U.S. Department of Labor Office of the Solicitor Washington, D.C. 2021 O MAYO 1 2018 Austin R. Evers American Oversight 1030 15th Street, NW, Suite B255 Washington, DC 20005 Dear Mr. Evers: This correspondence is in response to your Freedom oflnfonnation Act (FOIA) request dated July 21, 2017, (tracking number 836892) wherein you requested: 1. All calendar entries for any meetings pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the "Fiduciary Rule" or Conflict of Interest Rule," 29 C.F.R. 2510.3-21. For calendar entries created in Outlook or similar programs, the documents should be produced in "memo" form to include all invitees, any notes, and all attachments. Please do not limit your search to Outlook calendars-we request the production of any calendar-paper or electronic; whether on government-issued or personal deviceused to track or coordinate how these individuals allocate their time on agency businesses. 2. All meeting agendas and list of attendees for any meetings held pertaining to the development, implementation, consideration, evaluation, reconsideration, or reevaluation to the Conflict of Interest rule. 3. All lists of attendees for any meetings held pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest rule. 4. Any materials distributed to DOL or provided by non-DOL attendees at any meetings attended by people not employed by the Executive Branch and held pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest rule. 5. All e-mails reflecting requests for meetings with non-DOL parties to discuss the development, implementation, consideration, evaluation, reconsideration, or reevaluation of the Conflict of Interest rule. 6. Copies of all correspondence pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest Rule. This includes any official correspondence to or from DOL, including correspondence to or from other federal agencies, as well as any correspondence with or by any non-governmental person or entity. By email of August 31, 2017, you clarified item number 6, indicating that American Oversight would welcome the opportunity to review a log of correspondence and identify specific entries that would be of interest to the organization. AM[ HICAN PVERSIGHT Your request has been assigned to the Office of the Assistant Secretary for Policy, Employee Benefits Security Administration and the Office of Workers' Compensation Programs for processing. In accordance with our FOIA regulations published at 29 CFR §70.20, when it is determined that records responsive to a request may be located in multiple components of the Department , the Office oflnformation Services (OIS), within the Office of the Solicitor , may coordinate a Departmental response. In this instance, my staff in OIS will be working with each of the components referenced above to search for and process all documents deemed responsive to your request. The Office of the Executive Secretariat conducted a search in the Secretary's Information Management System (SIMS) and located a 28 page log of correspondence related to the Conflict of Interest Rule. Please note that wo pages contain redactions pursuant to 5 USC § 522 (b)(6), which permits the withholding of personnel, medical and similar files when disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Please see the enclosed log. Additional responsive documents will be provided to you on a rolling basis. Questions regarding this response can be addressed to Sharon Hudson , SOL FOIA Coordinator, by phone at 202-693-5406 or by email at hudson.sharon @dol.gov . If you need any further assistance or would like to discuss any aspect of your request please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks, at 202693-5427 or by email at hicks.thomas @dol.gov . Alternatively, you may contact the Office of Government Information Services (OGIS) to inquire about the mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. You can also reach that office by email at ogis@nara.gov , by phone at 202-741-5770, by fax at 202-741-5769, or by calling tollfree at 1-877-684-6448. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the grounds for the appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal, please include your mailing address and daytime telephone number, as well as a copy of the initial request and copy of this letter. The envelope and letter of the appeal should be clearly marked "Freedom of Information Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. AM RICA'\J PVERSIGHT The appeal should be addressed to the Solicitor of Labor, Division of Management and Administrative Legal Services, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2428, Washington, D.C. 20210. Appeals may also be submitted via email at foiaappeal@dol.gov . Emails submitted to any other email address will not be accepted. Sincerely, ~ 14-4\uil,ul\ Susan Harthill Deputy Solicitor for National Operations Enclosures AMERICAN PVERSIGHT ExecSec Search Results : "Fiduciary" - Letters FOIA REPORT Updalc as of 8 1412017 2 14 34 PM Dule Entered From 1/20/201 7 To 8 9 20 I 7 SIMS 10 o , lotnator I 837488 Huizenga. 8111 (Chairman) l 837485 Barry Rachel Constituent Addressee Organization Subcomlle Capital House Commillee on Markets/Securities Financ,ol Services & Investment BlackRock Global Public Policy Group Date Subject entered Closeout Cate Orticc Assigned Hauser (EBSA) Impact of lhe DOL F1duc1ary Rule on the Capital Markets 81812017 EBSA DOL Fiduciary Rule WIii Damage Retirement Secunty Harmonize With SEC and FINRA 8/812017 EBSA Opposed lo Fiduciary Rule Propose Working w1lh SEC/NAIC To Create Regulations 8/712017 EBSA 8/7/2017 EBSA 817/2017 EBSA InvestmentAdvisors 8/3/2017 EBSA J 837375 Drahozal , Steven DOL 4 837369 Carpenter , Samuel Acosta (Secretary) Fiduciary Rule Is CostingMoney: Hurting The Small Investors 5 837333 Hodapp,Fred Acosta (Secretary) et al 6 837046 Weinland . Jennifer Acosta (Secretary) Gel Rtd Of The 'F1duc ary Rule' Ensure High Standards for to 401 (k) & IRAs (Fiduciary Rule) Oppose Fiduciary 7 836724 Bullington , S19nd R Merrill Lynch Perez (Secretary) Rule Regarding IRA's, Roth IRA's 7/31/2017 EBSA EBSA And Associated Fees 8 836716 Toomey, Pat (Sen) Hugler (Secretary) Fiduciary Rule Not In Bost lnteresVRecons,der 7/31/2017 Rule/Allow Clients To lnvesl 9 836529 Eason, Mark DOL Fiduciary Rule Not In Besl lnteresVReconsider 7/28/2017 8111/2017 EBSA Rule/Allow Chents to Invest 10 836443 Kaplan , Jay Acosla (Secrealry) el al. Proposed Fiduciary Rule Will Eliminate Choices Currently Available In My IRA 712712017 8111/2017 EBSA 11 836388 Wayland Jack Management Professional Services Inc Acosla (Secretary) Proposed Fiduciary Rule Will Eliminate Choices Currently Available In My IRA 7127/2017 8111/2017 EBSA u 836203 Quintana Annene (CEO) lstonish Always Leading DOL Opinion on lhe Opportuntty for Innovation on Recent DOL F oduc,ary Rule 7125/2017 8/11/2017 EBSA 13 836111 Galpin. Jim Secretary Fiduciary Rule Does Not Mean Clienl's Besl Interests Will Be Met 712512017 8111/2017 EBSA 14 836092 Merklin, Lee E. Acosta (Secre tary) Fiduciaty Rule Does Irreparable Damage; Raises Cos1 wtth No Gain to Clients 712512017 8/11/2017 EBSA 7124/2017 811t/2017 EBSA 15 836027 Ross , Mike & Glona Acosta (Sec retary) Delay The Implementation or The Fiduciary Rule PermanenVHigher Fees 16 835765 Mason , Enca DOL Delay the Implementation of the DOL Fiduciary Rule 7/2012017 8111/2017 EBSA 17 835750 Acosta (Secretary) Financial Advisor Wants Job with DOL to Help With Fiduciary Rule 7/2012017 18 835740 Hesh , Suzanne DOL F mancial Advisers Have Best Interests of Retirement Savers/F iduc,ary Rule 7119/2017 8111/2017 EBSA - AM[ HICAN PVERSIGHT WHL DOL-17-0281-A-000001 19 835725 Chambers,William L (Senior Vice President) Athene USA/Hunllcigh SecuritiesCorporation Kvalhelm (Athene) How Can Investment Advisors Plan Best 7/19/2017 7/19/2017 EBSA Interest of CUents wHhFiduciary Rule Acosta (Secretary) Fully Implement and Enforce the Fiduciary Rule: 7/18/2017 8/11/2017 EBSA Access to Honest Advice Needed Acosta (Secretary) Amendmentto Fiduciary Rule to Sult Financial Advisorsand Small Investors 20 835599 Harris, JudHhS. 21 835585 Congeml,Frank 22 835566 Mroz, Bemadette Acosta(Secretary) Lea~ethe Fiduciary Rule; AdvisorsMust 7/18/2017 8/11/2017 EBSA Work In the Best Interest for Clients 23 835549 Patterson, Matthew Acosta (Secretary) Proposed Fiduciary Rule Will Eliminate 7/18/2017 8/11/2017 E8SA Choices Currently Available In My IRA 24 835399 Anonymous Acosta (Secretary) Enforce The Fiduciary Rule/SultablUty Standard Isn't Protective 7/17/2017 7/28/2017 EBSA 25 835398 Anonymous Acosta (Secretary) Enforce The Fiduciary Rule 7/17/2017 7/28/2017 E8SA 7/17/2017 7/28/2017 EBSA BenefactorFinancialand SecuritiesAmerica I 7/18/2017 8/11/2017 EBSA 28 835397 Anonymous Acosta (Secretary) Enforce The Fiduciary Rule/SuitabitHy Standard lsn1 Protective 27 835396 Anonymous Acos1a(Secretary) Enforce The Fiduciary Rule/SukabRHy Standard Isn't Protective 7/17/2017 7/28/2017 ESSA 28 Swanson,Barry Ernest 835376 (Presld11nt , CFP) COL Email Address For Comment On Fiduciary Rule Doesn't Wort/ Provide Correct Email 7/14/2017 7/27/2017 EBSA 211 835058 Snyder, Grace Weed Acosta (Secretary) Proposed Fiduciary Rule Will Eliminate Choices Currently Available In My IRA 7/12/2017 8/11/2017 ESSA 30 835046 Sturtevant,Marion Acosta (Secretary) 31 835045 Endsley,Dorothy Acos1a(Secretary) 32 835043 Skillman,Marie Acosta (Secretary) Thank You For Not Delaying The Fiduciary Rule & Hope Rule WIii Be Enforced Jan 1 33 835031 Hodapp,Fred B. Acosta (Secretary) Rescind The Fiduciary Rule \Milch Will Hurt The 7/12/2017 814/2017 SmaUInvestor EBSA 34 834963 Shaw,Gregory Acosta (Secretary) Thank You For Delaying The Fiduciary Rule & Hope Rule WIii 8e Enforced Jan 111 EBSA 35 834961 Anonymous Acosta (Secretary) Enforce The Fiduciary Rule, Give 7/11/2017 7128/2017 ESSA Priomy To Clients Interest 36 834959 Carolyn Acosta (Secretary) Enforce the Fiduciary Rule, Advisors Must Put Clients Intern! Above Their OWn 7/11/2017 8/4/2017 ESSA 37 834927 Stroh,Joan Acosta (Secretary) Thanks for Not Delaying Fiduciary 7/11/2017 8/412017 Rule & True\ 'MIi Be Enforced January ESSA AMERICAN PVERSIGHT Enforce The Fiduciary Rule, Advisors Mull Put Clients lntetest AboveTheir Own Thank You For Not Delaying The Fiduciary Rule Phase I 7/12/2017 8/11/2017 EBSA 7/12/2017 8111/2017 EBSA 7112/2017 8111/2017 EBSA 7/11/2017 8/4/2017 DOL-17-0281-A-000002 1st Acosta (Secretary) Enforce the Fiduciary Rule; Advisors Must Put Clients Interests Above Thoir Own 7/11/2017 7/28/2017 EBSA 7/11/2017 7/2B/2017 EBSA 38 834926 Anonymous 39 834925 Anonymous Acosta (Secretary) Enforce tho Fiduciary Rule; Advisors Must Put Clients Interests Above Their Own 40 834923 Adams. Rhonda Acosta (Secretary) Enforce the Fiduciary Rule; Important for Elderly 7/11/2017 8/4/2017 People to Proted Their Assets 41 834B20 DOL Terminated After Contacted by DOL Regarding Employer 7/10/2017 7/14/2017 EBSA Vlolallon of Fiduciary Rule 42 834 722 Gray, Amzl Trump (President) Proposed Fiduciary Rule Will Eliminate Choices Currently Available In My IRA 7/7/2017 8/11/2017 EBSA 43 834592 Marlin, Alan DOL Rescind The Implementation Of The Fiduciary Rule It 7/6/2017 WIQHarm IRA Holders B/4/2017 EBSA 44 834591 Trallis , Norm Acos1a (Secre1ary) Delay And Repeal The DOL Fiduciary Rule 7/6/2017 8/4/2017 EBSA Secretary Inquiry Into Fiduciary Rule's Limit lo Retirement 7/6/2017 Accounts; Proposal to Expand 8/4/2017 EBSA 7/5/2017 8/4/2017 EBSA 7/J/2017 8/4/2017 EBSA 8/4/2017 EBSA 45 (b) (6) 834563 Mack, Phebe H. 41 834458 Davis, Ilene DOL Comments on Fiduciary Rule; Proposal to Show Total Cos1of Ownership Investment 47 834421 Fetzer, Phil DOL Implement The Fiduciary Rule To Protect Against Unethical Financial Advisors 41 834413 Cox, Orrin Blaine Jr. Merrill Lynch DOL Objections To Fiduciary Rule/Having To 7/3/2017 Divide Assets/Higher EBSA Fees Murray, Jeff (Financial Advisor) 49 834317 50 834283 Stanford, Alan G. s1 834127 Schleppenbach, Kevin 52 833718 Greenwalt, Susan 53 633629 Gretes, George Duff Utllltles Fund Circles of Care, Inc. DOL Opposed To The Fiduciary Rule 6/30/2017 8/4/2017 EBSA Acosta (Secretary) Fiduciary Rule Is Costing Money, Causes Harm to lnvesto'" 6/30/2017 8/4/2017 EBSA Acosta (Secretary) Rescind The Fiduciary Rule Regulation Recently 6/28/2017 6/30/2017 EBSA Imposed On Brokers By The DOL Acosta (Secretary) OpposeRepealOf Fiduciary Rule/OvertimePay 6/23/2017 For WorkersEarning Less Than $SOK Trump (President) Reverse Fiduciary Rule 6/22/2017 6/22/2017 EBSA 6/22/2017 6/30/2017 EBSA 6121/2017 6/30/2017 EBSA 54 833592 York, Doug DOL Reducing And/Or Eliminating Expensive & Unnece11ary Fiduciary Rule Regulations 55 833536 Mattix, Shannon J. Accala (Secretary) Opposed to Fiduciary Rule; Government Should Hava Lass Regulation WHO How To Implement AMf HICAN PVERSIGHT DOL-17-0281-A-000003 Acosta (Secn,tary) Best Interest Of Client - Fiduciary Rulo Acosta (Secretary) Flducia,y Rule Regarding Financial 6/21/2017 6/30/2017 EBSA Planners Not In Best Interest Of Clients Acosta (Secretary) Opposed to Fiduciary Rule; Place Undue 6/2112017 6/30/2017 EBSA Burdenson Brokers and Coats Income OOL Objection On OOL Fiduciary Rule In Investing/ IRA 833453 ll\lhlttle, Scott H. Acosta (Secretary) Repealthe Fiduciary Rule, WU Cost 6/21/2017 6/30/2017 EBSA cnents Money to Move Stocks 61 833351 Tegnazlan, Terry A. Acosta (Secretary) Opposedto Fiduciary Rule; RetirementAccount Annual Fee Will Increase 6/20/2017 6/30/2017 EBSA 82 833349 Thompson, Gregory T. Thompson Insurance Services Acosta (Secretary) Opposedto Fiduciary Rule; v.,n Cut Income While Helping Large Companies 6/20/2017 6130/2017EBSA Jeffrey Anton Tax and BusinessServices/ Belmont Tax Acosta (Secretary) How The Fiduciary Rule VvlllAdversely lmpadThe Consumer 6120/2017 6130/2017 EBSA Great Nation Investment Corporation Acosta (Secretary) Fiduciary Rule Prevents America Churchea In 6/19/2017 6/30/2017 EBSA Obtaining Capital for Expansion Acosta (Secretary) Opposedto Fiduciary Rule; Vvlll Coat Him Additional Money 6119120176/30/2017 EBSA UBS Financial Services Inc Acosta (Secretary) Thank you for Our Conversatlan on Workfon:e Development and Fiduciary Rule 6119/2017 6/19/2017 OSEC Poindexter Financial Group, Inc. Acosta (Secretary) Fiduciary Rule 'Mil DamageRetirement 6/16/2017 6/21/2017 EBSA Security Acosta (Secretary) Keepthe Volcker Rule & Iha Fiduciary Rule; Assures 6/15/2017 Advisors Are Not Greedy Acosta (Secretary) Opposed to Fiduciary Rule I WIii 6/1512017 6/30/2017 EBSA Cost lnvesters Money 56 833470 Galanldes, Theodore 0 . (Ret~ed RIA) 57 833462 Ngo, Eddie (Certlned Financial Planner) 58 833461 Barker, Rooney s, 833454 Satyadl, E. Caroline 60 113 833308 Anton, Jeffrey (CPA, Manager) 64 833252 Treat, B. Pat (CEO) H 833241 Young, VvllllamA. 66 833195 Naratll, Tom (President) Poindexter, Jamet M. 117 833083 (CertlnedFinancial Planner) 68 Tho Planners Network I 833004 Lucore, Shirley 1111 832986 Umer, Jane G 6/21/2017 6/30/2017 EBSA 6/21/2017 6/30/2017 EBSA EBSA Integrated Strategies, LPL Acosta (Secretary) Financial Opposes Brokers Fiduciary Rule; Increase on Fees, Hurts Clients, Benefds Big 6/1412017 6/21/2017 EBSA Treasury Departmentfrom Acosta (Secretary) 13 Slat11 Thank You for lmplementlng the Fiduciary Rule on June 19 6112/2017 712112017EBSA 832695 Poser, John F. Edward Jones Acosta (Secretary) Proposed Fiduciary Rule \Mil Eliminate Choices Currently AvailableIn My IRA 6/12/2017 6/21/2017 EBSA 73 832678 Bullington, Sigrid R Merrill Lynch Perez (Secretary) Oppose Fiduciary Ruling Regarding 6112/2017 6/21/2017 EBSA IRA's,Roth IRA's and AssociatedFees 74 832664 Cord, Edith M Acosta (Secretary) Opposesthe lmplemantallon of the Fiduciary Rule; Fee Would Hurt Clients 6/1212017 6/21/2017 EBSA 75 832630 Larkin, Tim Secretary Commends Secretary For Not Extending Delay of 6112/2017 6/21/2017 EBSA 70 832929 Keamay, Robin 71 832697 72 Torsella, Joseph/ Read, Tobias and 11 Others AMt RICA'\J PVERSIGHT DOL-17-0281-A-000004 lmplemenlallon of Fiduciary Rule 76 B32511 Anderson, J M Acosla (Secrelary) Delay Fiduciary Rule Until COL Compleles 61912017 611512017EBSA New Economic/legal Analysis Wilh SEC 77 832506 Hodapp, Fred Acosla (Secrelary) Rescind Fiduciary Rule \MIich Will Hurt 6/912017 6/15/2017 EBSA The Small lnveI1or Acosta (Secretary) Review lhe Commonality of lnlerast Requirement: Fiduciary Rule CausesHarm 7B Senate Committee on Health, Education, Labor and Pension 832491 Enzl, Michael B (Sen) I Acosta (Secrelary) Fiduciary Rule Regulations Effect on Americans Retirement Security 832368 JardeP,Cathryn L Acosta (Secretary) Allow the Conversions of IRAs lo Rolh IRAs In Iha 6/8/2017 6/15/2017 EBSA Fiduciary Rule to Continue 832320 Biondo, Jim COL Delay Fiduciary Rule Beyond June 9, 61712017 6/1512017 EBSA 2017, To Condud A Thorough Review Execulive Secretarial Discontinue The ImplementationOf The Fiduciary Rule II 6/712017 6/1512017EBSA Will Harm IRA Holders Acosta (Secrelary) Delay Fiduciary Rule Beyond June 9, 6/712017 6/1512017 EBSA 2017, To Conduct A Thorough Review Acosla (Secrelary) Delay Fiduciary Rule Beyond June 9, 6/712017 6123/2017 EBSA 2017, To Conduct A Thorough Review Acosle (Secrelary) Fiduciary Rule Is Confusing & Potentially Business 616/2017 611512017EBSA OebHltaling Regulation Acosta (Secrelary) Expedtte/lntenslve ReviewOf Fiduciary 6/6/2017 6/15/2017 EBSA Rule/Rule Negatively Impacts Services Women's March COL Uphold the Fiduciary Rule: Important lhal 6/512017 6/8/2017 EBSA Advisors Have No Conflict of Interest Joan Kerr Financial Services Acosta (Secretary) Delay Fiduciary Rule Beyond June 9, 2017, To Conduct A 615/2017 611512017EBSA Thorough Review COL Seeks Clarity & Supports Fiduciary Rule 79 832417 BO 81 Kehney, Wendy & 3099 Olhers 82 832319 Schuette, Jeff 83 832317 B4 832297 Latta, Robert E. (Cong) 85 832234 Black, Victor L. Connolly, Alana J. (Office Administrator) Nationwide.com Edward O. Jones & Co , L.P. d/b/a Edward Jones Sattler, David J. & NWQ Wealth Partners, Briggs, Thomas LLC: Raymond James G. as 832225 Cauthen, Sharron 87 6/9/2017 7/6/2017 EBSA I B32089 Sarah aa 832085 Kerr, Joan 0. 89 832080 Kercorlan, Jeff 90 832061 Trujillo, Edna 91 831964 92 831899 Escobar. Tlmolhy J. 93 B31897 Johnson, Ron 94 831877 Zachary, William Jr Sununu, Chrtstopher T. (Gov) PVERSIGHT 6/5/2017 EBSA Family Investors Company Acosta (Secrelary) Opposed to Fiduciary Rule Going 615/2017 6/15/2017 EBSA Into Effect: Will Hurt Small Businesses Slate Of Now Hampshire Acosta (Secretary) Delay Rule Expanding Oefinijian ol 'lnvell1mentadvice 612/2017 6/26/2017 EBSA fiduciary' Under ERISA Acosta (Secretary) Proposed Fiduciary Rule VI/IllEllmlnate Choices Currently AvailableIn My IRA Johnson Farms Emmer Tom (Cong) Fiduciary Rule 'MU IncreaseFees And 6/1/2017 6/1/2017 EBSA Ellmlna!e Choices In My IRA Zachary & Segraves, PA/Edward Jones Acosta (Secretary) Proposed Fiduciary Rule Will Eliminate Choices Currently Available In My IRA Vllhttehall-Parl Subject: E.O. 12866 Meeting on Definitionof the Term "Fiduciary.. - Delay of Applicability Date This meeting was requested by William Nelson, Certified Financial Planner Board of Standards, Inc. (b) (6) AMc:HICAr\J pVERSIGHT 1 DOL-17-0281-B-000022 "' . II February 14, 2017 Tuesday 14 February 2017 March 2017 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa S 6 12 13 19 20 26 27 1 2 3 4 7 8 9 10 11 14 15 161718 21 22 23 24 25 28 5 12 19 26 6 13 20 27 7 14 21 28 1 8 15 22 29 2 3 4 91011 16 17 18 23 24 25 30 31 Daily Task List Tuesday Arranqe Sy: Due Date . 7am aoo 900 10 00 11 00 FW: Reg. Update N5677 Fishbowl Hauser Timothy - EBSA 12Pm ."l OASPAll-Staff meeting OASPConference Room Bascus,Carrol - ASP I 100 Notes 200 300 E.O.12866 Meeting on Definitionof the Term "Fiduciary"- Delayof AppllcabllltyD 400 500 600 J)vt:_H__1GHT 1 8/17/2017 9:46 AM DOL-17-0281-B-000023 February 2017 SuMo TuWe Th Fr Sa 1 2 3 4 s 6 7 8 9 10 11 12 131415161718 19 20 212223 24 25 26 27 28 February 15, 2017 Wednesday DailyTask List Wednesday 15 March2017 SuMo TuWe Th Fr Sa 1 2 3 4 S 6 7 8 9 10 11 12 131415 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Arrange Bv:Due Date 7am 300 900 10 00 11 00 l2Pm canceled: GAOEngagementtitled, ·Federal Agendes' InformationSecurityPrac:tk Department of Labor, Room S-2203, Frances Perkins Building,Washington DC Seifert, KarlW 100 E.O. 12866 Meeting on Definition of the Term •Fiduciary• - Delay of Appllcablllty ll Notes 200 j E.O. 12866 Meeting on Definition of the Term "Fiduciary" - Delay of Applicabili~~ 300 400 500 600 I\ r'7t: -RS1 GHT 1 8/17/2017 9:47 AM DOL-17-0281-B-000024 February 16, 2017 Thursday 16 February 2017 March 2017 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 5 12 19 26 l 2 3 4 6 7 8 9 10 11 131415 16 17 18 20 21 22 23 24 25 27 28 5 12 19 26 6 13 20 27 7 14 21 28 1 8 15 22 29 2 9 16 23 30 3 10 17 24 31 4 11 18 25 Daily Task List Thursday Arranqe By: Due Date 7am aoo goo 10 00 11 00 12Pm 100 Notes 200 E.O.12866 Meeting on Definitionof the II Canceled:OASPAll Staff Meeting OASP Conference Room - S-2015 Block, Sharon I - ASP . .'l 300 400 500 &00 - jJvfHS1GHT 1 8/17/2017 9:47 AM DOL-17-0281-B-000025 February2017 SuMo TuWe Th Fr Sa 1 2 3 4 S 6 7 8 9 10 11 12 131415161718 19 20 21 22 23 24 25 26 27 28 February 17, 2017 Friday 17 March2017 SuMo TuWe Th Fr Sa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Daily Task List Friday Arrange By: Due Date 7am aoo 900 10 00 ! FW: FOIACoordinator'sBriefing SOLFOIAConfemece Room, N-2420 Oliver, Ramona - SOL 1, i 11 00 12 pm 100 Notes 200 E.O. 12866 Meeting on Definition of the Term -Fiduciary• • Delay of Appllcablllty D 300 E.O. 12866 Meeting on Definition of the Term -Fidudary* • Delay of Appllcablllty DI 400 500 600 p ·-rn~1GHT l DOL-17-0281-B-000026 I February 2017 SuMo TuWe Th Fr Sa 1 2 3 4 5 6 7 8 910 11 12 131415 16 17 18 19 20 21 22 23 24 25 26 27 28 February 21, .2017 Tuesday 21 March 2017 SuMo TuWe Th Fr Sa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 DailyTask List Arranqe By:Due Date Tuesday 7am goo goo 10 00 . 11 00 FW: Reg. Update NS677-Fishbowl Hauser, Timothy • EBSA .~ 12Pm 100 Notes 200 E.O.12866 Meeting on Definitionof the Tenn "Fiduciary"- Delayof ApplicabilityD 300 400 500 600 -pv ·~"R$1 G HT . . 1 8/17/2017 9:48 AM DOL-17-0281-B-000027 February2017 SuMo TuWe Th Fr Sa February 22, 2017 1 2 3 4 Wednesday 22 S 6 7 8 910 11 12 13 141516 17 18 19 20 21 22 23 24 25 26 27 28 Wednesday March 2017 SuMo TuWe Th Fr Sa 1 2 3 4 S 6 7 8 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 DailyTask List Arranqe By: Due Date 7am 300 goo 10 00 Entrust for SeledaPerryman 11 00 Callre FidudaryRule Pam'soffice Peters,Pamela- ASP Conf Call-Call in line below Swirsky,Stephanie- ASP 12 pm 100 E.O. 12866 Meeting on Definition of the Term "Fiduciary" • Delay of Applicability DI Notes 200 300 E.O. 12866 Meeting on Definition of the Term "Fiduciary" - Delay of Applicability D 400 500 600 - 1 8/17/2017 9:49 AM DOL-17-0281-B-000028 .,, . .. February 23, 2017 Thursday . February2017 SuMo TuWe Th Fr Sa March 2017 SuMo TuWe Th Fr Sa 1 2 3 4 5 6 7 8 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 5 6 7 8 910 12 13 14 15 16 17 19 20 21 22 23 24 26 27 28 29 30 31 I DailyTaskList Thursday 23 4 11 18 25 ArrangeBy:Due Date 7am soo 900 10 00 11 00 12Pm 100 E.O.12866 Meeting on Definition of the Tenn "Fldudary" - Delay of Applicability D Notes 200 EntranceConference- GAO EngagementTitled, "Enforcementof Individual RetirementAccount(IRA) GAO Entrance:Enforcmentof IRA Rules NS677 Marchand,Becki- EBSA 161 300 400 . 500 600 . .,__ - iGHT 1 8/17/2017 9:49 AM DOL-17-0281-B-000029 April 03, 2017 April 2017 May2017 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa l Monday 2 3 4 5 9101112 16 17 18 19 23 24 25 26 30 7 14 21 28 8 15 22 29 l 7 8 1415 21 22 28 29 2 9 16 23 30 3 10 17 24 31 4 5 1112 18 19 25 26 6 13 20 27 Daily Task List Monday 3 6 13 20 27 Arranqe By: Due Date 7am 900 goo 10 00 I Fwd: E.O.12866 Meeting on Definition of the Term "Fiduciary" - Delay of Appllcabl 11 00 12Pm 100 E.O.12866 Meeting on Definition of the Term "Fidudary" - Delay of Applicability C Notes 200 Canceled:RegTeam WeelclyMeeting OASPConference Room Dawkins, Laura M - ASP ~ 300 400 500 600 .f---..._. f]V ' - 1GHT 1 8/17/2017 9:51 AM DOL-17-0281-B-000030 ~ March 2017 March 31, 2017 SuMo TuWe Th l 2 5 6 7 B 9 U 13 14 15 16 19 20 21 22 23 26 27 28 29 30 Friday 31 Fr Sa 3 4 10 11 17 18 24 25 31 April 2017 SuMo TuWe Th Fr Sa l 2 3 4 5 6 7 B 9101112 13 14 15 1617 18 19 20 2122 23 24 25 26 27 28 29 30 Daily Task List Friday . Arrange By: Due Date 7am 300 900 10 00 11 00 12Pm 100 Notes 200 300 E.O. 12866 Meeting on Definition of the Term "Fldudary" - Delay of Appllcablllty C 400 E.O. 12866 Meeting on Definition of the Term "Fiduciary" - Delay of Applicability C 500 600 -- - 1GHT 1 8/17/2017 9:50 AM DOL-17-0281-B-000031 June 2017 SuMo TuWe Th Fr Sa l 2 3 4 5 6 7 8 9 10 1112 13 14 15 16 17 18 19 20 2122 23 24 25 26 27 28 29 30 June 13, 2017 Tuesday - 13 ,_• I DailyTask List Tuesday Leave;Out of the Office FromJunB July 2017 SuMo TuWe Th Fr Sa 1 2 3 4 5 6 7 8 9 10 1112 13 14 15 16 17 1819 20 21 22 23 24 25 26 27 2B 29 30 31 Arranqe By: Due Date To Jun 16 • ~ 7am ' soo • ~ 'l goo 10 00 11 00 FW: Reg. Update N5677-F,shbowl Hauser. Timothy - EBSA ~~ 12Pm 100 Notes 200 - 300 ~ FW: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibi· - 400 ~ 500 -I &00 • J-)VERS1GHT 1 8/17/2017 9:52 AM DOL-17-0281-B-000032 .. . - - June 19, 2017 Monday June 2017 July2017 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 4 5 1112 18 19 2S 26 . 6 13 20 27 , 19 7 14 21 28 1 2 3 8 9 10 15 16 17 22 23 24 29 30 2 9 16 23 30 1 5 6 7 8 10 11 12 13 14 15 17 18 19 20 21 22 24 25 26 27 28 29 31 3 4 Daily Task List Monday Arrange By: Due Date 7am aoo goo 10 00 I Reg Team Weekly Meeting OASPConference Room Dawkins, laura M - ASP I I ~I 11 00 FW: E.O. 12866 Meeting on Requestfor lnfonnation on Fldudary Rule and Prohibit ; ; 12Pm 100 Notes 200 300 400 500 &00 I\ I r\7t: _H_1GHT 1 8/17/2017 9:53 AM DOL-17-0281-B-000033 f/Zl/Zafj W6 O??nllq?bm {h Hm uSc?r? 33mg 2 pr W?m ?(mm DOD 60.3 (GK 75% Young? Tm [Egg/95 If? W, .W?qwm?y .00: 5/55/67- MI- 5624' do (?mod 854 Lou ?air/28% U03 Do L/E?us .1 Hyl?'lth'HNL EmMj?m C?l? SM it LR My k?n??s 5:2 50466? 13x! 15? .. DOL-17-0281-B-000034 j)2)L, /) (b) (6) !;5;/\ --.--e OV" / e_ ·-f we_pvi u e.v ,J ol ( (!. 6 Yi s_oL, ij.:,OL- c 85A l)_oL-/ _ Oul-\:A¼tlt1t-05 4 vuL. { \V{:Sn.lY~ 1-. v-+vVl,U\~ l "- vl~ l12.-A- - 1::, 1-\-cJw1 --t: ~~~ a-+ <..JL-- s,;-v\ *-\"U'-'~ le.AS~~ 'I'-~ ~r c-n,..,"\. C. M ICAI\J ,OVERSIGHT DOL-17-0281-B-000035 ~ T.Rowe~ices INV EST W IT H CO NFI OUICE CONS ·TRAl 1NTS ON SERVICE PROVl ·DER SAVINGS MESSAGES: :l:MPrACT Of 'FAQ 9 AND 10 I ~~ I 1J: June 1, 2017 C, - ;Q. Plan Sponsors Look to T. Ro\Ne Price to Drive Employee Savings Behaviors Plan sponsors look to their pli~orecordkeeper ·to provide a range of parti9ipant services: 99% of Human Resources profes1ionals agree that they have ·a duty to prep~re employees for retirement* • Make employees aware of the retirement plan and its features • Motivate employees to enroll in the plan ·• 1 Nearly half (48%) of all Human Resources professionals surveyed are measuring their progress toward achieving employee retirement preparedness* 1 • • Support participants through telephone service centers 1 • • Provide cutting-edge technology (i.e. participant websites, mobile, sms) Plan recordkeepers supply the preparedness metric for 52% of plans* Conduct in-workplace meetings with employees Participant Service~ is one Qf the most critical drivers of overall satisfaction for Qur plan sponsors • 98% of Sponsors elected to participate in our Retire With Confidence Programa communications program that delivers information relevant to an individual based on factors such as age, savings status, and retirement time horizon , in order to motivate participants to pursue retirement readiness 1J: C, zJ:A: CIJ~--1 Saving for :r,~tirement may be the easiest part of you r day. ••u•• •.,..c••"••1t•1• ---i _ - -. · -.· amounts.and services~ and to you. make yo.If seledll'nl. remember: It's okay to start small. 9.Jlldlng up yo.If savngs talc8slime , so lh8 sooner you start.the bel18r. i' ·r ( '- -~. ,.-. - ~...(- ll···- - ·I. ·~RP 1: : "' .. · I ' i ~ -~ ----+'1·: ., . J~; ~ ; step 1: ~ how much you want to save Your plan maJcesII COIM!llleri to save with e,ery ~ The irnpoctafi:thilg Is to Choo9e a SWings amounl get started. see the section tltl9d "Get to klKM' all the ways your plan can wllfk for y0t1" for oonMbutlontypes. When you go lo enrolland ~""~~ "· D Enr o llm e nt Bro c hur e (exce r pt) :-...;L-ti~_:: - - • t l IP1iil ._:_ - · - - ~~ - I --F--- - j..c j ..... Hera an, a,_ ti>Sto make saving for retuermnt less strasslul foryou: • Rlgtitnow,..,,._whalyoucan. ~alltlebl orsamgs loda'fcan go a long~ In reliement. eonstder !ilelllflgi aside 1-. Of 2'll, oryour paf no,.r-lor rnarr)', that's a tew dalars a-ek-a'ld IncreaseIlle amount ll'f I'll. or 2'll, each year. • Consldllr Where you ae now-your age, salary, encl monthly butlgllt These lactOl'Swll lmpacl how rruch you sa\19 tor mlilement You can try oul jed:Makeyou r 45th birthday count Date: Tuesday, March 28, 2017 at 10:59:47 AM Eastern Daylight TIme From ~ T. Rowe Price Retirement Plan Services fl TO: Mil esto ne Email s The example on the left is an email delivered to participant s in their birth month in 5-yea r incremen ts (25, 30, 35, 40 , and 45). Give yourself a giftInvest more in your future~ Al age , s, considerhaVJngfour times your annual pay savedfor retirement. use ttus chat to gauge yourprogressaooset goals along the wwy Age: 30 35 40 45 50 55 1/2X 1x 2x 4x 6x Bx 10x 12x 80 65 Annual Pay Saved: save MoreNow NOT QUITE THERE?DONT PANtC. 1J: • Increase yoursamgs rate tJy2% eachyear C, • strNe !award savtng 15% oryou- payannuallylor rebremenl Increase Ycu Coririluioo I N\tC ST W IT !$ CONFIIIE H Cr z It-, ..-,t,w, la • We~ 1~, 1fl("orn,fJ thal most ,oniement mvestor! , '!JIOIAd ~ oC UlfM pay, tndltdw'Wl employet c.ontrlbUbOflS to nM'l'( thew felw•· '!nl S. -~ ~ reaour~• n,gpagolO 1uu118'1rement acrOU'lf plan anc:omre ~ T-,•- SAVE MORE THROUGH THE PLAN lhe pl :l rs m Plan Specific Targeted Email (i.e. low % savers, not maximizin g match, etc.] • ur most ol 1 M>eltdy P.rYolle ~ Custom Communications Sample • Messages are created to meet the unique needs of a single 401(k) plan spo nsor • Communi cations are distributed by T. Rowe Price at the direction of the plan sponsor ~fb~- Congratulations on your first anruyersary; ~ ~""' l You'Uthank yourulfi..terlor mulmlzlns your savlnp today. --~~-•mardq --a•-~ .......... (il!tilll: ntwli: 'Pt:i••~ncar4tblrbif,e(~m-,.c..ya.l" ----cs conuc:u,a,a15°"dhfr116S~p.,p,:yhlvou~ e..a.p,1yperCJd SO ,1yaJ~rd-,rf:~O '{(;IJ. t co~(\ ~ r 1~-·)~. . ~ - ,st'l\a\c" -.Na\\ \f\~ . 1· ... --- --•lid'(C>I prf-yodre-~ft c:> <> ~IClmaiff&r'ycu <<.tidd,us Une Ont» Htr,'showtllfflOlorhcr•--anrtJ.on t~el'nceM1.Nl.'tll..t9.fi buslnlssdaystior-hhi.m. ..,., .. <>, «Stile» «Zlpcode,,> -~•ewdlble: b10 P."ft. ~ammt~ 1J: Or10 IJfle t Ro.e~wm.tit•~.com Oon't•Ma'dB funcaYou" ..... dllf lCll..la'aNlrUl@d~ mtetwc fdMlf.-t'l'Ollb't. =~ '" VE Sf WIT H c:ott,1 DCMC I " C, z lobe .Alirr_...,.,,..,__.-, .... l(k). ~ V-!".t<..f • •- • t tlfH~ l>..:1CHlC• . US~ tllldl,.,.._ ..... 1n- .°' T. Ro\Ne Price Per spect ive • T. Rowe Price and similar service provid ers provide a valuable service in help ing participants save for retirement. • We are experienced in communicatin g with the public about retirement savings, and we know that simple, actionabl e communi cations (with clear goals) work best, and complications (disclosures, contracts) will simply cause procrast ination and confusion. • A lthough these materials may be spec ifically directed to individu als in connection wit h retirement plan partici pation or IRA establishmen t decisions, we do not believe that recipients think that these are anything other than helpful rules of thum b. • 10, and make clear that the Fiduciary We ask that the Department retract F Advice Rule has not made i 1v1 dualize d or specifically directed savings suggestions-distinct from any invest ment discussions-fi duciary advic e. 1J: C, zX>l/ ">oLt:t35A- €BS f\ zB~ f. g sAfB SA- . EB~A Gv};s(',j ftrllf.A FINRA I ' jAM I PVER N IGHT DOL-17-0281-B-000060 RECORD OF CONTACT WITH OUTSIDE PARTY TO DISCUSS ISSUES RELATED TO INFORMAL RULEMAKING Agency keeping rulcmaking docket: Title of rule: C,oA-f-hd- at l f\~~ Stage of rufomaking: Nature orDiscussion: [Meeting or Telephone call. or combinationJ Description of Factm,1Mater ials and Other Infi.mm1tion Presented: ~it'ot'\. - u..v<-\-\\")~\ - e,hYv'\V\c.,1'\UV'. ~ \~ - ov-e.o15~--\-~1 ~ - s+..rt.e-W\\" '\ot'C.c.\ e]{~o"'- wh \5 l(., a..~c.....,e~ -fu-r v...,vc..\Com-p Department of Labor Rcprcscntativc(s) Participating : 5oL-v"&s"'D J c:BSA -"> o-P\2..I 012\ ) cEb I ""DAs?o This form should he filed with the agency maintaining the rulcmuking docket. DOL-17-0281-B-000061 Lloyd, Karen - EBSA Subject: Location: FW: Mqrpingstar NS677 EBSA·.·•Fishbowl , .· Start: End: Fri 3/9/2018 3:30 PM Fri 3/9/2018 4:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Rutledge, Preston - EBSA Rutledge , Preston - EBSA;Hauser, Timothy - EBSA;Wilson, Jeanne - EBSA;Piacentin i, Joseph - EBSA Canary.Joe@dol.gov ; Hall, Lyssa - EBSA;Lloyd, Karen - EBSA; Lim, Youngok - EBSA (lim.youngok@dol.gov); Lim, Youngok - EBSA;Cosby, Chris - EBSA (Cosby.Chris@dol.gov); Turner, Jeffrey - EBSA Optional Attendees: -----Original Appointment----From: Rutledge, Preston - EBSA Sent: Thursday, February 08, 2018 1:29 PM To: Rutledge, Preston - EBSA; Hauser, Timothy - EBSA; Wilson, Jeanne - EBSA; Piacentini, Joseph - EBSA Subject: Morningstar When: Friday, March 09, 2018 3:30 PM-4:30 PM (UTC-05:00) Eastern Time (US & Canada). Where: EBSA Fishbowl N5677 AMf-HICAN pVERSIGHT 1 DOL-17-0281-B-000062 -<~--- -- - -- -- - - - - - - - - - - - - - - - - - - - - - QJ . m~ ~ () OO _ zP ~ ·~ ~ Viewson the·Futureof Retirement Adviceand DataTranspareocy MnRNINGST .y March9th, 2018 1'02017 IVlomi119sta1. lnr, ?Illrrghtsreserved. DOL-17-0281-B-000063 ~~ m:::c JJO (J) )> _ 7 G) :::c -I AreasDOLcan help retirementinvestors Bymakingthe opaqueclear • Observations onthe effectof the "FiduciaryRule" • Form5500reformandempoweringbestinterestadvice • Datasecurityandaccess .,, • Leveraging technological innovations to assurebest-interest advice • Cleanor unbundledshareclassupdateandleducingconflicts • Otherissues 1> MEPsto improveaccess 1> Lifetimeincometo improvedrawdown ·-c:. 2 •••••••••••••••••••••••••••••••• MnRNINBSfAW DOL-17-0281-B-000064 - ~ ~ - - - - -- -- - - - - - - - - - - - - - - - - - - ~ ~ Earlyevidencefromthe FiduciaryRule A trendtowardrationalizing fundandproductdistribution, loweringcosts 400 AnnualNet Flowsfor ActiveFundsby FeeQuintile,USO Billions ii Lowest-cost quintile 300 200 10 : (100) • Activefund average asset-weighted expenses ratiosdownto .78%and.57%for , .eqtiitiesandbonds respectively =~jJ:..ii11L •J•liltlt···· ·1~~lcl.1···· ·-·· ... ···· ······· ... .... . . ~. ........ . (200) (300) (400) • Passive fundaverage asset-weighted expenses ratiosdownto .16%and.14%for equitiesandbonds respectively (500) 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 ·2Dl'4 2016 3 MnRNINGSfAff ..... -en c5 a : 3::W DOL-17-0281-B-000065 i5. 0< ~ rr1 mJJ :I] () (J')J> _ z G) :::c -I Form5500reformand empoweringbestinterestadvice Datatransparency is criticalfor rolloveradvice CurrentPortfolio& BestIn-Plan CurrentFinancial Planning Form5500 Current Insufficient AdvisorProposed Portfolio & ServiceOffering ~ i?rctpV:ztJ;;1.J ~ , · o USSlock:s 0.00 Non-US Sl.odu 52J10 0 Bond.$ 13.00 0 C.'m'i JS_QO . 0.00 •-S"•a-·, Total ' Analyze. andComparethe Optionsregarding: 4 - ••• •-•. ·'"•-·•-·• 100..00 0.00 159 0.00 ·2.16 0.00 0.4.2 QOO •Cl.SB 0.00 •~- •••--~-- V HO ·•-c•e,-~••··"•·••••''" 0.00 @ @ Investment Quality"' Fitto Client 0.00 © Valueof Service MnRNINGITTAR' •• • •• • ••• • • •• DOL-17-0281-B-000066 • • • • • • • • •• • • • .. - _ _ ___ _ - , , , """' .......... 0< rr1 ~ ----- mJJ :I] () (J')J> _ z G) :::c -I Form5500reformand empoweringbestinterestadvice Advisorsoftenusesbenchmarks or incompleteForm5500 data Lookup andincorporateDCPlanlineup 11,, I,, I S01u1> DCSetup Pmpo:.ilfS1Jtup tn,akup 1twDCPlanto evaluateplrmlim111p and fe13s Current?'l;mHold:r.J~ CrJmnt?1.mFee:; C:.ir1.::Ii·?:2r,Li·,".:::n: > Risk•nd Suit• brlily Reviewandadjustplaninformation for IBM401(k) PLUSPLAN "cu,,.,, PlanSponsors R\s~Oues1,:vrmairn Ar.skPrniite Assl!IAllocntion a. k~e[ Mlm:111t1J1i • PlanOverview -·----- PonfalioConslmctlcin ® + ----------~--- ···-----··-··- Q Jn,,•eS-Tm - 7 Form5500reformandempoweringbestinterestadvice regulations DOLhasthe toolswith Form5500andelectronicdisclosure G) :I: -I raised couldimprovethe timingissuescommenters amendment Butan ERISA • Form5500Modernization • ERISAamendment(seeappendix) (a) Addittoual In:form.i.tion.-Section 1()3of the Employee Retireme m income ., -,-.-. ~{fcirtn:S50CI) ~ ~~ nc~ cl;i1~. minimtm1~ identifying inronmnion. perforrr 1c1 D __ F~~ • ni.•••n..:ll ~,,_.....,.,.W-,\"""'_, ~ "'re- (: ,_~l"-t-;.- plan. . ,!!!r.~-'°'~Wlt ~ ) <:nc,rill l.lT¢1>'l'lo/1'. .,.,._a.;;; .. ..,,,..~ ,.,,,,.. .c.,,,.,,,,._,,.,....,, .............. ..,.......,,.ffi ··-----....- ................ - •• ........ --- ... ..... .. tt""'~--.,.~ •• , , "'~- 4 ........ ......... 1;-"f!• ...... --!!•,,.., -, , w, _ ••. __ ..,,_,""' -•-~- 1-~-, v-,.---l---- ~ •~d- ::::::::::::::1::::::::::: ···-·- t1::iEt' e~~ ;;:!:::,:::: _-·- 10 , _ l~1t,cy., ....... N) ........ ~-------- ·;.:..~~ :===-: t:•~~=~:::::::::::i::::::::::: ~~~..-r~~-........_._&....v_.. " MnRNINBSfAR' ·. · ·.~··, -~' ..u~· .. . .·!' -" H--~ . .a---n-n n n f!__- --Pt i 2016 r,,,..,.•mrlc.c.,.,, JC)t,~IQrr 6 I _ ~~f:!!!. ,r~le!: 11n1-nt ,,. .... « ... ..,, ...... ,~ .- _,,,.,,_,, ::!'leer by the plnn..·• in,:eS"tm~t'..beyond tJ10sedesi_Lnmted : ."_,, oo.-~,.,.,._ ""'""~""-._ '"'' '"'·''""-,, ,, ccr,,....,._.., ,-.. ..,_~-IU'f......, ...........~ _.,,.,._,,, .,...,.,,_""" ""'! !1 0.":T- ,';"'_..,,-llt'.l. 1 ~ccoLmH.- or ,;;imibr pl::m :,mtn~oncnt!. 1h.itr emtbJe-p.lrricip.in,s .ind b~i!ficiarie$ ,_.,.....,. .-- ....c::~~~,.,._ ·:-..,;f,~:~..., i,,,.._..,~ ,,MU1bll ~ ___ -=-,,,_ .... ... 1 ::- i:r; inv~lmc .nl alt~nmti\'e me-aru:;:my D'C'Signared ated by lht: pfan into tm·e~lm<:nl alti:milll,·i::d-=.::ig:n dlr ·-.... m C >-- = ....,_, -a C +-' l,..... (.!) IC c.. a: C1) .II: ::::::l u C1) Q) C/) m m +-' 0 l >< C1) s ro a: a: AMLHICAN pVERSIGHT .It DOL-17-0281-B-000070 .It - -- ~l m::D JJO Uf J> _ 7 G) :::c -I Datasecurityand access Thesamethingis truefor ourfinanciallives Overview Investing Portfolio Setup Moniloring Portfolio Planning Retirement Annlysis Tax~ ' Portfolio Check-up ln·1e::.tment Ideas i§.~-~,1-~~ ~l\':,:!WHcldJn qs Asset Alloc:,tlon O 0 Sector Olversmcatlon 0 Your currf?nt portfolio- is in b~l.-rnce-with your Target A: .Asset Cl,,ss B F·lru:1 y our tn::tr t1.JH on: Curr en ! Ario l.,:;irg~ C::tti Equity Ch,:i c~ o r"rom U1t: r:r,-,r,o r,ul~r • !ntem;:illon:1! Ei;:iuity CHASEO ~ F'1xecilnco~ -~ !n <;.tll1.1t1on c.: Sm.al! c~o Equtt-1 Nell!l ernelfts· 0 Cash lnv~,tmJ:-nts • Oth~r The bold ed iJ~set c..ateoorles ~el ow w i:n .:m .JIP-nin :::ncatic, .J ~V ·m..... 1c MJgurud M etLife .:..sse:CtJ,-s Ill t,..,rgc Cao E<:ult/ tS OJIA 16.912.29 9 NA SOAQ 0 (O.OO~WJ .f,791.15 0 (O,oo,.) S&P 500 1,995.8) 0 co.oo,.) Russell 24'.100 1,152.600 {0.00~ -'i,) Time (ET} B:JO:S .tAM C ;:::,:irre:m MnRNINGSfAR' DOL-17-0281-B-000071 ~l m:JJ :Do (f) P - 7 G) J: -I t Leveragingtechnologicalinnovationsto assurebest-interesadvice BestInterestScorecard Forexample,the Morningstar® I Salup F'r(;pl)~! 5°(1!.'Jl 0cs~1ur. n AH~ 1ic.o F':.:;t Curn:::m i.: fltS-tOut'!.tionn :i Ri!'.\Profi!;. Asm Allo<:ltion Ass.e: ~'llli~licn t Sum:mary '·"'w.,1,,, ,.h,s' BestInterestScorecard Pinn lu!j. •CurrcruPian Mr~ o::f'fap C-Unem Qlli>lilV Tnvtt111>e1ll Ciio111Fil Scmc,,Voluc 'ill' Iii' @' ... II' ClfmtTahawll)' I .. I E,:J; Stttvir:e.s1:tOlher -s. id:m;tic-r. Cnn:;. Analy,it& Rapc,ns 1rczrrd ; $-:1.1 1t11;::c 8•~st I11 .;., ;,-,, lf;i r l fo,-~~ ::".ct_ .., t' of f<>rtlof",o byl'J,n;11.igll Pol•nlialBe.neficol lldJu,trngCsrrctL1 l Bc~efitoi Mc:: 10 sa...e -- e MnRNINGSTAR' DOL-17-0281-B-000072 - - - ~l m::D --------- - - - - - - - - - - - - JJO Uf J> _ 7 G) :::c -I Leveragingtechnologicalinnovationsto assurebest-interesadvice t Thequickmethodology discussion-threeattributes 0 • • Adj. Current Plan • • • • CurrentPlan:Investmentholdings,fees,allocations,and servicesin placeand in usebyth investorbeforethe analysisor proposalbegan. • AdjustedCurrentPlan:Reflectsrecommendedchangesto investmentselections, allocations,or servicesfrom availableoptionswithin the investor'scurrentplanassumin rollovertakesplace. • AdvisorPlan:Theproposedportfolio,fees,and serviceofferingprovidedby the advisor. . 11 ' MnRNINBS ' TAR DOL-17-0281-B-000073 '2l m:o JJO (J) _ 7P G) :::c -I Leveragingtechnologicalinnovationsto assurebest-interestadvice Particularemphasison quantifyingthe valueof financialplanning Thepotentialvalueof variousfinancialadviceservicesoveran investor'slifecycle .,_, 4.0% • Rebalancing 3.5% • Coaching Behavioral 3.0% Ass~erAlttication • TotalWealth >.. 2.5% AgeGuidance • Retirement c:: CJ.) • AnnuityPlanning -~ 2.0% ::, CT" • PensionOptin1ization w jg 1.5% Cl.. Withdrawal 111Retirement <( 1.0% Planning • TaxEfficientInvesting 0.5% m EstatePlanning 0.0% /!A 'V/1j f'a11y4 l;; <91,7.S;.i;· io1,7 ' 4ccu, Cc&'. 0%,- - <~ m93 - - - - - - - - - - - - - - - - - - - --- - - ----- JJo (J) )> _ 7 G) :::c -I Cleanor unbundledshareclassupdateand.reducingconflicts An updateto previous .Rfl responses Coststructuresof differentemergingshareclasses ExpenseType Unbundled Semi-unbundled Bumlled Yes Yes·· Yes Yes Yes No Yes Yes Revenuesharing,platform,or otheraccessfees No Yes Yes Distributionfees(12b-1andother) No No Yes Loadsandcommissions No No Yes Transaction andotheroperationalfees No No Yes Feesfor adviceor planning No No Ne Management fee . -···-• ·-•--.-·- ----- ·-··- -·· ·-·•-- ----------- · -•·- --- ... , .. ----- _,, . .. Yes - .•. ·- Fundoperatingexpenses Sub-TA ~ 13 ----~ .. MnRNINBSTAR . DOL-17-0281-B-000075 ~l m::IJ :Do (J) _ Pz G) Amendment .Appendix:FullERISA :::c raisedon DOL's2016Form5500reformproposal A way to addresstiming issuessomecommenters -I (a) Additional Information.-Section 103 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1023) is amendedIn subsection (a)(l )(B), by striking "applicable subsections (d),( e), and (f)" and inserting "applicable subsections (d), (e), (f), (g) (}) and (h)" by inserting "applicable subsection (h) to read as follows: (2) "(h) Additional infonnation with respect to individual account pension plans.-An annual report under this section for a plan year shall include infonnation with respect to each designated investment alternative offered to particip.§lnts~nder the individual account pension plan. Such information shall include, at a minimum, identifying information, perfonhance data, benchmarks and fee and expense information for each designated investment alternative . The Secretary, by regulation, shall proscribe the contents and format of such information required by this subsection (h). The Administrator shall be required to update the annual report within thirty (3 0) days of any change to the (1) designated investment alternatives made available under the individual account pension plan. Designated investment alternative means any investment alternative designated by the plan into which (2) participants and beneficiaries may direct investment assets held in, or contributed to, their individual account. The term "designated investment alternative" shall no include "brokerage windows," "self-directed brokerage accounts," or similar plan arrangements that enable participants and beneficiaries to select investments beyond those qesignated by the plan." ·-:-:.. •• .C:,· MnRNINGSTAR. 14 1• 1• ia tW ia ia a 1• 1a a . 1• 1 1• 1• a 1 • i• I• I a 1 1• il)E i• illl DOL-17-0281-B-000076 • I• I• I•. 1• I• I• I• rill 111! I Lloyd, Karen - EBSA Subject: Location: Call with NAIC on proposed best interest standard for annuity transactions Telephone call Start: End: Fri 2/16/2018 3:00 PM Fri 2/16/2018 4:00 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Lloyd, Karen - EBSA Lloyd, Karen - EBSA;Hauser, Timothy - EBSA;Hall, Lyssa - EBSA;Canary, Joe - EBSA; Eilers-Bowser, Heather (heilersbowser@naic.org) Wilker, Susan - EBSA Optional Attendees: Updated with dial in information: Dial in (b) (6) Leade Participants: -(b) (6) (EBSA participants can meet in the fishbowl for the call.) AMf-HICAN PVERSIGHT 1 DOL-17-0281-B-000077 Lloyd, Karen - EBSA Subject: Location: Update: Americans for Asset Protection - FACC Meeting OASAM Conference Room, S-2203 Start: End: Wed 2/7/2018 4:00 PM Wed 2/7/2018 5:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Wilson, Jeanne - EBSA Wilson, Jeanne - EBSA;Scott, William - SOL; Hall, Lyssa - EBSA;Canary, Joe - EBSA; Hauser, Timothy - EBSA;Heyl, Dean A - OSEC Rutledge, Preston - EBSA;Lloyd, Karen - EBSA;Gatesman, Valerie - EBSA;Turner, Jeffrey - EBSA Optional Attendees: Updating with meeting room information . Thank you Dean and Doug. FYI, Dean - I've already provided to Ms. O'Brien the list of DOL staff who have accepted the meeting. Has Ambassador McDonald confirmed, as well? Hi everyone, Val here. - Attached is the Organizations' discussion topics. I'm working with OSEC (thank you, Dean!) for a meeting space and will update when its decided on. ~ Americans for Asset Protection ... (b) (6) From: Kim O'Brien [mailt Sent: Friday, January 26, 2018 3:48 PM To: Gatesman, Valerie - EBSA; Love, Monique - EBSA Subject: FACCMeeting Valerie - just adding this email to my voice mail - thinking it might be easier for you. The committee members from FACCCampaign with whom I was able to connect, can make the February th meeting at 4:00 ET. We would sincerely like to meet with Deputy Assistant Secretary Jean Wilson. I will send you a final roster when I have confirmed others. As a long time advocate for our industry and as former CEOof NAFA, the National Association for Fixed Annuities, I worked directly with Assistant Secretary Rutledge on many occasions and specifically worked with him on Senator Hatch's SAFE bill. We would love the opportunity to say hello while we are there. Obviously, if his schedule permits. Also, if you would be kind enough to send us a list of staff members you mentioned would also be in attendance, that would be extremely helpful. Thank you for your call and for taking my questions. We do appreciate your efforts! Kim O'Brien ~ P -ERSIGHT 1 DOL-17-0281-B-000078 (b) (6) JOIN the CAMPAIGN at www.fixedannuitychoice.com FREEDO!vl TO CHOOSE Fl:l'c-d Annvi 'f/t,t; I ~ ~ This email is provided for educational and informative purposes only and not for the purpose of providing legal advice. Recipients should consult with their own legal and compliance counsels to obtain guidance and direction with respect to any issue or question. This e-mail is from the Fixed Annuity Choice Campaign and may contain information that is confidential or privileged. If you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please notify the sender and delete the e-mail and attachments. AMf-HICAN pVERSIGHT 2 DOL-17-0281-B-000079 F R E IEDOIVI[ rro) January 12, 2018 C B fOOJSE Fixed Annuities TO: Assistant Secretary of Labor Preston Rutledge Department of Labor via email to: (b) (6) FROM: KimO'Brien Steering Committee Co-Chair RE: Meeting Request Preston, congratulations on your appointment, having worked with you on Senator Hatch's SAFEACT, we know you will provide great leadership. As you recall, I am now the CEOof Americans for Asset Protection, an advocacy group for consumers' rights to an effectively regulated marketplace fostering financial independence through guaranteed and insured asset protection products. I have also been asked to assist with the Fixed Annuity Consumer Choice Campaign to ensure that Americans retain their freedom to choose fixed annuities . More about the FACCCampaign can be found at www.fi xedannuit vchoice.com. We are requesting a meeting with you to discuss the fair treatment of fixed indexed annuities under the Department of Labor's Best Interest Rule. Of particular concern, is the treatment of FIAs which we believe should be moved back from BICEto PTE84-24. By returning FIAs to PTE84-24, FIAswould be grouped properly with other fixed annuities rather than securities products, and would not be subject to ill-fitting BICErequirements that are oriented towards the securities industry's framewo rk 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. Attached Is a listing of the meeting attendees. We are waiting to hear from others and will update this list when they are confirmed . Since we have committe e members who will already be in town on specific dates, we are requesting a meeting either Tuesday afternoon, February 6th or Wednesday morning, February 7th. We sincerely hope your schedule will be able to accommodat e a meeting on these dates. We wish you well in your new position and hope that you will find it everything you hoped it would be. We look forward to hearing from you. Sincerely, Kim~ FACCCommittee Co-Chair AMERICAN pVERSIGHT DOL-17-0281-B-000080 Lloyd, Karen - EBSA Subject: Location: Principal transactions Start: End: Thu 11/9/2017 4:00 PM Thu 11/9/2017 5:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Nussdorf, Melanie (b) (6) (b) (6) 2.... When: Nov 9, 2017 4:00:00 PM Where: 8 (b) (6) GB] invite.ics AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000081 Lloyd, Karen - EBSA Subject: Location: Nutter Cont. Call (IRA Principal Trans) id-(b) (6) Dial in(b) (6) Start: End: Thu 11/9/2017 3:00 PM Thu 11/9/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Shiker, Brian - EBSA Lloyd, Karen - EBSA;Hall, Lyssa - EBSA AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000082 Lloyd, Karen - EBSA Subject: Location: Follow up call with DOL: On Demand Disclosure - (6) passcode (b) Conference call (b) (6) Start: End: Thu 11/2/2017 3:00 PM Thu 11/2/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Bottoms, Tonia ****************************************************** IMPORTANT: Any information contained in this communication is intended for the use of the named individual or entity. All information contained in this communication is not intended or construed as an offer, solicitation, or a recommendation to purchase any security. Advice, suggestions or views presented in this communication are not necessarily those of Pershing LLC nor do they warrant a complete or accurate statement. If you are not an intended party to this communication, please notify the sender and delete/destroy any and all copies of this communication. Unintended recipients shall not review, reproduce, disseminate nor disclose any information contained in this communication. Pershing LLC reserves the right to monitor and retain all incoming and outgoing communications as permitted by applicable law. Email communications may contain viruses or other defects. Pershing LLC does not accept liability nor does it warrant that email communications are virus or defect free. ****************************************************** AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000083 Lloyd, Karen - EBSA Subject: Location: Fiduciary Rule (b) (6) Participant Dial-in: Start: End: Tue 10/31/2017 3:00 PM Tue 10/31/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Kuhn, Patricia - Legal · Participant Passcode: (b) (6) This message, and any attachments, is for the intended recipient(s) only, may contain information that is privileged, confidential and/or proprietary and subject to important terms and conditions available at http://www.bankofamerica.com/emaildisclaimer. If you are not the intended recipient, please delete this message. AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000084 Lloyd, Karen - EBSA Subject: Location: Call regarding Fiduciary Acknowledgment and FINRA Arbitration Telephone call - Dial in provided Start: End: Tue 10/24/2017 3:00 PM Tue 10/24/2017 3:30 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Lloyd, Karen - EBSA ken.andrichi~(b) (6) SOL; Hahn, Je~OL Hansen, Megan D - SOL; Craig, James - SOL;Tso, Thomas - Ken: Thank you for agreeing to talk to us on such short notice. The participants on our end will be me (and possibly one or two others from the Office of Exemption Determinations) and several colleagues who work in our Solicitor's Office, including Megan Hansen and Jim Craig. We decided to use a dial in number: (b) (6) Code:-(b) (6) Thank you again, Karen Lloyd Division Chief, Class Exemptions Office of Exemption Determinations Employee Benefits Security Administration U.S. Department of Labor (b) (6) AMf--HICAN pVERSIGHT 1 DOL-17-0281-B-000085 Lloyd, Karen - EBSA Subject: Location: acces Start: End: Mon 10/16/2017 1:00 PM Mon 10/16/2017 1:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Daugherty, Matt (b) (6) ; Access Code-(b) (6) Confidentiality Notice:: This email, including attachments, may include non-public, proprietary, confidential or legally privileged information. If you are not an intended recipient or an authorized agent of an intended recipient, you are hereby notified that any dissemination, distribution or copying of the information contained in or transmitted with this e-mail is unauthorized and strictly prohibited. If you have received this email in error, please notify the sender by replying to this message and permanently delete this e-mail, its attachments, and any copies of it immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any other person. Thank you. AMf--HICAN pVERSIGHT 1 DOL-17-0281-B-000086 Lloyd, Karen - EBSA Subject: Location: Fiduciary Rule Discussion- DOL/FINRA 1735 K St, Conference Room 2 Start: End: Tue 9/5/2017 11:00 AM Tue 9/5/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Colby, Robert Confidentiality Notice:: This email, including attachments, may include non-public, proprietary, confidential or legally privileged information. If you are not an intended recipient or an authorized agent of an intended recipient, you are hereby notified that any dissemination, distribution or copying of the information contained in or transmitted with this e-mail is unauthorized and strictly prohibited. If you have received this email in error, please notify the sender by replying to this message and permanently delete this e-mail, its attachments, and any copies of it immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any other person. Thank you. AMF-HICAN PVERSIGHT 1 DOL-17-0281-B-000087 Lloyd, Karen - EBSA Subject: Location: Pershing Capital N5677 Fishbowl Start: End: Thu 8/24/2017 10:00 AM Thu 8/24/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA (b) (6) ; Hall, Lyssa (b) (6) Campagna, Lou - EBSA Canary.Joe-; (b) (6) Cosby, Chris EBSA; Joseph Piacentini, EBSA; Lloyd, Karen EBSA ); Lim, Youngok - EBSA;Scott, William - SOL; Khawar, Ali EBSA EBSA In addition to representatives from Pershing Capital, meeting will include a number of their clients: Doug Baxley, Ladenburg Thalmann Financial Services • Kortney Christensen, Benjamin F. Edwards • • Joseph Neary, Cetera Financial Group • • • Mary Simonson, Advisor Group Jerry Wackerhagen, First Command Amy Webber, Cambridge Investment Research AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000088 LL) . Li: . 2" "mm/q 2:54 ?.wa - 306 it? Maker 6an 5 rd @MMawd Log lom?aJ Oak}; (Vi dung bow, em Mm/ You 7, L944 30?]??ch ?(gar/L Chi? ?i L't?k i: J. DOL-17-0281-B-000089 Lloyd, Karen - EBSA Subject: Location: Meeting with Graff et al Start: End: Tue 8/15/2017 9:00 AM Tue 8/15/2017 10:00 AM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: N 5677 Hauser, Timothy - EBSA Campagna, Lou - EBSA; Hall, Lyssa - EBSA; Hauser, Timothy - EBSA;Canary.Jo~(b) (6) Lloyd, Karen - EBSA; Piacentini, Joseph - EBSA; Cosby, Chris - EBSA (b) (6) Khawar, Ali - EBSA; Campagna, Lou - EBSA Khawar, Ali - EBSA v); Hall, Lyssa - EBSA(b) (6) (b) (6) Optional Attendees: Scott, William - SOL; Hansen, Megan D - SOL; Lim, Youngok - EBSA; Bloom, Teresa EBSA; Decressin, Anja - EBSA Importance: High Awfully late notice, I know, but I erroneously thought this invitation had gone out some time ago. Mr. Graff wants to talk about possible changes to the fiduciary rule/exemption. Jon Anderson, Cetera Bill Beardsley, LPL Bo Bohanan, Raymond James Patrick Daxon, Raymond James Eric Garofalo, Morgan Stanley Taylor Hammons, Advisor Group Frank Hayn, National Planning Phil Hirsch , Advisor Group pVERSIGHT 1 DOL-17-0281-B-000090 Randy Long, Safeview l(en Pardue, Wells Fargo Gene Silverman, UBS Julie Ward, NFP Nevin Adams, ARA Brian Graff, ARA Brian Graff Chief Executive Officer American Retirement Association AMF-HICAN PVERSIGHT 2 DOL-17-0281-B-000091 Lloyd, Karen - EBSA Subject: Telephone call with Wells Fargo on DOL exemption approaches Start: End: Fri 8/4/2017 11:00 AM Fri 8/4/2017 12:00 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Lloyd, Karen - EBSA ashleigh.morgan (b) (6) EBSA (b) (6) Optional Attendees: Hall, Lyssa - EBSA;Wilker, Susan - EBSA;Hesse, Erin · robert.j .mccarth- (b) (6) kenneth.pardue (b) (6) (b) (6) We will use dial-in (b) (6) ; passcode (b) (6) AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000092 Lloyd, Karen - EBSA Subject: Location: DOL exemption approaches Telephone call Start: End: Wed 7/26/2017 11:00 AM Wed 7/26/2017 12:00 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Optional Attendees: Lloyd, Karen - EBSA Lloyd, Karen - EBSA;Hall, Lyssa - EBSA;scott.eckel@schwab.com Gilkerson, Christopher; Hunt, Lisa; Starr, Eric Teleconference phone number: (b) (6) Attendee accesscode: (b) (6) AMLHICAN pVERSIGHT 1 DOL-17-0281-B-000093 Lloyd, Karen - EBSA Subject: Location: Follow-up Call on DOL Fiduciary Rule Anne's dial-in Start: End: Thu 7/13/2017 10:30 AM Thu 7/13/2017 11:30 AM Recurrence: (none) Meeting Status: Accepted Organizer: Cooney, Anne Participant Code: 869458 Ext:(b) (6) MS Access: New York: (b) (6) NA Access: North America :(b) (6) Toll free : AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000094 Lloyd, Karen - EBSA Subject: Location: COI Rule Fishbowl N-5677 & Call In: (b) (6) Start: End: Fri 6/16/2017 11:00 AM Fri 6/16/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Edozie, Melinda U - EBSA (b) (6) Edozie, Melinda U - EBSA;rjt (b) (6) Albert, Scott - EBSA;Hauser, britt••••••; derren (b) (6) (b) (6) Timothy - EBSA;Canary, Joe - EBSA;Hall, Lyssa - EBSA;Lloyd, Karen - EBSA Optional Attendees: (6) •········; Auerbach, Michael - EBSA(b) Piacentini, Joseph - EBSA Good Morning, The Address is: 200 Constitution Ave. NW Washington DC, 20210 FPB N-5677 Mr. Hauser will host this meeting in the Francis Perkins Building, Room N-5677. To access the building, please use the visitor's entrance at C St and 3rd St NW. When you check in with the guards, I will come down to escort you up to the have them call Melinda Edozie at extensio~.(b) (6) room. Please be sure to arrive at least 10 minutes early in case there is a wait at the security desk. Thanks, Melinda Edozie (b) (6) Call in number (b) (6) (b) (6) That sounds great, Melinda -- here's who I recommend be in attendance for the call: Tim Hauser Scott Albert (b) (6) Bob Toth - ERISAAttorney Troy Tisue - President, TAG Resources (b) (6) Derren Burrell - COO, TAG Resources ( Britt McAfee - General Counsel, TAG Resources(b) (6) pVERSIGHT 1 DOL-17-0281-B-000095 If you send out the invite I assume there will be a conference line to dial into, correct? Derren Chief Operating Officer I TAG Resources, LLC 6322 Deane Hill Drive Suite 201 Knoxville, TN 37919 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) a ~utilnrL:c/J (or2 J1.id rtis(,Crm:iu\i"iori2sdto rlehvAiii to ihe nam:=.;d ;inyoneolhH Hvm!he n;3mEd ~: !H>)ni 1844 thMlfHtr addn-:~: .rnJcc2:'; LLr: :"jl865-670TAl) !-<,~; d nr ,;,,Hin~J vi:~ s:11a rn;tif, 1thR:-;e1ldP.rof th2 Ri! or by t<-:1ply1n;i ii, ;=;ml ni fr,\rv1:-:m:l1n~; AMF-HICAN PVERSIGHT 4 DOL-17-0281-B-000098 Lloyd, Karen - EBSA Subject: Location: Meeting with FINRA on RFI and related matters Fishbowl N5677 Start: End: Wed 6/7/2017 1:30 PM Wed 6/7/2017 2:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA Hauser, Timothy - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Canary, Joe - EBSA; Campagna, Lou - EBSA; Piacentini, Joseph - EBSA; Cosby, Chris - EBSA; Lim, Youngok EBSA; Scott, William - SOL; Hansen, Megan D - SOL; Khawar, Ali - EBSA Turner, Jeffrey - EBSA Optional Attendees: AMF-HICAN PVERSIGHT 1 DOL-17-0281-B-000099 Lloyd, Karen - EBSA Subject: Location: Follow up Call o n DOL Fiduciary Rule Anne's dial-in Start: End: Wed 6/7/2017 12:00 PM Wed 6/7/2017 12:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Cooney, Anne Participant Code: 869458 Ext:(b) (6) MS Access: New York: (b) (6) NA Access: NorthAmerica:(b) (6) Toll free : NOTICE: lvlorgan Stan ley is not acti11g as a municipal advis or and the opinions or views containe d hereir1 are not intended lo be. and do nol constit ute, advice unication in erro r. pleas e w ithin the meaning of Section 975 of the Dodd- Fra nk Wall Street Reform ancl Consu mer Protecli on Act If you have receiv ed this co111111 de stroy all electronic a11d paper copies ancl notify the send er immediatel y. Mistransmi ssio n is not intended to wa ive confid enti ality or privilege. !viorgan Stanley reserves the righl , lo the exten t permitted under app licable law. to monitor electronic comm unication s. Th is message is subject to terms avail able at the following link · http://www.morqan stanley.com/disclaimers If you can not acce ss these links, please notify us by reply message ancl we will se nd the contents ta you . By communi cati ng with Morga n Stanle y yo u conse nt lo l11eforego ing and lo the voice record ing of conve rsations wit h person nel of !viorgan Stanley. AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000100 T.RowePrice® I NV EST WITH CONFIDENCE ~ CONSTRAINT ,S ON SERVICE PROVIDER SAVINGS MESSAGES: IMPACT OF FAQ 9 AND 10 1J: C, June1,2017 L. - <( UJ oa: o:w DOL-17-0281-B-000101 ~> <( -- Agenda • Background - T. Rowe Price overview - TRP approach to DOL Fiduciary Advice Rule • Pre-FAQ 9/10 Industry Interpretation with respect to savings • TRP perspective on retirement savings-15% • Research on Actionable, Targeted Information for Individuals • TRP Retirement Plan Services • - Plan Sponsor expectations - Examples of current materials Rule of Thumb 1- TRP Individual Investors - J: C, .z.00 <( of DOL Fiduciary Industry Interpretation Advice Rule Relative to Savings and FAQ 9 and 10 Before FAQ 9 and 10 in Second FAQs were issued January 13, 2017: a a a Under current law, as with distribution recommendations, an individualized recommendation to a participant or IRA owner to participate in a plan, save in an IRA, contribute to an existing plan or IRA, or increase contributions - separate from any question of how to invest - is not investment advice within the meaning of ERISA Section 3(21 ). When the Rule sought to change current law with respect to distributions, the wording was express, and covered only distributions. Because there was no express reference to savings/contributions/participation, the industry interpreted the Rule as NOT changing current law with respect to savings, contributions or participation. FAQ 12 in Third FAQs does not remove concern: a a I NV EST The examples use education principles and require individuals to "connect the dots." 1- ::I: C, The examples do not explicitly permit individualized or specifically directed savings suggestions. WI T H CO NF IDE N CE • T . RO W E PRICE z- Jetor retirement. You ca n lly out d ifferen t con tribut ion amou nts an d see the im pact on your paycheck by using lhe Paycheck Impact Calculator at rp s.trowep rloe .com. INV E S T WI T H C O N F I D E N CE ' • Make the most of your emp loyer contri bution. ABC Co m pany may offe r add ition al money fo r you r retiremen t Read on to learn how an em plo 1e r cont ribution can add to you r savings . • Work toward a goal of 15% . Financ ial expe rts bel ie,..e yo u shou ld save that muc h of your pay for re tirement inc lud ing you r re tiremen t plan oontribul ions and a~ , employer oontribut ions . That may see m like a lot. but ,if you increase your sa!1iings a ,littie e ach ,ea r, you can get l he re. ~ ~ -T . R O W E P R I CE = I 10 DOL-17-0281-B-000110 1:::c: C, - U, ....._ oa: w :: c:- ~o. llJ > Managing Program Impact Targeted emails to active participan ts at milestone ages/events Subject Ma ke you r 45t h birt hday count Date: Tuesd ay, M arch 28, 20 17 at 10 :59 :47 AM Eastern Dayl ight Ti me From: T. Rowe Price Retirem ent Plan Services f) Milestone Emails The example on the left is an email delivered to partic ipants in their birth month in 5-year increments (25, 30, 35, 40, and 45). Give you rself a giftInvest more in your futur e. At age 45. consider having four times your annual pay save d for retirement Use thls chart to gaugeyour progressand set goals alongthe way. 30 Age : Annual Pay Saved: 1 /-ix 35 40 45 50 55 1x 2x 4x 6x 8x 1Ox 12x 60 65 saveMoreNow NOT QUITE THERE? DON'T PANIC . 1J: • Increaseyour savingsrate by 2% eachyear • Striveto\Nardsaving 15%of your pay annuallyfor retirement C, z<[__ C/) IncreaseYour Contribution IN V E ST W ITH CO NF I DE NC E° T . RO WE P RI C E 11 DOL-17-0281-B-000111 oa: a:w i~ Program Impact Transitioning subject EJOn-site & Web "Savings" Saving eno ugh t o meet your reti reme nt goals? Find out. Date: Fri day, Janu ary 13, 2017 at 2:28: 15 PM Eastern Standa rd Time From: T. Rowe Price Retireme nt Plan Services Presentations RETIREMENT SAVINGS: HOW MUCH? I.TyCJll.ll:ra,: i:.tm t'o-MVi: : 30 half of yo ur salary save d today 35 1x }OUT saJ3ry sm red tod3 y 40 2x ;ou r salary sa..-ed tod3'{ 45 4x your Sai"'Y sa.sedtoday so 6x ;o ur sa lmy s3'fed tod3 y 55 ax ;our salary s:i'fed today 60 1Ox your S3lary sav ed today 65 12x yo ur sa lary sa'fed today Make the right move s today to prepare for your retir e m e nt. Plan Name A1minimum, Your sa vin gs will be a n im portant part of your retirement inc ome . N ow' s the time to see if you 're setting as ide enough to meet you r goals. Rt.'Vlew How Muth I m Sa:vmg GET THE FULL MATCH lnt re:a5e contribu6ons by 2% It pays to start early Consider this · annually to build IOlr.>rd 1:."I'.target • We believe that most retirement investors will need as much as 75% of their annual preretirement income to maintain their current hfestyle . • We believE: that most retirement investors should save 1~~o of their pay 1ncludtnq employe r contnbution-s . to meet their rettrement saving:::. qoals Here 's a he lpfu l resource v,s,t our planning page to see how much retirement income you r plan account may provide. Try lt NO'N SAVE MORE THROUGH THE PLAN m T argeted Pl a n Specific Ema il (i.e. low% savers, not maximizing match, etc .) • 1- The plan 1sa great way to prepare for rehrement Its up to you to make ttie most of 1t Already enrolled') f"hink about giving your contribution a small boost todav I Increase Mv Con tribUUon :::c I• C, L- T Rowe f"nre can help with all sto9es of your finana<"11hfe Visu us .=itr ps .t rowepr lce .com Or give u~ n call at 1-800922 -994 5 V'✓ e're available busine~"- ctays between 7 am and ·10 pm eastern time . I N VEST WIT H CONFIDENC E" C/) annual)y to build toward 15~ target How MlJCh I m Saving It pays. to start ea rly Consider this· Here 's a helpful res o urce need as • We beheve that most retJrement 1m,estors v-1111 much as 75% of their annual preret1rement income to m ainta in their current hfestyle. v,srt our planning page to see how much retirement income you r plan accou nt • We be lieve:-that most retirement investors should save 15<}oof their p av. 1nclud1nqemploye r cont nbut1ons, to meet their retirement saving::. qoals may provide . Try It Now SAVE MORE THROUGH m Plan Specific Targeted Email (i.e. low% savers, not maximizing match, etc.) • THE PLAN 1- The plan 1s a great way to prepare for retir/:!ment Its up to you 10 make the most of 1t Already enrolled? J"hmk about giving your contribution a small boost todav I Increase M, ConUibUtion :::c C, L- I• T Rowe r>nce can heir, with oll stnqes of your finonaa l hfe Vi5 it uc::at rps .tr o we pr lce.c o m Or give u~ A Cflll flt 1.soo922~9945 V'✓ e·re available busine$<:. days betwPen 7 am and ·10 p .m eastern time I NVEST WITH CONFIDENCE • C/) > <
