announced a temporary enforcement policy on the Rules. The extension and temporary enforcement policies materially impact employers, plan fiduciaries and financial service providers, who were concerned that confusion as to the effective date of, in particular, the BIC Exemption, would cause significant issues with inadvertent non-compliance and breaches of fiduciary duties in ERISA plan administration.

In the March 2nd publication, the DOL proposed to extend for 60 days the Rules that are otherwise applicable on April 10, 2017. The new applicability dates are proposed to be extended from April 10, 2017 to June 9, 2017 for, specifically, the fiduciary rule, the BIC Exemption, the Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs, and Prohibited Transactions Exemptions (“PTEs”) 84-24, 86-128, 75-1, 77-4, 80-83, and 83-1.

The DOL temporary enforcement policy of March 10, 2017 provides that:

• If the proposed rule providing for a 60-day extension of the applicability dates of the Rules becomes final, the DOL will not initiate enforcement action against an investment advisor or financial institution due to non-compliance with the Rules during the “gap” period between the original applicability date of April 10, 2017, and the date the DOL issues a final determination which officially extends the Rules’ applicability date to June 9, 2017; and

• In the event the DOL decides not to extend the April 10, 2017 applicability date of the Rules, the DOL will not initiate enforcement action against an investment advisor or financial institution that fails to comply with the Rules, but corrects the non-compliance, and thus satisfies the rules, within a “reasonable period.” The DOL will treat the 30-day cure period under the BIC Exemption as a “reasonable period” for cure for incidents of non-compliance.

The DOL says it will consider publishing other relief from these Rules as the need for such relief becomes evident. In the March 10th Notice, the DOL stressed, however, that the provision of temporary enforcement relief should not be taken as foreshadowing a determination that applicability dates will, in fact, be extended to June 9, 2017. It is this author’s opinion that the temporary enforcement relief should also not be construed as any evidence that the DOL will back off the aggressive compliance posture reflected by the these Rules in future rulemaking.

401(k) and 403(b) Plan Hardship Distribution Substantiation: What Will the IRS Be Looking For?

On February 23 and March 7, 2017, the Internal Revenue Service (“IRS”) issued memoranda to examination agents addressing review of substantiation provided in support of safe harbor hardship distributions under 401(k) and 403(b) plans. Although the memoranda cannot be relied upon as official guidance, they are good reference points to help plan sponsors and third party administrators (“TPAs”) avoid issues on audit.

Hardship Distributions

401(k) and 403(b) plans may allow hardship distributions on account of immediate and heavy financial need of an employee that cannot be satisfied from other sources, including plan loans. The Treasury Regulations provide a safe harbor for certain distributions that — if properly substantiated — will be deemed to be on account of an immediate and heavy financial need, including:

• medical care for the employee or the employee’s spouse, children or dependents;
• purchase of a principal residence;
• payment of tuition, related educational fees, room and board expenses for up to the next 12 months of post-secondary education for the employee or the employee’s spouse, children or dependents;
• payments necessary to prevent eviction of the employee from the employee’s principal residence or foreclosure of the mortgage on that residence;
• payments for burial or funeral expense for the employee’s deceased parents, spouse, children or dependents; or
• expenses for the repair of damages to the employee’s principal residence that would qualify for a casualty deduction.

Memoranda Guidance

In reviewing safe harbor hardship distributions, auditors will review source documents — such as estimates, contracts, bills and statements from third parties — or a summary of the information contained in the source documents. The memoranda’s reference to review of a “summary of information” seems to contemplate — and signal tacit approval of — electronic or streamlined hardship distribution processes, pursuant to which requests do not include submission of source documents, but rather require only the employee’s certified representation concerning the content of, and a promise to preserve, the source documents.

Summary of Information

In order to avoid potential unpleasantries on audit, plans that use an electronic or streamlined hardship distribution request process will need to take certain steps. First, the employer or TPA must provide the employee notice that, inter alia, the distribution is taxable, cannot exceed the immediate and heavy financial need, cannot be made from earnings on elective deferrals and — perhaps most importantly — the employee must agree to preserve the underlying source documents and make them available at any time upon request of the employer or TPA. Second, the summary of information must include, at a minimum, the information specified in the memoranda required to substantiate the hardship distribution in question — for example, a hardship distribution request for funeral expenses should include the name of the deceased, the deceased’s relationship to the employee, the date of death and the name and address of the service provider of the funeral or burial. Third, if a TPA administers hardship distributions, it should provide a report to the employer at least annually that describes the hardship distributions made during the year.

