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The National Association for Fixed Annuities v. Perez

United States District Court, District of Columbia

November 4, 2016

THE NATIONAL ASSOCIATION FOR FIXED ANNUITIES, Plaintiff,
v.
THOMAS E. PEREZ, Secretary of the United States Department of Labor, et al., Defendants.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff the National Association for Fixed Annuities (“NAFA”) brings this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 604 et seq., challenging three final rules promulgated by the Department of Labor on April 8, 2016. Taken together, the three rules substantially modify the regulation of conflicts of interest in the market for retirement investment advice under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the Internal Revenue Code (“Code”), 26 U.S.C. §§ 408, 4975. NAFA focuses its challenge on how the new rules will affect the market for the fixed annuities that its members sell.

         Both ERISA and the Code define a “fiduciary” to include, among others, those who “render[] investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or [who] ha[ve] any authority or responsibility to do so.” 29 U.S.C. § 1002(21)(A) (ERISA); 26 U.S.C. § 4975(e)(3) (Code). Qualifying as a “fiduciary, ” in turn, triggers the “prohibited transaction” rules under both ERISA and the Code, which then prohibit conflicted transactions unless a statutory or regulatory exemption applies. See 29 U.S.C. § 1106 (ERISA); 26 U.S.C. § 4975(c) (Code). Significantly, under the prohibited transaction rules, fiduciary advisers to ERISA employee benefit plans and individual retirement accounts (“IRAs”) may not receive compensation-including commissions-that varies based on the fiduciary's investment advice. See Best Interest Contract Exemption, 81 Fed. Reg. 21, 002, 21, 075-76 (Apr. 8, 2016). Because insurance companies that sell fixed annuities typically compensate their employees and agents through the payment of commissions, see Dkt. 5-3 at 6 (Marion decl. ¶ 24), they would be unable to operate (at least as currently structured) if treated as fiduciaries and not granted an exemption from the prohibited transaction rules.

         Prior to the promulgation of the new rules, most NAFA members were able to avoid this difficulty because the governing regulations defined a “fiduciary, ” in relevant part, as someone who renders investment advice “on a regular basis, ” 29 C.F.R. § 2510.3-21 (2015) (ERISA regulation); 26 C.F.R. § 54.4975-9 (2015) (Code regulation), and fixed annuities are typically acquired in a single transaction, see Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice, 81 Fed. Reg. 20, 946, 20, 955 (Apr. 8, 2016). Moreover, in those cases in which advice regarding the sale of a fixed annuity might have otherwise fallen within the prohibited transaction rules, the relevant transactions were exempted under Prohibited Transaction Exemption 84-24 (“PTE 84-24”), subject to certain conditions. See 1984 Amendment to PTE 84-24, 49 Fed. Reg. 13, 208, 13, 211 (Apr. 3, 1984). The three challenged rules, however, change this arrangement in significant respects.

         The first new rule-Definition of the Term “Fiduciary”; Conflict of Interest Rule- Retirement Investment Advice, 81 Fed. Reg. 20, 946 (Apr. 8, 2016) (“Final Fiduciary Definition”)-modifies the definition of “fiduciary” by, among other things, dropping the condition that the relevant investment advice be provided on a “regular basis.” The second new rule-Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24 for Certain Transactions Involving Insurance Agents and Brokers, Pension Consultants, Insurance Companies, and Investment Company Principal Underwriters, 81 Fed. Reg. 21, 147 (Apr. 8, 2016) (“Final PTE 84-24”)-removes variable and fixed indexed annuities (but not fixed rate annuities) from PTE 84-24. And, recognizing the sweeping consequences of the first two rules, the third new rule-the Best Interest Contract (“BIC”) Exemption, 81 Fed. Reg. 21, 002 (Apr. 8, 2016) (“Final BIC Exemption”)-creates a new exemption for variable and fixed indexed annuities (among other products) that permits financial institutions and advisers to receive compensation-including commissions-based on their provision of investment advice.

         In order to qualify for the BIC Exemption, however, financial institutions and advisers must abide by certain conditions: First, advisers to employee benefit plans and IRAs must abide by the Department's newly adopted “Impartial Conduct Standards, ” and “[f]inancial [i]nstitutions must adopt policies and procedures designed to ensure that their individual [a]dvisers adhere to” these standards. Final BIC Exemption, 81 Fed. Reg. at 21, 076. The Impartial Conduct Standards, in turn, require that financial institutions and advisers “provide investment advice that is, at the time of the recommendation, in the [b]est [i]nterest of the [r]etirement [i]nvestor.” Id. at 21, 077. As explained in the rule, this means that qualifying financial institutions and advisers are subject to the same duties of loyalty and prudence applicable under title I of ERISA, even with respect to advice regarding IRAs and other plans that are not subject to title I (and thus not otherwise subject to the duties of prudence and loyalty). Id. In addition, financial institutions and advisers must ensure that they will not “receive, directly or indirectly, compensation for their services that is in excess of reasonable compensation within the meaning of” 29 U.S.C. § 1108(b)(2) (ERISA) and 26 U.S.C. § 4975(d)(2) (Code). Id. (emphasis added). And, finally, the Impartial Conduct Standards require that financial institutions and advisers ensure that “[s]tatements by the [f]inancial [i]nstitutions and [their] [a]dvisers . . . about the recommended transaction, fees, and compensation, [m]aterial [c]onflicts of [i]nterest, and any other matters relevant to a [r]etirement [i]nvestor's investment decisions, will not be materially misleading at the time they are made.” Id.