>, < > t Rowe Pnceatl.800.922.9945 . Rep-~areava ilable busi:nezdcfr/S from 7a.m. tolO p .m. c:astem t ime Or go 1Dthe 1J: t Rowe Pnceweb5te s: rps.uoweprice.com. Don· tw ait another day ro rake acfvantaee of Company ma!rhire fun~ Yourft.wre5ef w1l tharkyoufa it. C, oeo1 &-e1.'V' 10.'16 z<[__ C/) I N VES T WI T H CO N FIDE N CE " T. RO W E PR I CE I 13 DOL-17-0281-B-000115 oa: a:w i~ Sample Messaging ORIGINAL Changes SOFTENED EMAIL LANGUAGE Give yourself a giftInvest more in your future. Have you thought about invest ing more in your future? ! At age 45. consider having four times your annual pay saved for retirement. Use this chart to gaugeyour progress anelset goals along the way. At age 45, we believe retirement investors should have four times their annual pay s ·ed f, ,r reurement. The chart belOW illt;-;trdll'S our view on till' percenld9{' of Sdldry 11,a 35 40 45 50 55 1/'lX 1x 2x 4x: 6x: 8x 30 Age: Annual Pay Saved: 60 65 Age : 10x 12x Annual Pay Saved : 30 35 40 45 50 55 1/'lX 1x 2x 4x 6x 8x 60 65 10x 12x SaveMoreNow NOT QUITE THER E? DON'T PANIC. NOT QUITE THERE? DON'T PANIC . • Increaseyour savingsrate by 2% each year that rnosl reliremenl mveslors sho11kl save 15% ol lherr ;~owe Pnce l>el1eve'> any employercont11but1onsj _annuallyfor re~rement(mcluel1ng • Stnvetowarelsaving 15% of your pay annually for retirement ' IncreaseYour Conbibution Learn More 1- :::c C, L- C/) ~°' What Could a 3°/o Increase in Retirement Savings Mean for a Millennial Participant? Considering what increasing contributions could mean for long-term retirement income, participants may be less prepared when reaching retirement age. MICHAEL: Age 25, Annual Salary Current Retirement Age Age 25 65 Current Account Balance $15,700 $50,000, Current Balance $15,700 Current Annual Contribution Projected Account Balance Monthly Lifetime Income (with no survivor benefit) 2% ($1,000) $174,813 $ 928 $326,846 $1,736 $152,033 $ 808 Difference (per month) $9,696 Difference (per year) $290,880 Difference (over 30 years) 5% ($2,500) - .... J: It may mean nearly $10,000 more per year throughout retirement, C, Lig difference in your retirement sav ings.· S1.800.000 Includes any available employer contributions • •I '4~ 200 I think that it's important, and it doe seem a little painful at the time but }s2r2 ~000 a " ~ V) 1,200,000 betweenSJV1 ng 10%per yearveisus 15% per year. 1: ., E e : :, ~ cc 600.000 :..... .. $ 1,140,000 0 30 35 40 45 50 Age 55 liO 65 AmountSIM!d by aoe65 ij youstart saving 10'1,per year when yoo·reage30. https ://www3.troweprice .com/usi s/personal-i nvesting/planni ng-and-research /t-rowe-price-i nsights/retirement -and-planni ng/retirement-savi ngs/the-power-of -15-.html Source : T . Rowe Price YouTube channel , 'Women and Investing ,' 2017. I N VEST WI T H CO N FIDE N CE • T . RO W E PRICE 19 DOL-17-0281-B-000121 1J: C, L. <(UJ oa: o:w ~> <( Phone and In-Person Interactions • Phone & In-person interactions are most impacted by FAQs 9 and10 • Current state, clients' top needs are transactiona l: processing rollovers transfers MOiii THAN new accounts 5 Ye,;u s Unt il Reti rement '5AV:I ING f;@~ t:. ~°' Future State= Increased Personalization • We see the opportunity to evolve our messaging to be more targeted and specific to our clients' needs. • This would require savings messages, personalized to individuals, with strong calls to action. • We would like to be able to be more proactive in our approach to helping clients save more for retirement. 74% of on line consumers are frustrated by messages that aren't relevant or fit their interests. - Source: 2013 Online Personal Experience study by Janrain - Personalization of a subject line increased email open rates from 11.4% to 17.6%. .... J: Source: Statista, 2014 - 95% of our client interactions are digital, with many clients' expecting the ease and intuition of other consumer experiences. Source: T. Rowe Price Foresee data, 2015-2017 INV ES T WITH CO N F I DE N CE " T . RO W E PR I CE j 21 DOL-17-0281-B-000123 C, L < T. Ro\Ne Price Perspective • T. Rowe Price and similar service providers provide a valuab le service in helping participants save for retirement. • We are experienced in communicating with the public about retirement savings, and we know that simple, actionable communications (with clear goals) work best, and complications (disclosures, contracts) will simply cause procrastination and confusion. • Although these materials may be specifically directed to individua ls in connection with retirement plan participation or IRA establishment decisions, we do not believe that recipients think that these are anything other than helpful rules of thumb. • We ask that the Department retract FAQ 10, and make clear that the Fiduciary Advice Rule has not made individualized or specifically directed savings suggestions-distinct from any investment discussions-fiduciary advice. 1J: C, z On Apr 10, 2017, at 1:55 PM, Hauser, Timothy - EBSA > > wrote: .n,vf-\1 pVERSIGHT 1 DOL-17-0281-B-000129 > How about 4/26 at 2 or 5/5 at 11? > > -----Original Message----> From: Brian Graff [mailto :(b) (6) > Sent: Thursday, Apr il 06, 2017 4:41 PM > To: Hauser, Timothy - EBSA > Cc: Sean Huff > Subject: Potential meeting dates > > Tim, so far the following firms want to participate in a meeting regarding the issues we have previously discussed by phone: > > Cetera > Fidelity > Merrill Lynch > Morgan Stanley > Raymond James > > Good group. Before working on dates with them I wanted to make sure that you didn't have any current conflicts on the following dates (and certainly let me know of you have any preferences). > > April 18, 19, 26 or 27 > May 2, 3, or4 > > Thanks, and look forward to beginning this conversation. Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > AMf HICAN pVERSIGHT 2 DOL-17-0281-B-000130 Lloyd, Karen - EBSA Subject: Location: Pershing Capital - - Fiduciary Advice N5677 Start: End: Fri 5/12/2017 10:15 AM Fri 5/12/2017 12:15 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA Canary, Joe - EBSA; Campagna, Lou - ESSA; Hall, Lyssa - ESSA; Lloyd, Karen - ESSA; Piacentini, Joseph - EBSA;Cosby, Chris - ESSA; Scott, William - SOL; Hansen, Megan D SOL; Khawar, Ali - ESSA Turner, Jeffrey - EBSA; Craig, James - SOL (b) (6) • Lim, Youngok - ESSA•••••• Optional Attendees: AMERICAN PVERSIGHT •; 1 DOL-17-0281-B-000131 Lloyd, Karen - EBSA Subject: Location: Meeting with Fidelity Representatives -- COI N5677 Start: End: Thu 5/4/2017 1:00 PM Thu 5/4/2017 2:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA Hauser, Timothy - EBSA;Canary,Joe - EBSA;Campagna, Lou - EBSA;Hall, Lyssa- EBSA; Lloyd, Karen - EBSA;Piacentini, Joseph - EBSA;Cosby, Chris - EBSA;Scott, William - SOL; Hansen, Megan D - SOL;Geale, Nicholas C. - SOL Craig, James - SOL;Turner, Jeffrey - EBSA Optional Attendees: AMLHICAN PVERSIGHT 1 DOL-17-0281-B-000132 Lloyd, Karen - EBSA Subject: Location: Fiduciary Rule/Transitional Issues Fishbowl N-5677 Start: End: Fri 4/21/2017 3:30 PM Fri 4/21/2017 4:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA (b) (6) ; Canary, Hauser, Timothy - EBSA;Piacentini, Joseph - EBSA Joe - EBSA;Hall, Lyssa - EBSA;Lloyd, Karen - EBSA;Campagna, Lou - EBSA;Cosby, Chris - EBSA Turner, Jeffrey - EBSA;Wong, Fred - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa SOL; Goodman, Elizabeth - EBSA;Kress, Marjorie - EBSA Optional Attendees: From: Abbey, David Sent: 4/17/20171:30 PM To: Hauser, Timothy - EBSA Subject: RE: Fiduciary Rule/Transitional Issues Sounds good. (b) (6) From: Hauser, Timothy - EBSA[mailto Sent: Monday, April 17, 2017 2:25 PM ti ••••••• > To: Abbey, David (b) (6) Subject: RE: Fiduciary Rule/Transitional Issues How about 3:30 Friday? From: Abbey, David Sent: 4/17/201712:17 PM To: Hauser, Timothy - EBSA Subject: RE: Fiduciary Rule/Transitional Issues I'll be traveling then. 11am works, but sometime later that week would work as well. Thanks From: Hauser, Timothy - EBSA[mailto (b) (6) Sent: Monday, April 17, 2017 12:54 PM To: Abbey, David <(b) (6) Subject: RE: Fiduciary Rule/Transitional Issues Looks bad. How about 4:30 or 5:00? From: Abbey, David Sent: 4/17/2017 11 :08 AM pVERSIGHT 1 DOL-17-0281-B-000133 To: Hauser, Timothy- EBSA Subject: RE: Fiduciary Rule/Transitional Issues Does 1pm or 2pm work for you? From: Hauser, Timothy - EBSA[mailto (b) (6) Sent: Monday, April 17, 2017 11:55 AM To: Abbey, David <(b) (6) > Cc: Hauser, Timothy - EBSA<(b) (6) Subject: RE: Fiduciary Rule/Transitional Issues > Happy to talk, David. How about Wednesday? Is there a time that works for you? From: Abbey, David Sent: 4/17/201710 :33 AM To: Hauser, Timothy - EBSA Subject: Fiduciary Rule/Transitional Issues Tim, Hope all is well. Just wanted to know if you have time for a short call. I'm interested in finding out if the Department will be open to issuing some clarification of certain of the last set of FAQs and transitional guidance prior to June 9 and, if so, what form and when will you need our questions/requests? Thanks, David David Abbey I Deputy General Counsel - Retirement Policy Investment Company Institute I 1401 H St, NW, Washington, DC 20005 (b) (6) AMf--HICAN pVERSIGHT 2 DOL-17-0281-B-000134 Lloyd, Karen - EBSA Subject: Location: Retirement Security Issues Fishbowl N-5677 Start: End: Fri 3/31/2017 11:00 AM Fri 3/31/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser, Timothy - EBSA Hauser, Timothy - EBSA;Piacentini, Joseph - EBSA;Canary, Joe - EBSA;Campagna, Lou EBSA;Hall, Lyssa - EBSA;Lloyd, Karen - EBSA;Scott, William - SOL; Hansen, Megan D SOL Decressin, Anja - EBSA(Decressin.Anja@dol.gov) Optional Attendees: Megan . Thanks. Please put this on my calendar with invites for the 2 Joes, Chris, Lou, Lyssa, Karen, Bill, and From: Flynn, Lauren M. Sent: 3/22/2017 6:37 PM To: Hauser, Timothy - EBSA Cc: Page, Karishma S. Subject: RE: Meeting Request - Financial Engines Hi Tim, 11am on March 31 would be terrific. They look forward to seeing you then. Thanks, Lauren From: Hauser, Timothy - EBSA [mailto:Hauser.Timothy@dol.gov] Sent: Wednesday, March 22, 2017 4:54 PM To: Page, Karishma S. Cc: Flynn, Lauren M.; Hauser, Timothy - EBSA Subject: RE: Meeting Request - Financial Engines work. Just let me know . I' d be happy to meet. Late afternoon March 30 or around 10:30 or 11:00 on March 31 should (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Flynn, Lauren M. [ Sent: Wednesday, March 22, 2017 4:13 PM To: Hauser, Timothy - EBSA Cc: Flynn, Lauren M. Subject: Meeting Request - Financial Engines DearTim , On Behalf Of Page, Karishma S. N PVERSIGHT 1 DOL-17-0281-B-000135 I hope that this note finds you well. We would appreciat e the chance to bring Chris Jones, Financial Engines ' Executi ve Vice Presiden t of Investment Management and Chief Investment Officer, and David Weiskopf, Vice Presid ent of Corporate Communications, in for a short meeting when they are in town March 29 through March 31. Chris and David would like to discuss retirement securit y issues , including potential next steps on fiduciary duties owed to retail investors in the retirement savings context. Would you have availability the morning of Friday, March 31 for a meeting? Chris and David are also available to meet on Thursday, March 30. My colleague, Lauren Flynn (cc'd above), is available to coordinate schedules. Thank you! Karishma Karishma Shah Page K&L Gates LLP 1601 K Street, NW Washin ton, DC 20006 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) This elect ronic mess age contains information from the law firm of l<&.L Gates LLP. The contents may be privileged and confidentia l and are intended for the use of the intended addresse e(s) only. If you are not an intended addresse e, note that any disclosu re, copying , distribution , or use of the content s of . this mess age is prohibited. If you have received this e-m ail in error, please contact me at Lauren.Flynn@klgates.com This elect ronic message contains information from the law firm of l<&L Gates LLP. The contents may be privileged and confid ent ial and are intended for e use of the intended aclclressee(s) only. If yo u are not an intenclec! addresse e, note that any disclosu re, copying . distribution , or use of the contents of t11 . tl1is message is prol1ibItecl. If you have receiv ed this e-m ail in error, please contact me at Lauren.Flynn@klgates.com AMf HICAN pVERSIGHT 2 DOL-17-0281-B-000136 Lloyd, Karen - EBSA Subject: TIAA Cref Start: End: Thu 3/9/2017 3:30 PM Thu 3/9/2017 4:30 PM Recurrence: (none) Organizer: Lloyd, Karen - EBSA AMf-HICAN pVERSIGHT 1 DOL-17-0281-B-000137 22 g: ?rc 4/43? ~71: "2,93? 3113:53223,3) 2 _4 ?12 74522; - - 7-: ?7,5235.245 -., . 22.122,? 2r gig/tr, @3223? w-?s?wm {32? 2, Wigum, hwqg?cw 1,2 Nam?; wig; ?13.113 111'} 3A lama? in it ta? .im .41 113;?: gm 25' Mugs I Ma 53L: ilk 3A. n??m wmnim ?yff??ia?: 9? 1 a 3 A45. ?w233g%?~ 4} gig/pf?! 7W4: ma )0 is? g; ?41" 7 j? . PRODUCT GUIDE 4Q 20.16 Nuveen: A Market Leader in Closed- End Funds Closed-end funds have long been valued for the potential to provide attractive income. A trusted closed-end fund prov.ider for thirty years, Nuveen builds on more than a century of industry leadership to o'fferadvisors and investors dedicated client service with a legacyof integrity and innov'ation. Market leadership A pioneer in long-term income and cash flow solutions, we are the largest national provider of closed-end funds today, with innovative products across traditional and ;, alternative asset classes and strategies. /· Focused expertise Through active fund and distribution management from Nuveen and the expertise and capabilities of its high-caliber investment managers, we are committed to providing world-class investment solutions that align with client needs. Deep commitment From our educational resources, robust communications, and industry-leading closed-end fund websites to our skilled and dedicated support team, we provide comprehensive support for advisors and investors in pursuit of long-term, lasting value for investors and the advisors who serve them . Learn more about adding regular income potential to your portfolio with Nuveen's closed-end funds. Investors: Contact your FinancialAdvisor or call Nuveen at 800.257-8787. FinancialAdvisors: Contact your Nuveen Advisor Consultant Team at 800-752.8700 or a Nuveen CEFspecialist at CEFSpecialist@nuveen.com. Visit us on the web at nuveen.com/cef. AMFnlCAN pVERSIGHT DOL-17-0281-B-000141 m Nuveen Has ExpandedClosed-EndFund Offerings Over Three Decades Since launching its first closed_-endfund in 1987, Nuveen has led the way, adding asset strategies, new strulctures, forms of leverage, education, and support-a range of innovations at the forefront of the closed-end fund marketplace. 1987 Nuveen launches first closed-end fund, NUV, which was the largest CEF IPO to date on the NYSE Asset Classes II Municipal Bonds Ill Senior Loans • Real Assets Preferred Securities Multi-Strategy 11111 Value Equity High Yield • Equity Option 11Global Debt • Global Equity II Dividend Growth Equity Mortgage-Backed Securities 11111 • Taxable Municipals • Master Limited Partnerships (MLPs) II Global Infrastructure • Target Term AMERICAN VERSIGHT 2 DOL-17-0281-B-000142 PRODUCT 2001 CEFConnect.com launched GUIDE 4Q 2016 .,.~ . Symphony Asset Management LLCacquired 2002 NWQ Investment Management Co., LLCacquired 2008 Failure of auction rate preferreds (ARPs) 2005 Santa Barbara Asset Management, LLCacquired 2011 All $15.4billion of ARPs refinanced 2014 Income Institute® launched ., y /· First Launch Dates 1987 1999 RealAssets 2001 2002 2003 2003 2003 2004 2006 2006 '.i:Gl~bal Equity ~ ~ 2007 :.DividendGrowth Equity 2009 2010 TaxableMunicipals Master Limited Partnerships(M LPs) 2011 2012 2015 AMERICAN PVERSIGHT DOL-17-0281-B-000143 3 Choose Nuveen's Closed=End Funds for Innovation and Income Potential Offerings as ofl2/31/2016 NON-TAXABLE NATIONAL • Ill • ••• ••• •• 0 0 •• 0 0 0 0 •• MUNICIPALS NAD NuveenQualityMunicipalIncomeFund IncomeFund QualityMunicipal NEA NuveenAMT-Free ValueFund NEV NuveenEnhancedMunicipal NHA NuveenMunicipal2021TargetTermFund TermFund NID NuveenIntermediateDurationMunicipal Fund Municipal NIM NuveenSelectMaturities NIQ NuveenIntermediateDurationQualityMunicipalTermFund NMI NuveenMunicipalIncomeFund,Inc. NMZ NuveenMunicipalHighIncomeOpportunityFund NUV NuveenMunidpalValueFund,Inc. ValueFund Municipal NUWNuveenAMT-Free ·-· O il FUNDS,·, CreditIncomeFund Municipal NVG NuveenAMT-Free IncomePortfolio NXP NuveenSelectTax-Free IncomePortfolio2 NXQ NuveenSelectTax-Free IncomePortfolio3 NXR NuveenSelectTax-Free NZF NuveenMunicipalCreditIncomeFund STATE MUNICIPALS • • • • • • • • 0 • • •0 • • • NAZ NuveenArizonaQualityMunicipalIncomeFund IncomeFund NTC NuveenConnecticutQualityt:'1unicipal IncomeFund NKG NuveenGeorgiaQualityMuvi'.cipal ,· IncomeFund Municipal Quality Maryland NMYNuveen NMT NuveenMassachusettsQualityMunicipalIncomeFund NUMNuveenMichiganQualityMunicipalIncomeFund NMS NuveenMinnesotaQualityMunicipalIncomeFund NOMNuveenMissouriQualityMunicipalIncomeFund N)V NuveenNewjerseyMunicipalValueFund NXJ NuveenNewjerseyQualityMunicipalIncomeFund NNC NuveenNorthCarolinaQualityMunicipalIncomeFund NUO NuveenOhioQualityMunicipalIncomeFund ValueFund Municipal NPN NuveenPennsylvania QualityMunicipalIncomeFund NQP NuveenPennsylvania MunicipalIncomeFund NTX NuveenTexasQualLty NPV NuveenVirginiaQualityMunicipalIncomeFund California • 0 0 •• 0 NAC NuveenCaliforniaQualityMunicipalIncomeFund ValueFund,Inc. NCA NuveenCaliforniaMunicipal ValueFund2 NCB NuveenCaliforniaMunicipal IncomeFund QualityMunicipal AMT-Free NKX NuveenCalifornia IncomePortfolio NXC NuveenCaliforniaSelectTax-Free New York •0 • 11 0 0 NAN NuveenNewYorkQualityMunicipalIncomeFund ValueFund,Inc. NNY NuveenNewYorkMunicipal QualityMunicipalIncomeFund NRK NuveenNewYorkAMT-Free NXN NuveenNewYorkSelectTax-FreeIncomePortfolio ValueFund2 NYV NuveenNewYorkMunicipal DOL-17-0281-B-000144 4 PRODUCT 9 Leveraged AMT-Free 11!1 0 Non-Leveraged • • High Yield GUIDE 4Q 2016 Managed Distributions 11!1 Iii Cash-Flow Based Distributions Term TAXABLE FUNDS SENIOR LOANS • NSL NuveenSeniorIncomeFund )FR NuveenFloatingRateIncomeFund ® JQC NuveenCreditStrategiesIncomeFund ~ )RO NuveenFloatingRateIncomeOpportunityFund )SD NuveenShortDurationCreditOpportunitiesFund flu ~ COVERED O il! 0 111 0 11 0 hi! CALL IncomeFund BXMX NuveenS&P500Buy-Write OverwriteFund DIAX NuveenDow305"' Dynamic QQQX NuveenNasdaq100Dramic OverwriteFund SPXX NuveenS&P500Dy9~micOverwriteFund GLOBAL DEBT REAL ASSEl::S JGH DRA RealAssetIncomeFund Diversified )RI NuveenRealAssetIncomeandGrowthFund JRS NuveenRealEstateIncomeFund fj JPC NuveenPreferredIncomeOpportunitiesFund ®Ill JPI NuveenPreferredand IncomeTermFund JPS NuveenPreferredSecuritiesIncomeFund )PW NuveenFlexibleInvestmentIncomeFund • f9 Ill MU LTl·STRATEGY DOMESTIC 0 11 • Ill ,_• Ill )LS TermFund NuveenMortgageOpportunity )MT TermFund2 NuveenMortgageOpportunity )MM IncomeFund,Inc. NuveenMulti-Market TAXABLE MUNICIPALS •• NBB NuveenBuildAmericaBondFund NBD NuveenBuildAmericaBondOpportunityFund MASTER LIMITED and IncomeFund Dividend NuveenDiversified )DD SECURITIES MORTGAGE-BACKED 9 PREFERRED SECURITIES NuveenGlobalHighIncomeFund EQUITY )CE NuveenCoreEquityAlphaFund HIGH )TA TotalReturnStrategyFund NuveenTax-Advantaged )TD DividendGrowthFund NuveenTax-Advantaged ••• ••• ••• ••• PARTNERSHIPS )MF NuveenEnergyMLPTotalReturnFund JMLP NuveenAllCapEnergyMLPOpportunitiesFund YIELD CORPORATE DEBT )HA NuveenHighIncomeDecember2018TargetTermFund )HD NuveenHighIncomeDecember2019TargetTermFund )HY NuveenHighIncome2020TargetTermFund JHB NuveenHighIncomeNovember2021TargetTermFund AMFfllCAN PVERSIGHT DOL-17-0281-B-000145 5 Thismaterial isnotintended tobea recommendation orinvestment advice, doesnotconstitute a solicitation tobuyorsellsecurities, andisnotprovided ina fiduciary capacity. Theinformation provided doesnottakeintoaccount thespecific objectives orcircumstances ofanyparticular investor, orsuggest anyspecific course ofaction. Investment decisions should bemadebasedonaninvestor's objectives andcircumstances andinconsultation withhis orheradvisors. ~ IMPORTANT RISK CONSIDERATIONS ·'· Closed-end fundsharesaresubject toinvestment risk,including thepossible lossoftheentireprincipal amount thatyouinvest. Common shares frequently tradeata discount totheirNAV. Atanypointintime,yourcommon sharesmaybeworthlessthanyoupaid,evenafterconsidering thereinvestment offund distributions. Income OnlyDistribution: Distributions aresourced entirely fromnetinvestment income, unless notedotherwise. Managed Distributions: Potential distribution sources include netinvestment income, realized gainsandreturnofcapital. Ifa distribution includes anything otherthannetinvestment income, thefundprovides a notice ofthebestestimate ofitsdistribution sources atthattimewhich maybeviewed at www.nuveen.com/CEFdistributions. These estimates maynotmatch thefinaltaxcharacterization (forthefullyear's distributions) contained inshareholders' 1099-DIV forms aftertheendoftheyear.Under itsManaged Distribution policy, eachFundseekstomaintain anattractive andstableregular distribution amount that,overthelongterm,matches theFund's totaldistributions paidtoitstotalreturn. Youshould notdrawanyconclusions abouta fund's pastor futureinvestment performance fromitscurrent distribution rate. Cash-flow BasedDistributions: Potential distribution sources include netinvestment income, realized gainsandreturnofcapital. Ifa distribution includes anything otherthannetinvestment income, thefundprovides a notice ofthebestestimate ofitsdistribution sources atthattimewhich maybeviewed at www.nuveen.com/CEFdistributions. These estimates maynotmatch thefinaltaxcharacterization (forthefullyear's distributions) contained inshareholders' 1099 -DIV forms aftertheendoftheyear.Thefundseekstomaintain anattractive andstableregular distribution amount basedonthefund'snetcashflow received fromportfolio investments. Funddistributions arenotintended toinclude expected portfolio appreciation; however, thefundinvests insecurities which havecashflowthatultimately maybefullyorpartially treated asgainsorreturnofcapital fortaxpurposes. You should notdrawanyconclusions about a fund's pastorfutureinvestment performance fromitscurrent distribution rate. leverage:leverage typically magnifies thetotalreturnofa fund's portfolio, whether thatreturnispositive ornegative, andcreates anopportunity for increased common sharenetincome aswellashigher volatility ofnetassetvalue, market price, anddistributions. There isnoassurance thata fund's leveraging strategy willbesuccessful. More information abouttheseandotherrisks specific toeachfundisavailable atnuveen.com/cef. I, J /· r-- ~ 6 z> ;i; 0 ,.,... N N 0 "' N 0 0. u. Ar p t:l Securities offered throughNuveen Securities,LLC,MemberFINRA and SIPC. a: a, u.J DOL-17-0281-B-000146 JunelZQ19: < and Local Governments Build America Bonds Are Helping State te Jobs While Saving Taxpayers Billions fiJl'ra,nce Infrastructure Projects and Crea - the Build America Bonds Program an innovativ e new tool for ments: The Recovery Act of 2009 created N, fina ncing tool for state and local govern the US Treasury which Bonds .(BABs),which are taxable bonds for ~ ~nicipa l financing called Build America helped state and local have ., BABs . issuer the to costs percent of the interest .~ artm ent pays a direct subsidy of 3S s at lower borrowing costs. j~ e rnments finance public capital project ned the market for municipal Build America Bonds program has broade ID s have attracted new investors : The pension funds and sovereign wealth as such debt, mpt tax-exe hold lly ds to include investors that do not norma ~~ supply pressure in the pal bonds, BABshave helped to relieve the s. By attracting new investors to munici aiEct costs. ing borrow lower to and market municipal bond ts local infrastructure projects and and job creation: The BABsprogram suppor • Supporting infrastructure projects buildings, schools , government public in ents investm capital with d forwar job creation by allowing states to move public safety facilities and , ructure infrast s, roads and transportation hospitals, governmental housing _project s, and public utilities. project energy and l nmenta enviro s, equ ipment, water and sewer project success of the BABprogram, program permanent: Given the demonstrated • Proposal to expand and make the BABs y rate that makes extension making the program permanent with a subsid the President 's FY2011 Budget propo ses uses of BABs,thereby allowing e eligibl the ing nt's Budget proposes expand revenue-neutral. Additionally, the Preside ing. borrow and a wider range of municipal them to support financing for nonprofits popular with state and local governments The BABsProgram is widely successful and • h May 31, 2010, over $106 inception of the program in April 2009 throug More than $100 billion issued: From the t of Columbia and two Distric the states, 49 in and local governments billion of BABshave been issued by state es remains steady today. territories . Importantly, the pace of issuanc for the BABsissued in the first Treasury Department analysis showed that More than $12 billion in savings: A re cent present value borrowing costs in billion $12 than more save will ments year of the program, state and local govern riting fees and net t municipal bonds , taking into account underw compared with issuing traditional tax exemp l government of the BABs federa the to cost net the than greater interest costs, These savings are considerably program. [LINK] State Treasurers and othe rs have across the country , Governo rs, Mayo rs, States, cities hail BABs program: From . d welcomed the BABsprogram . See attache Tax compliance measures federal government reduces e federal debts: Under federal law, the Paying off delinquent taxes and other overdu to the federal owed t of outstanding ta xes and non-ta x debts or "offsets" certain payments by the amoun reduced to pay off the be could m progra BABs the risk that payments under government . In the overall context, the minor. ely relativ the federal government remains overdue taxes or non -tax debts owed to t of the total dollar ·Based on ava ilable data, less than 2 percen o Few payments offset for overdue taxes: s owed to the federal taxe e 2010 were offset to pay overdu amount of all BABspayments through March government. http ://www.t reas.go v/ recovery/ babs,shtrnl June 2010 Hail Build America Bonds Program The Reviews Are in: States, Cities ructure ... Put this money into a viable and politically viable to advance infrast ant folks "We've found a way that is economically paychecks for selling equipment, the restaur get people job, the doing for cks community and people get payche up around the finished system . You build sses busine and , sweaty getting ere make ham sandwiches for people out th our money today." n this and where Wall Street is going with couldn't have a sharper contrast betwee U.S. Senator {D-OR), 6/9/10 - Ron Wyden , nsin, deal with the most difficult Act has helped every state, including Wisco "The American Recovery and Reinvestment ic growth . Through Build econom future for way the paving while Depression, national economic times since the Great in important projects that invest , money save nities commu to help Wisconsin America Bonds, we have a powerful tool in Build America Bonds billion $1.3 over work to ry . Wisconsin is putting create 'jobs, and chart a path toward recove clean water, highways, e provid to ents dollars and making long-term investm saving our taxpayers tens of millions of s." project ructure infrast higher education, and other critical or of Wisconsin, 6/6/10 - Jim Doyle, Govern last fall to finance $500 million of the taxable Build America Bond market "When Washington State ventured into . With our October issuance alone, history state's our in rates t interes lowest transportation projects, we received the to pay for a new state ferry. Lower enough issue mpt tax-exe a of cost to the Washington saved $64 million compared s. It is an equation that helps project capital al essenti the for are required borrowing costs means fewer tax dollars jobs ." gton, 5/6/10 everyone: less cost= more projects = more - Chris Gregoire, Governor of Washin quality of life and economic ca Bonds will ensure that our public safety, "Smart investments through Build Ameri boon to our manufacturers, and for a be would ructure years, Investing in infrast competitiveness improve in the coming It would also provide a great shot rced. outsou be well-paying jobs that cannot every billion dollars we can create 18,000 investments are needed smart Bold, .. especially concrete, asphalt and steel. that in the arm for American manufacturing, with Build America Bonds will be one reason made ents investm , times lt difficu now . Once we emerge from these of this innovative bonding program life the ing Extend g. thrivin be again once communities that are now suffering will our country will remain competitive. 4/6/10 will ensure that growth continues and that - Ed Rendell, Governor of Pennsylvania, the administration wants to make it benefits to California, so we're pleased that "[The BABsprogram] has produced great r Bill Lockyer, 2/2/10 permanent." or, spokesman for California Treasure - Tom Dress/ a critical investment in our last year, these bonds allowed us to make "When the municipal credit market froze Build America Bonds provided a the , market bond pal munici t cal tax exemp community. As a complement to the histori nities." commu local build also but to not only provide jobs 0 new ave nue for infrastructure financing -Tom Leppert, Mayor of Dallas, TX, 1/15/1 economy and help people get had over the past year to stimulate our "One of the most important tools we have and Reinvestment Act. But of all the ery Recov can Ameri ic stimulus plan -the through these times is the federal econom ms that support the Chicago Public progra the than nothing is more important funding the federal stimulus has given us, 1/6/ 10 Schools." -Richard Ooley, Mayor of Chicago, IL, n Authority (MTA)l access to d the [New York Metropolitan Transportatio save $46 "The Build America Bond program allowe s , .. These bonds will allow the MTAto finance A's MT the in t momen critical a significant capital resources at Yorkers to work ma intaining, repairing and New of nds thousa put to helping million over 30 years, and they are already economy." is so vital to our region's and the nation's 10/5/09 expanding the transportation network that k J. McCoy, MTA Director of Finance, -Patric ### http://www.treas.gov/recovery / babs.shtml DOL-17-0281-B-000147 l\luveen Taxable Fixed Income Target Term Offering High l ights JHY: July 2015 IPO ($124MM Print Siz~) 5 Year Corporate High Yield JHA: November 2015 IPO ($261 MM Print Size) ·. 3 Year Corporate High Yield 90% of trading days at or above $10 issue price $11.50 $11.00 89% of trading days at or above $10 issue price $11.50 $11.00 $10.50 $10.50 $10.00 $9.50 December'15 $9.50 May'16 October'16 March't JHD: May 2016 IPO ($245M_MPrint Size) August '16 March 117 JHB: August 2016 IPO ($500MM Print Size) 3 Year Corporate High Yield : $11.50 , February '16 5 Year Corporate High Yield 99% of trading days at or above $1 0 issu e price 59% of trading days at or above $1 0 issue price $11.50 $11.00 $11.00 $10.50 $10.50 ~~ -17 ~00 • $9.50 July'16 October '16 Decemb er '16 March '17 $9.50 November'16 January '17 March '17 Source: Bloomberg as of 3/8/2017. 1 FOR NUVEENINTERNALUSE ONLY. nuveen l\luveen Taxable Fixed Income Target Term Ofi ering High lights JHY: July 2015 IPO ($124MM Print Siz~) 5 Year Corporate High Yield $11.50 JHA: November 2015 IPO ($261MM Print Size) · · •. 3 Year Corporate High Yield 90% of trading days at or above $10 issue price $11.00 $11.00 $10.50 $10.50 $10.00 $9.50 December'15 s10.oo v "' ... ~6 $9.50 May'16 March'1 JHD: May 2016 IPO ($245M_Mftrint Size) February '16 August '16 March '17 JH!3: August 2016 IPO ($500MM Print Size) 3 Year Corporate High Yield, ~ $11.50 89% of trading days at or above $1 0 issue price $11.50 5 Year Corporate High Yield 99% of trading days at or above $10 issue pric e 59% of trading days at or above $10 issue price $11.50 $11.00 $11.00 $10.50 $10.50 $ 10.oo' -'.\ $9.50 July'16 October '16 December'16 March '17 vi-J"~-· .,..._ _, ~ ~02 $9.50 November '16 January '17 March '17 DOL-17-0281-B-000148 nuveen It ~ 1i r u~ c;::,fC) NUVEEN P lx_O__'.S'F'ECT US m_)v ........., J] O 12,400,000 Shares lnvustmcnts Nuveen High Income 2020 Target Term Fund cn- Common Shares $10.00 per Share ·The'Fwul.• Nuveen High Income2020 Target.TennFund (the "Fund")is a newly organized,diversified,closed-endmanagementinvestment comf~he Fund's investmentobjectivesare to provide a high level of currentincomeand to return $9.85 per share (the originalnet asset val~~1;$. V'') per commonshare beforedeductingofferin,/! .costsof $0.02 per share)to holdersof commonshares on or about November1, 2020 (the "Termination Date").The Fund will attemptto strike" balancebetweenthe two objectives, seekingto provideas high a level of current incd"in'ta-h s consistent with the Fund's overall credit perfo~ance, the declining average maturity of its portfolio strategy and its objective of retuffiiEg:Yl-eoriginal NAVat temtlnation.·However, there c.anbe no assurance that the Fund will ·achieve either of its investment objectives or that the Fdild's investmentstrategieswill be successful.The objective to return the Fund's original NAV is not an express or implied guarante~ obligation of the Fund or any other entity. ·'· Fund Strategies. The Fund seeks to achieve its investment objectives by investing. under normal circumstances, at least 80% of its Managed Assets (as definedon page 4) in corporatedebt securities, and separatelyat least 80% of its ManagedAssets in securitiesthat, at the time of investment. :ll'C rated below investment grade (BB+/Bal or lower) or are unrated but deemed equivalent by the su,Padviser.Below investment grade securities are regarded as having predominately·speculative characteristics with 'respect to the issuer's cap?-~ityto pay interest or dividends aod repay principal,whichimplies higher•price volatilityand defaultrisk thao investmentgrade instrumentso.f comparableterms and duration. (continued on following page) No Prior History. Because the Fund is newly organized, its common shares have no history of public trading. Shares of closed~end investment companies frequently trade at a discount from their NAV. This risk of Joss due to the discount may be greater for investors who e>.-pect to sell their shares in.a .relatively short period after.completion of the public offering. The Fund's commonshares have been (notesfrom previouspage) (I) The Fund has granted the underwritersan option to purchase up to 1,860,000additional shares at the public offering price, less the sales load. within 45 days from the date of this prospectus solely to cover overallotments,if any. If such option is exercisedin full, the 'total public offeringprice, sales load, Original NAV, before offering costs. estimated offering costs aod proceeds, after expenses, to the Fund will be approximately $142,600,000, $2,139,000,$140,461,000,$285,200 and $140,175,800,respectively.See ''Underwriters." (2) Nu\ieen Fund Advisors, LLC, the Fund's investment adviser (and not the Fund), has agreed to pay, from its bw~ aiseii;(a) a~?!~oria.F~ornpenfation of $.025 pe!' share to the underwriters in connection with this o!fering ~~ I eparate/y,(b) ~.upfronl'structuring .and syndication fee to Morgan Stanley & Co. LLC and an upfront structuringfeet? ~•ch of RBC.Capita!Markets, LLC, Stifel, Nicolaus & Company, Incorporated, ,BB&d ,Capital Markets,.adiyision?f BB&T Securities, LLC, b.A. Davidson & Co., Jaoney Montgomery Scott LLC, JJ.RHilliru-dr;\\'°:L-Lyons, LLC, LaderiburgThalmann & Co. Inc., Pershing LLC, Southwest Securities, Inc., WedbtisliSefuriti<;slnc;'and Wunderlich Securities, Inc. These fees and compe~sation are not reflected urid~r "S.ales loaa,,:m?he table above. See "Underwriters~Additional Compensation to be Paid by Nuveen Fund Adviso':' :·.: ·,u ' Total offcrinf costs'to o'cpai~oy ,~ e'tiind (other thao the sales load) estimated to be approximately $248,000: wliich represen~ appr?xilnate1y$0.02 per share. Ntiveen Fund Advisors,'LLCbas agreed to ' (i) reirnbu~e all ~rgartlzatioti~lf!P~iises of Fund aod (ii) pay,ihe amount by which tbe Fund's offering costs (other thao salesJoaff)'exceed$0.02 per common share. See "Use of Proceeds." >.... the ·...·)fi :lf.'.-.·.,·.·······•,t .··· ..•·.i..::.:,:.}t.\t /·und·Str~iegies. • ·" ...· y···••'·:.'.i-.f.•·." : C •:.+. . ··nJtdfrdmpreviOUS !f;fK~!( / Yi ½\•• i>•• ·ii ... } · · 1 s~r •~p)9?s ~p?tt??'???RPr?ac~ tl!at seeks tb identify securities across diverse sectors that r.mispriced.cinseel;i~g to rettlrttthe ~gelam6UJ1t .of $9.85 per share to investors on or about ~ri8.utilizex~o~ .s po~?lio ari~t~.s.b flol" management techniques, ~Bet;nvestmentmilotri~, p'ossib)Yretiif:'1"ggains and limiting .the longest ~~~Y}, 202h ;Th~ average maturity of the !~nd's holdings is generally caches its Tel'minatlonDate, which may reduce interest rate risk over time available for distribution to shareholders. The Fund aoticipates leveiage ,io achiei/e'its fuve§ttrientobjectives. approved for listing on ,the New _York Stock Exchange, subject to notice of issuance.;The trading or "ticker" symbol is "JHY." This prospectna'setsf<>~tli coridsely infonriatiori about Fmi?fffolio/ retiie or redeem its.IeveJ ge facilities; aod seek to return the 'riginal NA'V·(as·aefinei;/:«~,i-:n/~%> <> ;w,t/t<,; ;Ji,·_ iv'e:Year'Temi:w ,'f1Eih °1i l1Jiitrib~ii~11.''' 0~ or about the Termination·bate , the Fund intends to cease its oy' $124,000,000 1,860,000 $122,140,000 $ 248,000 $121,892,000 $ (notes on following page) Morgan Stanley are Nuveen Securities Stifel D.A. Davidson & Co. J.J.B. Hilliard, W.L. Lyons, LLC Maxim Group LLC Pershing LLC Wunderlich F~hd Distributions. The Fund iri\ends to pay rnost, but likely not all, of its net income to shareholders in ' inonthly income dividends. The Fund also intends to,distribute its net realized capital gains, if aoy, once per year. 'Y , However, in ·seeking to achieve its investment obje'ctives, the Fund currently intends to set aside and retain in its ., / net assets (aod therefore its NAV) aportion of its net investment income, aod possibly all or a portion of its / giil~ .This'(WJreduce the amounts otherwise avai!ali1e·ior distribution prior to the liquidation of the Fund, aod · lhe"Flfiicim·ay incur taxes on such retained amouriCSuc'iiretairied·income or gains, net of any taxes, would ,constitute a portion of the liquidating distribution·returned to investors ODor about the Termination bate. this prcispectus,which contains important information-about the Fund, before deciding whether to invest; aod 'retain it for future reference. A Statement of Additiciiial,Inforination,dated July 28, 2015, as The date of this prospectusis July 28, 2015. DOL-17-0281-B-000149 (notes from previous page) amende.d or supplemented through the effective date of this prospectus, containing additional infom1ation about the Fund, h!l.5been filed with the SEC and is incorporated by reference in its entirety into this prospectus. You may reque.st a free copy of the Statement of Additional Information, the table of contents of which is on page 76 of this prospectus, annual and semi-annual reports to shareholders, when available, and other infonnation about the Fund, and make shareholder inquiries by calling (800) 257-8787 or by writing to the Fund, or from the Fund's website (www.nuveen.com). The infonnation contained in, or that can be accessed through, the Fund's website is not part of this prospedus. You also may obtain a copy of the Statement of Additional Infonnation (and other information regarding the Fund) from the SEC's website (v.ww.sec.gov). ( i TABLE OF CONTENTS 1 21 , , , • . • . • . · · • · · · 23 23 23 ..,... .: Management of the Fund . Net Asset Value .•... Distributions ..•..••.......•.•.••.• ; ••........ • .••..... , . . • • . • . . . . . • . • . . • . .•..•. • . , ..... . Dividend Reinvestment Plan ......................•. , • • . . . . .• • .....•.•••. , Description of Shares and Debt ........ :~ ...•..........•.•....•.••. , ... , , • , , • • . , .. , • : •• , • • • • Certain Provisions in the Declaration of Trust and By-Laws . . . . • . . . . • . • . . . . .. , .••... , .....• • •.•.. Repurchase of Fund Shares; Conversion to Open-End Fund ..... .. , . . . . .........•.••........••... Tax1iatters ...•.........•.•......•.....•..••........•. , .....•.....•..•..•.......••.•. , ....•.. , .........•• • ..•.. , • , • • .·• • , • • • .; . • , • • Undenvriters •..•..•..•....•........• . . , •• , • • • • •, /.·., •, • • • • • • , , • Custodian and Transfer Agent.... . ....•.......•...•.....• , • •... Legal Opinions and Experts . . . . . . . . . . . . . • . . . ....••....... , ••..... , • , •• • • • • • • Table of Contents for the Statement of Additional lnfonnation . . . . . . . • . . ...••..... , .. , , •• , • • ..... , 27 37 41 55 58 59 60 61 64 65 66 70 75 75 76 The Fund's common shares do not represent a deposit or obligation of, and are not guaranteed or endorsed by, ariy bank or other insured depository institution, and are not federally insured by the Federal Deposit Insurance Corporation, th_cf~d,entl Re.serw Board o_rany other g~yernment agency. ffHIS PAGE INTENTIONALLY LEFT BLANK] You should rely only on the information contained or incorporated. by reference in this prospectus. The Fund has not, and the underwriters haw not, authorized anyone to provide you with different . information. If anyone provides you with different or inconsistent information, you should not rely on, tf. The }).md is not, nnd the underwriters are not, making an offer of these securities In any Jurisdiction ', where the ofTer is not permitted. You should not assume that the information contained in this prospectus is nccuratc as of any date other than the date on the front of this prospectus, Th_eFund's business, financial condition and prospects may ha,·e changed since that date. • MERIC,,\I VERSIGHT DOL-17-0281-B-000150 PROSPECTUS SUMMARY You sfiou!d re dew the mor e detail ed in/onna1ion contained el.sell'htre in tliis · i.sonly a .s1m1mary. the alrd fn the Statement of Additional /11/omtalion ("SAi") prior to mak ing an investm ent ill the heading "Ri.Ik.r," set fonh 1111du dolly the i11fomaatio11 Nuyecn High Income 2020 Target Term Fund (the "Fund") is a newly ~rgaoized, di\'crsified, closed~ nd management in\'cstmenl company. Thi;F.undis offering 12,400,000commonshares of beneficial inte_restat SI0 .00 per share through a group or undenvriters (the ''Underwriters") Jed by Morgan Stanley & Co. U.C and Nuveen Socu'rities, LLC. The cO'inmonsharesof beneficial interest of the Fund are ca1Ie'd "Common Shares" in this pJ'O~pectus.In this prospectus, we refer to as "CommonShareholders."You holders of Commonshares must purchase at least 100 CotTlmonShares (Sl ,000) i~ this offering, The Fund has given the Undenvriters an option to purchase up 10 1,860,000additional Common Shares wilhin 45 days 6rthe date of this prospectus solely to cover over-allotments, if aily. See "Undem'Oter..." Nuveen Fund Advisors, LLC ("Nu,·een Fund Advisors") has agreed to (i) reimburse all organi.z.otionalexpenses of the Fund and (ii) pay all offering cmts of the Fund (other than the sales load) that excce"d$0.02 per Common Share. (THIS PAGE !Nl'ENT!ONAL LY LEFT BLANK] Who Mny Want to Innst _ •• •• • , You should considef your financial situation and needs, other estmenl tools, investment experience, time horizons, fovbtlTlents,i1l\" ii(Juidityneeds and riSk tolerance before investing in the Fund. An im·estment in the Fund is not appropriate for all investors and is not intended lo be a complete i~\·estment program. The Pund is designed for investment and not ns a tiading vehicle. The Fund may be appropriate for investors who are seeking a high yield strategy with significant credit risks with 1hefollowing features and potential benefits: high current income; a five-year tenn; the retum of$9.85 per Common Share upon lennin:ilion; a diversified high yield portfolio; a short duration strategy th:lt is less sensitive to high yield interest rate risk than longer dura1ion funds; and access to the corporate credit expertise of Nm-eenAsset Management, LLC ("Nu\·een Asset Managemenl"), However, keep in mind that you will need lo assume the risks associ:iicdWithan investment in the Fund. See "Risks." of Inn-.shnenl Obj ectives •• , .•• , • , The Fund's in\'Cstment objectives are to provide B high level current income and to return $9.85 per share (lhe original net asset value ("NAV") per Common Share before deducting offering costs of S0.02 per share) ("Original NAV"} to Common Sharehofder:son or about November 1, 2020 (the 'Te rmination Date"). The objecth·e to return the Fund's Original NAV Js not an express or implied guarnnle e ob_ligntion of the Fund. There can be no assurance 1ha1 the Fund will be able to return Original NAV to shareholders, and such ~etum is not backed by Nuvecn Inveslments,·Inc. ("Nuvecn "}, tho parent company of Nuveen Fund Ad,·isor:s,or any lnvcstme_nls other entity. The Fund will nllempt to strike a balance between the two objectives, seeking to provide ns high a le,·et of current income as is consisttnt with lhe Fund's overall credit perfonnance, the declining average maturity of its portfolio strategy and its objective of returning the Originol NAV at temtination. Howe\'er, there can be no assurance that lhe Fund will achie,·e either of its inYestmentobjectives or lhat the Fund' s investment strategies will be successful. See "The Fund's Investments" and ''Risks." in Fund Strat egies • • , • , • • • • • •• , , The Fu.ndseeks to achieve its investn:ientobjecth·es by investing below investment grade corporate debt and other irutruments ns Fund's he 1 portfolio, the manage and described below. Toronslruct subadviser employs a bottom-up approach that focuses upon credit analysis_:indrelntive value, The Fund seeks to identify securities across d1\'er:sesectors and induslries that lhe portfolio managers believe arc undervalued or.mispriccd. Jn seeking to return the Original NAV on or aboul the Tenni notion Date, the Fund intends 10 utili~ vari?USportfolio and ca.sh now management;techniques. incl~ding setting aside~ ~rtion of its net investment income possibly frtaining gains and limiting the longest maturily of ;ny hold!?&~o no late_r than ~fay -~•2021. As a re..sult,the average malurity o_fthe Funcl's ~()l~ings, is generally expected to shorten as the Fund appro:ichesits Tem:tination Date, which may reduce interest rate ris~ O,·ertime but which .rriaYal.Soreduce amounts othmvise ava!l~ble for disll:i~.?lion to,Common Shnreholders.Through its overall strategy, the Fund seeks to capitalize on the credit spread ?Pportunity (measured by the difference between the yield of below mvestment grade debt and high grade debt securities having similar maturiti~) prevail(ng in !he.markel and to further align 1he portfolio value dun ng the wmd-up period (the three to six month period preceding the Tennination Date) with !he Original NAY. There can be no nssurance that the Fund's strategies will b.::succe.ssful. grade Portf olio Contents • • • ••• , • , , • • The Fund generally in\·ests in a portfolio of below investment corporate debt securities commonly referred to as "high yield" set:urities or 'Junk bonds" (ns described in "In\'cstmcnt Policies" below). Corporate debt securities are bonds:,notes and preferred securilics issued by corporations or other business entities. The Fund may also invest in other types of 5ecuri1iesincluding senior Joans, convertible securities and other types of debt instruments described in this prospectus and the'SAI and derivatives that provide comparable , economic exposure to the corporate debt market. M ""'/\r\l VERSIGHT Below im·cslmenl grade securities nre regMded as having predominatelyspeculative characteristics with respect to the issuer's capacit)' to p:iy interest or dividends, and repay principal, which implies higher price vol3tility and defaull risk than invcslment grade instruments of comparable tenns and duration. These !iecurities generally provide higher income than investment grade securities in an effort to compensate inves1orsfor their higher risk or default, w,hichis the issuer's failure to make required interest, dividend or principl1 payments on the s.ccurities. High yield security issuers inc!Jde smnll or rcl:ith'ely new companies lacking the history or capital lo merit investment grade status, fonn er blue chip companies dowrigraded because of finilncial problems, companies electing to or avoid a takeover or buyout, and fi.nns· hc.:ivilyto fin::11ic~ borrov,:,. with hc.wy debt lo:ids. 30% of its Managed Assets (as defined to up invesl may The Fund below) in securitit.s of foreign corporations and governments, Assets in securitic-5:ofemerging Managed its of 20% to up including marl:ets issuers. The Fund will classify an issuerof n ~urily ns being a U.S. cir non-U.S. issuer based on the dctennination of an unaffiliated, recognized financial daln provider. Such determinations arc b.lSedOn a number of criteria, such as the issuer's country of domicile,,the primary exchange on which the security predominately trades, lhe location from which the mnjority of the is.suer's revenue comes, and thCissuer's reporting cum ncy. A counl,Y is considered lo have an "emerging mari::et"ifit has a relatively low gross national product per capita compared to tho world's major economies and the · potenlial for rapid economic growth. The Fund consider:sa country nn emerging market based on the detennination of international organiwtions, such as the International Monetary Fund ("IMF '), or unaffiliated, recognized fina.nci:1I data providers. See "Portfolio Composition and Other Infonnation" for additional information on the types of securities in which !he Fund may invest. The Fund also may invest in certain derivafive instrumtnts in pur:suit of its im•tstmei:J.tobjectives. Such instruments include financial futures contracts and oplions th_ereon, swaps (including inlercst r:ile and currency swaps), options ori swaps and other derivative instruments. Nu\'Cen' Asset Manngement may use derivative instiuments to aucmpt to hcdgCsome of the risk of the Fund's investments or as a subs~tute for a position in the underlying nsset. See '_'Portfo)io Col!)positionand Olher Infonnation-Dcr ivatives." Inn s tment Policies ••• • ••• , • • • Under nonnal circumstances: The Fund will im'est at lea.st 80% or its Managed Assets in 1e debt secllrities (as described above in "Portfolio corpol11 Contents"); The Fund will in\'esl at lerul 80% of its Managed Assets in tics that, at the timeof investment, are rated below sCCuri investment grade or are unrated but judged by the Fund's subJdviscr 10 be of comparable quality; DOL-17-0281-B-000151 ,, The Fu~d will ~n.Ve5t no more than 15% of its Managed Assets m secunties that, at the time of investment, either are rated ,ccC+/C~al or lower, or arc unrated but judged by the Fund s subadv1ser to be of comparable quality; Th~ \und will not inve5t in defaulted ,ecurl.tiei or in tho iilt:rr~ i~~~g ~p~t is in bankruptcy or iruoln~ncy The Fu~d wilqn_ve:5t no more than 30% of its Managed Assetsm sec~nties of non-U.S. issuers,includingno more ::~k~s~;~;Managed Assetsin securitiesof emerging Thefund ~~fiily(!Sfup_to 10% of its ManagedAssets in non-U.~.d?llllfdenominatedsecurities.The Fund expects to use denvat1ve mst~ments in, an effort to hedge substantially all of the currency mk associated with non-US denominatedinvestments; do11ar · · 11Ief1Jfldwill not i~vC.s(insecuritieswith an cffccth·ematurity ?~t~ (ClfJ11aJ1dJl1()9' re,d~mptiondate for preferredstock) 1r1g;beyon~ MlclY. ~~t~e<1 ~.2021. "Effectivematurity"takesinto nd othertypes of debt rotherfeatures ·.~~ ~IKI',VW Jli(in\•Cst incommonequity securities.This J><>1.'f}'~~.··.·•.~o.·• \\P.ply.? shares of other inYestment ff~f~jil!-5.·.•.·•·••·· iii••·•··•\.•.•.•····· ..·...•.••...•... ·. ·~f?!;fJt~pcilifil!-5 ~~plyp~ly at the time of any new investment Belowin,·estmentgrade securitiesare generallysecuritiesrated BB+/ ~Jl~{}r_ loy.·yrnt ;llle.tifne{}f inv.~~enL For purposesof the im·estment 13ti().0~ 1rl tfiisPfl)Spectus,..~ s~curity'sratingis detenninedusingthe lt'!11 middlr ra.tmg()f1foodfs lnve,,;torServices,Inc. ("Moody's"), St~art1 ~ Poor's RatingsServi~es,a Standard& Poor's Financial Sery1c~LLC business("Stand~ & Poor's") and FitchRatings a part of f11e.J:?Itfolioand cas~ flow management assets (and thefeforeits NAv{tte~ds to s~t asidt;and ~lain in its net and posSiblyall or a J)Clrtion of. po . on ?f 1ts n~ m,·estmentincome, return Original NAy to shaieh~:~e~~s, m purs~Jt?fits o~ject!veto reduce the amountsotherwise availab]pon te~u.natt~n.~1s will st di• ~b~tionpn~r lo the liquidationof the Fund. In addition th:~ nd s Im estmentm shorter term and lower yielding securit' • .' . Tennination Date, ma reduce ~es: especia~lyas the Fund nears its monthly dividends du~ng the m~:t~ent mcomeand, therefore,the the extent that lower distr'b t'pen c osely prior to tennination.To Common Share price sue~ ~n may negatiyeJyimpact cause a reduction of Common;~ yie_ldand monthly dividendsmay distribution to Shareholderswill b~ pnce. The Fund's final Tennin3tion Date and initial im·es~o:;ddupon_theFund's NAY at the . n any mve.storsthat purchase Common Shares aftCrth · · their purcha5~price diffee:=~:o~u~f this offering_(~articularlyif price or Original NAV) . . g Y from the ongmal offering investment.Rather than :,:~~vet~~s than their ~riginal .. Fund may also distribute th . gd . proceeds of its secunt1es,the s m one or more distributions prior to the final liquidati e expenses to increase wheon, w IC maycause the Fund's fixed attributable to Cotnmon expre.ssedas ?percentage net assets ares.Depelldmg upon a vanety of factors including th6 rfo ove~th~life of the' Fund, the amc!:nt dr;:~~e1 :::r=~~~rrtfolio than Original NAY. ers may be s.1gmficanl1y less t tr! :::t~ :f vr;::r S; o! 12 Because the Fund ,,ill invest in below investment grade securitie.s,it may be exposed to the greater potential for an issuer of its securities to default, as compared to a fund that invests solely in investment grade securities. As a result, should a Fund portfolio holding default, this may significantlyreduce net investment income and, therefore, Comrr1onShare dividends; may prevent or inhibit the Fund from fully being able to liquidate its portfolio at or prior lo the Termination Date; and may severely impact the Fund's ability to return Original NA:Vto CommonShareholderson or about the Tennination Date. See'''-Debt SecuritiesRisk" and "-Below Investment Grade Risk'' belo\f. Eami11gsRisk. The Fund's }imited term may cause it to inv~t in' lower yielding securities or hold the proceeds of securities sold near the end of its tern\ in c.ish orca5h equivalents, which may adversely aff~ctthe performanceof the Fund or the Fund's ability to maintain its dividend. i Lew rage Risk. The use of leverage creates special ri(ks for CommonShareholders,including potential interest rate risks and the likelihoodof greater volatility of NAY and market price of, and distributionson, the Common Shares. In shorter investment horizons or in periods of economic downturn or higher volatility, leverage will typically magnify downside outcomes. The Fund will pay (and Common Shareholders will bear) any costs andhpenses relating to the Funds' use of leverage, which will result in a redtictionin the NAV of the Common Shares. Nuveen Fund Advisors may, based on its assessment of market conditions,increase or decrease the Fund's level of leverage. Such changes may impact the Fund's distributionsand the valuation of the Fund's Common , Shares in the ~econdarymarket. There is no assurance that the Fund will utilize leverage or that the Fund's use of leverage will be successful.Furthennore, the amount of fees paid to Nuveen Fund Advisors and Nuveen Asset Management for investme'ntadvisory services will be higher if the Fund uses leverage because the fees will be calculatedbased on the Fund's Managed Assets-this may create an incentive for Nuveen Fund Advisors to leverage the Fund or increase the Fund's leverage. See '1.everage." Issuer Le••elRisks Below investment Grade Risk.· Securities of below investment grade quality are regarded as having speculative characteristics with respect to the issuer's capacity to pay interest and repay principal, and may be subject to higher price volatility and default risk than investment grade securities of comparable tenns and duration. Issuers of lower grade securities may_behighly leveraged and may not have available to them mqro traditional meihods of financing. The prices of these lower grade securities are typically more sensitive to negative developments,such as a decline in the issuer's revenues or a general eCononiicdownturn.The secondary market for lower rated securities 13 " may not be as liquid as these d securities, a factor which rnayc~:v:/1~r~et for~1orc highly rated ability lo dispose of a particular sccurit;. \ erse e ect on the Fund's !fa ~low in_vest_ment grade securitygoes into default or enters ankruptcy,it_nughtbedifficult to sell that sec~rityin' a timely manner at any reasonable price. 1:Jefaultedand Distressed SecuritiesRisk Th , . m any securities of an issuer that is in d f: I e Fun~ n:iaynot mvest or insolvency proceedin s (such . ~ au tor that ts m bankruptcy as "defaulted securities"3 Howe ~ecunt1e~are commonlyreferred to that at the time of purch~e are n\:~• l~e:und may hold investments bankruptcy or insolvell.c o_m e ault or involved in Moreover, the Fund may i::~dmg~, ~ut may lat?r beco~~ so. rated CCC+/Caal I y to a hm1tedextent m secunhes either subadviser to be ;; :v~~~eunrat:d but judged by the Fund's 0 0 ~~~~it• ~:~~ng rated securities, allhoug~ not in !a;~~'~a? of ~h.~selow1 issu~r_i~experiencingfinancia!difficulties~r'::~~ ~1:~~: future d:r:i1:::i~h s;:h securi~es would p~sent a substantialrisk of additiona! expenses, to 1t::~::nt ~ ~::~~~~c~; !::~es, inc,luding a default lil the payment of principal or interest o reco,er:_upon any reorganizationor liquidation . ~ those secunhes. In §e<:~1 1Y, ~~F~ncl ma.ylose its en~~::~g :Jatmg to a portfoJ_io t()a~ceptcashorsCCuritie,s.· .th I . m ntormaybereqmred }11~•~1A1e11!..~fil~ltC > ··. ·.··<·. ;1Jq&~l/,f,§e~i1riti~s)ist.<1nvestmentsin securities f -U 1 :1~t~~aWJr: .s. itti!ria1.cs~s,_:including: less publicly ;va~~a~le dj~c1os4~Orfl_c~Otn°t?ng ~~~in~~ or mar~etsdue to ~essrigorous < > .· · • · or regu atory practices; many non· US rriilrke : ,::adv;~ ~ff;~;;:d!~~t:::t;~~d and more volatile; potential on tlie_VaJuebfthefund's investme:~~ee:::~!~;:tes or controls countnf:SlllllYgrow at slower rates than ex of non•l!.S. peeled or may expenence a downturn or recession· the i diplomatic events· pos~ible mfact ofronomic, political, social or imposed b ' ~eiz~rc-~a company's assets; restrictions to make [ non~U.S.c~un!nes hm1tmgthe ability of non-U.S. issuers fi . . p ymen1:> of pnnc,pal and/or interest due to blockacresof n::~i~c~rrency exchanges or otherwise;and withholdinga~d other pro'(Jo~n~::: ;ea~x~:~1~: the Fund'~ return. These risks are more its assets in companies Jocat~~c Fund m~ests a significantamount of Fund invests in securjties of iss~~~ni::::;:~d RsIG HsTs I •A I ""'I r,. IE "'\ l VE !oa~:~~lent that the Emerging ~larkets Rlsk. Risks ofin. . . .. matets issu:n: include: smaller mark:::;ri~~=~~~~~: e~~rging mar. ets, which may suffer periods of I • , . . . . . u? ies price volatility· restrictions o f, • f; atne 11Itqmd1ty; s1gmficant • , ·· ' n orc1gnmvestment·and possible 1 on ~:atdaHon ofinvestmentinconw ;.dcapitaL m addition, foreign investors may be required to register the proceeds of sales; a'tidfuture economic or political crises could lead to price controls, forced mergers, er.propriationor confiscatory taxation, seizure, nationalization,or creation of government monopolies. Certain emerging markets also may face other significant internal or external risks, including a heightened risk of war, and ethnic, religious and racial conflicts. In addition, governments in many e·ll}ergingmaiket countries participate to a significant degree in their ecoh0miesand securities markets,·whichmay impair investment and eco'hqmicgrowth, and which may in tum diminish the value of the companiesin those markets. Secun)y Le••tl Risks · Debt Sernrities Risk. Issuers of debt instruments in which the Fund m'ayinvest may default on thei~obligations to pay principal or interest \','hendue. This non~paymentwould result in a reduction of i~CO/Jle to the Fund, a reduction in the value of a debt i'nstrument experie,ncingnon-payment and, potentially, a decreasl in the NAV of the Fund, There earibe no assurance that liquidation of collateral would s~tisfythe issuer's obligation in the event of non-paymentof scheduledinterest or principal or that such collateral could be readily liquidated.In the event of bankruptcy of an issuer, the Fund could experiencedelays or limitations with respect to its ability to Wllize the benefits of any collateral securing a security. To the extent that the cre9it rating assigned to a security in the Fund's portfolio is downgraded,the market price arid liquidity of such security may be adverselyaffected. When market interest rates rise, the market value of such instrumentsgenerally will fall. Interest Rate Risk. Generally, when market interest rates rise, bond prices fall, and vice versa,)nterest rate risk is the risk that the debt securiti~ in the Furid's,portfolio will decline in value because of increases in tTlarketinterest rates. As interest rates decline, issuers of debl securities may prepay principal earlie~rthan scheduled, forcing the Fund to reinvest in lower-yieldingsecurities and potentially reducing the Fund's income. M interest rates increase, slower than expected principal payments may extend the average life of securities, potentially locking in a below-marketinterest rate and reducing the Fund's value. In typical market interest rate environments, the prices oflonger-term debt securities generally fluctuate more than prices of shorter-term debt securities as interest rates change. As the Fund initially will im·est in intermediate-tenn securities, the Common Share NAV and market price per share will fluctuate more in response to changes in market interest rates than if the Fund invested primarily in short-term se-Curities, These risks may be greater in the current market environmentbecause, as of the date of this prospectus, certain interest rates are at or ribarhistoric lows. If the Federal Reserve raises the federal funds :rate,there is a risk that interest rates will rise, which will likely drive down bond prices. DOL-17-0281-B-000154 15 ,, DurationRisk. Duration is the sensitivity, ex.pressed in years, of the price of a fixed-income security to changes in the general level of interest rates (or yields). Securities with longer durations tend to be more sensitive to interest rate (or yield) changes than securities with shorter durations. Duration differs from maturity in that it considers potential chrmges to interest rates, and a security's coupon payments, yield, price and par value and call features, in addition to the amount of time until the security matures. The duration of a security will be expected to change o\'er time with changes in market factors and time to maturity. Reim•e.stme11! Risk. Reinvestmentrisk is the risk that incomefrom the Fund's portfolio will decline if and when the Fund im·ests the proceeds from matured, traded or called bqnds at market interest rates that are befowthe portfo~io'scui'rcntearnings rate. A decline in income could affect the Common Share•~(lla.rkftprice, NAY nnd/oryour oyerall rettims. As the average rna~pril~'. C?f the Fund's portfolio shortens, the Fund wiJIreinvest in slto~~iJrtaWritysecurities at market interest rates that may be lower than at tll~pund's inception.As a restilt, the Fund's income and distributionsrnaY,~line over the tcnn of the Fund. The likelihoodof this risk may increase as the Fund approachesits TerminationDate. Call Risk. The Fund may invest in securities that are subject to call risk. Debt and preferred instruments may be redeemed at the option of the issuer, or "called," before their stated maturity or redemption date. In general, an issuer \viii call its debt or preferred instruments if they can be refinanced by issuing new instruments which bear a lower interestor dividend rate. The Fund is subject to the possibility that ~UJing~riods of fallittg interest rates, an issuer will call its high yi~l~'.ipg~~blClrPrc~e~ instruments.The Fund would then be force~ t() in\'est the unanticipated proceeds at lower interest or dividelld rates, resulting in a decline in the Fund's income. Preferred SecuritiesRisk. Generally, preferred stockholders (such as the Furtd, to the extent it inYestsin preferred stocks of other issuers) have no voting rights with respect to the issuing company unless preferred dividends have been ju arrears for a specified number of periods, at which time the preferred stockholders may elect 11 number of directors to the is.suer's board. Generally, once all the arrearages have been Paid, the preferred stockholdersno longer h,we voting rights. In the case of certain taxable preferred stocks, holders generally have no voting rights, except (i) if the issuer fails to pay dividends for 11specified period of time or (ii) if a declaration of default occurs and is continuing. In such an event, rights of preferred stockholders generally would include the right to appoint and au_thorize11trustee to enforce the trust or special purpose entity's rights as a cm:litor under the agreement with its operating company. In certain varying circumstances, an issuer of preferred stock may redeem the securities prior to a specified date. For instance, for certain types of preferred stock, a redemption may be triggered by a change in U.S. federal income tax or securitie.slaws. ill with call provisions, a redemption by the issuer may negatively impact the return or'the security held by the Fund. Senior I.nan Risk. Senior loans hold the most senior position in the capital structure of a business entity, ll!e typically secured with specific collateral and have a claim on the assets and/or stock of the issuer that is senior to that held by subordinated debt holders and stockholders of the issuer. senior loans that the Fund intends to inrest in art usually rated below investment grade, and share the same risks of oilit;:rbelow investment grade debt instruments. Alth~gh the Fund may invest in senior loans that are secured by specific(collateral,there can be no assurance the liquidation of ~uch' collatertll would satisfy an issuer's obligation to the Fund in the event of issuer default or that such collateral could be readily liquidated under such circumstances.If the terms of a senior loan do not require the issuer to pledge additiorialcOllateralin the event of decline in the value of the alre.1dypledged collateral, the Fund w~). be exposed to the risk that the value of the collateral will not at all times equal or exceed thCamount of the issuer's obligations under the senior loan. j In the event of bankruptcy of an issuer, the Fund could also experiericCdelays or limitations with respect to its ability to realize the·benCfitsof any coll:itenilsecuring a senior loan. Some senior loans are subject to the risk that a court, pursuant to fraudulent conveyance or other·similar laws, could subordinate the senior loans to pnfsently existing or future indebtedness of the issuer or take other action detrimental to lenders, including the Fund. Such court action could under certain'circumstancesinclude invalidation of senior loans. Foreign Currency Risk. Because the Fund may invest in securities denominated o!'quoted in currencies other than the U.S. dollar, changes in foreign currency exchange rates may.affect the value of securitie.sheld by the Fund and the unrealized appreciation or depreciation of investments. Currencies of certain countries may be \'olatile and therefore may affect the value of securities denominated in such currencies, which means that the Fund's net asset value could decline as a resuh of changes in the exchange rates between foreign currencies and the U.S. dollar, In addition, certain countries, particularly emerging in.i.rketcountries, may impose foreign currency exchange controls orother restrictions on the transferability, repatriation or cOnvertibilityof currency. Illiquid securities are securitie.sthat are not readily marketable. These securities may include restricted securities, which can not be resold to the public without an effective registration s_tatementunder the Securities Act of 1933, as amended (the "1933 Act''), or, if they are unregistered, may be sold only in a privately negotiated transaction or pursuant to an Restricted and Illiquid Securitfrs Risk. 17 16 ,, exemption from registration. The Fund may not be able to readily dispose of such securities at price.sthat approximate those at which the Fund could sell such securitie.sif they were more widely traded and, as 11.result of such illiquidity, the Fund may have to sell other investments or engage in borrowing transactions if ne.;essary to raise cash to meet its obligations, Linµted liquidity can also affect the market price of securities, thereby adversely affecting the Fund's net asset value and ability to make dividend distributions.The financial markets in general have in recent years experienced periods of extreme secondary market supply and demand imbalance, resulting in a loss of liquidity during which market prices were suddenly and substantiallybelow traditional measures of intrinsic value. During such periods,·some securities could be sold only at arbitrary prices and with substantial losSes.Periods of such market dislocation may occur ngain at any time, Derfratfres Risk, including the Risk of Swaps. The Fund's use of derivatives involyes risks different from, and possibly grtater than, the risks associated with investing directly in the investments . underlying the derivatives, If the Fund enters into a derivative transaction, it could lose more than the principal amount invested. The risks associatedWith.~erjyativestransactions include (i) the imperfect .correlation'beh\'CC,ntlle value of such instruments and the underlying assets, (ii) the possi_blcdefault of the oounterpartyto the transacti_on,(iii) illiquidit)' ~Jf~e derivative instruments, and (iv) high volatility losses caused by unanticipated market movements, which ~ potentially unlimited, AJt~oughboth over.the-counter ("OTC") and exchange.traded ~etjvatives,markets may experience n lack of liquidity, OTC non-standaajize;dderivative transactions nrc generally less liquid than exchange-traded insti;uments.The illiquidity of the derivlltive.smarkets may be due to various factors, including Congestion,disorderly mll!kets, limitations on deliverable supplies, the p3rticipatiou of speculators, governmentregulation !lnd intervention, 3.ndtechnical and operational or system failures. In addition, daily limits on price fluctuations and speculative position limits on exchanges on which the Fund may conduct its transactions in derivati\'e instruments may prevent prompt liquidation of positions, subjecting the Fund to the potential of greater losses. Whether.the Fund;s _useof derivatives is successful will depend on, among other things, Nuveen Fund Advisors and Nuveen Asset :Managementcorrectly forecasting market circumstances,liquidity, market values, interest rates and other applicable factors. If Nuveen Fund Advisors and Nuveen Asset Management incorrectly forecast these and other factors, the investment perfonnance of the Fund will be unfavorably affected. In addition, there can be no assurance that the derivatives investing techniques; as they may be developed nnd implemented by the Fund, \vill be successful in mitigating risk or achieving the Fund's investment objectives.The use of derivatives to enhance returns may be particularly speculative. The Fund may enter into debt-related derivative instruments, including interest rate swaps, as well as other types of derivatives. Like most derivative instruments, the use of swaps is a highly specialized activity that involves investment techniques and risks different from those associated wilh ordinary portfolio securities transactions. In addition, the use of swaps requires an understanding by Nuveen Fund Advisors and Nuveen Asset Management of not only the referenced asset, rate or index, but also of the swap itself. TI1e deJ;ivativesm'arketis subject to a changing regulatory environment. It is possible that regulatory or other developments in the derivatives mar~et could adversely affect the Fund's ability to successfully use derivative instruments. Other ·' Risks Recent Market Circ11msta11ce5. In the recent past, the debt and equity capital markets in the United States were negatively impacted by significant write-offs in the financial services sectoflrelatingto sub-prime mortgages and the re-pricing of credit risk fn.the broadly syndicated mark.et,among other things. In addition, domestic and international markets have experienced acute tunnoil due to a variety of factors, including economic unrest in Italy, Greece, Spain, Ireland, Portugal and other European Union countrie.s.These events, along wi~ the d0\'1'.ngrade to the United States credit rating, deterioration of the housing market, the failure of major financial institutions and the resll\ting United States federal government actions (as well as the actions of many governments or quasi-governmental organizations throughout the world, which responded to the tunnoil with a variety of significant fiscal and monetary policy changes) led in the recent past, and may lead in the future, to worsening general economic circumstances, which did, and could, materially and adversely impah the broader financial and cree~~tcn~C{J~ .~n~tlt~'f~fTi~.,~o_n_l).itj! ~eferred,for one peri9(1of up to six monthsby ~ Yoleof one pe~od of up to ~ixmonths without the Board of'f111stees,']"heFunftterm may n{)t.l>e exte,n_~e~ furtJ:ier ~lJ~t~ert()ext~ndth~_Fund'stenn beyo:nd.tlif Termin_ati()n Date'.the Board of l():s~tl theput1d's assets in a time frame consistent with tenninationdue to :1Joardof Trusteesmay detenpine tenuatingcircumstances'.Addhi:°nally,Ute !l ilim,asonabl.eto believe that, with an cxtensio_n, _theFun,fs remaining assets\';ilfaPP,reti;te,and genCri\teinco~1ein an amollnt that, in tlle ~ggregate,is meaningfulrelatiYeto _thecost and expense of con,tinuingthe operati()nof the Fund. ~an The Fund seeks to return the Original NAY to.Common Shareholdersoil or about the Tem1irtationD~teby utilizing a range of _portfolioand cash flow managementtechniques,Whichi_ncludeslimiting the effective maturity of its portfolio such that the longest maturity ~orr11andatory redemptiondate for preferredstock) of any securitydoes not extend beyond May 21, 2021 and the portfolio's average maturity declines over time. Although the Fund has an inyestment objecth·e of returning Original NAV to Common Shareholders on or about the Termination Date, the Fund may not be successful in achieving this objectln; The return of Original NAV is not an·express Orimplied ·guar·anteeobligation of the Fund, There crui.be no assurance that the Fund will be able to ret\lm Original NAV to shareholde[s,and such return is not backed or otherwise guaranteedby Nuveen Investmentsor any other entity. DV e •d 1,\ ! it L :, l , conditi G The Fund's ability to return Original NAY to Common Shareholderson or about the Tennination Date will on arl:et the success oLvarious:nfolio and cash flow managementtechniques.The Fund intends to pay most, but likely not all, of its net income to shareholdersin monthly income dividends.The Fund also intends to pay a distribution of net realized capital gains once per year. However, in seeking to achieve its investmentobjective to return Original NAY.upontermination,the Fund currently intends to set aside and retain in its net assets (and therefore its NAY) a portion of its net investmentincome, and possibly all or a portion of its gains. This will reduce the amountsotherwise available for distributionprior to the liquidation of the Fund and the Fund may incur taxeson such retained amounts, which will reduce the overall amounts that the Fund would haye otherwise been able to distribute. Such retained income or gains, net of any taxes, would constitute a portion of the liquidating distributionreturned tOinvestors on or about the Tennination Date. In addition, the Fund's investment in shorter term and lower yielding securities, especially as the Fund nears its Termination ~:in~~~n~duce investment income and,itrefore, the monthly dividends during the period prior to The Fund's final distribution to shareho\derswill be based upon the Fund's NAY at the TerminationDate and initial investors and any inyestors thal purthase Common·shares after the completion of this offering · (particularly if their purchase price differs meaningfullyfrom the original offering price or Original NAV) may receive more or less than their original investment.It is likely that some portion of the income earned by the Fund and customarily paid as an incomedistribution wil1 be retained and paid as part of the final liquidating distribution. The Fund will make a distributionon or about the TerminationDate of all cash ra~ed from the liquidation of the Fund's assets at that time. However, if the Fund is not able to liquidate all of its assets prior to that distribution (for example, because one or more portfolio securities arein workout or receivership on the TerminationDate), subsequent to that distributionthe Fund may make one or more small additional distributions of any cash received from ultimate liquidationof those assets. The.Fund ex~ts that the total of that cash distribution and such subsequent distributions,if any, wiUequal the Fund's NAV on the Tennination Date, but the actual total may be more or less than that NAY, depending on the ultimate results of those post-Tennination Date asset liquidations.Depending upon,a variety of factors, including the all-in, after tax perfonnance of the Fund's portfolio over the life of the Fund, and the_amountsof income or gains retained by the Fund instead of being paid out as income dividends or capitttlgain distributions O\'erthe life of the Fund, and the amount of any taxes paid on those retained amounts, the amount distributed to shareholdersat the termination of the Fund may be less, and potentially significantlyless, than the Original NAY, or their original investment. See ''RisksFive-YearTcnn Risk.» Interest rates, including yields on below investment grade faed-income securities, tend to vary with maturity. Securities with longer maturitiestend to have higher yields than otherwise similar securities having shorter maturities. B~cause the Fund portfolio's average effective maturityis genei:allyexpect~dto shorten ns the Fund approachesits Tennination Date, ultimately approachingzero, shareholderscan expect that the average portfolio yield will also fall as the Fund approachesthat Termination Date. Consequently,the Fund's dividend rate may need to be reduced over time as the yield on portfolio securitiesdeclines as they ii.resold and either not replaced or replaced by lowering-yieldingsecurities; as the portfolio is liquidated prior to and in anticipation of the TerminationDate, as described above; and as potentially increasing amounts of net earnings of the Fund may be retained by the Fund as a means of pursuingits objectiveof paying the Original NAV on or about the TerminationDate. PORTFOLIO COMPOSITION AND OTHER INFORMATION The Fund's portfolio will be composedprincipally Orthe following im·estments.More detailed infonnation about the Fund's portfolio investmentsare contained in the SAi under "Portfolio Composition." High Yield Securities High yield securities or 'Junk bonds'' that are below investment grade involve a greater degree of risk (in particular, a greater risk of default) than, and special risks in addition to the risks associatedwith im·estment grade securities. Under rating agency guidelines,medium- and lower-ratedsecurities and comparable unrated 27 DOL-17-0281-B-000157 ,, securities will likely have some quality and protective charocteristics that are outweighed by large uncertainties or major risk exposures to advcrs.econditions. l-.kdium- and lower-rated securities may have poor prospects of ever attaining any real investment standing, may have a current identifiable vulnerability to default or be in default, may be unlikely to have the capacity to pay interest or dividends and repay liquidation preference or principal when due in the event of adverse bmincss, financial or economic conditions, and/or may be likely to be in default or not current in the payment of interest, dividends, liquidation preference or principal. Such seCurities are c()n5idere:5tmten:s~ ~f e of returning Original NA~ lnconsisten_t"".1~h mnke pursuing the Fund's investmentObjectiY tempomnly, use altemah~e tech~tques pn1?anly its shareholders. At such times Nuveen Am\ Management may, periods or dun~g ~efens1ve tempo~ During assets. Fund's designid to l"Cducefluctunlions in the value of the Shares are first be:tngmv~ted an~or ~e Fund s the period when the net procttd s of this offering of Common its m~·e-stment from deviate mar Fund the ! termin~tion Fund's the !liSets are being liquidated in anticipation of up t? 100~ of_its M~nag~ A.ssetsm shortpolicies and objcc1ives.During such periods, the Fund mar _Invest e·, or longmtermedml ~hort-, m m~·est may or secunues short-term term investrrients, including high qunlity, such techniqueswill be successful. term U.S. Treasury securities. There can be no assurance th31 At Initlal Portfollo Composition yafter the initia~investmentof the Based on current market conditions,the Fund anticipatesthat immediatel of at_least 90% of portfolio")will beco~~ proceedsfrom the offeringof CommonShares, its portfolio {"initial m certatn segmc_nts hting unde-rwei~ sector anticipates Fund its Managed Assetsin high yieldcolJX)ralebonds. 1be be composed of approximately5% 10 10% or its of the energy market,and anticipatesthat its initialportfoliowill 20% to 30% of its Managed Assetswill be in M:m~g_edAssets in energy holdings.Additionally,approximately lo 10% of its Managed Assets in securities of cmerEing sccu~l•e~of non-U.~._com~i .e~, with api_,roxima1ely_O% enstics are based on currentmarket conditionsand lhe markets~ssuers. Anlic1pat~ m1tial portfolio chnr.ic_t the Fund may not be able lo im·est its ?f the portfolio learn.~umnt mad.el condilionsmay change and ~A_P:CClatmns (expectedto be completedapproximatelythree 1mt1alportfolioas plann~. Immedmtelyafrer the initial inYest-up .:iilocationsmay vary o\'cr portfolio Fund's the sooner), 1 possibly bul offering, this or ~ on1hsa~lerthe ~mplet100 this prospectus. time consistent with the Fund's investmentpolicies described in Porlfoll o Turno, ·er with the objectiv_e of seeking profits from short-term . It is not the Fund's policy to ~ngage in ~actions trading when Nu,·cen Fund Advisors or Nuveen tradmg'.,Hm\·e,·er,the ~und may engage in acth-e and frequent economic and market circumstances,in the best prevailing of ~ sset Mnnagement~heves such trading is, in,light predict its annual portfolio tumm·er rate, lt is mterests of the Fund ll shareholders. Although th1e Fu~d cannot Frequent lrading also increases transaction ces. c1rcumstan nortnal generally_not expcclcd to e,;cecd 25% under may result in the realization of net short-tenn cos~, wh~chcould detri,ctfrom the Fund's performance, and rs, will be treated as ordinaryincome. Shareholde Common Fund which, when distributed to ;: f:~J: ~:~l~~!m: I i LEVERAGE ·tial to Produce a high le\•el or cumnl The Fund anticipatesusing lever.ige 10 seek lo enhance its po1e:n • CommOnShiireholderson or about the Tennination ;;:~e and to return the OriginalNAV per common share to sand (b) Preferred Shares or other • The Pu~~ may utilize lhe following fonn: ofle, ·cragC:(a) Borro,Ving after the proceeds of this offering have been senmr s:cunt~es. The ~und docs not in!end lo use leverage until objectives.' · · substanually tnVC5tedm accordnnce with the Fund's im·e.stment Prtferred Shares or other senior sccuritiC5to The Fund r_nayuse le,·eragethrough Borrowings or by issuing persist, the Fund intends initially lo use . the extent per_imttedby the 1940Act. If current market conditions 25% of the Fund's ManagedAssets. s an amount cql!al to approx,im_:itely leverageobtat~ed throug~ Borrow_ingin in market conditions, and its leverage ratio ~ e Fund ma} reduc_eor inc~ase its le\'erage bJ.Sed upon changes value of the Fund's holdings. The Fund does not will also ~ary from time to time based upon variationsin the Shares within famonths after the presenll! intend ~oemp!oy le\'erage through the issuance of Preferred detennines it to be in the best interests of completion ofth1s offenng, bu~~ay do so if the Board of Trustees emergency or other purposes a5 lcmporary, :;~:~::arsA.!~. add11Jon,the Fund may borrow for t:: ~:l1 rate, the Fund anticipatesthat it generally . Although ~heinterest On Bonowings may be at a fixed or floating of distributionsreceived from the Fund's will bc.b~d on short-term adjuslable rates. So long as lhe rate Fund expenses, exceeds the then current ~rtfoho 10\'estments purchasedwith Borrowings, net of applicable of Borrowings will generate more cash flow than '"!crest rate on any n ~n:owings,the in\'estment of the proceeds flow will be available to pay higher distributions will be needed 10 make interest paym_ents.lf so, the excess cash in,·estments However,tfthe rate of cash flow received from the Fund's portfolio lo Common ~hareholdc_rs. is less Utanthe then current interest mte on an purchas_edwith Borrowmgs,net of applicable Fund expenses, on Borrowing;' and payments interest make to assets Fund other utilize to quired D?rrowmg.s, th: Fund may be ~ distribution·to Common Shareholders. Ihis may result m reduced net mves1mentincome available for historically)ow short-term to intermediate?iven lhe current economicand debt market environmenl with rate swaps, with terms that may range from one term mte~t rates, the Fund ~ay use dcriv~th•essuch as interest p:iymentand other expenses (commonlyreferred lo five yea.rs, lo fix lhe rale paid on Borrowings after any swap 37 36 j"':I ~--~-r ,,--• -- - ,.- - ,, i :1 t,, I leverage.The interestrate swap p;ogram, if to as the "oil-in" rate) on all or a significantportion of the Fund's costs and thereby enhance distributionsover an implemenled,will seek to nchievepotentially lower le\·erage rreturns if short-lenn interest rates were to extended period. This technique would enhance Common Shareholde over the term of the swap. This techtuque, rise over time to exceed on average 1he aJl-in fixed interest rate costs arc likely to be higher than benchmark however, will add to leverage costs initially (because the swap o,•erall leveragecosts (ap.dtbereby n:duCe adjuslablc short-tcnn rates in the initial period) ond would increase such time period in which short-term interest distributions to CommonShareholders)O\'Crthe entirely of any erage for tha11ime period. Je\' on paid rate inleresl fixed rates do not e,:,ceed on average the all-in cash or liquid securities having a value al The Fund maintainsin a segregated account with its custodian transaction, marked-to-market daily. The Fund lea.stequal to the Fllnd's net payinent obligationsunder any swap l that exceeds the oulstanding amount tlmouo l ion:i. t nunt Fh'e~Year Term Risk Because the o.ssetsof the Fund will be liquidatedin connection with its termination, the Fund may be re-quiredto sell portfolio securities wheri it otherwise would not, including at times when mark et conditions are not favorable, or at a time when a particular security is in default or bankruptcy, or otherwise in severe dislress, 41 40 which may cause the Fund to lose money. Although the Fund hns an im·cstment objectiveof returningOriginal NAV to CommonShareholders on or about lhe Tennination Date, the Fund may not be successfulin achieving this objective. The relum of Original NAV is not an ~xpress or implied guaranteeobligotionof the Fun~. There co.nbe no assurancethat the Fund will be able to return Original NAV Co shareholders, and such n:Com 1s not backed or otherwiseguaranteedby Nuvccn lnvestments or any other entity. 