Articles – Page 4 – Federation of Americans for Consumer Choice

Library

FACC Final Comment to Utah

The NAIC model and many other states permit insurance companies and producers to utilize producer disclosures that are “substantially similar to NAIC Appendices A, B, and C.” Many insurers and producers are already using those disclosure forms in other states and it would help insurance companies and producers if Utah conformed to the NAIC model language. Specifically, we ask that the Rule be modified to say “the producer shall prominently disclose to the consumer on a form substantially similar to the 2020 NAIC Model #275 Suitability in Annuity Transactions Appendix A”. Parallel wording could be used for the other appendices as well. As you can appreciate, this is important to enable insurance companies and producers to utilize the same forms across all jurisdictions that have adopted the NAIC model.

Kim O'Brien October 9, 2023 No Comments

New Hampshire Comment Letter

The NAIC model and many other states permit insurance companies and producers to utilize producer disclosures that are “substantially similar to” NAIC Appendices A, B, and C. Many insurers and producers are already using those disclosure forms in other states and it would help insurance companies and producers if New Hampshire conformed to the NAIC model language.

Kim O'Brien September 1, 2023 No Comments

FACC Objections & Brief in Support of Objections

Importantly, vacatur of the scope recommended by the Magistrate Judge frustrates the DOL’s express purpose in adopting the New Interpretation, which set forth the DOL’s “final interpretation of when advice to roll over [Title I] Plan assets to an IRA will be considered fiduciary investment advice under Title I and the Code” (AR 1), and will significantly limit the effect of the New Interpretation. It does not, however, go far enough. Plaintiffs raised multiple other grounds on which the New Interpretation is fatally inconsistent with ERISA and the five-part test. Allowing the remainder of the New Interpretation to survive would leave in place significant and unjustified burdens on the Plaintiffs and similarly situated parties, who would still be at risk of being considered fiduciaries under ERISA or the Code where they never were before and never would be under the common law meaning of the term fiduciary. The DOL’s attempt to broaden the definition of fiduciary to encompass ordinary salespeople who only provide advice incidental to the sale of products cannot be squared with the holding of Chamber of Commerce. In concluding otherwise, the Magistrate Judge’s Recommendations regularly mischaracterize or minimize Plaintiffs’ arguments, ignore or misinterpret the language of the New Interpretation, and disregard the unequivocal holdings of the Fifth Circuit regarding Congress’ intent in using the term fiduciary in ERISA. This was plainly erroneous.

Kim O'Brien August 28, 2023 No Comments

Washington Comment Letter

FACC would like to make one suggestion to the Department which is to promulgate another rule that would specify content of the required disclosures referenced in the updated statutes consistent with the NAIC Model Regulation as set forth in Appendices A, B, and C. HB 1120 provides that the Department shall post the Appendices on its website which FACC presumes will be the same forms as provided in the NAIC Model Regulation. FACC requests the Department consider adopting the NAIC appendices through a regulation that could lay out the sample forms or incorporate the NAIC forms by reference. Such promulgation, or incorporation of the NAIC forms by reference, would ensure that Washington is consistent with the NAIC model regulation in regard to disclosure requirements and provide certainty to regulated parties both now and into the future.

Kim O'Brien August 28, 2023 No Comments

FACC v. DOL Joint Motion for Extension

Based on the foregoing, Plaintiffs and Defendants respectfully request an extension of the deadline for filing objections to the Recommendations up to and including August 14, 2023. In addition, Plaintiffs and Defendants request that the Court order that the responses to any objections filed by either party will be filed on or before September 13, 2023, with any reply briefs to be filed by October 4, 2023.

Kim O'Brien July 7, 2023 No Comments

Magistrate Judge’s Recommendation in FACC v. DOL

The Court should vacate the portions of PTE 2020-02’s text and preamble that allow consideration of Title II investment advice relationships when determining Title I fiduciary status, including the New Interpretation’s (i) allowance of review that a single rollover “can be the beginning of an ongoing advice relationship” to Title II plans…

Kim O'Brien June 30, 2023 No Comments

Dear Friend Update 6-20-23

Regarding the DOL submission in our case, we think DOL sidesteps the real issue, which is that the ASA decision knocked out the lynchpin of their New Interpretation in the sense it essentially blocks DOL from applying its guidance on who is a fiduciary in typical rollover situations when rollovers were the very reason for the DOL rulemaking in the first place. We also think it is noteworthy that the ASA decision was rendered four months ago and DOL has yet to formally acknowledge that court’s decision and follow through on the remand for “further proceedings consistent with this Order.”

Kim O'Brien June 20, 2023 No Comments

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.

Kim O'Brien June 2, 2023 No Comments

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.

Kim O'Brien June 1, 2023 No Comments

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.

Kim O'Brien June 1, 2023 No Comments