Closing the book on continuing the ERISA “best interest” debate – is there anything left to argue about?

Eversheds Sutherland (US) LLP

As announced in a press release and contrary to expectations created prior to the election, the US Department of Labor (DOL) has allowed its Fiduciary Rule 3.0 to take effect February 16, 2021, notwithstanding the change of Administrations and without further “midnight regulation” review. Absent legislative action under the Congressional Review Act, which as always is improbable, Rule 3.0 will stand, at least for the moment.

..In Rule 3.0, DOL refined its interpretive position on when rollover advice is fiduciary investment advice for purposes of the Employee Retirement Income Security Act of 1974, as amended (ERISA).

..It also adopted Prohibited Transaction Exemption (PTE) 2020-02, providing “best interest” terms on which fiduciary investment advisers may serve ERISA plans and individual retirement accounts (IRA) notwithstanding conflicts of interest.

..Finally, it announced that the temporary enforcement policy that has been in effect since Rule 2.0 was vacated in 2018 by the Fifth Circuit Court of Appeals would sunset on December 20, 2021.

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