'TheFund's ability to relum Original NAV to Common Shareholders on or about the TerminationDate will depend on market conditions,the presence or n.bsenceof defaulted or distressed securities in the Fund's portfolio that may pre,:ent those securities from being sold in n timely manner at a reasonable price (see- "Defaulted and DislressedSecuritiesrusk"), and various portfolio nnd cash flow managementtechniques.The Fund currently income,and intends to set aside and retain in its net assets (and therefore its NAV) a portion of its net inve.stn;ient possibly all or a portion of its gains, in pursuit of its objective to return Original NAV to shareholdersupon tennination.This will rt duce the amounts otherwise available for distributionprior to !he liquidation of the Fund and the Fund may ineur,tax~ on a~y such relained amount. In addition, the Fund's in\·~hne ~I in ~hoJ1er.'e~ ent mcome and lower yie1ding securities, espcc,ially as the Fund nears its Tern:iination Date, m~y re~uce 1nves_tm and, therefore, the monthly divideilds during the period closely prior to termination. To the extent that lower may dividends monthly and )'ield reduced such price, Share Common impact negatively may rates distribution cau~ a reductionof Common Share price. The Fund's final distribution to ,shareholders will be based upon the after Shares Common purchase that investors any and .stors invC initial and Date Tennination the at NAV Fund's the completion of this offering (particu.Jarlyif the!r pµrchase price djffer..meaningfullyfrom the original offering proceeds lt\e rein,:cs\iag than r_ e Ralh_ l. n lme. inves_ original their than_ less ei\•e; ~c may V) NA price or lhe_Original , di~tributions_prior to the final of its securities, the Fund may also .distribute the proceeds in one or m_ore liquidation,which may cause the Fund's fixed expenses to increase when expressed a.sa percentage of net assets nttributableto Common S~:;re~.rn:pt n~ing upon 11v3!ie,ty ~(foctorn, including the perfo~manceoflhc Fund's portfolioover _the life of the Fund and the amounts of inc_ome qr ga~ ret3:inedby the Fund instead of being p~id of any taxes p3:1d out as income dividends or capital gain distributions ovecthe life of the Fund, and the BfI\OUnt on lhoSCretain~ amounts, the amount distributed lo shareholders at the terminal.ionof the Fund m'ay be less, and poteqtiahYsignificant~yteSs than lhe Original NAV, or theiroriginalin ve.stm~nt. Be~usc th~ F~nd will invest in ~low in\'estment grade securities, it may~ exposed to the g~ter potential for a.nissuer of its .securities co default, as compared 10 a fund Iha( \m·_ests solely ~ninvestment grade securities. As a resull, should.a Fund portfolio holding default, th\s may signi~cantly ~uce net investment_income and, therefore,Co~ on Share dividends; may prevent or inhibit the Fu~d from ful,ly being able to liquidate its portfolioal or prior 10the Tcm1inn1ionDate; and may se\·crely impact the Fund's ability to return Original NAV to CommonShare~oldci-son or about the Termination Date. See "- Debt Securities Risk" and "- Below Jnve5tment QradeRisk" below. Earnings Rlsk 1be Fund's limited tenn may cause it to im·est in lower yielding securities or hold the proceeds of securities sold near the end of its term in cnsh or cash equivalents, which may ad\·~rsely affect the pcrforpunce of the FunI:>P!a' ial pmpos::ntity's rights as a creditor under the agreementwith its G s:::i:e, operating company.In certain varying circumstances an issuer of ref. rred ~on specified date. For instance, for certain types of ~referred stoc{ a e st~k may redce_mthe securitiesprior rovision~ aredemplt~nmaybe ~nggeredby a change impact the return of the security held by the Fund. P ' redemptton by the issuer may negatively ~ U.S. federal income I.a}; or securities laws. As Withcall Senior Lonn Risk Senior loans hold the most senior position in the ca • 1 . with sped fie collateral and have a claim o~Jhe assets a/dJa s:ru~tu~ ~fa busmess entity, arc typicaI!ysecured O th B ors oc t e Borrower that is senior to that held by subordinateddebt holders and stockholde usually rated below investment grade an:s~3.r¢ :h orrowe~-:enior loans that the Fund intends to invest in are • , e same ns ·s of other below investment grade debt instruments. t r Although the Fund ril.ayinvest in senior loans that are secured b . assurance the liquidation of such collateral would satisf a ' S~Jfic_ collateral, there can be no Borrower default or that such collateral could be readil yr B~rro\\er s obligation to the Fund in the event of ~~edunder such circumstances.If the temis of a senior loan do not require the Borrower to pledge add} already pledged collateral, the Fund will be expos~ t: :~ari;i tern] in the event of a decline in the value of the d l at the ~alue of the collateralwi!Jnot at all times equal or exceed the amount of the Borrower's obi" 1· iga tons un er the semor loan. /. iqr . In ~h_e e\'ent of bankruptcyof a Borrower,the Fund could also . . • • . t? its ab1htyto realize the benefits of ilny collateral seclirin a sen.oe~penence delay~or lumtaltons Wtthrespect nsk that a court, pursuant to fraudulent conveyanceor othe; simil~ r oan. Some sen10~loans aresubject to the presently existing or future indebtednessof the Borrower or take or laws, ~ould Sl'.bordmatethe senior loans to th the Fund. Such court action could under certa· . . er _actio~d~trimentalto lenders, including m circumst_ances mclude mvahdatton of senior Joans. Second Lien Loans and Unsecured Loans R~k S~nd lien loans and unsecuredJoans generall ares b" • senior_Joans,as discussed above. Because second lie~ loan~!:~:s!e same nsks nssociat:d w~Jh.inves4nentsin h ured Joansare lower m pnonty of payment to semor loans, they are subject to the additional ·sk th t th the loan, if any, may be insufficientto meet sch~~led a e cas flow .o~theBorrower and PfOpertysecuring ?bligati?ns of th~ Borrower.This risk is generally high~!}:C:!:::er givmg effe:t to the senior secured mte°:s.tm any specific collateral. Second lien loans and unsecured 1red loans, which are not backed by a security price volat~hty~an senior loans and may be less liquid. Second lien loan oan~are expectedJo have gfe¢tweensuch times and the close of the NYSE de4!msthat such be reflected in the computationof the Fund's net asset value unless Nu,·een Fund Advisors and refkcted events would materially affect the Fund's net asset value, in which case adjustmentswould be made may be based in Suchc'omputationpursuant to the fair valuation proceduresdescribed below. Such adjuslments and~ upon factors such as de,·elopments in non-U.S. markets, the performanceof U.S. sccuri1iesmarkets ~dv1sors performanceof inslrun~enlstrading in U.S. markets that represent non-U.S. securities.Nu\·eenFund foreign may rely on an independent fair valuation service in making any such adjlistments.The value of calculated. not is value asset net Pund's the when s~curiticsheld by the Fund may change on days Fund If a price cannot be obtained from a pricing service or other pre-approvedsource, or if Nu,·een market but Advisors deems such price to be unreliable, or if a significantevent occurs after the close of the local al its fair valued be will instrument portfolio a calculBted, is value prior to the time at which the Fund's ncl asset Fund value as determined in good faith by the Board of Trusteesor persons acting nt their direction.Nuveen deemed be may price a example, For circumstances. ice is unreliable in various AO~j or! aY,de ennine,tiiat:~ J1 l:i 58 day's price by unreliable ifit has not changed for an identified period of time, or has changed from the previous materially more than a threshold amount, and recent transactionsand/or broker dealer price quotations differ from the price in question. the prices The valuations for fixed-income securitiesand certain derivative instruments are typically quotations or supplied by independentthird party pricing services, which may use market prices or broker/dealer mature in a variety of fair valuationtechniquesand methodologies.Short-term fixed-income securitiesthat will reflect an not would method this using that determined is it unless cost, 60 days or Jess are valued at amortized on prices investment's fair value. The valuationsoh:ertain fued-income·securitics will generally be b.l5ed ~fthe e.i.rlier do sing time oft.~e markets on which they prima_rily trade, unless n significant event ~:e:i::!: , The Board of Trustees has ad~led valuationproceduresfor:lheFund and has delegated 1he day-to-day to Nu\•een Fund Advisors' ValuationCommitlee. All fair value responsibility for fair value determinll.tions of Trustees.As determinationsmade by the ValuationCommitteeare subjectio review and ratificationby the Board e,;pectto a geneml principle,lhe fair ,•nlue of a portfolioinstruffient_is the amount that an Ownermightreasonably factOrsand analysismay be consideredwhen determiningfair receive upon the instrument's currentsale. A rarlgc_o~ fair Howe\'er, ne\\rs. specific issuer and/or ~nsiderntions credit value, includingrelevantmarketdata, intcrt.strates, instrument valuationin\•okes subjecti\·ejud gmentsnnd it lSpossible that the fair value detennined for a portfolio irutrument. that of sole the upon realized ~ _ may be materiallydifferentfrom the value that C?uld DISTRIBUTIONS 10 Commencingwith lhe Fund's first dividend, the Fund intends to pay a regular monthly income dividend · The Fund expects to peelare its initial Common Share distribution within 30 days Common S_hareholders. day of the following the completionof this offering, and to pay that distribution on or o.boutthe first business market on depending offering), this of completion the next month thereafter (upproximately45 days from conditions. inte'nds For the purpose of pursuing its im·cstmentobjecti\'e of returning Original NAY, the Fund currently until the to retain II portion of its net investmentincomebeginning with its initial distribution and continuing the Fund final liquidation distribution.The Fund also may retain a I)Ortionof its gairu. The extent to which amount r.o retained, will depend on prevailing mm.et condi1jons,ponfolio retains income, nndthe cum11lali\'e any defaults, turnover and reinvestment,and whether the Fund's below investment grade portfolio experiences to the net of recoveries, in excess of any potentiBIgains..that may be realized over the Fund's term. Adjustments factors, the amo.unts of in~ome retained and the resultingdistribu,ticmrate wi)I take jµto ~ccount, among other The retention. income of absence the in Dale then-current projections of the Fund's NAVon the Termination for declines in income over Fund anticipates that the possibility of some credit losses combined with the J)Otentia.1 likely result in the term of the Fund, asthe duration and weighted average maturity of the _portfolioshorten, will of these successivereductions in distributioruover the five-year term of the Fund. The timing o.ndamounts rcduclions cannot be predicted. for the The Fund currently intends to distribute,at least annually, realized capital gains (if any). However, in the future to purpose of pursuing its investment objectiveof returning Original NAV, the Fund may also elect gain capital long-term of excess the is retain rather th3Jldistribute all or a portionof any net capital gains (which corporate over net short-term capital Joss)otherwiseallocable to Common ShareholdelSand pay U.S. federal of llS record of Shareholders Common law, income tax on the reiaincd gain. As providedunder U.S. federal lax: incom-0for the the end of the Fund's taxableyear will include their attributnbleshare of the retained gain in their paid deemed tax the for credit tax income year as a long-tenn capital gain, Bndwill be entitled ton U.S. federal on their behalf by lhe Fund. 59 DOL-17-0281-B-000165 ,, While the amounts retained would be included in the final liquidnting distribution of the Fund, the Fund's distribution rate over the tenn of the Fund will be lower, 11ndpossibly significantly lower, than if the Fund . distributed substantially all of its investment income and gains in each year. To lhe exlent that the market pnce of CommonSharesover time is influencedby the Fund's distributionrate, the reductionof the Fund's monthly distributionrnte because of the retention of income would negatively impact ilSmarket price. Such effect 0 ~ l~e You may withdrawfrom lhePlan at any time by giving writtennotice to the Plan Agent Ir you withdrawor the Plan is tcmtinated,you will re,:ei\·e whole shares in your accountunder the Plan and you will recei\'e a cash p1ymentfor DO)' fractionor 11share in your account.ff you wish, the Plan Agent will st ll your shares and send servicefee. you the proceeds, minus brokeragecommissiollSand a .S-'2.50 markN priccoftlie Common Shares may not be offset by the incre.ue in the F~nd' s NAY ~S a~ulto~ret:nning income. Jn lhe event that lhc Fund elects to di~lribute all of its net im·estment mcome or gruns (1f any) m e.ich The Plan Agent maintains all shareho!dm' accountsin the Plan and gives written confirmation of all transactionsin lhe accounts,includinginfomtationyou may need for tax records.CommonShare;;in your nccount will be held by the Plan Agent in non-cenifkated fonn, Any proxy you receh·e will include all Common · Sharesyou have recei\•cdunder LhePlan. . The fund will continue 10 pay at l~t the percentageor ils net in,·estmentincome and any gairu.necessary to maintainits status as a regulated investmentcompany for U.S. federal income lllXpurposes. There is no brokeragecharge for reim:e~tinentor your dividendsor distributionsiriCommonShares. Howe,·cr, all participantswill pay a pro rala share or brokeragecominissionsincurrtd by the Plan Agent when it 1 makes open market purchases. year, rather than rtlaining such incomeor gains, there is an increasedrisk lo shar.:holderslhat lhe final liquidatingdistributionmay be less than Original NAV. The retentionof a portion or i1snet investment income will result in ~e Funq payingU.S. fed~ra~excise tax nndpossiblyU.S. federalcorporate,incometax at n much higher co~rate mcome t~ rate. The rctentio~or make ~e paymentor ex~1setax a Significantamountsor income,and possiblyall or a portion or its gams, ,".out_d certaintyand would increasethe likelihoodthat the Fund would need to pay corpo~te mcomet.u. S~ e for currentd1stnbut1ons nvrulabl amounts reduce would taxes such Matters"in this prospe.dus. The paymentor and/or Lhe final liquidating distribution.See '.'DividendReinvestmentPlan." :'ax. The Fundresen•es the right to changeils distributionpolicy and the basis for establishing the rate or its monthlydistributionsat any time upon notice to CommonShareholders. DIVIDEND REINVESTMENT PLAN S~are~with a Ir your CommonShares are registered directlywith the Fund or if you hol~ your..Common_ brokeragefmn !hat plrticipates in the Fund's DividendRcinves~ent Pl~n (the, ,Plan ), yourd1stnbuttons, Share_s~ndcr the includingany capital gain distributions,will automaticallybe re1m·estedm addtllonalCo_rn_mon Plan unless you requestotherwise. Ir you elect not to participatein t_hcPia~, or are,no~eb~ible_topart1c1~ate c~~ paid by . 1n stnbuttons d1 all receive will you Pinn, the in participate not does firm ge brokera becauseyour :isd.1v1~ndpaymg check maileddirectly10 you or your brokeragefirm by State Street Bank and Trusl Con_ipa_ny, 1s rem\'estcdor agent.The tax consequencesor o.distributionarc the_same regardlessor wheth~rsuch d1slribut1on . As noted aboYe,ir you hold your CommonShares with a brokeragefirm that does not parti&ipatein the Plan, you will not be a~Jeto participatein the Plo.oand any dividendreim·cstment may be effey{edon different lenns than those dcscnbed o.bo,·e,Consultyour financinladvisorfor more information. The Fund reserves the right to amend or terminatethe Plan if in the judgment of the Board or Trustees the chMge is warranted.There is no direct service ch:irge to particip3.ntsin the Plan; h0wever,LheFund reserves the right to amend LhePlan to include3 service charge payable by the participants. Additionalinfomllltion about the Plan may be obtained from State Street Dankand Trust Company,Attn: Computer..hareNuveenIn,·estments, P.O. Box 43071, Providence,Rhode Island 02940-3071,(800) 257-8787. ' 1 receivedin cash. See "Tax Matters," Under the Plan, (he numberor CommonShares you will rccei,•ewill be detennined as follows: (l) If the Common Shares arc trading at or above ~ct asset value at the time or valuation,the Fund will issue new shares at a price equal to the greater of (i) net nsset ,•nlueper CommonShare on that date or (ii) 95% of the market price on that dnte, (2) If Comm~nShares nre tradin~ below net asset value nl 1he time or val~alion,the Plan Agentwill recch•ethe dividendor distributionin cash and will purchaseCommon Shares m the open market,on the NYSE or elsewhere, for the participants' accounts,II is possible that the market price for the Common Sharesmay increasebefore the Plan Agent has completedits purchases.Therefore,the a~·eragepu~ha_se price per share paid by the Plan Agent mnyexceed the market price at th_e~me or valuat1on,~ultmg m the purchaseor fewer shares than if the dividendor distribution had been p:ud 1nCommon Shares issuedby the Fund The Pinn Agent will use all dividends and distributions received in cash to purchaseCommonShares in th~open market wilhin30 days of the valuationdate. Interest will not be paid on any uninvestedcash payments.The Plan providesthat if CommonShares start trading at o~abo\•enet asset ,·alu: before the Plan Agent has completedits purchases,the Plan Agent may cease purc~asmgCommon Shnresm ~ open market,and may invest the uninyestcdportion in new shares n pnc? equal t_nthe greater or (1)net asset pnor to the purchasedate or value per CommonShare detennined oo the last business day 1mmed1ately (ii) 95% of the market price on that date, n! ' Automaticallyrein,·cslingdividends and distributionsdoe.snotmean that you do not have to pay income tn,;esdue upon m:eiving dividendsand distributions. DESCRIPTION OF SHARES AND DEBT Common Shares 'J?teFuf\d;s _Decl_arittion~u.t~rizes the issu~cc or~ ualimilednumberor CommonShares.The Common Shares being offered_ha,·e a par value orS.01 per ~hareand hnveequal rights to the_payn\entor dividends and the ts,upon liquidationof the Fund.The Common,S~aresbeing offertd Will,when issued, be fully di~tributionor asse_ paid and, subject to ~alters discussedunder "Certain Provisionsin the Decl0f3~~n o(Trust and By-Laws," nonnssessable,and will ha,·e ~o ~ree_mptiveorco_nversionrights or rights to cumulallve \:oting. The Declaration hn which it is entitled to provides that each \VholeCommon Share shall be e_ntitledto one vote as to any·~t_t~l' vote and each fractionalCommon Share shall be.entitled to a proportionatefractionalvote. If the Fund iSsues _be ~ntitledto receh·e any cash diftributionsfrom the Fund PreferredShares, the CommpnShareholde,swill 11ot e httn paid, and unless asset co,·eiase (as defined in lhe unless all a_ccrueddividendson Preferred~hares h:1V be a_i le3st 2D9%after giving effect t0 the distributions.The 1940 Act) with respect to PreferredShares WO{!ld Fund pays monthlydividends,typicallyon the first business day or the followingmonth. The Fund's Common ShaRs have bttn appro\'ed for listing on the NYSE, subjecl 10 notice or issuance, and will trade under lhe ticker symbol"JHY," The Fund intends to hold annual mc:ctingsor shareholdersso Jongns I.heCommonShares are listed on a.national seeurilies exchangeand such meetings nre required as a condition to such listing. The Fund will not if.Sueshare certificates. Procuds from the sale of CommonSharesin this offering will be miuced by 1.50% (the amount of the sales load as a percentageof the offeringprice), making the Fund's NAV per CommonSha.reequal to S9.85, before deductingoffering e,.penses, The Fund's NAV and the NAV per Common Share are then further reduced 61 60 ,, by the amountor offeringexpenses paid by the Fund. Nuveen Fund Advisors has ngrcedto (i) reimburseall organizationexpenses or the Fund and (ii) pay o.11offering costs of the Fond (other lhan sales load)that exceed S0.02 pu CommonShare.See "Use of Proceeds," Unlike open-endfunds, closed-end fon·ear. withhold U.S. f~ eral in~ome tax_ As \~ilh all inveslment co~p:mics, ~e F,u_l1dmay~ r~quired.t? ''backup" ~hart holders who fail lo provide the at the ~uffentrate 0f28% o~all taxable distributionspaya~l~to_Com_mon s, or if the somm~n ... c~iti~cat!on, requi!'l:d make to or number identification l;upayer Fund with their correct backup wllhholding. Bacl.'llpw1thholdmg IS Shareholders have been notified by the IRS that they are subject to t~es otherwi!edue. '1-nyamounts collect will it es r ens_u IRS the which in way n is it rather, tax; not an ::idditional tax liab!Uty. withheld may be credited against n shareholder's U.S. federal incom~ 69 68 UNDERWRITERS dated the date of this Under the terms nnd subject to the conditionsin an underwritingagreement & Co. LLC and Nuveen Securities, LLC prospectus, the Underwrite-rsnamed below, for whom Morgan Stanley agreed to P.ucchose, and the severally ha,·e h·cs"), "Represenlat (collectively,the are acting as reprc.sentative-s below. Fund has agrttd to sell to them, the number of CommonShares indicated Numbuo r «s Common Sh11 Undcnrrll t r Morgan Stanley & Co. LLC ...•.. • . , ... . ...•...... Nuveen Securities, LLC . . . • . . . • . • . • . • . . . . • • • . .. ... .. • • . .• . •... Ban:lays Capital Inc. . . . • . . . . . . ••. .•. .. .. .•.. , • . . . . . ... ...... . ....•...... . • . . . . . . • _ .•••.... . . . LLC Markets, Capital RBC . • • . . , .• • . , ..•... , •.... Stifel, Nicolaus & Company, Incorporated . • . . • . . • . • . . • • • . . . . • .... •.. .. .....•. .... .. BB&TCapilnl Markets, a division of BB&T Securities, LLC ...•. . • • , . . . . .... , . •• . • • .•... . B.C. Ziegler nnd Company • . . • . . . . • • . . . . . .......•.......• ••• • • •• , ..•.... • . . . . . . . . . . . . . . . . • . • . • • . Co. & D.A. Davidson • . • ..••...• • .. . . , . , . ... •.. • •. ..• • , .. , .•..•.... Henley & Company LLC .. ...•..... , ...... , .... •. , ....... , ... •. _ ... .. •.•......... . . . . . LLC Scott Montgomery Janney . • • • • ••. • ••• • • • • •.• • • • • • JJ .B. Hilliard, \V.L. Lyons, LLC . . • . . • . • . • • • • . . • .• . . • . • •• • •.. .. • . ... •. •.. •. •.. •.• •. •. • • • . ...•.... J.V.B. Fmancial Group, LLC . . ..•. , .• ... .. •. , .... , . , . • , . . , LadenburgThalmann & Co. Inc. . ....•.•••...••.••.•.•. . . .. • , •.. • , ... , , .. .. , . . . • . ..• , . .• , • . , • • ~faxim Group LLC . . • . . . . .. •. • .. , •.. •• ••..• .•. , • . , .. ••. National Securities Corporation ..•... , . , . • , •.. • .•.• •. , . , .. .. • ••..•.••.•...... Newbridge Securities Corporation . . . . . . . . • . . . • . . . . • . . .... •. •• •. . • .••. • . , ....•.... • •. • •. . . •. •.• • . •.• Pershing LLC ...•...••......••....•.. • • • •. • , • •. , .. .•. • • . •• • • •. • .•.. •• • ... _, .. • Jnc.... Southwest Securities, , . •.• • . , ..•..•.•....•.....•..... . ........ \Vedbush Securities Inc. . . . . . .. . ............ . . . . .. ........ WunderlichSecurities, Inc. . .. . . • . • . . • • .••. •..• •..••. •. ..• •. .. ... Aegis Capital Corp. . . . . • • • . . . • . . . . • • • • • • •• • • • • •... • • . • ...•• . • • . Inc. Co., & Ben1ardHerold • ... . . •. ..•....•....• Capitol SecuritiesManagement, Inc. . . . . . . • . • . . • .. • . . . .. , .. . • , . . , .... , ...••••..•..• . .•..... DinosaurSecurities, L.L.C. • . ......•.••. • •..• • ... •... . .. • Pcltl & Company • . . . . • . . . . • . • . . . . • ..••. • _• • , • •. • , . . .•. • . • • • .. Hennion & \Yaish, Inc............. . • , .... , •... , .... , ...... , .. . HuntleighSecurities Corporation . . . • . • .... , .•.. , .• • . , •• , . , ••..•.•. ••.••.... , ... , .• . . . . . . . . . LLC Co., & Joseph Gunnar · •· ··•··· · ···· •· ··· -· ···- • ·• •· • ·· • · · ········ ~fLV &Co .LLC •...... , •••. • .• •. , .. • • , ...•. ••.••...•... , . , .....• , ................ Inc Synovus Securities, . ..•. .. •.. .. •. Wayne Hummer InvestmentsL.L.C. . . . Tolal .•.•.•..•.....••.................••..•.•......•.......•.•...•...•..•....• 1 8,050,000 415,000 68,000 1,120,000 605,000 402,000 22,000 78,000 8,700 62,000 165,000 39,000 182,000 25,000 5,700 30,000 287,000 140,000 60,000 148,000 18,200 97,000 7,400 21,000 11,300 36,400 47,000 8,700 69,500 165,000 ~ 12,400,000 of the shares from the Fund The Underwritersare offering the CommonSh:u-essubjecl lo their acceptance the obligations or the severalUnderwriters to and subject to prior sale. The underwriting agreement prO\·ides that to the approvalof subject ere prospectus this by offered pay for and accept delivery of lhe Common Shares The Undenvriters nre obligatedto take and certain legal matters by their counsel and to certain other conditions. However,the lnken. arc shares such any if prospectus lhis pay for all of th.eCommon Shares offered by covered by the Underwriters' O\'er-allotment Underwriters arl! not required to lake or pay for the Common Shares directly to the public at the public The Underwriters initially propose to offer part of the Common Shares certa.in dealers nt a price that represents o offering price listed on the cover page or this prospectus and part to offering price. The underwriting concession not in excess of SO.l 25 per Common Share under the public are equal 10 1.50% of the public offering discounts and commissions (sales load) of $0. 15 per Common Share before July 31, 2015. price. Investors must pay for any Common Shares purchnsedon or 45 days from the date of this The Fund has granted to the Underwriters an option, exercisable for price !isled on the .as~ up to, 1,860,000 additional('.ommonSha(Csal the public offering prospectus'.to {li1rc~ The Underwritersmay Cxercise this commissions. and iscounts d , undcnVriting ~ less prospect11;s this or page cover the ?ffering of ~he wilh connection in made any, if nts, option solely' for the purpose or covering o\;er-allolme _o the extent the option is exercised, each Underwriterwill become Common Shares offered by this prospectus.'•T Common Shores additional the of percenlage same the obligated, subject lo certain conditions, to pu,rChascnbout !ablebears to the total number of Coff1mon as the number listed next to the Underwri_ter'sname in the preceding table. ,;_tto t,he ~,ames of all Unde~~lers in the preuding Shares lislcd n~_ undenvriting discounts and The following table shows the per shore and total public offering price, expenses, to the Fund. These amounts are commissions (sales load), ~stimated offering costs and proceeds,after lo pucchaseup lj>an additional option ' shown assuming both nOexercise arld full exercise of the Undmvriters /· 1,860,000 Common Shares. Total Ptr' Shart Public offering price Snles load<•> Estimated offering expenses Proceeds, afler expenses; iOthe F~ncl (I) SI0.00 S 0.15 S O.o2 S 9.83 NoEurtlsc $124,000,000 1,860,000 248,000 Sl2 1,892,000 s s FuUF..:u.rrli.e $142,600,000 2,139,000 285,200 $140,175,800 s s assets, (a) additional to pay, from its own Nuvcen Fund Advisors (a'ndnoTih'e Fu"i1d)Ii~ ngretd with this OtrCriitg and separately (b) an compensationof $.025 per share to the Underwriters in connection and an upfront structuring fee to each LLC Co. & Stanley Morgan to fee Syndication and structuring upfront , BB&TCapi1alMarkets, a . ofRBC Capital Markets, llC, Stifel, Nicolau$& Company, Incorporalcd ery Scott LLC, J.J.B. Hilliard, division of BB&T S,ecurities, LLC, D.A. Davids9n & Co., Janney Montgorri Se<:urilies,Inc., Wedbush Southwest LLC; W.L. Lyons, LLC, Ul.denburgThalmann & Co. Inc., Pershing arc not reflected under "Sales compensation and fees These Inc. Securities, Wundedich and Securities Inc. · • load" in the table above. not exceed S0.02 per Common Share Offering expenses paid by the Fund (other than the H ies load) will in the precedingsentence excetd this sold by the Fund in this offering. If the offering e:\pensesreferred lo Expenses.'' Fund of amount, Nuveen Fund Advisors will pay the excess. See "Summary Compensationlo be Paid by Nuvcen The fees to certain Underwritersdescribed below under "-Additional the Fund, and are therefore not reflected in Fund Advisors" are not reimbursable to Nu\·een Funds Advisorsby expenses payable by the Fund. The Underwriters ha,·e infonned the Fund that they do not intend sales 10discretionaryaccounts to C;"t;cecd 5% of the total number of Common Shares offered by them. on the NYSE, lhe Underwriters have In connection with the requirements for listing the Common Sha.res owners in the Uniled Slates. The undertaken 10 sell lots or 100or more shares coa minimumof 400 btneficial Shares. Common 100 is ent requirem minimum investment option described below. VERSIGHT 70 71 DOL-17-0281-B-000168 -------------------------:,i....:::-The Fund' s Common Shares ha\'C been .1pprovedfor listing on the NYSE, subject to notice of issuance, under the symbol "JHY.'' The Fund and the Affiliated Purchasers (ns defined below) have agreed that, without the prior wrinen consent of Morgan Stanley & Co. LLC on behalf of the Underwriters, they will not, during the period ending 180 days after the date of this prospectus (the "restricted period"): • offer, pledge, s~ll. contract to s~ll, sell any pption or contract to purchase, purchase any opti9n or contra,ct of, directlyor to ~II, grant any option, right or warrantto purchase,lend or otherwisetrarufcr or diSJ19se indirectly, any Common Shares or any securities con\'Crtiblc into or exercisable or Cxcbangcablcfor c~minon~ha~; • file nny registration statement with the SEC relating to the offering of any Common Shares or nny securities convertible into or exercisable or exchange.1blefor Common Shares; or • enter into nny swap or other amngement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common ShBreS; whether nny such tr.tnsaction described above is to be St:ttledby delivery of Common Shares or such other securities, in cash or otherwise. The restrictions described in the immediately preceding p:iragraphdo not apply to: • the sale of Common Shares lo the Underwriters; or • any Comma~Shares ~~~, ~ursuant lo th~ Plan. The restricted period described in tbe preceding paragraph will be extended if: • during the last 17 days of the restricted period, t.heFund i~sues an earnings release or a materfal news event relating lo the Fund a:ccurs,or • prior to the expiration of the restricted period, the Fund announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period or proyides notification lo Morgan St3nley & Co. LLC of nny earnings rdea.se or material news or material e\'ent that may give rise to an extension of the initial restricted period, in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issunnce of the earnings release or the occurrence of the materi:11news or m:iterialevcnl. Morgan Stanley & Co. LLC, in its sole discretion, may release the Common Shares and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice. In order to facilitate the offering of Common Shares, the Underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the Common Shares. Specifically, the Underwri1ers may sell more Common Shares than they are obligated to purchase under the underwriting agreement, creating n short position. A .short sale is covered if the short position is no greater than lhe number of Common Shares available for purchase by the Underwriters under the orer-allotment option. The Underwriters can close out a covered short sale by exercising the over-allotment option or purchasing Common Shares in the open market. In detennining the source of Common Shores to close out a co\·ered short sale, the Ui;iderwriterswill consider, among other things, lhc open-market price of the Common Shares compared to the price available under the over-allotment option. The Underwriters may also sell Common Shares in excess of the m·er-allotment option, creating a naked short position. The Undenvriters musl close out any naked short position by purchasing Common Shares in the open market. A naked short position is more likely lo be c~ated if the Underwriters arc - -- .- ,.,, concerned that there may be downward pressure on the price of the Common Shares in the open market a.fteipricing that could advemly affect investors who purchase in this offering. As an additional means of facilit.iting the orfering, the Underwriters may bid for, and purchase, Common Sham in the open market to stabilize the price of the Common Shares. Fin.illy, the underwriting syndicate may also reclaim selling concessions allowed to an Undenvriter or a dealer for distributing the Common Shari!5in lhc offering. These activities may raise or maintain the market price of the Common Shares above independent market le\·els or pre\·ent or rctrud a decline in the market price of the Common Shares. The Underwriters nre not re.quiredto engage in these activities, and may end any of these acti\'itics at any time. Th e Fund, Nuveen Fund Advi!,ocs,Nuve~n Asset Management and the Underwriters ha\'e agreed to indemni~yc:ieh other against certain Jiabilitie"s,including liabilities under the 1933 Act. , A prospectus in electronic fonnat m:1.ybe.;made available o~ websites maintained by one or more Underwriters, or selling group members, if any, fiarticipating in this offering. The Representativesmay agree to allocate a numbu of Common Shares to Undenvriters for sale to their online brokerage account holders. Internet distributions will be allocated by the Representatives to Underwriters that may make Internet distributions on the same basis as other allocalions. J Prior to this offering, there has been no public market for the Common Shares. The initial p\J.blicoffering price for the Common Shares was detennined by negotiation among the Fund, Nuveen Fund Advisors, Nuveen Asset Management and the Representati\'es. There can be no assurance, however, that the price at which the Common Shares trade after this offering will not be lower thnn the price at which they are sold by the Underwriters or that an active trading morket in the Common Shores will develop and continue after this offering. Prior to the publiq offering of Common Shares, Nuveen Fund Advisors purchased Common,Shares from the Fund in nn amount satisfying the net worth reliuirements of Section 14(a) of the 1940 Act and therefore owned 100%of the outstanding Common Shares. Nuvecn Fund Advisors may be deemed to control the Fund until such time as it owns less than 25% of the outstanding Common Shares, which is expected to occur as of the complclion of the offering of Common Shares. Certain employees ofNuvl!en In\'c.strnentsand its affiliates, including Nuveen Fund Advisors and Nuvecn Asset Management (colleclively, the "Affiliated Purchasers"), • have purchased shares sold in this offering. The Fund anticip.3testhat the Representatives and certain other Undenvriters may from time to time act as brokers and dealers in connection with the e;i;ecutionof its portfolio transactions aftei they have Ceasedto ac·t as Undmvriters and, subject lo certain restrictions, may act as such brokers while they act as Underwriters. The Underwrilcrsand !heir respective affiliates arc full service financialinstitutionsengaged in various activities, which may include securities trading,commercial and investment banking, financialadvisory, investment m:magement,principal im·estrnent,hedging, financing and brokerage activities. Certain of the Undenvriters or their respective affiliates from time to time have provided in lhe past, andmay provide in the future, inYe5tmentbanking, securities trading, hedging, brokerage activities, commercial lending and financial advisory services to the Fund, its affiliates and Nuveen Fund Advisors, Nuveen .AMetManagement and their affiliates in the ordinary course of business, for which they ha\'e received, and may receive, customary f~s and expenses. No action has been taken in any juri sdiction (except in the United States) that would pennit a public offering of the Common Shares, or the possession, circulation or distribution of this prospectus or any other material relating to the Fund or the Common Shnre.swhere action for that purpose Is required. Accordingly, the Common Shares may not be offered or sold, directly or indirectly, and neither this prospectus nor any other offering material or advertisements in connection with the Common Shares may be distributed or published, in or from any counlly or jurisdiction e;m:pt in coropli:mce with the applicable rules and regulations of any such country ot jurisdiction. 73 72 ,, The principal business address of Morgan Stnnley & Co. LLC is 1585 Broadway, New York, NY 10036. Theprincipal business address of Nuveen Securities, LLC is 333 West Wacker Drive, Chicago, IL 60606. Addiliono1 Compensation fo be Paid by Nunen Fund Ad\isOrs NuYeenFund Advisors (and not the Fund) has agreed to pay Morgan Stanley & Co. LLC, from its own assets, an upfront structuring nnd syndication fee in the amount of S715,319.85 for adviCerelating to the design and structuring of the Fund, including without limitation, views from an investor market, distribution and syndication perspective on (i) markeling issues with respect to the Fund's investment policies and proposed investments, (ii) the overall marketing and positioning thesis for the offering of the Common Shares, (iii) securing participants in the Fund's initial public offering, (iv) preparation of marketing and diligence materials for Undenvriters, (v) conveying information and market updates lo the Underwriters, and (vi} coordinatingsyndicate orders in this offering. If the over-allotment option is not exercised, the upfront structuring ond syndication fee paid to Morgan Stanley & Co. LL C will not exceed 0.5769% of the total public offering price of the Common Shares. These services provided by Morgan Stanley & Co. LLC to Nuveen Fund Advisors are unrelated to its function of ndvising the Fund as to its investments in securities or use of investment ' strategies and investmenl techniques. Nuveen Fund Advisors (and not the Fund) has agreed to pay lo each of RBC Capital Markets, LLC, Stifel, Nicolaus & Company, lncorporuted,BB&T Capital Markets, a division of BB&T Securities, LLC, D.A. Davidson & Co., Janney Montgomery Scott LLC,·J.J.B. Hilliard, W.L. Lyons, LLC, Uldenburg Thalmann & Co. Inc., Pershing LLC, Southwest Securities, Inc., Wcdbush Securities Inc. and Wunderlich Securitie.s,Inc., Cromits own assets, an upfront structuring fee for advice relating to the structure, design and organization of the Fund RS well as services related to the sale and distribution of the Common Shares in the amount ofS64,250, $34,500, $23,100, $4,500, Sl-516,25, $9,480, SI0,512,15, $16,669,20, SB,028,05,$3,430 and $8,500, respecti,ely, If tho ovec-a11otrnentoption is not exercised, the upfront li"lructuringfees paid to each of RBC Capilal Mari:ets, LLC, ed, BB&T Capital Markets, a division of DD&T Securities, LLC, D.A. Stifel, Nicolaus & Company, lnOOrporat Davidson & Co., Janney Montgomery Scott LLC, JJ.B. Hilliard, W.L. Lyons, LLC, Ladenburg Thalmilnn & Co. Inc., Pershing LLC, Southwest Securities, Inc., Wedbush Securities Inc. and Wunderlich Securities, Inc. will not meed 0.0518%, 0,0278%, 0,0186%, 0,0036%, 0,0028%, 0,0076%, 0,0085%, 0,0134%, 0,0065%, 0.0028% and 0.0069%, respecth·ely, of the tota.1public offering price oflhe Common Shares. These services provided by these Undenvrilers lo Nuveen Fund Advisors a.reunrelated to its function of advising the Fund as to its inve.,;tmentsin securities or use of investment slrategies and inn.sbnent techniques. syndication and structuring fee payments to the Underwriters, will not exceed 2.5015% of the total public oflering price of the Common Shares. CUSTODIAN AND Tl!ANSFER AGENT The custodian of Ute Fund's assets is State Street Dank and Trust Company ("State Street"), One Lincoln Slreel, Boston, Massachusetts 02111. The Custodian performs custodial, fund accounting and portfolio accounting services. The Fund's transfer, shareholders services and dividend paying agent is also State Street, 250 Royall Street, Canton, Massachusetts 01021. StateStreet has subcontracted the transfer agency servicing of · the Fund to Computersharc, Inc. LEGAL OPINIONS AND EXPERTS Certain legal matters in connection with the Common Shares will be passed upon for the Fund by K&L Gales LLP, Chicago, Jllinois. Weil, Gotshal & Manges LLP, New York, New York, advised the Underwriters in connecljon with the offering of the Common Shares. Each ofK&L Gates LLP and Weil, Gotshat\'&Manges LLP may rely as to cenain mauen. ofMassachuseus law on the opinion or Morgan, Lewis &.Dock.iufLLP, Boston, Massachusetts. KP.MGlLP, an independent registered pilblie accounting firm, provides audiiing service.s to the Fund. The amount of these structuring and syndication fees rue calculated based on the total respectiYesales of Common Shares by the Undenvriter receiving the fees, including those Common Shru·eidncluded in the Underwriters' oveM1llotment option, and will be paid regardless of whether some or all of the over-allotment option is exercised. In addition, Nu\•een Fund Advisors (and not the Fund) has ogttcd to pay the UndenvriterN,from its own assets, additional compensation of $.025 per Common Share sold in this offering, which amount will not exceed 0.25% of the total public offering price of the Common Shares. Total undenvriting compensation detennined in accordance with Financial Industry Regulatory Authority, Inc. (''FJNRA'')rules is summarized as follows. The sales lo3d the Fund will pay ofS0.15 per share is equal to 1.50% of the total public offering price of the Common Shares. The Fund has agreed to reimburse the Undmvriters for the reasonable fees n.nddisbursementsof counsel to the Underwriters in connection with the review by FINRA of the tenm of the sale of the Common ShMCSin an amount not to exceed $30,000 in the aggregate, which amount will not exreed 0.0242% of the total public offering price of the Common Shares if the over-allotment option is not exercised. The sum total of all comperuation to the Underwriters in connection with tliis public offering of the Common Shares, including sales load, expense reimbursement and oil forms of OVERSIGHT ,; 74 75 DOL-17-0281-B-000169 ~· ~ m :2======12=,4=0=0=,0=0=0 Nuveen :IJS (/) - L.. G) :::c =Sh=a=r=es====== ~~~~Q~ '& §"8 ~['& .a~i~[ 0 tiI~& High Income 2020 Target Term . Fund W~ l~ ~ . [ ~~ 5. ~ ~ ~ July 28, 2015 [: .,, ~ ~ i i~.i~~ ~ : [ §~- : ~ g il i· ~ ~ p. Si S.-g ~ 0 s: g S' ~- ff=.. g ~ § § "' E: ~ ~ a· ci1§ 8.8_8.' &.g_ g, 0 2'. s· [ s § !" I: o~~~\i• [ ~ PROSPECTUS 0 rH·t9 i!~ ,,common Shares '·$,10.00per Share -I :::::;o ~-[ 1~ ~~ ~~ ~5·.::-, ~E:~[~ra!~.§-~~ ~ t;; ,,, 0 n 0 q "" ~ @ ~ "' : : ~ ~ ~ > 0 .r 0 3 Morgan Stanley Nuveen Securities Barclays RBC Capital Markets Stifel BB&T Capital Markets B.C. Ziegler D.A. Davidson & Co. Henley & Company LLC Janney Montgomery Scott J.J.B. Hilliard, W.L. Lyons, LLC J.V.B. Financial Group, LLC Ladenburg Thalmann Maxim Group LLC National Securities Corporation Newbridge Securities Corporation Pershing LLC Southwest Securities Wedbush Securities Inc. Wunderlich ~ ~g) g 1 z t~~~~~~~~~~~~~~~~~N Until August 22, 2015 (25 days after the date of this prospectus), all dealers that buy, sell or trade the Common Shares, whether or not participating in this offering, may be required to deliver a prospectus, This delivery requirement is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions. EPR•JHY-0715D ':'~ DOL-17-0281-B-000170 .f Lloyd, Karen - EBSA Subject: Location: DOL Fiduciary Rule- IRA Bank Deposit Issue (b) (6) Code-(b) (6) Start: End: Show Time As: Thu 2/9/2017 3:00 PM Thu 2/9/2017 4:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Egbuonu, Chizoba th Please use the following conference line and code for our call on Thursday, February 9 : (b) (6) Thanks, Chiz. AMf HICAN pVERSIGHT 1 DOL-17-0281-B-000171 . Lloyd, Karen - EBSA Subject: Location: Morningstar Discussion on Fiduciary Rule EBSAFishbowl Conference Room; Conference Line:(b) (6) Start: End: Mon 2/6/2017 3:30 PM Mon 2/6/2017 5:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Zimmerman, Elaine - EBSA Zimmerman, Elaine - EBSA;Hauser, Timothy - EBSA;Khawar, Ali - EBSA;Piacentini, Canary, Joe - EBSA;Hall, Lyssa- EBSA;Anna Joseph - EBSA(b) (6) (b) (6) ; Turner, Jeffrey - EBSA; EBSA Nordseth; Decressin,Anja (b) (6) ; Halliday, Susan Campagna, Lou - EBSA;Cosby, Chris - EBSA EBSA;Goodman, Elizabeth - EBSA;Lloyd, Karen - EBSA Blumenthal, Mara - EBSA;Grillo-Chope, Luisa - EBSA;Beckmann, Allan - EBSA;Butikofer, ; Lim, Youngok - EBSA(b) (6) James - EBSA(b) (6) Garrett, West - EBSA;Aron Szapiro; Paul Ellenbogen; Jeff Schwantz; Bloom, Teresa - Optional Attendees: •• I ; EBSA Morningstar has asked to meet with DOL to share their thoughts on the Fiduciary Rule and feedback they've received from the industry. Below is a proposed agenda as well as the list of Morningstar attendees and their titles. Please note a call-in number has been provided for DOL employees: Call in: (b) (6) Passco Agenda topics: • • • • • • Retirement plan data and rankings; compatibility with portfolio costs (investor total cost of ownership) and value (and cost) of financial Best Interest: Scorecard; Insights (enterprise level surveillance); advice Share classes: T, 'clean', and a new framework for identifying the 'cheapest' share class in terms of investor situation Fee disclosure based on investor situation, based on five 'buckets', and in dollars Representation of historical returns and rankings, based on actual past performance, across product types, and full costs 5500 modernization rule Morningstar Attendees: Paul D. Ellenbogen, Head of Global Regulatory Solutions Aron Szapiro, Director of Policy Research Scott Burns, Head of Asset Management Solutions Jeff Schwantz, Head of Advisor Solutions Lawrence Johnson, Head of RightPond Solutions AM[RICAN PVERSIGHT 1 DOL-17-0281-B-000172 Lloyd, Karen - EBSA Subject: Location: NAIC call - IMO proposal telephone call Start: End: Mon 1/23/2017 3:00 PM Mon 1/23/2017 3:30 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Lloyd, Karen - EBSA Hall, Lyssa - EBSA;Shiker, Brian - EBSA AMFfllCAN PVERSIGHT 1 DOL-17-0281-B-000173 From: To: Subject: Date: Attachments: Walters, Janet - EBSA Blumenthal, Mara - EBSA FW: Support Professor Baron"s Letter - Exec Sec 812160 and 812399 Monday, March 27, 2017 5:14:38 PM Pres-Obama-ERISA-reform-letter-with-attachments-combined-final-003.pdf 812160-2.pdf 812399-1.pdf     From: Bracken, Jean - EBSA Sent: Monday, March 20, 2017 5:57 PM To: Walters, Janet - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   The incoming.   From: Duke, Hilary - EBSA Sent: Thursday, August 25, 2016 12:04 PM To: Bracken, Jean - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Jean, I’m adding OHPSCA and ORI.  From the incoming, it looks like this may be related to the Form 5500 project.  The proposal  highlighted in the letter is to require ERISA plans to report subrogation recoveries on the Form 5500.  I’m wondering if this comment came up in the review of changes to health plan reporting?    Thanks, Hilary   Hilary Duke Office of Policy and Research Employee Benefits Security Administration Department of Labor (b) (6)(b) (6) From: Bracken, Jean - EBSA Sent: Thursday, August 25, 2016 10:59 AM To: Duke, Hilary - EBSA Subject: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Hilary,   I have gotten these two incoming letters, which I hope are not the start of a letter writing campaign, regarding a letter that a law professor sent to President Obama urging ERISA reform.  Attached are the two incoming, as well as a copy of the letter that was sent to the President.  There is debate here about whether we should respond to these at all.  Is this something that should be assigned to OPR, if we do need to respond?  Thanks.   VERSIGHT DOL-17-0281-B-000174 Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.   VERSIGHT DOL-17-0281-B-000175 From: To: Cc: Subject: Date: Dennis, Melissa - EBSA Adelman, Suzanne - EBSA; Blumenthal, Mara - EBSA Canary, Joe - EBSA; Goodman, Elizabeth - EBSA RE: Support Professor Baron"s Letter - Exec Sec 812160 and 812399 Monday, February 06, 2017 4:57:28 PM Sue:  I checked with Joe who asked that we hold off pending his follow up.    Thank you, Melissa   From: Adelman, Suzanne - EBSA Sent: Monday, February 06, 2017 12:45 PM To: Blumenthal, Mara - EBSA; Dennis, Melissa - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Can you all add this EXEC Sec as a comment on the 5500? (Came in during the comment period.)  Thanks!   From: Cerio, Chelsea - EBSA Sent: Monday, February 06, 2017 12:17 PM To: Adelman, Suzanne - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Sue:   Hope you had a nice weekend.  I wanted to follow-up with you regarding the attached exec sec letter that was received back in September of 2016 that didn’t go through our normal process.  Per Amber’s email below, we believe it was ultimately treated as a comment letter to the 5500 regs but I wanted to confirm and close the loop with you.  If you need more info just let me know.  Thanks!   Chelsea   From: Rivers, Amber - EBSA Sent: Monday, February 06, 2017 10:47 AM To: Cerio, Chelsea - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Ah – I think we treated it as a comment letter, but can you follow up with Sue (she is out, but maybe send a placeholder so she can look at this once she is back).   From: Cerio, Chelsea - EBSA Sent: Monday, February 06, 2017 10:44 AM To: Rivers, Amber - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399       From: Turner, Amy - EBSA AMf--f CAN pVERSIGHT DOL-17-0281-B-000176 Sent: Friday, September 16, 2016 4:21 PM To: Rivers, Amber - EBSA; Cerio, Chelsea - EBSA; Perez, Yaniris - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399       From: Goodman, Elizabeth - EBSA Sent: Wednesday, September 14, 2016 4:56 PM To: Adelman, Suzanne - EBSA Cc: Blumenthal, Mara - EBSA; Canary, Joe - EBSA; Turner, Amy - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   This is really more group health reporting than anything else on the 5500, so probably more your call than ours.    I think if Prof. Baron’s letter is an attachment to the comments (or is otherwise available) than I have no objection to treating the letters as comments on the proposal.  They are asking for additional 5500 reporting.  Have you had a chance to look at this?   From: Bracken, Jean - EBSA Sent: Wednesday, September 14, 2016 2:27 PM To: Duke, Hilary - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA; Connor, Mark - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Has anyone been able to take a look at this and determine if this is a Form 5500 comment?  These two blue borders are now on the overdue report and I still need to determine where they should be assigned.  Thanks.     Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.       From: Duke, Hilary - EBSA Sent: Thursday, August 25, 2016 12:04 PM To: Bracken, Jean - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399 VERSIGHT DOL-17-0281-B-000177   Jean, I’m adding OHPSCA and ORI.  From the incoming, it looks like this may be related to the Form 5500 project.  The proposal  highlighted in the letter is to require ERISA plans to report subrogation recoveries on the Form 5500.  I’m wondering if this comment came up in the review of changes to health plan reporting?    Thanks, Hilary   Hilary Duke Office of Policy and Research Employee Benefits Security Administration Department of Labor (b) (6)(b) (6) From: Bracken, Jean - EBSA Sent: Thursday, August 25, 2016 10:59 AM To: Duke, Hilary - EBSA Subject: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Hilary,   I have gotten these two incoming letters, which I hope are not the start of a letter writing campaign, regarding a letter that a law professor sent to President Obama urging ERISA reform.  Attached are the two incoming, as well as a copy of the letter that was sent to the President.  There is debate here about whether we should respond to these at all.  Is this something that should be assigned to OPR, if we do need to respond?  Thanks.   Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.   VERSIGHT DOL-17-0281-B-000178 From: To: Subject: Date: Attachments: Walters, Janet - EBSA Blumenthal, Mara - EBSA FW: Support Professor Baron"s Letter - Exec Sec 812160 and 812399 Monday, March 27, 2017 5:14:38 PM Pres-Obama-ERISA-reform-letter-with-attachments-combined-final-003.pdf 812160-2.pdf 812399-1.pdf     From: Bracken, Jean - EBSA Sent: Monday, March 20, 2017 5:57 PM To: Walters, Janet - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   The incoming.   From: Duke, Hilary - EBSA Sent: Thursday, August 25, 2016 12:04 PM To: Bracken, Jean - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Jean, I’m adding OHPSCA and ORI.  From the incoming, it looks like this may be related to the Form 5500 project.  The proposal  highlighted in the letter is to require ERISA plans to report subrogation recoveries on the Form 5500.  I’m wondering if this comment came up in the review of changes to health plan reporting?    Thanks, Hilary   Hilary Duke Office of Policy and Research Employee Benefits Security Administration Department of Labor (b) (6)(b) (6) From: Bracken, Jean - EBSA Sent: Thursday, August 25, 2016 10:59 AM To: Duke, Hilary - EBSA Subject: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Hilary,   I have gotten these two incoming letters, which I hope are not the start of a letter writing campaign, regarding a letter that a law professor sent to President Obama urging ERISA reform.  Attached are the two incoming, as well as a copy of the letter that was sent to the President.  There is debate here about whether we should respond to these at all.  Is this something that should be assigned to OPR, if we do need to respond?  Thanks.   VERSIGHT DOL-17-0281-B-000179 Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.   VERSIGHT DOL-17-0281-B-000180 From: To: Cc: Subject: Date: Dennis, Melissa - EBSA Adelman, Suzanne - EBSA; Blumenthal, Mara - EBSA Canary, Joe - EBSA; Goodman, Elizabeth - EBSA RE: Support Professor Baron"s Letter - Exec Sec 812160 and 812399 Monday, February 06, 2017 4:57:28 PM Sue:  I checked with Joe who asked that we hold off pending his follow up.    Thank you, Melissa   From: Adelman, Suzanne - EBSA Sent: Monday, February 06, 2017 12:45 PM To: Blumenthal, Mara - EBSA; Dennis, Melissa - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Can you all add this EXEC Sec as a comment on the 5500? (Came in during the comment period.)  Thanks!   From: Cerio, Chelsea - EBSA Sent: Monday, February 06, 2017 12:17 PM To: Adelman, Suzanne - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Sue:   Hope you had a nice weekend.  I wanted to follow-up with you regarding the attached exec sec letter that was received back in September of 2016 that didn’t go through our normal process.  Per Amber’s email below, we believe it was ultimately treated as a comment letter to the 5500 regs but I wanted to confirm and close the loop with you.  If you need more info just let me know.  Thanks!   Chelsea   From: Rivers, Amber - EBSA Sent: Monday, February 06, 2017 10:47 AM To: Cerio, Chelsea - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Ah – I think we treated it as a comment letter, but can you follow up with Sue (she is out, but maybe send a placeholder so she can look at this once she is back).   From: Cerio, Chelsea - EBSA Sent: Monday, February 06, 2017 10:44 AM To: Rivers, Amber - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399       From: Turner, Amy - EBSA AMf--f CAN pVERSIGHT DOL-17-0281-B-000181 Sent: Friday, September 16, 2016 4:21 PM To: Rivers, Amber - EBSA; Cerio, Chelsea - EBSA; Perez, Yaniris - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399       From: Goodman, Elizabeth - EBSA Sent: Wednesday, September 14, 2016 4:56 PM To: Adelman, Suzanne - EBSA Cc: Blumenthal, Mara - EBSA; Canary, Joe - EBSA; Turner, Amy - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399   This is really more group health reporting than anything else on the 5500, so probably more your call than ours.    I think if Prof. Baron’s letter is an attachment to the comments (or is otherwise available) than I have no objection to treating the letters as comments on the proposal.  They are asking for additional 5500 reporting.  Have you had a chance to look at this?   From: Bracken, Jean - EBSA Sent: Wednesday, September 14, 2016 2:27 PM To: Duke, Hilary - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA; Connor, Mark - EBSA Subject: RE: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Has anyone been able to take a look at this and determine if this is a Form 5500 comment?  These two blue borders are now on the overdue report and I still need to determine where they should be assigned.  Thanks.     Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.       From: Duke, Hilary - EBSA Sent: Thursday, August 25, 2016 12:04 PM To: Bracken, Jean - EBSA; Adelman, Suzanne - EBSA; Goodman, Elizabeth - EBSA Cc: Turner, Amy - EBSA; Canary, Joe - EBSA Subject: FW: Support Professor Baron's Letter - Exec Sec 812160 and 812399 VERSIGHT DOL-17-0281-B-000182   Jean, I’m adding OHPSCA and ORI.  From the incoming, it looks like this may be related to the Form 5500 project.  The proposal  highlighted in the letter is to require ERISA plans to report subrogation recoveries on the Form 5500.  I’m wondering if this comment came up in the review of changes to health plan reporting?    Thanks, Hilary   Hilary Duke Office of Policy and Research Employee Benefits Security Administration Department of Labor (b) (6)(b) (6) From: Bracken, Jean - EBSA Sent: Thursday, August 25, 2016 10:59 AM To: Duke, Hilary - EBSA Subject: Support Professor Baron's Letter - Exec Sec 812160 and 812399   Hi Hilary,   I have gotten these two incoming letters, which I hope are not the start of a letter writing campaign, regarding a letter that a law professor sent to President Obama urging ERISA reform.  Attached are the two incoming, as well as a copy of the letter that was sent to the President.  There is debate here about whether we should respond to these at all.  Is this something that should be assigned to OPR, if we do need to respond?  Thanks.   Jean Bracken Lead Senior Technical Advisor Division of Field Operations and Technical Assistance Office of Outreach, Education & Assistance Employee Benefits Security Administration Phone:  (b) (6)(b) (6) Fax: (202) 219-8141   This message may contain information that is privileged or otherwise exempt from disclosure under applicable law.  Do not disclose without consulting the Employee Benefits Security Administration.  If you think you received this message in error, please notify the sender immediately.   VERSIGHT DOL-17-0281-B-000183 From: To: Cc: Subject: Date: Egbuonu, Chizoba Turner, Jeffrey - EBSA Miller, Joel; Dalton, Tish; Rebecca Zak; Michael Ofori-Kuragu; Orange, Michael W.; Ackmann, Rachel J. IRA Bank Deposit Issue Wednesday, January 25, 2017 12:51:09 PM Good morning Jeff- I hope this email finds you well.  This is a  follow up to my voicemail this morning.  We (OCC, FDIC and the Fed) are hoping to have a follow up call with DOL to discuss next steps.  The OCC is very interested in resolving this issue not only because of the implementation date fast approaching in April, but because we are hearing from some of the banks we regulate that they are considering jettisoning their IRA bank deposit business as a result of the new DOL rule.  If DOL is not in a position to respond to our inquiry, the OCC, on its own or jointly with the FDIC and the Fed, will draft a letter to DOL laying out the IRA bank deposit issue and requesting a formal response from DOL.    Please let us know dates and times that work for you and your colleagues for a call and we will coordinate with the other two agencies based on your availability.  Thanks and we look forward to speaking with you soon.     Chizoba (Chiz) Egbuonu Asset Management Policy Office of the Comptroller of the Currency, U.S. Department of the Treasury Office:   (b) (6)(b) (6) Mobile:  (b) (6) 400 7th Street, S.W. Washington, D.C. 20219 chizoba.egbuonu@occ.treas.gov   VERSIGHT DOL-17-0281-B-000184 From: To: Cc: Subject: Date: Egbuonu, Chizoba Turner, Jeffrey - EBSA Miller, Joel; Dalton, Tish; Rebecca Zak; Michael Ofori-Kuragu; Orange, Michael W.; Ackmann, Rachel J. IRA Bank Deposit Issue Wednesday, January 25, 2017 12:51:09 PM Good morning Jeff- I hope this email finds you well.  This is a  follow up to my voicemail this morning.  We (OCC, FDIC and the Fed) are hoping to have a follow up call with DOL to discuss next steps.  The OCC is very interested in resolving this issue not only because of the implementation date fast approaching in April, but because we are hearing from some of the banks we regulate that they are considering jettisoning their IRA bank deposit business as a result of the new DOL rule.  If DOL is not in a position to respond to our inquiry, the OCC, on its own or jointly with the FDIC and the Fed, will draft a letter to DOL laying out the IRA bank deposit issue and requesting a formal response from DOL.    Please let us know dates and times that work for you and your colleagues for a call and we will coordinate with the other two agencies based on your availability.  Thanks and we look forward to speaking with you soon.     Chizoba (Chiz) Egbuonu Asset Management Policy Office of the Comptroller of the Currency, U.S. Department of the Treasury Office:   (b) (6)(b) (6) Mobile:  (b) (6) 400 7th Street, S.W. Washington, D.C. 20219 chizoba.egbuonu@occ.treas.gov   VERSIGHT DOL-17-0281-B-000185 From: To: Cc: Subject: Date: Miller, Joel Turner, Jeffrey - EBSA; Lloyd, Karen - EBSA; Cosby, Chris - EBSA "Orange, Michael W."; "Michael Ofori-Kuragu"; Kirby, Beth Fiduciary Rule - Bank Deposit Exemptions Friday, November 18, 2016 2:53:53 PM ; Egbuonu, Chizoba; Chamberlayne, Asa; Jeff et al. - Representatives from the three federal banking agencies would appreciate having an opportunity to schedule a meeting or a call with you to discuss the scope of the DOL fiduciary rule and its potential impact, particularly on community banks. Based on our discussion last September, it is my understanding EBSA does not consider the longstanding bank deposit statutory exemption to be applicable to most situations covered by the new fiduciary rule.  Instead, you indicated that banks would be required to comply with the BIC if they opened IRA deposit accounts, such as certificates of deposit (CDs), for their customers sourced either from new money or from rollover monies. While you noted, for purposes of both exemptions, that the DOL does not distinguish between insured vs. uninsured deposits, you indicated that DOL considers the net interest margin (NIM or spread) between what a bank earns (either through lending or investments) and what it pays on CDs to be the bank's compensation. We require greater clarification in this area as a bank cannot determine what its NIM will be on any specific deposit, nor can it know what its NIM will be at the time it opens a new account.  By contrast, institutions that charge specific fees can readily calculate the cost a customer incurs before they open or add to an account.   As we discussed, the OCC intends to issue written guidance to our examiners and the national banks and thrifts we regulate focusing upon the fiduciary rule, the bank deposit exemption, and the BIC. We typically issue Bulletins to remind OCC examiners and the banks we regulate about specific risks they need to be aware of, or areas we expect OCC examiners will be examining more closely going forward. (By way of reference, attached is an OCC Bulletin we issued earlier this year that focuses upon our expectations for bank compliance with the SEC's money market rule.) https://www.occ.gov/news-issuances/bulletins/2016/bulletin-2016-17.html The deposit issue is of particular concern because we have identified over 5600 banks regulated by the OCC, Fed, and FDIC that report (as of 12/31/15) having IRA deposits on their books. That's over 95% of all insured banks.  As we discussed with you, most of these banks are relatively small community banks that do not have fiduciary powers or trust departments. Accordingly, these banks are likely unaware of the potential scope of the DOL fiduciary rule and the BIC, and may unknowingly fail to comply with their requirements. These institutions are also unlikely to build out compliance programs on the off chance a potential IRA customer walks in the door. The OCC is in the process of drafting a letter to EBSA that sets out a couple scenarios that are likely covered by the fiduciary rule and questions regarding the applicability and scope of the BIC and the deposit exemption.  We feel it is important to obtain official guidance from EBSA so that we may share your views with our regulatory colleagues, OCC examiners, and ultimately the industry. We thought it would be helpful to talk through these issues once more so that, with the benefit of a more in-depth conversation, we would then be in a position to more precisely frame up the relevant issues in our letter.  In terms of timing, would Monday, December 5th, or Tuesday, December 6th work for you?  Please provide us with times you are available on those days.  We would be happy to host an in-person meeting at the OCC, we could meet at your offices, or we could set up a conference call for the four agencies. Whatever you prefer.  We look forward to hearing from you so that we may move forward in addressing this issue. Thanks. Joel Joel Miller, Director Asset Management Policy Market Risk Division - CNBE Office of the Comptroller of the Currency 400 7th Street, S.W. AMf--f CAN pVERSIGHT DOL-17-0281-B-000186 Washington, DC 20219 (tel) (fax) DOL-17-0281-B-000187 Morgan Lewis I American Bankers Association .. Department of Labor(DOL)Fiduciary Rule: Exemption for BankIRADepositPrograms Prepared by Morgan, Lewis & Bockius LLP for the American Bankers Association August 24, 2016 DOL-17-0281-B-000188 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 1 This Briefing Paper is provided for information and reference purposes only. It is made available with the understanding that the American Bankers Association is not engaged in rendering legal, accounting, or other professional services. The contents of this Briefing Paper are not to be construed as taking the place of legal or regulatory advice for a bank’s specific circumstances, which if needed should be sought from a qualified professional. This Briefing Paper in no way intends or effectuates a restraint of trade or other illegal concerted action. Executive Summary The Department of Labor (DOL) recently finalized changes to its regulation on fiduciary status (Fiduciary Rule or Rule), which greatly expands the definition of an “investment advice” fiduciary for purposes of the ERISA and IRA prohibited transaction rules. In particular, a bank that provides “advice” in the course of marketing its retirement investment products and services, including IRA rollovers, may now be deemed a “fiduciary” under the Rule. If so, any compensation the bank receives as a result of such “advice” may be considered a “prohibited transaction” under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) because the bank would be using its fiduciary advice role to cause itself to be paid additional fees. Absent an available exemption, the penalty could be to repay the fees, plus interest, plus an excise tax. Thus, for example, a bank’s receipt of compensation in connection with its advice to retail customers on IRA investments or IRA rollovers, or as a result of its routine marketing and sales practices in connection with these activities, may trigger prohibited transaction liability, unless the bank can rely on an exemption. We believe that a statutory exemption – Section 4975(d)(4) of the Code – permits a bank to advise its customers on IRA investments and on IRA rollovers, so long as the IRA is designed to invest exclusively in the bank’s deposits. Thus, provided the conditions of this exemption are met, a bank may reasonably rely on Section 4975(d)(4) to conduct its bank IRA CD program (or other IRA bank deposit program), including accepting rollovers into that program, without triggering prohibited transaction liability, and without triggering the applicability or requirements of the Fiduciary Rule or the related exemptions.1 1 In order to address certain compensation and fiduciary liability issues raised by the expanded “investment advice” definition, the DOL has created a new regulatory exemption, known as the “Best Interest Contract Exemption” (BIC Exemption). Compliance with the BIC Exemption generally will allow an investment advice fiduciary to receive certain types of compensation for advice provided to a customer, without giving rise to prohibited transaction liability. The BIC Exemption’s requirements, however, are lengthy and complex, and raise numerous interpretive questions. A fiduciary, however, may rely on any available exemption from the prohibited transaction provisions of ERISA and the Code, not simply the BIC Exemption. Thus, where the Section 4975(d)(4) exemption is available, it should not be necessary to rely on the BIC Exemption in order to market rollovers into these types of IRAs. This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000189 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 2 Introduction We have been asked to analyze the availability of the bank deposit exemption under Section 4975(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”), for an individual retirement account (an “IRA”) that invests exclusively in bank deposits, and for any rollover into an IRA that makes such investment, in light of the recent amendment to the DOL regulation defining fiduciary “investment advice” for purposes of the Section 4975 prohibited transaction rules (the “Amended Regulation”). 2 This briefing paper describes the basis for the position that the Section 4975(d)(4) exemption, in conjunction with the Section 4975(d)(2) exemption for services, provides sufficient authority and relief to cover (1) an IRA’s investment in bank deposits (including bank certificates of deposit), and (2) rollovers into an IRA that invests exclusively in bank deposits (including bank certificates of deposit), such that reliance on Prohibited Transaction Exemption 2016-01, the newly-adopted Best Interest Contract (“BIC”) Exemption, 3 is not necessary. While we believe this position to be reasonable and supportable for the reasons described below, because the Amended Regulation and BIC Exemption were only recently finalized (April 2016), and because there is no additional guidance as yet as to how they apply, there is no assurance that the DOL or a court would reach this conclusion. The DOL has informally indicated that it expects to provide additional guidance on the Amended Regulation and related exemptions before their April 10, 2017, applicability date, which may or may not address this issue. This briefing paper begins with an overview of the features of a “deposit IRA” product for purposes of this discussion. It then provides relevant background on the Code Section 4975 prohibited transaction rules and the Section 4975(d)(4) bank deposits exemption. The paper then turns to the potential impact of the new Rule on the marketing and sales of deposit IRAs, followed by the reasons why the Section 4975(d)(4) exemption would be available to address those issues, including for IRA rollovers, in conjunction with a separate statutory exemption for IRA services under Section 4975(d)(2). 1. Overview of Deposit IRAs In this briefing paper, we are assuming, for purposes of the legal analysis and in order to meet all the conditions of the bank deposit exemption, that an IRA that invests exclusively in bank deposits (a “Deposit IRA”) operates as follows: • The Deposit IRA product is offered by a bank (“Bank”) that is incorporated and doing business under the laws of the United States or a State (including the District of Columbia) and is subject to supervision and examination by a Federal or State banking authority, such as the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (FDIC), or a State banking commissioner. 2 Definition of the Term “Fiduciary”; Conflict of Interest Rule – Retirement Investment Advice, 81 Fed. Reg. 20,946 (2016). 3 Best Interest Contract Exemption – Adoption of Class Exemption, 81 Fed. Reg. 21,002 (2016), technical corrections, 81 Fed. Reg. 44,773 (2016). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000190 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 3 • • • • • The Deposit IRA is opened in the same manner as any other type of IRA, and subject to the same contribution, withdrawal, and other rules applicable to IRAs under the Code, including the prohibited transaction rules and related exemptions under Section 4975. The Deposit IRA product is made available through a Bank or its branches, with the Bank serving as the IRA’s trustee and/or custodian. The IRA owner elects in the opening documentation to limit IRA investments exclusively to deposits in the offering Bank. These may be certificates of deposit (“CDs”) (including so-called “IRA CDs” that have special terms designed for IRA investors, such as the ability to make penalty-free withdrawals to meet the minimum required distribution rules), money market accounts, and savings accounts. All such deposits are insured by the Federal Deposit Insurance Corporation up to applicable limits. The Bank pays interest, and may impose service fees or other charges, in accordance with the terms it makes available for the particular types of deposit accounts. For example, CDs may be subject to early withdrawal penalties. The Deposit IRA may or may not be subject to trust or custody fees to cover the Bank’s services as IRA trustee or custodian, as applicable. 2. Section 4975 Prohibited Transaction Rules Section 4975 of the Code prohibits certain enumerated transactions between a “plan,” defined in Section 4975(e)(1) to include an IRA, and a “disqualified person” 4 with respect to the plan/IRA, as well as imposing certain additional prohibitions where the disqualified person is a fiduciary to the plan/IRA. 5 The penalty for violation is an excise tax imposed on the disqualified person that participates in the prohibited transaction (other than a fiduciary acting only as such) or, if the disqualified person is the individual for whose benefit the IRA was established, loss of the IRA’s tax-exempt status. 6 Furthermore, to avoid additional excise taxes, the prohibited transaction must be “corrected,” meaning that the transaction must be undone to the extent possible, in any case placing the plan/IRA in a financial position not worse than as if the prohibited transaction had not occurred.7 Most IRAs are not “employee benefit plans” subject to Title I of ERISA, 8 so the general fiduciary standards of ERISA do not apply to them. Under current law, however, interpretations of and exemptions from the Section 4975 prohibited transaction rules generally are issued by the DOL, and DOL interpretations of the 4 The term “disqualified person” is defined in Section 4975(e)(2) to include, among others, a fiduciary or person providing services to the plan/IRA, as well as certain affiliates of the fiduciary or service provider. 5 Because the focus of this briefing paper is on IRAs, the term “IRA” is used where, in most cases, the text can refer either to a plan or to an IRA. 6 Code §§ 408(e)(2), 4975(a). 7 Code §§ 4975(b), (f)(5). 8 See 29 C.F.R. § 2510.3-2(d) (stating the general rule that IRAs are not “plans” under ERISA, except in certain circumstances). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000191 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 4 parallel prohibited transaction and exemption provisions in Sections 406 and 408 of ERISA generally apply in determining how the Section 4975 prohibited transaction rules apply to non-ERISA IRAs. 9 3. Bank Deposits Covered by a Statutory Exemption As a provider of trust and/or custody services to an IRA, the Bank would be a “disqualified person” with respect to the IRA within the meaning of Section 4975(e)(2)(B). Consequently, certain types of transactions between the Bank and the IRA would be prohibited by Section 4975, absent an exemption. The categories of prohibited transactions in Section 4975(c)(1) include the lending of money or other extension of credit between an IRA and a disqualified person (Section 4975(c)(1)(B)), and the use of IRA assets by or for the benefit of a disqualified person (Section 4975(c)(1)(D)). According to guidance from the DOL, the deposit of an IRA’s funds in a bank deposit account would be viewed as an extension of credit from the IRA to the bank and also a “use” of the IRA’s funds for the benefit of the bank, thereby requiring an exemption if the bank is a disqualified person.10 In addition, where the bank has investment discretion or provides investment advice that makes it a fiduciary with respect to the IRA, the transaction may raise issues under the prohibitions on fiduciary self-dealing and conflicts of interest in Section 4975(c)(1)(E) and (F). Recognizing this potential issue, Congress included in the statute an exemption for a bank to invest an IRA’s assets in its own deposit accounts. This exemption is found in Section 4975(d)(4) of the Code and Section 408(b)(4) of ERISA. It provides exemptive relief for “the investment of all or part of [an IRA’s] assets in deposits which bear a reasonable interest rate in a bank or similar financial institution supervised by the United States or a State,” subject to conditions contained in the statute and described further by regulation. 11 The exemption covers the extension of credit between the IRA and the bank that is inherent in the IRA’s investment in the bank’s deposits and the bank’s use of the deposited assets, as well as fiduciary self-dealing and conflicts of interest otherwise prohibited by Section 4975(c)(1)(E). 12 The term 9 See Reorganization Plan No. 4 of 1978, § 102, 43 Fed. Reg. 47,713 (1978) (transfer of IRS authority to issue regulations, rulings, opinions and exemptions under Section 4975 transferred to DOL, with limited exceptions). In focusing on the application of Section 4975 of the Code, this white paper assumes that the Deposit IRAs would not be employee benefit plans subject to Title I of ERISA. It also is possible that an IRA would, depending principally on the level of employer involvement, be considered part of an ERISA Title I plan. For example, IRAs that are part of a “simplified employee pension,” or SEP, or a “simple retirement account” would be considered part of an ERISA Title I plan if the employer makes any contributions to those IRAs. If so, the same general analysis still would apply under the largely parallel prohibited transaction rules and exemptions of ERISA, which are subject to the same DOL interpretations as described herein. 10 For a description of bank deposits as raising these issues, see Proposed Exemptions; Deutsche Bank AG, 68 Fed. Reg. 10,035, 10,038 n.6 (2003) (in the absence of the ERISA Section 408(b)(4) exemption being available, a bank could rely on another exemption “to exempt the extension of credit and the use of plan assets by the foreign [bank] party in interest inherent in the investment in that [bank’s] deposits”). 11 Treas. Reg. § 54.4975-6(b) and 29 C.F.R. § 2550.408b-4 (IRS and DOL regulations, respectively). 12 Under the regulations, the exemption does not provide relief from Section 4975(c)(1)(F) (and its ERISA equivalent, Section 406(b)(3)), which prohibits an IRA fiduciary from receiving consideration for the fiduciary’s own personal account from any party dealing with the IRA in connection with a transaction involving IRA assets. The DOL, however, has taken the position that the normal benefit a bank would receive from holding deposits – decreased overnight borrowing needs from Federal institutions – is not received from a “party dealing with” the IRA so as to violate Section 406(b)(3). DOL Advisory Opinion 2009-01A (Jan. 13, 2009). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000192 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 5 “deposits” is broadly defined to include “any account, temporary or otherwise, upon which a reasonable rate of interest is paid, including a certificate of deposit issued by a bank.” 13 In providing coverage where the bank is a fiduciary, the exemption and the regulation do not draw any distinction as to the capacity or role in which the bank is serving as a fiduciary. For example, the exemption does not specify whether the bank has to be a fiduciary by reason of having investment discretion over the IRA’s assets, versus acting in a non-discretionary investment advisory capacity. In addition to requiring that the deposits bear a “reasonable” interest rate (generally measured by reference to interest rates available to other customers of the same bank and from other banks in the same geographic area 14), the exemption also requires authorization of the bank deposits as an investment for the particular IRA. According to the regulation, to meet this condition, the investment must be either expressly authorized by a provision of the IRA trust or custody agreement, or by a fiduciary of the IRA – other than the bank – who has authority to make such investments and who has no interest in the transaction that may affect the exercise of its best judgment as a fiduciary. If in the IRA trust or custody agreement, then the authorization must name the bank and must state that the bank may make investments in deposits that bear a reasonable rate of interest in itself or an affiliate. 15 4. Prohibited Transaction Issues Raised by the Amended Regulation A. Amended Regulation Expands the Definition of Fiduciary “Investment Advice” The Amended Regulation amends the definition of the term “fiduciary” under both ERISA and Section 4975 of the Code, effective April 10, 2017, to expand what is considered fiduciary “investment advice” for purposes of these provisions. 16 As relevant here, the fiduciary definition in the statute includes any person who “renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of 13 Treas. Reg. § 54.4975-6(b)(4)(iii); 29 C.F.R. § 2550.408b-4(c)(3). 