National Football League fans often get giddy with their team’s pre-season start, only to succumb to “despair” as the harsh reality of regular season sets in, quips attorney Richard McHugh (Porter Wright Morris Arthur) in a recent Lexology post. In the same way, opponents of the U.S. Department of Labor’s recent proposal to include ESOP appraisers as ERISA fiduciaries, including many among the BV profession, may soon feel the same way, McHugh says. “This battle is not over and is not yet won.”
Why? High-ranking DOL representatives have indicated that, in re-proposing the regulation, they are “not backing down on some of the major tenets of the original,” and that they will “deal with concerns about the regulation’s application to routine appraisals,” such as those in the ESOP sector, McHugh reports. Moreover, the re-proposal—which may be ready as early as next year, “may prove harder to fight, thus perhaps making the recent withdrawal a pyrrhic victory.” Affected entities may still have to fight the fiduciary label—or, as BVWire cautioned when the news first hit our fans, the ongoing administrative scrimmaging may simply drive some BV firms to drop their ESOP practices. As McHugh quotes one DOL representative, “I see a very short line of people in front of our building saying they want to be a fiduciary.”
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