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Insurers to ‘Have Their Butts Sued Off’ Under DOL Fiduciary Rule: NAFA Lawyer

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Lawyers representing the National Association for Fixed Annuities told a U.S. District judge Thursday that individual insurance agents would be forced to become registered investment advisors under the Department of Labor’s fiduciary rule and that the current distribution system for fixed indexed annuities would have to be reworked.

Judge Randolph Moss, U.S. District judge for the District of Columbia, heard oral arguments for close to three hours Thursday in the first hearing against DOL’s rule, but did not immediately render a decision.

Philip Bartz, a partner at Bryan Cave and a former U.S. Justice Department lawyer, said during his arguments that DOL’s rule embodies “overreach” by DOL to “do things that Congress never intended” and that it’s “at odds” with state insurance law.

Bartz argued that the Employee Retirement Income Security Act would now pre-empt state law under the rule and that the rule improperly created a private right of action that could set up class-action lawsuits against insurance companies and agents.

“They are going to have their butts sued off,” he said.

Bartz in representing NAFA maintained that DOL’s “new” fiduciary definition is “overbroad” and that DOL “threw” fixed indexed annuities into the fiduciary rule’s best interest contract exemption “at the last minute.”

The rule would cause “extraordinary” harm to the $50 billion industry, Bartz said, noting that 60% of fixed indexed annuity sales go through individual insurance agents.

The DOL disagreed with the assertion that the rule creates a new private right to sue, “arguing that the applicable cause of action is breach of contract, which already exists under state law,” said Erin Sweeney, counsel at Miller & Chevalier, who has also served as senior benefit law specialist at DOL.

Under the Employee Retirement Income Security Act, a fiduciary investment advisor is defined as one who “renders investment advice for a fee or other compensation.”

“NAFA contended the DOL exceeded its authority because neither the statute nor its legislative history indicates that Congress meant to conflate ‘advice’ with ‘sales,’” Sweeney said.

NAFA argued in its brief that “as has been recognized forever until now, the investor who buys the annuity is paying for a product, not investment advice, and the salesperson is not a fiduciary,” Sweeney added.   

In addressing the lawsuits currently pending in Texas, Kansas and Washington against DOL’s fiduciary rule, Labor Secretary Thomas Perez said on a Thursday call with reporters to announce a final rule on state-run retirement plans that “the status quo has worked well” for these groups that are suing. “Read the lawsuits; the claim that’s most remarkable is that they have a First Amendment right to give conflicted advice to people. I’d love to see that rule applied to doctors and lawyers.”

The Financial Planning Coalition — comprising the Certified Financial Planner Board of Standards, the Financial Planning Association and the National Association of Personal Financial Advisors — filed an amicus brief Thursday in the U.S. District Court for the Northern District of Texas, in support of DOL’s fiduciary rule and opposing efforts to stop the rule from taking effect.

Oral arguments from both the DOL and lawyers representing plaintiffs in the three lawsuits filed in Texas against DOL’s rule — which have been consolidated — will take place Nov. 17. NAFA’s suit asks for a preliminary injunction to stay the rule, which is currently set to take effect in April.

Bartz told the judge that the fixed indexed annuity industry must “change its entire distribution model in 10 months. It’s clear there’s irreparable harm here.” He suggested the industry needed at least another 10 months to comply after the April effective date.

NAFA also argues that the DOL’s rule is invalid on grounds that the agency exceeded its authority to regulate IRAs.

“NAFA did an excellent job of highlighting the extent to which DOL exceeded its statutory authority in issuing this regulation,” said Kent Mason, a partner at Davis & Harman, a Washington law firm that represents financial companies. “NAFA’s discussion showed that DOL’s definition of a fiduciary is overbroad, and DOL had no authority to impose state law class actions that were not part of Congress’ carefully designed set of remedies for IRAs.”

But Sweeney believes the likely outcome is a quick decision by Moss – within the next 30 days — denying NAFA’s request for an injunction.

“Although the FIA providers have the strongest irreparable harm argument of all providers impacted by the fiduciary rule, Judge Moss’ questioning in the grueling three-hour-long hearing suggested that he is likely to deny the injunction and uphold the fiduciary rule on the grounds that NAFA was unable to make the required irreparable harm showing,” she said.

Next up in the fiduciary rule legal battle is the preliminary injunction requested by insurer Market Synergy on Sept. 21 before Judge Daniel D. Crabtree in the District of Kansas, which Sweeney says is “historically a more hostile venue” for the DOL.

“If Judge Moss denies the injunction and Judge Crabtree grants an injunction, expect the battle to move quickly to the circuit courts, and a likely march to the Supreme Court.”

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