As we previously reported in our Client Alert dated February 7, at the direction of President Trump, the DOL announced that it will review new ERISA fiduciary regulations issued in the final year of the Obama administration (known as the "Fiduciary Rule"). The controversial Fiduciary Rule, which was to become effective April 10, would significantly expand who is considered a fiduciary under ERISA.

The DOL initiated a review of the Fiduciary Rule on March 2 by issuing a notice seeking comment on (i) adopting a 60-day delay of its April 10 effective date, (ii) the issues raised in President Trump's directive, and (iii) the general law and policy of the Fiduciary Rule. The DOL has stated that it expects to render a decision on the items addressed in the March 2 notice prior to the scheduled effective date of the Fiduciary Rule. However, in order to avoid confusion and uncertainty should the DOL not be able to timely issue a final rule that delays the effectiveness of the Fiduciary Rule, on March 10, the DOL issued Field Assistance Bulletin 2017-01 to establish a temporary enforcement policy with respect to the Fiduciary Rule.

The temporary enforcement policy has two components:

  • If the DOL issues a delay of the Fiduciary Rule after April 10, the DOL will not enforce violations that may have occurred during the "gap" period.
  • If the DOL decides not to delay the Fiduciary Rule, it will refrain from initiating an enforcement action for failure to comply with the Fiduciary Rule by the April 10 effective date, provided the "advisor or financial institution satisfies the applicable conditions of the rule or [related prohibited transaction exemptions]…within a reasonable period after the publication of a decision not to delay the April 10 applicability date."

While the fate of the Fiduciary Rule is still unknown, advisors generally have the ability to wait and see what unfolds without fear of a DOL enforcement action. However, a close eye should be kept on developments, as advisors may be required to act relatively quickly should the DOL decide to implement the Fiduciary Rule. The DOL has not provided guidance on what constitutes a "reasonable period" for purposes of the enforcement relief. We will continue to keep a close watch on developments and issue further alerts on this subject as circumstances warrant.

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