Should the DOL Fiduciary Duty Rule be Rescinded While the SEC Ponders its Own Standard?

On June 1, 2017, the Securities and Exchange Commission requested input regarding the DOL Fiduciary Duty Rule and the SEC’s development of its own fiduciary standard governing investment advice to retail investors. To view Chair Clayton’s public statement requesting Public Comments from Retail Investors and Other Interested Parties on Standards of Conduct for Investment Advisers and Broker-Dealers, click here.

In the public statement, Chair Clayton remarked: “The [DOL’s] Fiduciary Rule may have significant effects on retail investors and entities regulated by the SEC. It also may have broader effects on our capital markets. Many of these matters fall within the SEC’s mission of protecting investors; maintaining fair, orderly, and efficient markets; and facilitating capital formation.” Chair Clayton stressed the need for intergovernmental coordination and “robust, substantive input that will advance and inform the SEC’s assessment of possible future actions.”

Curiously, the SEC did not specify a deadline for the requested input, which raises the question: Just how long is this analysis going to take? After all, the RAND study concluded almost ten years ago. And, the DOL Fiduciary Duty is scheduled for full implementation on January 1, 2018.

In our view, the SEC’s reasoning leads to one, and only one conclusion: The DOL Rule should be rescinded until the Commission completes its analysis and there has been full and complete intra-agency review and publication of (a) whether there should be a uniform fiduciary duty standard and, if so, (b) its scope. The Commission is charged with regulation of our capital markets, of which retirement accounts are only a part.

Otherwise, chaos will reign and the retail investor will ultimately suffer, as “orderly disorder is based on careful division.”

Posted in Department of Labor (DOL), Fiduciary Duty Rule, SEC, Uncategorized

Acosta and New DOL FAQs Confirm: Fiduciary Standard Will Take Effect June 9, But Expect Changes to the DOL Rule Before January 1, 2018

On May 22, 2017, new DOL Secretary Alexander Acosta published an Op-Ed piece in the Wall Street Journal (found here; a subscription to the Journal is required to access the piece), confirming that, as we previously suspected, the DOL will allow the fiduciary standard for retirement advice to take effect on June 9. (Our previous blog post discussing the delay to June 9 is here.)

In his piece, Acosta sounds, at best, skeptical about the Rule. He writes, “the Fiduciary Rule as written may not align with President Trump’s deregulatory goals. This administration presumes that Americans can be trusted to decide for themselves what is best for them.” However, Acosta concedes that the DOL has “found no principled legal basis to change the June 9 [applicability] date while we seek public input.”

Acosta advises that the DOL will seek additional public input on the entire Fiduciary Duty Rule and on “how to revise this rule.” Acosta explicitly hopes that the SEC will be a “full participant” in revising the Rule as the SEC has “critical expertise in this area.” (Our previous blog post discussing the interplay between the DOL and the SEC in considering a fiduciary standard is here.)

So, that means on June 9, the Fiduciary Duty Rule will go into partial effect. Persons who make recommendations to retirement investors will be considered fiduciaries. Full implementation is currently scheduled for January 1, 2018, but, given Acosta’s comments, it seems clear that further (and probably significant) changes will be made before then.

The DOL also issued new Conflict of Interest FAQS last week, further explaining what firms and advisers must do during the transition period from June 9, 2017 to January 1, 2018. (The FAQs can be found here.)

  • Firms and advisers advising retirement investors must comply with an exemption (such as the BICE or PTE 84-24) after June 9 if they receive compensation for investment advice that varies based upon the transaction or product sold.
  • The BICE will be less onerous during the transition period. To rely on the BICE during the transition period, firms and advisers need only comply with the “Impartial Conduct Standards,” which are: (i) give advice that is in the “best interest” of the retirement investor (meaning advice that is prudent and loyal); (ii) charge no more than reasonable compensation; and (iii) make no misleading statements about investment transactions, compensation, and conflicts of interest. The other BICE conditions, including the requirement to execute a contract with the customer containing certain enforceable promises, making certain specified disclosures, and implementing certain policies and procedures, will not be required during the transition period.
  • Also, during the transition period, firms and advisers may continue to rely on PTE 84-24 for all annuity contracts, except that they must also comply with the Impartial Conduct Standards.
  • The DOL again cautioned that it “expects financial institutions to adopt such policies and procedures as they reasonably conclude are necessary to ensure that advisers comply with the Impartial Conduct Standards.” However, the DOL specified that it “does not require firms and advisers to give their customers a warranty regarding their adoption of specific best interest policies and procedures, nor does it insist that they adhere to all of the specific provisions of [the BICE].” FAQs at p. 5.

