Court denies NAFA in DOL fiduciary rule case
Department of Labor fiduciary rule survives its first challenge, by Nick Thornton
The National Association for Fixed Annuities has lost its challenge to the Department of Labor’s fiduciary rule.
In a decision issued today in the United States District Court for the District of Columbia, Judge Randolph Moss denied NAFA’s motions for a preliminary injunction and summary judgment.
Among other things, NAFA claimed DOL violated the Administrative Procedure Act when it shifted the regulation of fixed indexed annuities to the rule’s Best Interest Contract Exemption. In the proposed version of the rule, FIAs were scheduled for regulation under the less restrictive Prohibited Transaction Exemption 84-24.
In shifting FIAs to the BIC exemption in the final rule, NAFA argued industry was not given adequate notice to comment on the implications, as the APA requires.
But Judge Moss cited case law showing that a final rule “need not be the one proposed” in the rulemaking process.
“It is enough that the final rule constitute a logical outgrowth” of the proposed version, wrote Moss.
Moss reasoned that NAFA was given adequate notice that the Department was considering regulating FIAs under the BIC exemption when it explicitly sought comments on whether annuities were adequately regulated in the proposal.
NAFA argued the proposal gave “no inkling whatsoever that the Department was considering moving FIAs from PTE 84-24 to the BIC.”
But Moss ruled that NAFA’s reading of the proposal, and DOL’s request for comment on the viability of how annuities were treated, was “not tenable.”
“The Department expressly requested comment on its decision to ‘continue to allow IRA transactions involving’ fixed indexed annuities ‘to occur under the conditions of PTE 84-24,” wrote Moss.
“That is, it (DOL) asked whether fixed indexed annuities should be grouped under PTE 84-24 or not,” added Moss. “And, if there were any doubt on this, it would be put to rest by the fact that NAFA, along with other industry groups, provided comments on that very issue.”
Full analysis of the ruling will follow.
See the original article Here.
Source:
Thornton, N. (2016 November 04). Court denies NAFA in DOL fiduciary rule case. [Web blog post]. Retrieved from address https://www.benefitspro.com/2016/11/04/court-denies-nafa-in-dol-fiduciary-rule-case?ref=hp-news&slreturn=1478547367
Fiduciary Rollout: DOL to Extend a Hand
Original post employeebenefitadvisor.com
WASHINGTON -- As the dust begins to settle after the Department of Labor issued its hotly contested fiduciary regulation, one of the key officials who led the rulemaking initiative says that he anticipates issuing clarifying guidance on an ongoing basis as industry feedback trickles back on how the rules are working in practice.
“This is a major undertaking and that we need to be mindful of what impact it's having as people are implementing it,” said Timothy Hauser, a deputy assistant secretary at the Labor Department, on Tuesday at a policy forum hosted by the Investment Company Institute. “We need to have the courage to make changes and to be responsive as problems emerge. And I can assure you we have every intent of doing so."
The ICI is a trade group that has been sharply critical of the rulemaking process.
Rule opponents have argued that many firms would be more likely to abandon middle-income clients planning for retirement, rather than submit to the contractual provisions relating to best-interest advice. But Hauser noted that the department made changes as it redrafted the final rule, in a bid to make the provisions less burdensome.
FURTHER TWEAKS TO RULE
Hauser took pains to explain that that process is still ongoing, insisting that he will entertain further tweaks to the rule and will publish clarifying guidance, likely in a question-and-answer format on a "rolling basis."
"We did our level best, really, to try to find the legitimate concerns and objections people had to what we were doing and try to be responsive," Hauser said. "We'll continue to do that as we move forward."
At the same time, Hauser offered a strong defense of the rule and the underlying rationale for the department's effort to crack down on conflicted advice in the retirement sector.
"The basic idea, first and foremost, is that we want advice to be in the customer's interest rather than in the interest of the adviser," he said. "The basis for this project — the reason we undertook this in the first place — was our belief that there was a significant problem in this marketplace."
The department's solution: update its rules under the 1974 Employee Retirement Income Security Act to extend fiduciary obligations to financial professionals working with retirement savers and plans, a threshold that is generally met when an adviser makes an investment recommendation and in turn receives compensation, Hauser said.
Hauser acknowledged that the ERISA statute has a "strong default position against conflicts of interest," but pointed out that the new rule explicitly permits conflicts such as commissions and proprietary products, provided that advisers offer up-front disclosures and aver in a binding contract that they will act in their clients' best interests.
That so-called best interest contract exemption has been one of the chief complaints of industry critics. But Hauser was quick to remind his audience that the rule will have minimal impact on advisers who offer advice that is free of conflicts.
"[T]there's nothing in the natural order of things that requires people to receive conflicted compensation streams as a condition of giving advice," he said. "However, we also don't outlaw conflicted compensation streams. The firm can continue to get commissions, it can get 12b-1 fees, it can get revenue sharing, it can get the variety of third-party payments."
