In a previous post, we discussed why broker-dealers and their representatives will likely still be fiduciaries to ERISA plans and IRA investors in many cases despite the DOL Fiduciary Rule’s impending death (we say “impending” because, while the Fifth Circuit’s ruling in mid-March vacates the Fiduciary Rule in its entirety, the court’s official order implementing this decision has yet to be issued). To review, this is because broker-dealers and their representatives often satisfy all the prongs of the soon-to-be reinstated 1975 fiduciary regulation’s “Five-Part Test” defining when investment recommendations rise to the level of “fiduciary” advice. Previous industry assumptions that brokers and other “sellers” of investments generally were not fiduciaries under the 1975 regulation should no longer be relied upon. In this post, we’ll examine how the Fiduciary Rule’s impending demise will affect prohibited transaction and compensation issues for broker-dealers in light of their likely continuing status as fiduciaries. Continue reading “Why Fiduciary Status Still Matters in a Post-Fiduciary Rule World: A Look at Prohibited Transactions And Compensation”
The “old” rules will again prevail—but the old rules will not be applied in the old ways, and this will have some significant impacts on broker-dealers.
As the DOL has not asked for a rehearing of the Fifth Circuit’s decision vacating the Fiduciary Rule, or yet sought to appeal the decision, it is widely anticipated that the March 15 ruling will soon take effect, restoring the DOL’s 1975 regulation defining fiduciary investment advice to plan and IRA investors (we say “widely anticipated” because, while the official mandate vacating the Fiduciary Rule is expected soon, it has been delayed while the court considers efforts from certain states and other third parties to intervene in the case). While the SEC has proposed new regulations for broker-dealers, and while we expect the DOL to propose new prohibited transaction exemptions or regulations that will coordinate with the SEC’s actions, it will be at least a year before these initiatives could begin to apply. Continue reading “Old Standard, New Day: The Death of the Fiduciary Rule Doesn’t Mean That Broker-Dealers Won’t be Fiduciaries”
Generally when broker-dealers are subject to court jurisdiction, that jurisdiction, based either on diversity or subject matter, places the dispute in federal courts. However, that has not necessarily been the case in class actions. The issue of state versus federal court jurisdiction was argued before the U.S. Supreme Court on November 28, 2017. The Supreme Court heard oral arguments in Cyan, Inc. v. Beaver County Employees Retirement Fund regarding whether states had jurisdiction over “covered class actions” that allege violations of the Securities Act of 1933 (the “33 Act”). Specifically, the Court considered whether an amendment to the 33 Act—the Securities Litigation Uniform Standards Act of 1998 (SLUSA)—precluded states from hearing the vast majority of 33 Act claims. The Court tangled with both sides over Congress’ intent in passing SLUSA and the text of SLUSA, which Justice Alito referred to as “gibberish.”
Continue reading “The U.S. Supreme Court Hears Argument on Whether State Courts Have Jurisdiction Over Large Securities Class Actions in Light of the Securities Litigation Uniform Standards Act of 1998”