The FAQs reaffirm that, during the transition period, “even if a fiduciary adviser recommends proprietary products or investments that generate commissions or other payments that vary with the investment recommended, the adviser can meet the impartial conduct standards by ensuring that the recommendations are prudent; the investment advice is based upon the customer’s financial interests, rather than the adviser’s competing financial interests in the transaction; the communications are free from material misrepresentations; and the associated fees and charges are reasonable.” FAQs at p. 5.

Consistent with Acosta’s Op-Ed piece, the FAQs state that the DOL intends to issue a Request for Information soon for additional public input on the Rule and its exemptions, including whether an additional delay to the full implementation date is prudent.

Finally, the DOL attempts to reassure firms and advisers that it will work together with them “to help them come into compliance with the Fiduciary Rule” and that its focus will be “marked by an emphasis on compliance assistance (rather than citing violations and imposing penalties).” FAQs at p. 10. The DOL states that it is issuing “a new temporary enforcement policy for the transition period, under which the Department will not pursue claims against fiduciaries who are working diligently and in good faith to comply with the fiduciary duty rule and exemptions.” FAQs at pp. 10-11.

Some insiders in the financial markets are taking comfort from the DOL’s assurances that it will work with firms and advisers to assist in achieving compliance rather than to punish good faith efforts that may nevertheless fall short. Others, however, have said that they are reminded of President Reagan’s famous quote that “the nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’”

Posted in Administration, Department of Labor (DOL), Fiduciary Duty Rule, Retirement Planning, Uncategorized | Tagged , , , , ,

Cybersecurity Alert: WannaCry Ransomware Attack

In response to the “WannaCry” ransomware attack, the SEC’s Office of Compliance Inspections and Examinations (OCIE) has issued an alert (available here) warning firms that they should immediately evaluate whether their computer systems are operating properly and whether they have updated their operating systems to patch the vulnerabilities that the attack has exploited.  The United States Department of Homeland Security also issued an alert (available here).

Last week and over the weekend, the WannaCry attack roiled industries throughout the world by exploiting a soft spot in the Microsoft Windows operating system that had been exposed through a hack of documents from the National Security Agency.  This ransomware attack infiltrates your computer systems, encrypts your files, and then demands payment of $300 in bitcoin (an untraceable online currency) for the return of your files.

Given the kinds of information that firms store on their systems, particularly sensitive customer personal and financial information, all firms should review the OCIE’s alert (available here) and the alert published by the United States Department of Homeland Security (available here).

Posted in Cybersecurity and Data Privacy, Uncategorized | Tagged , , ,

SEC Chair and DOL Secretary Both Confirmed: Who Will Take Lead on Fiduciary Duty Rule?

On April 27, 2017, the Senate confirmed Alexander Acosta as the new Secretary of Labor, and on May 2nd, the Senate confirmed Jay Clayton as SEC Chairman. With Trump’s nominees for the respective positions now in place, some insiders expect to see a unified approach on a fiduciary standard rule.

After all, the Dodd-Frank Act of 2010 gave the SEC – not the DOL – the authority to promulgate rules to provide a fiduciary standard of conduct for broker-dealers. But, when the SEC failed to act on this authority, the DOL stepped in and enacted its own Fiduciary Duty Rule for retirement investors.

Currently, that DOL Fiduciary Duty Rule is scheduled to go into effect on June 9, 2017.

Will it still?

The same day he was approved by the Senate as DOL Secretary, Acosta received a letter signed by 124 Congressional Republicans urging him to further delay implementation of the Fiduciary Duty Rule and eventually kill it. The letter called the issue an “urgent need” and echoed the concerns of financial industry groups who warn of the Rule’s negative impact on the retirement industry.

And on the SEC side, then-acting SEC Chair Michael Piwowar blasted the DOL Rule back on March 2, and suggested that the SEC should be taking the lead on the development of a standard of conduct. “I think it is a terrible, horrible, no good, very bad rule,” Piwowar said at the Investment Adviser Compliance Conference in Washington. “For me, that rule was never about investor protection. It was about enabling trial lawyers to increase profits.”

Piwowar followed up on April 21:

“We have an opportunity, with a changeover in administration now, for the SEC to reassert its role in this space,” Piwowar said at a Mutual Fund Directors Forum Conference in Washington. “That’s something that I look forward to having discussions [about] with the new chairman.”

