Risk & Reward

New York issues final regulation placing “best interest standard” on the sale of life insurance products and annuities

As we previously noted, 2018 promises to be an eventful year at the state level for the regulation of the sale of life insurance and annuity products.  Today, New York issued its much anticipated final regulation that imposes a “best interest” standard.  The regulation requires insurers to, among other things, put in place policies and procedures to ensure that agents and brokers put the interests of consumers ahead of their own when making a recommendation regarding a life insurance product or annuity.  The New York rule comes out before the National Association of Insurance Commissioners (NAIC) holds its August 4, 2018 meeting to address revisions to its existing annuity suitability rule, which could impact the laws of numerous states.  Unlike New York’s new regulation, NAIC’s existing suitability regulation and proposed “best interest” regulation to be addressed at the August 4, 2018 meeting apply only to the sale of annuity products.  Stay tuned for our forthcoming analysis of the New York regulation, its implications for the life insurance/annuity industry, and its potential impact on the discussions at the upcoming NAIC meeting.

Bill Mandia on Latest DOL Fiduciary Rule Intervention Attempt

When the Fifth Circuit finally entered its mandate and judgment on June 21, 2018 “vacat[ing] the Fiduciary Rule in toto”, the DOL’s fiduciary rule, as a matter of law, officially became a dead letter.  But on remand, the United States District Court for the Northern District of Texas created a narrow opening through which, in theory, the parties who unsuccessfully sought to intervene in the Fifth Circuit could make yet another attempt to save the fiduciary rule.  Specifically, the district court issued an Order on June 28, 2018 requiring any party seeking “further relief” to notify the court by July 12, 2018.  The court further stated that “[i]f no notice is received, the case will be dismissed with prejudice and without further notice.”  The District Court did not specify any “further relief” that it believes could be sought, but the court may want to determine whether the unsuccessful attempted intervenors in the Fifth Circuit will file a petition for a writ of certiorari with the United States Supreme Court.  The deadline for the attempted  intervenors to do so is July 31, 2018.

The odds that the Supreme Court would grant certiorari to the attempted intervenors are extremely long because, among other reasons, the petitions to intervene were not well founded, as the Fifth Circuit recognized.  Nevertheless, the parties, including the DOL, in Thrivent Financial for Lutherans v. R. Alexander Acosta, et al., U.S.D.C. Minn., Civ. A. No. 16-cv-03289, have asked the United States District Court for the District of Minnesota to continue a previously entered stay in that litigation pending the July 12 deadline set by the United States District Court for the Northern District of Texas.  While it is highly unlikely that a petition for certiorari by the attempted intervenors will succeed, they may nonetheless seek further review as noted by the parties in Thrivent Financial.  It is important, however, to keep in mind that the fiduciary rule should still be deemed vacated, even if a petition for certiorari is filed, because the Fifth Circuit’s mandate remains effective absent a stay, which seems extremely unlikely at this point.  We will have a further update on June 12 regarding whether the attempted intervenors respond to the North District of Texas’ Order.

Jim Podheiser on state of play re. prohibited transaction exemption relief for investment advice

“With the DOL’s fiduciary rule and the new and amended exemptions associated therewith (the “Rule”) officially vacated, many are wondering about the implications of the DOL’s last statement of its (and the IRS’) temporary enforcement policy (FAB 2018-02).  In the absence of the Rule we are back to the old “5-part test” for determining whether one is an investment advice fiduciary.  If one is an investment advice fiduciary under the 5-part test, the temporary enforcement policy would seem to provide what is the equivalent of a prohibited transaction exemption that did not exist prior to the Rule (for example, to permit the investment advice fiduciary to receive third-party compensation assuming the “impartial conduct standards” are satisfied).  Whether the DOL would agree with this analysis in all cases and how long this temporary enforcement policy will be maintained remains to be seen.”

Fifth Circuit’s Ruling – Nationwide Effect

Per Bill Mandia, “I don’t see there being any question about the nationwide impact.  The Fifth Circuit determined that the DOL’s actions were not a proper exercise of its statutory authority.  That ruling should, under the Administrative Procedures Act, vacate the rule nationwide.  The mandate is drafted in that manner because it provides that the Fifth Circuit “vacat[ed] the Fiduciary Rule in toto.””

Timeline of Fiduciary Rulemaking

Timeline of Fiduciary Rulemaking (click image to enlarge)

The Fiduciary Rule: Gone, But Not Forgotten

With yesterday’s action by the Fifth Circuit Court of Appeals effectively unwinding the Department of Labor (DOL) Fiduciary Rule, financial institutions now only become investment advice fiduciaries to retirement plans subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA) and individual retirement accounts if they satisfy the original five-part test, a higher threshold (for becoming a fiduciary) to be sure. While the road to the Fifth Circuit officially vacating the Fiduciary Rule unnerved some, we urged calm, and believe that a measured approach continues to work best.

