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DOL Fiduciary News: March 8, 2017

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Fidelity, Empower and T. Rowe take three different approaches to the DOL fiduciary rule

InvestmentNews; Mar 7, 2017 @ 2:00 pm

The Department of Labor's fiduciary rule is leading record keepers of 401(k) plans to adopt wildly divergent compliance strategies.

Take Fidelity Investments, Empower Retirement and T. Rowe Price, three of the largest defined-contribution-plan providers, for example.

At one extreme, there's Fidelity, the largest record keeper, with roughly $1.4 trillion in DC assets under administration, according to the most recent data compiled by InvestmentNews' sister publication Pensions & Investments.

The firm has communicated it will assume fiduciary responsibility in some participant interactions, such as investment recommendations made through its call center. It has also said it can be a "point-in-time" fiduciary at the plan level, through advice to employers on which funds to include on their investment menus.

T. Rowe, the 11th-largest provider, with around $145 billion in DC assets under administration, sits at the opposite end of the spectrum. It plans to keep its interactions to both plans and participants non-fiduciary in nature, according to advisers familiar with the firm's communications to clients.

Empower — third-largest, with $393 billion — sits in the middle, saying it will begin offering fiduciary guidance to participants through call-center interactions, but will avoid fiduciary status at the plan level. Plan-level fiduciary duty will be handled by advisers and outsourced providers. (http://www.investmentnews.com)

Comments Flood In on DOL Fiduciary Rule Delay

ThinkAdvisor; March 7, 2017

Comments are flooding in (https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-AB79) to the Department of Labor regarding its proposed rule (http://www.thinkadvisor.com/2017/03/01/dol-proposes-60-day-fiduciary-rule-delay) to extend for 60 days the applicability date of its fiduciary rule under the Employee Retirement Income Security Act.

The March 1 proposal (https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-04096.pdf) allows for a 15-day comment period on Labor’s plan to move the rule’s first compliance date from April 10 to June 9. The official notice was published in the Federal Register on March 2.

Labor is also taking comments for 45 days on a list of questions about the impact of the fiduciary regulation and the exemptions, including whether the rule will spark an increase in litigation.

As anticipated, commenters are weighing in on both sides – for and against a delay, and eventual overhaul or repeal, of Labor’s fiduciary rule.

Meanwhile, the D.C. Circuit on Tuesday published the schedule for the National Association for Fixed Annuities’ appeal. The group is challenging a trial judge’s refusal, in November, to stop enforcement of the fiduciary rule. The D.C. Circuit in December also declined to freeze implementation of the rule.

NAFA has until April 17 to submit its opening brief to the D.C. Circuit. Labor has until May 17 to file its brief. The court set May 31 as the deadline for NAFA to file a reply. Oral arguments have not been set, and the D.C. Circuit doesn’t typically hear cases in the summer except on an emergency basis.

The schedule suggests the court could hear arguments in the fall and issue a ruling in late 2017 or sometime early next year.  (http://www.thinkadvisor.com)

IMOs: BICE for Insurance Intermediaries Arbitrary and Onerous

InsuranceNewsNet; March 7, 2017

Dozens of industry voices over the weekend joined the chorus of objections to an exemption under which insurance marketing organizations (IMO) could sell fixed indexed annuities (FIA) as part of a far-reaching fiduciary rule.

The proposal for IMO exemption eligibility sets premium thresholds and fiduciary liability insurance too high, IMOs said in comments on the controversial rule.

Also, it unnecessarily burdens IMOs with financial disclosures, omits agent exclusivity contract clauses and even ignores life insurance sales from the exemption, other comments noted.

Under the IMO exemption, marketing organizations would have until August 2018 to comply fully with the requirements known as the Best Interest Contract Exemption for Insurance Intermediaries, part of the fiduciary rule.

A $1.5 billion premium threshold value and the fiduciary liability insurance requirement is too high, said Drinker Biddle & Reath attorneys Bruce L. Ashton and Bradford Campbell, who represent several IMOs with applications before the DOL.

“In formulating the $1.5 billion threshold value, the Department only cited to the premium threshold levels of four IMOs,” the attorneys wrote.  (https://www.insurancenewsnet.com)

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