We would love to hear from you. Click on the ‘Contact Us’ link to the right and choose your favorite way to reach-out!

wscdsdc

media/speaking contact

Jamie Johnson

business contact

Victoria Peterson

Contact Us

855.ask.wink

Close [x]
pattern

Blog + Articles

Categories

  • Industry Articles (9,557)
  • Industry Job Openings (6)
  • Negative Media (119)
  • Positive Media (73)
  • Sheryl's Articles (399)
  • Sheryl's Blogs (135)
  • Wink's Articles (137)
  • Wink's Blogs (118)
  • Wink's Press Releases (57)
  • Blog Archives

  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • August 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • November 2008
  • May 2008
  • February 2008
  • For DOL, killing fiduciary rule easier said than done

    May 18, 2017 by Nick Thornton

    Any effort to delay the June 9 implementation date of the Labor Department’s fiduciary rule will face significant procedural obstacles, and potential legal challenges, according to one administrative law expert.

    “It’s not impossible to propose a new delay before the June 9 deadline, but there are substantial hurdles to doing so,” said Bethany Davis Noll, an attorney with the Institute for Policy Integrity at the New York University School of Law.

    One hurdle is timing. The first 60-day delay of the rule took about five weeks from start to finish. A little more than three weeks remain before June 9.

    Labor Secretary Alexander Acosta has made rolling back the fiduciary rule a top priority, according to a leaked communication between Acosta and Sen. Tim Scott, R-SC that was obtained by NAPA-net.org

    Scores of Republican lawmakers and financial services and insurance industry trade groups have called on Acosta to delay the June 9 implementation of the impartial conduct standards until the agency completes a new economic impact analysis of the rule.

    In order to do that, Labor would have to issue a notice of a new proposed delay and request comments from stakeholders. A proposed delay would also have to include an updated cost benefit analysis, and give reasoned explanations for a change in the implementation date, including an explanation for disregarding the facts and circumstances that justified the first 60-day delay of the rule, Davis Noll explained.

    “A new delay would essentially amount to an effective repeal and that is something that would have to be justified,” said Davis Noll. “Labor has a huge burden to overcome if they want to delay this.”

    Some stakeholders have called on Labor to issue an indefinite delay of the entire rule. Courts would likely treat that as a repeal of the rule, and apply higher standards for Labor to justify the move.

    “A delay by itself is a substantive change–if it is indefinite, it is even more important to open the proposed rule to notice and comment. The bar for justifying an indefinite delay is even higher,” said Davis Noll.

    Labor’s litigation risk

    Any attempt to issue a temporary or indefinite delay could expose what Davis Noll says are substantively weak aspects of the first 60-day delay.

    That could give the upper hand to proponents of the rule, should they issue a legal challenge to a new delay.

    “If they try to delay the rule again, the problems with the first delay will be amplified,” said Davis Noll. “It’s highly likely Labor will be subjecting itself to a risk of litigation, if it hasn’t already.”

    Davis Noll, who previously served as assistant solicitor general for the state of New York, says the overall fiduciary rule was “impressive” and “really well done” in the context of administrative law.

    But the rule delaying the first implementation date by 60 days is less sound, she thinks. In the proposal to delay the rule, Labor’s cost benefit analysis estimated retirement investors would lose $147 million to conflicted advice under a 60-day delay, while industry would save $42 million.

    When the delay was finalized, Labor walked back those estimates, based on the premise that “many firms have already taken steps toward honoring fiduciary standards,” according to language in the delay rule.

    “There was no explanation or details about how much that compliance will help ameliorate the $147 million in losses that the delay could cause,” said Davis Noll.

    In effect, any new delay would be based on the conclusion that industry needs more time to comply with the impartial conduct standards. That would be a direct contradiction to language in the first delay, which said the Department “finds little basis for concluding that advisors need more time to give advice that is in the retirement investors’ best interest” beyond the June 9 deadline.

    If a new delay is issued, and challenged by proponents of the rule, Davis Noll said it’s conceivable that a court could find fault in the reasoning behind the first delay, overrule it, and essentially apply the fiduciary rule to its original schedule.

    In other words, the prospect of a new delay introduces “considerable risk” for opponents of the rule that want to see it done away with altogether, said Davis Noll.

    APA chicanery at EPA, DOI

    In other agencies, regulators have made the bold move of issuing indefinite delays of Obama-era regulations without adhering to rule making requirements under the Administrative Procedure Act.

    Regulators at the Environmental Protection Agency and the Department of Interior have indefinitely delayed rules without issuing notice and taking comments.

    Those actions are being challenged in California and the District of Columbia federal courts.

    Regulators took similar tactics during the Reagan administration. The APA does have a “good cause” exception to notice and comment requirements, but on balance, courts have held that to be a very high bar to satisfy, allowing it in limited emergency situations that are outside of a regulatory agency’s control, explained Davis Noll. “Courts have said that the imminence of a deadline is not enough to satisfy the good cause exception.”

    The lawsuits against the EPA and DOI indefinite delays should be “slam dunk” cases, said Davis Noll. “The law is settled. You cannot issue an indefinite delay without notice and comment.”

    At Labor, regulators likely won’t have time to see how courts come down on the EPA and DOI rule delays. But those decisions could influence how courts would rule in a potential legal challenge to a delay of the fiduciary rule.

    That fact that stakeholders challenged the Trump administration’s loose application of the APA is telling, said Davis Noll. “That should be a red flag for DOL.”

    Originally Posted at BenefitsPro on May 16, 2017 by Nick Thornton.

    Categories: Industry Articles
    currency