Where a summary of information is incomplete or inconsistent on its face, the auditor may ask the employer or TPA for the source documents. In addition, where an employee has received more than two hardship distributions in a plan year, in the absence of adequate explanation — such as follow-up funeral expenses — and with IRS managerial approval, the auditor may ask to review source documents.

Recommended Next Steps

Review your plan’s hardship distribution procedures and, if applicable, confer with your TPA to ensure compliance with the memoranda. Although the memoranda cannot be relied upon as binding authority, conforming your hardship distribution procedures should go a long way to helping you complete a successful hardship distribution audit.

ANOTHER ERISA CHURCH PLAN CLASS ACTION SETTLES

Citing to the “significant uncertainties in predicting the outcome” of their litigation “where the critical issue is pending before the Supreme Court” (oral argument on the scope of ERISA’s church plan exemption is set in three consolidated cases for March 27), Plaintiffs in Butler et al. vs. Holy Cross Hospital, another church plan class action, have filed an unopposed motion for preliminary approval of settlement.

In Butler, former employees of Holy Cross Hospital filed suit in June of 2016 in the United States District Court for the Northern District of Illinois on behalf of themselves and other participants of the Pension Plan for Employees of Holy Cross Hospital, alleging that Defendants breached duties under ERISA by incorrectly treating the Plan as an ERISA-exempt “church plan.” Among Plaintiffs’ allegations are that Defendants underfunded the Plan by $31 million and improperly attempted to terminate the Plan while it was underfunded.

The Plan was originally sponsored by Holy Cross Hospital, which transferred plan sponsorship and liabilities to the Sisters of Saint Casimir shortly before the hospital’s merger with Sinai Health System. Plaintiffs allege that this transfer was an unlawful attempt to avoid liability for the Plan’s underfunding. They claim that upon the Plan’s purported termination, Defendants offered participants a discounted distribution based on incorrect classification of the Plan as a church plan.

The parties’ settlement provides for a settlement amount of approximately $9 million, which would consist of $4 million paid by Defendants into an escrow account (less attorney’s fees not to exceed 15% of the amount in escrow), as well as approximately $5 million in Plan assets held in trust that have not yet been distributed. According to the motion, after notice and administrative costs, Defendants anticipate that approximately $8.4 million will be available for distribution to Plan participants. After final distribution of the settlement amount will the Plan be fully liquidated and formally terminated.

Introducing the American Health Care Act! Wait! … Not so fast!

The House Ways and Means Committee and the Energy and Commerce Committee (the two congressional committees having primary responsibility for health care legislation) released draft legislation for repealing and replacing aspects of the Obama administration’s 2010 health care reform law on March 6, 2017 (the “ACA”).

The bill, dubbed the American Health Care Act, is scheduled for committee markups on March 8, 2017, where it could be revised but is expected to advance to the House floor for consideration on a date yet to be determined.  Once up for consideration in the House, the bill could be subject to further change before it is approved and can advance to the Senate.  The final version of the bill has to be agreed to by both chambers before it can be presented to President Trump for signature.  If the Senate decides to amend the American Health Care Act or propose an alternative fill, it may send its proposal back to the House for consideration and another vote and the House may respond with a counterproposal, and so on. This ping-pong game would go on until both chambers agree to the same bill.

Alternatively, the different chambers of congress could resolve differences between the respective bills through the conference committee process where a temporary committee negotiates a bill on which both the House and Senate can agree.  In this case, the conference committee would be made up of members of the House Ways and Means and Commerce and Energy Committees as well as Senate committees having primary responsibility for health care legislation.  Once the conference committee agrees on a bill to propose (called a conference report), both the House and Senate would have to agree to the conference report without changes in order for it to go to President Trump for signature.

