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Dear Friend Update 6-2-23

As most of you know, the DOL suffered a major setback in the challenge brought by ASA where the court vacated a foundational element of DOL’s new interpretation of the five part test. The court said DOL cannot aggregate rollover advice given to an employer plan participant with subsequent IRA advice for purposes of satisfying the regular basis element of the five part test used to determine fiduciary status. At first the DOL filed an appeal but then withdrew its appeal and now is asking the Magistrate Judge in FACC’s case for more time to address whether the entirety of its new interpretation is rendered unworkable by the ASA decision.

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FACC Comment to Kansas Proposed Best Interest Rule

FACC believes the NAIC Model Regulation provides strong consumer protection while at the same time preserving consumer choice through well-balanced thoughtful regulatory requirements consistent with different delivery systems in the marketplace. We have long held that it is important for states to adopt the model requirements uniformly without deviation so as to leverage the expertise of the NAIC and so that companies and agencies operating across state boundaries can comply efficiently and utilize uniform practices that most effectively serve consumer interests.

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FACC Files Notice of Supplemental Authority on ASA Case Decision

The ASA Order nullifies one of the challenged FAQs on the ground that the policy referenced therein was not a reasonable interpretation of the text of ERISA or the five-part test. Specifically, the court rejected a key element of the DOL’s New Interpretation, which provides that the regular basis requirement for determining fiduciary status will be satisfied in the case of an Investment Professional’s advice to an ERISA plan member with respect to a rollover transaction based on the provision or anticipated provision of post-rollover advice to the IRA owner.

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Transcript of Oral Arguments

This is a statutory construction case. And as such, we believe there’s a basic principle that can and should guide the Court’s decision in matters of statutory construction as it does in matters — many matters under the law. And that — that principle is: Words have meaning. In this particular case, we have the luxury, not often afforded to litigants, that the Fifth Circuit has given us very clear direction as to the meaning of the statute in question arising out of the last time the Department of Labor sought to redefine who’s a “fiduciary” under ERISA.

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Member Alert – California Best Interest Legislation SB 263

TO: FACC Members and Supporters We want to make you aware of draft legislation soon to be introduced in California that is highly troublesome. This is legislation advocated by the California Insurance Commissioner which is contrary to the NAIC Model and would be harmful to consumer choice. FACC is concerned…

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South Dakota Letter to Governor Noem Requesting Veto of HB 1091

From the standpoint of good governance and promoting sound regulation that is business friendly, consumer protective, and consistent with a competitive marketplace, we believe South Dakota would be best served to not deviate from the NAIC model requirements. We hope you – as Governor – will appreciate and agree that it is a strong statement in favor of state insurance regulation that so many states have already banded together to adopt best interest standards befitting the insurance industry and thereby have helped preserve state regulation against federal encroachment.

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Oklahoma Comment Letter Requesting Specific Reference to NAIC Disclosure Language

We urge that Subchapter 17 be modified to specify the content of required disclosure forms rather than stating “on a form prescribed by the Commissioner.” These statements appear in the “Disclosure obligation” and “Documentation obligation” provisions in subsection 365:25-17-7 (a) concerning Best Interest Obligations. This modification could be done either by incorporating the full forms into the regulation as provided for in the NAIC Model Regulation or making specific reference to the NAIC Model Regulation exhibit forms.

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Georgia Comment Letter Opposing Mere Reference to Best Interest

FACC must strongly oppose the proposal to amend Georgia’s suitability regulation as currently drafted. The current proposal attempts to create a “best interest” standard in a single sentence which FACC believes would be a serious mistake and would prove counterproductive as compared to adopting the newly revised NAIC Model Regulation in its entirety.

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