14 While the concept of a “reasonable” rate of interest is not defined in the exemption itself or the related regulation, it is defined in an individual exemption based on Section 4975(d)(4), as “a rate of interest determinable by reference to short-term rates available to other customers of the bank, those offered by other banks, those available from money market funds, those applicable to short-term instruments such as repurchase agreements, or by reference to a benchmark such as sovereign short term debt (e.g., in the U.S., treasury bills), all in the jurisdiction where the rate is being evaluated.” Prohibited Transaction Exemption 2003-11, §III(f), 68 Fed. Reg. 34,648 (2003). 15 Treas. Reg. § 54.4975-6(b)(3)(i); 29 C.F.R. § 2550.408b-4(b)(2). 16 While the technical “effective date” of the Amended Regulation was June 7, 2016, the new rules actually take effect on the Amended Regulation’s “applicability date” of April 10, 2017. While there is a separate regulation under Section 4975 on the definition of a “fiduciary” – Treas. Reg. § 54.4975-9 – that provision has not been specifically amended by the recent change. Rather, the DOL regulation under ERISA now cross-references the relevant subsection under Section 4975, effectively superseding the 1975 Treasury regulation. Commenters on the proposed regulation challenged the DOL’s authority to regulate IRAs that are not subject to ERISA and therefore under a different statute; the DOL responded that it has such authority under Reorganization Plan No. 4 of 1978, cited above, including the authority to interpret the definition of the term “fiduciary” under Section 4975(e)(3). 81 Fed. Reg. at 20,991. This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000193 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 6 such plan, or has any authority or responsibility to do so.” 17 A 1975 regulation created what has been referred to as a “five-part” test for determining whether advice constitutes “investment advice” for this purpose. 18 The Amended Regulation considerably revises the five-part test and expands the categories of “recommendations” that can, subject to certain other factors, constitute fiduciary “investment advice.” These now include recommendations with respect to: 1. the advisability of acquiring, holding, disposing of, or exchanging securities or other investment property; 2. 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; 3. how securities or other investment property should be invested after the securities or other investment property are rolled over, transferred or distributed from a plan or IRA; and 4. the management of securities or other investment property, including, among other things, with regard to:     investment policies or strategies, portfolio composition, selection of other persons to provide investment advice or investment management services, or selection of investment account arrangements (e.g., brokerage versus advisory). 19 The 1975 regulation, by its terms, effectively only covered the first category, although there were DOL interpretations extending the definition to parts of the fourth category. The second and third categories are new, representing in part the reversal of a 2005 DOL position that recommendations as to distribution options, even if accompanied by a recommendation as to where the distribution would be invested, were not fiduciary investment advice. 20 B. Prohibited Transaction Issues in Marketing and Selling Deposit IRAs The Amended Regulation raises the following question: To what extent may the marketing and sales of Deposit IRAs, including discussions of rollovers from qualified plans or other IRAs into a Deposit IRA, 17 Code § 4975(e)(3)(B). The ERISA definition, in Section 3(21)(A)(ii), includes the additional language “to the extent,” so that a person is a fiduciary only “to the extent” the person performs the enumerated functions. While “to the extent” is missing from the Code definition, it is reflected in the associated regulation (see Treas. Reg. § 54.4975-9(c)(2)), and DOL interpretations do not draw any distinction on this basis. 18 Treas. Reg. § 54.4975-9; 29 C.F.R. § 2510.3-21. See 40 Fed. Reg. 50,840 (1975) (adopting these regulations). 19 29 C.F.R. § 2510.3-21(a)(1), as amended by the Amended Regulation. 20 See 81 Fed. Reg. at 20,964, indicating that the Amended Regulation supersedes DOL Advisory Opinion 2005-23A (Dec. 7, 2005). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000194 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 7 now constitute fiduciary investment advice subject to the prohibited transaction rules? Because the DOL declined to exclude recommendations of bank CDs from the categories of recommendations that may result in fiduciary status, fees or other compensation received as a result of recommending CD investments may require an exemption. 21 In its explanation of the Amended Regulation, the DOL clarified that so-called “hire me” discussions are not covered investment advice, as follows: [T]he final rule was revised to state, as an example of a covered recommendation on investment management, a recommendation on the selection of “other persons” to provide investment advice or investment management services. Accordingly, a person or firm can tout the quality of his, her, or its own advisory or investment management services or those of any other person known by the investor to be, or fairly identified by the adviser as, an affiliate, without triggering fiduciary obligations. 22 However, the DOL cautioned that the Amended Regulation does not necessarily exempt a person from being a fiduciary merely because the person is recommending its own services. The same passage in the preamble states: The final rule draws a line between an adviser’s marketing of the value of its own advisory or investment management services, on the one hand, and making recommendations to retirement investors on how to invest or manage their savings, on the other. An adviser can recommend that a retirement investor enter into an advisory relationship with the adviser without acting as a fiduciary. But when the adviser recommends, for example, that the investor pull money out of a plan or invest in a particular fund, that advice is given in a fiduciary capacity even if part of a presentation in which the adviser is also recommending that the person enter into an advisory relationship. … Thus, when a recommendation to “hire me” effectively includes a recommendation on how to invest or manage plan or IRA assets (e.g., whether to roll assets into an IRA or plan or how to invest assets if rolled over), that recommendation would need to be evaluated separately under the provisions in the final rule. 23 5. Reasons Why the Section 4975(d)(4) Exemption Would be Available The following discussion assumes that the conditions of Section 4975(d)(4) are otherwise being met, including the reasonable rate of interest and authorization requirements, and that the only type of IRA that the Bank is making available to the customer is a Deposit IRA. 21 81 Fed. Reg. at 20,962 (“the definition of investment property … should include bank CDs and similar investment products,” because the DOL “does not see any basis for differentiating advice regarding investments in CDs … from other investment products. … To the extent an adviser will receive a fee or other compensation as a result of a recommended investment in a CD, that communication presents the type of conflict of interest that is the focus of the rule.”). 22 Id. at 20,968. 23 Id. This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000195 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 8 A. Section 4975(d)(4) Exemption Covers Fiduciary Investment Advice The threshold question is whether the exemptive relief provided by Section 4975(d)(4) extends to nondiscretionary “investment advice” fiduciaries. There is no indication that this would not be the case. As noted above, the statute and regulation use the term “fiduciary” without distinguishing in which capacity the bank is acting as a fiduciary. This interpretation is confirmed by the DOL’s preamble to the final BIC Exemption, which indicates that Section 4975(d)(4), like the BIC Exemption, can provide exemptive relief for compensation received as a result of “investment advice” recommendations. In response to a request for broader supplemental relief for the extensions of credit viewed as being inherent in a bank deposit and certificate of deposit transaction, where such deposits may be recommended by an “investment advice” fiduciary in accordance with Section I of the exemption, the DOL said that while the final exemption did not include such relief, this relief is generally available under existing statutory exemptions such as ERISA Section 408(b)(4) and Code Section 4975(d)(4). 24 B. Section 4975(d)(4) Exemption Can Cover Rollover Advice The next question is whether Section 4975(d)(4) can cover any investment advice that the Amended Regulation would deem to occur in connection with an individual’s rollover of qualified plan or IRA assets into a Deposit IRA. When Section 4975(d)(4) was enacted and the related regulation was adopted, rollover advice was not considered fiduciary investment advice. However, once the definition of fiduciary investment advice is expanded to include rollovers, any reference to fiduciary status in the statute or the regulations should presumably now be interpreted to include rollover advice as well, whether as part of a prohibition or part of an exemption from a prohibition. Therefore, the term fiduciary as used in Section 4975(d)(4) can now reasonably be viewed to cover a person that is a fiduciary by reason of providing rollover advice, to the extent such advice triggers fiduciary status, unless there were a reason to interpret the exemption by its terms to exclude rollover transactions. If other investments were available within an IRA, or alternative forms of IRA were available, then additional exemptive relief could be necessary to address conflicts of interest in recommending between, for example, a Deposit IRA versus a brokerage account IRA that permits investments in a wide range of securities. If the only available form of IRA is a Deposit IRA and the only available investments within 24 81 Fed. Reg. at 21,064. In the same discussion, the DOL pointed out that a statutory exemption that could be available for purchases of debt securities – ERISA Section 408(b)(17) and Code Section 4975(d)(20) – would not provide relief where the issuer is a fiduciary, requiring a separate exemption to provide fiduciary relief. However, the DOL did not draw any such distinction with regard to ERISA Section 408(b)(4) and Code Section 4975(d)(4). This result is consistent with the position that the DOL took when a similar question arose in connection with an administrative exemption for a plan fiduciary to execute securities transactions for a fee through itself or an affiliate. Prohibited Transaction Exemption (“PTE”) 86-128, 51 Fed. Reg. 41,686 (1986), most recently amended at 81 Fed. Reg. 21,181 (2016). The DOL took the view that PTE 86-128, by its terms, provides relief for covered transactions engaged in by any person who meets the definition of a fiduciary under ERISA (and, by extension, the Code), including a person who is a fiduciary solely by reason of rendering investment advice. The DOL said that while the exemption specifically excludes relief for plan administrators and plan sponsors, it contains no exclusion for “investment advice” fiduciaries. DOL Advisory Opinion 2011-08A (June 21, 2011). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000196 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 9 the IRA are Bank deposits, however, then a Bank’s recommendation of a rollover into a Deposit IRA would be the same as a recommendation to invest in the Bank’s deposits. As that is what the Section 4975(d)(4) exemption covers, it is reasonable to read the exemption as covering all aspects of the investment advice that leads to the Bank deposit investments, including the rollover advice. 25 6. Separate Exemptive Relief Is Available for IRA Trust and Custody Services The Section 4975(d)(4) exemption would not cover the Bank’s role as trustee or custodian of a Deposit IRA, or any fees or other compensation the Bank receives for its trust or custody services. As a general matter, the Bank’s compensation for such services would be covered by a separate exemption, Section 4975(d)(2), which provides relief for reasonable arrangements for the provision by a disqualified person of services necessary for the establishment or operation of an IRA, if no more than reasonable compensation is paid for the services. However, this exemption has been interpreted not to provide relief from the prohibition against fiduciary self-dealing. 26 The question, then, would be whether a Bank’s advice with regard to using a Deposit IRA to which the Bank provides trust or custody services, for compensation, could be viewed as raising a separate prohibited self-dealing issue under the new definition that is not covered by the Section 4975(d)(2) exemption. 27 There are two arguments as to why retaining the Bank as a Deposit IRA trustee or custodian should not be considered to be the result of fiduciary investment advice. The first is that the Bank, in marketing its IRA trust and custody services, should come within the so-called “hire me” exception described in Section IV.B. above, because the Bank would only be marketing its own services. The second is that, unless the Bank is at the same time marketing its services as an investment adviser or investment manager for the IRA (including as part of its role as trustee, if applicable), it has not done anything that comes within the scope of an investment advice recommendation as contemplated by the Amended Regulation. The preamble to the final regulation clarified this view in response to concerns as to whether recommendations of service providers who are not fiduciary investment advisers or investment managers 25 We note that one of the administrative class exemptions that was amended in conjunction with the Amended Regulation, PTE 84-24 (which permits “investment advice” fiduciaries to receive compensation in connection with the purchase of insurance and annuity contracts and mutual fund shares), was specifically revised to include rollover and distribution transactions within the scope of relief. 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 (2016). Notably, though, the DOL did not originally include this revision in its proposed changes to PTE 84-24. In response to comments that expressed concern as to whether the amended exemption would cover transactions resulting from a rollover or distribution, the DOL responded that it had intended the exemption’s original language to cover such transactions, but it nevertheless amended the text to state specifically that it applies. 81 Fed. Reg. at 21,155. Thus, consistent with the reading of Section 4975(d)(4) described here, the DOL’s position is that inclusion of rollover/distribution language is not necessary for an exemption otherwise providing exemptive relief to fiduciaries to reach such transactions. An additional consideration is whether a rollover recommendation to an ERISA plan participant brings into consideration Title I of ERISA. In the preamble to the Amended Regulation, the DOL took the view that recommendations on distributions from an ERISA plan, including rollovers, would be covered by Title I of ERISA. 81 Fed. Reg. at 20,964. If that is the case, then the same analysis should apply under the parallel provisions of ERISA, including the parallel bank deposit exemption under ERISA Section 408(b)(4). 26 Treas. Reg. § 54.4975-6(a)(1). 27 If the Bank does not charge separately for its trust or custody services, however, there would not be a separate fiduciary self-dealing issue. See Treas. Reg. § 54.4975-6(a)(5)(iii) (“Services without compensation,” stating that if a fiduciary provides services to a plan without the receipt of compensation, the provision of the services would not, in and of itself, constitute prohibited self-dealing). This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000197 Department of Labor (DOL) Fiduciary Rule: Exemption for Bank IRA Deposit Programs 10 may be considered fiduciary advice. The DOL stated that it did not intend the regulation to reach recommendations of persons to provide services, such as non-discretionary execution of securities transactions or recordkeeping, that did not come within these categories. 28 A possible question on these arguments is raised by the DOL’s distinction, in its “hire me” discussion, that recommending whether to roll over assets into an IRA would not come within the “hire me” exception and would need to be evaluated separately under the provisions in the final rule. 29 But in the context of a rollover to a Deposit IRA that exclusively invests in bank deposits, this separate evaluation would then lead to looking to the Section 4975(d)(4) exemption to cover that particular recommendation, as discussed above. The DOL did not say that a discussion of rollovers or investments results in the “hire me” discussion becoming investment advice, only that such discussions are not within the “hire me” exception. Thus, where the retention of the Bank as IRA trustee or custodian is ancillary to the advice to roll over into a Deposit IRA, these statements should not affect the ability to treat the recommendation of the Bank’s IRA trust or custody services, standing alone, as coming within that exception. 7. Conclusion The expanded definition of fiduciary investment advice under the Amended Regulation has called into question a number of practices that now, according to the DOL, will become subject to fiduciary status and the prohibited transaction rules. Nevertheless, where a Bank is making available only a Deposit IRA that will invest exclusively in the Bank’s deposits, it should be reasonable for the Bank to take the position that any additional prohibited transaction issues raised by the expanded definition in its marketing of Deposit IRAs would be covered by the Section 4975(d)(4) exemption for bank deposit investments, and by the Section 4975(d)(2) exemption to the extent necessary to cover the Bank’s IRA trust or custody services. A bank, therefore, may reasonably rely on these statutory exemptions, rather than on the BIC Exemption, to cover (1) an IRA’s investment in bank deposits (including bank CDs), and (2) rollovers into an IRA that invests exclusively in bank deposits (including bank CDs). This paper has been prepared for the American Bankers Association by Morgan, Lewis & Bockius LLP, an international law firm. The information contained in this paper is provided as general information. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. 28 81 Fed. Reg. at 20,968. 29 81 Fed. Reg. at 20,968. This Briefing Paper does not provide, nor is it intended to substitute for, professional legal advice. VERSIGHT DOL-17-0281-B-000198 Case: 17-10238 Document: 00513977154 Page: 1 Date Filed: 05/02/2017 No. 17-10238 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, v. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Texas, Dallas Division, Nos. 3:16-cv-1476, 3:16-cv-1530, 3:16-cv-1537 BRIEF FOR ACLI AND NAIFA APPELLANTS COUNSEL LISTED ON INSIDE COVER DOL-17-0281-B-000199 Case: 17-10238 Document: 00513977154 ANDREA J. ROBINSON WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 MICHAEL A. YANOF THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor – Plaza of the Americas Dallas, TX 75201 Page: 2 Date Filed: 05/02/2017 DAVID W. OGDEN Counsel of Record KELLY P. DUNBAR ARI HOLTZBLATT KEVIN M. LAMB WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 Counsel for American Council of Life Insurers, National Association of Insurance and Financial Advisors, National Association of Insurance and Financial Advisors-Texas, National Association of Insurance and Financial AdvisorsAmarillo, National Association of Insurance and Financial Advisors-Dallas, National Association of Insurance and Financial Advisors-Fort Worth, National Association of Insurance and Financial Advisor-Great Southwest, and National Association of Insurance and Financial Advisors-Wichita Falls May 2, 2017 AMERICAN PVERSIGHT DOL-17-0281-B-000200 Case: 17-10238 Document: 00513977154 Page: 3 Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, v. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. VERSIGHT -i- DOL-17-0281-B-000201 Case: 17-10238 Document: 00513977154 Page: 4 Date Filed: 05/02/2017 The undersigned counsel of record certifies the following listed persons and entities as described in the fourth sentence of Local Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Appellants the American Council of Life Insurers, the National Association of Insurance and Financial Advisors, the National Association of Insurance and Financial Advisors-Texas, the National Association of Insurance and Financial Advisors-Amarillo, the National Association of Insurance and Financial AdvisorsDallas, the National Association of Insurance and Financial Advisors-Fort Worth, the National Association of Insurance and Financial Advisors-Great Southwest, and the National Association of Insurance and Financial Advisors-Wichita Falls are all nonprofit associations or organizations that have no parent corporation, and no publicly held corporation owns 10 percent or more of their respective stock. A. Plaintiffs-Appellants 1. 2. 3. 4. 5. 6. 7. 8. 9. American Council of Life Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors-Texas National Association of Insurance and Financial Advisors-Amarillo National Association of Insurance and Financial Advisors-Dallas National Association of Insurance and Financial Advisors-Fort Worth National Association of Insurance and Financial Advisors-Great Southwest National Association of Insurance and Financial Advisors-Wichita Falls Others who are not participants in this matter but may be financially interested in its outcome include financial services providers, insurance companies, and retirement savers AMERICAN PVERSIGHT - ii - DOL-17-0281-B-000202 Case: 17-10238 B. Document: 00513977154 Page: 5 Date Filed: 05/02/2017 Current and Former Attorneys for Plaintiffs-Appellants David W. Ogden Kelly P. Dunbar Jessica P. Leinwand Ari Holtzblatt Kevin M. Lamb WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Andrea J. Robinson WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Michael A. Yanof THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor – Plaza of the Americas Dallas, TX 75201 C. Co-Plaintiffs-Appellants 10. 11. 12. 13. 14. Chamber of Commerce of the United States of America Financial Services Institute, Inc. Financial Services Roundtable Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business American Equity Investment Life Insurance Company Indexed Annuity Leadership Council Life Insurance Company of the Southwest Lubbock Chamber of Commerce Midland National Life Insurance Company North American Company for Life and Health Insurance 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. AMERICAN PVERSIGHT - iii - DOL-17-0281-B-000203 Case: 17-10238 D. Document: 00513977154 Page: 6 Date Filed: 05/02/2017 Attorneys for Co-Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W., Suite 400 Washington, DC 20005 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, DC 20062 David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W., Suite 750 Washington, DC 20005 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201 J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, DC 20005 Joseph P. Guerra Peter D. Keisler Eric D. McArthur SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Yvette Ostolaza SIDLEY AUSTIN LLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 E. Defendants-Appellees 25. 26. United States Department of Labor Edward C. Hugler, Acting Secretary, U.S. Department of Labor AMERICAN PVERSIGHT - iv - DOL-17-0281-B-000204 Case: 17-10238 F. Document: 00513977154 Page: 7 Date Filed: 05/02/2017 Attorneys for Defendants-Appellees Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen M. Patricia Smith Elizabeth Hopkins U.S. DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 200 Constitution Avenue, N.W., Suite N-2119 Washington, DC 20210 Michael Shih Michael S. Raab U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, APPELLATE SECTION 950 Pennsylvania Avenue, N.W., Suite 7268 Washington, DC 20530 Galen N. Thorp Emily Newton Joyce R. Branda Benjamin C. Mizer John R. Parker Judry L. Subar U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W., Room 6140 Washington, DC 20001 G. Amici in the District Court 27. 28. 29. 30. 31. 32. 33. 34. 35. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce AMERICAN PVERSIGHT -v- DOL-17-0281-B-000205 Case: 17-10238 H. Document: 00513977154 Page: 8 Date Filed: 05/02/2017 Attorneys for Amici in the District Court Mary Ellen Signorille AARP Foundation Litigation 601 E St., N.W. Washington, DC 20049 Brent M. Rosenthal ROSENTHAL WEINER LLP 12221 Merit Drive, Suite 1640 Dallas, TX 75251 Bernard A. Guerrini 6500 Greenville Avenue, Suite 320 Dallas, TX 75206 Julie Alyssa Murray PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, DC 20009 Martin Woodward STANLEY LAW GROUP 6116 North Central Expressway, Suite 1500 Dallas, TX 75206 Braden W. Sparks. BRADEN W. SPARKS PC 12222 Merit Drive, Suite 800 Dallas, TX 75251 Deepak Gupta Matthew W. H. Wessler GUPTA WESSLER PLLC 1735 20th Street, N.W. Washington, D.C. 2009 Dennis M. Kelleher BETTER MARKETS INC. 1825 K. Street, N.W., Suite 1080 Washington, DC 20006 Theodore Carl Anderson, III Alexandra Treadgold KILGORE & KILGORE PLLC 3109 Carlisle Street, Suite 200 Dallas, TX 75204 Brandan S. Maher STRIS & MAHER LLP 1920 Abrams Parkway, Suite 430 Dallas, TX 75124 Doug D. Geyser STRIS & MAHER LLP 6688 North Central Expressway, Suite 1650 Dallas, TX 75206 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road, Suite 650 Dallas, TX 75254 Charles Flores BECK REDDEN LLP 1221 McKinney Street, Suite 4500 Houston, TX 77010 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER & KIRK PLLC 1523 New Hampshire Ave NW Washington, DC 20036 AMERICAN PVERSIGHT -v- DOL-17-0281-B-000206 Case: 17-10238 Document: 00513977154 Page: 9 Date Filed: 05/02/2017 /s/ David W. Ogden DAVID W. OGDEN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 May 2, 2017 - vi - DOL-17-0281-B-000207 Case: 17-10238 Document: 00513977154 Page: 10 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT Appellants respectfully submit that their statutory and constitutional challenges to the Fiduciary Rule promulgated by the U.S. Department of Labor are sufficiently important to warrant oral argument. AMERICAN PVERSIGHT - vii - DOL-17-0281-B-000208 Case: 17-10238 Document: 00513977154 Page: 11 Date Filed: 05/02/2017 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS .........................................................i STATEMENT REGARDING ORAL ARGUMENT ............................................ vii TABLE OF AUTHORITIES ..................................................................................... x INTRODUCTION ..................................................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 3 STATEMENT OF ISSUES ON APPEAL ................................................................ 3 STATEMENT OF THE CASE .................................................................................. 4 A. The Significant Role Of Annuities In The Retirement Savings Marketplace ............................................................................. 4 B. Existing Practices Ensure Consumers Have Access To Annuities And Information About Annuities........................................ 6 C. Existing Federal And State Regulation Provides Robust Protection To Consumers ...................................................................... 7 D. The Rule ................................................................................................ 9 E. Procedural History............................................................................... 11 SUMMARY OF THE ARGUMENT ...................................................................... 11 STANDARD OF REVIEW ..................................................................................... 13 ARGUMENT ........................................................................................................... 14 I. THE RULE VIOLATES THE FIRST AMENDMENT AS APPLIED TO THE COMMERCIAL SPEECH OF APPELLANTS’ MEMBERS ................................ 14 A. The Rule Is Subject To Heightened First Amendment Review ................................................................................................. 14 AMERICAN PVERSIGHT - viii - DOL-17-0281-B-000209 Case: 17-10238 II. Document: 00513977154 Page: 12 Date Filed: 05/02/2017 1. The Rule imposes heavy burdens on non-fiduciary sales speech in a content-discriminatory manner ..................... 15 2. The district court erred by effectively applying no First Amendment review to the Rule ........................................ 20 a. The professional speech doctrine does not shield the Rule from First Amendment review .............................................................................. 20 b. The Rule is not targeted at misleading speech ............................................................................. 25 c. The First Amendment claim was not waived .................. 28 B. The Rule Fails First Amendment Scrutiny.......................................... 32 C. ERISA Should Be Construed To Avoid These Serious Constitutional Problems ...................................................................... 36 THE RULE’S TREATMENT OF VARIABLE AND FIXED-INDEXED ANNUITIES VIOLATES THE APA ..................................................................... 38 A. DOL Unreasonably Failed To Account For The Rule’s Effects On Consumer Access To Variable And FixedIndexed Annuities................................................................................ 38 B. DOL Unreasonably Disregarded Existing Annuity Regulation ........................................................................................... 44 CONCLUSION ........................................................................................................ 50 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE AMERICAN PVERSIGHT - ix - DOL-17-0281-B-000210 Case: 17-10238 Document: 00513977154 Page: 13 Date Filed: 05/02/2017 TABLE OF AUTHORITIES CASES Page(s) 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ...............................18, 19 Air Transportation Ass’n of America v. FAA, 169 F.3d 1 (D.C. Cir. 1999) ............................................................................................. 49 Allstate Insurance. Co. v. Abbott, 495 F.3d 151 (5th Cir. 2007) ............................. 27 American Equity Investment Life Insurance Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2010) .................................................................44, 49 Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) ............................ 32 Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) .................... 29 Bailey v. Morales, 190 F.3d 320 (5th Cir. 1999) ..................................................... 13 BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003) ................................... 31 Bigelow v. Virginia, 421 U.S. 809 (1975) ............................................................... 23 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ................................ 34 Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) ............................... 48 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)...............................................18, 27, 32, 33 Citizen Action Fund v. City of Morgan City, 154 F.3d 211 (5th Cir. 1998) ............................................................................................... 28 Citizens United v. FEC, 558 U.S. 310 (2010).......................................................... 28 Clark v. Martinez, 543 U.S. 371 (2005) .................................................................. 37 Competitive Enterprise Institute v. National Highway Traffic Safety Admination, 956 F.2d 321 (D.C. Cir. 1992) ............................................38, 43 Darden v. Peters, 488 F.3d 277 (4th Cir. 2007) ...................................................... 13 AMERICAN PVERSIGHT -x- DOL-17-0281-B-000211 Case: 17-10238 Document: 00513977154 Page: 14 Date Filed: 05/02/2017 Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592 (5th Cir. 2007) ............................................................................................... 31 Delta Foundation, Inc. v. United States, 303 F.3d 551 (5th Cir. 2002) .................. 30 Desoto General Hospital v. Heckler, 766 F.2d 182 (5th Cir. 1985) ....................... 48 Edenfield v. Fane, 507 U.S. 761 (1993) ..........................................18, 21, 24, 27, 35 Expression Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) ........................ 21 Gibson v. Texas Department of Insurance—Divison of Workers’ Compensation, 700 F.3d 227 (5th Cir. 2012) ....................................21, 27, 28 Gulf Restoration Network v. Salazar, 683 F.3d 158 (5th Cir. 2012) ....................... 31 Hersh v. United States ex rel. Mukasey, 553 F.3d 743 (5th Cir. 2008) ................... 36 In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982)........................................ 36 In re R. M. J., 455 U.S. 191 (1982)....................................................................27, 28 INS v. St. Cyr, 533 U.S. 289 (2001) ...................................................................36, 37 King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) ............................... 25 Lebrun v. National Railroad Transportation Corp., 513 U.S. 374 (1995) ............................................................................................................. 36 Linmark Associates, Inc. v. Willingboro Township, 431 U.S. 85 (1977) ................ 18 Lowe v. SEC, 472 U.S. 181 (1985) ....................................................................21, 23 Mathews v. Eldridge, 424 U.S. 319 (19776) ........................................................... 31 Michigan v. EPA, 135 S. Ct. 2699 (2015) .........................................................38, 44 Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir. 1997) .............................................................................................................. 29 Motor Vehicle Manufacturers Ass’n of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)................38, 44 National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006) ............................................................................................. 50 AMERICAN PVERSIGHT - xi - DOL-17-0281-B-000212 Case: 17-10238 Document: 00513977154 Page: 15 Date Filed: 05/02/2017 National Institute of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) ............................................................................................... 25 Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ................................................... 32 Owner-Operator Independent Drivers Ass’n v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007) .................................. 49 Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004) ................................................... 19 Porter v. Califano, 592 F.2d 770 (5th Cir. 1979) .................................................... 13 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ........................................15, 17, 18 Resolute Forest Products, Inc. v. Department of Agriculture, 187 F. Supp. 3d 100 (D.D.C. 2016)............................................................... 48 Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016) ........................................22, 24 Sims v. Apfel, 530 U.S. 103 (2000) .......................................................................... 30 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)................................................................................passim Texas v. EPA, 690 F.3d 670 (5th Cir. 2012) ......................................................13, 44 United States v. District of Columbia, 897 F.2d 1152 (D.C. Cir. 1990) ................ 29 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)..........................................................18, 34 Weaver v. United States Information Agency, 87 F.3d 1429 (D.C. Cir. 1996) ............................................................................................. 29 Wold Communications, Inc. v. FCC, 735 F.2d 1465 (D.C. Cir. 1984) ................... 41 Wollschlaeger v. Governor of Florida, 848 F.3d 1293 (11th Cir. 2017) ................ 25 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).................................................................................18, 34 AMERICAN PVERSIGHT - xii - DOL-17-0281-B-000213 Case: 17-10238 Document: 00513977154 Page: 16 Date Filed: 05/02/2017 STATUTES AND RULES 5 U.S.C. § 706 ..............................................................................................13, 28, 29 15 U.S.C. § 77f ................................................................................................................. 8 § 77g ................................................................................................................ 8 § 77h ................................................................................................................ 8 § 77j ................................................................................................................. 8 § 78j ............................................................................................................... 26 26 U.S.C. § 4975 ...................................................................................................... 37 28 U.S.C. § 1291 .............................................................................................................. 3 § 1331 .............................................................................................................. 3 § 2201 ............................................................................................................ 14 § 2202 ............................................................................................................ 14 29 U.S.C. § 1002 ...................................................................................................... 37 42 U.S.C. § 7607 ...................................................................................................... 31 Fed. R. App. P. 4. ....................................................................................................... 3 REGULATIONS AND ADMINISTRATIVE MATERIALS 17 C.F.R. § 240.10b-5 .............................................................................................. 26 29 C.F.R. § 2510.3-21 ..................................................................................15, 16, 20 Definition of the Term “Fiduciary,” 40 Fed. Reg. 50,842 (Oct. 31, 1975) ............................................................. 37 Financial Industry Regulatory Authority Regulatory Notice 11-02 (eff. Oct. 7, 2011) ............................................... 45 Regulatory Notice 07-53 (eff. May 5, 2008) ............................................... 46 Rule 2111 .............................................................................................8, 45, 46 Rule 2210-2 ..................................................................................................... 8 Rule 2330 .............................................................................................8, 46, 47 AMERICAN PVERSIGHT - xiii - DOL-17-0281-B-000214 Case: 17-10238 Document: 00513977154 Page: 17 Date Filed: 05/02/2017 National Association of Insurance Commissioners, Model Suitability Rule...........................................................................8, 9, 47 Model Unfair Trade Practices Act ................................................................. 26 OTHER AUTHORITIES Brien, Michael J. & Constantijn W.A. Panis, Annuities in the Context of Defined Contribution Plans (Nov. 2011), available at https://www.dol.gov/sites/default/files/ebsa/researchers/analysis /retirement/Deloitte2011.pdf .....................................................................6, 39 Heinrich, Pam, State Roundup: State of the States—2015 Year in Review, NAFA Annuity Outlook Magazine (Feb. 10, 2016), http://annuityoutlookmagazine.com/2016/02/state-roundup/........................ 46 Iacurci, Greg, Department of Labor’s fiduciary rule blamed for insurers’ massive hit on variable annuity sales, InvestmentNews (Mar. 28, 2017), http://www.investmentnews.com/article/20170328/FREE/1703 29922/department-of-labors-fiduciary-rule-blamed-for-insurersmassive-hit ..................................................................................................... 41 Smolla, Rodney A., Smolla & Nimmer on Freedom of Speech § 20:37.40 (2017).....................................................................................24, 25 Schoeff, Mark, Perez calls out variable annuities in argument for DOL fiduciary rule, InvestmentNews (June 24, 2015), http://www.investmentnews.com/article/20150624/FREE/1506 29958/perez-calls-out-variable-annuities-in-argument-for-dolfiduciary-rule ................................................................................................. 42 AMERICAN PVERSIGHT - xiv - DOL-17-0281-B-000215 Case: 17-10238 Document: 00513977154 Page: 18 Date Filed: 05/02/2017 INTRODUCTION Appellants are national and Texas-based associations that represent member life insurance companies, insurance agents, and brokers who issue, market, and sell insurance products, including annuities, to American retirement savers.1 This suit challenges an attempt by the Department of Labor (“DOL”) to upend and transform the way that annuities have been explained, marketed, and sold to consumers for decades. Through a complex of provisions, collectively called the “Fiduciary Rule” or “Rule,” DOL has attempted a radical intervention in the retirement savings marketplace that imposes unprecedented burdens on traditional sales speech involving retirement products. Not only does the Rule constrict the flow of truthful information, but it also biases consumer choices by burdening speech about some products more than others—in both cases, harming the very retirement savers DOL purports to be protecting. The Rule is deeply flawed and unlawful for many reasons. Appellants focus here on legal defects particularly relevant to annuities. First of all, the Rule violates the First Amendment rights of Appellants’ members to communicate truthful commercial information to consumers about the annuities those members 1 Appellants here—collectively, “Appellants” or “the ACLI and NAIFA Appellants”—comprise the American Council of Life Insurers (“ACLI”), the National Association of Insurance and Financial Advisors (“NAIFA”), NAIFATexas, NAIFA-Amarillo, NAIFA-Dallas, NAIFA-Fort Worth, NAIFA-Great Southwest, and NAIFA-Wichita Falls. 1 DOL-17-0281-B-000216 Case: 17-10238 Document: 00513977154 Page: 19 Date Filed: 05/02/2017 issue, market, and sell. The Rule imposes new and significant “fiduciary” burdens on garden-variety sales conversations and in doing so draws speaker-, listener-, and content-based distinctions—all of which are designed to manipulate the sales information and recommendations consumers receive to influence consumers to select products favored by DOL. The Rule is thus subject to, and fails, the heightened judicial scrutiny required by Supreme Court precedent as well as the intermediate scrutiny applied to commercial speech regulation. The Rule’s discriminatory treatment of annuities also fails the most basic requirements of reasoned decisionmaking under the Administrative Procedure Act (“APA”). Annuities play a critical role in today’s retirement marketplace—a role that the Rule will substantially impede by placing heavier burdens on recommendations and sales of some types of annuities compared to others. Remarkably, despite the obvious impact that the Rule will have on retirement savers’ choice of annuities, DOL wholly failed to consider the significant consumer benefits of the products the Rule threatens to drive from the marketplace, and therefore failed to assess the injury to consumers that the Rule will inflict. Furthermore, in imposing for the first time sweeping fiduciary obligations on insurance agents and brokers selling annuities, DOL failed to adequately consider the comprehensive and recently strengthened regulatory regimes that already protect consumers from the harms posited by the Rule. DOL’s assessment of those AMERICAN PVERSIGHT 2 DOL-17-0281-B-000217 Case: 17-10238 Document: 00513977154 Page: 20 Date Filed: 05/02/2017 existing regimes was superficial and illogical and thus contrary to the requirements of reasoned decisionmaking. For those reasons and others, this Court should grant Appellants equitable relief from enforcement of the Rule, vacate the Rule under the APA, or both. JURISDICTIONAL STATEMENT The district court had jurisdiction pursuant to 28 U.S.C. § 1331. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The district court issued its Memorandum Opinion and Order on February 8, 2017, ROA.9873-9953, entering final judgment on February 9, 2017, ROA.9954. Appellants filed their Notice of Appeal on February 28, 2017. ROA.9959-9961. This appeal is timely under Federal Rule of Appellate Procedure 4(a)(1). STATEMENT OF ISSUES ON APPEAL In addition to the issues raised by the Chamber Appellants and IALC Appellants—which the ACLI and NAIFA Appellants join in and incorporate by reference here—the following issues are presented on appeal: (1) Whether the Rule violates the First Amendment as applied to Appellants’ members by imposing onerous fiduciary obligations on the commercial speech of insurance agents and others; AMERICAN PVERSIGHT 3 DOL-17-0281-B-000218 Case: 17-10238 (2) Document: 00513977154 Page: 21 Date Filed: 05/02/2017 Whether the Rule is arbitrary and capricious under the APA because DOL admittedly failed to consider the harm to consumers from decreased access to variable and fixed-indexed annuities under the Rule; and (3) Whether the Rule is arbitrary and capricious under the APA because DOL unreasonably failed to consider whether existing, and recently strengthened, regulations already provide sufficient protection to retirement savers. STATEMENT OF THE CASE This appeal challenges a collection of related final rules promulgated by DOL, referred to collectively as the “Fiduciary Rule” or “Rule.” ROA.322-1019. The statement of this brief focuses on the Rule’s unlawful impact on those who buy, sell, and issue annuity products. A. The Significant Role Of Annuities In The Retirement Savings Marketplace Retirees today must balance numerous retirement objectives. They must save enough to provide for a potentially long life after retirement. They must protect their assets from the effects of inflation. And they must protect those assets against weak markets and declining asset values. The annuity products that Appellants’ members issue, market, and sell provide unique opportunities for retirement savers and retirees to balance those sometimes competing retirement risks and objectives. An annuity is a contract between an insurance company and an individual. Subject to the terms of the AMERICAN PVERSIGHT 4 DOL-17-0281-B-000219 Case: 17-10238 Document: 00513977154 Page: 22 Date Filed: 05/02/2017 contract, the individual invests a lump sum or series of payments, in exchange for periodic payments over either a set period of time or the individual’s lifetime. An annuity can protect a retirement saver who lives a long life by providing a stream of guaranteed income payments for life. Retirement savers can further choose annuities with features that guard against inflation, investment-asset decline, or both. Various annuity products allow retirement savers to prioritize these objectives differently. For example, a “fixed-rate annuity” prioritizes protection against investment risk by setting a declared interest rate that does not vary whether the market rises or falls. A “fixed-indexed annuity,” by contrast, balances investment and inflation risk by tying rates, in part, to a market index, such as the S&P 500, while guaranteeing that rates will never fall below a specified minimum. And a “variable annuity” unlocks the full potential of investment market growth and thus maximizes protection against inflation risk by basing payments on a portfolio of assets selected by the retirement saver. Which type of annuity best meets the needs of a particular consumer depends upon, among other things, the consumer’s financial situation, objectives, risk tolerance, and other investments. Because they address the needs of retirees, annuities are enormously popular. Consumer satisfaction with annuities reflects the critical role they play in today’s retirement marketplace in providing guaranteed lifetime income (in an era AMERICAN PVERSIGHT 5 DOL-17-0281-B-000220 Case: 17-10238 Document: 00513977154 Page: 23 Date Filed: 05/02/2017 with fewer and fewer pensions). For example, an earlier DOL-commissioned study “found that beneficiaries of lifelong guaranteed income”—through an annuity or pension—“were more satisfied in retirement and suffered from fewer depressions symptoms than those without such income.” Brien & Panis, Annuities in the Context of Defined Contribution Plans 1 (Nov. 2011). The “boost in wellbeing became stronger” the longer a person was retired—a finding “consistent with the notion that … recipients of lifelong-guaranteed income … are less concerned with outliving their resources.” Id. Numerous other studies in the administrative record—largely ignored by DOL—also demonstrated the singular value of annuities to retirement savers. E.g., ROA.7337, 7339, 7668-7669, 7811-7813. B. Existing Practices Ensure Consumers Have Access To Annuities And Information About Annuities Retirement investors often learn about annuities tailored to their particular objectives and circumstances the same way they learn about other products— through conversations with salespeople. For fixed annuities, that salesperson is most often an insurance agent; for variable annuities, it is a registered broker. Agents and brokers may be affiliated with an insurer and devote substantially all their sales efforts to that insurer’s proprietary products. Or they may be independent and sell a range of products issued by different insurers. Many independent agents—and especially those who sell fixed-indexed annuities—work AMERICAN PVERSIGHT 6 DOL-17-0281-B-000221 Case: 17-10238 Document: 00513977154 Page: 24 Date Filed: 05/02/2017 with third-party independent marketing organizations, from which they obtain sales support, product recommendations, and training. Insurers pay agents and brokers sales commissions to compensate them for the time and effort needed to sell annuities. ROA.7337. Other compensation models, like annual fees based on a percentage of assets, are a poor fit for sales of annuities because most of agents’ and brokers’ efforts occur up front. ROA.73837384. An annuity, once purchased, is typically held for a long period without the need for added services from the salesperson. Fee-based accounts also typically require savers to maintain a minimum balance between $100,000 and $250,000— an amount that places such accounts out of reach for most Americans. ROA.85208521. And because savers often hold annuities for a long time without needing ongoing assistance, switching to annual fees would increase costs for many with no corresponding benefit. ROA.7358-7359, 7714-7715, 8561-8562. C. Existing Federal And State Regulation Provides Robust Protection To Consumers Comprehensive regulations govern annuities. ROA.7380-7381, 7388-7657. Designed to protect consumers, these regulations have the same stated goals DOL articulated in promulgating the Rule. As insurance products, all annuities are subject to state insurance laws administered by state insurance regulators. In addition, the Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”) regulate the sale of variable annuities. AMERICAN PVERSIGHT 7 DOL-17-0281-B-000222 Case: 17-10238 Document: 00513977154 Page: 25 Date Filed: 05/02/2017 This regulatory oversight is designed to ensure that consumers receive truthful information about investment options and suitable retirement recommendations and to punish sellers who fall short. Regulators at both the state and national levels have strengthened these regulations in recent years, as described further below. Anyone who sells variable annuities must register as a broker-dealer with FINRA and comply with, among other rules, both general suitability rules governing the sale of all securities (FINRA Rule 2111) and specific, more stringent requirements targeted at the sale of variable annuities (FINRA Rule 2330). Variable annuities must be registered with the SEC, 15 U.S.C. §§ 77f-h; customers must receive a prospectus filed with the SEC describing the annuity’s features, id. § 77j; and variable annuity advertising must comply with FINRA Rule 2210-2. Comprehensive state regulations also govern annuities. The National Association of Insurance Commissioners (“NAIC”) has crafted a Model Suitability Rule for annuities that has been adopted in some form by 48 States and the District of Columbia. The recently strengthened 2010 Model Rule requires agent training in annuity products, supervision and oversight by the insurance company, and enforcement by state regulators. NAIC Model Suitability Rule § 6(A). It also prohibits an insurance agent from recommending an annuity until the agent has thoroughly informed the consumer of the annuity’s features and benefits, and has determined that there are reasonable grounds to believe the annuity is suitable for AMERICAN PVERSIGHT 8 DOL-17-0281-B-000223 Case: 17-10238 Document: 00513977154 Page: 26 Date Filed: 05/02/2017 the consumer in light of, among other things, what the consumer has disclosed about his or her age, annual income, financial experience and objectives, investment time horizon, existing assets and investments, liquidity needs, liquid net worth, risk tolerance, and tax status. Id. §§ 5(I), 6(A). D. The Rule In April 2016, DOL promulgated the Rule, imposing new and burdensome rules on top of these existing regulatory programs. ROA.322-1019. As explained by the Chamber Appellants, Chamber Br. 11-21, the Rule classifies mere salespersons as “fiduciaries” under ERISA—a sweeping expansion of that category that prohibits traditional sales practices and modes of compensation—and creates a new exemption from the new prohibitions called the Best Interest Contract Exemption (“BICE”). The Rule’s unprecedented definition of “fiduciary” encompasses brokers and insurance agents recommending the purchase of annuities for IRAs, thereby prohibiting receipt of commissions on those sales. The BICE, in turn, purports to permit brokers and agents to continue to receive commissions so long as the insurer executes a novel contract imposing a vast array of onerous conditions that are enforceable through class-action litigation. DOL’s new regime breaks sharply with past DOL regulations and federal law in many ways. As relevant here, the Rule would abandon a longstanding distinction between fiduciary investment advisers and non-fiduciary salespersons. AMERICAN PVERSIGHT 9 DOL-17-0281-B-000224 Case: 17-10238 Document: 00513977154 Page: 27 Date Filed: 05/02/2017 For more than 75 years, advisers hired to provide impartial investment advice have been required to comply with fiduciary obligations Congress imposed in the Investment Advisers Act of 1940. If an agent or broker was selling advice and not products, the agent or broker was a fiduciary. But agents and brokers who sell products, and whose advice is “solely incidental” to sales activity, have been subject instead to salesperson-specific regulations, including prohibitions against false or misleading speech and, more recently, suitability requirements. For the four decades prior to the rulemaking, DOL’s considered statutory interpretation honored this distinction by limiting fiduciary status to relationships with characteristics emblematic of a traditional fiduciary relationship, that is, one with special hallmarks of trust and confidence. The Rule departs radically from that approach and subjects every ordinary sales conversation about covered retirement products to “the highest legal standards of trust and loyalty,” ROA.358, even when the sales relationship lacks any “hallmarks of a trust relationship,” ROA.366. Moreover, the Rule discriminates among salespeople and sales pitches depending on the type of annuity being marketed or sold. Until now, DOL has treated all annuities the same way, permitting them to be sold under an exemption referred to as “PTE 84-24.” The Rule, however, discriminates based on the content of the sales pitch, retaining the “streamlined” PTE 84-24 for products like fixed-rate annuities that DOL wishes to “promote” for consumers, but requiring AMERICAN PVERSIGHT 10 DOL-17-0281-B-000225 Case: 17-10238 Document: 00513977154 Page: 28 Date Filed: 05/02/2017 that variable and fixed-indexed annuities be sold under the “more stringent” BICE. ROA.553-554, 556. The Rule thus sharply tilts the playing field to help annuity products favored by DOL and to hurt those annuity products DOL disfavored. E. Procedural History After DOL issued the Rule, Appellants filed suit in the Northern District of Texas, ROA.10333-10437, and their suit was consolidated with suits filed separately by the Chamber Appellants and IALC Appellants in the same court, ROA.10564-10565. The parties cross-moved for summary judgment. Crediting DOL’s litigation positions across the board, the district court granted summary judgment to DOL. ROA.9873-9954. This appeal followed. SUMMARY OF THE ARGUMENT I. The Rule must be declared unconstitutional as applied to Appellants’ members because it violates the First Amendment rights of insurers, insurance agents, and brokers to engage in truthful sales speech with consumers about annuities. The Rule is a textbook example of content-based regulation of commercial speech. It is triggered by and targeted at sales speech—conversations involving “recommendations” to buy a retirement product. It imposes discriminatory burdens depending on the speaker, listener, and subject matter involved. And it is justified based on content: DOL’s desire to prevent consumers from being persuaded by sales speech with which it disagrees. The Rule is AMERICAN PVERSIGHT 11 DOL-17-0281-B-000226 Case: 17-10238 Document: 00513977154 Page: 29 Date Filed: 05/02/2017 therefore unconstitutional unless it survives “heightened judicial scrutiny.” Sorrell v. IMS Health Inc., 564 U.S. 552, 565-566 (2011). DOL cannot justify the Rule under traditional intermediate—let alone “heightened”—judicial scrutiny. DOL’s assumption that commercial information tainted by financial interest is harmful is at war with the First Amendment. Any legitimate concerns identified by DOL could be achieved in numerous, less burdensome ways, including through simple and prominent disclosures or by directly regulating certain products and unreasonable compensation. And—like other paternalistic measures struck down because they burden truthful commercial speech—the Rule will harm, not help, consumers by decreasing access to truthful information about retirement products. At a minimum, the canon of constitutional avoidance requires this Court to construe ERISA to avoid these serious First Amendment concerns. II. Apart from the Rule’s constitutional defects, the Rule must be vacated under the APA because it is arbitrary and capricious. By its own admission, DOL failed to consider an important disadvantage of the Rule: the harm to consumers from decreased access to variable and fixed-indexed annuities. The administrative record—which the district court summarily ignored—overwhelmingly established that the Rule would seriously impede consumer access to such annuities by requiring them to be sold under the onerous BICE rather than the more streamlined AMERICAN PVERSIGHT 12 DOL-17-0281-B-000227 Case: 17-10238 Document: 00513977154 Page: 30 Date Filed: 05/02/2017 PTE 84-24. Reasoned decisionmaking required DOL to account for the consumer benefits of those products and to justify the loss of those benefits. In addition, DOL unreasonably disregarded the extensive, and recently strengthened, regulatory framework that already protects consumers with respect to annuities. DOL purported to show regulatory failure based on stale and inapposite data—data that predated significant regulatory reforms in and after 2010 and that measured only mutual fund performance, not annuities. Such analytic incoherence was arbitrary and capricious and requires vacatur of the Rule.2 STANDARD OF REVIEW An agency rule that is “arbitrary and capricious,” “contrary to constitutional right,” or “in excess of statutory … authority” must be vacated. 5 U.S.C. § 706(2)(A)-(C). Agency action is arbitrary and capricious if the agency failed to “examine[] the relevant data,” to consider “‘relevant factors,’” or to “articulate[] a ‘satisfactory explanation for its action.’” Texas v. EPA, 690 F.3d 670, 677 (5th Cir. 2012). “[J]udicial review of a claim that the agency’s action violated [a party’s] constitutional rights is conducted de novo.” Darden v. Peters, 488 F.3d 277, 284 (4th Cir. 2007); see Porter v. Califano, 592 F.2d 770, 780 & n.15 (5th Cir. 1979). This Court’s review of the district court’s First Amendment analysis is also “de novo.” Bailey v. Morales, 190 F.3d 320, 322 (5th Cir. 1999). 2 Appellants incorporate by reference all the arguments made in the briefs filed separately today by the Chamber Appellants and IALC Appellants. 13 DOL-17-0281-B-000228 Case: 17-10238 Document: 00513977154 Page: 31 Date Filed: 05/02/2017 ARGUMENT I. THE RULE VIOLATES THE FIRST AMENDMENT AS APPLIED TO THE COMMERCIAL SPEECH OF APPELLANTS’ MEMBERS The Rule imposes significant content-based and discriminatory burdens on the commercial speech of Appellants’ members—insurers, insurance agents, and brokers who market and sell annuities to American retirement savers—in an unconstitutional effort to influence the purchasing decisions of consumers. Under the Supreme Court’s commercial speech jurisprudence—including the Court’s seminal decision in Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011)—the Rule is subject to, but fails, the “heightened judicial scrutiny” that the First Amendment demands be applied to such regulations of commercial speech. Appellants are therefore entitled to declaratory and injunctive relief protecting the rights of their members to engage in truthful, non-misleading commercial speech in aid of the marketing and sale of annuities. 28 U.S.C. §§ 2201-2202. A. The Rule Is Subject To Heightened First Amendment Review In Sorrell, the Supreme Court held that “[s]peech in aid of pharmaceutical marketing … is a form of expression protected by the Free Speech Clause of the First amendment.” 564 U.S. at 557. The Court also held that “heightened judicial scrutiny” applies to government regulations that “impose a specific, content-based burden on [such] protected expression” because, the Court explained, laws that impose “content-based burdens must satisfy the same rigorous scrutiny as … AMERICAN PVERSIGHT 14 DOL-17-0281-B-000229 Case: 17-10238 Document: 00513977154 Page: 32 Date Filed: 05/02/2017 content-based bans.” Id. at 565-566 (internal quotation marks omitted). Sorrell— a decision DOL did not discuss in its briefing before the district court and a decision that the district court wrongly brushed aside—governs the analysis here and compels application of “heightened judicial scrutiny” to the Rule. 1. The Rule imposes heavy burdens on non-fiduciary sales speech in a content-discriminatory manner Sorrell demands application of “heightened scrutiny” to the Rule. Like the speech restriction struck down in Sorrell, the Rule “[o]n its face” burdens truthful commercial speech “based in large part on the content of [that] speech.” 564 U.S. at 563-564. Regulation “is content based if [it] applies … because of the topic discussed” or “defin[es] regulated speech by particular subject matter [or] … by its function or purpose.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). The Rule is plainly content-based: It regulates a particular subject matter of speech— what it calls “recommendation[s],” broadly defined to encompass any “suggestion” to buy a retirement product. 29 C.F.R. § 2510.3-21(b)(1). Speech with that content triggers fiduciary status and is subjected to new regulatory burdens. Id. § 2510.3-21(a). Indeed, the Rule, in its own words, applies to “a communication … based on its content.” Id. § 2510.3-21(b)(1). Equally significant, as in Sorrell, the Rule adopts myriad exemptions and distinctions that are “designed … to target” “disfavored speech by disfavored speakers.” 564 U.S. at 564-565. Within the category of sales “recommendations” AMERICAN PVERSIGHT 15 DOL-17-0281-B-000230 Case: 17-10238 Document: 00513977154 Page: 33 Date Filed: 05/02/2017 subject to DOL’s expansive definition of “fiduciary,” the Rule draws discriminatory lines based on the identity of the speaker, the listener, and the retirement products being discussed. For example, while subjecting human insurance agents and brokers to the BICE, DOL declined to apply the BICE fully to so-called “robo-advi[sers]”—those who make recommendations generated by “software-based models or applications.” ROA.435. DOL intentionally drew that line to avoid “adversely affect[ing]” the market for robo-advice—making clear its preference for the speech of some speakers over others. ROA.435. Moreover, the Rule’s “seller’s carve out” draws listener-based distinctions based on DOL’s judgment about which listeners are sophisticated enough to distinguish between sales speech and fiduciary advice. The Rule accordingly subjects sales speech directed at “retail investors and small plan providers,” ROA.357, to fiduciary obligations, but includes a “seller’s carve-out” for speech to specified representatives of large benefit plans, ROA.356. The Rule thus permits agents and brokers to engage in traditional commercial speech with a class of listeners DOL deemed “capable of evaluating investment risks independently,” 29 C.F.R. § 2510.3-21(c)(1)(ii)—a judgment DOL made based on “proxies” for “financial sophistication” that have little to do with a listener’s ability to distinguish a sales presentation from disinterested fiduciary advice, ROA.358. AMERICAN PVERSIGHT 16 DOL-17-0281-B-000231 Case: 17-10238 Document: 00513977154 Page: 34 Date Filed: 05/02/2017 Furthermore, the Rule discriminates against particular “message[s]”—those about variable and fixed-indexed annuities—reflecting DOL’s hostility toward suggestions to customers to purchase those products. See, e.g., Sorrell, 564 U.S. at 572 (striking down law intended to foster sale of generics and to disfavor sale of branded pharmaceuticals). For instance, agents and brokers “recommending” the purchase of a fixed-rate annuity need only comply with a “streamlined” regulatory regime (PTE 84-24), while they must satisfy a much more “stringent” regulatory regime (the BICE) when they “recommend[]” variable and fixed-indexed annuities to consumers. ROA.394. The BICE imposes even more stringent “conditions” when a seller discusses an insurer’s “proprietary” annuities from a menu limited “in whole or in part” to such products, based on DOL’s distrust of proprietary product sales. ROA.429. Sorrell makes clear that the First Amendment does not tolerate these sorts of content-discriminations. Distinctions like those drawn by the Rule—that target communications by specific speakers to specific listeners about specific subject matters—are “paradigmatic” content discrimination subject to strong presumptions of invalidity. Reed, 135 S. Ct. at 2223. Such regulatory favoritism is anathema to the First Amendment. Just as “[t]here are divergent views regarding” the advantages of the generic pharmaceuticals whose sale the State favored over the brand-name ones it frowned upon in Sorrell, 564 U.S. at 578, reasonable differences of opinion surely AMERICAN PVERSIGHT 17 DOL-17-0281-B-000232 Case: 17-10238 Document: 00513977154 Page: 35 Date Filed: 05/02/2017 exist about the relative merits of variable, fixed-indexed, and fixed-rate annuities for consumers. “Under the Constitution,” however, “resolution of that debate must result from free and uninhibited speech,” not from government efforts “to tilt public debate in a preferred direction,” id. at 578-579, and listeners must be trusted to make their own choices based on accurate commercial information, as the Supreme Court has long held.3 Finally, the Rule is a content-based restriction because it cannot be “‘justified without reference to the content of the regulated speech.’” Sorrell, 564 U.S. at 566; Reed, 135 S. Ct. at 2227. As in Sorrell, the Rule seeks to prevent annuity sellers from persuading consumers to make purchasing decisions that “‘conflict with [DOL’s] goals.’” 564 U.S. at 580. DOL’s stated concern about the “dangers” of “conflicted advice” is simply a concern that consumers will be persuaded by expression with which DOL disagrees. ROA.326. Dissatisfied with consumers’ choices on a level playing field, DOL attempts to change those choices by differential regulation of commercial speech, heaping heavy burdens on speech about products it deems unsatisfactory for consumers. DOL knew that its decision 3 E.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (plurality); Edenfield v. Fane, 507 U.S. 761, 767 (1993); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 644-647 (1985); Central Hudson Gas & Elec. Corp. v. Pubic Serv. Comm’n of N.Y., 447 U.S. 557, 561-562 (1980); Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 96-97 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 769-770 (1976). 18 DOL-17-0281-B-000233 Case: 17-10238 Document: 00513977154 Page: 36 Date Filed: 05/02/2017 to place variable and fixed-indexed annuities in the BICE as opposed to PTE 84-24 would create “regulatory incentives” for agents and brokers to stop discussing and recommending the disfavored products to consumers. ROA.395, 558-559. That is textbook content discrimination. Indeed, it is not materially different from the example given in Sorrell of the government “seek[ing] to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles.” 564 U.S. at 577-578; see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring in part and in the judgment) (speech restrictions are per se illegitimate when “government’s asserted interest is to keep legal users of a product … ignorant in order to manipulate their choices in the marketplace”). That the Rule heaps burdens on speech about some products (variable and fixed-indexed annuities) through the BICE—including massive liability under the BICE—while permitting speech about other products (fixed-rate annuities) under the more “streamlined” PTE 84-24, ROA.556, requires searching scrutiny under the First Amendment. See Pitt News v. Pappert, 379 F.3d 96, 111112 (3d Cir. 2004) (Alito, J.) (“threat to the First Amendment arises from the imposition of financial burdens that may have the effect of influencing or suppressing speech”). AMERICAN PVERSIGHT 19 DOL-17-0281-B-000234 Case: 17-10238 2. Document: 00513977154 Page: 37 Date Filed: 05/02/2017 The district court erred by effectively applying no First Amendment review to the Rule For those reasons, the Rule must withstand “heightened judicial scrutiny.” Sorrell, 564 U.S. at 565. As explained below in Part I.B, the Rule fails First Amendment review. The district court, however, did not subject the Rule to any First Amendment scrutiny. Its reasons for doing so are unconvincing and conflict with binding Supreme Court and Fifth Circuit precedent. a. The professional speech doctrine does not shield the Rule from First Amendment review On the merits, the district court declined to subject the Rule to any First Amendment scrutiny because, in its view, under the so-called “professional speech doctrine,” the Rule “regulate[s] professional conduct, not commercial speech.” ROA.9946. That is decidedly wrong for four reasons. First, the Rule plainly regulates “speech,” not “conduct.” In fact, the Rule by its terms is targeted at and triggered by commercial speech—a protected category of expression under the First Amendment. Under the Rule, the threshold determination of fiduciary status is pegged to “communication[s]” in which a speaker has a financial interest and that “would reasonably be viewed as a suggestion” to buy a product. 29 C.F.R. § 2510.3-21(b)(1). For example, a statement by an insurance agent that “I think you would like this annuity and you should consider buying it” triggers fiduciary regulation. But AMERICAN PVERSIGHT 20 DOL-17-0281-B-000235 Case: 17-10238 Document: 00513977154 Page: 38 Date Filed: 05/02/2017 that type of speech “propos[ing] a commercial transaction” is the very definition of commercial speech. Edenfield v. Fane, 507 U.S. 761, 767 (1993); see Gibson v. Texas Dep’t of Ins.—Div. of Workers’ Comp., 700 F.3d 227, 235 (5th Cir. 2012). By imposing regulatory burdens on the exercise of commercial speech rights, the Rule regulates speech purposefully and directly—not “incidental[ly].” ROA.9945; see Sorrell, 564 U.S. at 567 (restriction had “more than an incidental burden” where, “on its face and in practical operation,” it was triggered by “the content of the speech and the identity of the speaker”); cf. Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017) (“regulating the communication of prices … regulates speech,” not “conduct”). Second, the professional speech doctrine—which has never commanded a majority of the Supreme Court—is inapplicable because the Rule, in design and effect, sweeps far more broadly than regulating speech within existing fiduciary relationships. The professional speech doctrine traces to Justice White’s concurrence in Lowe v. SEC, 472 U.S. 181 (1985), a case involving the SEC’s authority to regulate investment advisers under the Investment Advisers Act— advisers who by definition are offering fiduciary advice for a fee. In that context, Justice White opined that the government may regulate the conduct of true fiduciaries subject to less stringent First Amendment review. Id. at 228-229 AMERICAN PVERSIGHT 21 DOL-17-0281-B-000236 Case: 17-10238 Document: 00513977154 Page: 39 Date Filed: 05/02/2017 As this Court recently cautioned, however, “application” of the professional speech doctrine—“[a]ssuming it is valid”—“should be limited.” Serafine v. Branaman, 810 F.3d 354, 359 (5th Cir. 2016). The limiting principle this Court identified in Serafine is that the doctrine applies, if at all, only within the narrow context of an existing fiduciary relationship, for example, between a doctor and patient or a lawyer and a client; “[o]utside” such “fiduciary relationship[s] … speech is granted ordinary First Amendment protection.” Id. at 360 (emphasis added). The narrow professional speech doctrine cannot rescue the Rule here because the Rule does not regulate existing fiduciary expression or speech within existing fiduciary relationships. Instead, it imposes fiduciary obligations in the context of sales relationships based solely on ordinary sales speech. Far from denying that fatal flaw, DOL trumpets, in its own words, that the Rule “sweeps broadly,” ROA.324, rendering an ordinary seller of retirement products “subject to the highest legal standards of trust and loyalty,” ROA.358, when the seller makes everyday sales recommendations. Indeed, DOL has disclaimed the need to show that the recommendations it now deems fiduciary occur within existing “relationships of trust and confidence”; in DOL’s view, it may “artificially create[]” such relationships, and thereby restrict sales speech, subject to no First Amendment constraints at all. ROA.4986. AMERICAN PVERSIGHT 22 DOL-17-0281-B-000237 Case: 17-10238 Document: 00513977154 Page: 40 Date Filed: 05/02/2017 On that view, nothing limits government’s power to deem speech “professional” and exempt itself from the Constitution, and nothing in the case law remotely countenances such a claim. To the contrary, the government “‘cannot foreclose the exercise of constitutional rights by mere labels.’” Bigelow v. Virginia, 421 U.S. 809, 826 (1975). It follows that the Constitution does not permit the government to evade First Amendment protections by labeling nonfiduciary commercial speech “fiduciary.” Were it otherwise, the government could regulate all manner of commercial speech with little or no First Amendment review simply by declaring that such speech is now “fiduciary” or “professional.” Justice White rejected just that approach in Lowe: Surely it cannot be said … that if Congress were to declare editorial writers fiduciaries for their readers and establish a licensing scheme under which ‘unqualified’ writers were forbidden to publish, this Court would be powerless to hold that the legislation violated the First Amendment. 472 U.S. at 231. In holding otherwise, the district court assumed that an exemption in the Rule for “‘general marketing materials’” adequately protects sales speech implicated by the Rule. ROA.9946. But to the extent the court viewed commercial speech protections applicable only to mass advertising or generalized marketing, it was certainly wrong. As the Supreme Court has held, “it is clear” that in-person sales conversations—like those Appellants’ members engage in with AMERICAN PVERSIGHT 23 DOL-17-0281-B-000238 Case: 17-10238 Document: 00513977154 Page: 41 Date Filed: 05/02/2017 retirement savers day in and day out across the nation—are “commercial expression to which the protections of the First Amendment apply.” Edenfield, 507 U.S. at 765. Sorrell—which involved individualized sales presentations promoting pharmaceutical products—stands for the same proposition. 