As a reminder, under the five-part test, one becomes an investment advice fiduciary under ERISA if he or she (1) provides advice as to the value of securities or other property, or makes recommendations as to the advisability of investing in, purchasing or selling securities or other property, (2) on a regular basis, (3) pursuant to a mutual agreement, arrangement, or understanding with the plan or a plan fiduciary, that (4) the advice serves as a primary basis for investment decisions with respect to plan assets, and where (5) the advice is individualized based on the particular needs of the plan or IRA.

With the Fiduciary Rule now just a memory, various firms’ fiduciary status is likely to change, particularly around rollover recommendations. Because of this, we continue to recommend:

  1. Inventorying the type and nature of typical communications with retirement investors (e.g., other fiduciaries, plan participants, IRAs, etc.) and tagging those that might no longer be fiduciaries under the five-part test.
  2. Identifying any representations, disclosures or statements regarding fiduciary status that were made in light of the Fiduciary Rule’s scope, which may at some point need correction.
  3. Re-examining what changes were made to internal policies and procedures to account for the Fiduciary Rule, particularly as state regulators have used non-compliance as a basis for blue sky law violations.
  4. Reconsidering any revisions to contracts in order to satisfy the DOL’s guidance on 408(b)(2) disclosures that it issued last August.
  5. Re-evaluating whether to continue excluding small plans and IRAs from investing in private funds, if that determination had been made to prevent a fund manager from inadvertently becoming an investment advice fiduciary to an IRA investor or small plan during the sales and subscription process.

But the DOL is not the only show in town. Fiduciary rulemaking over retail advice continues to evolve, as we highlight in the timeline below.

Timeline Fiduciary Governance Retail Investment Advice
(Click image to enlarge)

Firms continue to comb through the Securities and Exchange Commission’s (SEC) standard of conduct release. Investment advisers, for instance, may be seeking clarity from the SEC on its proposed Interpretive Release on the extent to which the adviser may satisfy its fiduciary duties through disclosure. Both broker-dealers and investment advisers are also considering the extent to which proposed Form CRS would help alleviate investor confusion.

The SEC also proposed (A) to require broker-dealers and investment-advisers to prominently disclose their registration status; and (B) to restrict standalone broker-dealers and their financial professionals from using the terms “adviser” and “advisor” as part of their name or title. These proposed changes are part of greater scrutiny by federal and state regulators over the titles financial professionals use that could confuse investors as to the nature of the relationship, which has been the focus of a number of state legislatures. Interestingly, the states are taking different approaches to title reform.

Various bills, including New York’s Investment Transparency Act, which either attempt to impose fiduciary status and other heightened obligations on federally-regulated broker-dealers and investment advisers or seek enhanced disclosure of whether a firm is acting in a fiduciary capacity, are advancing. Some of these bills interplay with the SEC standard of conduct release with the prospect that the risk associated with these bills will not be known until the SEC finalizes its standard of conduct release, assuming SEC Chair Jay Clayton can garner enough votes from his fellow commissioners.

The Fiduciary Rule may be gone, but it hasn’t been forgotten. Investor confusion over fiduciary status and conflicts of interest have the attention of the SEC and the states.

Key Takeaways from the GAO Report on ESG Investing by ERISA Fiduciaries

The Government Accountability Office (GAO) yesterday released a new report on ERISA fiduciaries’ incorporation of environmental, social and governance (ESG) factors into its investment process. At 63 pages, here are the key takeaways:

  1. The report is focused only on instances where fiduciaries consider ESG factors as material risk factors that are part of an ordinary prudence analysis. In other words, the GAO did not focus on other strategies (e.g., impact investing), such as those that select an ESG factor for moral reasons, etc., which is the historical association of ESG investing. In this sense, the GAO deserves a lot of credit for focusing on this sophisticated approach to ESG.  You may recall that my paper on climate change risk focused on this very issue.
  2. Rather unfortunately, the report was largely completed prior to the DOL’s issuance of Field Assistance Bulletin (FAB) 2018-01, which we discussed here. The principal recommendation by the GAO is for the DOL to issue guidance on whether a fiduciary can incorporate ESG factors into the management of a default investment option in a defined contribution plan. As you may know, FAB 2018-01 seemed to do just that, though not in an entirely clear manner. Nevertheless, the GAO addressed FAB 2018-01 at the end of the report and narrowed its initial recommendation, namely, that the DOL better explain how fiduciaries can utilize the integration strategy in a QDIA. In the DOL’s defense, FAB 2018-01 seems to address (to some extent) whether a QDIA can utilize the integration strategy; the DOL instead hit the brakes on offering a themed ESG product as a QDIA.
  3. According to the GAO, the DOL is amenable to issuing additional guidance on ESG investing, provided there is enough interest by fiduciaries. The DOL is mum on its Form 5500 project, and whether any ESG disclosures on a revised 5500 are in the works.
  4. Those close to ESG will unlikely find anything surprising in the GAO report on the various reasons why ESG is not yet widely adopted by US retirement plans: questions over the reliability/comparability of disclosures, ratings and rankings–designed to help fiduciaries incorporate ESG factors–all continue to be cited as impediments. Regulatory uncertainty, and definitional ambiguities, also remain hindrances. I recently spoke on a number of these constraints to greater adoption by fiduciaries.

