On February 3, 2017, President Donald J. Trump issued a presidential memorandum directing the U.S. Department of Labor ("DOL") to reexamine regulations (known as the "Fiduciary Rule") scheduled to take effect April 10, 2017. The controversial Fiduciary Rule would significantly expand those who are considered fiduciaries under the Employee Retirement Income Security Act of 1974 (commonly known as "ERISA"). For a summary of the Fiduciary Rule, please refer to our Client Alert dated May 16, 2016, by clicking here.

President Trump's memorandum directs the DOL to determine whether the Fiduciary Rule will adversely impact the ability of Americans to gain necessary access to financial advice and retirement information. Specifically, the memorandum directs the DOL to prepare an economic and legal analysis regarding the expected impact of the Fiduciary Rule that considers, among other things, whether the Fiduciary Rule:

  • is likely to harm investors due to reduced access to certain retirement savings offerings or financial information or advice;
  • has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees; and
  • is likely to increase litigation and fees that investors or retirees must pay for access to retirement services.

Although the memorandum does not expressly delay the effectiveness of the Fiduciary Rule, Acting U.S. Secretary of Labor Ed Hugler issued the following statement: "The Department of Labor will now consider its legal options to delay the applicability date as we comply with the President's memorandum."

Many advisors have spent considerable time and resources in anticipation of the effectiveness of the Fiduciary Rule on April 10, 2017. It remains to be seen whether those efforts have been for naught (should the Fiduciary Rule be withdrawn) or will require significant modification (should the Fiduciary Rule be revised). This seems to be an instance in which procrastination would have paid off.

Advisors should consider withholding further actions to comply with the Fiduciary Rule until its fate becomes more certain. We will continue to keep a close watch on developments and issue further alerts as events warrant.

Please contact any member of the Investment Management or Employee Benefits/Executive Compensation Groups with questions about the Fiduciary Rule.