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April 30 Deadline Looms for DOL Fiduciary Appeal

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With the April 30 deadline looming for the Labor Department to appeal the 5th Circuit Court of Appeals ruling vacating Labor’s fiduciary rule, the former head of Labor’s Employee Benefits Security Administration is surmising that Labor will not appeal.

“While we don’t officially know the DOL is not going to appeal,” it looks as if the department will not, so the 5th Circuit ruling will go into effect on May 7 and vacate the rule, said Brad Campbell, former head of EBSA who’s now a partner with Drinker Biddle and Reath in Washington, on a Thursday webcast by the law firm.

“With that opportunity, the SEC now no longer has to adjust itself to fit what DOL has already done. The SEC can now lead the way [with its standards of conduct proposal] and have DOL adjust itself to the SEC’s rule.”

Fred Reish, partner in Drinker Biddle & Reath’s employee benefits and executive compensation practice group in Los Angeles, told ThinkAdvisor that “if it was an easy decision [to appeal], the DOL would have made the decision by now and would have announced it. As result, I see it as a toss-up, perhaps leaning towards not challenging the court’s decision.”

The U.S. Court of Appeals for the 5th Circuit voted 2-1 on March 15 to vacate the Labor Department’s fiduciary rule.

SEC’s Conduct Rule ‘Rushed’

The SEC voted Wednesday to put its 1,000-page standard of conduct proposal for brokers and advisors out for a 90-day public comment period.

Reish said on the webcast that the SEC’s failure to define “best interest” in its new standard of conduct proposal for brokers signaled that the agency’s release of the three-pronged plan was “rushed.”

“Three [SEC] commissioners commented on the fact that the proposed rule itself would require broker-dealers and their representatives to adhere to best interests, but did not define it, which almost makes me feel that this was rushed out, that it was only a partially done product but for some reason they [the agency] decided to publish it now,” Reish said.

Campbell agreed, stating that “there’s very clear ambiguity in the [proposal’s] text.”

One day after the SEC’s release of its standard of conduct plan, Campbell said he was already busy helping clients get their “comment letters where they need to be.”

Typically, Campbell said, “when a federal agency goes forward with a proposed regulation, their minds are 80% or 90% made up about what they want to do. They take comments to find surprises, they take comments to solve some of the particular issues that maybe they are not sure about, but mostly they know where they’re going and how they’re going to get there and unless something unusual happens, the final rule is going to look pretty similar to the proposal.”

The SEC proposal, however, “I think is quite different you’re getting a very vague initial product because so many of these questions aren’t settled.”

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