Litigator Bill Mandia Provides Key Context on the States’ Latest Efforts re. the DOL Fiduciary Rule

Undeterred by the Fifth Circuit’s rejection of their request to intervene in U.S. Chamber Commerce v. U.S. Dep’t of Labor, the States of California, New York, and Oregon moved for reconsideration in the Fifth Circuit today. The States request that the three-judge panel who heard the appeal reconsider their denial of the States’ petition to intervene or, at a minimum, refer the question of intervention to the entire Fifth Circuit for a rehearing en banc.  The States previously requested a rehearing en banc, which the court rejected as improper because the States are technically not parties to the appeal.  The States’ motion notes that the business groups that filed the action against the DOL will oppose their request and that the Department of Justice, on behalf of the DOL, takes no position on it.

It remains to be seen how the panel addresses the request, but for the reasons discussed in our prior blog post, the States face an uphill battle.  It is unlikely that the panel will reconsider its prior ruling and allow the States to intervene because the States have not presented any new lines of evidence or argument that were unavailable to them when they made their original request to intervene.  While a 2-1 decision on a significant issue always raises the possibility of a rehearing en banc, the relative weakness of the States’ arguments regarding intervention may lead the panel to conclude, even in a 2-1 vote, that the issue is not worth the entire Fifth Circuit’s time.

DOL Provides Stopgap Prohibited Transaction Relief Amidst Fiduciary Rule Uncertainty

The Department of Labor (DOL) issued Field Assistance Bulletin (FAB) 2018-02, which states that the DOL and Internal Revenue Service (IRS) will not bring an enforcement action against firms for non-exempt prohibited transactions that arise from providing fiduciary investment advice to plans and IRA holders when they exercise reasonable diligence and act in good faith in complying the impartial conduct standards. This non-enforcement policy binds only the DOL and IRS; state regulators and private plaintiffs could potentially seek to bring an action for alleged non-compliance with the impartial conduct standards.

The impartial conduct standards are already familiar to many service providers because they were originally set forth in the Best Interest Contract Exemption, which (along with the rest of the DOL’s 2016 Fiduciary Rule) was vacated by the Fifth Circuit Court of Appeals. For the past year, service providers have been eligible for “transition relief” by complying with the impartial conduct standards, which relief is essentially encapsulated by the DOL in FAB 2018-02. This means that service providers can continue with their existing compliance approach in connection with the impartial conduct standards.

The DOL most likely issued FAB 2018-02 because of the confusion over the Fiduciary Rule’s iterations. What was designed as a sweeping and, to many, draconian, rule has since morphed into an ever narrower and more flexible slate of compliance obligations through a series of supplemental guidance issued by the DOL post-election. Uncertainty over how to comply with the Fiduciary Rule has been as much a hallmark of the rulemaking as the rule’s own conditions. FAB 2018-02 seeks to alleviate some of this confusion by allowing firms to continue the compliance approach firms have been taking since last June. The DOL then and now affords firms flexibility to fashion compliance with the impartial conduct standards in ways they determine in good faith satisfies the standards while taking into account the organization’s unique preferences and resources.

FAB 2018-02 provides relief for prohibited transactions that arise from non-discretionary investment advice. Because the DOL Fiduciary Rule was vacated by the Fifth Circuit, the test for when one becomes a fiduciary in the first place, and, therefore, needs a prohibited transaction exemption, is set forth in the original 1975 five-part test. FAB 2018-02 does not resuscitate the Fiduciary Rule or somehow indirectly continue to impose the expansive ways in which one can become an investment advice fiduciary. Rather, FAB 2018-02 appears designed to preserve existing compliance methods for securing prohibited transaction relief for these advisers who are fiduciaries under the old five-part test until the DOL issues formal guidance (likely through the proposal of a new exemption) in the future. One should first determine if they continue to constitute an investment advice fiduciary now that we are back to the much narrower five-part test and, if so, whether they have undertaken reasonably diligent and good faith efforts to satisfy the impartial conduct standards or otherwise comply with a different prohibited transaction exemption.