Piwowar suggested “taking a step back” and perhaps using the 2008 results of the RAND study that the SEC commissioned as a starting point for the renewed discussion. The RAND study found that retail investors generally had difficulty understanding the distinctions between investment advisers and broker-dealers, including their duties of care, the titles they use, the services they offer, and the fees they pay for those services.

Some industry insiders urge that the DOL should step aside and defer to the SEC – as the SEC has over 80 years of experience on the subject and began the rule-making process back in 2007 by commissioning the RAND Study.

So, what will Acosta and Clayton do? The text of the DOL’s Delay Rule, which was issued on April 7, suggested very strongly that the DOL intended to allow the extended June 9, 2017 applicability date for the Fiduciary Duty Rule to go forward. Our blog post analyzing the Delay Rule is here.

And yet some insiders expect Acosta to assert his new role by further delaying the Rule or even taking steps to rescind it.

Ultimately, given how unpredictable the process has been to date, financial institutions and advisers would be wise to prepare for the DOL Rule to go forward as scheduled on June 9. Given that the DOL has explicitly said it expects firms to “implement procedures to ensure that they are meeting their fiduciary obligations” as of June 9, it would be risky to assume that, whatever they ultimately do, the new DOL Secretary or DOL Chair will act quickly enough to prevent those “fiduciary obligations” from taking effect on June 9.

Posted in Department of Labor (DOL), Fiduciary Duty Rule, SEC, Uncategorized | 1 Comment

DOL Issues Rule Delaying Applicability Date of Fiduciary Duty Rule for 60 Days, Until June 9, 2017

On Friday, April 7, 2017, the DOL published its final rule delaying the applicability date of the Fiduciary Duty Rule for 60 days, from April 10, 2017 until June 9, 2017. The full text of the final rule (the Delay Rule), 82 Fed. Reg. 16902, is here.

The Delay Rule has five important parts:

  • The applicability date of the Fiduciary Duty Rule is delayed for 60 days until June 9, 2017 – meaning that the application of a fiduciary standard to persons who make recommendations to retirement investors takes effect on June 9;
  • The applicability date of the Best Interest Contract Exemption (the BICE) and the Principal Transactions Exemption is delayed for 60 days until June 9, 2017;
  • Fiduciaries relying on the BICE and the Principal Transactions Exemption are required to adhere only to the “best interest” standard and the other Impartial Conduct Standards of those exemptions during the transition period from June 9, 2017 through January 1, 2018 – meaning that the other conditions in the BICE and the Principal Transactions Exemption, such as requirements to make specific written disclosures and representations of fiduciary compliance in investor communications, are not required until January 1, 2018;
  • The applicability of amendments to PTE 84-24 is also delayed until January 1, 2018 (thereby allowing indexed and variable annuity transactions to proceed under PTE 84-24 until January 1, 2018, rather than the more strenuous BICE), except that the Impartial Conduct Standards will become applicable on June 9, 2017; and
  • The applicability dates of the amendments to other previous granted PTEs are extended for 60 days until June 9, 2017.

The DOL states the Delay Rule is necessary to enable the DOL to perform the analysis required by Trump’s February 3 Presidential Memorandum on Fiduciary Duty Rule, which instructed the DOL to analyze:

  • Whether the Fiduciary Duty Rule may harm investors’ ability to access retirement savings offerings, products, information or advice;
  • Whether the applicability or implementation of the Fiduciary Duty Rule will cause disruption in the financial services industry that will adversely affect retirees; and
  • Whether the Fiduciary Duty Rule is likely to result in an increase in litigation and consumers’ costs to access the retirement market.

The Presidential Memorandum instructs that, if the DOL answers any of the above questions in the affirmative, then the DOL is required to propose a rule (for notice and comment) “rescinding or revising the [Fiduciary Duty] Rule, as appropriate and as consistent with law.”

Our blog post discussing Trump’s February 3 Memorandum is here.

So, will the DOL act again before June 9, either to push the applicability date out farther, or to revise or rescind the Fiduciary Duty Rule in light of the analysis performed in accordance with Trump’s Memorandum?

The full text of the Delay Rule makes that sound unlikely.

Rather, the DOL states several times that it expects to have its analysis required by the Presidential Memorandum completed by January 1, 2018:

“Based on its review and evaluation of the public comments, the Department has concluded that some delay in full implementation of the Fiduciary Rule and PTEs is necessary to conduct a careful and thoughtful process pursuant to the Presidential Memorandum.” Delay Rule at 16905.

