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Saturday, February 4, 2017

Johnny Depp and . . . the DOL's Fiduciary Rule?!?

It has been reported (thank you, Mike S.) that Johnny Depp is pursuing claims against his former business managers for fraud and other breaches of fiduciary duty.  Now, at least two writers, here and here, have drawn a connection between Depp's situation and the noise surrounding the DOL's fiduciary "investment advice" rule.  The point is that Depp's sad state of affairs may have been less likely to have occurred if only - ah, if only - the now-vanishing fiduciary rule had been applicable law.  Maybe Tim Burton can do "Edward Scissorhands II - the ERISA Connection"?!?*

Well, I'm not sure that the connection between Depp and ERISA is as strong as the writers think.  Obviously, the fiduciary rule, even if  applicable, would only have application in respect of retirement accounts, and I didn't see any indication that Johnny's assertions related to 401(k) or IRA money.  Even the DOL's expansive view of its charge wouldn't seem to lead to a justification of regulation outside of the retirement context.**  Details, details, details.

And, speaking of the fiduciary rule, how about yesterday's Trump memorandum directing a review of the rule, coupled with the DOL press release contemplating a delay in the applicability of the rule?  Yuuuuuge news.***

Onwards . . .

* I would note that Depp's representative makes a disparaging reference to the use of a series of press releases to "gaslight" the public into an adverse view of Mr. Depp.  I just want to go on record as saying that I'm not sure that the use of the gaslighting concept in this context is exactly right.  As I previously outlined, Gaslighting is more about punking people through subtle obfuscation than about bludgeoning people with on onslaught of assertions.  I think that the right reference would have involved some kind of accusation that Depp's enemies had blanketed (as opposed to gaslighted) the market with falsehoods.  Details, details, details.

**  Or would it?  The DOL's recent consumer-protection FAQs do contain the following arguably bold suggestion: "[T]he best interest standard and other significant consumer protections offered under the Department of Labor’s Rule and exemptions only apply to retirement accounts in ERISA plans (like 401(k) plans) and IRA accounts where you are building up savings for your future retirement[, and to certain other accounts]. . . .  An investor can always ask an adviser whether the adviser will live by the fiduciary “best interest” standard in the Department of Labor Rule and exemptions for all investments – and if they will not, can consider finding one who does."

*** Give me some credit - it looks like I may have it right, both here and here, that, as a result of the 2016 election, the rule's survival is in real jeopardy, to say the least.

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