Third-Parties Launch Effort To Defend The Fiduciary Rule In The Absence Of Action By The DOL – by Bill Mandia

Late last week, the states of California, New York, and Oregon (“States”), along with the American Association of Retired Persons (“AARP”), launched an eleventh hour attempt to rescue the DOL’s fiduciary rule in response to the Fifth Circuit’s ruling last month in U.S. Chamber Commerce v. U.S. Dep’t of Labor.  The States and AARP move to intervene in U.S. Chamber of Commerce for the purpose of challenging last month’s ruling by requesting a rehearing before the entire Fifth Circuit.  While this effort to defend the fiduciary rule may be popular with the respective constituents of the States and AARP, these parties face an uphill battle to secure a reversal of the U.S. Chamber of Commerce decision.

As a threshold issue, the States and AARP must convince the Fifth Circuit to grant their request to intervene in the appeal before the Fifth Circuit will even consider their request for a rehearing en banc.  To meet their burden, the Sates and AARP must demonstrate that:  (1) the motion is timely; (2) they have a legally protected interest in the action; (3) the outcome of the case may impair that interest; and (4) the existing parties do not adequately represent that interest.  Ross v. Marshall, 426 F.3d 745, 753 (5th Cir. 2005).

The States and AARP face significant obstacles in trying to persuade the Fifth Circuit to grant their request to intervene.  Among other issues, the States and AARP fact particularly difficult arguments regarding the timeliness and legally protected interest prongs.  With regard to timeliness, the States and AARP argue that their motion to intervene is timely—even though they filed it just two days before the deadline to request a rehearing en banc and after years of extensive litigation—because up until now the DOL had been defending the fiduciary rule in the Fifth Circuit and in other courts around the country.  As to the legally protectable interest prong, the States argue that they have standing because the elimination of the fiduciary rule will cause their residents “to lose billions in retirement investment gains” based on the DOL’s own projections made in support of the rule that the DOL argues will result in a substantial loss in tax revenue for the States.  AARP, in turn, argues that it has standing because its members will be harmed if the fiduciary rule is extinguished because its members will be deprived of investment advice in their retirement accounts that is in their “best interests.”

Not surprisingly, the U.S. Chamber of Commerce (“U.S. Chamber”) wasted no time in challenging the intervention request by filing a vigorous opposition yesterday.  The U.S. Chamber argues, inter alia, that the States and AARP lack standing because the injuries they claim are purely hypothetical.  With respect to the States, the U.S. Chamber asserts that the mere potential for lost future tax revenue is insufficient to show that the States have sustained an injury-in-fact.  As to AARP, the U.S. Chamber contends that its members have not suffered any harm because they can still receive financial advice that is in their “best interest” even in the absence of the fiduciary rule.  On this point, the U.S. Chamber argues that there are ample protections already in place, such as existing FINRA rules that require broker-dealers to act in their customers’ bests interests when taking certain actions, state insurance regulations that are designed to protect consumers, and federal securities laws that make registered investment advisers fiduciaries.  The U.S. Chamber thus argues that AARP’s members have not suffered harm because the type of investment advice they seek is available regardless of whether the DOL’s fiduciary rule survives.

The U.S. Chamber also attacks the request to intervene on the grounds that it is untimely.  Specifically, the U.S. Chamber argues that the underlying litigation has been ongoing for years without any effort by the States or the AARP to intervene.  The U.S. Chamber points out that the States and AARP had ample time to seek intervention because they knew more than a year ago that the day may come when the DOL may no longer defend the fiduciary rule based on the comments made by President Donald Trump’s administration when President Trump took office in January 2017.  The U.S. Chamber further notes that the States and AARP did not seek to intervene until after the Fifth Circuit issued its ruling in mid-March and, even then, they waited to seek intervention until two business days before the deadline to file a petition for rehearing en banc.

While it remains to be seen whether the Fifth Circuit will grant the request of the States and AARP to intervene, it is clear that they must overcome significant hurdles in order to make their last-ditch effort to save the fiduciary rule.  In addition to the difficult legal arguments they must contend with regarding standing and the timeliness of their request, the States and AARP must convince the Fifth Circuit that it should permit them to defend a rule that the responsible federal regulator has decided to abandon.  Moreover, the question of whether the States and AARP should be permitted to intervene is only a threshold issue they must overcome to continue their fight.  Even if the Fifth Circuit were to permit intervention, the States and AARP would still need to persuade the court that it should rehear the appeal en banc and reverse the ruling made by the three-judge panel in March.