“At the same time, however, the Department has concluded that it would be inappropriate to broadly delay application of the fiduciary definition and Impartial Conduct Standards for an extended period in disregard of its previous findings of ongoing injury to retirement investors.” Delay Rule at 16905.

“[Full compliance] is not required until January 1, 2018, by which time the Department intends to complete the examination and analysis directed by the Presidential Memorandum. In this way, the Fiduciary Rule (i.e., the new fiduciary definition itself) will become applicable after the 60-day delay, and the BIC Exemption and the Principal Transactions Exemption will be available as of that date but these exemptions will only require fiduciaries to adhere to the Impartial Conduct Standards for covered transactions until January 1, 2018, when the remaining conditions will apply unless revised or withdrawn. Delay Rule at 16905.

“In the Department’s view, this approach gives the Department an appropriate amount of time to reconsider the regulatory burdens and costs of the Fiduciary Rule and PTEs, calls for advisers and financial institutions to comply with basic standards for fair conduct during that time, and does not foreclose the Department from considering and making changes with respect to the Rule and PTEs based on new evidence or analyses developed pursuant to the President’s Memorandum.” Delay Rule at 16906.

This means that it appears very likely that the June 9, 2017 applicability date will go forward.

So, firms and financial advisers should expect that, on June 9, 2017, the following provisions will go into effect:

  • They will be fiduciaries to the extent they give investment advice to retirement investors; and
  • They will be subject to the Impartial Conduct Standards, which require that firms and advisers:
    • Provide advice that is in the retirement investors’ best interest (i.e., recommendations that are prudent and loyal);
    • Charge no more than reasonable compensation; and
    • Make no misleading statements about investment transactions, compensation, and conflicts of interest.

The DOL makes clear that it expects firms, during the transition period from June 9, 2017 to January 1, 2018, to “implement procedures to ensure that they are meeting their fiduciary obligations, such as changing their compensation structures and monitoring the sales practices of their advisers to ensure that conflicts [of] interest do not cause violations of the Impartial Conduct Standards, and maintaining sufficient records to corroborate that they are adhering to Impartial Conduct Standards.” Delay Rule at p. 16910.

What happens after that is anyone’s guess. As the DOL states: “[B]etween now and January 1, 2018, the Department will perform the examination required by the President. Following the completion of the examination, some or all of the Rule and PTEs may be revised or rescinded, including the provisions scheduled to become applicable on June 9, 2017.Delay Rule at 16906.

Posted in Uncategorized | 2 Comments

Eighth Circuit Holds McCarran-Ferguson Act Bars RICO Claim Against Insurance Companies Based on Captive Reinsurance Transactions

On Thursday, April 13, 2017, the Eighth Circuit held that the McCarran-Ferguson Act barred a plaintiff from pursuing her RICO claims against an insurance company and its affiliates. The plaintiff had alleged the insurance company and its affiliates had conspired to falsely report their “shadow insurance” transactions to inflate the insurance company’s financial condition and increase the cost to purchase annuities. The federal district court had dismissed the case (the order is here), finding the claims preempted by the McCarran-Ferguson Act. The Eighth Circuit affirmed. The decision, Ludwick v. Harbinger Group, et al., Case No. 16-1561, is here.

Briggs and Morgan, led by Frank Taylor, represented Fidelity & Guaranty Life Insurance Company (F&G), and argued the case before the district court on behalf of F&G.  Debevoise and Plimpton, led by Maeve O’Connor, represented all Appellees before the Circuit.

The Plaintiff, who owned an F&G annuity, asserted that F&G fraudulently moved billions of dollars in liabilities off its books by transferring them in a series of  captive reinsurance transactions (i.e., shadow insurance).  The Plaintiff alleged that F&G’s accounting of its transactions meant that F&G’s financial condition was not as represented, and therefore her annuity was not worth what she paid for it.  She sued under RICO, alleging the F&G and its parent company conspired to distribute deceptive financial reports and marketing materials.

F&G and the other Defendants argued that the Plaintiff’s claims were barred by the McCarran-Ferguson Act, which prohibits application of a federal statute that does not specifically relate to insurance (such as the RICO statute) to impair or supersede state regulation of insurance. F&G argued that, because the state must regulate and approve F&G’s reinsurance transactions, application of the RICO statute to Plaintiff’s claim would impair the state’s regulation of insurance.

The Western District of Missouri agreed and granted F&G’s Motion to Dismiss for failure to state a claim.