         Second, financial institutions seeking to rely on the BIC Exemption must also affirmatively represent in writing that they and their advisers are fiduciaries under ERISA and the Code and must warrant, among other things, that they have written policies in place “designed to ensure that [their] [a]dvisers adhere to the Impartial Conduct Standards.” Id.

         Third, with respect to IRAs and other plans that are not subject to title I of ERISA, financial institutions seeking to rely on the BIC Exemption must go a step further and “agree that they and their [a]dvisers will adhere to the exemption's standards in a written contract that is enforceable by the [r]etirement [i]nvestors.” Id. at 21, 076. The contract, moreover, may not include a provision “disclaiming or otherwise limiting liability, ” waiving the “right to bring or participate in a class action, ” or agreeing “to arbitrate or mediate individual claims in venues that are distant or that otherwise unreasonably limit the ability of the [r]etirement [i]nvestors to assert the claims safeguarded by” the BIC Exemption. Id. at 21, 078.

         NAFA challenges the new rules on numerous grounds. It argues that the new definition of “fiduciary”-and, in particular, the Department's decision to drop the “on a regular basis” condition-fails at Chevron steps one and two. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). It contends that the Department acted beyond its authority in extending ERISA fiduciary duties to IRAs and other plans that are not subject to title I of ERISA. It contends that the BIC Exemption impermissibly creates a private cause of action and that the condition contained in the BIC Exemption limiting compensation to a “reasonable” level is void for vagueness. It argues that Department's decision to move fixed indexed annuities from PTE 84-24 to the BIC Exemption was arbitrary and capricious. And finally, it maintains that the Department's regulatory flexibility analysis was inadequate.

         Based on these arguments, and its further contention that the new rules will have catastrophic consequences for the fixed indexed annuities industry, NAFA seeks both a preliminary injunction and summary judgment. The Department opposes both motions and has cross-moved for summary judgment. For the reasons explained below, the Court will deny NAFA's motions for a preliminary injunction and summary judgment and will grant the Department's cross-motion for summary judgment.

         I. BACKGROUND

         A. Annuities

         Although the three rules that NAFA challenges apply to various segments of the market for retirement investments, NAFA understandably focuses its challenge on how the rules affect its members. Those members include insurance companies, independent marketing organizations, and insurance agents involved in the sale of fixed annuities. Dkt. 5-2 at 2-3 (Anderson decl. ¶ 2). Annuities fall into three general categories: variable annuities, fixed indexed annuities, and fixed rate annuities. See Regulatory Impact Analysis 40, AR 356.

         A “variable annuity” is “[a]n annuity that makes payments in varying amounts depending on the success of the underlying investment strategy.” Annuity, Black's Law Dictionary (10th ed. 2014). For purposes of the Securities Act of 1933, a variable annuity is both an insurance product and a security. See SEC v. Variable Annuity Life Ins. Co. of Am., 359 U.S. 65, 69-71 (1959). Because the “underlying assets are held in separate accounts . . . with a variety of underlying investment options such as mutual funds, ” the customer has the opportunity to benefit from “the realization of market returns.” Regulatory Impact Analysis 40, AR 356. But, future income payments are “not guaranteed, ” and the customer “make[s] or lose[s] money depending on the performance of the chosen investment options and the contract value.” Id.

         A “fixed rate annuity, ” in contrast, offers “a guaranteed level of return that will always provide a guaranteed and predictable level of income.” Dkt. 5-2 at 3 (Anderson decl. ¶ 6). The annuity contract “may provide a guaranteed interest rate for the life of the annuity[, ] or [it] may allow the insurance company to reset the interest rate periodically but no more than once every twelve months, protecting the annuity owner against loss due to investment or market risk.” Id.

         Finally, a “fixed indexed annuity” bears attributes of both a variable annuity and a fixed rate annuity. See Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 168 (D.C. Cir. 2010). Its rate of return is based on “an external market index, such as the S&P 500, ” but it also comes “with a guaranty that the rate will never fall below zero.” Dkt. 5-2 at 4 (Anderson decl. ¶ 7). Although fixed indexed annuities do “not directly participate in any security investment, ” id., “as [with] securities, there is a variability in the potential return that results in a [greater] risk to the purchaser” than posed by fixed rate annuities, Am. Equity Inv., 613 F.3d at 174. Fixed indexed annuities, accordingly, “give [the customer] more risk (but more potential return) than a fixed [rate] annuity but less risk (and less potential return) than a variable annuity.” Final BIC Exemption, 81 Fed. Reg. at 21, 017 (internal citation and quotation marks omitted).