In the meantime, what does the Republican-backed American Health Care Act look like in its current iteration?  A two-page summary of the American Health Care Act issued by Representative Kevin Brady (R-TX and Chairman of the Ways and Means Committee) says that the budget reconciliation legislation would eliminate the individual and employer shared responsibility penalties as well as dismantling other tax provisions enacted as part of the ACA.  This is the news many so-called “large” employers have been hoping to hear.  Some other highlights of the bill in its current form:

  • Like the ACA the American Health Care Act would prohibit health insurers from denying coverage or charging higher premiums for patients with pre-existing conditions and would allow children to stay on their parent’s plan until age 26.
  • The bill would enhance health savings accounts (HSAs) by nearly doubling the amount of money individuals can contribute annually to HSAs expand how individuals can use their HSAs.
  • Finally, the bill would provide a monthly tax credit (between $2,000 and $14,000 a year) for low- and middle-income individuals and families who don’t have employer group health coverage (and aren’t covered under a government program).

A summary issued by Greg Walden (R-OR and Chairman of the House Energy and Commerce Committee) explains that the American Health Care Act creates a $100 billion fund for states to design their own health coverage programs, including programs to help low-income persons afford health care, and unwinds the ACA’s Medicaid expansion provisions.

Meanwhile, employers are advised to continue to comply with the ACA’s requirements and stay tuned!

Last Day of Remedial Amendment Period for 403(b) Plans is March 31, 2020

Eligible employers sponsoring Code Section 403(b) retirement plans have until March 31, 2020 to self-correct any defects as to the written form of those plans. In recently issued Revenue Procedure 2017-18, the IRS fixed March 31, 2020 as the last day for the current remedial amendment period for 403(b) plans, which began January 1, 2010 for plans existing on or before December 31, 2009.  Plan sponsors who have timely adopted 403(b) retirement plan documents, now, will have until March 31, 2020 to retroactively correct any plan document defects, either by adopting a pre-approved plan document or amending their existing plan.  This is welcome news for 403(b) plan sponsors and advisors to those plans who have waited nearly four years for the IRS to announce an end date to the current remedial amendment period.

Background

In March 2013, the IRS issued Revenue Procedure 2013-22, which established the program and procedures for issuing opinion and advisory letters for pre-approved 403(b) plans, and also provided a remedial amendment period for eligible employers to retroactively correct defective plan provisions violative of Code Section 403(b) written plan rules either by timely adopting a pre-approved plan or by timely amending their existing plan.  It was in this prior guidance that the IRS announced January 1, 2010, or the plan’s effective date, whichever is later, as the first day of the remedial amendment period.  Rev. Proc. 2013-22 provided that any defects in the form of a plan causing the plan to fail to satisfy IRC 403(b) and its regulations, i.e., a defective plan provision or the absence of a required one, must be corrected on or before the last day of the remedial amendment period.  The IRS, in this prior guidance, however, did not provide an end date to the remedial amendment period.  Rather, the IRS expressly reserved that it would provide the date of the last day of the remedial amendment period in subsequent guidance.  Rev. Proc. 2017-18 is that much anticipated subsequent guidance.

IRS sets March 31, 2020 as Last Day of the Remedial Amendment Period for 403(b) Plans

The recent release of Rev. Proc. 2017-18, effective January 1, 2017, has now clarified the prior guidance from Rev. Proc. 2013-22 by setting the date of March 31, 2020 as the last day of the remedial amendment period. Now, a plan that fails to satisfy written plan requirements of Code Section 403(b) on any day during the period beginning on the later of January 1, 2010, or the plan’s effective date, and ending on March 31, 2020, will be deemed to have satisfied those requirements if all 403(b)-compliant plan provisions have been adopted and made effective retroactive to the later of January 1, 2010 or the plan’s effective date, before March 31, 2020.  The revenue procedure noted that the Department of Treasury and IRS intend to issue guidance with respect to the timing of 403(b) plan amendments made after March 31, 2020 at a later date.

 

IRS to Process Tax Returns That Lack Certification of ACA-Required Coverage

In the wake of the President’s January 20, 2017 Executive Order directing a reduction in regulatory burdens imposed by the Affordable Care Act (ACA), the IRS has quietly announced that it will continue to process income tax returns lacking confirmation that the taxpayer has maintained ACA-required health coverage.

The ACA requires that taxpayers who do not qualify for an exemption from the requirement to maintain health coverage must either purchase minimum essential coverage or make a “shared responsibility payment” when they file their tax returns. Individual tax returns contain a box (Line 61 on Form 1040) asking the taxpayer to certify whether he or she had health coverage for all or part of the tax year. Forms on which this line was not completed had previously been scheduled for automatic rejection for processing by IRS. Taxpayers who failed to certify coverage thus risked late filing penalties and delayed tax refunds.