On appeal to the Eighth Circuit, Plaintiff argued that her suit did not impair state regulation of insurance, because her claims pertained only to F&G’s bookkeeping, not the underlying propriety of the reinsurance transactions or the state regulator’s approval of them.  The Eighth Circuit disagreed, holding that “questions about insurance company’s solvency are, no surprise, squarely within the regulatory oversight by state insurance departments.”  Decision at p. 5.  The Eighth Circuit noted that reinsurance transactions with affiliates must be submitted to the state insurance commissioner for review before they can be consummated.  Therefore, a federal court could not rule in Ludwick’s favor without holding, more or less explicitly, that the state insurance regulators were wrong to allow the transactions to proceed.

The Eighth Circuit concluded: “Litigating Ludwick’s RICO claims would interfere with state regulation of the insurance business, and the claims are barred by the McCarran-Ferguson Act. The district court was right to dismiss.” Decision at p. 10.

Posted in Uncategorized

The Briggs Forum on Financial Markets: Securities, Insurance, Litigation and Regulation is Thursday, April 20

The Briggs Forum on Financial Markets: Securities, Insurance, Litigation and Regulation (formerly known as the Upper Midwest Securities Litigation and Enforcement Forum) is Thursday, April 20 at Windows on Minnesota, on the 50th floor of the IDS Center.

Our exceptional lineup of speakers will present on challenges and strategies that affect the financial industry, including securities and insurance regulation and enforcement, cyber security and customer data, and current events and ethical considerations.

The full agenda of speakers and topics is as follows:

8:00 – 8:30 am Registration and Continental Breakfast
8:30 – 8:45 am Welcome: Financial Markets in the New Era
 
8:45 – 9:15 am Regulatory Priorities in Minnesota
 
  • Michael J. Rothman, Commissioner,
    Minnesota Department of Commerce
9:15 – 10:15 am DOL Fiduciary Duty Rule: What Now?
 
  • Nicole James Gilchrist, Senior Counsel, Thrivent Financial
  • Eric L. Marhoun, EVP and General Counsel,
    Fidelity & Guaranty Life Insurance
  • Ambassador Tom McDonald, Partner, BakerHostetler
  • Julie H. Firestone, Briggs and Morgan, P.A. (Moderator)
10:15 – 10:30 am Break
10:30 – 11:30 am Focus on the Regulators: What Can We Expect in Financial Regulation
 
  • R. Scott DeArmey, District Director, FINRA
  • Paul Mensheha, Regulatory Counsel, SEC
  • Frank A. Taylor, Briggs and Morgan, P.A. (Moderator)
11:30 am – 12:30 pm Networking Lunch (provided)
12:30 – 1:15 pm Current Events and Ethical Considerations
  • Professor Richard W. Painter,
    University of Minnesota Law School
1:15 – 2:15 pm An Aging Population: Elderly Clients and Clients with Diminished Capacity
  • Melissa J. Morris, Special Care Planner,
    Minneapolis Financial Group
  • Anita Raymond, LISW, CMC,
    Volunteers of America
  • Andrea Smith, Corporate Counsel, Wells Fargo
  • Robert A. McLeod, Briggs and Morgan, P.A. (Moderator)
 2:15 – 2:30 pm Break
 2:30 – 3:15 pm Managing the Inside/Outside Counsel Relationship
  • Margaret A. Goetze, Associate General Counsel,
    RBC Wealth Management
  • Jen Randolph Reise, AVP Corporate Compliance and Ass’t Corporate Secretary, Regis Corporation
  • Eric J. Rucker, Senior Counsel, 3M
  • Scott G. Knudson, Briggs and Morgan, P.A. (Moderator)
3:15 – 4:15 pm The New Great Train Robbery: Cyber Security and Protecting Customer Data
 
  • James C. Browning, Jr., Deputy General Counsel and VP, Stifel, Nicolaus & Company
  • Michelle M. Carter, Assistant Vice President – Executive Risk, Hays Companies
  • David E. Rosedahl, General Counsel,
    Dougherty & Co.
  • Daniel J. Supalla, Briggs and Morgan, P.A. (Moderator)
4:15 – 5:00 pm  Networking Reception
The agenda has been submitted for 6 CLE credits (.75 ethics credit, 1 elimination of bias credit and 4.25 general credits).
Lunch will be provided.

Click here to register.

 

Posted in Cybersecurity and Data Privacy, Department of Labor (DOL), Fiduciary Duty Rule, FINRA, Insurance, Litigation, Retirement Planning, SEC, Securities Litigation, Uncategorized | Tagged , ,