         NAFA represents entities involved in sales of both fixed rate annuities and fixed indexed annuities. As explained further below, the three challenged rules have significant implications for the sale of these products-and, in particular, for fixed indexed annuities-for three reasons. First, both fixed rate and fixed indexed annuities “are often purchased as a funding vehicle for [IRAs].” Dkt. 5-3 at 4 (Marrion decl. ¶ 17). Purchases made in IRAs, in turn, receive significant tax benefits, see 26 U.S.C. § 408, and, more importantly, IRAs constitute “plans” for purposes of title II of ERISA. Second, “almost all annuities today are sold based on commission compensation.” Dkt. 5-3 at 6 (Marrion decl. ¶ 24). This is significant because payment or receipt of a commission may trigger the prohibited transaction rules. Third, the new regulations subject fixed indexed annuities-but not fixed rate annuities-to certain more stringent regulatory requirements. These additional requirements are discussed at length below.

         B. Statutory and Regulatory Background

         1. The Employment Retirement Income Security Act of 1974

         When parties and courts refer to ERISA, more often than not, they mean title I of the Act. That is the portion of the law that regulates retirement plans established or maintained by employers, unions, or both. It contains detailed reporting and disclosure requirements, rules relating to vesting and funding, fiduciary responsibility requirements, various enforcement rules, a private cause of action, and a broad preemption rule. 29 U.S.C. § 1021 et seq. Title II, in contrast, principally addresses the requirements that plans must fulfill in order to qualify for certain tax advantages, see 26 U.S.C. § 4975, and it receives relatively less attention in the case law and commentary.[1] It does not include many of the detailed requirements found in title I of the Act. Like title I, however, title II does include a prohibited transaction rule and, for purpose of that provision, it contains a definition of “fiduciary” that parallels the definition found in title I. See 26 U.S.C. § 4975(e)(3). In one important respect, moreover, title II sweeps more broadly than title I: In addition to covering plans established and maintained by employers, title II applies to IRAs and other plans not subject to title I. Compare 26 U.S.C. § 4975(e)(1)(C) with 29 U.S.C. § 1003(a).

         Because this case turns, in part, on the overlap and interplay between titles I and II, the Court will briefly describe the relevant provisions of both titles of the Act.

         a. Title I of ERISA

         Title I of ERISA applies to “any employee benefit plan if it is established or maintained” by an employer, by an employee organization, or by both.[2] 29 U.S.C. § 1003(a). One of the principal ways title I protects the assets of employee benefit plans is by imposing “fiduciary” obligations on individuals who perform certain functions on behalf of a plan. Of particular relevance here, a person is a “fiduciary” with respect to a plan if “he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so.” Id. § 1002(21)(A).

         A fiduciary of an ERISA employee benefit plan must “discharge his duties with respect to [the] plan solely in the interest of the participants and beneficiaries . . . for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan.” Id. § 1104(a)(1). And, a fiduciary must also act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims, ” including by “diversifying the investments of the plan so as to minimize the risk of large losses.” Id. § 1104(a)(1)(B)-(C). These twin duties are referred to as the duties of loyalty and prudence. See DeFelice v. U.S. Airways, Inc., 497 F.3d 410, 418-19 (4th Cir. 2007). A fiduciary who violates these duties is “personally liable” for any losses to the plan stemming from such a breach, and he may also be “subject to such other equitable or remedial relief as the court may deem appropriate.” 29 U.S.C. § 1109(a). Title I creates a private cause of action permitting plan participants and beneficiaries to enforce this right, to recover lost benefits, and to enforce the terms of the plan, and it also empowers the Secretary of Labor to bring suit “for appropriate relief” or “to collect any civil penalty” for violations of certain provisions of the Act. Id. § 1132(a). While creating these federal causes of action, title I also forecloses other remedies by preempting a broad range of state law claims “as they . . . relate to any employee benefit plan.” Id. § 1144(a) (emphasis added).

         Title I also “supplements the fiduciary's general duty of loyalty to the plan's beneficiaries . . . by categorially barring certain transactions deemed ‘likely to injure the pension plan.'” Harris Trust Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 241-42 (2000) (citation omitted); see also Lockheed Corp. v. Spink, 517 U.S. 882, 888 (1996). Under this “prohibited transaction” rule, a fiduciary may not “deal with the assets of the plan in his own interest or for his own account, ” may not “in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries, ” and may not “receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.” 29 U.S.C. § 1106(b). In addition, a fiduciary may not cause a plan to engage in certain transactions with a “party in interest”-a category which includes the fiduciary himself, the employer sponsoring the plan, and persons providing services to the plan. Id. § 1002(14); § 1106(a). The “prohibited transaction” rule, however, is subject to certain statutory exceptions, see Id. § 1108(b), and, more importantly for present purposes, the statute authorizes the Secretary of Labor to grant additional exemptions-either “conditional[ly] or unconditional[ly]”-provided that the exemption is “administratively feasible, ” “in the interests of the plan and of its participants and beneficiaries, ” and “protective of the rights of participants and beneficiaries of such plan, ” id. § 1108(a).

         b. Title II of ERISA

         Rather than directly regulate the administration of covered plans, title II of ERISA establishes rules for the tax treatment of employee pension plans, IRAs, and certain other plans not subject to title I. Title II is broader in scope than title I. Unlike title I, it applies to IRAs and other plans that are not established or maintained by the beneficiary's employer or union. 26 U.S.C. § 4975(e)(1). But title II lacks much of the detailed regulation found in title I. Most notably, it does not subject fiduciaries of IRAs and other non-title I plans to the fiduciary duties of loyalty and prudence. See generally Id. § 4975.

