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THANK YOU Congressmen Stivers and Cleaver for Your Letter to Secretary Acosta

The FACC Campaign is grateful to

Congressmen Stivers & Cleaver

and thanks them for their support and

thoughtful letter to Secretary Acosta!

July 2017 The Honorable Alexander Acosta Department of Labor Secretary 200 Constitution Avenue NW Washington, D.C. 20210 Dear Secretary Acosta: We are writing to urge you to make one very important revision to the Fiduciary Rule (Rule) if it is not otherwise delayed or repealed. We believe fixed indexed annuities, otherwise known as FIAs, should be moved back from the Best Interest Contract Exemption (BICE) to Prohibited Transaction Exemption 84-24 (PTE 84-24). Each of us has been closely watching developments and appreciate the Rule has generated considerable controversy. Many of us have differing views about the Rule but we are all deeply committed to improving retirement security for our citizens in view of America’s deepening savings crisis. With that in mind, we all agree on at least one thing, which is that the Rule and related Exemptions, if they remain on the books, must be practical as possible to avoid unnecessarily and perhaps inadvertently hurting consumers or providers of financial services. One particular concern in that regard is the treatment of FIAs which we believe should be moved back from BICE to PTE 84-24. By returning FIAs to PTE 84-24, FIAs would be grouped properly with other fixed annuities rather than securities products, and would not be subject to ill-fitting BICE requirements that are oriented towards the securities industry’s framework and practices. By the same token, sellers of fixed indexed annuities would still be subject to impartial conduct standards that embody the Rule’s principal protections. FIAs are retirement oriented financial products which are popular with consumers because they provide opportunity for growth while still providing guarantees of principal and lifetime income options. FIA sales have been steadily growing over the last fifteen years and exceeded $60 billion last year. FIAs are popular because they fill an important niche by providing a conservative product for lower and middle class consumers who may not have the wherewithal or capacity to invest in riskier securities products. Our concern is FIAs will be at a severe disadvantage in the IRA marketplace if they remain in BICE when scheduled to take effect January 1, 2018. FIAs are sold primarily through independent insurance agents as part of the fixed annuity distribution system. As a practical matter, the independent insurance agency system does not fit the framework of BICE, which is built around the securities brokerage system. Unlike securities broker dealers who control securities agent activities and thus can serve as “financial institutions” under BICE, insurance companies offering fixed annuities do not control independent agents and cannot readily provide the warranties required of financial institutions by BICE. DOL recognized this very concern in its proposed rulemaking but has never adequately addressed the issue. These concerns are compounded by the fact that the securities industry has inherent litigation protections that are not available to the fixed annuity industry. BICE recognizes the securities industry can require disputes be resolved through alternative dispute resolution mechanisms such as FINRA arbitration. BICE also allows securities firms to protect themselves by requiring consumers to waive certain harsher remedies such as restitution and punitive damages. All these safeguards which are designed to balance consumer interests with those of the financial institutions are not available to insurance carriers because state insurance regulation does not generally allow for arbitration or other restrictions on remedies. The result is a very unlevel playing field under BICE tiled in favor of the securities industry which will potentially incapacitate the fixed annuity industry with excessive litigation costs. Congress is well aware of the attributes of FIAs and their value to consumers largely because of the adoption of the Harkin Amendment in 2010 as part of the Dodd-Frank Wall Street Reform and Protection Act. In that legislation, Congress essentially declared that any fixed annuity that satisfies state non-forfeiture laws – including FIAs – be treated as exempt from federal securities laws. While we appreciate that the Harkin Amendment was directed at the SEC and its attempts to treat FIAs as securities, we believe the import of that law should not be ignored here. It is our view that with BICE the Department is implicitly treating FIAs as securities contrary to the intent (if not the letter) of the Harkin Amendment. As long as FIA products satisfy the Harkin Amendment, it is our strong view the Department should treat them the same as any other fixed annuity under PTE 84-24. For all these reasons, we are asking the Department to reexamine its position on the treatment of FIAs and move FIAs out of BICE into PTE 84-24 or some more suitable exemption if the Rule and Exemptions are not otherwise delayed or repealed. We believe this is imperative so that the Rule and Exemptions are workable and fair for all concerned parties including consumers and financial services providers. Sincerely, Steve Stivers Member of Congress Emanuel Cleaver, II Member of Congress]]>

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Our Press Release: Group Forms TO PROTECT FIXED ANNUITIES – Focused on Preserving Consumer Choice