Hauser continued: "But there's a quid pro quo for that. There's a basic deal that you need to strike with your customer, by and large, if you want to do that, and the deal is simple. You have to make a commitment to the customer that you're going to act in their best interest, and it needs to be enforceable."
NOT FOR PUNITIVE ENFORCEMENT
Hauser also said the DoL is not looking at the rule as a vehicle for a punitive enforcement policy. Instead, he said that the department is hoping to serve as a resource for affected firms and to work with them in a collaborative spirit as they implement the new rules.
"Our primary efforts are not going to be about finding people to sue, it's going to be about helping people to comply," he said. "Any problems you're wrestling with, issues you're trying to deal with, operational issues you're confronting — we'd love to hear from you, we'd love to be able to give advice. I would much rather get advice out early rather than have you build entire systems only to have us say, 'Nah, we don't think that complies.' I think it's in all our interest to make this work."
5 things to know about the DOL fiduciary rule
Original post benefitspro.com
Tomorrow marks the last day the White House’s Office of Management and Budget will accept meetings with industry stakeholders hoping to influence the finalization of the Department of Labor’s fiduciary rule.
1. When will the DOL fiduciary rule be finalized?
That means a final rule could emerge as early as next week, but more likely by the end of the month, according to Brad Campbell, an ERISA attorney with Drinker Biddle.
Campbell and Fred Reish, who chairs Drinker Biddle’s ERISA team, addressed a conference call on the DOL rule’s potential impact.
Nearly 1,000 stakeholders participated, testament to the wide-ranging impact the rule is expected to have on advisors and service providers to workplace retirement plans and individual retirement accounts.
2. Will the DOL rule be stopped?
Several legislative efforts that would delay or defund the rule’s implementation, as well as strategies to address the rule through the appropriations process or the Congressional Review Act, are “real and substantive,” said Campbell, but stand little chance of blocking implementation of the rule.
“The likelihood that Congress can stop DOL is low,” said Campbell.
He expects more Democrats to find the rule to be problematic once it is finalized, but not enough to create the two-thirds majority needed to override a veto from President Obama, which would be all but guaranteed of any legislation Congress passes.
3. When would compliance be expected?
Campbell also said he expects the Obama Administration to waste little time making industry comply with the new rule. An end-of-year compliance date should be expected, he said.
“Obama is going to want to have a deadline in place before he leaves. That will make it much harder for the next administration to undue” the rule, said Bradford.
4. Will others try to block the rule?
While Congressional efforts to block the rule will likely prove impotent, Campbell said private lawsuits seeking to block the rule’s implementation are “a very real possibility.”
“DOL has done some things I think they lack the authority to do,” explained Campbell, who referenced a recent majority report from the Senate Committee on Homeland Security and Governmental Affairs.
That report alleged the Obama Administration was “predetermined to regulate the industry” and sought economic evidence to “justify its preferred action” in directing the DOL to write a rule that would expand the definition of fiduciary to include nearly all advisors to 401(k) plans and IRAs.
The report also claims DOL willfully ignored recommendations from the Securities and Exchange Commission, the Treasury Department and the OMB as it crafted its proposed rule.
Campbell called those arguments and others enumerated in the Committee’s report “legitimate.”
If lawsuits from stakeholders do emerge, courts may delay implementation of the rule as claims are litigated, but Campbell seemed to dissuade stakeholders from holding out too much hope for that possibility.
“No one can predict where the courts will go,” he said.
5. What will the fiduciary rule’s impact be?
Fully preparing for the rule’s impact is of course impossible before it is finalized.
Nonetheless, Campbell and Reish itemized the ways a final rule is likely to impact industry. They are hoping regulators address several vague areas of the proposal in the final weeks of the rulemaking process.
Still unknown is whether the rule will provide a grandfather provision for tens of millions of IRA accounts already in existence.
Also at question is the proposal’s education carve-out, which could greatly impact how service providers’ call centers interact with plan participants, and whether including specific funds in asset allocation models would rise to the level of fiduciary advice.
Campbell said he expects the DOL to finalize an education carve-out that is a bit more forgiving than what was initially proposed. He expects a final rule will allow specific investments to be mentioned, so long as a range of comparable options are offered as well.
There also is the question of whether or not 401(k) and IRA platform providers will be allowed to offer access to 3(21) and 3(38) fiduciaries, and whether or not doing so would be a fiduciary action.
But the biggest questions impacting a final rule’s ultimate impact relates to the proposal’s Best Interest Contract Exemption, said both Campbell and Reish.
How those exemptions are ultimately finalized will shape the IRA market and how providers and advisors recommend rollovers from 401(k) plans.
The attorneys said they expect a final rule to consider rollover recommendations a fiduciary act.
One concern for advisors will be when they need an exemption to advise on a rollover.
If general education on rollovers is offered, without advice, one natural consequence is that investors will ask advisors what they should do, said the attorneys.
“Is no advice better than so-called conflicted advice?” asked Reish rhetorically. “Prudent advice can still be prohibited” under the rule’s proposal, he said.
That fundamental question is likely to make whatever rule that emerges “extraordinarily disruptive” to the IRA market, the attorneys said.