         Title II does, however, contain the same definition of “fiduciary” found in title I. Compare 26 U.S.C. § 4975(e)(3) with 29 U.S.C. § 1002(21). Thus, as under title I, “any person who . . . renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of [a covered] plan, ” is a fiduciary. 26 U.S.C. § 4975(e)(3)(B). And it contains a prohibited transaction rule that, in relevant respects, parallels that found in title I. Id. § 4975(c). Like the title I prohibited transaction rule, moreover, the title II version of the rule both recognizes certain statutory exceptions, see Id. § 4975(d), and authorizes the Secretary of Labor to grant exemptions-with or without conditions-if “the exemption is . . . administratively feasible, . . . in the interest of the plan and its participants and beneficiaries, and . . . protective of the rights of participants and beneficiaries of the plan, ” id. § 4975(c)(2).[3]

         Those who fail to comply with title II's prohibited transaction rule are subject to an excise tax imposed “on each prohibited transaction.” Id. § 4975(a). Under that rule, “any disqualified person who participate[d] in the prohibited transaction”-“other than a fiduciary acting only as such”-is subject to the tax. Id. Initial violations are taxable at a rate “equal to 15 percent of the amount involved with respect to the prohibited transaction for each year, ” id., but, if “the transaction is not corrected within the taxable period, ” the tax increases to a rate of “100 percent of the amount involved, ” id. § 4975(b). Title II does not, however, create a private cause of action and, correspondingly, does not preempt state law causes of action relating to IRAs and other plans not subject to title I.

         2. The 1975 Definition of “Fiduciary” and PTE 84-24

         The Secretary of Labor first issued regulations defining when a person “renders investment advice” so as to fall within ERISA's definition of “fiduciary” in 1975. That regulation set out a five-part test, under which a person was deemed to “render investment advice” only if he: (1) “renders advice to the plan as to the value of securities or other property, or makes recommendation[s] as to the advisability of investing in, purchasing, or selling securities or other property, ” and he does so (2) “on a regular basis” (3) “pursuant to a mutual agreement, arrangement, or understanding, written or otherwise, between such person and the plan or a fiduciary with respect to the plan, ” (4) that the advice given “will serve as a primary basis for investment decisions with respect to plan assets, ” and (5) that the advice will be “individualized . . . based on the particular needs of the plan.” 29 C.F.R. § 2510.3-21(c)(1) (2015).[4]

         Prior to the present rulemaking, this rule governed application of the prohibited transaction rules found in both title I and title II of ERISA. With respect to title I, the prohibited transaction rule applies to a “fiduciary, ” 29 U.S.C. § 1106, and a “fiduciary” is defined to include a person who “renders investment advice for a fee, ” 29 U.S.C. § 1002(21)(A). Because the governing regulation provided that a person “renders investment advice” only if the advice is provided “on a regular basis, ” 29 C.F.R. § 2510.3-21(c)(1) (2015), occasional or intermittent advice was not sufficient to trigger application of the prohibited transaction rule. The same conclusion followed, although from a slightly different path, for purposes of title II. There, the prohibited transaction rule applies to “disqualified person[s], ” 26 U.S.C. § 4975(c), which are then defined to include “fiduciar[ies], ” id. at § 4975(e)(2), which are defined to include those who “render[] investment advice for a fee, ” id. at § 4975(e)(3). And because a person was deemed to “render[] ‘investment advice'” only if the advice was provided “on a regular basis, ” 26 C.F.R. § 54.4975-9(c)(1)(ii), occasional and intermittent advice was, once again, excluded.

         PTE 84-24 provides the other significant regulatory backdrop to the Department's most recent actions. Originally adopted in 1977 (as PTE 77-9) and “amended several times over the years, ” PTE 84-24 created a limited exemption to the prohibited transaction rules in order to permit “certain parties to receive commissions when plans and IRAs purchased recommended insurance and annuity contracts and investment company securities, ” such as “mutual fund shares.” Final PTE 84-24, 81 Fed. Reg. at 21, 148. The exemption applied to, among other things, “[t]he receipt, directly or indirectly, by an insurance agent or broker or a pension consultant of a sales commission from an insurance company in connection with the purchase, with plan assets[, ] of an insurance or annuity contract.” 1984 Amendment to PTE 84-24, 49 Fed. Reg. at 13, 211. The exemption, however, came with a number of conditions, including a requirement that the transaction be “on terms at least as favorable to the plan as an arm's-length transaction with an unrelated party” and that “[t]he combined total of all fees, commissions and other consideration received by the insurance agent or broker, pension consultant, insurance company, or investment company principal underwriter . . . not [be] in excess of ‘reasonable compensation' within the contemplation of” 29 U.S.C. §§ 1108(b)(2) & (c)(2) (ERISA), and 26 U.S.C. §§ 4975(d)(2) & (d)(10) (Code). Id. PTE 84-24 did not distinguish between variable and fixed annuities.

