It’s the “summer of DOL,” says John Gebaur, president of the National Regulatory Service, a compliance consulting firm.
The Department of Labor’s fiduciary rule was finalized in early April with the first compliance deadline set for April 2017.
Financial advisors, broker-dealers and firms are “spending their summer making their specific plans and starting to implement changes,” Gebaur said.
Recently, Gebaur and the NRS have been focused on helping financial firms understand the impacts and helping them plan for the DOL rule. The National Regulatory Service provides technology, education and consulting services to help guide firms’ compliance strategies.
“What we’re seeing is a lot of confusion in the market,” Gebaur told ThinkAdvisor. “That’s not a surprise. We do agree that April of 2017 is pretty aggressive. And the marketplace is concerned about this, obviously … I am not sure some of the biggest providers will have time to do all the technology updates that will be needed. Procedural updates are easy, but changing the technology to support those takes time.”
The industry really doesn’t have “deep understanding even yet” of the rule, Gebaur said, which is only amplified by the outstanding legal challenges facing the rule. The three lawsuits filed in Texas against the Department of Labor’s fiduciary rule has a Nov. 17 date for the federal judge to hear oral arguments from both sides.
“I don’t know anyone that’s making a strong case that any of [the lawsuits] are going to have a great deal of success,” Gebaur said. “They still add to confusion, they add to uncertainty. There’s going to be a CEO somewhere that’s telling their CCO, ‘No I don’t want to do anything until I know it’s absolutely going to happen.’”
Some of the confusion surrounding the rule may also be because the DOL doesn’t have a “deep relationship” with firms, as Gebaur says, as the Securities Exchange Commission or the Financial Industry Regulatory Authority does.
“They have some relationship obviously with [the Employee Retirement Income Security Act, but that’s not the same kind. They’re not out doing examinations of these people,” he said. “This is a really unique situation in that you have a regulator who is not used to being active with certain registrants or markets. And the normal mode of communication and discussion hasn’t really happened.”
The SEC, by contrast, has its ways of getting information out to registrants, Gebaur says.
“They have their ways of talking off the record to people about their interpretations and their expectations,” he added. “Getting feedback on things like timeline, and that may not have happened to the same level with this rule. I know there’s many times were the SEC and staff calls me up or someone on my team and says, ‘We’re thinking about this. What impact would that have?’”
Gebaur does have some practical advice for firms as they begin preparations for implementing the DOL rule.
“Our advice is to start by reviewing your current practice,” he said. “Review your clients. Find out what the impact of the rule is on your business. It could have zero impact or it could have enormous impact. The first step is to do a risk assessment of that business practice. What is the impact of this rule on me?”
The inventory and assessment of advisors’ current practices is an important first step.
“If you find out that [you] only have 17 customers that are impacted, then you have one path. If you find out that 17,000 customers and this much of your business is tied up in this practice, you may make a different decision,” Gebaur said. “That’s the kind of noncompliance assessment that needs to happen.”
Gebaur emphasized that there are many business decisions – not compliance decisions – that have to go along with the implementation of the rule.
“Nothing is going to get accomplished with compliance alone,” he said. “It’s going to be shared responsibility between executive management and technology and marketing and compliance. Unfortunately everyone is going to look to the compliance officer and say ‘how come you’re not taking care of this?’”
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