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The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources, investment management, immigration and family law.

 

 

Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has eight offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 34 attorneys, senior benefits consultant and seven paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Nine of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Five of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process. The Wagner Law Group is certified as a woman-owned and operated business by the Women's Business Enterprise National Council.

 

 

 

 

 

 

Contact Info

The Wagner Law Group

 

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Boston 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

 

Washington, D.C.

Tel: (202) 969-2800

 

Fax: (202) 969-2568

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Suite 810

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Fax: (847) 557-1312

190 South LaSalle Street

Suite 2100

Chicago, IL 60603

 

  

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Tel: (561) 293-3590
Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418

   

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101 East Kennedy Boulevard

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Tampa, FL  33602 

  

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San Francisco, CA 94104

  

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Tel: (314) 236-0065

Fax: (314) 236-5743
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St. Louis, MO  63119

 

Lincoln, MA

Tel: (617) 532-8080

Fax: (617) 532-9090

55 Old Bedford Road

Lincoln, MA 01773

 

 

 

www.wagnerlawgroup.com

 

 

 

May 7, 2018

 

Investment Management

Law Alert

 

 

DOL Issues Temporary Enforcement Policy with Respect to Investment Advice Fiduciaries

 

 

 


Today, the Department of Labor ("DOL") issued
Field Assistance Bulletin 2018-02 (the "FAB"), which indicates that both the DOL and the IRS will continue to rely upon its previously announced temporary enforcement policy, pending the issuance of additional guidance by the DOL. The FAB states that during the period from June 9, 2017 until after regulations or prohibited transaction exemptions or other administrative guidance have been issued, neither the DOL nor IRS will pursue prohibited transactions against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions that would have been exempted in the Best Interest Contract ("BIC") and Principal Transactions Exemptions, or treat such fiduciaries as violating the applicable prohibited transaction rules. Investment advice fiduciaries may also continue to rely upon other available exemptions, but neither the IRS nor the DOL would treat an adviser's failure to rely upon such other exemptions as resulting in a prohibited transaction violation if the adviser satisfied the terms of the temporary enforcement policy.

The need for this guidance was prompted by expected issuance today of a mandate from the U.S. Court of Appeals for the Fifth Circuit effectuating its opinion vacating the entire Fiduciary Rule, the BIC Exemption, the Principal Transactions Exemption, and related amendments to existing prohibited transaction exemptions. The DOL recognized that this decision left a number of open questions, with respect to which it intends to provide additional guidance in the future. However, as an immediate step, it wanted to provide guidance as to the breadth of the prohibited transaction exemptions that remain available for investment advice fiduciaries. Of course, with the Fiduciary Rule vacated, the number of individuals who may be investment advice fiduciaries will be significantly reduced.

The FAB does not preclude the DOL from asking the Supreme Court to review the decision of the Fifth Circuit, although that course of action now seems unlikely. Also, the temporary enforcement policy of the DOL and IRS does not affect the rights or obligations of other parties, but, in light of the Fifth Circuit decision, actions by other parties would seem less likely. It will also be interesting to see how the DOL crafts additional guidance in a manner consistent with the Fifth Circuit decision.

The FAB is somewhat difficult to understand. As mentioned above, the DOL expects the Fiduciary Rule and related exemptions to be vacated by the Fifth Circuit today. Once the Fifth Circuit takes action, there will be no rule or exemptions upon which to apply a temporary enforcement policy. FAB's extension of the policy beyond today, until after "regulations or exemptions or other administrative guidance has been issued," is confusing and, if true, will be contrary to the Fifth Circuit's decision.

 

 

 

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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.