         Accordingly, prior to the present rulemaking, it was permissible for insurance companies to compensate their employees and agents on a commission basis for sales of variable and fixed annuity products held in ERISA employee benefit plans and IRAs, as long as either (1) the relevant investment advice was not provided “on a regular basis, ” or (2) the terms of the transaction were at least as favorable as those offered in arm's-length transactions and the relevant fees and commissions were reasonable.

         3. The Current Rulemaking

         a. The 2010 Proposed Rule

         The current rulemaking process began six years ago, when the Department first proposed to amend the 1975 regulation. See 2010 Proposed Fiduciary Definition, 75 Fed. Reg. 65, 263 (Oct. 22, 2010). At that time, the Department explained that it proposed to amend “a thirty-five year old rule that may inappropriately limit the types of investment advice relationships that give rise to fiduciary duties on the part of the investment advisor.” Id. at 65, 263-64. In proposing the amendments, the Department raised both legal and policy concerns about the existing rule. As a legal matter, the Department asserted that the 1975 regulation had “significantly narrow[ed] the plain language of” the statutory definition of a “fiduciary.” Id. at 65, 264. And, as a policy matter, it stressed that significant changes had occurred “in both the financial industry and the expectations of plan officials and participants who receive investment advice.” Id. In particular, according to the Department, “the retirement plan community ha[d] changed significantly, with a shift from defined benefit . . . plans to defined contribution . . . plans, ” while, at the same time, “the types and complexity of investment products and services available to plans [had] increased.”[5] Id. at 65, 265. This concern was borne out, moreover, by “recent Department enforcement initiatives, ” which, according to the Department, had brought to light “a variety of circumstances, outside those described in the [1975] regulation, under which plan fiduciaries seek out impartial assistance and expertise of persons such as consultants, advisers and appraisers, ” who have “a considerable impact on plan investments.” Id.

         To address these concerns, the Department proposed to amend its definition of “rendering investment advice for a fee” to include a broader range of activities, while also listing certain activities that would not result in fiduciary status. Most significantly, the proposal would have dropped the “on a regular basis” limitation. Id. at 65, 267. The proposed amendments would have applied to both title I and title II fiduciaries, and thus would have covered advisers to IRAs as well as to ERISA-covered plans. Id. at 65, 266. The proposal did not, however, include any new prohibited transaction exemptions under either title. See Id. at 65, 263-64.

         In response to the 2010 proposal, the Department “received over 300 comment letters, ” held a public hearing “at which 38 speakers testified, ” and then received an additional 60 comment letters. Final Fiduciary Definition, 81 Fed. Reg. at 20, 957. “A number of commenters urged the Department to undertake additional analysis of the expected costs and benefits particularly with regard to the 2010 [p]roposal's coverage of IRAs.” Id. In light of these concerns and “the significance of the rulemaking to the retirement plan service provider industry, plan sponsors and participants, beneficiaries and IRA owners, the Department decided to take more time for review and issue a new proposed regulation for comment.” Id. Accordingly, on September 19, 2011, the Department announced that it intended to withdraw the 2010 proposal and would propose a new rule defining “fiduciary” at a later date. Id.

         b. The 2015 Proposed Rules

         On April 20, 2015, the Department issued a new proposal, which substantially revised both the 1975 regulation and the proposed prohibited transaction exemptions. As the Department explained, the 1975 regulation “significantly narrowed the breadth of the statutory definition of fiduciary investment advice by creating a five-part test, ” which included the “on a regular basis” limitation. 2015 Proposed Fiduciary Definition, 80 Fed. Reg. 21, 928, 21, 928 (Apr. 20, 2015). That test, however, was created “prior to the existence of participant-directed 401(k) plans, widespread investments in IRAs, and the now commonplace rollover of plan assets from fiduciary-protected plans to IRAs.” Id. As the Department further explained, in the current market for retirement advice, unlike in 1975, “[i]ndividuals, rather than large employers and professional money managers, have become increasingly responsible for managing retirement assets as IRAs and participant-directed plans, such as 401(k) plans, have supplanted defined benefit pensions.” Id. at 21, 932. “At the same time, ” moreover, “the variety and complexity of financial products have increased, widening the information gap between advisers and their clients, ” adding to the risk that “small retail investors” will obtain “lower returns to their retirement savings” based on input they receive from advisers with conflicts of interest. Id. Finally, the Department stressed that, “[a]s baby boomers retire, they are increasingly moving money from ERISA-covered plans, where their employer has both the incentive and the fiduciary duty to facilitate sound investment choices, to IRAs where good and bad investment choices are myriad and advice that is conflicted is commonplace.” Id. According to the Department, “rollovers” of this type “will total more than $2 trillion over the next 5 years.” Id.