564 U.S. at 557-558 (describing the in-person sales practice of “detailing”). Third, the district court improperly broadened the professional speech doctrine in another way, by applying it to a regulation unconnected to “a valid licensing scheme.” Serafine, 810 F.3d at 360. As Serafine and other decisions make clear, the doctrine is anchored in, if anything, the government’s “power to establish standards for licensing practitioners and regulating the practice of the professions.” Id. at 359 (internal quotation marks omitted); 2 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 20:37.40 (2017) (professional speech “may be regulated as an incident to” authority “to license … professions”). DOL itself has acknowledged that limitation. ROA.5041 (doctrine is “most often” applied to “schemes” “involv[ing] the licensing of professionals”). DOL, however, neither licenses agents or brokers nor regulates those professions—other regulators (the SEC, FINRA, and state insurance departments) do. See ROA.668676. The Rule thus fails the threshold requirement that a professional speech regulation be “incidental[] to a valid licensing scheme.” Serafine, 810 F.3d at 360. AMERICAN PVERSIGHT 24 DOL-17-0281-B-000239 Case: 17-10238 Document: 00513977154 Page: 42 Date Filed: 05/02/2017 No other court of which Appellants are aware has applied the professional speech doctrine absent a close connection to an otherwise valid licensing scheme. Fourth, even if the professional speech doctrine applied, it demands at least intermediate scrutiny, as multiple courts have recognized. See Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1310 (11th Cir. 2017) (en banc); National Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 840 (9th Cir. 2016), petition filed, No. 16-1140 (U.S. Mar. 20, 2017); King v. Governor of N.J., 767 F.3d 216, 237 (3d Cir. 2014); cf. Smolla & Nimmer on Freedom of Speech § 20:37.40 (courts have developed “a form of intermediate scrutiny review” for professional speech regulation). The district court thus erred in subjecting the Rule to no First Amendment review. b. The Rule is not targeted at misleading speech The district court also wrongly credited DOL’s alternative argument that any commercial speech “regulate[d]” by the Rule is “misleading.” ROA.9949. The Rule is not aimed at fraudulent or misleading speech, but rather burdens speech whether it is accurate or not if the speaker has “conflicts of interest” and therefore provides what DOL calls “conflicted advice.” ROA.326, 963. Existing federal securities laws, SEC regulations, and state insurance laws already prohibit false and misleading statements in this setting, and as DOL effectively recognizes, another prohibition on false or misleading expression in this area would add AMERICAN PVERSIGHT 25 DOL-17-0281-B-000240 Case: 17-10238 Document: 00513977154 Page: 43 Date Filed: 05/02/2017 nothing.4 The Rule applies to all “suggestions” to buy annuities or other products if the speaker is selling the products and thus has an interest in the transaction— whether the information provided is true or false. DOL has made clear that neither the imposition of fiduciary status under the Rule nor liability for violations of ERISA “require[s] proof of fraud or misrepresentation, and full disclosure is no defense.” ROA.405. It is simply wrong, then, to say that the Rule burdens only false or misleading expression; it is specifically designed to burden all information, including entirely truthful non-misleading information, in the belief that truthful commercial information provided by interested salespeople (even those who fully disclose their interest) may persuade consumers to make investment choices that DOL deems are not in their “best interest.” ROA.326-327, 772-773, 780. The Supreme Court has long made clear that such paternalism cannot support regulation of speech. In Sorrell, for example, Vermont argued that marketing to doctors would “lead to prescription decisions not in the best interest of patients.” 564 U.S. at 557. The Court rejected that position: “Those who seek to censor or burden free expression often assert that disfavored speech has adverse 4 E.g., 15 U.S.C. § 78j (prohibiting manipulative and deceptive practices that violate SEC rules); 17 C.F.R. § 240.10b-5 (prohibiting fraudulent and deceptive practices and untrue statements or omission of material facts in connection with sale of securities); NAIC Model Unfair Trade Practices Act § 4 (defining prohibited “unfair trade practice” applicable to insurer to include false or misleading statement in “sales presentation[s]”). 26 DOL-17-0281-B-000241 Case: 17-10238 Document: 00513977154 Page: 44 Date Filed: 05/02/2017 effects”—that is why “‘[t]he First Amendment directs [courts] to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.’” Id. at 577. Were the district court correct that sales speech may be regulated as “misleading” whenever a seller has a financial stake in a recommended purchase, that would vitiate First Amendment protection for vast swaths of commercial speech. That is obviously not the law. All sellers (and buyers) have financial interests in commercial transactions, but that does not take commercial speech outside the protections of the First Amendment. To the contrary, “a great deal of vital expression” “results from an economic motive.” Sorrell, 564 U.S. at 567; see Edenfield, 507 U.S. at 766; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 562 (1980); Allstate Ins. Co. v. Abbott, 495 F.3d 151, 167 & n.63 (5th Cir. 2007). The district court’s alternative holding is misplaced for another reason: While the government may ban commercial speech that is “misleading,” ROA.9950, “potential” to mislead is not enough, In re R. M. J., 455 U.S. 191, 203 (1982); Gibson, 700 F.3d at 235-236. To justify banning a “form or method” of speech, DOL must demonstrate that the speech is “inherently likely to deceive” or “has in fact been deceptive,” and that it cannot be presented in a non-deceptive AMERICAN PVERSIGHT 27 DOL-17-0281-B-000242 Case: 17-10238 Document: 00513977154 Page: 45 Date Filed: 05/02/2017 way, R.M.J., 455 U.S. at 202-203; Gibson, 700 F.3d at 236—none of which DOL established here.5 c. The First Amendment claim was not waived Although the district court reached the merits of Appellants’ First Amendment claim (as discussed), it separately held that the claim was waived. ROA.9940-9944. That conclusion is twice flawed. First, the court ignored the nature of the First Amendment claim. Although Appellants brought APA claims seeking vacatur of the Rule (a retrospective, across-the-board remedy), the First Amendment claim was brought as a preenforcement challenge to prospective application of the Rule to Appellants’ members. ROA.10334, 10429, 10436. That distinction is fundamental, because typical APA doctrines such as exhaustion and waiver do not limit the broad 5 The district court wrongly characterized this claim as “facial.” ROA.99449945. “[T]he distinction between facial and as-applied challenges” goes to the scope of relief. Citizens United v. FEC, 558 U.S. 310, 331 (2010). Here, the complaint—which the district court did not discuss—requests “declaratory and related injunctive relief from enforcement of the regulation as applied to the commercial speech regarding annuity products by [Appellants’] members.” ROA.10436. That is a classic as-applied challenge. See Citizen Action Fund v. City of Morgan City, 154 F.3d 211, 217 (5th Cir. 1998), opinion withdrawn on denial of reh’g, 172 F.3d 923 (5th Cir. 1999). That Appellants also seek vacatur as an alternative remedy, 5 U.S.C. § 706(2), does not transform their “as applied” claim into a “facial” one. See ROA.10334-10335, 10341-10342, 10429, 10436. 28 DOL-17-0281-B-000243 Case: 17-10238 Document: 00513977154 Page: 46 Date Filed: 05/02/2017 availability of “simple pre-enforcement attack[s] on … regulation[s] … restricting speech.” Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1434 (D.C. Cir. 1996).6 Waiver sensibly has no place in this context. For example, if an agency today announced imminent enforcement against a company for violating a rule promulgated decades ago, no one would suppose that the company could be barred from raising a First Amendment defense—whether it had participated in the rulemaking at all. Similarly, as long as its claim is ripe and other threshold criteria for suit are met, the company could seek declaratory and injunctive relief against prospective enforcement of the regulation. See, e.g., Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir. 1997) (pre-enforcement challenge under First Amendment to prospective application of regulation against plaintiff). A contrary approach would give executive agencies carte blanche to enforce unconstitutional speech restrictions whenever such First Amendment concerns were not raised during a rulemaking. That cannot be the law. 6 Appellants’ First Amendment claim does not depend upon the APA’s cause of action because federal courts, without a statutory cause of action, may restrain federal officials from “unconstitutional actions.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). To be sure, Appellants also sued and sought vacatur under the APA in the alternative, 5 U.S.C. § 706(2)(B), but “resort to the APA as a basis for judicial review, and as a component of the … remedy, [is] unnecessary” because the Constitution provides sufficient basis to enjoin application of the Rule to Appellants’ members. United States v. District of Columbia, 897 F.2d 1152, 1158 (D.C. Cir. 1990) (Ginsburg, R.B., J.). 29 DOL-17-0281-B-000244 Case: 17-10238 Document: 00513977154 Page: 47 Date Filed: 05/02/2017 Second, even if Appellants’ First Amendment claim were wrongly conceived of as arising only under the APA, waiver would still be inappropriate. The Supreme Court in a plurality opinion in Sims v. Apfel, 530 U.S. 103, 107-108 (2000), held that “requirements of administrative issue exhaustion are largely creatures of statute” or agency “regulation.” Where issue exhaustion is not required by statute or regulation, the doctrine is prudential—with its application turning on “the degree to which” the “administrative proceeding” resembles “normal adversarial litigation.” Id. at 109. This Court has embraced Sims, holding that trial-like features of an HHS appeals board hearing—two adverse parties with counsel and rights to cross-examines witnesses, present argument, submit posthearing briefing, and develop a record for appeal—supported issue exhaustion. Delta Found., Inc. v. United States, 303 F.3d 551, 561-562 (5th Cir. 2002). Under Sims and Delta Foundation, however, there is absolutely no basis for holding that Appellants’ First Amendment claim is waived. Neither ERISA nor DOL regulations impose any issue exhaustion requirement, a point DOL has never contested. And because the relevant administrative process—an informal noticeand-comment rulemaking—bears slight, if any, resemblance to “normal adversarial litigation,” application of a judicially created waiver bar to Appellants’ claim is AMERICAN PVERSIGHT 30 DOL-17-0281-B-000245 Case: 17-10238 Document: 00513977154 Page: 48 Date Filed: 05/02/2017 wholly unjustified.7 Prudential, judicially created waiver rules are especially inapt here. Waiver must be applied sparingly, if at all, when constitutional rights are at stake. As the Supreme Court has explained, “failure to have raised [a] constitutional claim” before an agency is ordinarily “not” a bar to asserting such a claim in court. Mathews v. Eldridge, 424 U.S. 319, 329 n.10 (1976). Courts have recognized a similar exception for constitutional claims in the related context of administrative exhaustion. E.g., Gulf Restoration Network v. Salazar, 683 F.3d 158, 176 (5th Cir. 2012); Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007). If the failure to participate at all in an administrative process may be excused where constitutional rights are at issue, it follows a fortiori that not having raised a specific constitutional objection where a party did exhaust its remedies should be subject to at least the same exception.8 7 The single Fifth Circuit case cited by the district court—BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003)—is not to the contrary. The Court there applied waiver in the context of an EPA rulemaking, where, unlike here, exhaustion is statutorily required. See 42 U.S.C. § 7607(d)(7)(B) (“Only an objection to a rule … which was raised … during the period for public comment … may be raised during judicial review.”). 8 Strict application of waiver does not make sense here, moreover, because Appellants did raise the substance of their claim during the rulemaking. ACLI explained, for example, that the Rule inappropriately “interfer[es]” with “practices that are clearly recognized as the sales and marketing of products and services.” ROA.7343. ACLI also argued—echoing its First Amendment claim—that by erasing “the line between traditional marketing and fiduciary investment advice,” 31 DOL-17-0281-B-000246 Case: 17-10238 B. Document: 00513977154 Page: 49 Date Filed: 05/02/2017 The Rule Fails First Amendment Scrutiny Because the Rule imposes content-discriminatory burdens on truthful, nonmisleading sales speech, it is subject to “heightened judicial scrutiny.” Sorrell, 564 U.S. at 557. As in Sorrell, however, because the “outcome is the same” whether intermediate scrutiny or a heightened inquiry is applied, this Court need not resolve the precise standard of review. Id. at 571. Under traditional commercial-speech analysis, “it is [DOL’s] burden to justify its content-based law as consistent with the First Amendment,” id. at 571-572—which would require showing that the Rule “directly advances” a “substantial” government interest and “is not more extensive than is necessary to serve that interest,” Central Hudson, 447 U.S. at 566. It is clear, however, that DOL cannot carry its burden. First, although DOL has a legitimate interest in protecting retirement savers, its assumptions that commercial information tainted by financial interest is harmful and that consumers would be better off not hearing sales speech about certain “the [R]ule will have a chilling effect on all types of marketing activity,” ROA.7339, depriving individuals of critical “information,” ROA.7344. APAwaiver principles are based on an “analogy” to appellate rules, 530 U.S. at 108, and those rules do “not demand the incantation of particular words” to preserve a claim—only that “the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA Inc., 529 U.S. 460, 469 (2000). That standard was satisfied here because ACLI alerted DOL to the substance of its objections; in fact, DOL expressly identified and rejected the position of “commenters” that insurers and others have a “right … to market their products” free from onerous fiduciary regulation. ROA.358; see Appalachian Power Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998). 32 DOL-17-0281-B-000247 Case: 17-10238 Document: 00513977154 Page: 50 Date Filed: 05/02/2017 products are at war with the First Amendment. The core of commercial speech protections is that “[a] ‘consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue,’” Sorrell, 564 U.S. at 566—an apt proposition where retirement options are at issue. For that reason, “the First Amendment presumes that some accurate information is better than no information at all.” Central Hudson, 447 U.S. at 562. The Rule rests on unconstitutional contrary assumptions. DOL’s disparagement of consumers’ capacity to process truthful information pervades the rulemaking. For example, in rejecting clear and simple disclosures as an alternative, DOL explained “that even if disclosure about conflicts could be made simple and clear, it could be ineffective—or even harmful.” ROA.327. The Rule treats sales speech as inherently “danger[ous]” because it deems consumers as lacking any “financial expertise,” being “bewildered” by retirement options, and “hav[ing] no idea how advisers are compensated for selling them products” and “little understanding of … conflicts of interest.” ROA.325-326. Reliance on such propositions to keep consumers in ignorance of accurate commercial information invalidates the Rule at the outset. See supra note 2 (collecting authorities). Even if DOL’s assumptions regarding consumers’ ability to process information, to understand disclosures, and to make retirement decisions had been reasonable and supported by record evidence—they were not—they are foreclosed AMERICAN PVERSIGHT 33 DOL-17-0281-B-000248 Case: 17-10238 Document: 00513977154 Page: 51 Date Filed: 05/02/2017 by the First Amendment, which “assume[s] that [truthful] information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976). “The choice ‘between the dangers of suppressing information, and the dangers of its misuse if it is freely available’ is one that ‘the First Amendment makes for us.’” Sorrell, 564 U.S. at 578. DOL was not free to choose differently. Second, the Rule is not narrowly tailored. Any legitimate concerns identified by DOL could have been addressed in ways that do not unduly burden speech. For example, to dispel confusion about when someone is acting as a salesperson rather than a fiduciary adviser, DOL could have mandated clear disclosures. E.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985). Likewise, with respect to purportedly harmful products or unreasonable compensation, Congress could have regulated these directly, or DOL could have undertaken to educate consumers itself. E.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014). DOL rejected these more tailored approaches, opting broadly to regulate commercial speech, based on a view the Supreme Court has long foreclosed—that consumers cannot be trusted to make sense of truthful commercial speech. AMERICAN PVERSIGHT 34 DOL-17-0281-B-000249 Case: 17-10238 Document: 00513977154 Page: 52 Date Filed: 05/02/2017 Third, the Rule will harm, not help, retirement savers by decreasing access to timely, cost-effective retirement information. To survive intermediate scrutiny, DOL must prove not only that “the harms it recites are real” but that the Rule will “alleviate” them “in a direct and material way.” Edenfield, 507 U.S. at 767, 770771. The administrative record showed the opposite. The record confirmed that the non-fiduciary sales conversations are low-cost means by which many consumers obtain useful information about retirement products. See, e.g., ROA.9505, 9519. In particular, evidence showed that consumers need truthful information and expert assistance to help them understand annuities and to make decisions about those products. ROA.7337, 7669-7670, 8635. As the Supreme Court recognized in Edenfield, “direct and spontaneous communication between buyer and seller” has “considerable value” for both: The seller’s “strong financial incentive to educate the market and stimulate demand for his product” results in “more personal interchange,” which “enables a potential buyer” “to explore in detail the way in which a particular product … compares to its alternatives in the market.” 507 U.S. at 766. The “benefits” of such speech are especially “significant” in the case of products like annuities whose features can be tailored to a buyer’s individual needs. Id.; see ROA.7337, 7379. The record was equally clear that, as basic economics would predict, the Rule’s imposition of fiduciary obligations—with the resulting regulatory burdens AMERICAN PVERSIGHT 35 DOL-17-0281-B-000250 Case: 17-10238 Document: 00513977154 Page: 53 Date Filed: 05/02/2017 and litigation risks—will impede consumers’ access to commercial information by raising the cost of providing such information. For example, increased compliance costs associated with fiduciary obligations, as well as the threat of class-action litigation under the BICE, will drive some agents and brokers out of the market, lowering supply and increasing the price of investment information for retirement savers. E.g., ROA.7376, 8519. The Rule thus not only fails to advance DOL’s stated interests but it vitiates consumers’ First Amendment “right to receive information” that will help them make important life decisions. In re ExpressNews Corp., 695 F.2d 807, 809 & n.2 (5th Cir. 1982). C. ERISA Should Be Construed To Avoid These Serious Constitutional Problems At a minimum, the serious constitutional concerns raised by the Rule should bear heavily on this Court’s statutory analysis. Under the canon of constitutional avoidance, courts are “obligated to construe the statute to avoid” constitutional concerns where an alternative interpretation that would avoid those concerns is “‘fairly possible.’” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001); Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 753-754 (5th Cir. 2008).9 9 Even if Appellants had waived the constitutional claim—they have not— this Court should nonetheless address First Amendment issues with the Rule under the avoidance canon to resolve the statutory question that is plainly before this Court. See Lebrun v. National Railroad Trans. Corp., 513 U.S. 374, 379 (1995) (parties may raise “new arguments” in support of “consistent” position). 36 DOL-17-0281-B-000251 Case: 17-10238 Document: 00513977154 Page: 54 Date Filed: 05/02/2017 This is a cut-and-dry constitutional avoidance case. The statutory text defines a “fiduciary” to include those who “renders investment advice for a fee or other compensation, direct or indirect.” 29 U.S.C. § 1002(21)(A)(ii); 26 U.S.C. § 4975(e)(3)(B). Even if the Rule permissibly interpreted that text (it does not), at the least, the Rule pushes the outer limits of the definition, construing it “broadly” to impose “fiduciary” status based on even traditional sales speech, ROA.324, and thereby directly implicating commercial speech rights. “[A]n alternative interpretation of the statute,” however, “is ‘fairly possible,’” St. Cyr, 533 U.S. at 300—as explained by the Chamber Appellants and IALC Appellants, see Chamber Br. Part I; IALC Br. Part I. Indeed, DOL’s prior construction of the statute governed the retirement market for more than four decades. Under that construction, speech does not give rise to fiduciary status unless, among other things, advice was rendered on a regular basis and was based on a mutual understanding that the advice would be individualized and serve as the primary basis for investment decisions. See Definition of the Term “Fiduciary,” 40 Fed. Reg. 50,842, 50,843 (Oct. 31, 1975). Unlike the Rule, which invites “serious constitutional doubts,” Clark v. Martinez, 543 U.S. 371, 381-382 (2005), DOL’s prior interpretation avoids these First Amendment concerns. AMERICAN PVERSIGHT 37 DOL-17-0281-B-000252 Case: 17-10238 II. Document: 00513977154 Page: 55 Date Filed: 05/02/2017 THE RULE’S TREATMENT OF VARIABLE AND FIXED-INDEXED ANNUITIES VIOLATES THE APA The Rule is also unlawful because DOL failed adequately to justify, consistent with requirements of reasoned decisionmaking, its regulatory treatment of annuities issued, marketed, and sold by Appellants’ members. A. DOL Unreasonably Failed To Account For The Rule’s Effects On Consumer Access To Variable And Fixed-Indexed Annuities The Rule should be vacated under the APA because DOL wholly failed to consider a significant disadvantage of the Rule—namely, the harm to consumers from decreased access to variable and fixed-indexed annuities. “[R]easonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). An agency thus must “face the trade-off[s]” caused by its decisions and explain why “the trade-off” it selected “was worth it.” Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 956 F.2d 321, 323-324 (D.C. Cir. 1992). Otherwise, an agency has not fulfilled its duty to consider “important aspect[s] of the problem”—among the most fundamental obligations of non-arbitrary decisionmaking. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, DOL conceded that it did not assess as a “separate consideration” the disadvantages of decreased access to variable and AMERICAN PVERSIGHT 38 DOL-17-0281-B-000253 Case: 17-10238 Document: 00513977154 Page: 56 Date Filed: 05/02/2017 fixed-indexed annuities created by the Rule. ROA.5012. That omission renders the Rule arbitrary and capricious. The administrative record demonstrated the enormous benefits that variable and fixed-indexed annuities provide retirement consumers. ROA.7350, 7379, 7756-7757, 8187, 8562-8563; see supra, pp. 4-6. Commenters stressed, for example, that annuities are the sole source of guaranteed lifetime income during retirement, ROA.7337, 7668, an important benefit in a marketplace in which consumers are living longer but without pensions. As noted earlier, a DOLcommissioned study confirmed the importance of ensuring access to annuities— finding that that “beneficiaries of lifelong guaranteed income … were more satisfied in retirement and suffered from fewer depression symptoms than those without.” Brien & Panis 1. Other commenters explained why a range of annuity choices was important to consumers to help balance longevity, inflation, and investment risks. See ROA.7813. And others explained how variable annuities, in particular, provide insurance protections, while allowing consumer to benefit from capital market growth. ROA.7350, 7756-7757, 8187, 8562-8563. The record also demonstrated that the Rule would seriously interfere with consumer access to annuities, skewing the marketplace. In particular, insurers have long paid sales commissions to compensate agents and brokers for the significant effort involved in learning about, marketing, and selling annuities. AMERICAN PVERSIGHT 39 DOL-17-0281-B-000254 Case: 17-10238 Document: 00513977154 Page: 57 Date Filed: 05/02/2017 ROA.768. But under the Rule, to continue to qualify for commissions, variable and fixed-indexed annuities would need to be sold under the “more stringent” BICE, while fixed-rate annuities can be sold under the “streamlined” PTE 84-24. ROA.553-554, 556; see supra, pp. 10-11. By exposing those who sell variable and fixed-indexed annuities to the burdens and risks of the BICE, the Rule, as DOL acknowledged, creates substantial “incentives” for those sellers to recommend fixed-rate annuities over variable and fixed-indexed annuities, ROA.395, 558-559, and thereby decreases consumer access to those products. The resulting shift in the annuity market will reflect not consumers’ best interests, but the differing regulatory burdens DOL imposed on speech about those annuities. The substantive standards imposed by the BICE and PTE 84-24 are identical, but only the BICE embeds “reasonable compensation” and “best interest” standards in contracts that will be enforced through breach-of-contract litigation in state and federal courts, exposing issuers and sellers to “class litigation, and liability and associated reputational risk.” ROA.323. Making matters worse, DOL has thus far taken the position that each State (indeed, each jury) will be free to render different interpretations of those open-ended contract terms. A national insurer operating under the BICE thus faces the near-impossible task not only of predicting the hindsight judgment of courts and juries, but also of having to do so without being able to assume that a practice upheld in one AMERICAN PVERSIGHT 40 DOL-17-0281-B-000255 Case: 17-10238 Document: 00513977154 Page: 58 Date Filed: 05/02/2017 jurisdiction will pass muster in another. Insurers, agents, and brokers can avoid those substantial risks by decreasing or stopping the issuance, marketing, and promotion of variable and fixed-indexed annuities, in favor fixed-rate annuities. These harmful effects are not merely theoretical. “Subsequent events have borne out” commenters’ prediction that the Rule would depress the market for variable annuities. Wold Commc’ns, Inc. v. FCC, 735 F.2d 1465, 1478 n.29 (D.C. Cir. 1984) (Ginsburg, R.B., J.). Remarkably, variable annuity sales dropped by more than $28 billion in 2016 compared to the prior year, and according to industry observers, the Rule “played a huge role” in that “significant drop.” Iacurci, Department of Labor’s fiduciary rule blamed for insurers’ massive hit on variable annuity sales, InvestmentNews (Mar. 28, 2017). Although DOL promulgated a Rule that it knew or should have known would decrease consumer access to variable and fixed-indexed annuities, it failed entirely to consider the harms to consumers that would result. The district court summarily brushed aside DOL’s failure, stating in a footnote that it was “unpersuaded that the new rules reduce consumer access to FIAs or variable annuities.” ROA.9936. But the court offered no justification whatsoever for this conclusion, which flatly contradicts the administrative record, as explained above. Equally important, the court’s statement cannot be squared with the structure of the Rule or DOL’s own position. In the rulemaking, DOL was clear that it AMERICAN PVERSIGHT 41 DOL-17-0281-B-000256 Case: 17-10238 Document: 00513977154 Page: 59 Date Filed: 05/02/2017 “intended and expected” the Rule “to move markets toward” what DOL believed would be “a more optimal mix of … financial products.” ROA.945. And DOL laid bare its intention to influence consumer decisions in the “annuity market” in particular—predicting that the Rule would create “better matches between consumers and the annuity product.” ROA.805; see also ROA.948 (anticipating market gains in “consumer-friendly insurance products”). Public statements made contemporaneously with the rulemaking made clear, moreover, which annuity products DOL disfavored: in a speech, DOL opined that “[v]ariable annuities are not the answer for so many people,” and predicted that the Rule would steer consumers towards “simple investments” that it believed would better “serve[]” “[t]heir needs.” Schoeff, Perez calls out variable annuities in argument for DOL fiduciary rule, Investment News (June 24, 2015). Indeed, DOL acknowledged throughout the rulemaking that subjecting a product to the BICE, rather than PTE 84-24, would depress the market for that product—not because of anything intrinsic to the product but because of the disparate burdens the Rule created. DOL explained that placing fixed-rate annuities in “PTE 84-24 will promote access to the[m],” ROA.553 (emphasis added). It also predicted that moving fixed-indexed annuities from PTE 84-24 (as DOL had proposed) to the BICE was necessary to “avoid[] creating a regulatory incentive to preferentially recommend indexed annuities” over variable annuities AMERICAN PVERSIGHT 42 DOL-17-0281-B-000257 Case: 17-10238 Document: 00513977154 Page: 60 Date Filed: 05/02/2017 and mutual funds (which DOL had always proposed to regulate under the BICE). ROA.395, 558-559 (emphasis added). And DOL declined to subject robo-advisers fully to the BICE to avoid “adversely affect[ing] the incentives currently shaping the market for robo-advice.” ROA.435 (emphasis added). All of that unambiguously demonstrates that DOL knew that regulating variable and fixed-indexed annuities under the BICE while placing fixed-rate annuities in PTE 84-24 would decrease access to variable and fixed-indexed annuities. “When the government regulates in a way that” interferes with consumer “access” to beneficial products, “it owes them reasonable candor,” so that “affected citizens at least know that the government has faced up to the meaning of its choice.” Competitive Enter. Inst., 956 F.2d at 327. That is particularly so here, where the Rule promotes some products (fixed-rate annuities) that serve one retirement objective (protection against investment risk) at the expense of others (variable and fixed-indexed annuities) that better serve a different objective (protection against inflation risk). Cf. id. at 323-324 (invalidating rule because agency failed to “face the trade-off” between promoting more fuel-efficient small cars at the expense of safer large cars). “Reasonable candor” would have meant accounting openly for the consumer benefits of the products that the Rule will drive from the market, and explaining why DOL nonetheless thought that the Rule’s tradeoffs were worthwhile. DOL’s failure to AMERICAN PVERSIGHT 43 DOL-17-0281-B-000258 Case: 17-10238 Document: 00513977154 Page: 61 Date Filed: 05/02/2017 consider this “important aspect of the problem” renders the Rule unlawful. State Farm, 463 U.S. at 43; see Michigan, 135 S. Ct. at 2707. B. DOL Unreasonably Disregarded Existing Annuity Regulation Independently, DOL breached the requirements of reasoned decisionmaking by failing to provide a reasonable explanation why it deemed insufficient the extensive, and recently strengthened, regulatory framework that governs annuity sales and protects consumers. DOL dismissed existing regulations based principally on nine quantitative studies, but, remarkably, those studies examined the wrong time period (before recent enhancements to state and federal regulations) and the wrong products (mutual funds, not annuities). Such arbitrary decisionmaking fell well short of DOL’s obligations to consider all “‘relevant factors,’” to articulate a “rational connection between the facts found and the choice made,” Texas, 690 F.3d at 677, and “to determine whether, under the existing regime, sufficient protections … exist[],” American Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179 (D.C. Cir. 2010). The administrative record established that the buying and selling of annuities is subject to comprehensive state, federal, and FINRA regulations and rules that ensure that brokers and agents provide consumers with suitable recommendations. ROA.6412-6414, 7380-7381, 7388-7657, 8529; see supra, pp. 7-9. To make the case that this existing regulatory framework was inadequate and that a new and AMERICAN PVERSIGHT 44 DOL-17-0281-B-000259 Case: 17-10238 Document: 00513977154 Page: 62 Date Filed: 05/02/2017 burdensome layer of regulation was needed, DOL relied principally on nine quantitative studies. ROA.795-796 (studies were “most relevant” evidence DOL examined). According to DOL, these studies demonstrated that, “notwithstanding existing [regulatory] protections, there is convincing evidence that advice conflicts are inflicting losses on IRA investors.” ROA.747-748, 795-796. Two fundamental flaws, however, rendered DOL’s heavy reliance on these studies irrational. First, the studies could not possibly demonstrate the inadequacy of current regulations because they examine data gathered before recent enhancements to the regulations took effect. Seven of the studies use data from 2005 or earlier; two use data ending in 2007 and 2009, respectively. ROA.796-797. Between 2010 and 2012, however, both FINRA and state insurance regulators implemented more stringent regulation of the sale of annuities—a body of regulations and rules the studies could not possibly have analyzed. In 2012, FINRA adopted FINRA Rule 2111, which enhanced requirements govern the sale of securities generally, including both mutual funds and variable annuities. Rule 2111 “strengthen[ed], streamline[d], and clarif[ied]” existing consumer protections by codifying and defining the three core suitability obligations: customer-specific, reasonable-basis, and quantitative suitability. FINRA Regulatory Notice 11-02, at 1 (2011). It “expanded [the] list of explicit types of information that firms … must attempt to gather and analyze as part of a suitability analysis.” Id. at 3. And for the first time AMERICAN PVERSIGHT 45 DOL-17-0281-B-000260 Case: 17-10238 Document: 00513977154 Page: 63 Date Filed: 05/02/2017 the Rule extended suitability regulation to investment strategies involving securities, such as recommendations to hold securities. Id. A new, comprehensive layer of annuity-specific regulations similarly took effect only after the period examined by DOL’s nine studies. Not until 2010 did FINRA finish implementing FINRA Rule 2330, which “provide[s] more comprehensive and targeted protection to investors regarding deferred variable annuities.” FINRA Regulatory Notice 07-53, at 1 (2007). In 2010, the NAIC also promulgated a strengthened model suitability rule, which has since been adopted by 37 states and the District of Columbia. See Heinrich, State Roundup: State of the States—2015 Year in Review, NAFA Annuity Outlook Magazine (Feb. 10, 2016). Record evidence demonstrated that this new rule has produced significant marketplace effects. E.g., ROA.9242. The outdated studies DOL used could not possibly have measured the efficacy of these newly strengthened regulations. Second, DOL’s studies focused almost exclusively on mutual funds, not insurance products such as variable and fixed-indexed annuities. ROA.796-797. Annuities and mutual funds, however, are subject to different regulatory regimes— a fact that the district court ignored in blessing DOL’s reliance on mutual fund studies. See ROA.9924. While both mutual funds and variable annuities must comply with generally applicable suitability standards set by FINRA Rule 2111, variable annuities are also governed by a customized and comprehensive AMERICAN PVERSIGHT 46 DOL-17-0281-B-000261 Case: 17-10238 Document: 00513977154 Page: 64 Date Filed: 05/02/2017 regulatory framework that was enhanced in 2010 specifically to account for annuities’ unique features—FINRA Rule 2330. That rule requires brokers to have a reasonable basis to conclude that a customer would benefit from the annuity’s distinct characteristics, such as tax-deferred growth, annuitization, or a death or living benefit. Member firms must develop written supervisory policies and procedures and create compliance training programs to ensure that those who effect and review covered deferred variable annuity sales understand their material features. And a registered principal must approve each deferred variable annuity sale—a heightened supervisory requirement that does not apply to mutual funds. The recently strengthened 2010 version of the NAIC Model Suitability Rule creates similar protections for variable and fixed-index annuities. An agent must have reasonable grounds to believe the “consumer would benefit from certain [annuity] features,” and from “[t]he particular annuity as a whole.” NAIC Model Suitability Rule § 6(A)(2)-(3). And issuers must not only develop and implement product-specific compliance training but establish processes for reviewing each recommendation to ensure there is a reasonable basis to believe it is suitable—a requirement akin to FINRA’s principal review obligation. Id. §§ 6(F), 7. DOL’s outsized reliance on its nine studies to demonstrate regulatory failure was thus doubly irrational, as those studies could have spoken only to a defunct regulatory framework that once governed different retirement products. DOL’s AMERICAN PVERSIGHT 47 DOL-17-0281-B-000262 Case: 17-10238 Document: 00513977154 Page: 65 Date Filed: 05/02/2017 failure to “ma[ke] a reasonable effort to ensure that appropriate data was relied upon” renders the Rule “arbitrary and capricious.” Resolute Forest Prods., Inc. v. USDA, 187 F. Supp. 3d 100, 123 (D.D.C. 2016); see also Desoto Gen. Hosp. v. Heckler, 766 F.2d 182, 185-186 (5th Cir. 1985) (reliance on study that does not support agency’s conclusions is arbitrary and capricious); Business Roundtable v. SEC, 647 F.3d 1144, 1151 (D.C. Cir. 2011) (similar). None of the district court’s reasons for excusing these defects withstands scrutiny. The court affirmed DOL’s reliance on stale data on the grounds that DOL conducted a new analysis after the comment period closed using mutual fund data from 1980 to 2015 (ROA.803, 967-968), and that it “reviewed data from 2008 through 2014 submitted by commenters.” ROA.9925. But the commentersupplied data actually cast doubt on DOL’s studies, ROA.800-801, 7375, 85008507; DOL “reviewed” those data in an attempt to justify disregarding them, not to explain why the data confirmed the studies, ROA.801-803. And DOL’s own analysis does not plug the hole left by the nine studies: Rather than isolate and study the period following adoption of the new annuity regulations, DOL diluted data from those years by mixing them with two decades of data from earlier years—making it impossible to tell whether mutual fund underperformance was attributable to products recommended before the new rules took effect. ROA.967- AMERICAN PVERSIGHT 48 DOL-17-0281-B-000263 Case: 17-10238 Document: 00513977154 Page: 66 Date Filed: 05/02/2017 968. And DOL repeated one of the errors that plague its other studies, focusing once again on mutual-fund performance, rather than annuities. ROA.967-968. Even setting aside these substantive analytic flaws, DOL “commit[ted] serious procedural error” in supplementing the record with such a significant study—the only quantitative analysis relied on by DOL in the entire rulemaking that examined data after 2009—without providing the public an opportunity to comment on that analysis. Owner-Operator Indep. Drivers Ass’n v. Federal Motor Carrier Safety Admin., 494 F.3d 188, 199 (D.C. Cir. 2007). “[C]ritical factual material that is used to support [an] agency’s position,” like DOL’s last-minute analysis, “must … be[] made public in the proceeding and exposed to refutation.” Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 7 (D.C. Cir. 1999). Finally, the district court asserted DOL had no obligation even to “consider whether existing regulation was sufficient” and that DOL would have “satisfied the APA even without the [nine] studies.” ROA.9921, 9923. It is doubtful whether it would ever be non-arbitrary for an agency to impose massive regulatory burdens without first determining that extant regulations had failed to achieve the agency’s objectives. But that is beside the point here, because DOL “must defend its analysis before the court upon the basis it employed in adopting that analysis.” American Equity, 613 F.3d at 177. And here DOL did justify the Rule based on claims that existing regulations were inadequate and it did rely principally on the AMERICAN PVERSIGHT 49 DOL-17-0281-B-000264 Case: 17-10238 Document: 00513977154 Page: 67 Date Filed: 05/02/2017 nine studies in trying to substantiate that claim. ROA.764, 795-796, 807. It therefore had an obligation to conduct that analysis in a reasonable manner: “Professing that an order ameliorates a real industry problem but” citing no reliable “evidence demonstrating that there is in fact an industry problem is not reasoned decisionmaking.” National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 843 (D.C. Cir. 2006). The Rule is therefore unlawful and must be vacated.10 CONCLUSION For these reasons, the district court’s judgment should be reversed and remanded with instructions to direct vacatur of the Rule, to award appropriate declaratory and injunctive relief to Appellants, or both. 10 The hodgepodge of additional evidence the district court cited does nothing to backstop DOL’s nine studies. According to the court, DOL “considered” two bulletins in which the SEC and FINRA “express[ed] concern” that existing regulations “did not provide adequate protections.” ROA.9925. But that is not what the bulletins say—or even what DOL claimed they say. See ROA.756, 777, 921. Rather, the bulletins simply educate consumers about the various features of fixed-indexed annuities—an example of the existing regulatory regime working, not evidence of its inadequacy. The district court also credited DOL for “consider[ing] studies” of (i) the property/casualty insurance market and (ii) life insurance sales in India. ROA.9924; see also ROA.759, 785-786. But “no property/casualty insurance products are subject to suitability rules.” ROA.4200. And a central finding of the India study is that agents often recommended “unsuitable products.” ROA.785-786 (emphasis added). Neither study therefore sheds any light on the efficacy of the robust suitability regime that governs annuities in the United States. 50 DOL-17-0281-B-000265 Case: 17-10238 Document: 00513977154 Page: 68 Date Filed: 05/02/2017 Respectfully submitted, /s/ David W. Ogden DAVID W. OGDEN Counsel of Record KELLY P. DUNBAR ARI HOLTZBLATT KEVIN M. LAMB WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 ANDREA J. ROBINSON WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 MICHAEL A. YANOF THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor – Plaza of the Americas Dallas, TX 75201 Counsel for American Council of Life Insurers, National Association of Insurance and Financial Advisors, National Association of Insurance and Financial Advisors-Texas, National Association of Insurance and Financial AdvisorsAmarillo, National Association of Insurance and Financial Advisors-Dallas, National Association of Insurance and Financial Advisors-Fort Worth, National Association of Insurance and Financial Advisor-Great Southwest, and National Association of Insurance and Financial Advisors-Wichita Falls May 2, 2017 51 DOL-17-0281-B-000266 Case: 17-10238 Document: 00513977154 Page: 69 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(i). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(f), the brief contains 11,439 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(a)(7)(B), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. /s/ David W. Ogden DAVID W. OGDEN May 2, 2017 DOL-17-0281-B-000267 Case: 17-10238 Document: 00513977154 Page: 70 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of May, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system. /s/ David W. Ogden DAVID W. OGDEN DOL-17-0281-B-000268 Case: 17-10238 Document: 00513977124 Page: 1 Date Filed: 05/02/2017 No. 17-10238 _________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________ CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, DOING BUSINESS AS LAKE HOUSTON CHAMBER OF COMMERCE; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. _________________________ AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – WICHITA FALLS, Plaintiffs-Appellants, v. AMERICAN PVERSIGHT DOL-17-0281-B-000269 Case: 17-10238 Document: 00513977124 Page: 2 Date Filed: 05/02/2017 UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. _________________________ INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. _________________________ On Appeal from the United States District Court for the Northern District of Texas No. 3:16-cv-01476 _________________________ BRIEF FOR CHAMBER OF COMMERCE PLAINTIFFS-APPELLANTS _________________________ Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 (214) 698-3100 Eugene Scalia Jason J. Mendro Paul Blankenstein GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 [additional counsel listed on next page ] AMERICAN PVERSIGHT DOL-17-0281-B-000270 Case: 17-10238 Document: 00513977124 Page: 3 Date Filed: 05/02/2017 Counsel for Plaintiffs Chamber of Commerce of the United States of America, Financial Services Institute, Inc., Financial Services Roundtable, Greater Irving-Las Colinas Chamber of Commerce, Humble Area Chamber of Commerce doing business as Lake Houston Area Chamber of Commerce, Insured Retirement Institute, Lubbock Chamber of Commerce, Securities Industry and Financial Markets Association, and Texas Association of Business Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, NW Washington, D.C. 20062 (202) 463-5337 Counsel for Plaintiff Chamber of Commerce of the United States of America Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W. Suite 400 Washington, D.C. 20005 (202) 289-4322 Counsel for Plaintiff Financial Services Roundtable David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 (888) 373-1840 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. 8th Floor Washington, D.C. 20005 (202) 962-7300 Counsel for Plaintiff Financial Services Institute, Inc. Counsel for Plaintiff Securities Industry and Financial Markets Association J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D.C. 20005 (202) 469-3000 Counsel for Plaintiff Insured Retirement Institute AMERICAN PVERSIGHT DOL-17-0281-B-000271 Case: 17-10238 Document: 00513977124 Page: 4 Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 _________________________ CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, DOING BUSINESS AS LAKE HOUSTON CHAMBER OF COMMERCE; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. _________________________ AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS – WICHITA FALLS, Plaintiffs-Appellants, v. AMERICAN PVERSIGHT DOL-17-0281-B-000272 Case: 17-10238 Document: 00513977124 Page: 5 Date Filed: 05/02/2017 UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. _________________________ INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. The undersigned counsel of record certifies that the following interested persons and entities described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. There are no corporations that are either parents of any plaintiffappellant or that own stock in the plaintiffs-appellants. A. Plaintiffs-Appellants 1. 2. Chamber of Commerce of the United States of America Financial Services Institute, Inc. AMERICAN PVERSIGHT ii DOL-17-0281-B-000273 Case: 17-10238 3. 4. 5. 6. 7. 8. 9. 10. B. Document: 00513977124 Page: 6 Date Filed: 05/02/2017 Financial Services Roundtable Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business Others who are not participants in this matter but may be financially interested in its outcome include members of PlaintiffsAppellants Current and Former Attorneys for Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein Rachel Mondl GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W. Suite 400 Washington, D.C. 20005 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, D.C. 20062 J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D.C. 20005 AMERICAN PVERSIGHT iii DOL-17-0281-B-000274 Case: 17-10238 Document: 00513977124 Page: 7 Date Filed: 05/02/2017 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. Washington, D.C. 20005 C. Co-Plaintiffs-Appellants 1. 2. 3. 4. 9. 10. 11. 12. 13. American Council of Life Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors – Texas National Association of Insurance and Financial Advisors – Amarillo National Association of Insurance and Financial Advisors – Dallas National Association of Insurance and Financial Advisors – Fort Worth National Association of Insurance and Financial Advisors – Great Southwest National Association of Insurance and Financial Advisors – Wichita Falls Indexed Annuity Leadership Council Life Insurance Company of the Southwest American Equity Investment Life Insurance Company Midland National Life Insurance Company North American Company for Life and Health Insurance D. Attorneys for Co-Plaintiffs-Appellants 5. 6. 7. 8. David W. Ogden Kelly P. Dunbar Ari Holtzblatt Kevin M. Lamb WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 AMERICAN PVERSIGHT Andrea J. Robinson WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA iv DOL-17-0281-B-000275 Case: 17-10238 Document: 00513977124 Michael A. Yanof THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street Twenty-Fifth Floor – Plaza of the Americas Dallas, TX 75201 Page: 8 Date Filed: 05/02/2017 Yvette Ostolaza SIDLEY AUSTIN LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 Joseph P. Guerra Peter D. Keisler Eric D. McArthur SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 E. Defendants-Appellees 1. 2. United States Department of Labor Edward C. Hugler, Acting Secretary, U.S. Department of Labor F. Attorneys for Defendants-Appellees Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen UNITED STATES DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 200 Constitution Avenue, N.W. Suite N-2119 Washington, D.C. 20210 AMERICAN PVERSIGHT Michael Shih Michael S. Raab U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, APPELLATE SECTION 950 Pennsylvania Avenue, N.W. Suite 7268 Washington, D.C. 20530 v DOL-17-0281-B-000276 Case: 17-10238 Document: 00513977124 Page: 9 Date Filed: 05/02/2017 Galen N. Thorp Emily Newton Joyce R. Branda John R. Parker Judy L. Subar U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W., Room 6140 Washington, D.C. 20530 G. Amici in the District Court 1. 2. 3. 4. 5. 6. 7. 8. 9. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce H. Attorneys for Amici in District Court Mary Ellen Signorille AARP FOUNDATION LITIGATION 601 E Street, N.W. Washington, D.C. 20049 Martin Woodward STANLEY LAW GROUP 6116 North Central Expressway Suite 1500 Dallas, TX 75206 Bernard A. Guerrini 6500 Greenville Avenue Suite 320 Dallas, TX 75206 AMERICAN PVERSIGHT vi DOL-17-0281-B-000277 Case: 17-10238 Document: 00513977124 Page: 10 Date Filed: 05/02/2017 Deepak Gupta Matthew W. H. Wessler GUPTA WESSLER PLLC 1735 20th Street, N.W. Washington, D.C. 20009 Braden W. Sparks BRADEN W. SPARKS PC 12222 Merit Drive Suite 800 Dallas, TX 75251 Brandan S. Maher STRIS & MAHER LLP 1920 Abrams Parkway Suite 430 Dallas, TX 75124 Dennis M. Kelleher BETTER MARKETS INC. 1825 K Street, N.W. Suite 1080 Washington, D.C. 20006 Doug D. Geyser STRIS & MAHER LLP 6688 North Central Expressway Suite 1650 Dallas, TX 75206 Theodore Carl Anderson, III Alexandra Treadgold KILGORE & KILGORE PLLC 3109 Carlisle Street Suite 200 Dallas, TX 75204 Brent M. Rosenthal ROSENTHAL WEINER LLP 12221 Merit Drive Suite 1640 Dallas, TX 75251 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road Suite 650 Dallas, TX 75254 Julie Alyssa Murray PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, D.C. 20009 Charles Flores BECK REDDEN LLP 1221 McKinney Street Suite 4500 Houston, TX 77010 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER & KIRK PLLC 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 AMERICAN PVERSIGHT vii DOL-17-0281-B-000278 Case: 17-10238 Document: 00513977124 Page: 11 Date Filed: 05/02/2017 /s/ Eugene Scalia Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business VERSIGHT viii DOL-17-0281-B-000279 Case: 17-10238 Document: 00513977124 Page: 12 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT This appeal concerns significant changes in the financial-services and insurance industries, which are being imposed by the U.S. Department of Labor instead of Congress or the nation’s primary regulator of investment products and services, the Securities and Exchange Commission. Appellants submit that oral argument would be useful to the Court’s consideration of the case. AMERICAN PVERSIGHT ix DOL-17-0281-B-000280 Case: 17-10238 Document: 00513977124 Page: 13 Date Filed: 05/02/2017 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ......................................... i  STATEMENT REGARDING ORAL ARGUMENT ................................. ix  TABLE OF AUTHORITIES .................................................................... xii  INTRODUCTION ...................................................................................... 1  JURISDICTIONAL STATEMENT ........................................................... 3  STATEMENT OF THE ISSUES PRESENTED ...................................... 3  STATEMENT OF THE CASE .................................................................. 4  SUMMARY OF ARGUMENT ................................................................. 22  STANDARD OF REVIEW....................................................................... 24  ARGUMENT ............................................................................................ 27  I.  II.  The Rule’s Redefinition Of “Fiduciary” Is Unlawful ........... 27  A.  Under ERISA And The Code, The Hallmark Of A “Fiduciary” Is A Relationship Of Trust And Confidence .................................................................... 27  B.  The Plain Language Of ERISA And The Code Forecloses The Rule’s Redefinition Of “Fiduciary” .... 32  C.  The Labor Department’s Construction Of “Fiduciary” Is Unreasonable And Arbitrary ............... 38  The Department Unlawfully Misused Its Narrow Exemptive Authority To Regulate Services And Products It Lacks The Power To Regulate........................... 43  III.  The Department Impermissibly Created A Private Right Of Action In The BIC Exemption ............................... 52  VERSIGHT x DOL-17-0281-B-000281 Case: 17-10238 Document: 00513977124 Page: 14 TABLE OF CONTENTS (continued) Date Filed: 05/02/2017 Page A.  DOL Unlawfully Created A Private Right of Action ............................................................................ 52  B.  The BIC Exemption’s Enforcement Provisions Are Unreasonable, Arbitrary, and Capricious ........... 57  IV.  The Rule’s Ban Of Class Waivers In Arbitration Agreements Violates The Federal Arbitration Act And Is Arbitrary And Capricious ................................................. 59  CONCLUSION ........................................................................................ 63  VERSIGHT xi DOL-17-0281-B-000282 Case: 17-10238 Document: 00513977124 Page: 15 Date Filed: 05/02/2017 TABLE OF AUTHORITIES Page(s) Cases Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) .............................................................................. 47 Alexander v. Sandoval, 532 U.S. 275 (2001) .................................................................... 4, 52, 57 Am. Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y of the U.S., 841 F.2d 658 (5th Cir. 1988) ................................................................ 33 Assoc. Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016) ................................................................ 24 Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110 (2011) ........................................................................ 53, 56 AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ........................................................................ 59, 62 Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906 (10th Cir. 2005) .............................................................. 40 Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) ............................................................ 40 Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013) ................................................................ 26 Cent. & S. W. Servs., Inc. v. EPA, 220 F.3d 683 (5th Cir. 2000) ................................................................ 42 Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ........................................................................ 25, 27 VERSIGHT xii DOL-17-0281-B-000283 Case: 17-10238 Document: 00513977124 Page: 16 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) ............................................................................ 61 D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) ................................................................ 60 FAA v. Cooper, 132 S. Ct. 1441 (2012) .......................................................................... 28 Farm King Supply, Inc. Integrated Profit Sharing Plan & Trust v. Edward D. Jones & Co., 884 F.2d 288 (7th Cir. 1989) ................................................................ 41 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................................................................. 44 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) .............................................................................. 29 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1 (1983) .................................................................................. 55 Granik v. Perry, 418 F.2d 832 (5th Cir. 1969) ................................................................ 28 Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir. 2003) ................................................................... 56 Gutierrez-Brisiel v. Lynch, 834 F.3d 1142 (10th Cir. 2016) ............................................................ 26 Hearth, Patio & Barbecue Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499 (D.C. Cir. 2013) .............................................................. 47 INS v. St. Cyr, 533 U.S. 289 (2001) .............................................................................. 38 King v. Burwell, 135 S. Ct. 2480 (2015) .................................................................... 25, 50 VERSIGHT xiii DOL-17-0281-B-000284 Case: 17-10238 Document: 00513977124 Page: 17 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Kramer v. Smith Barney, 80 F.3d 1080 (5th Cir. 1996) ................................................................ 61 Loughrin v. United States, 134 S. Ct. 2384 (2014) .......................................................................... 48 Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014) ............................................................ 50 Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) ................................................................ 24 Market Synergy Grp. v. Dep’t of Labor, No. 17-3038 (10th Cir.) ........................................................................ 21 MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994) ........................................................................ 45, 50 MD/DC/DE Broadcasters Ass’n v. FCC, 253 F.3d 732 (D.C. Cir. 2001) .................................................. 52, 59, 63 Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928) ..................................................................... 33 Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) .............................................................................. 36 MM&S Fin., Inc. v. NASD, Inc., 364 F.3d 908 (8th Cir. 2004) ................................................................ 56 Molzof v. United States, 502 U.S. 301 (1992) .............................................................................. 28 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) .................................................................................. 59 Motor Vehicle Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................... 25 VERSIGHT xiv DOL-17-0281-B-000285 Case: 17-10238 Document: 00513977124 Page: 18 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 (Jan. 13, 2017) ...................................................................................... 60 Nat’l Ass’n for Fixed Annuities v. Dep’t of Labor, No. 16-5345 (D.C. Cir.) ........................................................................ 21 Neder v. United States, 527 U.S. 1 (1999) .................................................................................. 28 NFIB v. Sebelius, 132 S. Ct. 2566 (2012) .......................................................................... 61 Oak Cliff Bank & Trust Co. v. Steenbergen, 497 S.W.2d 489 (Tex. Civ. App.—Waco 1973, writ ref’d n.r.e.) ..................................................................................................... 28 OPE Int’l LP v. Chet Morrison Contractors, Inc., 258 F.3d 443 (5th Cir. 2001) ................................................................ 59 Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001) .............................................................................. 31 Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ................................................................................ 31 Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F. Supp. 107 (N.D. Ala. 1971) ....................................................... 32 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963) ................................................................................ 6 South Dakota v. Dole, 483 U.S. 203 (1987) .............................................................................. 61 Tax Analysts v. IRS, 214 F.3d 179 (D.C. Cir. 2000) .............................................................. 58 VERSIGHT xv DOL-17-0281-B-000286 Case: 17-10238 Document: 00513977124 Page: 19 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Texas v. United States, 497 F.3d 491 (5th Cir. 2007) ................................................................ 27 THI of N.M. at Hobbs Ctr., LLC v. Spradlin, 532 F. App’x 813 (10th Cir. 2013) ....................................................... 40 Thrivent Fin. For Lutherans v. Hugler, No. 0:16-cv-3289 (D. Minn.) ................................................................. 21 Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979) ................................................................................ 57 Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59 (3d Cir. 2008) ................................................................... 56 United States v. Flores, 404 F.3d 320 (5th Cir. 2005) ................................................................ 26 United States v. Whitten, 610 F.3d 168 (2d Cir. 2010) ................................................................. 52 Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989 (2016) .......................................................................... 28 Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427 (2014) .......................... 25, 34, 35, 36, 44, 45, 46, 50, 51 Varity Corp. v. Howe, 516 U.S. 489 (1996) ........................................................................ 29, 36 Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468 (1989) ................................. 62 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ........................................................................ 44, 47 Whitman v. United States, 135 S. Ct. 352 (2014) ............................................................................ 26 VERSIGHT xvi DOL-17-0281-B-000287 Case: 17-10238 Document: 00513977124 Page: 20 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Statutes 5 U.S.C. § 706 ................................................................... 24, 42, 52, 59, 63 9 U.S.C. § 2 ............................................................................................... 59 15 U.S.C. § 78o-3(b)(6) ................................................................................ 5 15 U.S.C. § 80b-2(a)(11)........................................................................ 7, 10 26 U.S.C. § 4975............................................ 8, 9, 26, 30, 31, 37, 40, 47, 57 28 U.S.C. § 1291.......................................................................................... 3 28 U.S.C. § 1331.......................................................................................... 3 29 U.S.C. § 1002(21)(A) .................................................................. 7, 30, 37 29 U.S.C. § 1104(a) ..................................................................................... 7 29 U.S.C. § 1106(b) ............................................................................... 7, 40 29 U.S.C. § 1108.......................................................................................... 8 29 U.S.C. § 1135.................................................................................... 9, 46 Dodd-Frank Act, § 913(b), 124 Stat. 1824 (2010) .................................... 21 Dodd-Frank Act, § 913(g), 124 Stat. 1828 (2010) .............................. 41, 50 Dodd-Frank Act, § 989J, 124 Stat. 1949 (2010) ................................ 12, 42 Reorganization Plan No. 4 of 1978, § 102 (Aug. 10, 1978), reprinted in 5 U.S.C. app. 1 (2016), and in 92 Stat. 3790 (1978) ................................................................................................ 9, 47 Regulations and Rules 29 C.F.R. § 2510.3-21(j) ............................................................................ 10 76 Fed. Reg. 66,136 (Oct. 25, 2011) ......................................................... 19 VERSIGHT xvii DOL-17-0281-B-000288 Case: 17-10238 Document: 00513977124 Page: 21 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) 82 Fed. Reg. 7,336 (Jan. 19, 2017) ........................................................... 20 82 Fed. Reg. 9,675 (Feb. 7, 2017) ............................................................. 22 82 Fed. Reg. 16,902 (Apr. 7, 2017) ........................................................... 45 FINRA, Rule 2111 ...................................................................................... 6 Other Authorities The American Heritage Dictionary of the English Language (1969) .................................................................................................... 37 Black’s Law Dictionary 753 (rev. 4th ed. 1951) ...................................... 29 Josh Blackman, Gridlock, 130 Harv. L. Rev. 241, 261 (2016) ................ 25 George G. Bogert, George T. Bogert & Caryl A. Yzenbaard, Bogert’s Trusts & Trustees § 481 (2016 update) ........................... 10, 28 H.R. Rep. No. 93-533 (1973) ............................................................... 10, 29 Hughes, Exchange Act Release No. 4048, 1948 WL 29537 (Feb. 18, 1948) ...................................................................................... 33 VERSIGHT xviii DOL-17-0281-B-000289 Case: 17-10238 Document: 00513977124 Page: 22 Date Filed: 05/02/2017 INTRODUCTION This case involves an attempt to impose profound changes in the financial-services and insurance industries by an agency that is charged with overseeing labor and employment matters and has virtually no authority beyond those arenas. The Department of Labor (the “Department” or “DOL”) seeks to outlaw the compensation models that have long been a cornerstone of these industries, impose on them new standards of conduct, erase universally recognized distinctions between salespeople and fiduciary advisers, and reconfigure relationships among financial and insurance representatives and their customers—all at staggering costs that will stretch well into billions of dollars. The goal of the Department’s ambitious new regulatory scheme is to circumvent its lack of statutory authority over Individual Retirement Accounts (“IRAs”). Congress never vested DOL with authority to regulate IRAs, which have nothing to do with the labor and employment matters that Congress charged the Department with overseeing. DOL nonetheless has decided that certain changes should be required for financial and insurance professionals when they are handling retirement-related AMERICAN PVERSIGHT DOL-17-0281-B-000290 Case: 17-10238 Document: 00513977124 Page: 23 Date Filed: 05/02/2017 accounts, regardless whether the accounts are employers’ retirement plans or individual IRAs. To that end, the Department deployed a two-step strategy to transcend the limits on its power. First, the Department exploited its limited authority to interpret certain terms in the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code (“Code”) to subject brokers, insurance agents, and other financial professionals to fiduciary restrictions that would transform or even destroy their businesses unless they obtain exemptive relief. Second, DOL made clear it would withhold that exemptive relief unless they agree to opt in to DOL’s expansive new regulation of the IRA market. The Department thus leverages its deregulatory power into a regulatory power to coerce additional obligations on the IRA market—all in circumvention of Congress’s decision to withhold from DOL the authority to regulate IRAs. This so-called “Fiduciary Rule” (or “Rule”) and its related exemptions are arbitrary, capricious, and contrary to law. Through them, the Department uproots the term “fiduciary” from its statutory and common law meaning, expanding it to encompass stock brokers, insurance agents, and other professionals engaged in ordinary sales or other traditionally AMERICAN PVERSIGHT 2 DOL-17-0281-B-000291 Case: 17-10238 Document: 00513977124 Page: 24 Date Filed: 05/02/2017 non-fiduciary activity. The Rule misuses DOL’s narrow authority to relieve regulatory burdens as a tool to compel regulated entities to submit to onerous new requirements that DOL has no power to impose directly. It impermissibly creates a new private right of action that Congress never authorized. And it imposes unlawful restrictions on arbitration agreements in violation of the Federal Arbitration Act. The Fiduciary Rule and its related exemptions should be vacated. JURISDICTIONAL STATEMENT The district court had original jurisdiction under 28 U.S.C. § 1331. That court entered final judgment on February 9, 2017, ROA.9954, and Plaintiffs–Appellants filed a notice of appeal on February 24, 2017, ROA.9955. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES PRESENTED I. Did the Department interpret “fiduciary” and “renders invest- ment advice for a fee” in a manner that is unreasonable, arbitrary, and capricious, and conflicts with the plain meaning of ERISA and the Code? AMERICAN PVERSIGHT 3 DOL-17-0281-B-000292 Case: 17-10238 II. Document: 00513977124 Page: 25 Date Filed: 05/02/2017 Was it unreasonable, arbitrary, and capricious for the Depart- ment to use its “exemptive” authority, which is meant to reduce regulatory burdens, to impose transformative new requirements related to IRAs that the Department had no authority to impose directly? III. Was it contrary to Alexander v. Sandoval, 532 U.S. 275 (2001), and arbitrary, capricious, and otherwise unlawful, for the Department deliberately to create new enforceable rights with respect to IRAs and to dictate the forum, procedures, and remedies available for the vindication of those rights? IV. Did the Department violate the Federal Arbitration Act (“FAA”) by barring any firm that seeks exemptive relief from entering arbitration agreements unless the firm allows class-wide claims? STATEMENT OF THE CASE I. The Financial-Services Industry And Insurance Industry Americans saving for retirement depend on the services and prod- ucts offered by hundreds of thousands of financial and insurance professionals, small businesses, and other institutions in the financial-services AMERICAN PVERSIGHT 4 DOL-17-0281-B-000293 Case: 17-10238 Document: 00513977124 Page: 26 Date Filed: 05/02/2017 and insurance industries. Studies show that individuals who receive assistance from financial and insurance professionals save more than those who do not. ROA.3722-23. Financial services and insurance are among the most comprehensively regulated industries in the United States. The laws regulating financial services include the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 (“Advisers Act”), the Investment Company Act of 1940, and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The States also regulate the financial-services industry, as do self-regulatory organizations such as the Financial Industry Regulatory Authority (“FINRA”). See 15 U.S.C. § 78o-3(b)(6); ROA.2700-01, 8085-86. The business of insurance is subject to extensive regulation at the state level. ROA.2295-96, 6130-31. Certain insurance products—such as variable annuities—are simultaneously regulated by state insurance departments and the SEC. See ROA.6130. For nearly 80 years, federal and state law have recognized three basic categories of financial and insurance professionals: AMERICAN PVERSIGHT 5 DOL-17-0281-B-000294 Case: 17-10238 Document: 00513977124 Page: 27 Date Filed: 05/02/2017 Investment advisers offer ongoing investment advice to clients, for which they typically receive periodic fees. Their fees may be based on the value of the assets in customers’ accounts, or may be a flat fee or hourly charge. See, e.g., ROA.9095-97. Brokers—also known as registered representatives—sell investment products, ordinarily receiving compensation for each transaction executed. This compensation typically takes the form of a commission, mark-up, or sales load. State-regulated insurance agents sell fixed-indexed, fixed-rate, and variable annuities and other insurance products and ordinarily are compensated on a transaction basis. See ROA.8535. Under federal and state law, investment advisers—who are compensated for their advice—have long been recognized to be fiduciaries. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 190-92 (1963). This generally is not the case for brokers and insurance agents, who nonetheless must adhere to strict standards of conduct, including that they recommend only transactions that are “suitable” for their customers. See FINRA, Rule 2111. AMERICAN PVERSIGHT 6 DOL-17-0281-B-000295 Case: 17-10238 II. Document: 00513977124 Page: 28 Date Filed: 05/02/2017 Regulation Of Fiduciaries Under ERISA Individuals often save for retirement through employer-sponsored retirement plans, and through IRAs. Employer-sponsored plans are governed by Title I of ERISA, which regulates the plans in three ways that are pertinent to this appeal. First, ERISA designates certain service providers to plans as fiduciaries, and holds them to heightened duties of loyalty and prudence. 29 U.S.C. § 1104(a). ERISA contains a three-part definition of “fiduciary.” As relevant here, a person is a fiduciary “to the extent” that “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.” 29 U.S.C. § 1002(21)(A)(ii). This tracks language in the Advisers Act, which defines an adviser—a role that has been long recognized as fiduciary—as someone who “for compensation . . . advis[es] others . . . as to the value of securities or as to the advisability of investing in, purchasing, or selling securities.” 15 U.S.C. § 80b-2(a)(11). Second, ERISA bars fiduciaries from engaging in several “prohibited transactions.” 29 U.S.C. § 1106(b)(3). These include transactions in AMERICAN PVERSIGHT 7 DOL-17-0281-B-000296 Case: 17-10238 Document: 00513977124 Page: 29 Date Filed: 05/02/2017 which the fiduciary receives a commission paid by a third party or compensation that varies based on the advice that is provided. Id.; ROA.383, 453. Third, ERISA creates several exemptions to allow transactions that would otherwise be prohibited, and authorizes the Department—the nation’s principal employment regulator—to create additional exemptions if certain criteria are satisfied. 29 U.S.C. § 1108(a), (b). The Act gives DOL enforcement and regulatory authority over employer-sponsored retirement plans, in addition to authorizing plan participants to sue fiduciaries who breach their duties of loyalty or prudence. Id. § 1001(b); id. § 1132(a). III. Regulation of Fiduciaries under the Internal Revenue Code IRAs (and certain other tax-favored retirement accounts) are governed by the Internal Revenue Code, not ERISA. The two laws have similarities—and importance differences. The Code contains an essentially identical definition of “fiduciary,” 26 U.S.C. § 4975(e)(3), and also enumerates certain “prohibited transactions,” id. § 4975(c). However, fiduciaries to IRAs are not subject to the AMERICAN PVERSIGHT 8 DOL-17-0281-B-000297 Case: 17-10238 Document: 00513977124 Page: 30 Date Filed: 05/02/2017 duties of loyalty and prudence that apply to ERISA fiduciaries. Moreover, DOL has no enforcement or regulatory authority over IRAs, and the Code provides no private right of action. The Code’s prohibited-transaction provisions are enforced by the Treasury Department, through audits and excise taxes. Id. § 4975(a), (f)(8)(E). For reasons of administrative convenience, Congress gave DOL limited authority with respect to IRAs in two areas where ERISA and the Code overlap: DOL “may define accounting, technical and trade terms” as they appear in both laws, 29 U.S.C. § 1135, and may grant exemptions from the prohibited-transaction provisions of the Code, as for ERISA, see Reorganization Plan No. 4 of 1978, § 102 (Aug. 10, 1978), reprinted in 5 U.S.C. app. 1 (2016), and in 92 Stat. 3790 (1978) (“Reorganization Plan No. 4”). As noted, however, DOL has no enforcement authority over IRAs. See id. § 105. IV. The Department’s Original Interpretation Of “Fiduciary” In 1975, DOL promulgated a regulation setting forth a five-part test for determining who is a fiduciary under the investment-advice provision AMERICAN PVERSIGHT 9 DOL-17-0281-B-000298 Case: 17-10238 Document: 00513977124 Page: 31 Date Filed: 05/02/2017 of the definition in ERISA and the Code.1 DOL’s 1975 regulation sought to capture the hallmark of a fiduciary relationship at common law: a special relationship of trust and confidence. E.g., George G. Bogert, George T. Bogert & Caryl A. Yzenbaard, Bogert’s Trusts & Trustees § 481 (2016 update). See also H.R. Rep. No. 93-533, at 2082 (1973), as reprinted in 1974 U.S.C.C.A.N. 4639, 4649 (Congress adopted “fiduciary” definition that “in essence, codifies and makes applicable to these fiduciaries certain principles developed in the evolution of the law of trusts”). The regulation embodied the common law distinction recognized in the Advisers Act between an investment-advice fiduciary and a “broker or dealer” who provides advice that is “solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor.” 15 U.S.C. § 80b-2(a)(11)(C). 