See Coverage Here  

The newly formed group, the Fixed Annuity Consumer Choice Campaign, or FACC Campaign, is led by Dwight Carter, President of Financial Security Associates and chairman of the new organization, and Kim O’Brien, a well-known annuity advocate. Its primary emphasis is pushing for permanent placement of fixed indexed annuities under the 84-24 Exemption with other fixed annuities.   It also seeks to guide industry destiny by considering best practices to be used in complying with PTE 84-24 or whatever exemption is fashioned for fixed annuity products. “We call it a campaign because we are singularly focused on protecting fixed annuities through both the regulatory and political process,” said Carter.  “We know it’s now or never for both our agents and our clients so we felt it was important to put together this very focused initiative.” The FACC Campaign is weighing in on the Labor Department’s proposed extension of the transition period to July 1, 2019 with a petition drive.  It is urging agents to sign a letter of petition addressed to Secretary Alexandra Acosta which is posted on the organizations website at fixedannuitychoice.com. “Our Industry needs to come together, take action and sign this Petition to make sure FIAs are treated like all fixed annuities and aren’t lumped in with securities products,” O’Brien said.  “The best way to do that is through grassroots efforts so the Department can better appreciate who we are and what annuities do.” O’Brien indicated the petition was sent out to thousands of agents and is being kept open for signing .  O’Brien said they have already gathered over 1800 signatures. See Coverage Here  ]]>

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Sign Our Petition to Fix the Treatment of FIAs

fixedannuitychoice.com and fill in your name and contact information, and click “sign petition”. In a matter of seconds, you can make your voice heard and make sure fixed indexed annuities aren’t treated like securities. It is important to ACT NOW! The Department of Labor is expected to make a decision any day on whether to adopt further delay of the rule’s implementation. Even though the rule itself is now in effect, and agents must satisfy so-called impartial conduct standards, our fight continues to stop full implementation of the rule and its exemptions . . . and get DOL to fix the treatment of fixed indexed annuities. Be part of our campaign! Sign the petition! Help yourself and help your clients! Thank you, Kim O’Brien]]>

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Round and Round We Go (Where We Stop Nobody Knows)

Lots of Activity These Days The last few days have seen a flurry of activity!  The most recent new items are:

And There’s Litigation Too

First, and maybe foremost, we await the decision of the 5th Circuit Court of Appeals that presides over the Chamber of Commerce case.  Our fingers remain crossed that perhaps that court will strike down the fiduciary rule in its entirety.  The court could do a range of things that include upholding the rule, striking down the rule, or possibly remanding it to the agency for further consideration or revision.  A decision could come out any day. Meanwhile, in the NAFA lawsuit, being heard in the D.C. Circuit Court of Appeals, Fidelity & Guaranty Life and MV Group filed a “friend of the court” or amicus brief, which asserts:
  1. The reasonable compensation standard is unconstitutionally vague; and,
  2. The sudden switch of FIAs to BICE was an arbitrary and capricious action by DOL creating a severely tilted playing field favoring the securities industry over the FIA industry.
The amicus brief supports the NAFA brief but goes deeper on a couple key issues to help the court see the real consequences of the DOL’s rule on carriers and agents.  It stresses the confusing and contradictory information provided by DOL on what is meant by “reasonable compensation” as well as the severe consequences for non-compliance.  It also emphasizes that the switch of FIAs from PTE 84-24 to BICE could expose the FIA industry to greater litigation exposure.

What Does It All Mean?

Well, despite these developments, in the big picture not too much has changed.  The good is that DOL seems serious about the 18 month delay of the full exemptions.  The bad is that the fiduciary rule is in force and agents must comply with 84-24 including the impartial conduct standards.  The uncertain is everything else. So keep in mind:
  • Advisors and agents are still required to adhere to impartial conduct standards when dealing with qualified funds.
  • Whether fixed indexed annuities will end up under the BICE or PTE 84-24 is still very much in doubt.
  • DOL’s latest guidance relates to its enforcement policy only on the class action limitation in the BICE and not on the Rule itself or requirements to adhere to Impartial Conduct Standards – i.e., it doesn’t really help insurance agents.
Explaining that last point, originally the BICE essentially prohibited financial institutions from requiring clients in any pre-dispute arbitration agreement to waive their right to participate in class action litigation.  Since insurers do not generally use arbitration agreements, none of this really applies to the FIA industry.  However, DOL removed that prohibition because it was viewed as conflicting with the Federal Arbitration Act, and is mostly a victory for securities firms. Keep watching for updates . . . . and keep the faith! Many of us are out their fighting on behalf of FIAs and America’s FREEDOM TO CHOOSE the products and services that best meet their retirement savings needs.  Keep on checking in with the FACC Campaign for the important FACTS here at www.fixedannuitychoice.com. And when called upon, be ready to TAKE ACTION.    

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