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SEC Commissioner Gallagher: Fiduciary Debate Biased Against Brokers

"The current debate over whether the [SEC] should write a rule to put brokers under a fiduciary mandate is 'not fair right now' because of a mismatch in exam data between brokers and advisors, SEC Commissioner Daniel Gallagher [said] ... 'An astounding 20% of the 600,000-plus actively licensed registered representatives have between one and five disclosures for items such as customer complaints, regulatory violations, terminations, bankruptcy, judgments and liens,' Gallagher noted.... 'At the firm level, 17% of broker-dealers had more than six total disclosures, and 5% had more than 20 disclosures.'"

Statement by Commissioner Gallagher on SEC Proposed Rules for Money Market Funds

"Floating the NAV should better inform investors about the risks associated with investing in MMFs and will enhance the transparency of these products, thus reducing the incentive to run. But the only way to ensure that a run is stopped in its tracks is to permit gating.... [T]he combination of floating NAV and gating, which is one of the regulatory options we are proposing today, is the most robust plan for strengthening these important investment products."

SEC Commissioner Daniel Gallagher's Comment Letter to DOL on Proposed Rule on Conflicts of Interest and Fiduciary Duty (PDF)

"It is clear to me that the DOL rulemaking is a fait accompli and that the comment process is merely perfunctory, yet I feel compelled to weigh in on the Fiduciary Proposal because I am convinced that the rule, when finalized, will harm investors and the U.S. capital markets. The proposal is grounded in the misguided notion that charging fees based on the amount of assets under management is superior in every respect and for every investor to charging commission-based fees. It brazenly dismisses both suitability as a proper standard of care for brokers and the FINRA arbitration system as a mechanism to resolve disputes between financial professionals and their clients -- good for plaintiffs' lawyers, bad for investors."

Text of Statement on the Regulation of Money Market Funds by SEC Commissioners Daniel M. Gallagher and Troy A. Paredes, on August 28, 2012

"We were dismayed by the Chairman's August 22, 2012, statement on the proposal she advanced to restructure money market funds. The current discourse about the Commission's regulation of money market funds is rife with misunderstandings and misconceptions. This joint statement is intended as one step in setting the record straight."

In Memoriam: Peter E. Haller

"It is with great sadness that the partners, counsel, associates and staff of Willkie Farr & Gallagher LLP mourn the untimely passing of our partner, colleague and friend, Peter E. Haller. Peter was a partner in the Executive Compensation & Employee Benefits Department and leader for the ERISA fiduciary practice."

SEC Proposes Controversial Rule Requiring Companies to Adopt No-Fault Clawback Policies

"One criticism of the proposal, such as that stated by dissenting Commissioner Daniel M. Gallagher, is that the rule places a strict liability standard on executives where Congress did not mandate one in the Dodd-Frank Act.... A second point of controversy is the definition of 'executive officers.'... According to Commissioner Gallagher and other critics, the rule's no-fault standard, coupled with the broad definition of who the rule applies to, 'creates the potential for substantial injustice' because 'the rule sweeps far more broadly than the group of individuals ultimately responsible for the financial reporting of the entire issuer."

SEC Official Calls White House Memo on Broker Rules 'Propaganda'

"SEC Commissioner Daniel Gallagher blasted a recent memo by White House advisers that said abusive trading practices cost workers billions of dollars in retirement savings. The document favors a [DOL] plan to require brokers to act in the customer's best interest, even when that limits commissions or fees.... 'The White House memo is thinly-veiled propaganda designed to generate support for a widely unpopular rulemaking,' Gallagher said at the annual SEC Speaks conference in Washington."

Long Time Separation Does Not Equal Divorce for Purposes of Beneficiary Designation

"The participant designated his son as beneficiary in 2005, while he was separated, but not divorced, from his wife.... The participant died in 2011 survived by his estranged wife and his son.... The court noted that the participant's intention was clear: he wanted his 401(k) account to go to his son. However, because the participant was still legally married to his estranged wife, she was the one who was entitled to a survivor benefit under the terms of the plan." [Gallagher v. Gallagher, No. 12-400 2 TSH (D.C. Mass. Feb. 26, 2013)]

Health Savings Account Access Expands as 2026 Dawns (PDF)

"[Notice 2026-05] links to two websites containing qualifying telehealth services lists ... Employers may need to work with their telehealth provider to determine whether their services are 'consistent with the principles of' Social Security Act section 1834(m).... It is theoretically possible for an employer to structure an onsite clinic offering [direct primary care service arrangements (DPCSA)] membership with items and services provided outside the DPCSA, available to employees who are not DPCSA members, and billed separately.... If a DPCSA arrangement does not meet the Notice requirements, it provides medical care and would be considered disqualifying insurance preventing HSA eligibility."

The Year Ahead: Planning for 2026 (PDF)

"Both [OMB] and the Spring DOL Regulatory Agenda have teased an upcoming requirement for [PBMs] to disclose fees and rebates to ERISA health plan fiduciaries.... The 2025 new trend extending into 2026 is making prescription drugs available directly to consumers at lower costs,.... New electronic disclosure rules for health plans ... This year should bring additional transparency rules."