1 The regulation defined an investment-advice fiduciary as someone who (1) “render[ed] advice as to the value of securities or other property, or [made] recommendation[s] as to the advisability of investing in, purchasing, or selling securities or other property”; (2) “on a regular basis”; (3) “pursuant to a mutual agreement, arrangement or understanding,” with the plan or plan fiduciary; (4) where the advice “serve[d] as a primary basis for investment decisions with respect to plan assets”; and (5) the advice was individualized “based on the particular needs of the plan.” 29 C.F.R. § 2510.3-21(j). VERSIGHT 10 DOL-17-0281-B-000299 Case: 17-10238 V. Document: 00513977124 Page: 32 Date Filed: 05/02/2017 The Department’s New Fiduciary Rule And Exemptions In April 2015, DOL proposed a new definition of “fiduciary,” two new prohibited-transaction exemptions, and amendments to six existing exemptions. ROA.1020-52 (new interpretation and new exemptions); ROA.1053-1139 (amendments to existing exemptions). After notice and comment, the new definition and exemptions were adopted and published in the Federal Register in April 2016 as a package of seven different rules, which are referred to collectively as the “Fiduciary Rule.” ROA.322-538 (new interpretation and new exemptions); ROA.539-624 (amendments to existing exemptions). DOL’s new Rule rests on a sweeping critique of the securities laws, insurance products, broker-dealers, mutual funds, and other matters outside DOL’s limited mandate of regulating employer-sponsored retirement plans. For example, disclosure requirements are a cornerstone of the securities laws and state insurance regulation, but DOL concluded that disclosure was “ineffective to mitigate conflicts in advice” and might actually “make consumers worse off.” ROA.326-27, 780. Congress had determined that insurance products known as “fixed-indexed” annuities AMERICAN PVERSIGHT 11 DOL-17-0281-B-000300 Case: 17-10238 Document: 00513977124 Page: 33 Date Filed: 05/02/2017 should not be regulated by the SEC if certain state regulatory requirements are satisfied, Dodd-Frank Act, § 989J, 124 Stat. 1949-50 (2010), but DOL criticized those products and decided that heightened federal oversight was needed anyway, ROA.554-55. DOL also based the Rule on its preference for “passively managed mutual funds (i.e. index funds)” over “actively managed funds,” and its “deep and continuing concern[s]” with “proprietary” financial products, for example, insurance policies that an insurance company both designs and markets. ROA.429, 782. The Rule aims to address these perceived problems by instituting what DOL calls a “best interest” standard of conduct for all financial professionals, particularly those who service IRAs. (As noted, DOL has no regulatory authority over IRAs, and the Code does not subject IRA fiduciaries to duties of loyalty and prudence.) The Rule has two basic components: First, it adopts an interpretation of “fiduciary” that captures virtually all financial and insurance professionals who provide services to IRAs and ERISA plans—thereby subjecting them to those laws’ prohibited-transaction requirements. These professionals are thus barred from receiving forms of compensation that have been a cornerstone of their business models for generations. Second, the Rule provides an exemption AMERICAN PVERSIGHT 12 DOL-17-0281-B-000301 Case: 17-10238 Document: 00513977124 Page: 34 Date Filed: 05/02/2017 from those prohibitions, but only if brokers and agents adhere to a range of new requirements designed by DOL to implement its best-interest standard. The Rule thus forces brokers and insurance agents to either “comply with [an] Exemption” or “curtail” services. ROA.7959. A. The Labor Department’s New Interpretation Of “Fiduciary” The Rule’s new definition of “fiduciary” applies to any person who provides “investment advice” to an ERISA plan participant or “IRA owner” and receives a “fee or other compensation” in connection with that advice. “Investment advice” is defined broadly by DOL to include “recommendations” regarding, among other things, whether to buy or sell “securities or other investment property”; the “rollover” of retirement plan assets to an IRA; and how “securities or other investment property” should be invested in an IRA. ROA.373. “Recommendation,” in turn, is also defined broadly 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.” ROA.373 (emphasis added). AMERICAN PVERSIGHT 13 DOL-17-0281-B-000302 Case: 17-10238 Document: 00513977124 Page: 35 Date Filed: 05/02/2017 Taken together, these definitions dramatically expand the scope of the statutory definition of “fiduciary.” As the Rule operates in practice, a person can become a fiduciary if she simply “[d]irect[s] . . . advice to a specific advice recipient” regarding the “advisability of a particular investment . . . decision.” ROA.373. That is, the Rule treats any suggestion in connection with a sale as conferring fiduciary status, with narrow exceptions. Under DOL’s rule, for example, if an insurance sales agent tells a prospective customer, “You will be very pleased with my company’s new annuity product,” that agent is deemed—for having engaged in that act of salesmanship—to be a fiduciary. The Rule thus rejects the distinction between selling products and giving advice that has been fundamental to the securities laws for nearly 80 years. B. The “Best Interest Contract” Exemption DOL recognized that its new interpretation of “fiduciary” was overbroad and impractical. This “broad test,” it said, “could sweep in some relationships that are not appropriately regarded as fiduciary in nature and that the Department does not believe Congress intended to cover as fiduciary relationships.” ROA.324. The consequences of that are immense, because the prohibited-transactions provisions of the Code and AMERICAN PVERSIGHT 14 DOL-17-0281-B-000303 Case: 17-10238 Document: 00513977124 Page: 36 Date Filed: 05/02/2017 ERISA bar the third-party payments, commissions, and sales loads that are the norm for brokers and insurance agents. See, e.g., ROA.368, 37980. DOL recognized that outlawing those payments was unacceptable. Transaction-based compensation such as commissions are “commonplace in today’s marketplace,” DOL said, and “often support beneficial advice arrangements.” ROA.439-40. “[B]anning all commissions, transactionbased payments, and other forms of conflicted payments . . . could have serious adverse unintended consequences.” ROA.439. Indeed, DOL said, it is “abusive conduct” to use fee-based compensation rather than a transaction-based commission for smaller customer accounts that only engage in infrequent trading. ROA.388-89 n.18, 932 n.573.2 Rather than scale back its unacceptably broad interpretation of “fiduciary,” DOL simultaneously promulgated numerous “exemptive rules” to permit certain otherwise prohibited transactions to continue—but only 2 See also ROA.6114-16 (for year 2010, approximately 50% of IRA accounts contained assets of $25,000 or less and had on average 3 to 5 trades per account for that year); ROA.8354 (Approximately 95% of accounts under $25,000 rely on transaction-based models). VERSIGHT 15 DOL-17-0281-B-000304 Case: 17-10238 Document: 00513977124 Page: 37 Date Filed: 05/02/2017 if brokers and insurance agents accede to a range of new “conditions” designed by DOL.3 The most important of these is the Best Interest Contract (“BIC”) Exemption. Under the BIC Exemption, brokers and insurance agents may receive commissions (and other transaction-based payments) if the financial institution or insurance company that employs them, among other things:  acknowledges in writing that it and its professionals are serving as fiduciaries;  acknowledges that the company has adopted “impartial conduct standards” under which the professional’s recommendations must be in the “best interest” of the investors (requiring in part that the recommendations be made “without regard to the financial or other interests of the Adviser, Financial Institution or any Affiliate, Related Entity, or other party”), and the professional does not receive payment “in excess of reasonable compensation”; 3 In a surprise change from the proposal, DOL narrowed the scope of an important and long-standing exemption, Prohibited Transaction Exemption 84-24; although only individual variable annuities were excluded from the exemption as proposed (because they are regulated as securities), the final exemption also excludes group variable annuities and fixed-indexed annuities. ROA.548-49. It now includes only fixedrate annuities. VERSIGHT 16 DOL-17-0281-B-000305 Case: 17-10238 Document: 00513977124 Page: 38 Date Filed: 05/02/2017  provides warranties regarding policies and procedures implemented by the company to ensure adherence to these impartial conduct standards; and  makes various disclosures of conflicts of interests and third-party payments that may be received from the transaction. ROA.453-57.4 A “critical” feature of the BIC Exemption, DOL said, was its requirement that IRA fiduciaries enter enforceable contracts with customers. ROA.397. These contracts bind them to fiduciary duties of loyalty and prudence (which do not apply under the Code) and may not contain provisions that are commonly used to limit liability, such as a liquidated damages clause or an arbitration agreement that waives participation in class actions. See ROA.379-80, 453, 455-56. This new contract’s “enforceability,” DOL said, “and the potential for liability” it created, were “central goals of this regulatory project.” ROA.398, 410. 4 DOL created a second new exemption—the Principal Transactions Exemption—that allows financial institutions to engage in, and receive payments in connection with, otherwise-prohibited transactions. ROA.523, 525-28. The Principal Transactions exemption requires the same contractual obligations and liabilities as the BIC Exemption. See ROA.479-530. For simplicity, the remainder of this brief refers to both exemptions collectively as the BIC Exemption. VERSIGHT 17 DOL-17-0281-B-000306 Case: 17-10238 Document: 00513977124 Page: 39 Date Filed: 05/02/2017 DOL thus concluded that the protections Congress had put in the Code were inadequate, and took it upon itself to fill in the holes it believed Congress had left. “Unlike participants and beneficiaries in plans covered by Title I of ERISA,” the Department lamented, IRA owners “do not have an independent statutory right to sue fiduciaries for violation of the prohibited transaction rules.” ROA.398; see also ROA.410. Therefore, DOL “creat[ed] a mechanism for investors” to sue. ROA.398. As a senior DOL official explained, DOL “had to be creative to try to find a way to” create enforceable rights under the Rule; “that’s how we came up with the best interest contract exemption,” “deputizing” consumers to bring “state contract actions.” ROA.49-50. The new Rule will have significant adverse effects for IRA owners, other retirement savers, and the products and professionals they rely upon. Advisory accounts (unlike brokerage accounts) usually require the account holder to maintain a minimum account balance to be eligible to receive services from an investment professional. ROA.6120. Because of account minimums, the Rule “could eliminate access to meaningful investment services for over 7 million IRAs.” ROA.6106. DOL nonetheless brushed aside the record evidence indicating that the Rule would curtail AMERICAN PVERSIGHT 18 DOL-17-0281-B-000307 Case: 17-10238 Document: 00513977124 Page: 40 Date Filed: 05/02/2017 the availability of investment assistance and advice, harming the individuals it purported to help. ROA.2736-37, ROA.3719-23. DOL even ignored its own previous estimates that investment mistakes cost investors approximately $114 billion per year, that access to financial assistance reduced the cost of those mistakes by $15 billion per year, and that increased access to financial assistance would enable them to save billions more. Investment Advice–Participants and Beneficiaries, 76 Fed. Reg. 66,136, 66,152 (Oct. 25, 2011). Individuals’ access to certain products will be especially impaired, due to DOL’s decision to favor certain products and distribution models while disfavoring others—including the fixed-indexed annuities products that Congress indicated in Dodd-Frank should be regulated by the States. Supra 11-12. Fixed-indexed annuities are often sold through independent insurance agents who may be part of an independent marketing organization (“IMO”). An IMO cannot qualify for the BIC Exemption: Only “Financial Institutions” are eligible, and IMOs are not Financial Institutions within the meaning of the Exemption. And although insurance companies that create annuities do qualify as Financial Institutions, ROA.454, ROA.460, those companies cannot obtain relief under the AMERICAN PVERSIGHT 19 DOL-17-0281-B-000308 Case: 17-10238 Document: 00513977124 Page: 41 Date Filed: 05/02/2017 BIC Exemption with respect to independent insurance agents, because the BIC Exemption imposes strict supervisory requirements that insurance companies cannot satisfy with respect to independent agents: those agents might sell the fixed-indexed annuities of several different insurance companies, and none of those companies can supervise the products the agent or IMO offers at a particular time, or the compensation offered by other companies. Because independent agents can neither receive commissions under the Rule nor qualify for the BIC Exemption, they may be forced to exit the market, thereby reducing consumer access and choice and shuttering the businesses of independent agents, many of whom are sole proprietorships or small businesses. DOL belatedly recognized its error and purported to address it in a proposed rule regarding “insurance intermediaries,” 5 but that proposal—which is not law—serves only to point up the error of the Rule DOL adopted, and which is before this Court. The Rule’s consequences reach well beyond retirement investments. Many broker-dealers and other investment firms serve both IRAs 5 See Proposed Best Interest Contract Exemption for Insurance Intermediaries, 82 Fed. Reg. 7,336 (Jan. 19, 2017). VERSIGHT 20 DOL-17-0281-B-000309 Case: 17-10238 Document: 00513977124 Page: 42 Date Filed: 05/02/2017 and other types of accounts, and must now navigate a “panoply of regulatory regimes” regarding “different accounts” held by “a single customer.” ROA.2703. DOL nonetheless concluded that it could not wait for other regulators to act, ROA.439, including the SEC, which Congress had instructed in the Dodd-Frank Act to consider whether a new standard of conduct for broker-dealers was needed, Dodd-Frank Act, § 913(b), 124 Stat. 1824 (2010). Instead, DOL elected to front-run the SEC and install itself as the paramount regulator of IRAs, a range of insurance products, and the financial professionals who offer them. VI. District Court Proceedings Plaintiffs–Appellants the U.S. Chamber of Commerce et al. (“Plain- tiffs”) challenged the Fiduciary Rule under the Administrative Procedure Act (“APA”). Two other actions filed in the same court were consolidated with this case.6 On cross-motions for summary judgment, the district 6 Three other suits challenging the Rule are proceeding before other courts. Nat’l Ass’n for Fixed Annuities v. Dep’t of Labor, No. 16-5345 (D.C. Cir.); Market Synergy Grp. v. Dep’t of Labor, No. 17-3038 (10th Cir.); Thrivent Fin. For Lutherans v. Hugler, No. 0:16-cv-3289 (D. Minn.). VERSIGHT 21 DOL-17-0281-B-000310 Case: 17-10238 Document: 00513977124 Page: 43 Date Filed: 05/02/2017 court adopted DOL’s litigating position across the board and granted it summary judgment. ROA.9873-9953. This appeal followed. ROA.9955.7 SUMMARY OF ARGUMENT The Fiduciary Rule is arbitrary, capricious, unreasonable, and contrary to law. The Court should vacate the Rule for each of the following four reasons. I. The plain meaning of “fiduciary” precludes the Department from interpreting the term so broadly that it encompasses virtually all sales relationships. When Congress uses a common-law term of art in a statute, it incorporates the term’s settled meaning, and at common law, a “fiduciary” relationship arises only where there is a special relationship of trust between the parties. The Fiduciary Rule’s novel re-interpretation of “fiduciary” divorces that term from the relationships that define it, improperly equating sales interactions with disinterested fiduciary advice. 7 Shortly before the district court issued its opinion, the President issued a memorandum directing DOL to reconsider the Fiduciary Rule in light of its potentially adverse effects on investors. 82 Fed. Reg. 9,675 (Feb. 7, 2017). Specifically, the President directed the Department to assess whether the Rule might cause certain specified harms to investors. Id. If DOL determines that any of the specified harms will likely occur, it is to propose “rescinding or revising the Rule.” Id. VERSIGHT 22 DOL-17-0281-B-000311 Case: 17-10238 Document: 00513977124 Page: 44 Date Filed: 05/02/2017 Even if ERISA and the Code gave DOL some leeway in construing “fiduciary,” the Rule has reinvented it in a way that is irreconcilable with its settled meaning and is unreasonable, arbitrary, and capricious. II. The Fiduciary Rule exceeds the Department’s power and abuses its exemptive authority. An agency cannot deploy a narrow grant of exemptive authority to promulgate industry-reshaping regulations. The Department, however, has attempted to radically redesign the market for IRAs—a market that it has no power to regulate directly— through its limited authority to reduce regulatory burdens. This backdoor regulation is unlawful, arbitrary, and capricious. III. In the absence of congressional authorization, an agency may not create a private right of action directly or indirectly. The BIC Exemption flouts this principle by creating private liability for the purpose of enforcing the requirements of the Fiduciary Rule. In crafting this new enforcement regime, DOL also engaged in an unreasonable, arbitrary exercise of regulatory power that is directly at odds with Congress’s design. IV. The Fiduciary Rule violates the Federal Arbitration Act (“FAA”) by prohibiting financial and insurance professionals who rely on the BIC Exemption from entering arbitration agreements that contain AMERICAN PVERSIGHT 23 DOL-17-0281-B-000312 Case: 17-10238 Document: 00513977124 Page: 45 Date Filed: 05/02/2017 class waivers. The FAA prohibits States and federal agencies from conditioning the enforceability of arbitration agreements on the presence or absence of particular terms. Accordingly, the Department’s impermissible attempt to use the BIC Exemption to dictate the terms of arbitration agreements is contrary to federal law.8 STANDARD OF REVIEW This Court “review[s] de novo a district court’s grant of summary judgment, applying the same standard as the district court.” Assoc. Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215, 219 (5th Cir. 2016) (quotation omitted). Under the APA, this Court “shall . . . hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations,” or “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C); see also Luminant Generation Co. v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on 8 Plaintiffs incorporate by reference the briefs (and all arguments therein) filed today by the Indexed Annuity Leadership Council (“IALC”) Plaintiffs-Appellants and the American Council of Life Insurers (“ACLI”) Plaintiffs-Appellants. VERSIGHT 24 DOL-17-0281-B-000313 Case: 17-10238 Document: 00513977124 Page: 46 Date Filed: 05/02/2017 factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The deference that often is given an agency’s interpretation of a statute under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), does not apply to “question[s] of deep economic and political significance” that Congress did not “expressly” assign to the agency. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citation omitted). Thus, an agency is prohibited from adopting a regulation that “would bring about an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization.” Util. Air Regulatory Grp. (“UARG”) v. E.P.A., 134 S. Ct. 2427, 2444 (2014) (emphasis added); see also Josh Blackman, Gridlock, 130 Harv. L. Rev. 241, 261 (2016) (describing the “major question doctrine” as an “exception to Chevron” under which “the agency is owed no deference” when its “regulation implicates a ‘major question’”). AMERICAN PVERSIGHT 25 DOL-17-0281-B-000314 Case: 17-10238 Document: 00513977124 Page: 47 Date Filed: 05/02/2017 Chevron deference also should not apply to a term—like ERISA’s definition of fiduciary—that has both civil and criminal applications. The rule of lenity “requires interpreters to resolve ambiguity in criminal laws in favor of defendants,” Whitman v. United States, 135 S. Ct. 352, 352-53 (2014) (statement of Scalia, J., respecting the denial of certiorari), yet “[a] single law should have one meaning,” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 730, 733 (6th Cir. 2013) (Sutton, J., concurring). Therefore, a term with both criminal and civil consequences should be interpreted using the rule of lenity, not Chevron. Id.; accord Gutierrez-Brisiel v. Lynch, 834 F.3d 1142, 1155-56 (10th Cir. 2016) (Gorsuch, J., concurring). Cf. United States v. Flores, 404 F.3d 320, 326-27 (5th Cir. 2005) (declining to “decid[e] whether full Chevron deference is appropriate” where a statute “involv[es] a mixture of both immigration and criminal law” (footnote omitted)).9 9 Since the definition of “fiduciary” in the Code is effectively identical to the definition in ERISA and was passed at the same time, see Pub. L. No. 93-406, 152-53, 88 Stat. 829, 877 (1974); 26 U.S.C. § 4975(e)(3)(B), the Court also should not defer to the Department’s interpretation of “fiduciary” in the Code. VERSIGHT 26 DOL-17-0281-B-000315 Case: 17-10238 Document: 00513977124 Page: 48 Date Filed: 05/02/2017 In circumstances where Chevron does apply, courts follow a familiar two-step process: At step one, if “the text and structure of a statute unambiguously foreclose an agency’s statutory interpretation, “the intent of Congress is clear, [and] that is the end of the matter.” 467 U.S. at 84243 & n.9. At step two, an agency’s interpretation of an ambiguous statute will be rejected if it is “unreasonable,” including if it “violate[s] [Congress’s] intent.” Texas v. United States, 497 F.3d 491, 501, 506 (5th Cir. 2007). ARGUMENT I. The Rule’s Redefinition Of “Fiduciary” Is Unlawful. In promulgating its new interpretation of “fiduciary,” DOL contra- vened the plain text of the Code and ERISA, adopting an unreasonable construction that strayed far beyond what Congress intended. The interpretation, and the Fiduciary Rule as a whole, must be vacated. A. Under ERISA And The Code, The Hallmark Of A “Fiduciary” Is A Relationship Of Trust And Confidence. The plain meaning of the term “fiduciary” precludes the Department from adopting an interpretation so broad that it includes virtually AMERICAN PVERSIGHT 27 DOL-17-0281-B-000316 Case: 17-10238 Document: 00513977124 Page: 49 Date Filed: 05/02/2017 all persons who engage in sales interactions, regardless of the presence of a relationship of trust and confidence. It is a “cardinal rule of statutory construction that, when Congress employs a term of art” from the common law, “it presumably knows and adopts the cluster of ideas that” the common law attached to that term. FAA v. Cooper, 132 S. Ct. 1441, 1449 (2012) (quotation marks omitted). Even where a statute “abrogates the common law in certain respects,” courts must nevertheless “presume that Congress retained all other elements of [the common law] that are consistent with the statutory text.” Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 1999 n.2 (2016); see also, e.g., Neder v. United States, 527 U.S. 1, 23-25 (1999); Molzof v. United States, 502 U.S. 301, 310-11 (1992). At common law, a “fiduciary” relationship arises only where “special intimacy or . . . trust and confidence” exists between the parties. Bogert, supra § 481; see also, e.g., Granik v. Perry, 418 F.2d 832, 836 (5th Cir. 1969) (a “fiduciary” relationship exists where “a relation of trust and confidence exists between the parties” (citation omitted)); Oak Cliff Bank & Trust Co. v. Steenbergen, 497 S.W.2d 489, 493 (Tex. Civ. App.—Waco AMERICAN PVERSIGHT 28 DOL-17-0281-B-000317 Case: 17-10238 Document: 00513977124 Page: 50 Date Filed: 05/02/2017 1973, writ ref’d n.r.e.) (“a fiduciary relationship” is “one of trust and confidence”); Black’s Law Dictionary 753 (rev. 4th ed. 1951) (defining “fiduciary” based on the “trust and confidence involved” in the relationship). Thus, in ERISA and the Code, Congress used the term “fiduciary”— a well-defined, common law term of art—to refer to individuals having special relationships of trust and confidence with their clients. See, e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110-11 (1989) (ERISA and the Code incorporate principles of the common law of trusts). The word “fiduciary” has, “over the years,” obtained “a legal meaning, to which, we normally presume, Congress meant to refer.” Varity Corp. v. Howe, 516 U.S. 489, 502 (1996). The House Report on ERISA specifically confirms that ERISA imports the common-law principle that a “fiduciary is one who occupies a position of confidence or trust.” H.R. Rep. No. 93533, at 2082 (1973), as reprinted in 1974 U.S.C.C.A.N. 4639, 4649. And for more than forty years DOL itself recognized this settled definition of “fiduciary” in its regulations, which expressly confirm that fiduciary status applies only to persons who rendered advice “on a regular basis” and “pursuant to a mutual agreement” that was “individualized” and “serve[d] as a primary basis for investment decisions.” See supra note 1. AMERICAN PVERSIGHT 29 DOL-17-0281-B-000318 Case: 17-10238 Document: 00513977124 Page: 51 Date Filed: 05/02/2017 To be sure, ERISA contains definitional provisions that further guide how “fiduciary” should be interpreted, but none of those provisions suggest that Congress discarded the settled meaning of “fiduciary”—as if any other word would have equally sufficed. Nor do they suggest that Congress abandoned the essential characteristic of a “fiduciary”: a special relationship of trust and confidence. Rather, the definitional provisions confirm that Congress was referring to advisers who occupy a privileged and influential role. The definition of “fiduciary” in ERISA and the Code has three elements. See 26 U.S.C. § 4975(c)(3); 29 U.S.C. § 1002(21)(A). The first makes a person a fiduciary if she exercises “discretionary authority or discretionary control respecting management” of a plan, and the third provides that a person is a fiduciary if he has “discretionary authority or discretionary responsibility” over plan administration. 26 U.S.C. § 4975(c)(3)(A), (C); 29 U.S.C. § 1002(21)(A)(i), (iii). Both contemplate a substantial, ongoing, and confidential relationship with a plan. DOL’s new interpretation concerns the second requirement (regarding the provision of “investment advice”), under which a person is a AMERICAN PVERSIGHT 30 DOL-17-0281-B-000319 Case: 17-10238 Document: 00513977124 Page: 52 Date Filed: 05/02/2017 fiduciary if she “renders investment advice for a fee or other compensation, direct or indirect, with respect to” an IRA, or if she “has any authority or responsibility to do so.” 26 U.S.C. § 4975(e)(3)(B) (emphases added). The essence is that a fee is being paid to procure the “advice” of someone with expertise and independent judgment about the best course to pursue, as opposed to a commission being paid for consummating a transaction with a broker or insurance sales agent. The second half of this definition, with its reference to “authority” and “responsibility,” confirms the focus of the definition as a whole on substantial, ongoing relationships of trust and confidence. Further, this requirement must be read in conjunction with the first and third that bookend it, both of which plainly contemplate a substantial relationship of trust and confidence. “[I]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (quotation omitted); see also Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 852 (2001). AMERICAN PVERSIGHT 31 DOL-17-0281-B-000320 Case: 17-10238 Document: 00513977124 Page: 53 Date Filed: 05/02/2017 Yet as shown below, DOL’s Rule sweeps well beyond the relationships captured by the term “fiduciary” and the statute’s “investment advice” definition. B. The Plain Language Of ERISA And The Code Forecloses The Rule’s Redefinition Of “Fiduciary.” Under DOL’s rule, the very act of selling—recommending the purchase of a financial product—makes a broker or an insurance agent a fiduciary.10 That clashes with the plain meaning of “fiduciary.” At the time ERISA was enacted, it was well recognized that an arms-length sales transaction did not give rise to a fiduciary relationship of trust and confidence. See, e.g., Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F. Supp. 107, 113-14 (N.D. Ala. 1971) (broker not 10 Moreover, “providing a selective list of securities” and indicating they are “appropriate for [that] investor” without making a “recommendation . . . with respect to any one security” can create a fiduciary relationship and fiduciary obligations. ROA.348. An introductory conversation with a broker during which an IRA was suggested as an investment option would be fiduciary “advice,” even if the broker’s statement was entirely incidental to the ultimate sale. See ROA.343-44. VERSIGHT 32 DOL-17-0281-B-000321 Case: 17-10238 Document: 00513977124 Page: 54 Date Filed: 05/02/2017 a fiduciary), aff’d, 453 F.2d 417 (5th Cir. 1972).11 As the SEC explained, “render[ing] investment advice merely as an incident to . . . broker-dealer activities” does not by itself place broker-dealers “in a position of trust and confidence as to their customers.” Hughes, Exchange Act Release No. 4048, 1948 WL 29537, at *7 (Feb. 18, 1948), aff’d, Hughes v. SEC, 174 F.2d 969 (D.C. Cir. 1949). This Court’s precedent is in accord: “Simply urging the purchase of [the company’s] products does not make an insurance company an ERISA fiduciary with respect to those products.” Am. Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y of the U.S., 841 F.2d 658, 664 (5th Cir. 1988). Indeed, at common law and under the securities laws at the time of ERISA’s enactment, a fiduciary was defined in contra-distinction to salespeople and other third parties who, because they “act[ed] at arm’s length,” did not have to abide by a fiduciary’s “punctilio of an honor the most sensitive.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (Cardozo, J.). 11 The fact that brokers are not fiduciaries does not leave investors without any recourse for alleged misconduct. Investors can exercise contractual rights and enjoy the protection of FINRA’s suitability standard. VERSIGHT 33 DOL-17-0281-B-000322 Case: 17-10238 Document: 00513977124 Page: 55 Date Filed: 05/02/2017 To conclude that someone is a salesperson is to conclude that she is not a fiduciary; DOL’s interpretation turns this on its head. Perhaps not surprisingly, then, DOL conceded in the rulemaking that its new “broad test” for determining who is a fiduciary “could sweep in some relationships” that “the Department does not believe Congress intended to cover as fiduciary relationships.” ROA.324; see also ROA.1033 (“Congress did not intend to cover as fiduciary ‘investment advice’” communications “that parties would not ordinarily view” as “characterized by a relationship of trust or impartiality”); ROA.325 (acknowledging the need to “avoid[] burdening activities that do not implicate relationships of trust”). That concession ends this case. The Department has no authority to adopt an interpretation at odds with a law’s “intended” meaning. An agency “must always give effect to the unambiguously expressed intent of Congress.” UARG, 134 S. Ct. at 2445 (citation and quotation marks omitted). DOL defends this flaw by arguing that the Rule’s overbreadth is repaired by the BIC Exemption, which enables the Rule’s newly dubbed fiduciaries to engage in transactions otherwise prohibited by ERISA and AMERICAN PVERSIGHT 34 DOL-17-0281-B-000323 Case: 17-10238 Document: 00513977124 Page: 56 Date Filed: 05/02/2017 the Code. See ROA.380. That is non-responsive; DOL’s interpretation of the statute must stand on its own. The EPA made a similar error in the UARG case, where it adopted an overbroad statutory interpretation, which it purported to cure with a companion “tailoring rule.” But as the Court explained, “Agencies are not free to adopt unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness.” 134 S. Ct. at 2446 (internal quotations and alterations omitted). In the absence of exemptive relief, DOL’s broad definition of fiduciary would bar the widely accepted practice of commission-based compensation, which DOL admitted in the rulemaking “could have serious adverse unintended consequences.” ROA.439. Here, as in UARG, the need to provide exemptive relief “should have alerted [the agency] that it had taken a wrong interpretive turn.” Id. DOL’s other arguments fare no better. DOL insists that decisions about IRA rollovers “are often the most important financial decisions that consumers make in their lifetime,” ROA.641, but the importance of a transaction does not establish that the professionals who facilitate it fall within the definition of “fiduciary” under the Code. “[A]n agency may not AMERICAN PVERSIGHT 35 DOL-17-0281-B-000324 Case: 17-10238 Document: 00513977124 Page: 57 Date Filed: 05/02/2017 rewrite clear statutory terms to suit its own sense of how the statute should operate.” UARG, 134 S. Ct. at 2446. DOL also contends that ERISA departed from the common law by “expanding the universe of persons subject to fiduciary duties,” Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993), but that limited departure refutes DOL’s position. Mertens clarified that ERISA defines “fiduciary” “in functional terms,” eschewing only the formal requirement that a fiduciary be a named trustee in a written trust document. Id. The upshot is that a fiduciary’s function at common law plays a central role in determining who holds that status under ERISA. This was demonstrated in Varity, where the Court looked to the common law to determine whether fiduciary functions were being performed. Varity, 516 U.S. at 502-03. These common law antecedents should be given great weight, the Court said, unless “the language of the statute, its structure, or its purposes require departing from common-law trust requirements.” Id. at 497. DOL again goes astray when it contends that a person can be deemed a fiduciary if making recommendations—and hence, giving “investment advice”—is one part of what the person does while obtaining compensation. But giving investment advice makes a person a fiduciary AMERICAN PVERSIGHT 36 DOL-17-0281-B-000325 Case: 17-10238 Document: 00513977124 Page: 58 Date Filed: 05/02/2017 only if he “renders investment advice for a fee or other compensation, direct or indirect.” 26 U.S.C. § 4975(e)(3)(B) (emphases added); 29 U.S.C. § 1002(21)(A)(ii) (same). This language limits the category to persons who are paid for the purpose of rendering advice.12 It does not inquire whether a person who is paid for something else might incidentally make a “suggestion” that is neither essential to receiving the fee nor sufficient to earn it, as in the case with brokers and insurance agents, who are paid a commission if and only if a sale is made. If no sale is made, then no fee is paid, regardless of whether (and how much) advice was conveyed. On the other hand, if a sale is made, the commission is paid even if no advice was provided. Under DOL’s approach an appliance salesperson “renders appliance advice for a fee” by making a “recommendation” to buy an appliance. That is absurd, and any permissible interpretation of “render[] investment advice for a fee” must distinguish circumstances where the fee is 12 The preposition “for” indicates that the purpose of the compensation is to pay for the advice. See The American Heritage Dictionary of the English Language (1969) (defining “for” as, among other things, “[a]s a result of” or “out of”). VERSIGHT 37 DOL-17-0281-B-000326 Case: 17-10238 Document: 00513977124 Page: 59 Date Filed: 05/02/2017 for advice from circumstances where it is for something else. To the extent, as DOL will argue, that some brokers and agents hold themselves out as advisors to induce a fiduciary-like trust and confidence, the solution is for an appropriately authorized agency to craft a rule addressing that circumstance, not to adopt an interpretation that deems the speech of a salesperson to be that of a fiduciary, and that concededly is so overbroad that (like the rule vacated in UARG) it must be accompanied by a raft of corrections.13 C. The Labor Department’s Construction Of “Fiduciary” Is Unreasonable And Arbitrary. Even if there were ambiguity to the term “fiduciary” (and there is not), the Fiduciary Rule would still fail because the Department’s interpretation is patently unreasonable: Chevron deference, even when applicable, does not license an agency to take a statutory term with a settled meaning and distort it to mean the opposite. But that is what the Fidu- 13 Even if DOL’s construction fell within the outer limits of ERISA’s definition of “fiduciary” (it does not), the serious First Amendment concerns raised by DOL’s interpretation require rejecting it. See ACLI Br. Part I; INS v. St. Cyr, 533 U.S. 289, 299-300 (2001). VERSIGHT 38 DOL-17-0281-B-000327 Case: 17-10238 Document: 00513977124 Page: 60 Date Filed: 05/02/2017 ciary Rule does, by equating two things—a sales relationship and a fiduciary relationship—that ordinarily are defined in contra-distinction to one another. DOL contends that it is reasonable for the Rule to “reject[] the purported dichotomy between a mere ‘sales’ recommendation, on the one hand, and advice, on the other,” ROA.357, because “the dichotomy between advice and sales” is “no[t] existent in reality,” ROA.5579. That assertion is emblematic of DOL’s breezy disregard for concepts written into the law by Congress (supra 10), and is erroneous in numerous other respects. First, DOL’s rejection of the advice-sales dichotomy rings hollow because DOL embraced that dichotomy in another portion of the Rule that excludes certain transactions involving large employer-sponsored plans (plans with at least $50 million in assets). For this aptly named “seller’s carve-out” to apply, “the person must not receive a fee or other compensation directly from the plan . . . for the provision of investment advice (as opposed to other services),” i.e., sales, ROA.359 (emphasis added). In this manner, DOL recognized a sales exclusion for ERISA retirement plans that fall within DOL’s core regulatory authority, while insisting on AMERICAN PVERSIGHT 39 DOL-17-0281-B-000328 Case: 17-10238 Document: 00513977124 Page: 61 Date Filed: 05/02/2017 making fiduciaries out of the insurance agents and broker-dealers in the IRA market for which Congress gave DOL no regulatory authority. Resting part of a rule on the rejection of a supposedly illusory distinction, while making that distinction the basis for another section of the rule, is textbook arbitrary and unreasonable agency action. See, e.g., Bus. Roundtable v. SEC, 647 F.3d 1144, 1148-49, 1153-54 (D.C. Cir. 2011). Second, the Code and ERISA recognize the sales-advice dichotomy by generally prohibiting fiduciaries from selling financial products to plans. See 26 U.S.C. § 4975(c)(1); 29 U.S.C. § 1106(b). Yet the Rule makes the sale of a financial product to a plan a marker of fiduciary status. That is, the Fiduciary Rule treats the fact that a person has done something that a fiduciary generally may not, as dispositive evidence that the person is a fiduciary. That is patently unreasonable. Third, touting one’s own product—in common parlance, “selling”— has always been a tell-tale indicator that one is not a fiduciary. See, e.g., THI of N.M. at Hobbs Ctr., LLC v. Spradlin, 532 F. App’x 813, 819 (10th Cir. 2013) (“Ordinarily, a buyer-seller relationship is not fiduciary in nature . . . .”) (citation omitted); Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 912-13 (10th Cir. 2005) (noting “the weight of core authority AMERICAN PVERSIGHT 40 DOL-17-0281-B-000329 Case: 17-10238 Document: 00513977124 Page: 62 Date Filed: 05/02/2017 holding that the relationship between a product buyer and seller is not fiduciary in nature”). A broker, insurance agent, or other financial-sales professional may make “individualized solicitations much the same way a car dealer solicits particularized interest in its inventory.” Farm King Supply, Inc. Integrated Profit Sharing Plan & Trust v. Edward D. Jones & Co., 884 F.2d 288, 294 (7th Cir. 1989). That does not make them fiduciaries, see id., as DOL itself recognized in 1975 when promulgating its five-part test for fiduciary status, see supra note 1. Fourth, if there were any remaining doubt that DOL’s interpretation of “fiduciary” is unreasonable, Congress’s treatment of commissionbased compensation in the Dodd-Frank Act would dispel it. Dodd-Frank gives the SEC authority to promulgate a single fiduciary standard for advisers and broker-dealers providing personalized investment advice about securities to retail customers, but forbids it from adopting a standard under which receipt of “commission[s] or other standard compensation” by broker-dealers is prohibited. Dodd-Frank Act § 913(g), 124 Stat. at 1828. Yet that is exactly what DOL has done: Under the Fiduciary Rule, a transaction in which a broker-dealer receives a commission is a prohibited transaction. It is implausible that Congress prohibited the AMERICAN PVERSIGHT 41 DOL-17-0281-B-000330 Case: 17-10238 Document: 00513977124 Page: 63 Date Filed: 05/02/2017 SEC—an agency with broad authority over the financial-services industry—from creating a standard for broker-dealers that banned commissions, while leaving DOL free to adopt an interpretation with that exact consequence under ERISA and the Code. Finally, DOL’s defiance of Congress is particularly acute in the case of fixed-indexed annuities. Dodd-Frank barred the SEC from regulating these products if certain state insurance law requirements were satisfied, Dodd-Frank Act, § 989J, 124 Stat. at 1949-50. But DOL cited its concerns with the products—and with state insurance laws—as justification for its Rule. ROA.554-55.14 For all of these reasons, the Fiduciary Rule is contrary to law, arbitrary, capricious, and unreasonable, and the Court should vacate it in its entirety. A “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, . . . not in accordance with law” or “in excess of statutory . . . authority[] or limitations.” 5 U.S.C. § 706(2)(A)(emphasis added). But see Cent. & S. W. Servs., Inc. v. EPA, 14 Plaintiffs join in full the arguments concerning the Rule’s impact on fixed-indexed annuities advanced by the IALC Plaintiffs and the ACLI Plaintiffs. VERSIGHT 42 DOL-17-0281-B-000331 Case: 17-10238 Document: 00513977124 Page: 64 Date Filed: 05/02/2017 220 F.3d 683, 692 (5th Cir. 2000) (remanding without vacatur). Moreover, the criteria thought to justify remanding a rule without vacatur in some cases plainly are not satisfied here. Id. II. The Department Unlawfully Misused Its Narrow Exemptive Authority To Regulate Services And Products It Lacks The Power To Regulate. The Department has arrogated to itself the authority to regulate the IRA market—and as a practical consequence, virtually all investment services and products—by using a narrow authority Congress gave it to reduce regulatory restrictions. That contravenes the Code (and ERISA) and is the very essence of arbitrary and capricious decisionmaking. The BIC Exemption is the centerpiece of the Fiduciary Rule. Through this exemption—which allows brokers and insurance agents to make commission-based sales that would otherwise be “prohibited transactions” under the Code—DOL seeks to institute the most sweeping changes for broker-dealers since the Securities Exchange Act of 1934. The Exemption imposes a detailed code of conduct, extensive disclosure requirements, compelled contracts, limitations on arbitration rights, and potential class action liability. See supra 16-18. The scale of what DOL has done is reflected in the scope of its criticisms of existing laws and AMERICAN PVERSIGHT 43 DOL-17-0281-B-000332 Case: 17-10238 Document: 00513977124 Page: 65 Date Filed: 05/02/2017 practices—of the securities laws’ disclosure requirements, state insurance law, proprietary financial products, and actively managed mutual finds. Supra 11-12. And yet, DOL is instituting revolutionary changes to a segment of the market—IRAs—over which Congress gave DOL neither regulatory nor enforcement authority. DOL cannot base a regulatory transformation of this magnitude on the limited interpretive and exemptive authority it has with respect to IRAs. An agency may not enact a regulation that “would bring about an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization.” UARG, 134 S. Ct. at 2444. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance,” id. (citation omitted), because Congress does not “hide elephants in mouseholes”—that is, it does not “alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001), nor “delegate a decision of . . . economic and political significance to an agency in so cryptic a fashion,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). For that reason, when “an agency claims to discover in a long-extant statute an unheralded power AMERICAN PVERSIGHT 44 DOL-17-0281-B-000333 Case: 17-10238 Document: 00513977124 Page: 66 Date Filed: 05/02/2017 to regulate a significant portion of the American economy, [the courts] typically greet its announcement with a measure of skepticism.” UARG, 134 S. Ct. at 2444 (internal citation and quotation marks omitted). Thus, in MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 234 (1994), the Court rejected an agency’s claim that its authority to “modify” the requirements in a statute allowed it to adopt a rule entirely removing one requirement for a segment of the industry. “It is highly unlikely that Congress would leave” such a momentous decision to the agency’s discretion “through such a subtle device as permission to ‘modify’” the statute’s requirements. Id. at 231. The agency could not use this modest authority to “effectively . . . introduc[e] . . . a whole new regime of regulation.” Id. at 234. Similarly, in UARG the Court rejected as unreasonable EPA’s interpretation of a provision in the Clean Air Act that would have caused “millions of small sources” not previously regulated under the Act to “be swept into” regulations applying only to “major sources.” 134 S. Ct. at 2436, 2446. An agency may not “lay[] claim to extravagant statutory power over the national economy,” the Court explained, if “the statute does not compel [the agency’s] interpretation.” Id. at 2444. AMERICAN PVERSIGHT 45 DOL-17-0281-B-000334 Case: 17-10238 Document: 00513977124 Page: 67 Date Filed: 05/02/2017 These principles are fatal to the Fiduciary Rule. The sweeping nature of the regulatory transformation DOL has effectuated is undisputed. See 82 Fed. Reg. 16,902, 16,908 (Apr. 7, 2017) (DOL citing “major and costly market disruptions” as a reason to delay implementation of parts of the Rule). The Rule fundamentally restructures the markets for IRAs, fixed-indexed and other annuities, and other retirement products, as well as the practices of brokers, insurance agents, and the independent marketing organizations that support independent agents. Indeed, the Rule may require many IMOs to exit the market entirely because they are neither eligible for the BIC exemption themselves nor able to rely on insurance companies to supervise their independent agents in a manner that would comply with the Exemption. See supra 19-20. But DOL has nothing approaching the “clear congressional authorization,” UARG, 134 S. Ct. at 2444, necessary to institute such changes. Although Congress gave DOL substantial authority over the employer-sponsored benefit plans governed by ERISA, it gave the agency only two slivers of authority relevant to IRAs: Authority to interpret “accounting, technical and trade terms” in the Code and to grant exemptions from the Code’s prohibited-transaction provisions. See 29 U.S.C. § 1135; AMERICAN PVERSIGHT 46 DOL-17-0281-B-000335 Case: 17-10238 Document: 00513977124 Page: 68 Date Filed: 05/02/2017 Reorganization Plan No. 4, at § 102; 26 U.S.C. § 4975(c)(2). The Department may not regulate, inspect, investigate, or bring enforcement actions against IRA fiduciaries. DOL rests its new, detailed requirements for IRAs on its authority to grant exemptions—that is, regulatory relief—when to do so is “administratively feasible, in the interest of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan.” 26 U.S.C. § 4975(c)(2). But it is “fundamental that an agency may not bootstrap itself into an area in which it has no jurisdiction,” Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990) (quotation marks omitted), nor may an agency manipulate “safe harbor criterion” to conduct “backdoor regulation,” Hearth, Patio & Barbecue Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499, 507-08 (D.C. Cir. 2013). Never before has DOL suggested that the “mousehole” of its exemptive authority, Whitman, 531 U.S. at 468, could be used to implement changes of the elephantine proportions involved here—let alone for IRAs, over which it lacks regulatory power. The fact that DOL lacks authority to embark on a wholesale restructuring of the IRA market is reason enough to vacate the Fiduciary AMERICAN PVERSIGHT 47 DOL-17-0281-B-000336 Case: 17-10238 Document: 00513977124 Page: 69 Date Filed: 05/02/2017 Rule and its exemptions in their entirety, but DOL’s use of its exemptive authority is plainly flawed in at least two other respects. First, the new regulatory regime DOL has erected stands in direct conflict with what Congress enacted in the Code and ERISA. In simultaneously enacting ERISA and the IRA provisions of the Code, Congress prescribed a detailed code of conduct and private rights of action with respect to ERISA fiduciaries—and wholly omitted similar provisions for IRAs. But DOL, through the use of the BIC Exemption, is imposing on insurance agents and broker-dealers who service IRAs the very ERISAstyle obligations that Congress omitted. DOL acknowledged as much in the rulemaking, explaining that the BIC Exemption “is intended to effectively incorporate” into the Code’s treatment of IRAs “the objective standards of care and undivided loyalty that have been applied under ERISA.” ROA.405. But the fact that Congress “include[d] particular language in” ERISA—for example, fiduciary duties and a private right of action—“but omit[ted] it in” parallel provisions of the Code, indicates “that Congress intended a difference in meaning.” Loughrin v. United States, 134 S. Ct. AMERICAN PVERSIGHT 48 DOL-17-0281-B-000337 Case: 17-10238 Document: 00513977124 Page: 70 Date Filed: 05/02/2017 2384, 2390 (2014). It is not DOL’s role to construct a regulatory framework that Congress purposely omitted.15 Second, DOL’s exemptive rule here—unlike any prior DOL exemptive rule—attaches not merely new conditions to the availability of exemptive relief, but new consequences if those conditions are not met. Ordinarily, failure to satisfy a condition attached to an exemption means the exemption is lost and the statutory duties and penalties snap back into place. But under the BIC Exemption, if a firm seeks exemptive relief but falls short of the requirements of its “Best Interest Contract,” it not only loses the exemption and becomes subject to the statutory penalty (an excise tax imposed by the IRS), it also incurs the new, non-statutory consequences that are written into the “Best Interest Contract,” including potential class action liability without the protection of a liquidated damages clause or the possibility of arbitration. A firm that declined to use the “Best Interest Contract,” and simply violated Congress’s prohibited transaction requirements, would face fewer consequences than a firm 15 In some respects, the restrictions DOL places on IRAs exceed what Congress imposed on employer plans in ERISA. This includes the restriction on arbitration agreements. Infra 59-63. VERSIGHT 49 DOL-17-0281-B-000338 Case: 17-10238 Document: 00513977124 Page: 71 Date Filed: 05/02/2017 that “violated” DOL’s supposedly exemptive rule. That is arbitrary, capricious, and a gross distortion of agency authority. Each of the district court’s reasons for allowing DOL to remake the market for IRAs was demonstrably erroneous. For starters, the district court relied on what it saw as the agency’s “explicit and broad authority to regulate IRAs.” ROA.9904. But DOL has no regulatory authority over IRAs; its regulatory authority extends only to employer-sponsored ERISA plans. In fact, in the Dodd-Frank Act, Congress gave the SEC— the nation’s principal securities regulator—the authority to develop a uniform fiduciary standard for broker-dealers. Dodd-Frank § 913(g), 124 Stat. at 1828. The district court also gave DOL Chevron deference, but that is precisely the error the Supreme Court sought to correct in UARG and MCI Telecommunications, where it explained that an agency may not “bring about an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization.” UARG, 134 S. Ct. at 2444 (emphasis added); see also supra 25; King, 135 S. Ct. at 2489; Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir. 2014). Here, the burden was on AMERICAN PVERSIGHT 50 DOL-17-0281-B-000339 Case: 17-10238 Document: 00513977124 Page: 72 Date Filed: 05/02/2017 DOL to show that the statute “compel[s]” the approach it took.” UARG, 134 S.Ct. at 2444. Finally, the district court reasoned that DOL had remained within its statutory “authority to grant conditional exemptive relief” because “the industry has been given viable choices.” ROA.9902. In reality, the industry was given no choice at all—acceptance of the BIC Exemption is a fait accompli. See ROA.7959 (result of Rule is that new “fiduciaries” “will be required to . . . comply with [the BIC] Exemption” or otherwise “curtail” services). The district court’s conclusion is contradicted by the Department’s own repeated statements that it would be “abusive conduct” to recommend fee-based accounts for certain segments of the market. See supra 14-15. * * * In short, DOL has erred both by using its exemptive authority in a sweeping way that Congress never intended, and by introducing obligations that are plainly inconsistent with lines carefully drawn by Congress. For these reasons, the BIC Exemption must be vacated, and vacatur of that exemption, in turn, requires vacatur of the Fiduciary Rule and all related exemptions. DOL repeatedly said that the BIC Exemption is AMERICAN PVERSIGHT 51 DOL-17-0281-B-000340 Case: 17-10238 Document: 00513977124 Page: 73 Date Filed: 05/02/2017 integral to the Rule because its interpretation of fiduciary, and the Rule’s cost-benefit analysis, are premised on the availability of that exemption. See, e.g., ROA.322-23, 339, 368. These provisions were adopted together, and together they now must fall. 5 U.S.C. § 706(2); MD/DC/DE Broadcasters Ass'n v. FCC, 253 F.3d 732, 734-36 (D.C. Cir. 2001). III. The Department Impermissibly Created A Private Right Of Action In The BIC Exemption. The BIC Exemption is meant to enable IRA holders to bring lawsuits against IRA fiduciaries, even though the Code itself gives IRA holders no private right of action. This violates Alexander v. Sandoval, 532 U.S. 275 (2001). It is also arbitrary and capricious, because DOL may not erect an enforcement regime inconsistent with the one established by Congress. A. DOL Unlawfully Created A Private Right of Action. “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Sandoval, 532 U.S. at 286. An agency “may not create a right that Congress has not.” Id. at 291. And of course, “the government may not do indirectly what it cannot do directly.” United States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) (quotation omitted). Accordingly, just six years ago the Supreme Court AMERICAN PVERSIGHT 52 DOL-17-0281-B-000341 Case: 17-10238 Document: 00513977124 Page: 74 Date Filed: 05/02/2017 unanimously rejected an attempt to use contract law to create a private right of action under a statute that provided none. Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110, 113-14, 117-19 (2011). The contracts in Astra incorporated federal statutory duties: “Though labeled differently, suits to enforce [the statute] and suits to enforce [the contracts] are in substance one and the same.” Id. at 114. Because the statute contained no private right of action, the Court held that a private citizen could not sue as a third-party beneficiary to enforce the contract, explaining: “The absence of a private right to enforce the [statute] would be rendered meaningless” if private citizens “could overcome that obstacle by suing to enforce the [contractual] obligations instead.” Id. at 113, 118. Unlike ERISA, which creates a right of action for beneficiaries of employer-sponsored retirement plans, the Code establishes no private right of action. Thus, the Department conceded in the rulemaking that IRA owners lack “an independent statutory right to bring suit against fiduciaries for violation of the prohibited transaction rules.” ROA.398. Nor can the Department “bring suit to enforce the prohibited transaction rules on their behalf”; the only liability Congress provided under the Code AMERICAN PVERSIGHT 53 DOL-17-0281-B-000342 Case: 17-10238 Document: 00513977124 Page: 75 Date Filed: 05/02/2017 was the imposition of excise taxes by the Treasury Department. ROA.398. The enforceable contract required for the BIC Exemption is meant to circumvent Congress’s decision not to provide a private right of action. DOL’s “central goal[]” in adopting the BIC Exemption, it said, was to “create[] a mechanism for [IRA owners] to enforce their rights,” including through “class litigation.” ROA.398, 410; see also ROA.480. This contrivance, explained a senior Department official, was the result of the Department being “creative to try to find a way to make the . . . fiduciary responsibility [in ERISA] . . . enforceable in the IRA context.” ROA.4621; see also ROA.397-98, 403-06. Tellingly, the enforceable contract requirement for the BIC Exemption does not apply to fiduciaries to ERISA plans. See ROA.397. That is because, DOL explained, “the statutory framework . . . already provides enforcement rights to [ERISA] plans, their participants and beneficiaries, and the Secretary of Labor.” ROA.399. Thus, the BIC Exemption was crafted to foster private claims against IRA fiduciaries precisely because such claims were not authorized by Congress. ROA.397, 398, 410, 418. AMERICAN PVERSIGHT 54 DOL-17-0281-B-000343 Case: 17-10238 Document: 00513977124 Page: 76 Date Filed: 05/02/2017 In upholding the private right of action created by the BIC Exemption, the district court reasoned that the right of action is a creature of state law. ROA.9909. That is both incorrect and irrelevant. The premise is incorrect because the BIC is a federally mandated contract, and the fiduciary duties it memorializes are creatures of federal regulation: It is DOL’s rules, not state law, that create the compulsion to enter into the BIC, specify the terms the contract must contain, determine the forum in which suit can proceed, and prescribe the remedies and procedures that must be available—including mandatory class actions (which, under ERISA, may be waived). At the very least, any suit to vindicate a right created by the BIC would turn on the construction of the meaning and scope of fiduciary duties created by federal law. See generally Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9 (1983). It is irrelevant in any event whether the cause of action that DOL created is denominated a state- or federal-law claim. Astra establishes that a federally required contract incorporating statutory duties may not be the basis for a private right of action that the statute omitted, because AMERICAN PVERSIGHT 55 DOL-17-0281-B-000344 Case: 17-10238 Document: 00513977124 Page: 77 Date Filed: 05/02/2017 private suits to enforce the contract would be “incompatible with the statutory regime.” 563 U.S. at 113. It did not matter that the claim sounded in breach of contract under state law; what mattered was that Congress did not contemplate that a private claim would be available to enforce federal law. See, e.g., Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 66-67 (3d Cir. 2008) (allowing a private suit under state common law would “circumvent the absence of a private right of action under” the Federal Insurance Contributions Act); MM&S Fin., Inc. v. NASD, Inc., 364 F.3d 908, 910-11 (8th Cir. 2004). DOL cannot use the BIC to do an “impermissible end run around” the lack of a private right of action under ERISA and the Code. See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). Indeed, nothing would remain of Sandoval if an agency could so easily circumvent its rule by compelling regulated entities to enter contracts that give rise to private suits.16 See Astra, 563 U.S. at 118. 16 The district court tried to distinguish Astra by observing that investors suing under the BIC “would not bring suit under any statutory provision.” ROA.9911. But that makes the problem worse, not better; DOL imposed duties that Congress purposely omitted and created a private enforcement mechanism that Congress never intended. VERSIGHT 56 DOL-17-0281-B-000345 Case: 17-10238 B. Document: 00513977124 Page: 78 Date Filed: 05/02/2017 The BIC Exemption’s Enforcement Provisions Are Unreasonable, Arbitrary, and Capricious. Even if the Department’s tactic of creating private claims through contract liability distinguished this case from Sandoval (and it does not), the BIC Exemption would nonetheless be arbitrary and capricious under the APA and unreasonable under step two of Chevron. Congress created a framework of requirements and penalties for IRAs; the Rule creates new enforcement mechanisms that deviate dramatically and improperly from the Code. Congress authorized the IRS to enforce the prohibited-transaction provisions of the Code by imposing excise taxes and conducting audits. 26 U.S.C. § 4975(a), (f)(8)(E). The BIC Exemption creates an entirely new mechanism for enforcing those provisions by authorizing private lawsuits. DOL’s creation of additional remedies under the Code ignores the “elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979). “The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Sand- AMERICAN PVERSIGHT 57 DOL-17-0281-B-000346 Case: 17-10238 Document: 00513977124 Page: 79 Date Filed: 05/02/2017 oval, 532 U.S. at 290. In particular, “where Congress has otherwise enacted a comprehensive legislative scheme[,] including an integrated system of procedures for enforcement, there is a strong presumption that Congress deliberately did not create a private cause of action.” Tax Analysts v. IRS, 214 F.3d 179, 186 (D.C. Cir. 2000) (quotation marks omitted). The district court concluded that the BIC Exemption is reasonable because Congress authorized DOL to create conditional exemptions and certain other federal rules require written contracts. ROA.9910. These contract requirements were never tested in litigation, and therefore are not meaningful precedent. More significantly, those requirements are not remotely similar to the BIC: None was designed for the specific purpose of facilitating private suits to enforce federal standards. None prescribed the forum in which claims could be brought or mandated class action exposure. And none of those other rules creates liability for obligations that are outside the agency’s authority to impose. But all of these features are the very purpose and effect of the BIC Exemption. * * * This Court should vacate the provisions of the BIC Exemption that authorize private lawsuits to enforce the BIC’s requirements. Given the AMERICAN PVERSIGHT 58 DOL-17-0281-B-000347 Case: 17-10238 Document: 00513977124 Page: 80 Date Filed: 05/02/2017 “critical,” “central” role that private enforcement played in DOL’s decision to adopt the BIC Exemption, ROA.397, 398, 410, 418, vacatur of the private right of action requires vacatur of the entire rulemaking. 5 U.S.C. § 706; MD/DC/DE Broadcasters Ass’n, 253 F.3d at 734-36. IV. The Rule’s Ban Of Class Waivers In Arbitration Agreements Violates The Federal Arbitration Act And Is Arbitrary And Capricious. The Federal Arbitration Act (“FAA”) establishes a “liberal federal policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and provides that any arbitration agreement in a commercial contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2. The Supreme Court has held that “the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of class-wide arbitration procedures.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336 (2011). This Court, in turn, has held that the FAA prohibits a State from conditioning the enforceability of an arbitration agreement on the absence of a forum selection provision. OPE Int’l LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, 447 (5th Cir. 2001) (per curiam). And, AMERICAN PVERSIGHT 59 DOL-17-0281-B-000348 Case: 17-10238 Document: 00513977124 Page: 81 Date Filed: 05/02/2017 this Court’s precedent confirms that the FAA will not permit a federal agency to do what a State may not. See D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 359-60 (5th Cir. 2013) (NLRB may not prohibit employer from entering employment arbitration agreements that waive class-wide arbitration).17 DOL has violated these principles by attempting to dictate the terms of arbitration agreements through the BIC Exemption. For transactions involving transaction-based (rather than fee-based) compensation, DOL conditions the exemption’s availability not just on account holders’ being able to pursue class claims, but on their being able to pursue class claims “in court.” ROA.456. Thus, the BIC Exemption does not merely ban class waivers, it also dictates the forum in which class actions must be filed. This limitation prohibits financial and insurance professionals and institutions from accessing the arbitral forum for the very types of claims that expose them to the greatest risk and costs. 17 The Supreme Court has granted certiorari on this question. See Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 (Jan. 13, 2017) (No. 16-307). VERSIGHT 60 DOL-17-0281-B-000349 Case: 17-10238 Document: 00513977124 Page: 82 Date Filed: 05/02/2017 The Department may impose this restriction on the availability of arbitration only if the FAA was “overridden by a contrary congressional command.” CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012) (citation omitted). But neither ERISA nor the Code contains such a command. See Kramer v. Smith Barney, 80 F.3d 1080, 1084 (5th Cir. 1996) (“Congress did not intend to exempt statutory ERISA claims from the dictates of the [FAA].”). DOL’s prohibition on class waivers plainly runs afoul of the FAA. In nonetheless upholding this prohibition, the district court accepted DOL’s contention that restricting BIC arbitrations was permissible because use of the BIC Exemption is voluntary. ROA.9951-53; see also ROA.421. But in fact, financial and insurance professionals and institutions have no genuine choice regarding whether to use the exemptions. To have a “voluntary” choice, affected persons must have a genuine opportunity of “not yielding.” NFIB v. Sebelius, 132 S. Ct. 2566, 2603 (2012). A choice is not genuine if the pressure to accept one option over the other is “so coercive as to pass the point at which ‘pressure turns into compulsion.’” South Dakota v. Dole, 483 U.S. 203, 211 (1987) (citation AMERICAN PVERSIGHT 61 DOL-17-0281-B-000350 Case: 17-10238 Document: 00513977124 Page: 83 Date Filed: 05/02/2017 omitted). Here, DOL has concluded that the transaction-based compensation model that necessitates an exemption is the only permissible model for many accounts. See supra 14-15, 51. Thus, for large segments of the industry, the so-called choice is to either “comply with [the BIC] Exemption” or “curtail” their services. ROA.7959. That is no choice at all. Even if the BIC Exemption could charitably be characterized as powerfully deterring—rather than outright banning—class waivers, it would still offend the FAA. “The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute.” Concepcion, 563 U.S. at 344. By interfering with this discretion, the rules impermissibly “interfere[] with fundamental attributes of arbitration,” id. at 344, obstruct the FAA’s “design[] to promote arbitration,” id. at 345, and impair parties’ ability to “structure their arbitration agreements as they see fit,” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989). Put differently, DOL may no more condition the BIC Exemption on surrendering the right to arbitration than a State may require forgoing arbitration to participate in a state licensing program or receive another AMERICAN PVERSIGHT 62 DOL-17-0281-B-000351 Case: 17-10238 Document: 00513977124 Page: 84 Date Filed: 05/02/2017 regulatory benefit. Its improper prohibition on class-action waivers requires vacatur of the Rule as a whole. 5 U.S.C. § 706; MD/DC/DE Broadcasters Ass’n, 253 F.3d at 734-36. CONCLUSION For all of these reasons, the Court should reverse the judgment of the district court; hold that the Fiduciary Rule and its related prohibitedtransaction exemptions are arbitrary, capricious, unreasonable, and contrary to law; and direct the entry of a judgment in favor of Plaintiffs that vacates the Rule in its entirety and enjoins DOL from enforcing, implementing, or giving effect to the Rule in any manner. AMERICAN PVERSIGHT 63 DOL-17-0281-B-000352 Case: 17-10238 Document: 00513977124 May 2, 2017 Page: 85 Date Filed: 05/02/2017 Respectfully submitted, /s/ Eugene Scalia Eugene Scalia Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP Jason J. Mendro 2100 McKinney Avenue Paul Blankenstein Suite 1100 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Dallas, TX 75201 Washington, D.C. 20036 (214) 698-3100 (202) 955-8500 Counsel for Plaintiffs Chamber of Commerce of the United States of America, Financial Services Institute, Inc., Financial Services Roundtable, Greater Irving-Las Colinas Chamber of Commerce, Humble Area Chamber of Commerce doing business as Lake Houston Area Chamber of Commerce, Insured Retirement Institute, Lubbock Chamber of Commerce, Securities Industry and Financial Markets Association, and Texas Association of Business (continued on next page) VERSIGHT 64 DOL-17-0281-B-000353 Case: 17-10238 Document: 00513977124 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Counsel for Plaintiff Chamber of Commerce of the United States of America Page: 86 Date Filed: 05/02/2017 Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W. Suite 400 Washington, D.C. 20005 (202) 289-4322 Counsel for Plaintiff Financial Services Roundtable David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 (888) 373-1840 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. 8th Floor Washington, D.C. 20005 (202) 962-7300 Counsel for Plaintiff Financial Services Institute, Inc. Counsel for Plaintiff Securities Industry and Financial Markets Association J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D.C. 20005 (202) 469-3000 Counsel for Plaintiff Insured Retirement Institute AMERICAN PVERSIGHT 65 DOL-17-0281-B-000354 Case: 17-10238 Document: 00513977124 Page: 87 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of May, 2017, an electronic copy of the foregoing brief was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and service will be accomplished on all parties by the appellate CM/ECF system. /s/ Eugene Scalia Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business VERSIGHT 66 DOL-17-0281-B-000355 Case: 17-10238 Document: 00513977124 Page: 88 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE I hereby certify that on this 2nd day of May, 2017, the foregoing brief was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit through the Court’s CM/ECF document filing system, https://ecf.ca5.uscourts.gov. I further certify that: (1) this reply complies with the type-volume limit of Fed. R. App. P. 27(d)(2)(C) because, excluding any part of the document exempted by Fed. R. App. P. 27(a)(2)(B), this brief contains 11,969 words; (2) this reply complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 with New Century Schoolbook Linotype 14-point for text and 14-point for footnotes; (3) any required privacy redactions have been made pursuant to this Court’s Rule 25.2.13; (4) the electronic submission is an exact copy of the paper document pursuant to this Court’s Rule 25.2.1; and (5) the document has been scanned with the most recent version of Microsoft Forefront Endpoint Protection and is free of viruses. AMERICAN PVERSIGHT 67 DOL-17-0281-B-000356 Case: 17-10238 May 2, 2017 Document: 00513977124 Page: 89 Date Filed: 05/02/2017 /s/ Eugene Scalia Eugene Scalia Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business VERSIGHT 68 DOL-17-0281-B-000357 Case: 17-10238 Document: 00513977166 Page: 1 Date Filed: 05/02/2017 No. 17-10238 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, v. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Texas, Dallas Division, Nos. 3:16-cv-1476, -1530, -1537 OPENING BRIEF OF IALC PLAINTIFFS-APPELLANTS COUNSEL LISTED ON INSIDE COVER VERSIGHT DOL-17-0281-B-000358 Case: 17-10238 Document: 00513977166 Page: 2 Date Filed: 05/02/2017 JOSEPH R. GUERRA Counsel of Record PETER D. KEISLER ERIC D. MCARTHUR JENNIFER J. CLARK SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736-8000 Counsel for Indexed Annuity Leadership Council; Life Insurance Company of the Southwest; American Equity Investment Life Insurance Company; Midland National Life Insurance Company; North American Company for Life and Health Insurance May 2, 2017 VERSIGHT DOL-17-0281-B-000359 Case: 17-10238 Document: 00513977166 Page: 3 Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, v. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. VERSIGHT i DOL-17-0281-B-000360 Case: 17-10238 Document: 00513977166 Page: 4 Date Filed: 05/02/2017 The undersigned counsel of record certifies the following listed persons and entities as described in the fourth sentence of Local Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Plaintiff-Appellant the Indexed Annuity Leadership Council has no parent corporation and no publicly held corporation owns 10% or more of its stock. The parent company of Plaintiff-Appellant Life Insurance Company of the Southwest is National Life Insurance Company. No publicly held corporation owns 10% or more of the stock of Life Insurance Company of the Southwest. Plaintiff-Appellant American Equity Investment Life Insurance Company is wholly owned by its parent company, American Equity Life Holding Company. Plaintiff-Appellant Midland National Life Insurance Company (“Midland”) is wholly owned by Sammons Financial Group, Inc. (“Sammons Financial”); Sammons Financial is wholly owned by Consolidated Investment Services, Inc. (“Consolidated”); and Consolidated is wholly owned by Sammons Enterprises, Inc. (“Sammons Enterprises”). Midland owns Solberg Reinsurance Company, MNL Reinsurance Company and Midland National Services Corporation, LLC. Midland is also otherwise related by common ownership to Sammons Retirement Solutions, Inc. and Sammons Securities, Inc. (which owns Sammons Financial Network, LLC). AMERICAN PVERSIGHT ii DOL-17-0281-B-000361 Case: 17-10238 Document: 00513977166 Page: 5 Date Filed: 05/02/2017 Plaintiff-Appellant North American Company for Life and Health Insurance (“North American”) is wholly owned by Sammons Financial Group, Inc. (“Sammons Financial”); Sammons Financial is wholly owned by Consolidated Investment Services, Inc. (“Consolidated”); and Consolidated is wholly owned by Sammons Enterprises, Inc. (“Sammons Enterprises”). North American is also otherwise related by common ownership to Sammons Retirement Solutions, Inc. and Sammons Securities, Inc. (which owns Sammons Financial Network, LLC). A. Plaintiffs-Appellants 1. 2. 3. 4. 5. 6. Indexed Annuity Leadership Council Life Insurance Company of the Southwest American Equity Investment Life Insurance Company Midland National Life Insurance Company North American Company for Life and Health Insurance Others who are not participants in this matter but may be financially interested in its outcome include financial services providers, insurance companies, and retirement savers. B. Current and Former Attorneys for Plaintiffs-Appellants Joseph P. Guerra Peter D. Keisler Eric D. McArthur Jennifer J. Clark Benjamin Beaton SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Yvette Ostolaza SIDLEY AUSTIN LLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 C. Co-Plaintiffs-Appellants 7. 8. Chamber of Commerce of the United States of America Financial Services Institute, Inc. AMERICAN PVERSIGHT iii DOL-17-0281-B-000362 Case: 17-10238 9. 10. 11. Document: 00513977166 Page: 6 Date Filed: 05/02/2017 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Financial Services Roundtable Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business American Council of Life Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors-Texas National Association of Insurance and Financial Advisors-Amarillo National Association of Insurance and Financial Advisors-Dallas National Association of Insurance and Financial Advisors-Fort Worth National Association of Insurance and Financial Advisors-Great Southwest National Association of Insurance and Financial Advisors-Wichita Falls D. Attorneys for Co-Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein Rachel Mondl GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, DC 20062 Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W., Suite 400 Washington, DC 20005 David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W., Suite 750 Washington, DC 20005 AMERICAN PVERSIGHT iv DOL-17-0281-B-000363 Case: 17-10238 Document: 00513977166 Page: 7 Date Filed: 05/02/2017 Andrea J. Robinson WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, DC 20005 David W. Ogden Kelly P. Dunbar Jessica P. Leinwand Ari Holtzblatt Kevin M. Lamb WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Michael A. Yanof THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor – Plaza of the Americas Dallas, TX 75201 E. Defendants-Appellees 24. 25. United States Department of Labor Edward C. Hugler, Acting Secretary, U.S. Department of Labor F. Attorneys for Defendants-Appellees Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen M. Patricia Smith Elizabeth Hopkins U.S. DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 200 Constitution Avenue, N.W., Suite N-2119 Washington, DC 20210 AMERICAN PVERSIGHT Michael Shih Michael S. Raab U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, APPELLATE SECTION 950 Pennsylvania Avenue, N.W., Suite 7268 Washington, DC 20530 v DOL-17-0281-B-000364 Case: 17-10238 Document: 00513977166 Page: 8 Date Filed: 05/02/2017 Galen N. Thorp Emily Newton Joyce R. Branda Benjamin C. Mizer John R. Parker Judry L. Subar U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W., Room 6140 Washington, DC 20001 G. Amici in the District Court 26. 27. 28. 29. 30. 31. 32. 33. 34. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce H. Attorneys for Amici in the District Court Mary Ellen Signorille AARP FOUNDATION LITIGATION 601 E St., N.W. Washington, DC 20049 Martin Woodward STANLEY LAW GROUP 6116 North Central Expressway, Suite 1500 Dallas, TX 75206 Bernard A. Guerrini 6500 Greenville Avenue, Suite 320 Dallas, TX 75206 AMERICAN PVERSIGHT Deepak Gupta Matthew W. H. Wessler GUPTA WESSLER PLLC 1735 20th Street, N.W. Washington, D.C. 2009 vi DOL-17-0281-B-000365 Case: 17-10238 Document: 00513977166 Page: 9 Date Filed: 05/02/2017 Brandan S. Maher STRIS & MAHER LLP 1920 Abrams Parkway, Suite 430 Dallas, TX 75124 Doug D. Geyser STRIS & MAHER LLP 6688 North Central Expressway, Suite 1650 Dallas, TX 75206 Braden W. Sparks. BRADEN W. SPARKS PC 12222 Merit Drive, Suite 800 Dallas, TX 75251 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER & KIRK PLLC 1523 New Hampshire Ave NW Washington, DC 20036 Theodore Carl Anderson, III Alexandra Treadgold KILGORE & KILGORE PLLC 3109 Carlisle Street, Suite 200 Dallas, TX 75204 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road, Suite 650 Dallas, TX 75254 Dennis M. Kelleher BETTER MARKETS INC. 1825 K. Street, N.W., Suite 1080 Washington, DC 20006 Brent M. Rosenthal ROSENTHAL WEINER LLP 12221 Merit Drive, Suite 1640 Dallas, TX 75251 Charles Flores BECK REDDEN LLP 1221 McKinney Street, Suite 4500 Houston, TX 77010 Julie Alyssa Murray PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, DC 20009 /s/ Joseph R. Guerra JOSEPH R. GUERRA SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 May 2, 2017 VERSIGHT vii DOL-17-0281-B-000366 Case: 17-10238 Document: 00513977166 Page: 10 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT Plaintiffs-appellants respectfully submit that their challenges to the fiduciary rule and related exemptions promulgated by the Department of Labor are sufficiently important to warrant oral argument. VERSIGHT viii DOL-17-0281-B-000367 Case: 17-10238 Document: 00513977166 Page: 11 Date Filed: 05/02/2017 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS .........................................................i STATEMENT REGARDING ORAL ARGUMENT ........................................... viii TABLE OF AUTHORITIES ....................................................................................xi INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT .......................................................................... 3 STATEMENT OF ISSUES .......................................................................................4 STATEMENT OF THE CASE ..................................................................................5 A. Fixed Indexed Annuities ....................................................................... 5 B. States’ Regulation Of FIA Sales ........................................................... 6 C. The Previously Limited Regulation Of FIA Sales Under ERISA ........ 9 D. DOL’s Rulemaking .............................................................................11 E. Proceedings Below ..............................................................................13 SUMMARY OF ARGUMENT ...............................................................................14 STANDARD OF REVIEW .....................................................................................18 ARGUMENT ...........................................................................................................19 I. DOL’S NEW DEFINITION OF A “FIDUCIARY” IS INVALID ............... 19 A. DOL’s New Definition Of A “Fiduciary” Is Inconsistent With The Plain And Unambiguous Meaning Of ERISA .............................19 1. Settled rules of statutory construction demonstrate that ERISA imposes fiduciary status only on persons who render investment advice in a relationship of trust and confidence .................................................................................20 2. The district court’s reasons for accepting DOL’s new definition are mistaken ..............................................................26 VERSIGHT ix DOL-17-0281-B-000368 Case: 17-10238 B. II. Document: 00513977166 Page: 12 Date Filed: 05/02/2017 DOL’s Interpretation Is Unreasonable ................................................31 DOL’S TREATMENT OF FIXED INDEXED ANNUITIES WAS ARBITRARY AND CAPRICIOUS..............................................................35 A. DOL Was Required To Consider The Sufficiency Of Existing Regulation ...........................................................................................36 B. DOL Failed To Give A Rational Explanation For Finding That Existing Regulation Is Insufficient To Protect FIA Buyers ................ 38 C. DOL Failed To Support Its Claim That FIA Sales Are Inflicting Consumer Harms Despite Existing Regulation ..................................44 D. At The Very Least, The Revocation Of The 84-24 Exemption For FIAs Should Be Set Aside ............................................................51 CONCLUSION ........................................................................................................52 CERTIFICATE OF SERVICE ................................................................................53 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS .......... 54 AMERICAN PVERSIGHT x DOL-17-0281-B-000369 Case: 17-10238 Document: 00513977166 Page: 13 Date Filed: 05/02/2017 TABLE OF AUTHORITIES Page Cases 10 Ring Precision, Inc. v. Jones, 722 F.3d 711 (5th Cir. 2013) ..............................................................................37 Am. Driver Serv., Inc. v. Truck Ins. Exch., 631 N.W.2d 140 (Neb. Ct. App. 2001)...............................................................22 Am. Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y of U.S., 841 F.2d 658 (5th Cir. 1988) ..............................................................................25 Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2010) ............................................................8, 37, 38, 42 Associated Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016) ........................................................................18, 38 Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ..............................................................................................29 Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) ..........................................................................51 Chavez v. Chenoweth, 553 P.2d 703 (N.M. Ct. App. 1976) ...................................................................22 City of Arlington v. FCC, 133 S. Ct. 1863 (2013) ........................................................................................20 ConocoPhillips Co. v. EPA, 612 F.3d 822 (5th Cir. 2010) ........................................................................47, 48 Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015) ................................................................................36 Desoto Gen. Hosp. v. Heckler, 766 F.2d 182 (5th Cir. 1985) ..............................................................................49 VERSIGHT xi DOL-17-0281-B-000370 Case: 17-10238 Document: 00513977166 Page: 14 Date Filed: 05/02/2017 S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) ........................................................................32, 46 Ellis v. Rycenga Homes, Inc., 484 F. Supp. 2d 694 (W.D. Mich. 2007) ............................................................25 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ........................................................................................37 Evans v. United States, 504 U.S. 255 (1992) ..........................................................................21, 22, 27, 28 Fin. Planning Ass’n v. SEC, 482 F.3d 481 (D.C. Cir. 2007) ......................................................................26, 34 Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268 (Conn. 2000) ..............................................................................33 Kap-Pel Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49 (Mo. Ct. App. 1966) ..................................................................21 Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) ..............................................................................19 Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) ......................................................................................23, 28 Michigan v. EPA, 135 S. Ct. 2699 (2015) ........................................................................................33 Moses v. Mfrs. Life Ins. Co., 298 F. Supp. 321 (D.S.C. 1968), aff’d, 407 F.2d 1142 (4th Cir. 1969) ............. 22 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..............................................................................................37 Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006) .....................................................................passim Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) ......................................................................................20, 22 AMERICAN PVERSIGHT xii DOL-17-0281-B-000371 Case: 17-10238 Document: 00513977166 Page: 15 Date Filed: 05/02/2017 Neder v. United States, 527 U.S. 1 (1999) ....................................................................................21, 22, 23 NLRB v. Amax Coal Co., 453 U.S. 322 (1981) ......................................................................................20, 22 Pitts v. Jackson Nat’l Life Ins. Co., 574 S.E.2d 502 (S.C. Ct. App. 2002) .................................................................22 Rishel v. Pac. Mut. Life Ins. Co. of Cal., 78 F.2d 881 (10th Cir. 1935) ..............................................................................21 Russello v. United States, 464 U.S. 16 (1983) ........................................................................................23, 29 Stockett v. Penn Mut. Life Ins. Co., 106 A.2d 741 (R.I. 1954) ....................................................................................21 Texas v. EPA, 690 F.3d 370 (5th Cir. 2012) ..............................................................................19 Texas v. United States, 497 F.3d 491 (5th Cir. 2007) ........................................................................31, 34 Varity Corp. v. Howe, 516 U.S. 489 (1996) ......................................................................................20, 28 Statutes and Regulations Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) ...........................................................8, 34 5 U.S.C. § 706 ..........................................................................................................31 15 U.S.C. § 1011 ......................................................................................................34 26 U.S.C. § 4975 ......................................................................................................10 29 U.S.C. § 1002(21)(A)..............................................................................10, 23, 24 29 U.S.C. § 1104(a) .................................................................................................10 29 U.S.C. § 1106 ......................................................................................................10 AMERICAN PVERSIGHT xiii DOL-17-0281-B-000372 Case: 17-10238 Document: 00513977166 Page: 16 Date Filed: 05/02/2017 40 Fed. Reg. 50840 (Oct. 31, 1975)...................................................................10, 25 74 Fed. Reg. 3138 (Jan. 16, 2009) .......................................................................8, 34 Legislative History S. Rep. No. 93-127 (1973) .......................................................................................24 H.R. Rep. No. 93-533 (1973)...................................................................................24 120 Cong. Rec. 3977 (1974) ....................................................................................25 Other Authorities G. Bogert, Confidential Relations and Unenforcible Express Trusts, 13 Cornell L.Q. 237 (1928) ....................................................................21, 32, 33 Certified Fin. Planner Bd. of Standards, APCO Insight, Senior Financial Exploitation Study (Aug. 2012), http://www.cfp.net/docs/news-events---supportingdocuments/senior-americans-financial-exploitationsurvey.pdf?sfvrsn=0 ............................................................................................50 Richard Evans & Rüdiger Fahlenbrach, Institutional Investors and Mutual Fund Governance: Evidence from Retail-Institutional Fund Twins, in The Review of Financial Studies (2012) .............................................46 D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice (forthcoming) ....................................................49 D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice, in Research Handbook on the Economics of Insurance Law (Edward Elgar Pub. 2015)...................................39 AMERICAN PVERSIGHT xiv DOL-17-0281-B-000373 Case: 17-10238 Document: 00513977166 Page: 17 Date Filed: 05/02/2017 INTRODUCTION Appellants are the Indexed Annuity Leadership Council (IALC), an association of insurance companies that offer fixed indexed annuities (FIAs), and several of the association’s members. Appellants brought this action to challenge new rules issued by the Department of Labor (DOL) that dramatically—and unlawfully—alter the longstanding regulatory treatment of sales of these products under the Employee Retirement Income Security Act of 1974 (ERISA). Long before ERISA was enacted, it was well recognized that, absent special circumstances, insurance products are sold in arm’s-length transactions, and that recommendations incidental to such sales are not “fiduciary” in nature. This is because the defining characteristic of a “fiduciary” relationship—special trust and confidence—does not arise in ordinary, one-time sales of insurance. These legal principles explain why, shortly after ERISA was enacted, DOL interpreted the statute’s definition of a “fiduciary” to require the attributes of a confidential relationship, and to exclude persons who provide incidental advice in non-confidential sales transactions. They also explain why DOL maintained this standard for over four decades, across six presidential administrations of both parties. Yet, at the government’s urging, the district court concluded that the term “fiduciary” in ERISA is properly read to transform an arm’s-length sale of an annuity into fiduciary conduct. Indeed, the government persuaded the district court VERSIGHT 1 DOL-17-0281-B-000374 Case: 17-10238 Document: 00513977166 Page: 18 Date Filed: 05/02/2017 that DOL’s own 41-year-old contrary interpretation was “difficult … to reconcile with” ERISA. ROA.9895. These conclusions are plainly mistaken. Because Congress incorporated the term “fiduciary” into ERISA (and the parallel provisions of the Internal Revenue Code), courts must presume that Congress intended to incorporate the term’s well-established common-law meaning unless the statute dictates otherwise. Nothing in ERISA requires jettisoning the fundamental common-law requirement of a special relationship of trust and confidence. To the contrary, the language Congress used elsewhere in the statute to depart from other common-law requirements confirms that Congress retained this defining characteristic of a fiduciary. Thus, the plain meaning of ERISA precludes DOL’s new and radically broader definition. Even if ERISA’s fiduciary definition was ambiguous—and it is not—DOL’s new interpretation is still unreasonable. As DOL itself conceded, Congress did not intend to regulate advice offered outside relationships of trust and confidence, yet the agency chose to capture recommendations incidental to non-confidential onetime sales of insurance products. Moreover, Congress has forsworn federal regulation of advice incidental to sales of other financial products, and it has prohibited federal regulation of the very products at issue here—FIAs—when they are sold in compliance with recently enhanced state “suitability” rules. An interpretation that flouts Congress’s intent in ERISA and two other laws is not entitled to deference. AMERICAN PVERSIGHT 2 DOL-17-0281-B-000375 Case: 17-10238 Document: 00513977166 Page: 19 Date Filed: 05/02/2017 In addition to adopting a legally invalid interpretation of ERISA, DOL acted arbitrarily and capriciously in subjecting sales of FIAs to stringent new federal regulation. Because sales of these products are subject to newly enhanced state suitability rules, DOL was obligated to provide a reasoned explanation for why this state regulation is inadequate. DOL identified a theoretical “gap” between its new “best interest” standard and the state-law requirement to recommend only FIAs that are suitable for a purchaser. But DOL nowhere explained why it is reasonable to believe that this regulatory “gap” has any real-world significance. And it failed to offer any relevant evidence of actual consumer harms from FIA sales subject to enhanced state regulation. To the contrary, DOL repeatedly relied on harms caused by sales of unsuitable FIAs (the very harms addressed by the enhanced state regulations) and evidence drawn from studies of mutual funds, rather than FIAs. As appellants explain in detail below, the district court’s decision upholding DOL’s new rules should be reversed, and those rules should be set aside as unlawful. JURISDICTIONAL STATEMENT The IALC plaintiffs filed this suit in the Northern District of Texas on June 8, 2016. The district court had jurisdiction to review DOL’s final agency actions under 28 U.S.C. § 1331 and 5 U.S.C. § 704. VERSIGHT 3 DOL-17-0281-B-000376 Case: 17-10238 Document: 00513977166 Page: 20 Date Filed: 05/02/2017 The district court entered its final judgment on February 9, 2017, ROA.9954, and the IALC plaintiffs filed a timely notice of appeal on February 28, 2017, ROA.9962. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Whether DOL’s new fiduciary rule, which treats recommendations incidental to the one-time sale of insurance products as fiduciary in nature, is invalid because it rests on an interpretation of the term “fiduciary” in ERISA and parallel provisions of the Internal Revenue Code that is inconsistent with the statutes’ plain meaning and/or is unreasonable. 2. Whether, in subjecting sales of FIAs to fiduciary regulation, revoking a longstanding prohibited transaction exemption (the “84-24 exemption”) for commission-based sales of insurance products, and moving FIAs into the new and more onerous “Best Interest Contract” exemption, DOL acted arbitrarily and capriciously because it failed to (a) offer a reasoned explanation for why newly enhanced state regulations governing FIA sales are insufficient to protect consumers, (b) offer evidence that FIA sales subject to the new state regulations are actually harming consumers, and (c) explain why the enhancements it adopted for the 84-24 exemption do not adequately protect consumers who purchase FIAs. VERSIGHT 4 DOL-17-0281-B-000377 Case: 17-10238 Document: 00513977166 Page: 21 Date Filed: 05/02/2017 STATEMENT OF THE CASE A. Fixed Indexed Annuities Annuities are insurance contracts that protect against the risk of outliving retirement savings. In exchange for principal contributed by an individual, the insurance company makes payments to the individual, either immediately or on a deferred basis, such as at retirement. Fixed annuities, including FIAs, are a type of deferred annuity that shields the purchaser from loss of principal due to “investment risk.” ROA.8596. In contrast to variable annuities, the insurer bears the market risk for a fixed annuity, and interest credited to the contract is guaranteed. See ROA.8596, 9232, 579–81. Premiums paid by the owner are not placed in a separate account or invested in a specific product or market, but are supported by the insurer’s general account. See ROA.8596, 9232. With a traditional fixed annuity, earnings accrue at an interest rate that may be guaranteed for a term of years or periodically declared by the insurer. See ROA.8596. With an FIA, the interest rate is tied to an established market index, such as the S&P 500. Although the indexed formulas are typically capped at a certain upper level, they also set a floor such that only the positive change of a market index is used to calculate the interest rate credit. As a result, the credit can never be less than zero and the owner will not lose any principal if the index declines. Fixed VERSIGHT 5 DOL-17-0281-B-000378 Case: 17-10238 Document: 00513977166 Page: 22 Date Filed: 05/02/2017 annuities thus provide an affordable and low-risk option for individuals seeking guaranteed income in retirement. Because fixed annuities are intended primarily to provide guaranteed income in retirement, contract owners pay a surrender charge if they choose to cash-in the contract early. See ROA.8596. Though surrender charges and periods vary among insurers and products, insurers may charge no more than is permitted under state insurance standards. ROA.579. FIAs are sold through a variety of channels, including by banks, brokerdealers, independent agents, and captive agents of insurers. ROA.8597, 8609, 8536. Agents are generally compensated through commissions, which are paid by the insurance company and not deducted from the buyer’s principal. This commission-based compensation system reflects a fundamental feature of sales of such annuities: An FIA is a one-time “buy and hold” product. ROA.8535. There is no ongoing provision of investment advice or management of the consumer’s funds. FIA sales thus stand in contrast to a fee-for-advice arrangement, in which a consumer pays an advisor a fee to manage his or her money on an ongoing basis. See id. B. States’ Regulation Of FIA Sales States have developed “a robust set of consumer protection[s]” to ensure that those selling annuities act in a manner that protects the interests of retirement savers. ROA.8529; see also ROA.8598. One important component of this framework AMERICAN PVERSIGHT 6 DOL-17-0281-B-000379 Case: 17-10238 Document: 00513977166 Page: 23 Date Filed: 05/02/2017 is the model “suitability” regulation developed by the National Association of Insurance Commissioners (NAIC). ROA.8538. The NAIC enhanced the suitability model in 2010, imposing more extensive suitability standards on the sale of fixed annuities, including FIAs, to ensure that consumers’ needs and financial objectives are appropriately addressed. ROA.8538–39. As of September 2015, 35 states plus the District of Columbia had adopted the model suitability rule. ROA.679. FIAs can only be sold by state-licensed insurance agents, who must complete an annuity-specific training course, as well as training about each specific product they sell. ROA.8534–35; NAIC Suitability In Annuity Transactions Model Regulation §§ 6(F)(1)(b)-(c), 7(A) (ROA.6034, 6036). Each type of FIA must be approved by each state in which it is sold. ROA.8533. An agent may not recommend even state-approved FIAs unless the agent has “reasonable grounds for believing that the recommendation is suitable for the consumer.” ROA.6032 § 6(A). To make a suitability determination, the agent must evaluate a host of factors, including the consumer’s age, income, intended use of the annuity, assets and liquid net worth, financial needs and experience, financial time horizon, liquidity needs, risk tolerance, and tax status. ROA.6032–33 §§ 5(I), 6(A). An agent must also have a reasonable basis to believe that the “consumer would benefit from certain features of the annuity, such as tax-deferred growth, annuitization or death or living benefit,” ROA.6033 § 6(A)(2), and must ensure the consumer has received a AMERICAN PVERSIGHT 7 DOL-17-0281-B-000380 Case: 17-10238 Document: 00513977166 Page: 24 Date Filed: 05/02/2017 reasonable explanation of the FIA, including the surrender period, early surrender charges, any other fees or charges, and limitations on interest credited, id. § 6(A)(1). The insurance company must then review and approve the transaction as suitable. Id. § 6(C). State insurance commissioners have broad powers to ensure that insurers do not engage in unfair trade practices. See ROA.8529. As the NAIC explained, “[s]uch authority allows state regulators to identify market issues and take the appropriate regulatory action swiftly and effectively,” and “states have a strong record of protecting consumers, especially seniors, from inappropriate sales practices or unsuitable products.” Id. Congress has recognized the effectiveness of these state protections. In 2009, the Securities and Exchange Commission (SEC) proposed a rule that would have treated many FIAs as securities subject to registration and federal supervision. 74 Fed. Reg. 3138 (Jan. 16, 2009). The proposed rule was invalidated, however, because the SEC “fail[ed] to determine whether, under the existing [statelaw] regime, sufficient protections existed to enable investors to make informed investment decisions and sellers to make suitable recommendations to investors.” Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179 (D.C. Cir. 2010). Shortly thereafter, Congress adopted the Harkin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 989J, 124 AMERICAN PVERSIGHT 8 DOL-17-0281-B-000381 Case: 17-10238 Document: 00513977166 Page: 25 Date Filed: 05/02/2017 Stat. 1376, 1949–50 (2010). The Harkin Amendment provides that FIAs sold in states that have adopted the latest NAIC model suitability regulation, or by companies following the latest NAIC model regulation, shall be treated as exempt securities not subject to federal regulation. Today, versions of the NAIC regulations have been adopted by most states, and insurance companies selling FIAs generally apply suitability standards at least as stringent as the model regulations even if domiciled in states that have not adopted them, in order to benefit from the Harkin Amendment exemption. ROA.8537. Thus, virtually all FIA sales are as a legal or practical matter subject to requirements that are at least as stringent as the NAIC model regulations. ROA.8598, 8537. C. The Previously Limited Regulation Of FIA Sales Under ERISA Prior to the adoption of DOL’s new rules, sales of fixed annuities, including FIAs, were generally not subject to regulation under ERISA’s fiduciary standards. Under ERISA and parallel provisions of the Code, a person is a “fiduciary” only “to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) 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, or (iii) he has AMERICAN pVERSIGHT 9 DOL-17-0281-B-000382 Case: 17-10238 Document: 00513977166 Page: 26 Date Filed: 05/02/2017 any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A); 26 U.S.C. § 4975(e)(3). Among other things, ERISA requires fiduciaries of an ERISA plan to act prudently and “solely in the interest of the participants and beneficiaries,” 29 U.S.C. § 1104(a), and it prohibits certain transactions absent an exemption, id. § 1106. Under the Code, fiduciaries of individual retirement accounts (IRAs) and plans not covered by ERISA are also subject to prohibited transaction rules. 26 U.S.C. § 4975. Shortly after ERISA was enacted, DOL confirmed that sellers of fixed annuities are ordinarily not fiduciaries. Under regulations DOL issued in 1975, persons lacking discretionary authority or control with respect to the investment of plan assets did not “rende[r] investment advice for a fee”—and thus were not fiduciaries—unless, among other things, they made investment recommendations “on a regular basis” “pursuant to a mutual agreement, arrangement or understanding” that the advice “will serve as a primary basis for investment decisions with respect to plan assets,” and that the advice will be “individualized … based on the particular needs of the plan.” 40 Fed. Reg. 50840, 50841 (Oct. 31, 1975). Advice incidental to the sale of an insurance product thus did not generally qualify as fiduciary investment advice triggering the prohibited transaction rules. Even a person who meets the definition of a fiduciary may engage in prohibited transactions if an exemption applies. Prohibited Transaction Exemption 84-24, AMERICAN pVERSIGHT 10 DOL-17-0281-B-000383 Case: 17-10238 Document: 00513977166 Page: 27 Date Filed: 05/02/2017 originally promulgated in 1977, long permitted insurance agents and brokers who otherwise satisfied the regulatory test for fiduciary status “to effect the purchase of the insurance or annuity contracts for the plans or IRAs and receive a commission on the sale.” ROA.1108. D. DOL’s Rulemaking In the rule at issue in this proceeding, DOL abandoned its more than 40year-old recognition that sales of fixed annuities do not ordinarily involve fiduciary conduct. DOL dramatically expanded the definition of fiduciary investment advice to sweep in “recommendations” specifically directed to a recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or IRA, even if not provided on a regular basis as part of an ongoing advisory relationship. ROA.324. Under DOL’s new rule, recommendations made in a one-time annuity sale render a sales agent a fiduciary. In proposing this expanded definition, DOL recognized that it would sweep in communications that “Congress did not intend to cover as fiduciary ‘investment advice’ and that parties would not ordinarily view as communications characterized by a relationship of trust or impartiality.” ROA.1033. DOL accordingly proposed to adopt specified “carve-outs,” including one for “incidental advice provided in connection with an arm’s length sale” of a financial product. Id. Neither the AMERICAN PVERSIGHT 11 DOL-17-0281-B-000384 Case: 17-10238 Document: 00513977166 Page: 28 Date Filed: 05/02/2017 proposed nor final rule, however, included a “carve-out” (or what DOL later described as an “exclusion”) for advice incidental to the sale of annuities. DOL also amended the 84-24 exemption in order to “increase the safeguards of the exemption.” ROA.549. To rely on the amended 84-24 exemption, fiduciaries must “adhere to certain ‘Impartial Conduct Standards,’ including acting in the best interest of the plans and IRAs when providing advice.” Id. Having thus expanded the definition of “fiduciary” and enhanced the protections of the 84-24 exemption, DOL revoked relief under this exemption for sales of FIAs (but not fixed rate annuities). ROA.553–58. DOL did so based primarily on its view that FIAs are more complicated than other fixed annuities. ROA.555. Finally, for transactions falling outside the 84-24 exemption, DOL adopted a new “Best Interest Contract” (BIC) exemption. ROA.379–466. To use this exemption, advisers and the financial institutions that employ or retain them must acknowledge their fiduciary status, and commit to “Impartial Conduct Standards” that require advice in the customer’s “best interest,” “reasonable” compensation limits, disclosure of all “material” conflicts of interest, and (for the institution) supervisory obligations. ROA.384. For IRAs and non-ERISA plans, the financial institution must commit to these standards in an enforceable contract. ROA.385. For ERISA plans, the financial institution must acknowledge its fiduciary status and that of its advisers. Id. For both IRAs and ERISA plans, financial institutions can- AMERICAN PVERSIGHT 12 DOL-17-0281-B-000385 Case: 17-10238 Document: 00513977166 Page: 29 Date Filed: 05/02/2017 not disclaim liability for compensatory remedies or waive or qualify the customer’s rights to bring or participate in a class action suit. ROA.397–98. E. Proceedings Below DOL published the final fiduciary rule and exemptions on April 8, 2016. ROA.322 (fiduciary definition); ROA.378 (BIC exemption); ROA.547 (amended 84-24 exemption). The IALC plaintiffs filed their complaint on June 8, 2016, and their case was consolidated before Chief Judge Barbara Lynn with two other suits raising similar challenges, one brought by the Chamber of Commerce and related plaintiffs (the Chamber plaintiffs), the other brought by the American Council of Life Insurers and related plaintiffs (the ACLI plaintiffs). Following briefing and argument on cross-motions for summary judgment, the district court entered judgment in favor of DOL. ROA.9873–953, 9954. The court concluded that ERISA’s definition of a fiduciary—in particular, the second prong, which refers to those who “rende[r] investment advice for a fee”—does not unambiguously foreclose DOL’s new interpretation. ROA.9888–95. The court concluded that the common law did not limit the meaning of ERISA’s “investment advice” prong because Congress had departed from other common-law requirements elsewhere in the statute. ROA.9889–90. The court also asserted, without explanation, that it was not convinced that DOL’s new definition “varies from the common law of trusts.” ROA.9890. Finally, the court concluded that DOL’s inter- AMERICAN PVERSIGHT 13 DOL-17-0281-B-000386 Case: 17-10238 Document: 00513977166 Page: 30 Date Filed: 05/02/2017 pretation of the “investment advice” prong was reasonable, and indeed, that the agency’s 41-year-old prior interpretation was “more difficult … to reconcile with” ERISA. ROA.9895. The court also rejected the IALC plaintiffs’ contention that DOL had acted arbitrarily and capriciously in regulating sales of FIAs as fiduciary transactions and in revoking the 84-24 exemption for such sales. ROA.9916–26. The court accepted DOL’s contention that the agency’s description of state regulation, and the fact that a minority of states have not adopted the NAIC’s enhanced suitability rules, sufficed to establish the need for federal regulation. ROA.9920–23. The court also accepted DOL’s claim that it was reasonable to rely on studies of commission-based sales of mutual funds to demonstrate that sales of FIAs cause actual consumer harms. ROA.9923–24. In so ruling, the court did not address the IALC plaintiffs’ showing that the dynamics DOL itself identified as the cause of mutual fund underperformance do not apply to FIAs. SUMMARY OF ARGUMENT I. DOL’s new definition of a “fiduciary” is inconsistent with ERISA’s plain meaning. Because it used the common-law term “fiduciary,” Congress is presumed to have incorporated the term’s well-settled meaning unless ERISA itself dictates otherwise. This presumption is strong. To overcome it, ERISA’s language, structure, or purpose must be incompatible with, and require a deviation from, the VERSIGHT 14 DOL-17-0281-B-000387 Case: 17-10238 Document: 00513977166 Page: 31 Date Filed: 05/02/2017 common law. The fact that ERISA deviates from some common-law requirements does not demonstrate that Congress intended to jettison others. Nothing in ERISA’s “investment advice” prong shows that Congress departed from the fundamental requirement that a “fiduciary” occupy a position of special trust and confidence. By contrast, when it chose to deviate from the commonlaw rule that a fiduciary be a named trustee, Congress used language incompatible with that rule—defining a fiduciary as one who exercises “any” authority or control over a plan or its assets. The “investment advice” prong, however, does not reach those who render “any investment advice for a fee.” Other language in the “investment advice” prong, the remainder of the statute’s definition, and ERISA’s legislative history all confirm that Congress limited fiduciary status under this prong to investment advice rendered in a relationship of trust and confidence. Even if the statute was ambiguous—and it is not—DOL’s new definition is unreasonable because it is inconsistent with congressional intent in several related but distinct ways. First, DOL recognized that Congress did not intend to burden activities that do not implicate relationships of trust and confidence, and DOL had no basis for concluding that sales of annuities involve such relationships. Treating recommendations incidental to such sales as fiduciary conduct is thus inconsistent with Congress’s intent in ERISA itself. Second, in the Investment Advisers Act, Congress imposed fiduciary duties on investment advisers, but not when they pro- AMERICAN PVERSIGHT 15 DOL-17-0281-B-000388 Case: 17-10238 Document: 00513977166 Page: 32 Date Filed: 05/02/2017 vide advice solely incidental to their business as brokers or dealers. This statute reflects Congress’s broad understanding that recommendations made in traditional sales relationships should not be treated as fiduciary in nature. Third, Congress prohibited federal regulation of FIAs themselves when they are sold in compliance with the NAIC suitability rules. An interpretation that flouts Congress’s intent in three separate laws is plainly unreasonable, and not entitled to deference. II. Independently, the rules—or, at a minimum, the revocation of the 84-24 exemption—must be set aside as arbitrary and capricious as applied to FIAs. As numerous commenters demonstrated, FIA sales are already subject to extensive consumer protections under state law, including recently enhanced suitability standards. DOL failed to provide a reasonable explanation for why these existing regulations are insufficient to protect consumers. And it failed to support its claim that FIA sales are inflicting excessive losses on consumers notwithstanding existing regulation. DOL identified a perceived “gap” between its best-interest standard and state suitability standards, but it never explained why this theoretical gap can be expected to have any real-world consequences or how it renders suitability standards insufficient to protect consumers. To the contrary, in explaining the purported need for additional regulation, DOL repeatedly—and irrationally—cited the concern that agents might recommend unsuitable products. AMERICAN PVERSIGHT 16 DOL-17-0281-B-000389 Case: 17-10238 Document: 00513977166 Page: 33 Date Filed: 05/02/2017 The other explanations DOL offered are equally incoherent. It faulted state regulation for not being uniform, but failed to explain why national uniformity is needed, failed to address the evidence that virtually all FIA sales comply with the NAIC model suitability rules to avoid federal securities regulation, and failed to recognize that an interest in national uniformity does not support the adoption of a national best-interest standard as opposed to a national suitability standard. And DOL relied heavily on purported concerns expressed by securities regulators, while ignoring Congress’s conclusion in the Harkin Amendment that those concerns are properly addressed by compliance with the NAIC suitability rules. In any event, regardless of any theoretical concerns, DOL’s treatment of FIAs was arbitrary and capricious because it staked the rules in part on the empirical claim that existing regulation has failed to prevent consumer harms, but failed to present any relevant evidence to back up that claim. DOL’s principal evidence of purported consumer harms consisted of studies involving mutual funds, not FIAs. But the factors that DOL identified as leading to underperformance in the mutual fund context—excessive trading, timing errors, underinvestment in fund management—do not apply to FIAs. And none of the insurance-specific evidence DOL cited, much of which concerns other products in other countries that are not subject to suitability standards and/or predates the recent enhancements to the suit- AMERICAN PVERSIGHT 17 DOL-17-0281-B-000390 Case: 17-10238 Document: 00513977166 Page: 34 Date Filed: 05/02/2017 ability rules, shows that FIA sales are inflicting consumer losses despite existing regulation. Finally, in revoking the 84-24 exemption for FIAs, DOL failed to explain why the enhanced protections of that exemption—including a best-interest standard—are insufficient, coupled with state suitability rules, to protect consumers. 1 STANDARD OF REVIEW This Court “review[s] de novo a district court’s grant of summary judgment, ‘applying the same standard as the district court.’” Associated Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215, 219 (5th Cir. 2016). In “anaylyz[ing] an agency’s interpretation of its authorizing statute,” this Court uses “the two-step procedure set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),” asking first “whether Congress has directly spoken to the precise question at issue.” Associated Builders & Contractors, 826 F.3d at 219. If Congress has, the Court “must give effect to the unambiguously expressed intent of Congress.” Id. “If it has not, [this Court] defers to the agency’s reasonable interpretations of the statute.” Id. In determining whether agency action is arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence within the meaning of the Ad- 1 The IALC plaintiffs incorporate by reference the briefs and all arguments therein filed today by the Chamber and ACLI plaintiffs-appellants. VERSIGHT 18 DOL-17-0281-B-000391 Case: 17-10238 Document: 00513977166 Page: 35 Date Filed: 05/02/2017 ministrative Procedure Act (APA), this Court “look[s] to whether the [agency] examined the relevant data,” considered “the relevant factors,” and “articulated a ‘satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” Texas v. EPA, 690 F.3d 670, 676–77 (5th Cir. 2012) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This Court “must disregard any post hoc rationalizations of the [agency’s] action and evaluate it solely on the basis of the agency’s stated rationale at the time of its decision.” Luminant Generation Co. v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). “An important corollary is that where [the agency] has relied on multiple rationales …, and … at least one of the rationales is deficient, [the Court] will ordinarily vacate the [rule] unless [it is] certain that [the agency] would have adopted it even absent the flawed rationale.” Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir. 2006). ARGUMENT I. DOL’S NEW DEFINITION OF A “FIDUCIARY” IS INVALID. A. DOL’s New Definition Of A “Fiduciary” Is Inconsistent With The Plain And Unambiguous Meaning Of ERISA. Under the common law, a fiduciary is one who occupies a position of trust and confidence with respect to another. Settled rules of statutory interpretation demonstrate that Congress did not jettison this defining characteristic when it used the term “fiduciary” in ERISA. VERSIGHT 19 DOL-17-0281-B-000392 Case: 17-10238 1. Document: 00513977166 Page: 36 Date Filed: 05/02/2017 Settled rules of statutory construction demonstrate that ERISA imposes fiduciary status only on persons who render investment advice in a relationship of trust and confidence. When an agency interprets a statute it administers, a reviewing court must address a threshold question. “[A]pplying the ordinary tools of statutory construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) (emphasis added) (quoting Chevron, 467 U.S. at 842–43). Here, an “ordinary tool of statutory construction” resolves this case. Because ERISA uses the word “fiduciary,” a term with a “settled meaning under … the common law, a court must infer, unless the statute otherwise dictates, that Congress mean[t] to incorporate the established meaning.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (emphases added) (applying principle to another definition in ERISA); see also Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (citing Darden in construing terms “fiduciary” and “administration” in ERISA). This presumption is strong. Where Congress used trust-law “terms long established in the courts of chancery,” the Court held that those terms must be given their traditional meaning “unless Congress has unequivocally expressed an intent to the contrary.” NLRB v. Amax Coal Co., 453 U.S. 322, 330 (1981). AMERICAN PVERSIGHT 20 DOL-17-0281-B-000393 Case: 17-10238 Document: 00513977166 Page: 37 Date Filed: 05/02/2017 Nor does the presumption disappear simply because a statute departs from the common law in certain respects. To the contrary, even when Congress departs from some elements of the common law, it is presumed to retain other commonlaw requirements. See Neder v. United States, 527 U.S. 1, 24–25 (1999) (elimination of common-law elements of reliance and damage in fraud statutes did not demonstrate that Congress also eliminated materiality element); Evans v. United States, 504 U.S. 255, 263–64 (1992) (adoption of “much broader” definition of persons who could engage in “extortion” was not a “direction” to expand the common-law definition of the underlying misconduct). These principles are dispositive here. Long before ERISA was enacted, the term “fiduciary” had a settled common-law meaning. It required a special relationship of trust and confidence—“an extraordinary reliance which causes [another] to drop his guard, abandon formalities, and deal with another in intimacy.” G. Bogert, Confidential Relations and Unenforcible Express Trusts, 13 Cornell L. Q. 237, 245 (1928) (ROA.4168). Such a confidential relationship, moreover, had to “be preexisting.” Id. Courts have thus long recognized that, absent unusual circumstances, a fiduciary relationship does not arise out of one-time sales of insurance products.2 2 Rishel v. Pac. Mut. Life Ins. Co. of Cal., 78 F.2d 881, 886 (10th Cir. 1935) (“[t]he law does not cast upon insurance companies the affirmative burden cast upon trustees who deal with the property of their cestuis”); Stockett v. Penn Mut. Life Ins. Co., 106 A.2d 741, 744 (R.I. 1954) (“Ordinarily an insurance company stands in no fiduciary relationship to a legally competent applicant for an annuity”); Kap-Pel VERSIGHT 21 DOL-17-0281-B-000394 Case: 17-10238 Document: 00513977166 Page: 38 Date Filed: 05/02/2017 Accordingly, courts must presume that a fiduciary relationship under ERISA is one of trust and confidence, unless something in the statute constitutes a “contrary direction,” Evans, 504 U.S. at 264, that “dictates” jettisoning this defining characteristic, Darden, 503 U.S. at 322 (emphasis added). In both its rulemaking and its briefs below, the agency focused on the fact that a person can be a fiduciary if “he renders investment advice for a fee.” ROA.330, 366, 4973–75, 4978–81. But nothing in this phrase is fundamentally “incompatible with,” Neder, 527 U.S. at 25—and thus reflects an “unequivocal[] … intent” to abandon, Amax Coal, 453 U.S. at 330—the common law’s requirement of trust and confidence. This prong is thus properly construed to treat as a fiduciary only one who “renders investment advice for a fee” in a relationship of trust and confidence. Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49, 58 (Mo. Ct. App. 1966) (in an insurance transaction, “two contracting parties are dealing with each other at arms’ length” and no fiduciary relationship is established); Moses v. Mfrs. Life Ins. Co., 298 F. Supp. 321, 323 (D.S.C. 1968) aff’d, 407 F.2d 1142 (4th Cir. 1969) (“claim of fiduciary relationship … cannot rest upon the mere relationship of insurer and insured”); Chavez v. Chenoweth, 553 P.2d 703, 710 (N.M. Ct. App. 1976) (“Something more than the fact of the insurance relationship is required before a fiduciary relationship results”); Am. Driver Serv., Inc. v. Truck Ins. Exch., 631 N.W.2d 140, 148 (Neb. Ct. App. 2001) (“the contractual nature of an insurance policy, … does not give rise to a presumption of a fiduciary relationship,” even where the insurer has “superior knowledge or bargaining power”); Pitts v. Jackson Nat’l Life Ins. Co., 574 S.E.2d 502, 508 (S.C. Ct. App. 2002) (“[T]he cases clearly establish the sale of insurance is an arm’s length commercial transaction, which does not give rise to a fiduciary relationship”). VERSIGHT 22 DOL-17-0281-B-000395 Case: 17-10238 Document: 00513977166 Page: 39 Date Filed: 05/02/2017 Any conceivable doubt is eliminated by comparing the language of ERISA’s “investment advice” prong with the language Congress used elsewhere to depart from other common-law requirements. The common law conferred fiduciary status only on named trustees. Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993). In ERISA, however, Congress adopted a “functional” definition that includes a person who “exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets,” 29 U.S.C. § 1002(21)(A)(i) (emphases added). A functional definition that encompasses those who exercise “any” control or authority over a plan or its assets is inescapably “incompatible with,” Neder, 527 U.S. at 25, and thus departs from, the common law’s named trustee limitation. 3 Critically, however, the “investment advice” prong does not encompass a person who “renders any investment advice for a fee.” Indeed, the fact that Congress used the word “any” five separate times in the definition of a fiduciary, but did not use it to modify “renders investment advice,” makes clear that this choice was intentional. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in an3 Although language encompassing any “control and authority” is inconsistent with the common law’s formal trusteeship requirement, that language is not inconsistent with the central aspect of a fiduciary relationship: persons who are afforded broad powers to control a plan or to manage and dispose of its assets are those in whom others repose special trust and confidence. VERSIGHT 23 DOL-17-0281-B-000396 Case: 17-10238 Document: 00513977166 Page: 40 Date Filed: 05/02/2017 other section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). This choice thus reflects a conscious decision not to sweep in all persons who render any investment advice, including advice incidental to the one-time sale of insurance products. Further confirmation, if any were needed, can be found in the second half of the “investment advice” prong, which makes a person a fiduciary if he or she “has any authority or responsibility to” render investment advice. 29 U.S.C. § 1002(21)(A)(i). An advisor in an ongoing relationship of trust and confidence would possess “authority” or “responsibility” to render investment advice. Because the second half of the “investment advice” prong clearly retains the common-law requirement of a relationship of trust and confidence, there is no basis to conclude that the first half of the same prong “dictates” a departure from that requirement. Finally, the legislative history confirms that Congress retained this defining characteristic of a fiduciary even as it altered other aspects of the common law. Just before explaining how ERISA’s fiduciary definition included any person “who exercises any power of control, management or disposition with respect to monies or other property of an employee benefit fund, or who has authority or responsibility to do so,” the Senate Report reiterated that a “fiduciary is one who occupies a position of confidence or trust.” S. Rep. No. 93-127, at 28–29 (1973) (emphasis added); see also H.R. Rep. No. 93-533, at 11 (1973) (same). Similarly, Representa- AMERICAN PVERSIGHT 24 DOL-17-0281-B-000397 Case: 17-10238 Document: 00513977166 Page: 41 Date Filed: 05/02/2017 tive Perkins provided material in the nature of a committee report explaining that “[a] fiduciary is one who occupies a position of confidence o[r] trust,” and that the definition dispensed with “any requirement of a written or other formal acknowledgement of fiduciary status.” 120 Cong. Rec. 3977, 3982–83 (1974) (Rep. Perkins) (emphases added). Dispensing with formal acknowledgement of fiduciary status is far different than dispensing with the central characteristic of a fiduciary relationship. The foregoing explains why, for 41 years, DOL regulations established that a person who provided investment advice was a fiduciary “only if” the person had “discretionary authority or control … with respect to purchasing or selling securities or other property,” or rendered advice “on a regular basis,” “pursuant to a mutual agreement, arrangement or understanding” that the advice would be “individualized” and would “serve as a primary basis for investment decisions with respect to plan assets.” 40 Fed. Reg. at 50843.4 These requirements reflect a relationship of trust and confidence—and properly exclude one-time, arm’s-length sales. See Am. 4 In light of the foregoing language, the district court’s statement that DOL previously interpreted the “investment advice” prong “to include commissions for advice incidental to sales transactions,” ROA.9892 (emphasis added), is incorrect. Nor do the cases the district court cited, id., show otherwise. These cases simply applied the regulation and recognized that “each element set forth in the regulation must be satisfied.” Ellis v. Rycenga Homes, Inc., 484 F. Supp. 2d 694, 707 (W.D. Mich. 2007) (describing the rulings in Farm King Supply, Inc. v. Edward D. Jones & Co., 884 F.2d 288 (7th Cir. 1989), and Thomas, Head & Greisen Emps. Tr. v. Buster, 24 F.3d 1114 (9th Cir. 1994)). VERSIGHT 25 DOL-17-0281-B-000398 Case: 17-10238 Document: 00513977166 Page: 42 Date Filed: 05/02/2017 Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y of U.S., 841 F.2d 658, 664 (5th Cir. 1988) (holding that, under DOL’s prior regulation, “[s]imply urging the purchase of its products d[id] not make an insurance company an ERISA fiduciary with respect to those products”); cf. Fin. Planning Ass’n v. SEC, 482 F.3d 481, 491 (D.C. Cir. 2007) (agency’s consistent interpretation over the course of decades reflected statute’s “clear” meaning). In short, the “investment advice” prong of ERISA’s “fiduciary” definition has a plain and unambiguous meaning that forecloses DOL’s new interpretation. 2. The district court’s reasons for accepting DOL’s new definition are mistaken. In sustaining DOL’s novel interpretation, the district court deemed it significant that ERISA does not “expressly define ‘investment advice,’” but it does authorize DOL to promulgate regulations “to ‘define [the] accounting, technical and trade terms used in [ERISA]’” and to generally “carry out” the statute. ROA.9888. The term “fiduciary,” however, is not an “accounting,” “technical,” or “trade” term. It is a common-law term with a well-established meaning. And DOL’s authority to issue regulations to “carry out” ERISA or to construe its “technical” terms is no basis for concluding that Congress stripped the term “fiduciary” of its central meaning, thereby empowering the agency to regulate arm’s-length commercial relations lacking trust and confidence. DOL’s interpretive authority only comes into play if the statute is ambiguous; it is not a basis for finding ambiguity. AMERICAN PVERSIGHT 26 DOL-17-0281-B-000399 Case: 17-10238 Document: 00513977166 Page: 43 Date Filed: 05/02/2017 The district court also deemed it significant that Congress expressly departed from trust law by defining “fiduciary” not “in terms of formal trusteeship, but in functional terms of control and authority over the plan … thus expanding the universe of persons subject to fiduciary duties.” ROA.9889 (omission in original) (quoting Mertens, 508 U.S. at 262, 264). But, as noted earlier, a statute’s departure from one aspect of the common law does not jettison all aspects of the common law. Just as a statutory expansion of who can engage in extortion was not a “direction” to expand the common-law definition of extortion itself, Evans, 504 U.S. at 263–64, Congress’s decision to depart from the trust-law requirement of formal trusteeship is not a direction to dispense with the central requirement of a relationship of trust and confidence. Moreover, as noted above, the language that compels a departure from the common law in the “control and authority” prong of the fiduciary definition is conspicuously absent from the “investment advice” prong. Relying on snippets of language in the Supreme Court’s Varity decision, the district court appeared to assume that Darden’s presumption concerning incorporated common-law terms does not apply to ERISA. The district court noted that “trust law does not tell the entire story … [and] will offer only a starting point” because, when Congress “enacted ERISA, it made a ‘determination that the common law of trusts did not offer completely satisfactory protection.’” ROA.9889 (alterations and omission in original) (quoting Varity, 516 U.S. at 496–97); see also id. AMERICAN PVERSIGHT 27 DOL-17-0281-B-000400 Case: 17-10238 Document: 00513977166 Page: 44 Date Filed: 05/02/2017 (“the analogy between ERISA fiduciary and common law trustee becomes problematic”) (alterations omitted) (quoting Pegram v. Hedrich, 530 U.S. 211, 225 (2000)). In Varity itself, however, the Court cited Darden and, eschewing reliance on dictionaries, “look[ed] to the common law” to determine the scope of fiduciary activity under ERISA. See 516 U.S. at 502. Indeed, in the very sentence where it noted that the common law provides only a “starting point,” the Supreme Court went on to say that a court must consider whether ERISA’s text, structure, or purpose “require departing from common-law trust requirements.” Id. at 497 (emphasis added). This is the same inquiry required under the presumption recognized in Darden, Neder, Evans, and Amax Coal. This inquiry into whether ERISA “requires,” “dictates,” or “directs” a departure from the common law—not invocations of ERISA’s general “remedial purpose,” ROA.9895, 9896 n.69—determines the statute’s meaning. See Mertens, 508 U.S. at 262 (stressing that ERISA is “an enormously complex and detailed statute that resolved innumerable disputes between powerful competing interests—not all in favor of potential plaintiffs”). And, as shown above, that inquiry demonstrates that the “investment advice” prong does not jettison the common law’s trust and confidence requirement. 5 5 In the district court, DOL argued that the Darden presumption does not apply where the statute defines the incorporated common-law term. ROA.5640–41. But in Evans, Congress expressly defined the term “extortion,” yet the Court interpreted this defined term based on the presumption that Congress incorporated its common-law meaning. See 504 U.S. at 263–66. VERSIGHT 28 DOL-17-0281-B-000401 Case: 17-10238 Document: 00513977166 Page: 45 Date Filed: 05/02/2017 The district court also deemed it important that the Investment Advisers Act (IAA) defines “investment adviser” in a way that “specifically excludes ‘any broker or dealer whose performance of such services is solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor,’” yet ERISA contains no comparable exclusion. ROA.9890 (quoting 15 U.S.C. § 80b-2(a)(11)(c)). Noting that different statutory wording is presumed to be intentional, the district court concluded that Congress’s failure to limit ERISA’s definition of a “fiduciary” “to that in the IAA” shows that “ERISA does not unambiguously foreclose the DOL’s new interpretation.” ROA.9891. This reasoning is doubly flawed. First, the “‘disparate inclusion or exclusion’” principle the court cited, id., applies to different wording in the same statute. The district court quoted Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 63 (2006), for this proposition. But Burlington Northern quoted Russello, which as noted earlier, refers to the situation in which Congress “includes particular language in one section of a statute but omits it in another section of the same Act.” 464 U.S. at 23 (emphasis added). And in Burlington Northern itself, the Court applied this principle to two sections of Title VII. See 548 U.S. at 61–63. Second, textual differences between ERISA and the IAA preclude the negative inference the district court attempted to draw from its comparison of the two laws. In the IAA, Congress did not define “investment advisers” as “fiduciaries.” AMERICAN PVERSIGHT 29 DOL-17-0281-B-000402 Case: 17-10238 Document: 00513977166 Page: 46 Date Filed: 05/02/2017 For that very reason, Congress needed to clarify that those who provide merely incidental advice are excluded from the definition of “investment advisers.” That clarification would not have been necessary if Congress had defined investment advisers as “fiduciaries”; the use of that term would have dictated that investment advisers must have relationships of trust and confidence, and merely providing advice incidental to a sale is insufficient. By contrast, Congress used the commonlaw term “fiduciary” in ERISA, thereby incorporating the well-recognized limitations on its common-law meaning: fiduciary status arises only out of a relationship of trust and confidence. Congress thus had no need to reiterate that limitation in an exclusion to the definition of “investment advice.” Finally, the district court asserted that it did not believe that DOL’s rule varies from the common law. ROA.9890. DOL itself, however, did not contest the IALC plaintiffs’ showing that the common law required a relationship of trust and confidence, nor did DOL attempt to show that the rule includes this requirement. To the contrary, it insisted that the rule was an appropriate departure from the common law. See ROA.4987 (“DOL need not assess common law ‘factors’ to ‘determin[e]’ whether a person who renders investment advice would be a fiduciary under the common law, … given Congress’s express adoption of a standard that applies fiduciary status more broadly than the common law”); ROA.4975–77 AMERICAN PVERSIGHT 30 DOL-17-0281-B-000403 Case: 17-10238 Document: 00513977166 Page: 47 Date Filed: 05/02/2017 (DOL “need not have confined its interpretation of fiduciary ‘investment advice’ to those relationships recognized as fiduciary under the common law”). In short, the district court’s decision should be reversed and DOL’s new definition of “fiduciary” should be set aside as “contrary to law.” 5 U.S.C. § 706. B. DOL’s Interpretation Is Unreasonable. Even if ordinary principles of statutory construction do not foreclose DOL’s interpretation—and they do—that interpretation is still invalid. Under Chevron’s second step, an agency’s interpretation of an ambiguous statute is unreasonable if it is inconsistent with congressional intent. Texas v. United States, 497 F.3d 491, 506, 509 (5th Cir. 2007). DOL’s interpretation is unreasonable because it conflicts with Congress’s intent in ERISA itself, and in two other statutes. DOL acknowledged that its new definition “could sweep in some relationships that are not appropriately regarded as fiduciary in nature and that the Department does not believe Congress intended to cover as fiduciary relationships.” ROA.324 (emphasis added); see also ROA.324–25, 1021, 1033. The reason these relationships were “not appropriately regarded as fiduciary,” DOL explained, was because they do not involve trust and confidence. Thus, DOL adopted exclusions AMERICAN PVERSIGHT 31 DOL-17-0281-B-000404 Case: 17-10238 Document: 00513977166 Page: 48 Date Filed: 05/02/2017 from its new definition to “avoi[d] burdening activities that do not implicate relationships of trust.” ROA.325 (emphasis added). See also ROA.356, 359.6 DOL had no basis for concluding that one-time annuity sales involve “relationships of trust.” It stressed that (1) retirement products are complex, (2) retirement savers are confused by the products and unable to distinguish good advice from bad, (3) older savers are particularly vulnerable, (4) retirement decisions are important, and (5) sellers of retirement products have superior expertise and knowledge. See ROA.332, 356–57, 640–41, 645, 743, 745–47,754, 756, 760, 772– 77. None of these conclusions, however, demonstrates that the relationship between sellers and purchasers of annuities involves special trust and confidence. In fact, special knowledge, or “dominance,” “is not a relevant factor in determining the existence of a confidential relation.” Bogert, supra, at 247 (ROA.4170); see also id. at 246 (ROA.4169) (“that A is ignorant and inexperienced, and B educated 6 Government counsel’s revisionist claim that “most” of the exclusions reflect decisions that the transactions did “not present the same ills that ERISA was enacted to remedy,” ROA.4987 n.40, cannot be credited in light of DOL’s clear statements that the exclusions were necessary because the transactions did not involve relationships of trust and confidence, see S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 601 (5th Cir. 2004) (agency decision “must be upheld on the rationale set forth by the agency itself”) (citing, inter alia, SEC v. Chenery Corp., 318 U.S. 80, 93–95 (1943)). Nor did DOL exclude certain transactions because they do not involve “recommendations.” ROA.9896 n.70. DOL explained that the excluded transactions involve “recommendations” but, because there is no relationship of trust, “neither party expects that recommendations will necessarily be based on the buyer’s best interests.” ROA.356. VERSIGHT 32 DOL-17-0281-B-000405 Case: 17-10238 Document: 00513977166 Page: 49 Date Filed: 05/02/2017 and skilled in affairs, does not tend to prove that A and B are in a confidential relation”); Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268, 1280 (Conn. 2000) (“[s]uperior skill and knowledge alone do not create a fiduciary duty among parties involved in a business transaction”). Instead, “[s]uch superiority is an effect or consequence of the confidential relation.” Bogert, supra, at 247 (ROA.4170) (emphasis added). Thus, DOL acknowledged that Congress did not intend to burden activities that do not involve relationships of trust and confidence, yet DOL swept in onetime purchases of annuities that do not involve such relationships. This inconsistency alone renders DOL’s interpretation unreasonable. “Chevron allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not.” Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015). The interpretive gerrymander at issue here, moreover, is particularly unreasonable, because DOL chose to regulate a kind of recommendation (one incidental to a one-time sale) in a particular industry (insurance) about a particular product (FIAs) all of which Congress has elsewhere chosen not to regulate. As noted, in the IAA, Congress imposed fiduciary duties on “investment advisers,” but explicitly excluded brokers who make recommendations that are “‘merely incidental to bro- AMERICAN PVERSIGHT 33 DOL-17-0281-B-000406 Case: 17-10238 Document: 00513977166 Page: 50 Date Filed: 05/02/2017 kerage transactions for which they receive only brokerage commissions.’” Fin. Planning Ass’n, 482 F.3d at 485 (quoting S. Rep. No. 76-1775 (1940)). These are the same kinds of recommendations DOL chose to regulate here. Similarly, Congress has refrained for decades from regulating the business of insurance, leaving regulation of this industry to the states. See 15 U.S.C. § 1011. And when the SEC decided to regulate FIAs—based on many of the same considerations that motivated DOL here, see 74 Fed. Reg. 3138 (Jan. 16, 2009)— Congress prohibited such regulation for FIAs that are either sold in states that have adopted the latest NAIC model suitability rules or are sold by companies that comply with those rules. See Pub. L. No. 111-203, § 989J, 124 Stat. 1376, 1949–50 (2010). Thus, even assuming DOL has discretion to attach fiduciary duties to recommendations offered in some, but not all, arm’s-length commercial transactions, it is “an unreasonable interpretation of Congress’s intent,” Texas, 497 F.3d at 509, to attach fiduciary duties to precisely the kind of incidental sales recommendations that Congress has explicitly excluded from fiduciary treatment elsewhere, in connection with the sale of a product that Congress exempted from federal securities regulation precisely because it believes state regulation of that product is sufficient to protect consumers. See id. at 504 (noting that “later enacted statutory provisions AMERICAN PVERSIGHT 34 DOL-17-0281-B-000407 Case: 17-10238 Document: 00513977166 Page: 51 Date Filed: 05/02/2017 may be relevant to determine congressional intent” in the Chevron inquiry) (emphasis omitted). II. DOL’S TREATMENT OF FIXED INDEXED ANNUITIES WAS ARBITRARY AND CAPRICIOUS. Even if ERISA’s “investment advice” prong lacked a clear meaning and DOL had discretion to regulate incidental sales recommendations, the agency acted arbitrarily and capriciously in subjecting FIA sales to fiduciary regulation, revoking the 84-24 exemption, and moving FIA sales into the BIC exemption. In so doing, DOL claimed that existing regulation has “proven inadequate to prevent adviser conflicts from inflicting excessive losses on investors.” ROA.733. But DOL simply identified various factors that theoretically could lead agents to act on their incentives and sell inappropriate products to vulnerable customers. These are the very problems the NAIC suitability rules address, and DOL failed to provide a reasoned explanation for why this existing scheme of regulation is inadequate. DOL also staked its treatment of FIAs on a claimed record of abuse. None of the “evidence” it cited, however, shows that FIAs are actually “inflicting excessive losses on investors.” ROA.733. And “[p]rofessing that [a rule] ameliorates a real industry problem but then citing no evidence demonstrating that there is in fact an industry problem is not reasoned decision-making.” Nat’l Fuel, 468 F.3d at 843–44. AMERICAN PVERSIGHT 35 DOL-17-0281-B-000408 Case: 17-10238 A. Document: 00513977166 Page: 52 Date Filed: 05/02/2017 DOL Was Required To Consider The Sufficiency Of Existing Regulation. As discussed above, and as numerous commenters showed, the sale of annuities, including FIAs, is governed by a comprehensive set of state insurance laws that protect consumers. See supra pp. 6–9; ROA.8596–98, 8544–42, 9224–26, 8631–33, 7822–24. These regulations are designed to ensure that insurance agents are adequately trained and supervised, that they recommend only annuities that are suitable in light of the customer’s circumstances, and that the annuity’s terms and risks are reasonably disclosed and explained. See ROA.6030–38 (NAIC Suitability Model Regulation); ROA.4212–25 (NAIC Annuity Disclosure Model Regulation). As the NAIC’s comment letter explained, states have “implement[ed] a robust set of consumer protection and education standards for annuity and insurance transactions,” they have “extensive enforcement authority,” and they “have a strong record of protecting consumers, especially seniors, from inappropriate sales practices or unsuitable products.” ROA.8529. Despite this extensive commentary, the district court ruled that DOL was not even required to consider the sufficiency of existing regulation. ROA.9921 & n.139 (“whether existing regulation was sufficient … is not the standard DOL must meet”). That ruling violates basic principles of administrative law. Under the APA, agencies must respond to “relevant and significant” comments. Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 15 (D.C. Cir. 2015). And “[m]any com- AMERICAN PVERSIGHT 36 DOL-17-0281-B-000409 Case: 17-10238 Document: 00513977166 Page: 53 Date Filed: 05/02/2017 menters took the position that existing regulation of these products is sufficient.” ROA.558. In addition, the APA required DOL to “consider [each] important aspect of the problem,” State Farm, 463 U.S. at 43, and there is no question that the adequacy of existing regulation is an “important aspect of the problem” when an agency promulgates a rule that radically alters a 40-year-old regulatory scheme that has engendered “decades of industry reliance,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016); see 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 724 (5th Cir. 2013) (“an agency must consider and explain its rejection of reasonably obvious alternatives”) (alteration omitted). The D.C. Circuit’s decision in American Equity illustrates these principles. The court there invalidated the SEC’s attempt to regulate FIAs under the securities laws because the agency had failed to address existing state regulation. 613 F.3d at 176–78. Here, the district court disregarded American Equity because the statute at issue there required the SEC to consider the effect of its rules on “efficiency, competition, and capital formation,” id. at 177, and “no similar statutory requirement” applies here, ROA.9921. But that is of no moment. It was the APA and its requirement of reasoned decisionmaking, not the statutory factors at issue in American Equity, that obligated the SEC to consider the sufficiency of existing regulation. See 613 F.3d at 178–79 (holding that the SEC’s analysis was arbitrary and capricious under the APA). By the same logic, DOL cannot rationally determine AMERICAN PVERSIGHT 37 DOL-17-0281-B-000410 Case: 17-10238 Document: 00513977166 Page: 54 Date Filed: 05/02/2017 whether federal regulation is needed to address the potential problems caused by conflicts of interest unless it first considers whether existing laws already prevent those problems. 7 B. DOL Failed To Give A Rational Explanation For Finding That Existing Regulation Is Insufficient To Protect FIA Buyers. Citing various sections of DOL’s Regulatory Impact Analysis (RIA), the district court concluded that DOL “assessed existing … insurance regulation” and “found the protections prior to the current rulemaking insufficient to protect investors.” ROA.9921 & n.139. At most, however, the record shows that DOL described existing regulation and asserted that it is insufficient. Under the APA, that is not enough. DOL was obligated to give a “reasonable explanation” for concluding that existing regulation is insufficient to address the risk of conflicted advice in connection with FIA sales. Associated Builders, 826 F.3d at 219–20. It failed to do so. The district court erred at the outset of its analysis by wrongly asserting that “DOL found … that existing protections do not ‘limit or mitigate potentially harmful adviser conflicts.’” ROA.9922 (quoting ROA.747). DOL made no such finding. Nor could it have rationally done so for FIAs. 7 Even if DOL was not required to consider the sufficiency of existing regulation, having claimed to have done so, it cannot now defend the rules on the ground that such an analysis was unnecessary. See Am. Equity, 613 F.3d at 177. VERSIGHT 38 DOL-17-0281-B-000411 Case: 17-10238 Document: 00513977166 Page: 55 Date Filed: 05/02/2017 Contrary to the district court’s truncated quotation, the quoted sentence of the RIA states only that “[e]xisting protections do not always limit or mitigate potentially harmful adviser conflicts as robustly” as DOL’s new rules. ROA.747 (emphases added). Indeed, DOL elsewhere cited with approval a Treasury Department report that “urge[d] that states adopt the Model Suitability Regulation.” ROA.679. That exhortation is necessarily premised on the understanding that the regulation provides meaningful consumer protections.8 DOL’s assertion that existing protections are not “always” as “robust[]” as its new rules, ROA.747, rests on its observation that the suitability standard is “less exacting than the fiduciary duty to act in a customer’s best interest,” ROA.748. But that truism does not explain why state suitability standards are insufficient. 9 DOL stated that existing suitability rules “leave some room for advisers to subordinate their customer’s interest to their own” and “to favor one suitable product over oth- 8 DOL also quoted a draft article’s assertion that “‘neither market forces nor legal or regulatory rules substantially constrain insurance agents’ capacity to advance their own interests by providing biased advice.” ROA.792. But the published version of this article omits this statement and says that suitability rules “can help to meaningfully mitigate the risk of incompetent or self-interested advice.” D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice, in Research Handbook on the Economics of Insurance Law 60 (Edward Elgar Pub. 2015) (emphasis added) (ROA.4521, 4545). 9 Likewise, DOL’s determination that its “new rules would work with and complement state insurance regulations,” ROA.9923, says nothing about why additional federal regulation is needed in the first place. VERSIGHT 39 DOL-17-0281-B-000412 Case: 17-10238 Document: 00513977166 Page: 56 Date Filed: 05/02/2017 ers that would better serve their customers’ interests.” ROA.733, 768. But DOL did not explain how likely it is that higher commissions will attach to suitable but less beneficial products, or why it is reasonable to assume that the magnitude of any difference between two suitable products is so significant that the resulting consumer harm warrants federal regulation. Instead, the concrete explanations of consumer harms that DOL provided for commission-based sales of annuities involved sales of unsuitable products. DOL asserted that conflicts of interest “can result in unsuitable sales of annuity products to investors,” ROA.805 (emphasis added), and it cited a study of life insurance sales in India that found that agents often recommended “unsuitable products,” ROA.785–86 (emphasis added), a comment highlighting sales to “senior citizens for whom [FIAs] are clearly unsuitable,” ROA.555 (emphasis added), and complaints about sales of FIAs that were “not right for customers,” ROA.769.10 Similarly, in its brief below, DOL stressed how surrender charges can cause a loss of principal if an FIA is cancelled early, then described how a customer who has few liquid assets and needs immediate access to them could be persuaded to buy an illiquid annuity with large surrender charges. ROA.5029. But this is precisely the 10 DOL also claimed that conflicts “may have led consumers to purchase annuities that were not in their best interest.” ROA.805 (emphasis added). That, of course, is speculation, and it is belied by DOL’s failure to marshal concrete evidence of actual harm. See infra § II.C. VERSIGHT 40 DOL-17-0281-B-000413 Case: 17-10238 Document: 00513977166 Page: 57 Date Filed: 05/02/2017 kind of sale that suitability rules are designed to prevent. The risk that sales of unsuitable products will harm consumers does not rationally support the conclusion that suitability regulation is inadequate and that a stricter standard is needed. Nor is that conclusion supported by the assertion that “state standards are not uniform (nor uniformly administered) across all states.” ROA.748. DOL never explained why uniformity is necessary to protect FIA buyers. The mere fact that “state insurance laws and their enforcement vary,” ROA.9922, does not mean that any state’s regulation is inadequate, and DOL did not explain how any variance in state laws or their enforcement could or would harm FIA buyers. Moreover, neither the district court nor DOL offered a meaningful response to the showing made by IALC and other commenters that virtually all FIA sellers follow the NAIC suitability rules to avoid being regulated as securities. ROA.8398, 8537. This omission is telling, because DOL acknowledged that even FIA sellers operating in the minority of states that have not adopted the NAIC suitability rules have incentives under the Harkin Amendment to comply with the rules to avoid regulation under the securities laws, ROA.922, and that “most indexed annuities are not registered with the SEC,” ROA.558—which confirms that issuers are choosing to comply with the NAIC standards on a national basis. 11 11 The district court cited no authority for its assertion that “sellers of FIAs need not satisfy the SEC’s safe harbor” because “the SEC is not currently regulating FIAs.” ROA.9925 n.156. DOL itself recognized that indexed annuities that “fall VERSIGHT 41 DOL-17-0281-B-000414 Case: 17-10238 Document: 00513977166 Page: 58 Date Filed: 05/02/2017 In any event, an asserted interest in national uniformity cannot rationally support the imposition of a best-interest standard. If greater uniformity was needed, DOL could simply have required compliance with the NAIC suitability rules. Like the SEC’s asserted interest in clarifying the “uncertain legal status” of FIAs in American Equity, DOL’s asserted interest in uniformity cannot “justify the adoption of a particular rule” because “[w]hatever rule [DOL] chose to adopt could equally be said to make” the law more uniform. 