         In light of these changes in the marketplace for retirement advice, the Department proposed that it discard the five-part test, including the “on a regular basis” requirement, in favor of a new standard. Among other concerns, the Department focused on the fact that, as employees reach retirement age, they will rollover trillions of dollars into IRAs, and those “rollovers” will involve “one-time” transactions that will not satisfy the “on a regular basis” prong of the five-part test. Id. at 21, 951. The decision about how to invest these “rollovers, ” moreover, “will be the most important financial decision that many consumers make in their lifetime.” Id. Under the proposed test, a person would “render[] investment advice” by, among other things, providing investment recommendations to an employee benefit plan or an IRA owner while acting pursuant to an agreement or understanding that “the advice is individualized to, or specifically directed to, the recipient for consideration in making investment or management decisions regarding plan assets.” Id. at 21, 929.

         At the same time, however, “[t]he Department . . . sought to preserve beneficial business models for delivery of investment advice by separately proposing new exemptions from the prohibited transaction rules that would broadly permit firms to continue common fee and compensation practices, so long as they are willing to adhere to basic standards aimed at ensuring that their advice is in the best interest of their customers.” Id. at 21, 929. Thus, in two additional proposals announced the same day as the new definition of “fiduciary, ” the Department proposed amendments to PTE 84-24 and proposed a new exemption, the Best Interest Contract Exemption, for those who do not qualify for PTE 84-24.[6]

         Prior to the 2015 proposal, PTE 84-24 provided a broad exemption for the receipt of sales commissions by insurance agents and brokers “in connection with the purchase, with plan assets[, ] of an insurance or annuity contract.” 1984 Amendment to PTE 84-24, 49 Fed. Reg. at 13, 211. Under the proposed amendments, however, PTE 84-24 would no longer cover transactions involving annuities that are regulated as securities-that is, variable annuities. The exemption would remain available, though, for annuities that are not regulated as securities-that is, fixed rate and fixed indexed annuities. 2015 Proposed PTE 84-24, 80 Fed. Reg. 22, 010, 22, 012 (Apr. 20, 2015). But, in making this proposal, the Department specifically requested comment on whether “the proposal to revoke relief for securities transactions involving IRAs (i.e., annuities that are securities and mutual funds) but leave in place relief for IRA transactions involving insurance and annuity contracts that are not securities strikes the appropriate balance and is protective of the interests of the IRAs.” Id. at 22, 015.

         The Department also proposed to make substantive changes to PTE 84-24. Most importantly, the proposal provided that, in order to qualify for the exemption, insurance and annuity agents must adhere to new “Impartial Conduct Standards.” Id. at 22, 018. Under those standards, the insurance agent and insurance company would be required to act “in the best interest of the plan[] [or] IRA” and to ensure that statements about investment fees, material conflicts of interest, and other matters directly relevant to the investment decision are not misleading. Id. The Department further proposed that an insurance agent or insurance company would be deemed to “act[] in the ‘[b]est [i]nterest' of the plan or IRA” when “the fiduciary acts with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person would exercise based on the investment objectives, risk tolerance, financial circumstances and needs of the [p]lan or IRA, without regard to the financial or other interests of the fiduciary, any affiliate or other party.” Id. at 22, 020. These conditions parallel the duties of prudence and loyalty found in title I of ERISA. See 29 U.S.C. § 1104(a)(1). Although this proposal was thus of little import to ERISA employee benefit plans, which were already subject to those duties, it constituted a substantial change for IRAs and other plans not subject to title I, which were not otherwise subject to the duties of prudence and loyalty. See generally 26 U.S.C. § 4975.

         The Department also proposed to create a new exemption for fiduciaries who do not qualify for PTE 84-24. This exemption-the Best Interest Contract Exemption or BIC Exemption-“was developed to promote the provision of investment advice that is in the best interest of retail investors such as plan participants and beneficiaries, IRA owners, and small plans.” 2015 Proposed BIC Exemption, 80 Fed. Reg. 21, 960, 21, 961 (Apr. 20, 2015). Although the prohibited transaction rules would otherwise preclude insurance companies and other financial institutions from compensating fiduciaries based on commissions or other financial incentives that could affect the substance of their investment advice, the Department proposed “[t]o facilitate continued provision of advice to such retail investors . . . under conditions designed to safeguard the interests of investors” by “allow[ing] certain advice fiduciaries . . . to receive these . . . forms of compensation that, in the absence of an exemption, would not be permitted under ERISA and the Code.” Id. Rather than adopt “highly prescriptive transaction-specific exemptions, ” the Department proposed to take “a standards-based approach that [would] broadly permit firms to continue to rely on common fee practices, as long as they are willing to adhere to basic standards aimed at ensuring that their advice is in the best interest of their customers.” Id.

