A fight is brewing in the Kansas and Texas courts over whether to allow advocates and opponents of the Department of Labor’s fiduciary rule to state their case.
Insurer Market Synergy urged a Kansas judge Friday to throw out the “barrage” of amicus briefs filed by supporters of DOL’s rule on the basis that the briefs are “irrelevant” to Market Synergy’s request to preliminarily halt the rule’s implementation.
Meanwhile, the federal judge overseeing the three lawsuits filed in Texas against DOL’s fiduciary rule denied on Monday a request by the plaintiffs in the case to establish a schedule regarding potential amicus filings.
District Judge Barbara M.G. Lynn stated in her Monday order that in the Texas case “both sides are represented by sophisticated counsel, and the court has granted generous page allocations for briefing. The court believes existing counsel is fully capable of briefing the legal issues presented.”
While Lynn isn’t barring the filing of amicus briefs in the three Texas suits, which were consolidated, she “seemed to be expressing concern at providing an open invitation to submit briefs, and cautioning potential submitters to think twice about submitting,” says Micah Hauptman, financial services counsel at the Consumer Federation of America. Lynn is “leaving it open to allowing briefs if they are useful to the court.”
Lynn has set a Nov. 17 date to hear oral arguments from both sides. The hearing in the case brought by Market Synergy against DOL was set to take place on Aug. 24 but has been pushed back to Sept. 21.
Barbara Roper, director of investor protection at the Consumer Federation, said she expected more groups to weigh in by the early September filing deadline in the Texas case because the case raises “a broader range of questions” than the more narrowly focused Market Synergy case, which argues that DOL failed to adequately consider the impact of its rule on the sale of fixed indexed annuities.
Market Synergy and supporters of DOL’s rule are duking it out as they await a decision by the Kansas judge on whether he will consider the amicus briefs.
Market Synergy stated in its Friday opposition that the proposed briefs in support of DOL’s rule — filed by AARP, Better Markets, CFA, and the Public Investors Arbitration Bar Association — “are not aimed at addressing the narrow legal or factual issues presented in the [Market Synergy] motion, nor are they helpful to determine it.”
Rather, the insurer argued, “they rehash many of the same points the Department addressed in its opposition brief to Market Synergy’s motion. Worse, the proposed briefs run contrary to the spirit of amici filings — their bias against the motion is apparent. Proposed amici do not wish to serve as the Court’s “friends”; they wish to serve as the Department’s partisan advocates.”
Better Markets’ response to the Market Synergy opposition, filed Tuesday, argues that Market Synergy “wants to keep the proposed brief away from this court because it does exactly what any good amicus brief should — it contributes new information and a unique perspective about the legal and factual disputes the court confronts.”
Dennis Kelleher, president and CEO of Better Markets, a group that supports Wall Street regulation, said the group’s response shows that “Market Synergy’s lawyers rhetoric is entirely incorrect on their analysis of the law and the spirit of amicus briefs.”
Better Markets, he said, “meets all the legal requirements of an amici and adds demonstrably new and different information and perspective to the court, which amply satisfies the test. Moreover, protecting tens of millions of retirees from biased, conflict-ridden advice that is ripping off tens of billions of dollars is not a partisan issue. It’s just wrong and should be against the law as the DOL rule provides. That’s what Market Synergy is really against.”
Market Synergy’s case not only argues that DOL failed to adequately consider the impact of its rule on the sale of fixed indexed annuities, but also that DOL did not provide adequate notice of the decision to require the sellers of fixed indexed annuities to comply with the DOL rule’s best interest contract exemption, or BICE.
“Both claims are false,” Roper said, “as our amicus argues in some detail.”
Roper concedes, however, that “there’s a lot of legal firepower” in the Texas case brought June 2 by the Securities Industry and Financial Markets Association, the Financial Services Institute (FSI), the Financial Services Roundtable, the U.S. Chamber of Commerce, the Insured Retirement Institute (IRI) and four Texas groups.
The nine groups are represented by former DOL solicitor Eugene Scalia, who’s now a partner in Gibson, Dunn & Crutcher’s Washington office and the son of deceased Supreme Court Justice Antonin Scalia.
The groups have “been willing to pour huge resources into this legal challenge and have gotten the representation of really high-powered law firms to argue the case; they are throwing everything into this effort,” Roper said. “But I just don’t think the arguments are on their side.”
The lawsuit brought by nine plaintiffs in Texas, which seeks to have DOL’s rule “vacated” and thrown out, first challenges the “definition and meaning” of the word fiduciary, Scalia said.
The suit also challenges DOL’s oversight of IRAs as well as the rule’s creation of a “private right of action” to bring class-action lawsuits under the best interest contract exemption, which Scalia has called “one of the most troubling aspects” of BICE.
DOL’s rule and its prohibited transaction exemptions “overstep the department’s authority, create unwarranted burdens and liabilities, undermine the interests of retirement savers and are contrary to law,” the lawsuit argues.
The second suit was filed June 8 by the American Council of Life Insurers (ACLI) along with the National Association of Insurance and Financial Advisors (NAIFA), and the third suit was filed on June 9 by the Indexed Annuity Leadership Council. A hearing in NAFA’s case is scheduled for Aug. 25 in a Washington district court. The lawsuit seeks a preliminary injunction to stay the rule, which is currently scheduled to go into effect in April.
— Check out What Is Fiduciary Investment Advice Under DOL Fiduciary Rule? on ThinkAdvisor.