Following the Executive Order, IRS will process returns regardless of whether the taxpayer’s coverage status is indicated. According to the IRS website, “taxpayers remain required to follow the law and pay what they may owe,” and “may receive follow-up questions and correspondence at a future date, after the filing process is completed.”

DOL Fiduciary Rule – A Proposed Delay and Uncertain Future

We’ve previously written about the Department of Labor’s new fiduciary rule, which expands the definition of who is considered a fiduciary under the Employee Retirement Income Security Act, as amended (“ERISA”) and the Internal Revenue Code of 1986, and which addresses related prohibited transaction exemptions. The rule was finalized in April 2016 and is currently set to become applicable on April 10, 2017. The rule’s implementation, however, has been a specific focus of President Donald J. Trump and his administration. As discussed here, on February 3, 2017, President Trump issued a Presidential Memorandum ordering the DOL to examine the rule, requiring in particular an updated economic and legal analysis of the impact of the rule (though the Memorandum did not specifically call for a delay to the rule’s applicability date, as many had expected).

Today the DOL announced a proposed extension of the applicability date of the new fiduciary rule. The proposal will be published in the March 2, 2017, edition of the Federal Register. According to a DOL News Release, the stated purpose of the extension is to “give the department time to collect and consider information related to the issues raised in the Presidential Memorandum before the rule and exemptions become applicable.” The DOL has stated that, following the 60-day extension and examination, it may allow the rule to become applicable, propose a further extension, or propose to amend or withdraw the rule entirely. The comment period relating to the 60-day extension runs for 15 days following the publication of the proposal, while the comment period relating to the Trump-mandated examination of the rule runs for 45 days from the same date.

We will continue to monitor and keep you apprised about the future of the fiduciary rule and any related initiatives. Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.

Health Savings Accounts Considerations for Employers

The health savings account (“HSA”) has become, since its creation in 2003, an increasingly popular option for employers to subsidize employee group health costs. Employees with HSAs can save money, on a tax-free basis, for medical expenses that aren’t otherwise covered. The account’s interest earnings and distributions (for qualified medical expenses) are also tax-free. The popularity of the HSA is likely to continue and may become as common among employers for subsidizing employee group health benefits as its cousin, the 401(k), has become among employers for subsidizing employee retirement benefits. Surveys indicate significant growth in HSAs since 2003 and, in 2016, the Kaiser Family Foundation estimated that nearly 30% of employees already utilize this or another consumer driven option. Moreover, one feature the multiple proposed “Obamacare replacements” have in common is expansion of HSAs (Sen. Rand Paul’s Obamacare Replacement Act, Sen. Bill Cassidy’s Patient Freedom Act, House Speaker Paul Ryan’s A Better Way, and Rep. Tom Price’s Empowering Patients First Act).

Do your employees have the resources and wherewithal to benefit from a consumer-based option like the HSA? Proponents tend to believe that HSAs help drive down the cost of health care because HSA owners, as consumers, control spending by making informed decisions about their health care needs and options. The theory, generally, is that a consumer-minded patient will take better care of himself or herself, will be informed about comparative provider charges and quality ratings, will chose providers based on cost and quality information, and will not blindly comply with “doctor’s orders” to take prescribed medicines or undergo costly tests or other procedures. In fact, studies have shown that HSA owners do spend less on health care. However, some critics suggest that lower spending by HSA owners indicates HSA owners forego necessary health care. At least one study that found HSA owners had overall lower health care spending also found a correlation among lower-income HSA owners and higher hospitalization rates. Without having available, and using, adequate resources to make informed decisions about health care needs and options, employees will not benefit from the HSA option.

Do your employees have enough income to benefit from the tax-favored treatment of the HSA? Like employer contributions made to subsidize an employee’s group health coverage, an employer’s contribution to an employee’s HSA is deductible to the employer and is not treated as taxable income to the employee, provided the employee is an “eligible individual” within the meaning of Internal Revenue Code section 223. But, as with other tax-favored benefit arrangements, HSAs are subject to monetary limits, distribution restrictions, and other compliance requirements. For 2017, the inflation-adjusted HSA contribution limit (not counting “catch-up” contributions for individuals who’ve attained age 55) is $3,400 for self-only coverage and $6,750 for family coverage (regardless of whether the contributions are made by the employee, the employer, or a combination of sources). For an employee with income so low he or she doesn’t pay federal income taxes or an employee who lives paycheck-to-paycheck, tax-deferred contributions to an HSA are as meaningful as tax-deferred contributions to a 401(k) plan.

