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Court Deals Blow to Fiduciary Rule; State Treasurers Urge SEC to Keep Rule’s Standards

The Fifth Circuit Court of Appeals rejected the DOL’s Fiduciary Rule in a decision that described the rule as “unreasonable” and strongly rejected the DOL’s interpretation of “investment advice fiduciary,” among other things. Industry participants speculate the decision could be reviewed by a full complement of the Fifth Circuit judges or by the U.S. Supreme Court. The SEC is expected to propose its own fiduciary standard in the coming months. Meanwhile, a coalition of state treasurers recently wrote to the SEC in support of the Fiduciary Rule and encouraged the SEC to adopt a “strong and effective rule” that would combine a best interest standard with restrictions on practices that encourage investment recommendations that are not in customers’ best interests. The treasurers wrote that there is “overwhelming evidence” that disclosures alone are “insufficient to reduce investor confusion or to protect investors from the harm of conflicted advice.” The state officials noted that, even partially implemented, the DOL Fiduciary Rule is already delivering benefits to retirement investors, including adaptations and innovations such as the shift to asset-based fee structures and mutual fund clean shares. Certain states, including Massachusetts, have targeted firms for alleged violations of the Fiduciary Rule.