         Under the BIC Exemption, the Department proposed that advisers and financial institutions would be permitted to receive compensation that varies based on their investment recommendations, as well as compensation from third parties in connection with their advice, if they satisfied certain conditions. Like the proposed amendments to PTE 84-24, the proposed BIC Exemption provided that qualified fiduciaries must abide by certain Impartial Conduct Standards. Id. at 21, 962. But, unlike PTE 84-24, the proposed BIC Exemption added the requirement that “[a]dviser[s] and [f]inancial [i]nstitution[s] enter into a written contract with the [r]etirement [i]nvestor prior to recommending that the plan, participant or beneficiary account, or IRA, purchase, sell or hold an [a]sset.” Id. at 21, 969. As proposed, the contract would include an affirmative representation that the adviser and financial institution “are fiduciaries under ERISA or the Code, or both”; a promise to comply with the Impartial Conduct Standards (including the duties of loyalty and prudence, the obligation not to sell products yielding the advisor or financial institution more than “reasonable compensation” for their services, and the ban on misleading statements); various warranties; and certain disclosures. Id. at 21, 984-85. The proposed BIC Exemption also prohibited financial institutions from including several terms in the contracts, including exculpatory or liability-limiting provisions, class-action waivers, and mandatory class-action arbitration provisions. Id. at 21, 973.

         In the Department's view, this contract would “create[] a mechanism by which” investors “can be alerted to” the obligations of the advisers and financial institutions and provide “a basis upon which” the corresponding “rights c[ould] be enforced.” Id. at 21, 969. Failure to comply with the Impartial Conduct Standards, ” accordingly, could result in both an action to enforce the written contract and a “loss of the [tax] exemption.” Id. Finally, the Department emphasized that the conditions reflected in the proposed exemption-of which the written contract was the “cornerstone”-were “necessary for the Secretary to find that the exemption is administratively feasible, in the interest of plans . . . and IRA owners[, ] and protective of the rights of the participants and beneficiaries of such plans and IRA owners, ” id., as it was required to find in order to exercise its exemption authority under 29 U.S.C. § 1108(a) and 26 U.S.C. § 4975(c)(2).

         As to all three proposed rules, the Department initially provided a seventy-five-day comment period, which it subsequently extended for an additional two weeks. 2015 Proposed Fiduciary Definition, 81 Fed. Reg. at 20, 958. It also held a four-day public hearing in August 2015, made the transcript available online, and then provided a further opportunity for public comment on the proposed regulation, the proposed exemptions, and the hearing. Id. The Department received over three thousand individual comment letters, and thirty petitions with over three hundred thousand signatories relating to the proposal. Regulatory Impact Analysis 7, AR 323.

         c. The Final Rule

         On April 8, 2016, the Department published the final rules. Final Fiduciary Definition, 81 Fed. Reg. 20, 946 (Apr. 8, 2016); Final BIC Exemption, 81 Fed. Reg. 21, 002 (Apr. 8, 2016); Final PTE 84-24, 81 Fed. Reg. 21, 147 (Apr. 8, 2016). Although the final rules include certain modifications to the 2015 proposals, the Department remained convinced that developments in the retirement investment advice market since 1975 required substantial changes in the governing regulations, and, in particular, abandonment of the “on a regular basis” limitation on the definition of a “fiduciary.” As the Department once again emphasized, since 1975 “individuals, rather than large employers and professional money managers, have become increasingly responsible for managing retirement assets as IRAs and participant-directed plans . . . have supplanted defined benefit pensions.” Final Fiduciary Definition, 81 Fed. Reg. at 20, 954. In 1975, for example, “private-sector defined-benefit pensions-mostly large, professionally managed funds-covered over 27 million active participants and held assets totaling almost $186 billion, ” as compared to “just 11 million active participants in individual account defined contribution plans with assets of just $74 billion, ” most of which were professionally managed. Id. At that time, the 401(k) did not yet exist, and IRAs had been authorized for the first time just the year before, when ERISA was enacted. Id. By 2013, however, the number of active participants in defined benefit plans had decreased by almost half, to just over 15 million, and the number of “individual account-based defined contribution plans” had grown by a factor of seven, to nearly 77 million active participants. Id. And, by 2015, “more than 40 million households owned IRAs.” Id. This shift away from large, institutional investors to “small retail investors, ” moreover, was accompanied by an increase in the “variety and complexity of financial products, ” and by the surge in retirements of baby boomers, whom the Department projects will rollover almost $2.4 trillion “from ERISA-covered plans” to IRAs over the next five years. Id. at 20, 954-55.

         In that context, and after considering the comments it received in response to the 2015 proposed rules, the Department reaffirmed its conclusion that the requirement that investment advice be given on a “regular basis” under the 1975 rule no longer fits the needs of the modern marketplace. Id. at 20, 955. The Department stressed that advice on rollovers can have a profound effect on a retirement investor's finances, yet this type of advice is rarely, if ever, provided on a “regular basis.” Id. More generally, it expressed concern that under the 1975 regulations “advisers can steer customers”-and, in particular, small retail investors-“to investments based on their own self-interest (e.g., products that generate higher fees for the adviser even if there are identical lower-fee products available), give imprudent advice, and engage in transactions that would be otherwise prohibited by ERISA and the Code.” Id.