Could anticipated changes to HSA rules make a difference for your employees? Several of the proposed Obamacare replacements would loosen the contribution limits and restrictions on distributions in ways that might make HSAs even more popular. For example, some would change the rules to permit employees with health coverage other than under a high deductible health plan to make HSA contributions. Others would change the rules so that HSA accounts could be used to pay for health coverage premiums and over-the-counter medications.

Bottom line: HSAs have become a fixture in the group health plan arena and may be worth consideration by employers not currently offering this option.

President Trump Orders Review of DOL Fiduciary Rule and Addresses Financial Industry in Latest Actions

On February 3, 2017, President Trump took actions aimed at alleviating some of the regulatory burdens on the financial services industry. Through a Presidential Memorandum, President Trump ordered the DOL to “examine the Fiduciary Duty Rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice” and prepare an updated economic and legal analysis concerning the impact of the rule, while taking into account several enumerated considerations. While the Memorandum does not delay the rule or have any immediate effect on affected parties, if the DOL finds that the rule runs contrary to any of the considerations in the Memorandum, the DOL is directed to “publish for notice and comment a proposed rule rescinding or revising the Rule, as appropriate and consistent with law.”

This action is not a surprise as President Trump has characterized the fiduciary rule as a “complete miss.” Although he did not directly take aim at the fiduciary rule during the campaign, Washington insiders had predicted action on the rule to be one of President Trump’s early priorities. The Memorandum comes on the heels of increasingly vocal opposition to the rule from Congressional Republicans. On the other side of the aisle, Senator Elizabeth Warren (D-MA) recently sent a letter to 33 major financial firms asking them to provide information about their compliance efforts to date and whether they would support a delay or change in the rule.

Opponents of the rule maintain that the increased regulation of retirement advisors will result in less choice and fewer lower cost options for individual investors. Notably, the rule has also been challenged in litigation questioning the DOL’s exercise of authority in issuing the rule. Thus far, federal courts have upheld the rule, with the U.S. District Court for the Northern District of Texas scheduled to weigh in next week.

Immediately following the issuance of the Memorandum, the acting U.S. Secretary of Labor, Ed Hugler, responded to the President’s direction through a News Release stating that “The Department of Labor will now consider its legal options to delay the applicability date as we comply with the President’s memorandum.”

Employers should keep in mind that this action in no way lessens their fiduciary responsibilities under the Employee Retirement Income Security Act of 1974 (ERISA) with respect to employer sponsored retirement plans. Rather, it signals a potential cut back on a regulatory action attributing fiduciary status to certain financial advisors. If the rule is revised or rescinded, many advisors will not be required to act in the “best interest” of their retirement account customers. Part and parcel of the DOL’s attempt to expand who are considered fiduciaries is further delineation of what constitutes a conflict and a move away from commission-based compensation. As a result of ongoing implementation of the rule, many employers have seen changes in the structure surrounding individual investment advice provided to employee/participants in company sponsored 401(k) and 403(b) plans.

While proffered as an effort to remove an unnecessary burden on the financial services industry, it is unclear how much of an effect any delay, revision or rescission of the rule will have. Many financial firms have already spent significant resources on complying with the rule, including revamping products and business models, and are likely to continue on this course.

Moreover, many current and potential retirement account customers are now cognizant of how a “best interest” or some comparable standard applicable to retirement industry professionals would serve their long-term retirement goals. The retirement industry is also aware of the advantages to be leveraged by complying with fiduciary standards — whether those standards are mandated by a DOL rule or simply by competitive forces — in retaining and attracting retirement savings customers.

In a related Executive Order issued the same day on “Core Principles for Regulating the United States Financial System,” President Trump also aimed at loosening regulation of the financial services industry. Though the Executive Order largely states very broad principles and his Administration’s philosophy towards the United States financial system, many believe this is the first step in efforts to scale back parts of the Dodd-Frank Act. Several statements from the Administration have suggested that the tighter controls put into place after the 2008 financial crisis have led to further strangulation of the ability of banks to lend and in an unnecessary limitation on consumer choice.

We will continue to monitor and keep readers apprised regarding the future of the DOL fiduciary rule and any related initiatives.

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