Thrivent Financial for Lutherans, the insurer suing the Department of Labor over its fiduciary rule, said Monday that it plans to file a preliminary injunction soon to halt the anti-arbitration clause set out in the rule’s best-interest contract exemption.
In a Monday letter to Judge Susan Richard Nelson in the U.S. District Court for the District of Minnesota, the lead attorney for Thrivent, Andrew Kay, said that due to Labor’s refusal to address Thrivent’s concerns about “the anti-arbitration condition that remains part of the [best-interest contract exemption]” to the fiduciary rule, Thrivent intends to “file soon” a motion for preliminary injunction.
Thrivent became the sixth plaintiff to lob a complaint against Labor’s fiduciary rule when the insurer filed a suit last September challenging the class-action waiver requirement under the rule’s best-interest contract exemption, or BICE.
Compliance with BICE is set to kick in on Jan. 1, 2018, but Labor Secretary Alexander Acosta told the same court on Aug. 9 that Labor had filed with the Office of Management and Budget to have the January compliance date extended by 18 months.
Thrivent’s case against Labor’s rule has been focused specifically on the arbitration portion of the BICE, so any preliminary injunction motion would necessarily focus on that specifically as well.
Thrivent, Kay said in the letter, took issue with Labor’s position to only address issuing a “public statement that it does not intend to enforce the anti-arbitration condition of the BIC Exemption.”
Such a public statement, Kay said, would not address Thrivent’s concerns for several reasons:
First, he said, “a statement of non-enforcement would not change the fact that the regulation remains on the books, making it impossible for Thrivent to make required certifications of its regulatory compliance, including required certifications to state regulators that Thrivent complies with all federal laws.”