         In addition to these policy concerns, the Department also suggested that the 1975 regulation did not reflect the best construction of the statutory language in ERISA and the Code, id. at 20, 948, and, in particular, that the five-part test “narrowed the scope of the statutory definition of fiduciary investment advice, ” id. at 20, 954. The Department, accordingly, replaced the five-part test with a new definition of investment advice. Under the new definition, “a person shall be deemed to be rendering investment advice for a fee or other compensation, ” if:

(1) Such person provides to a plan, plan fiduciary, plan participant or beneficiary, IRA, or IRA owner the following types of advice for a fee or other compensation, direct or indirect:
(i) A recommendation as to the advisability of acquiring, holding, disposing of, or exchanging, securities or other investment property, or a recommendation as to how securities or other investment property should be invested after the securities or other investment property are rolled over, transferred, or distributed from the plan or IRA;
(ii) A recommendation as to the management of securities or other investment property, including, among other things, recommendations on investment policies or strategies, portfolio composition, . . . or recommendations with respect to rollovers, transfers, or distributions from a plan or IRA, including whether, in what amount, in what form, and to what destination such a rollover, transfer, or distribution should be made; and
(2) With respect to the investment advice described in paragraph (a)(1) of this section, the recommendation is made either directly or indirectly (e.g., through or together with any affiliate) by a person who:
(i) Represents or acknowledges that it is acting as a fiduciary within the meaning of the Act or the Code;
(ii) Renders the advice pursuant to a written or verbal agreement, arrangement, or understanding that the advice is based on the particular investment needs of the advice recipient; or
(iii) Directs the advice to a specific advice recipient or recipients regarding the advisability of a particular investment or management decision with respect to securities or other investment property of the plan or IRA.

29 C.F.R. § 2510.3-21(a) (emphases added). The final rule then defines a “recommendation” as “a communication that, based on its content, context, and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.” Id. § 2510.3-21(b)(1). Thus, under the new definition, a person who recommends or suggests that an individual purchase an annuity to hold in an IRA would, at least in most cases, be engaged in “rendering investment advice.”[7] And, if that individual was paid on a commission basis, she would likely be engaged in rendering the type of investment advice “for a fee” that would trigger the prohibited transaction rules. See Final BIC Exemption, 81 Fed. Reg. at 21, 002.

         The Department also promulgated the final version of the revised PTE 84-24. The most important change from the version of the exemption proposed in 2015, at least for purposes of this case, was that the final exemption applies only to “fixed rate annuity contracts, ” a term defined in the exemption to encompass annuities whose “benefits do not vary, in part on in whole, based on the investment experience of a separate account or accounts maintained by the insurer or the investment experience of an index or investment model.” Final PTE 84-24, 81 Fed. Reg. at 21, 176-77. The term specifically excludes “variable annuit[ies], ” “indexed annuit[ies], ” and other “similar annuit[ies].” Id. at 21, 177.

         The Department justified its decision to reserve PTE 84-24 for fixed rate annuity contracts, and to exclude variable and fixed indexed annuities, on the ground that fixed rate annuity contracts “provide payments that are . . . predictable” and have “lifetime income guarantees and terms that are more understandable to consumers.” Id. at 21, 152. Other kinds of annuities, including fixed indexed annuities, are substantially more complicated, and “are susceptible to abuse.” Final BIC Exemption, 81 Fed. Reg. at 21, 018. Investors in fixed indexed and variable annuities, the Department found, “would equally benefit . . . from the protections of [the BIC Exemption], including the conditions that clearly establish the enforceable standards of fiduciary conduct and fair dealing.” Id.

         Finally, the Department also promulgated a final, and slightly modified, version of the Best Interest Contract Exemption. Most significantly, although the 2015 proposed BIC Exemption required that both title I and title II advisers and financial institutions enter into written contracts with their customers, the final rule distinguished between plans subject to title I and IRAs and other plans not subject to title I. As a number of commenters explained, a written contract would have served little purpose with respect to title I plans and fiduciaries because title I already provides a private cause of action for those who violate, among other provisions, the prohibited transaction rule. Id. at 21, 021-22. Given the sweeping preemption provisions contained in title I, moreover, it was far from clear that retirement investors would be able to pursue state law claims for breach of contract relating to advice provided to title I plans. Id. at 21, 022. The Department agreed that, with respect to title I plans, it was sufficient to require that advisers and financial institutions acknowledge their fiduciary status and comply with the BIC Exemption requirements as a condition of the exemption. Id. The final rule, therefore, “eliminates the contract requirement altogether in the ERISA context, ” id. at 21, 008, and requires that title I plans merely adhere to the substantive conditions specified in the exemption, id. at 21, 021.

         Thus, to qualify for the exemption, the financial institution must:

[1] Acknowledge fiduciary status with respect to investment advice to the Retirement Investor

[2] Adhere to Impartial Conduct Standards requiring [financial institutions and their advisors] to:

[a] Give advice that is in the Retirement Investor's Best Interest (i.e., prudent advice that is based on the investment objectives, risk tolerance, financial circumstances, and needs of the Retirement Investor, without regard to financial or other ...

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