613 F.3d at 177–78. Nor do the “concern[s]” expressed by other regulators, ROA.9925, support the conclusion that existing suitability regulations are inadequate to protect FIA buyers. For example, DOL cited an SEC investor bulletin and a FINRA investor alert addressing FIAs. ROA.777, 921. But neither document expressed any “concern” about harmful sales practices, cited any evidence of such practices, or suggested that suitability regulations are insufficient to prevent such practices. DOL also cited a comment by the North American Securities Administrators Association submitted as part of an SEC rulemaking in 2008. ROA.555. But, as noted above, the abuse that comment alleged concerned sales to “senior citizens for whom [FIAs] are clearly unsuitable,” id. (emphasis added)—a concern that was directly addressed by the later-adopted suitability rules. outside the Harkin Amendment”—and thus do not come within its safe harbor for “exempt securities”—generally are “registered with the SEC.” ROA.679 n.110. VERSIGHT 42 DOL-17-0281-B-000415 Case: 17-10238 Document: 00513977166 Page: 59 Date Filed: 05/02/2017 Indeed, it is remarkable that DOL placed so much weight on “concerns” raised by securities regulators, while all but ignoring Congress’s resolution of those very concerns in the Harkin Amendment. Contrary to the district court’s view, plaintiffs did not “argue that the Harkin Amendment … prevents the DOL from regulating FIAs.” ROA.9925 n.156. Rather, plaintiffs’ point was that DOL never explained why it rejected Congress’s recent determination in a closely related context—indeed, in response to the same concerns by the same regulators that DOL relied upon as a basis for regulating FIAs—that additional regulation of FIAs is unnecessary if they are sold in compliance with the NAIC suitability rules. That point stands unrebutted. Particularly given DOL’s extensive reliance on concerns expressed by securities regulators, it had an obligation to give meaningful consideration and weight to Congress’s determination, embodied in recent legislation, that state suitability rules are sufficient to address those concerns. Equally misplaced is the district court’s reliance on the fact that DOL “considered comments” asserting that consumers “lac[k] sufficient protections” and “need greater protections when investing in indexed annuities precisely because such products are not regulated as securities.” ROA.9922–23. Unadorned assertions from unidentified sources cannot satisfy DOL’s obligation to provide a rational explanation for its action. The mere fact that a commenter expressed a view AMERICAN PVERSIGHT 43 DOL-17-0281-B-000416 Case: 17-10238 Document: 00513977166 Page: 60 Date Filed: 05/02/2017 does not make that view a reasoned basis for agency action; otherwise an agency could support any result simply by pointing to a commenter who advocated it. In sum, DOL failed to grapple seriously with the adequacy of state suitability regulations or to give a reasoned explanation for finding that these existing— and recently enhanced—regulations are insufficient to protect FIA buyers. C. DOL Failed To Support Its Claim That FIA Sales Are Inflicting Consumer Harms Despite Existing Regulation. Even if DOL had articulated a coherent theoretical basis for believing that existing regulation is insufficient, the rules’ treatment of FIAs would still be invalid because DOL also premised the rules on its claim that, “notwithstanding existing protections, there is convincing evidence that advice conflicts are inflicting losses on IRA investors.” ROA.747–48 (emphasis added); see also ROA.733. DOL failed, however, to identify relevant evidence that sales of FIAs are inflicting losses on consumers despite existing regulation. Because DOL’s evidence-based claim about consumer harms is a central pillar of the rules, and because the “claimed record evidence does not support” DOL’s claim that FIAs are harming consumers, the rules are invalid as applied to FIAs, regardless of any “theoretical threat” posed by conflicts of interest. Nat’l Fuel, 468 F.3d at 839 (“where [an agency] has relied on multiple rationales …, and we conclude that at least one of the rationales is deficient, we will ordinarily vacate the order unless we are certain that [the agency] would have adopted it even absent the flawed rationale.”). AMERICAN PVERSIGHT 44 DOL-17-0281-B-000417 Case: 17-10238 Document: 00513977166 Page: 61 Date Filed: 05/02/2017 DOL claimed that a “wide body of economic evidence supports [its] finding that the impact of … conflicts of interest on retirement investment outcomes is large and negative.” ROA.326; see also ROA.555 (asserting that “conflicts of interest in the marketplace for retail investments result in billions of dollars of underperformance to investors saving for retirement”); ROA.641, 747–48, 765–67, 786–92, 795–803. But this claim—the centerpiece of DOL’s purported showing of harms—is based on analyses of mutual funds, not FIAs. ROA.795–803. Even setting aside the defects in its analysis of mutual funds, DOL’s extrapolation from mutual funds to FIAs is irrational because the reasons why conflicted advice purportedly harms mutual fund investors do not apply to FIAs. DOL claimed that conflicted advice “inflict[s] … losses … by prompting IRA investors to trade more frequently, which will increase transaction costs and multiply opportunities for chasing returns and committing timing errors.” ROA.795; see also ROA.790. But FIAs cannot cause such losses because they are “buy and hold” products that do not involve trading. Similarly, DOL asserted that conflicts cause underperformance for actively managed mutual funds, ROA.788, 812, and tied this underperformance to “a mutual fund company[’s] … tradeoff between incentivizing its brokers … and investing sufficient resources in fund management,” ROA.810; see ROA.788 & n.350. But FIAs are not actively managed (interest is tied to an index) and thus this concern does not apply to FIAs either. AMERICAN PVERSIGHT 45 DOL-17-0281-B-000418 Case: 17-10238 Document: 00513977166 Page: 62 Date Filed: 05/02/2017 These differences completely belie DOL’s claim that “insurance products also are likely to be subject to underperformance due to conflicts.” ROA.795. Indeed, the only evidence DOL cited for this critical proposition was an article that does not even discuss FIAs. See Richard Evans & Rüdiger Fahlenbrach, Institutional Investors and Mutual Fund Governance: Evidence from Retail-Institutional Fund Twins, The Review of Financial Studies 25, no. 12 (2012). In nevertheless concluding that DOL properly relied on mutual fund studies, the district court strung together a series of citations from the RIA to support the theory that, because both FIAs and mutual funds are sold through conflict-creating commissions, and because both are subject to suitability and disclosure requirements, evidence that mutual funds cause injury justifies the same conclusion for FIAs. ROA.9924. But this theory cannot be found on the pages the court cited. DOL itself explained at length why it believed commission-based sales of mutual funds led to underperformance—and, as just shown, none of these factors apply to FIAs. DOL also explicitly said that the basis for extrapolating from mutual fund studies was the Evans & Fahlenbrach study—which, as just noted, says nothing whatsoever about FIAs. “It is elementary that if an agency’s decision is to be sustained in the courts on any rationale under which the agency’s factual or legal determinations are entitled to deference, it must be upheld on the rationale set forth by the agency itself,” Hood, 391 F.3d at 601—not theories advanced by agency counsel or a reviewing court. AMERICAN PVERSIGHT 46 DOL-17-0281-B-000419 Case: 17-10238 Document: 00513977166 Page: 63 Date Filed: 05/02/2017 Nor is there any merit to the district court’s contention that “DOL reasonably extrapolated from mutual fund studies” because “annuity data is not readily and widely available.” ROA.9924. DOL staked its regulation of annuities in part on the claim that “adviser conflicts [are] inflicting excessive losses on investors,” ROA.733, and argued below that it had “collected, examined, and relied on a wide body of evidence, both empirical and qualitative, to conclude that conflicted advice about mutual funds, annuities, and other retirement investments inflicts significant harm on retirement investors,” ROA.5001. It cannot now defend the rules by asserting there is insufficient data to determine whether adviser conflicts are inflicting excessive losses on annuity buyers. Because the record does not support that claim, the rules must be set aside as arbitrary and capricious. See Nat’l Fuel, 468 F.3d at 844 (where agency relied in part on claimed evidence of abuse, “explaining away the absence of such evidence merely underscores the need to vacate”). The cases the district court cited are inapposite. ROA.9924–25 (citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 219 (2009); ConocoPhillips Co. v. EPA, 612 F.3d 822, 841–42 (5th Cir. 2010)). It is one thing to say that an agency must make do with available information when performing a statutorily mandated analysis (like the environmental impact analysis in ConocoPhillips) or that an agency need not marshal empirical evidence that is unobtainable to support propositions that are obvious (like the harmful effect of expletives on minors in Fox). It AMERICAN PVERSIGHT 47 DOL-17-0281-B-000420 Case: 17-10238 Document: 00513977166 Page: 64 Date Filed: 05/02/2017 is another thing entirely to say that an agency may stake the asserted need for additional regulation on the claim that real-world harms exist, rely on evidence that does not support that claim, and then defend the rules on the ground that the evidence needed to support the claim is unobtainable. “Professing that a [rule] ameliorates a real industry problem but then citing no evidence demonstrating that there is in fact an industry problem is not reasoned decisionmaking.” Nat’l Fuel, 468 F.3d at 843–44. Moreover, this is not a situation where relevant evidence is “impossible” to obtain. ConocoPhillips, 612 F.3d at 841. As the government acknowledged below, ROA.5025 n.83, commenters produced data showing the low rate of consumer complaints about fixed annuity products, ROA.8541–42, 8631, 9242, 9224. Moreover, if FIA sales were causing significant consumer harms, it should be readily apparent. In fact, DOL noted that “state-based market condition examinations … revealed unsupervised sales of annuities that were not appropriate for the consumer’s profile,” which led to adoption of the new NAIC rules. ROA.678. If evidence of harmful FIA sales was possible in the past, DOL should have been able to demonstrate that such sales remain harmful despite the NAIC rules. Yet it failed to do so. Instead, apart from its misplaced reliance on mutual fund studies, DOL relied on a grab-bag of irrelevant and outdated studies. For example, DOL cited stud- AMERICAN PVERSIGHT 48 DOL-17-0281-B-000421 Case: 17-10238 Document: 00513977166 Page: 65 Date Filed: 05/02/2017 ies regarding contingent commissions in “the commercial property-casualty insurance market.” ROA.759. But “no property/casualty insurance products are subject to suitability rules.” D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice 20 (forthcoming) (ROA.6087). Similarly, DOL cited studies of the annuity and life insurance markets in Chile, Germany, and India. ROA.784–86. But studies in other countries “are not necessarily applicable to the U.S. market, where competitive and regulatory structures may be quite different.” Schwarcz & Siegelman, supra, at 10 (ROA.6077). For example, the study of life insurance sales in India found that agents often recommended “unsuitable products,” ROA.785–86 (emphasis added). Because annuity sales in the U.S. are subject to robust suitability rules, studies of products not subject to such rules do not support DOL’s claim of harms and “abuse.” See Desoto Gen. Hosp. v. Heckler, 766 F.2d 182, 185–86 (5th Cir. 1985) (rule arbitrary and capricious because agency relied on study that did not support agency’s conclusions). Indeed, as noted, one of the very studies on which DOL itself relied acknowledged that “suitability rules can help to meaningfully mitigate the risk of incompetent and selfinterested advice,” Schwarcz & Siegelman, supra, at 19 (ROA.6086).12 12 Although this article suggests that “the problem of biased advice by insurance agents is likely to be significant,” ROA.6073, it focuses on other insurance products, contains no evidence of FIA abuses, and, as noted, recognizes the general efficacy of suitability rules. VERSIGHT 49 DOL-17-0281-B-000422 Case: 17-10238 Document: 00513977166 Page: 66 Date Filed: 05/02/2017 DOL also cited “surveys conducted among life insurance professionals in 1990, 1995 and 2003,” ROA.784–85, and a study by the Financial Planning Coalition, in which approximately 42% of respondents reported “financial exploitation that involved equity-indexed or variable annuities,” ROA.769. The surveys, however, clearly predate the significant steps the states have taken in the wake of the NAIC’s 2010 enhancements to its suitability rules. And this same problem infects the Financial Planning Coalition’s 2012 study: planners were asked if they knew an older person who had been “subject[ed]” to various sales practice issues— without any time limit—and 74% identified “unsuitable products” from a list of practices.13 It cannot be that evidence of harms that occurred before the new suitability rules went into effect is valid evidence that the new rules are inadequate. Finally, DOL asserted that various “media reports and lawsuits … demonstrate the clear need for regulatory action in the annuity market.” ROA.769. But none of the cited media reports contains any evidence that existing suitability regulations have failed to prevent harms to FIA buyers. And allegations in class action lawsuits—not court judgments—are not evidence of anything. In short, none of DOL’s “evidence” supports its claim that FIA sales are inflicting losses on consumers notwithstanding existing regulation. Indeed, that DOL 13 See Certified Fin. Planner Bd. of Standards, APCO Insight, Senior Financial Exploitation Study (Aug. 2012), http://www.cfp.net/docs/news-events---supportingdocuments/senior-americans-financial-exploitation-survey.pdf?sfvrsn=0. VERSIGHT 50 DOL-17-0281-B-000423 Case: 17-10238 Document: 00513977166 Page: 67 Date Filed: 05/02/2017 felt compelled to rely on studies so out-of-date and far afield, and on assertions so irrelevant or unsubstantiated, underscores the lack of evidence of real-world harms from commission-based FIA sales. Because DOL “staked its rationale in part on a record of abuse, but that record is non-existent,” Nat’l Fuel, 468 F.3d at 843, DOL’s treatment of FIAs was arbitrary and capricious. D. At The Very Least, The Revocation Of The 84-24 Exemption For FIAs Should Be Set Aside. For the reasons set forth in the foregoing sections, all of the rules should be set aside as applied to FIAs. At a minimum, however, the revocation of the 84-24 exemption for FIAs should be set aside. The basis for subjecting FIAs to the BIC exemption is even weaker than the basis for subjecting them to fiduciary regulation in the first place, because the BIC exemption’s requirements are layered on top of not only existing suitability regulations, but also the newly enhanced protections of the 84-24 exemption, under which annuity sales are subject to DOL’s best-interest standard as well as state suitability standards. Supra pp. 6–9, 12. Having relied, in part, on the gap between a suitability and best-interest test to justify new federal regulation of FIAs, DOL was obligated to explain why the new best-interest standard in the 84-24 exemption is also inadequate to protect FIA buyers from conflicts of interest. DOL’s bare assertion that the BIC exemption’s conditions “are necessary,” ROA.559, is nothing more than the agency’s unexplained “ipse dixit,” Bus. Roundtable v. SEC, 647 AMERICAN PVERSIGHT 51 DOL-17-0281-B-000424 Case: 17-10238 Document: 00513977166 Page: 68 Date Filed: 05/02/2017 F.3d 1144, 1155 (D.C. Cir. 2011). Accordingly, to the extent FIAs are to remain subject to fiduciary regulation at all, they should be restored to the 84-24 exemption. CONCLUSION For all of the foregoing reasons, the rules should be set aside in their entirety because they rest on an interpretation of ERISA that is inconsistent with the statute’s plain meaning, properly construed, and/or is unreasonable. Alternatively, the rules’ application to FIAs, or at a minimum, the revocation of exemption 84-24 for FIAs, should be set aside as arbitrary and capricious. May 2, 2017 Respectfully submitted, /s/ Joseph R. Guerra JOSEPH R. GUERRA Counsel of Record PETER D. KEISLER ERIC D. MCARTHUR JENNIFER J. CLARK SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736-8000 Counsel for Indexed Annuity Leadership Council; Life Insurance Company of the Southwest; American Equity Investment Life Insurance Company; Midland National Life Insurance Company; North American Company for Life and Health Insurance VERSIGHT 52 DOL-17-0281-B-000425 Case: 17-10238 Document: 00513977166 Page: 69 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of May, 2017, an electronic copy of the foregoing brief was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and that service will be accomplished by the appellate CM/ECF system. /s/ Joseph R. Guerra JOSEPH R. GUERRA VERSIGHT 53 DOL-17-0281-B-000426 Case: 17-10238 Document: 00513977166 Page: 70 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS This document complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because, excluding the parts of the document exempted by FED. R. APP. P. 32(f) and Fifth Circuit Rule 32.2, this document contains 12,241 words. This document complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type-style requirements of FED. R. APP. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14 point Times New Roman font. Dated: May 2, 2017 VERSIGHT /s/ Joseph R. Guerra JOSEPH R. GUERRA 54 DOL-17-0281-B-000427 TEMPLATE II DRAFT 3/23/17 [NAME] [STREET ADDRESS] [CITY, STATE AND ZIP] Dear [NAME]: Thank you for your letter commenting on the Department of Labor’s (Department) March 2, 2017 notice in the Federal Register. The notice proposes to delay for 60 days the applicability date of the Department’s final rule and related prohibited transaction exemptions under the Employee Retirement Income Security Act on fiduciary investment advice for retirement savers. In the same notice, the Department requested public comments on the issues raised by the President’s Memorandum, dated February 3, 2017. This Memorandum directed the Department to re-examine the final rule and related exemptions that were all published last year on April 8, 2016. The Memorandum declared that one of the priorities of the Administration is to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college, and to withstand unexpected financial emergencies. The President directed the Department to prepare an updated economic and legal analysis concerning the rule’s likely impact, and instructed the Department to publish for public notice and comment a proposed rule rescinding or revising the rule if the Department determines that the rule is inconsistent with the Administration’s policies. Again, thank you for your letter, which can be viewed along with other public comments on the Employee Benefits Security Administration’s website, www.dol.gov/ebsa/. We appreciate your interest in this matter and your input on retirement issues affecting American workers and their families. A similar letter has been sent to your colleagues who co-signed the incoming letter. Sincerely, Timothy D. Hauser Deputy Assistant Secretary for Program Operations AMf-f {IC/\N pVERSIGHT DOL-17-0281-B-000428 U.S. Department of Labor Office of the Solicitor Washington, D.C. 20210 JUL 1 6 2018 Austin R. Evers American Oversight 1030 15th Street, NW, Suite 8255 Washington, DC 20005 Dear Mr. Evers: This correspondence is in further response to your Freedom oflnformation Act (FOIA) request dated July 21, 2017 (tracking numbers 836891 and 836892) wherein you requested all calendar entries for any meetings pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation ofthe "Overtime Rule" and "Fiduciary Rule," respectively. As you know, your request has been assigned to multiple DOL agency components for processing. In accordance with our FOIA regulations published at 29 C.F.R. § 70.20, when it is determined that records responsive to a request may be located in multiple components ofthe Department, the Office oflnformation Services (OIS), within the Office ofthe Solicitor, may coordinate a Departmental response. In this instance, my staff in OIS continues to work with the assigned agency components to process records deemed responsive to your request. This response contains releasable portions ofresponsive records from the Office ofthe Secretary (OSEC) that pertain to the Overtime Rule and the Fiduciary Rule. The OSEC located 190 pages ofresponsive records. We are releasing them in the following manner: • 85 pages are being released in full, and • 105 pages have been redacted in part pursuant to 5 U.S.C. § 522 (b)(6), which permits the withholding ofpersonnel, medical and similar files when disclosure ofsuch information would constitute a clearly unwarranted invasion ofpersonal privacy. Questions regarding this response can be addressed to Sharon Hudson, SOL FOIA Coordinator, by phone at 202-693-5406 or by email at hudson.sharon@dol.gov. Ifyou need any further assistance or would like to discuss any aspect ofyour request, please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks, at 202-693-5427 or by email at hicks.thomas@dol.gov. Alternatively, you may contact the Office ofGovernment Information Services (OGIS) to inquire about the mediation services they offer. The contact information for OGIS is as follows: Office ofGovernment Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. You can also reach that office by email at ogis@nara.gov, by phone at 202-741-5770, by fax at 202-741-5769, or by calling toll­ free at 1-877-684-6448. AMERICAN pVERSIGHT Although this matter is currently in litigation you retain the right to file an administrative appeal. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the grounds for the appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal, please include your mailing address and daytime telephone number, as well as a copy of the initial request and copy of this letter. The envelope and appeal letter should be clearly marked "Freedom of Information Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. The appeal should be addressed to the Solicitor of Labor, Division of Management and Administrative Legal Services, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2428, Washington, D.C. 20210 . Appeals may also be submitted via email at foiaappeal@dol.gov . FOIA appeals submitted to any other email address will not be accepted. Sincerely, Susan Harthill Deputy Solicitor for National Operations Enclosures AMERICAN PVERSIGHT Conway. Molly E - OSEC Subject: Location: Call with James,ShahiraKnight (NEC) Nick's Office Start: End: Tue 2/21/2017 5:00 PM Tue 2/21/2017 5:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Mehrens, Nathan P - OSEC Geale,Nicholas C. - SOL;Conway,Molly E - OSEC AM[ HICAN PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000001 Conway, Molly E - OSEC Subject: Location: FW:Litigation S-2002 Start: End: Mon 2/27/2017 2:30 PM Mon 2/27/2017 3:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Optional Attendees: Geale,NicholasC. - SOL Geale,NicholasC. - SOL;Mehrens,Nathan P - OSEC Conway, Molly E - OSEC Nick's office is (b)(6) Thanks. -NPM ----Orig lnal Appointment----From:Geale,NicholasC. - SOL Sent: Thursday,February23, 2017 2:33 PM To: Geale,NicholasC. - SOL; Mehrens,Nathan P - OSEC Subject: Litigation When: Monday,February27, 2017 2:30 PM-3:00PM(UTC-05:00)EasternTime (US & canada). Where: S-2002 1 AM R CAI\ PVERSIGHT DOL-17-0281-C and 17-0282-E-000002 Conway, Molly E - OSEC Subject: Location: Policy Briefing, RE-Wage & Hour Division FIUOffice: 440 First Street NW, 8th Floor Start: End: Wed 3/1/2017 9:30 AM Wed 3/1/2017 10:30 AM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Gardner,Janelle A - OSEC A Ac; Burr, Geoffrey G - OSEC;Palmer,Wayne D - OSEC;Conway, Molly E - OSEC; Categories: Travel Time Time: 9:30am- 10:30am Location: FIU Office: 440 First Street NW, 8th Floor Subject: Policy Briefing Topic/Issue: Wage & Hour Division Attire: Business Staff: Geoff & Wayne Notes/Background: POC: AMf f ICAN PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000003 Conway, Molly E - OSEC Subject: Location: Policy Briefing, RE- Fiduciary FIU Office: 440 First Street NW, 8th Floor, Suite 860 Start: End: Thu 3/9/2017 8:30 AM Thu 3/9/2017 9:30 AM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Gardner, Janelle A - OSEC Categories: Travel Time Burr, Geoffrey G - OSEC; Pal-- Time: 8:30am-9:20am. Shahira Knight needs to depart by 9:20am Location: FIU Office: 440 First Street NW, 8th Floor, Suite 860 Subject: Policy Briefing Topic/Issue: Fiduciary Rule Attire: Business Staff: Geoff/Wayne/Molly.Shahira Knight will be leading the briefing. Notes/Background: POC: AMf ICAN pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000004 Conway, Molly E - OSEC Subject: FiduciaryCalls Start: End: Mon 5/22/2017 4:00 PM Mon 5/22/2017 5:00 PM Recurrence: (none) Organizer: Conway,Molly E - OSEC Categories: Red Category AMf f \ICAN pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000005 Conway, Molly E - OSEC Subject: Location: Fiduciary Meeting CesarChavezAuditorium - CONFIRMED Start: End: Tue 5/30/2017 11:00 AM Tue 5/30/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Geale,Nicholas C. - SOL Conway,Molly E - OSEC Categories: Red Category ).. Confirmation-3 .•• AM HICA\J pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000006 Conway, Molly E - OSEC Subject: Location: Fiduciary Meeting CesarChavezAuditorium - CONFIRMED Start: End: Tue 5/30/2017 3:00 PM Tue 5/30/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Geale,Nicholas C. - SOL Conway,Molly E - OSEC Categories: Red Category ).. Confirmation-3 ... AM HICA\J pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000007 Conway, Molly E - OSEC Subject: Location: CongressionalFiduciaryMeeting 2261 RyaburnHOB Start End: Tue 6/6/2017 3:30 PM Tue 6/6/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Optional Attendees: Acosta,Alexander - OSEC RAAcosta ~dot.gov); zzoasam-dpo-agents;zzOSEC-SCHEDULING-ANDADVANCE;Conway,Molly E - OSEC;Geale,NicholasC. - SOL Gardner,JanelleA - OSEC;Jennings,Alexandra - OASAM Security Center; Davis,Clinton J - OASAMSecurityCenter;Downey, DanielW - OASAM Security Center;Pipkins, CharlesP - SecurityCenter;McDaniel,Keshia- OSEC;Mannix, Patrick M - OSEC;Vilca, JosephH. - OSEC;Aivazis,EliasK - OASAM SecurityCenter Categories: Red Category Time: 3:30pm-4:00pm Location: 2261 Rayburn HOB Subject: CongressionalFiduciary Meeting Topic/Issue: Attire: Business Staff: Molly Notes/Background: MoC's attending: Rep.DavidRoe(TN-01) Rep.Tim Walberg (Ml-07) Rep. Bill Huizenga(Ml-02) Rep.Ann Wagner (MO-02) Rep. Peter Roskam(IL-06) Rep.Tom Graves(GA-14) Rep.Virginia Foxx(NC-OS)-Chairwoman, House Education & Workforce Committee Rep.Jeb Hensarling(TX-OS)- Chairman, House FinancialServicesCommittee Rep. Kevin Brady (TX-08)- Chairman, HouseWays & Means Committee Rep. RodneyFrelinghuysen(NJ-11)- Chairman, House Appropriations Committee This list includesthe six Members who signed the letter, along with the four committee chairs Cc'd on it. POC: Foxx•s scheduler-Rochelle Colburn,(b)(G) AMf f~ICAN PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000008 Conway, Molly E - OSEC Subject: Location: Meeting: Wells Fargo (fiduciary) fishbowl Start: End: Thu 6/29/2017 11:30 AM Thu 6/29/2017 12:30 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: RequiredAttendees: Conway, Molly E - OSEC Geale, Nicholas C. - SOL Categories: Molly Meetings, Red Category From: Sent: To: Friday, June 23, 2017 11:10 AM Conway, Molly E - OSEC Cc: Subject: Categories: Red Category Hi Molly, I wanted to let you know that I will be out of the office next week but if you have any questions prior to next Thursday's meeting with Wells Fargo please feel free to contact Matthew Hoffman who I have copied on this email. His telephone number is (b)(6) The Wells Fargo participants for next Thursday's meeting at 11:30 am are flying into DC Wednesday evening and will go to the Department of Labor's front desk. I have asked them to arrive prior to 11:30 am as my experience is it sometimes takes a little time to check in and go through security. Once again, thank you for meeting with us and have a great weekend . Thank you, Bob AM f ICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000009 Robert J. McCarthy Senior Vice President and Director of Regulatory Policy One North Jefferson Avenue St. Louis, MO. 63103 Tel: Fax: (b)(6) (b)(6) From: McCarthy, Robert Sent: Thursday, June 22, 2017 4:16 PM To: 'Conway, Molly E - OSEC' Cc: Meyer, Brand; McHale, Jim Subject: RE: Meeting Request - DOL Conflict of Interest rule Hi Molly, Sorry for the serial emails but I have attached bios for the Wells Faro personnel you will be meeting with next Thursday. I also attached a copy of our latest comment letter to the DOL on the Conflict of Interest rule submitted on April 17, 2017 (the 150 pages plus of appendices consisting of our prior comment letters were deleted}. Please feel free to contact me with any questions. Thank you, Bob Robert J. McCarthy Senior Vice President and AMf f \ICAN pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000010 Director of Regulatory Policy One North Jefferson Avenue St. Louis, MO. 63103 Tel (b)(G) Fax: (b)(6) AM~ HICA\J pVERSIGHT 3 DOL-17-0281-C and 17-0282-E-000011 Conway, Molly E - OSEC Subject: Location: Meeting with Fidelity CEO-Abby Johnson Secretary'sOffice Start: End: Thu 7/6/201711:00 AM Thu 7/6/2017 11:30 AM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Acosta,Alexander - OSEC Acosta, Alexander - OSEC;RA Acosta -@dol.gov); zzoasam-dpo-agents; zzOSEC-SCHEDULING-AND-ADVANC Conway, E; Molly E - OSEC;Geale,NicholasC. SOL Gardner,JanelleA - OSEC;Jennings,Alexandra - OASAM Security Center;Pipkins, CharlesP - SecurityCenter; Downey, Daniel W - OASAM Security Center;Vilca, Joseph H. - OSEC;Davis,Clinton J - OASAM SecurityCenter; Green, Brandon L - OASAM Security Center;Aivazis,EliasK - OASAM Security Center, Darling, Kevin E - OASAM Security Center; McDaniel,Keshia- OSEC;Mannix, Patrick M - OSEC;Hoffman, Emily E OSEC Optional Attendees: Categories: Red Category Time: 11:00am-11:30am Location: Secretary's Office Subject: Meetingwith Fidelity CEO Topic/Issue: Fiduciary Attire: Business Staff: Molly/Nick Notes/Background: Attendees: Jonathan Chiel-General Counsel JJ Johnson,EVP Publics Affairs and Policy POC: Pamela Everhart cell,(b)(6) AMf f~ICAN PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000012 Conway, Molly E - OSEC Subject: Location: Meeting: Morgan Stanley (fiduciary) fishbowl Start: End: Fri 7/14/201711:00AM Fri 7/14/2017 12:00 PM Recurrence: (none) Organizer: Conway, Molly E - OSEC Categories: Molly Meetings From: Sent: To: Subject: Follow Up Flag: FlagStatus: Follow up Flagged Categories: Red Category Molly, can we lock in 11 on the 14th? Anne Cooney (Morgan Stanley wealth management general counsel) and Michael Stein (Global Head of Government Relations) will attend. Thanks very much for sticking with me here. Hope you have a happy 4th! . .. Mathew P. Lapinski tegies LLC (b)(6) - On Jun 30, 2017, at 9:07 AM, Conway, Molly E- OSEC wrote: Sure - 11am either day? On: 30 June 2017 09:02, "Mat Lapinski" Asked me to check on the 14th or the 18th • AM f ICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000013 Either of those doable? Mathew P. Lapinski CrossroadsStrategies, LLC (b)(G) I ' From: Conway, Molly E - OSEC [mailto:Conway.Molly.E@dol.gov] Sent: Wednesday,June 28, 2017 9:00 PM To: Mat Lapinski Subject: RE: Wayne Palmer How about Noon on the 10th? From: Mat Lapinski [mailt Sent: Wednesday,June 28, 2017 2: To: Conway, Molly E - OSEC Subject: RE: Wayne Palmer Friday is a no go for them. Any chance we can look at the week of the 10th? Again, sorry to be difficult. Mathew P. Lapinski CrossroadsStrategies, LLC AM f ICA\J pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000014 (b)(6) From: Conway, Molly E - OSEC [mailto:Conway.Molly.E@dol.gov] Sent: Tuesday, June 27, 2017 8:13 PM To: Mat Lapinski Subject: Re: Wayne Palmer My fault as well! On: 27 June 2017 20:05, "Mat Lapinski" wrote: Let me check. Sorry for all the back and forth here Mathew P. Lapinski Crossroads Strategies LLC 202.499.4787 > On Jun 27, 2017, at 6:50 PM, Conway, Molly E - OSEC wrote: > > This Friday at 2:00pm? > > ----Original Message--> From: Mat Lapinski [mailto > Sent: Tuesday, June 27, 2017 9:01 A > To: Conway, Molly E- OSEC > Subject: RE: Wayne Palmer > > Molly, > > Rather not shoehorn it in. > > You have any time the week of July 10? > > Thanks again. > > Mathew P. Lapinski > Crossroads Strategies, LLC > > AMf ICAN pVERSIGHT 3 DOL-17-0281-C and 17-0282-E-000015 > ----Original Message----> From: Conway, Molly E - OSEC [mailto:Conway.Molly.E@dol.gov] > Sent: Monday, June 26, 2017 9:59 PM > To: Mat Lapinski > Subject: RE: Wayne Palmer > > How about 11:00am on Thursday? I will only have about 20 minutes. When you arrive at OOL (3rd and C Street NW entrance) please tell the security desk you have a meeting with Molly in OSEC and someone will come down to get you. > > Thanks! > > Molly > > ---Original Message--> From: Mat Lapinski [mailt > Sent: Monday, June 26, 2017 1:23 P > To: Conway, Molly E- OSEC > Subject: RE: Wayne Palmer > > Don't have any time this Thursday, do you? > > Otherwise can make wed at 10:30 work > > Mathew P. Lapinski > Crossroads Strategies, LLC > > > > > ---Original Message----> From: Conway, Molly E - OSEC [mailto:Conway.Molly.E@dol.gov] > Sent: Monday, June 26, 2017 7:47 AM > To: Mat Lapinski > Subject: RE: Wayne Palmer > > Hey Mat - Happy to meet. I can do 10:30 on Wednesday or I'm pretty free next week (the week of the 3rd). Please let me know what works best. > >Molly > > -Original Message> From: Mat Lapinski > Sent: Wednesday, une , > To : Conway, Molly E - OSEC > Subject: Re: Wayne Palmer > > Hey, > > Sort for the delay. Was waiting to hear back from them as to who would be in it. > AM RICA\J pVERSIGHT 4 DOL-17-0281-C and 17-0282-E-000016 > Michael Stein is their Global Head of Government Relations. He'll be joined by Anne Cooney, who is the GC of Morgan Stanley Wealth Management. > > Primary purpose of the meeting is to introduce themselves and open up the lines of communication between the Dept and MS. Will likely want to discuss fiduciary rule and a few other things. > > Happy to work around your schedule should you have time. > > Thanks in advance for your consideration. > > Best, > Mat > > Mathew P. Lapinski > Crossroads Strategies LLC > (b)(6) > >> On Jun 20, 2017, at 5:53 AM, Conway, Molly E - OSEC wrote: >> >> Happy to meet. What's the topic? >> >> ---Original Message-->> From: Mat Lapinski [mailto >> Sent: Tuesday, June 20, 2017 8:48 >> To: Conway , Molly E - OSEC >> Subject: Re: Wayne Palmer >> >> Thanks Molly. I think Morgan Stanley would like to come in. You taking outside Mtgs? >> >> If so, happy to provide some additional background for you. >> >> Thanks a bunch I >> >> Mathew P. Lapinski I • I >> I ategies LLC (b)(6) - >> >> >>> On Jun 20, 2017, at 8:44 AM, Conway, Molly E- OSEC wrote: >>> >>> Hi Matt >>> >>> I hope you are well, as well. Wayne is not currently taking any outside meetings, he's focused on staffing up and internal erg. Is there something with which I can help? >>> >>> Happy Tuesday! >>> >>> Molly >>> >>> Molly Elizabeth Conway >>> Deputy Chief of Staff AM RICAN PVERSIGHT 5 DOL-17-0281-C and 17-0282-E-000017 >>> Office of the Secretary >>> Department of Labor >>> >>> Direct: (202) 693-6000 >>> conway.molly.e@dol.gov >>> >>> >>> ----Original Message->>> From: Mat Lapinski [mailto >>> Sent: Monday, June 19, 2017 4:06 P >>> To: Conway, Molly E - OSEC >>> Subject: Wayne Palmer >>> >>> Molly, >>> >>> Hope you are well. Sorry to bug you, but wanted to see if you had Wayne's email. >>> >>> A colleague of mine asked for it. If you aren't comfortable providing that, can you shoot le his assistant's info. >>> >>> Thanks very much, and again, sorry to bug you. >>> >>> Mathew P. Lapinski >>> Crossroads Strategies LLC >>> (b)(6) AMERICAN PVERSIGHT 6 DOL-17-0281-C and 17-0282-E-000018 Conway, Molly E - OSEC Subject Meeting: New York Life (Fiduciary) fishbowl Location: Start: End: Tue 7/18/20171 :00 PM Tue 7/18/2017 1:30 PM Recurrence: (none) Organizer: Conway,Molly E - OSEC Categories: Molly Meetings From: Sent: To: Subject: Annie Palisi Monday, July 10, 2017 11:20 AM Conway, Molly E - OSEC New York Life Meeting Requestw/ Conway Molly, I would like to request a meeting with you on the behalf of Julie Herwig and Alison O'Donnell of New York Life. They understand you won't be able to talk about fiduciary rule, but would still like to introduce themselves and get a sense of the Department's lifetime income initiatives. Below is their availability, thank you for your consideration. Mon. 7/17: 3-5 pm Tues. 7/18: 1-2 pm Mon. 7/24 1:30-3 Thurs. 7/27: 9 am- 12 pm Mon. 7/31: 1:30-5 pm Tues. 8/1: 10 am- 12 pm or 1-5 pm Thurs: 8/3: 9 am- 12 pm or 1-5 pm Fri. 8/4: 9-11 am AM f ICA\J pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000019 Thanks, Ap AnniePalisi Invariant (b)(6) (b)(6) 0 M AM HICA'\J PVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000020 Conway, Molly E - OSEC Subject: Location: Meeting: American Retirement Association (fiduciary) fishbowl Start: End: Wed 7/26/2017 11:00 AM Wed 7/26/2017 11:30 AM Recurrence: (none) Meeting Status: Meeting organizer Organizer. Required Attendees: Conway, Molly E - OSEC Geale, Nicholas C. - SOL Categories: Molly Meetings From: Sent: To: Subject: Warren Tryon Friday, July 21, 2017 3:07 PM Conway, Molly E - OSEC Re: American Retirement Association - appointment request Perfect! Thank you very much! Sent from my iPhone > On Jul 21, 2017, at 3:03 PM, Conway, Molly E - OSEC wrote: > > Hi Warren - How about 11:00am on the 26th? > > Thanks, > >Molly > > -----Original Message---> From: Warren Tryon > Sent:Friday,July 21, 2017 9:35 AM > To: Conway, Molly E - OSEC > Subject: FW: American Retirement Association - appo intment request > > Molly, > > Just checking in to see if you have sometime next week for a meeting with the CEO of ARA. Thank you so much Molly. > > Warren > > -----Orig inal Message----> From: Warren Tryon > Sent: Wednesday, July 19, 2017 4:47 PM 1 AMf f ICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000021 > To: Conway.Molly.E@dol.gov > Subject: American Retirement Association - appointment request > > > >Molly, > > I used work with Kyle Fortson many years ago. Congrats on your DOL appointment. > > Was wondering if you have some time to meet with Brian Graff, CEOof the American Retirement Association some time this Tuesday 7/25 afternoon or anytime Wednesday 7/26? It will be on the DOL fiduciary rule. Thank you very much. > >Warren > Warren Tryon > Capitol Counsel LLC (b)(6) AMf f \ICAN pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000022 Conway, Molly E - OSEC Subject: Location: PHONECALLwith MO CEO's,RE- Fiduciary Phone, Secretary Start: End: Fri 8/4/2017 1:00 PM Fri 8/4/2017 1:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Acosta, Alexander - OSEC Acosta, Alexander - OSEC;RA Acosta; zzoasam-dpo-agents; zzOSEC-SCHEDULINGAND-ADVANCE;Conway, Molly E - OSEC;Geale,Nicholas C. - SOL Gardner,JanelleA - OSEC;Jennings,Alexandra - OASAM Security Center; Pipkins, Charles P - Security Center; Davis,Clinton J - OASAM Security Center; Darling, Kevin E OASAM Security Center; Aivazis,EliasK - OASAM Security Center; Vilca, Joseph H. OSEC;McDaniel, Keshia- OSEC;Hoffman, Emily E - OSEC;Downey, Daniel W - OASAM Security Center; Lineberger,Timothy L - OSEC Optional Attendees: Time: 1:00pm-1:30pm. CALL (b)(6) Location: Secretary's Office Subject: Call w/ Missouri CEO's Topic/Issue:Fiduciary Attire: Business Staff: Molly/Nick Notes/Background:I POC: Tracy Henke, : i, .• Moderator:TBD: S Participants • Jim Weddle, Managing Partner of Edward Jones • David Kowach,President, Wells Fargo Advisors • Tad Edwards,CEO of Benjamin F. Edwards • Ron Kruszewski,Chairman of the Board and CEO of Stifel, Nicolaus & Company and Stifel Financial Corporation Not confirmed • Rodger Riney, CEO and founder ofScottrade • Tim Hockey,CEO of TD Ameritrade I Agenda First, welcome everyone once they are dialed in. I will then call on each participant by name to introducethemselvesso the Secretaryknows who is on the call. Second,call on each participantby name to take 1-2 mins to talk about how the fiduciary rule is impactingtheir ability to serve clients and pose questions to the Secretary. Finally,turn the call over to the Secretaryto answer the questions posed to him, and give him an opportunityto provide an update on DOL's implementation of the rule. 1 AMf HICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000023 Jones, Tiffany - ASP Subject: Location: EBSAMeeting S-2203ASAMOffice Start Fri 2/3/2017 2:30PM End: Fri2/3/2017 3:00PM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Hugler,Edward- ASAM Hauser,Timothy - EBSA;Palmer,WayneD - OSEC;Burr,GeoffreyG - OSEC;Mehrens, Nathan P - OSEC AM HICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000024 Jones, Tiffany - ASP Subject Location: Start: DOJI White HouseCall S-2203ASAMOffice/ ConferenceCall End: Wed 2/8/2017 10:30AM Wed 2/8/2017 11:00 AM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Hugler,Edward• ASAM Robins,Douglas• ASAM;Harthill,Susan• SOL;Hugler, Edward• ASAM;Mehrens, NathanP - OSEC;Burr,GeoffreyG - OSEC Pleasesee the call-in number below: • Call-InNumber:(b)(6) • ParticipantPasscode: - AMf f~ICAN PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000025 Jones,Tiffany - ASP Subject Location: Start: Oversight Meeting: House Committeeon FinancialServicesFiduciaryLetter S-2203OASAMConferenceRoom End: Thu 5/4/2017 3:30 PM Thu 5/4/2017 4:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Yerxa,ChristopherW - ASAM Verxa,ChristopherW - ASAM;Hauser,Timothy - EBSA;Khawar,Ali • EBSA;Page,Emily• OASAMDBC;Swirsky,Stephanie• ASP;Rooney,Nancy - OSEC;Harthill,Susan• SOL; • Barr,G. Stephen- OPA;Allen-Holmes,Tiffany - EXECSEC; Mehrens,Nathan P - OSEC ; Contact - OASAM Scott. William - SOL;Way, Elizabeth- EXECSEC; Trupo, Michael • OPA;Rogers,Jillian B OSEC OptionalAttendees: Pleaseinvite appropriate staff m 2017-04-28JHto OOLregarding_ AM HICA\J pVERSIGHT l DOL-17-0281-C and 17-0282-E-000026 JI l:l 111NSARI ING, rx.CHAIRMAN Umtrd.Smtrnt'lounc or]{rprcscnmrm rn MAXINE WAl HS. CA HANl, "Campau, Anthony P. EOP/OMB" =o~v>, "Doyle, Emma K. EOP/OMB" omb.eo . ov>, "Sellers, Douglas C. EOP/OMB" omb.eo . ov>, "Swirsky, Stephanie - ASP" ===~· Subject: OMB/SIFMAmeeting on DOL final rule, "Def"mitiooof the Tenn Fiduciary Delay of ApplicabilityDate" This E.O. 12866 meeting was requested by Dave Oxner, SIFMA. Participant Dial-In: Participant Code: AM HICA'\J PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000042 Jones,Arion J - SOL Subject Location: Start E.O. 12866 Meeting on Definition of the Term "Fiduciary" - Delay of Applicability Date 1800 G Street, NW, 9th floor - conference room 1 Show Time As: Fri 3/31/2017 4:00 PM Fri 3/31/2017 4:30 PM Tentative Recurrence: (none) Meeting Status: Tentatively accepted Organizer: Echols, Mabel E. EOP/OMB End: 1 AMf f~ICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000043 Jones.Arion J - SOL Subject Location: E.O.12866 Meeting on Definition of the Term "Fiduciary" - Delay of Applicability Date 1800 G Street, NW, 9th floor - conference room 1 Start End: Mon 4/3/2017 1:00 PM Mon 4/3/2017 1:30 PM Recunence: (none) Meeting Status: Accepted Organizer: Echols, Mabel E.EOP/OMB This m~uested Call-in:~ AMf f~ICAN PVERSIGHT b JasmineVas~uez,AARP. code 1 DOL-17-0281-C and 17-0282-E-000044 Jones,Arion J - SOL Subject Location: Retail Exemption S-2002,Dial in (b )(6) Start: End: Fri 4/7/2017 10:30AM Fri 4/7/2017 11:00 AM Recurrence: (none) Meeting Status: Meeting organizer Organizer: RequiredAttendees: Geale,Nicholas C. - SOL Geale,Nicholas C. - SOL;Harthill, Susan- SOL;Rosenthal,Ann - SOL;Sieger, Edward SOL James,Charles- SOL;Goodman, Lauren - SOL Optional Attendees: AM~ HICA'\J PVERSIGHT , Participant Code: 1 DOL-17-0281-C and 17-0282-E-000045 Jones,Arion J - SOL Subject Meeting with Fidelity Representatives-- COi Location: N5677 Start: End: Thu 5/4/2017 1:00 PM Thu 5/4/2017 2:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Required Attendees: Hauser,Timothy - EBSA Hauser,Timothy - EBSA;Canary,Joe - EBSA;Campagna,Lou - EBSA;Hall, Lyssa- EBSA; Lloyd, Karen- EBSA;Piacentini,Joseph - EBSA;Cosby,Chris - EBSA;Scott, William - SOL; Hansen,Megan D - SOL;Geale,Nicholas C. - SOL Craig,James- SOL;Turner, Jeffrey - EBSA OptionalAttendees: AM HICA\J pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000046 Jones,Arion J - SOL Subject call with financial services Start End: Mon 5/8/2017 4:00 PM Mon 5/8/2017 4:30 PM Recurrence: (none) Organizer: Geale,NicholasC. - SOL 1 AM HICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000047 Jones,Arion J - SOL Subject Location: Overtime Meeting S-2002, Dial in number: (b)(6) Start: End: Thu 5/25/2017 1:00 PM Thu 5/25/2017 2:00 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Geale,Nicholas C. - SOL Geale,Nicholas C. - SOL;Harthill, Susan- SOL;Brand,Jennifer S. - SOL;McIntosh, Lynn SOL;Ziegler, Mary G - WHO; PatriciaDavidson (Davidson.Patricia@dol.gov);Swirsky, Stephanie - ASP;Gardiner, StevenW - SOL;Smith, Melissa- WHO Frieden, Paul - SOL;Larkin,JessicaK - ASP Optional Attendees: AMf f~ICAN PVERSIGHT Participant Code: 1 DOL-17-0281-C and 17-0282-E-000048 Jones,Arion J - SOL Subject Location: OT Litigation Options S-2002 Start End: Fri 6/16/201711:00 AM Fri 6/16/2017 11:45 AM Recurrence: (none) Mee ting Status: Meeting organizer Organizer: Required Attendees: Geale,Nicholas C. - SOL Harthill, Susan- SOL;Brand, Jennifer S. - SOL;Frieden,Paul - SOL;Gardiner,StevenW SOL;McIntosh, Lynn - SOL;Grauman,JesseZ - SOL AMf f~ICAN PVERSIGHT l DOL-17-0281-C and 17-0282-E-000049 Jones.Arion J - SOL Subject location: Overtime Rule Litigation S-2002 Dial in numbe,_ Start: End: Wed 6/21/2017 10:30 AM Wed 6/21/201711:00 AM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Geale, Nicholas C. - SOL Bissell, Katherine - SOL (Bissell.Katherine@dol.gov); Brand, Jennifer S. - SOL; Sieger, Edward - SOL Frieden, Paul - SOL; Gardiner, Steven W - SOL; McIntosh, Lynn - SOL Optional Attendees: Jennifer, please forward to anyone else from your team that should be included in this discussion. AMf f ICAN PVERSIGHT l DOL-17-0281-C and 17-0282-E-000050 Jones.Arion J - SOL Subject Location: (b)(6) Start: End: Thu 8/10/2017 11:00 AM Thu 8/10/2017 12:00 PM Recurrence: (none) Meeting Status: Accepted Organizer: Klein,Alisa (CIV) overtime rule Passcode: (b)(6) Passcode: AM HICA'\J PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000051 Jones,Arion J - SOL Subject: Location: Start Agency Briefing - EBSA Secretary'sConferenceRoom End: Wed 8/16/201711:00 AM Wed 8/16/2017 11:30 AM Recurrence: (none) Meeting Status: Accepted Organizer: RequiredAttendees: Acosta,Alexander - OSEC RA Acosta;zzOSEC-SCHEDULING-AND-ADVANzzoasam-dp CE; o-agents;Conway, Molly E - OSEC;Hauser,Timothy - EBSA;Canary,Joe - EBSA;Turner,Amy - EBSA;Capolongo, Mabel - EBSA;Geale,NicholasC. - SOL;Connor, Mark - EBSA;Khawar,Ali - EBSA; Marchand,Becki- EBSA McDaniel,Keshia- OSEC;Jennings,Alexandra- OASAM SecurityCenter; Pipkins,Charles P - SecurityCenter; Darling, Kevin E - OASAMSecurityCenter;Vilca,Joseph H. - OSEC; , • OASAMSecurityCenter; Downey,Daniel W - OASAMSecurity Center; Aivazis,EliasK - OASAMSecurityCenter; Harris,Antoinette - OASAMSecurity Center; Hoffman, Emily E - OSEC;Allende, Pedro M - OSEC;Lineberger,Timothy L - OSEC; Gardner,JanelleA - OSEC Optional Attendees: Time: 11:00 am - 11:30am. CAL~. attendees will use participants passcode below. Location: Secretary's Office Subject: Agency Briefing - EBSA SecretaryAcosta will dial in using leader passcode and Topic/Issue: Attire: Business Staff: Nick Notes/Background: Call-in number: (b)(6) Passcodes: Leader (Secretary's dial-in) Participants (Attendees below dial-in): POC: Tim Hauser Attendees (In-Person): • Tim Hauser, Deputy Assistant Secretary for Program Operations,EBSA Front Office • • • • Joe Canary Elizabeth Schumacher Mabel Capolongo Mark Connor • AliKhawar • Becki Marchand 1 AMf ICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000052 Regional Office Participants (via phone): • Jean Ackerman, San Francisco • Susan Hensley, Boston • Jonathan Kay, New York • Crisanta Johnson, Los Angeles • Deborah Perry, Dallas • Jim Purcell, Kansas City • Joe Rivers, Cincinnati AM~ HICA'\J PVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000053 Jones, Arion J - SOL Subject: Location: S-2002 Start: End: Fri 8/25/2017 3:00 PM Fri 8/25/2017 3:30 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Geale, Nicholas C. - SOL DOL Fiduciary Good Afternoon Jessica Renier, I have confirmed a 3:00pm meeting on Acting Solicitor Nick Geale's calendar for August 25th and have sent an Outlook invitation to your calendar. Please come to the following address: U.S Department of Labor Office of the Solicitor ZOOConstitution Avenue, N.W. RoomS-2002 Washington, DC 20210 Come to the Visitor's Entrance located on 3rd Street and check in at the Security Desk. Next you will go through security screening and hand the guard their ID. After that you will be issued a visitor's pass and finally they can have the guard call 202-693-5260 and someone will come down to escort them to the conference room where the meeting will take place. Thank you We look forward to seeing you on August 25 th • 1 AM HICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000054 Jones. Arion J - SOL Subject Location: Start Overtime check-in / Passcode: (b)(6) End: Fri 9/29/2017 1:00 PM Fri 9/29/2017 1:30 PM Recurrence: (none) Meeting Status: Accepted Organizer: Amin, Stacy C. EOP/WHO AM~ HICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000055 Verxa, Christopher W - ASAM Subject: Location: Meeting with Senator Sherrod Brown (D-OH) 713 Hart SoB Start: End: Show Time As: Tue 7/11/2017 4:15 PM Tue 7/11/2017 4:45 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: RequiredAttendees: Acosta, Alexander - OSEC RA Acosta; zzoasam-dpo-agents; zzOSEC-SCHEDULING-AND-ADVANCE;Conway, Molly E - OSEC;Geale, Nicholas C. - SOL; Hazelton, Jennifer - OSEC (hazeltonJennifer@dol.gov) Gardner, Janelle A - OSEC;Pipkins, Charles P - Security Center; Vilca Joseph H. - OSEC; Jennings, Alexandra - OASAM Security Center, Davis, Clinton J - OASAM Security Center Optional Attendees: Categories: Testimony Time: 4: 1Spm- 4:45pm Location: 713 Hart Subject: Meeting with Senator Sherrod Brown (D-OH) Topic/Issue: Follow-up to their phone call on June 81h,RE- OT, Fiduciary, ILAB and Restaurant Associates issues. Attire: Business Staff: Nick/(MollyFYI) Notes/Background: Nora Todd will be staffing the Senator. POC: Dianna Brown Advance Staff: DoL Photographer: From:Todd, Nora (Brown) Sent: Friday, June 09, 2017 To: Conway,MollyE - OSEC Subject: RE:Callwith Secretary Acosta Hi Molly- I just wanted to follow up on yesterday's call with the Secretary and the senator. Senator Brown thought it was a really good call and appreciated the Secretary taking the time to discuss all the issues that he raised . As a note for you, in addition to the overtime and fiduciary rule s, the senator did raise the ILAB and Restaurant Associates issues I flagged for you in advance . They also bot h expressed int erest in try ing t o fi nd t ime fo r a face to face meet ing in th e uture. Since th e senator had the opport unity to raise severa l issues on yest erday's call, I don't know t hat it is urgen t , but the senat or is interes t ed in meet ing w ith him w henever he has t ime. Sincerely , Nora AM[ HICAN PVERSIGHT 47 DOL-17-0281-C and 17-0282-E-000056 Yerxa, Christopher W - ASAM Subject: Location: Phone Call with Senator Sherrod Brown (D-OH} Phone,Secretary'sOffice Start: End: Show Time As: Thu 6/8/2017 1:30 PM Thu 6/8/2017 1:45 PM Tentative Recurrence: (none} Meeting Status: Not yet responded Organizer: RequiredAttendees: Acosta,Alexander - OSEC RA Acosta ; zzoasam-dpo-agents;zzOSEC-SCHEDULING-ANDADVANCE;Conway, Molly E - OSEC Time: I :30pm- I :45pm. Please call the Senator's cell, Location: Phone, Secretary's Office Subject: Phone Call with Senator Sherrod Brown (D-OH) Topic/Issue: Overtime & Fiduciary Attire: Business Staff: Molly Notes/Background: POC: Diana Brown- Director of Scheduling, AM[ HICAN PVERSIGHT 67 DOL-17-0281-C and 17-0282-E-000057 Yerxa, Christopher W - ASAM Subject: Location: Meeting with Preston Rutledge and JeanneWilson Secretary'sOffice Start: End: Show Time As: Wed 3/21/2018 3:00 PM Wed 3/21/2018 3:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC RA Acosta;zzOSEC-SCHEDULING-AND-ADVANCE; zzoasam-dpo-agents;Geale, Nicholas C. - OSEC;Allende, Pedro M - OSEC;OScannlain,Kate S - SOL; Rutledge, Preston - EBSA;Wilson, Jeanne- EBSA;Dorey, David R - SOL Time: 3:00pm-3:30pm Location: Secretary's Office Subject: Meeting with Preston Rutledge and Jean Wilson Topic/Issue: Fiduciary Attire: Business Staff: Nick/Pedro/Kate/David Notes/Background: POC: Emily Hoffinan AM~ HICA'\J PVERSIGHT 4 DOL-17-0281-C and 17-0282-E-000058 Verxa, Christopher W - ASAM Subject: Location: Meeting with Dave Dorey, Nick Geale, and Tim Hauser Secretary's Office Start: End: Show Time As: Tue 10/31/2017 2:30 PM Tue 10/31/2017 3:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: RequiredAttendees: Acosta, Alexander - OSEC RA Acosta g>dol.gov);zzoasam-dpo-agents; zzOSEC-SCHEDULING-ANDADVANCE; Geale, Nicholas C. - SOL; Dorey, David R - SOL; Hauser, Timothy - EBSA Time: 2:30pm- 3:00pm Location: Secretary's Office Subject: Meeting with Dave Dorey, Nick Geale, and Tim Hauser Topic/Issue: Fiduciary Attire: Business Staff: Nick/ Dave/ Tim Notes/Background: POC: Emily Hoffman AM~ HICA'\J PVERSIGHT 7 DOL-17-0281-C and 17-0282-E-000059 Yerxa, Christopher W - ASAM Subject: Location: Meeting with SIFMA Secretary'sOffice Start: End: Show Time As: Tue 10/31/201711:00AM Tue 10/31/2017 11:30AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC Acosta,Alexander - OSEC;RA Acosta;zzoasam-dpo-agents;zzOSEC-SCHEDULINGAND-ADVANCE;Conway,Molly E - OSEC;Geale,Nicholas C. - SOL;Allende, Pedro M OSEC Lineberger,Timothy L - OSEC;Hoffman, Emily E - OSEC;Darling, Kevin E - OASAM Security Center;Davis,Clinton J - OASAM SecurityCenter;Vilca, Joseph H. - OSEC; Pipkins,CharlesP - OASAM Security Center; McDaniel,Keshia- OSEC;Downey, Daniel W - OASAMSecurity Center Optional Attendees: Time: 11:00am- 11:30am Location: Secretary's Office Subject: Meeting with SIFMA Topic/Issue: Fiduciary Attire: Business Staff: Molly/ Nick/ Pedro Notes/Background: POC: Lisa Bleier, Attendees: Lisa Bleier, Managing Director and Associate General Counsel Ken Bentsen, President and CEO ~ [UntltledL20171... AM HICA'\J PVERSIGHT 12 DOL-17-0281-C and 17-0282-E-000060 SECRETAROF Y LABOR EVENTINFORMATION REQUESTFORM INSTRUCTIONS: Please fill out this form with as ,much information as possible as It relates to your request. Upon completion, please email it to~ . Should you have any questions, please do not hesitate to contact Secretary Acosta's scheduling office at (202)693-6003 . Thank you! General Information Event Name: Meeting between SIFMA CEO Ken Bentsen and Secretary of Labor Acosta Name of reque st ing SIFMA CEO Ken Bentsen and Lisa Bleier (Managing Director) organization OR individual : Event Date(s) & Time (s): . a time to be worked out based on the Secretary's schedule. Proposed date & time Any time between 1 and S pm on Sept. 25 or for the Secretary's Any time between 9 am and noon on Sept. 27 participation: Event Location (city/state): Secretary's office at DOL in Washington, DC Specifically what are you askingof the Secretary (Keynote, Speak, Meet, Meet for 30 minutes. Tour, Q&A, Roundtable, etc.)? If speaking, proposed duration?: Topic(s) to be discussed and/or spoken about: The Department of Labor's fiduciary rule. POC (please include email, direct line and cell): POCfor day of: and office phone number: [DJim and Lisa Bleier - same as above 1 AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000061 Venue Information Event Venue: Venue Address and Phone Number : Event Room Name/ Floor/Number: Program Information Agenda for Secretary's Portion of the Program IPlease attach agenda to include all speakers (Be sure to include name/ title of person introducing the Secretary) Event Speakers I List name, title, organization of all other event speakers Press I Open or Closed, Photographer available, Will event be recorded or broadcast? Audience Size Expected Size: VIP Attendees I List name, title, Describe Event/Room Setup AMERICAN PVERSIGHT organization etc: I Stage, teleprompter, podium, audience setup, seating arrangement, etc: DOL-17-0281-C and 17-0282-E-000062 Miscellaneous Event Attire: Should you plan to present the Secretary with any gifts or mementos, please identify them and their approximate value, so we can determine their compliance with ethics: I Additional comments/information: INTERNAL USE ONLY: Scheduling conflicts: SOLApproval: Agency vetting results: R: 3 AMERICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000063 Verxa, Christopher W • ASAM Subject: Location: Meeting with SecuritiesIndustry and FinancialMarkets Association (SIFMA) Secretary'sOffice Start: End: Show Time As: Tue 10/31/2017 11:00AM Tue 10/31/2017 11:30AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta; zzoasam-dpo-agents;zzOSEC -SCHEDULING - AND-ADVANCE;Conway, Molly E - OSEC;Geale,Nicholas C. - SOL;Allende, Pedro M - OSEC Lineberger,Timothy L - OSEC;Hoffman, Emily E - OSEC;Darling. Kevin E - OASAM Security Center;Davis,Clinton J - OASAM Security Center;Vilca,Joseph H. - OSEC; Pipkins,CharlesP - OASAM Security Center; McDaniel, Keshia- OSEC;Downey, Daniel W - OASAM SecurityCenter Optional Attendees: Time: 11:00am- 11:30am Location: Secretary's Office Subject: Meeting with Securities Industry and Financial Markets Association (SIFMA) Topic/Issue: Fiduciary Attire: Business Staff: Molly/ Nick/ Pedro Notes/Backgroun · (b)(6) POC: Lisa Bleier, Attendees: Lisa Bleier, Managing Director and Associate General Counsel Ken Bentsen, President and CEO I [Untrt:ledL20171... AM f ICA\J pVERSIGHT 13 DOL-17-0281-C and 17-0282-E-000064 SECRETARY OF LABOR EVENT INFORMATION REQUESTFORM IN~TRUCTIONSPlease : fill out this form with as much information as possible as it relates to your request. Upon completion, please email it to~. Should you have any questions, please do not hesitate to contact Secretary Acosta's scheduling office at {202)693-6003. Thank you! General Information Event Name: Meeting between SIFMA CEO Ken Bentsen and Secretary of Labor Acosta Name of reque st ing organization OR individual: Event Date(s) & Time {s): SIFMA CEOKen Bentsen and Lisa Bleier (M,maging Director) . a time to be worked out based on the Secretary's schedule. Proposed date & time Any time between 1 and 5 pm on Sept. 25 or for the Secretary's Any time between 9 am and noon on Sept. 27 participation: Event Location (city/state): Secretary's office at DOL in Washington, DC Specifically what are you askingof the Secretary (Keynote, Speak, Meet, Meet for 30 minutes. Tour, Q&A, Roundtable, etc.)? If speaking, proposed duration?: Topic(s) to be discussed and/or spoken about: The Department of Labor's fiduciary rule. POC(please include email, direct line and cell): and office phone number: roJI&J I and . POCfor day of: Lisa Bleier - same as above 1 AM RICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000065 Venue Information Event Venue: Venue Address and Phone Number: Event Room Name/ Floor/Number: Program Information Agenda for Secretary's Portion of the Program IPlease attach agenda to include all speakers (Be sure to include name/ title of person introducing the Secretary) Event Speakers I List name, title, organization of all other event speakers Press I Open or Closed, Photographer available, Will event be recorded or broadcast? Audience Size Expected Size: VIP Attendees I List name, title, Describe Event/Room Setup organization etc: I Stage, teleprompter, podium, audience setup, seating arrangement, etc: ] AMERICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000066 Miscellaneous Event Attire: Should you plan to present the Secretary with any gifts or mementos, please identify them and their approximate value, so we can determine their compliance with ethics: I Additional comments/information: INTERNALUSEONLY: Scheduling conflicts: SOLApproval: Agency vetting results: R: 3 AMEf~ICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000067 Verxa, Christopher W - ASAM Subject: SPEAKat USChamber of CommerceCenter for Capital Markets Competitiveness (CCMC)Board Meeting Chamber of Commerce,1615 H Street NW., Washington, DC 20062 Location: Start: End: Show Time As: ' Wed 10/25/2017 4:30 PM Wed 10/25/2017 5:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Optional Attendees: Acosta,Alexander - OSEC RA Acosta; zzoasam-dpo-agents;zzOSEC-SCHEDULING-AND -ADVANCE;Wimer, Andrew P - OPA; Rogers,Jillian B - OPA; Holland, EricW - OPA; Grappone,Jeffrey Y OSEC;Geale,Nicholas C. - SOL;Dorey, David R - SOL Lineberger,Timothy L - OSEC;Patterson,Andrew M - OSEC;Pipkins,CharlesP - OASAM Security Center; Darling, Kevin E - OASAM SecurityCenter; Davis,Clinton J - OASAM Security Center;Hoffman, Emily E - OSEC;McDaniel,Keshia- OSEC; Mannix, Patrick M ODEP;Downey,Daniel W - OASAM Security Center;Vilca,Joseph H. - OSEC ; Allende, Pedro M - OSEC categories: Blue Category Time: 4:30pm- 5:00pm Location: Chamber of Commerce, 1615 H St NW, Washington DC 20062 Subject: SPEAK at US Chamber of Commerce Center for Capital Markets Competitiveness Topic/Issue: Fiduciary, proxy voting guidance Attire: Business Staff: TBD Notes/Background: RAA will do a brief introduction, everyone in room will introduce themselves, RAA will give 10-15 min remarks, and open to conversation. (b)(6) POC:Ashley Eisner (Director of Events Direct Advance Staff: Eric Evans - PRESS:CLOSED ted on 9/2. j CCMC Board 10.25 Agenda.pdf Meeting Attend .. AM HICA'\J PVERSIGHT 16 DOL-17-0281-C and 17-0282-E-000068 CENTER FOR CAPITAL MARKETS COMPETITIVENESS Fall CCMC Leadership Board Meeting U.S. Chamber of Commerce Wednesday, October 25, 2017 U.S. Chamber of Commerce ILee Anderson Veterans Center 12:30 p.m. - 1:30p.m. Networking Lunch 1:30p.m. -1:45 p.m. Welcome • David Hirschmann , Presiden t and CEO, Center for Capital Markets Competiti veness (CC:MC) • J .J.Johnson , Executive Vice President, Public Affairs & Policy Grou p, FMR, LLC and Chair, CCMC Leadership Board 1:45p.m. - 2:30 p.m. Corporate Governance, Capital Formation, Fiduciary: A Look at the SEC's Agenda • • 2:30 p.m. - 2:45 p.m. AM RICAN PVERSIGHT J.D . Foster, Senior Vice President, Economic Policy and Chief Economist, U.S. Chamber of Commerce Restoring Main Street Lending • 3:15 p.m. - 3:30 p.m . C. Wallace DeWitt, Counsel to Commissioner Michael Piwowar, SEC Tax Update - Roth-ification • 2:45 p.m. - 3:15p.m. Brian O'Shea, Senior Director, CCMC Brian Daner, Director, CCMC Networking Break DOL-17-0281-C and 17-0282-E-000069 CENTER FOR CAPITAL MARKETS COMPETITIVENESS 3:30 p.m . - 4:00 p.m . Campaign Spotlight : Arbitration ( and CFPB ,Update) • 4:00 p.m. - 4:30 p.m . The Honorable Alexander Acosta Issues Around the Comer • 5:30 p.m . - 6:30 p.m. Brian O'Shea, Senior Director , CCMC U.S . Secretary of Labor • 5:00 p.m. - 5:30 p.m. Kate Larson, Director, CCMC Fiduciary Duty • 4:30 p.m. - 5:00 p.m. I David Hirschmann , President and CEO, CCMC Networking Receptio n JM/RJR 6:30 p.m . - 8:30 p.m. Veteran'sCenter AM RICA\J PVERSIGHT Fall Leadership Board Dinner • Th e H onorab le Jerome Powell, Governor, The Federal Reserve System DOL-17-0281-C and 17-0282-E-000070 CENTER FOR CAPITAL MARKETS COMPETITIVENESS 1:vent \Jaterialscan hefound in (;utdebook. DownloadGuidebook, Tap(b)(6) Type(b)( 6 ) AMf HICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000071 I153. .IdeOlulu1l attu?xa? . - . Isl. 1.1?Eu-Hal. wag-alga. ll Yerxa, Christopher W - ASAM Subjed: Location: Meeting with David KowachCEOof Wells Fargo Advisors Secretary'sOffice Start: End: Show Time As: Thu 9/21/2017 2:00 PM Thu 9/21/2017 2:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander • OSEC RA Acosta; zzOSEC -SCHEDULING -AND-ADVANCE;zzoasam-dpo-agents;Conway,Molly E • 0SEC; Geale, Nicholas C. - SOL McDaniel, Keshia- OSEC ; Lineberger,Timothy L - OSEC; Davis,Clinton J - OASAM SecurityCenter; Vilca,Joseph H. - OSEC;Jennings, Alexandra - OASAM Security Center; Pipkins,CharlesP - SecurityCenter; Darling, Kevin E - OASAM Security Center; Downey, Daniel W - OASAM Security Center; Mannix, Patrick M - OSEC;Allende, Pedro M - OSEC; Hoffman, Emily E - OSEC Optional Attendees: Time: 2:00pm - 2:30pm Location: Secretary's Office Subject: Meeting with David Kowach CEO of Wells Fargo Advisors Topic/Issue: Fiduciary Rule Attire: Business Staff: Molly/ Nick Notes/Background: (b)(6) POC: Robert J. McCarthy; Tel: (b)(6) wellsfar oadvisors.com Attendees: I. David Kowach - CEO of Wells Fargo Advisors 2. Brand Meyer- Senior Managing Director 3. Doug Kelly - Senior VP Assistant General Counsel 4. Jim McHale - Senior VP and Chief Compliance Officer 5. Mar aret Simmons - Federal Director of Government Relations }- David Kowach Jim McHale 8 10 b1o_May_2017.pdfMay 2017 - 5181.. AMf HICAN PVERSIGHT Doug Kelly2017.pdf brand_meyer .pdf 1 Margaret Simmonsb10.pdf DOL-17-0281-C and 17-0282-E-000073 JimMcHale Senior Vice President and Chief C.Ompliance Officer Wells Fargo Advisors As CCO for Wells Fargo Advisors, Jim leads the compliance function for Wells Fargo's retail brokerage business, including regulatory change management, regulatory examinations, customer complaints, products compliance, branch inspections, surveillance and discipline, compliance testing and internal controls, and elder client initiatives, among other areas. Prior to joining WFA, Jim was the Global Head of Brokerage Compliance for E~RADE Financial Corporation, where, among other responsibilities, he helped design and implement an enterprise compliance program consistent with the expectations of the federal banking regulators. Prior to E~RADE, Jim served as Managing Director and Associate General Counsel with the Securities Industry and Financial Markets Association (SIFMA), where he led advocacy efforts on proposed rules and regulations issued by the SEC, CFTC and FINRA, including several Dodd Frank Act implementation initiatives. Jim was also a member of the SIFMA working group responsible for updating SIFMA's White Paper: "The Evolving Role of Compliance" (March 2013). Earlier in his career, Jim was associate general counsel with E~RADE, an associate in the Securities Industry Practice Group of the law firm of Morgan, Lewis & Bockius and prior to that served as special counsel with the U.S. Securities and Exchange Commission's Division of Trading and Markets. Jim holds a J.D. from the University of South Carolina School of Law and a bachelor's degree from the University of South Carolina School of Business Administration. AMERICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000074 Doug Kelly Senior Vice President Assistant General Counsel Doug Kelly is assistant general counsel at Wells Fargo Advisors. LLC supporting retail brokerage. He also sits on the Wells Fargo Advisors Operating Committee . During his 20-year career witnffi e firm, Doug has held a vanety of leadership positions, including execufive vice president, chief financial officer, treasu rer, corporate secretary, director of the administration, director of Law and Compliance . Before joining the com pany, Doug was with a law firm practicing in the areas of security and corporate law. Doug has served on the NASO National Adjud icatory Counc il, includ ing serving as the chair of the council. He also served on the board of directors of the National Association of Securities Dealers, Inc., NASO Regulation, Inc., National Arbitration and Mediation Comm ittee of the NASO and the District Business Conduct Committee of District 4 of the NASO. Doug is a member of the Executive Committee of the SIFMA Compliance and Legal Society. Doug graduated from the University of Colorado with a bachelor's degree in finance and received his juris doctor degree from Washington University School of Law in St. Louis . AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000075 • Senior Managi.ng Di.rec tor Brand Meyer is a senior managing director for Wells Fargo Advisors and has held numerous executive positions over his long tenure with the company. Currently, Brand has responsibility for overseeing all b.usiness decisions related to the Department of Labor's fiduciary standard rule, ensuring those decisions balance the needs of clients with the rule requirements. He sits on the Wells Fargo Advisors Operating Committee. Prior to his current role, Brand served as head of the Independent Brokerage Group where he was responsible for the firm's independent brokerage business and its correspondent clearing business (First Clearing). He previously served as president of the Financial Services Group where he was responsible for all aspects of the firm's platform that supported the needs of its Financial Advisors and clients, including investment products, trading capabilities, planning functionality and asset allocation driven advice for clients. His 46-year career has included affiliations with predecessor firms to Wells Fargo, including EVEREN Securities and Prescott, Ball & Turben. During that time, he held a number of different leadership positions for the company, including regional president for the Private Client Group, director of Retail Branches, director of Branch Administration and chief compliance officer. Brand is a native of Cleveland, Ohio and attended Carnegie Mellon University in Pittsburgh, Pennsylvania. He represents Wells Fargo as a member of the board and the executive committee for the Securities Industry and Financial Markets Association (SIFMA), the industry's leading trade group that represents securities firms, banks and asset management companies. Brand is based out of Boca Raton, Florida where he lives with his wife Pam and their two children, Griffin and Jaden. Invesbnent and Insurance Products: Lose Value • NOT FDIC Insured • NO Bank Guarantee • MAY Wells Fargo Advis ors is a tr adP namP usPd by Wells Fargo Clearing Services, LLC (WFCS) and Wells Fargo Advisors Financial Network. LLC,Members SIPC, separate registered broker-dealers and non-bank affiliates of Wells Fargo & Company. First Clearing is a tra de name used by WFCS. © 2016 Wells Fargo Clearing Services, LLC. All rights reseived. CAR-1116-04655 AM PVERSIGHT DOL-17-0281-C and 17-0282-E-000076 Margaret Simmons Federal Director of Government Relations Margaret Simmons started with Wells Fargo in 2010, and serves as a Federal Director of Government Relations. In this role she is responsible for federal strategy with a primary focus on Wealth Brokerage and Retirement, and Consumer Finance. Margaret has twenty years of policy experience in financial services, including most recently as a managing director at the Securities Industry and Financial Markets Association (SIFMA). She also served as Senator Tom Carper's (D-DE) legislative counsel. AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000077 President and Head of Wells Fargo Advisors DavidJ. Kowach is president and head of WellsFargoAdvisors. In this role, Davidprovidesleadershipfor one of the nation's largestfull-serviceretail brokerageorganizations. about 11,000 Davidhas workedin the financialservicesindustryfor 25 years, the majority of which has been with WellsFargoAdvisors.Priorto his current role, David led the PrivateClientGroup (PCG),the company'slargestbusiness line with financialadvisorsservingclientsin all 50 states. Earlier,Davidwas head of the BusinessDevelopmentGroup. He also served as directorof PrivateClientServices within PCGand held variousroles within its regionalmanagementstructure. Previously,Davidwas nationalsales manager for EvergreenFunds. He began his career as a financialadvisorin the Philadelphiaarea. Davidis a graduate of VillanovaUniversitywith a bachelor'sdegreein financeand holds Series7, 24, 63 and 66 securitiesregistrations.He is a member of CivicProgressSt. Louisand activelysupports many St Louis-area charitableorganizationsincludingthe United Wayand CentralInstitute for the Deaf.David,his wife,Kerrin, and their two daughters,livein St. Louis, Missouri. Investment and Insurance Products: • MAY Lose Value AMf • NOi' FDIC Insured • NO Bank Guarantee WellsFargoAdvisorsis II trade name used by Wells FargoClearingServices, LLCand Wells FargoAdvisors FinancialNetwork,LLC, MembersSIPC, separate registeredbroker-dealersand non-bank affiliatesof WellsFargo & Company. 20 16 WellsFargo ClearingServices, LLC.All rights reserved. CAR-12 16-03813 PVERSIGHT DOL-17-0281-C and 17-0282-E-000078 Verxa, Christopher W - ASAM Subject: Location: Meeting with Capital Group Secretary'sOffice Start: End: Show Time As: Wed 9/20/201711:00 AM Wed 9/20/2017 11:30AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC -SCHEDULING-AND-ADVANCE; Geale, RA Acosta; zzoasam-dpo-agents;zzOSEC Nicholas C. - SOL;Conway,Molly E - OSEC;Allende, Pedro M - OSEC Lineberger,Timothy L - OSEC;Jennings,Alexandra - OASAM Security Center; Pipkins, CharlesP - Security Center; Darling, Kevin E - OASAM Security Center;Aivazis,EliasK OASAM Security Center; Downey, Daniel W - OASAM SecurityCenter Optional Attendees: Time: 11:00am- 11:30am Location: Secretary's Office Subject: Meeting with Capital Group Topic/Issue: Fiduciary Attire: Business Staff: Molly/Nick/Pedro Notes/Background: Capital Group Attendees Kevin Clifford, Chair and CEO of American Funds Michael Downer, Chief Counsel of American Funds Clarke Camper, Head of Government Relations for Capital Group (the parent company of the American Funds) POC: Clarke Camp~ Drew CantorDrew,~ u capgroup.com m 2017.07.12 Capital Group.d... AM[ HICAN PVERSIGHT 29 DOL-17-0281-C and 17-0282-E-000079 Verxa, Christopher W - ASAM Subject: Location: HOLD for Meeting with Capital Group Secretary's Office Start: End: Show Time As: Wed 9/20/2017 11:00 AM Wed 9/20/2017 11:30 AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta zzoasam-dpo-agents; zzOSEC-SCHEDULING-ANDADVANCE; Geale, Nicholas-C. - SOL; Conway, Molly E - OSEC Time: 11:00am- 11:30am Location: Secretary's Office Subject: Meeting with Capital Group Topic/Issue: Fiduciary Attire: Business Staff: Molly/Nick Notes/Background: Capital Group Attendees : TBD POC: Clarke Camper@capgroup.com m·-dc.com Drew Cantor Drew, AMf HICAN PVERSIGHT 30 DOL-17-0281-C and 17-0282-E-000080 BackgroundInformation About the CapitalGroup:The Capital Group is an American financial services company. It ranks among the world's oldest and largest investment management organizations, with $1.39 trillion in assets under management. Founded in Los Angeles, California in 1931, it is privately held and has offices around the globe in the Americas, Asia, Australia and Europe. Capital offers a range of products, including more than 40 mutual funds through its subsidiary, American Funds. Type of Organization:Corporation Issuesand Advocacy:Offering a wide range of consultants, advisors, intermediaries, and investors for collective investment trusts, private equity, investment services for high net worth investors in the U.S., as well as a range of other offerings for institutional clients and individual investors globally. LobbyingActivityand History:The Capital Group has hired one lobbying firm that has lobbied the U.S. House & Senate, primarily on tax issues. • IssuesLobbied:Monitoring and advocating for tax reform; pension/retirement policy; and financial services policy • Firmsand LobbyistsUsed:Harbinger Strategies, LLC Notable BoardMembers: N/ A Invitation History:N/ A CorrespondenceHistorywith ExecSec:N/A Icebreakers:N/ A AdditionalNotes: • Capital Group employs more than 7,000 associates worldwide. U.S. investments include Amazon.com, Inc., Amgen Inc., Alcoa, Alphabet Inc., Lockheed Martin, & Square. AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000081 Yerxa, Christopher W - ASAM Subject: Location: HOLD for Meeting with CEOs Secretary's Office Start: End: Show Time As: Tue 9/5/2017 3:00 PM Tue 9/5/2017 3:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta zzOSEC-SCHEDULING-AND-ADVANCE;zzoasamdpo-agents; Geale, Nicholas C. - SOL;Allende , Pedro M - OSEC (allende.pedro.m@dol.gov) Time: 3:00pm- 3:00pm Location: Secretary's Office Subject: Meeting with CEOs Topic/Issue: Fiduciary Duty Rule Attire: Business Staff: Nick/fBD Notes/Background: Per Chamber POC: Beth Stanaland (b)(6) Advance Staff: DoL Photographer: , USChamber.com Tentative List of Attendees: 1) Tim Armour, President, and CEO, Capital Group 2) James Weddle, Managing Partner, Edward Jones 3) Roger Crandall, Chairman, President, and CEO, Mass Mutual 4) Robert McCann, CEO, UBS 5) Peter Schneider, President, Primerica 6) James Cracchiolo, Chairman, and Chief Executive Officer, Ameriprise 7) Dennis Glass, President and Chief Executive Officer, Lincoln National Corporation 8) Robert Reynolds, President and Chief Executive Officer, Putnam Investments 9) Barry Stowe, Chairman, and CEO, Jackson National AMf HICAN PVERSIGHT 21 DOL-17-0281-C and 17-0282-E-000082 Yerxa, Christopher W - ASAM Subject: Location: Meeting with U.S.Chamber CEOs Secretary'sOffice Start: End: Show Time As: Tue 9/5/2017 3:00 PM Tue 9/5/2017 3:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC RA Acosta; zzOSEC-SCHEDULING-AND-ADVANCE; zzoasam-dpo-agents; Geale, Nicholas C. - SOL;Allende, Pedro M - OSEC;Conway, Molly E - OSEC Lineberger,Timothy L - OSEC; Davis, Clinton J - OASAM SecurityCenter; Hoffman, Emily E - OSEC;Darling, Kevin E - OASAM SecurityCenter; Pipkins,CharlesP - Security Center; Jennings,Alexandra - OASAM Security Center; McDaniel, Keshia- OSEC Optional Attendees: Time: 3:00pm-3:00pm Location: Secretary's Office Subject: Meeting with CEOs Topic/Issue: Fiduciary Duty Rule Attire: Business Staff: Nick/Pedro Notes /Background: R uest came from Tom Quaadman- discussed with RAA at their dinner. POC: Beth Stanaland, U SChamber.com Advance Staff: DoL Photographer: Attendees: Joe Sweeney General Counsel President, Advice & Wealth Management Products & Service Delivery Ameriprise Financial Joe Monk Senior Vice President, Financial Services& President and CEO,State Farm Bank State Farm BarryStowe Chairman and Chief ExecutiveOfficer Jackson National Bob Reynolds President and Chief Executive Officer Putnam Investments Dennis Glass President and Chief Executive Officer Lincoln National Corporation Jim Tricarico Chief LegalOfficer Edward Jones Michael Fanning Head Mass Mutual, US Mike Crowl A1 1 1 1 Al PVERSIGHT 22 UBSAmericas DOL-17-0281-C and 17-0282-E-000083 David Hirschmann Thomas Quaadman President and CEO,CCMC U.S.Chamber of Commerce ExecutiveVice President, CCMC U.SChamber of Commerce RandyJohnson Senior Vice President, LIEB U.SChamber of Commerce Aliya Wong, Executive Director, U.S. Chamber of Commerce AM[ HICAN PVERSIGHT 23 DOL-17-0281-C and 17-0282-E-000084 Yerxa, Christopher W - ASAM Subject: Location: HOLDfor Meeting with CEOs/U.S.Chamber Secretary'sOffice Start: End: Show Tim e As: Tue 9/5/2017 3:00 PM Tue 9/5/2017 3:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta; zzOSEC-SCHEDULING-AND-ADVANCE; zzoasam-dpo-agents;Geale, Nicholas C. - SOL;Allende, Pedro M - OSEC;Conway,Molly E - OSEC Lineberger,Timothy L - OSEC;Davis,Clinton J - OASAM SecurityCenter; Hoffman, Emily E - OSEC;Darling, Kevin E - OASAMSecurityCenter; Pipkins,CharlesP - SecurityCenter; Jennings,Alexandra- OASAM SecurityCenter;McDaniel, Keshia- OSEC Optional Attendees: Time: 3:00pm- 3:00pm Location: Secretary's Office Subject: Meeting with CEOs Topic/Issue: Fiduciary Duty Rule Attire: Business Staff: Nick/Pedro Notes/Background: Re uest came from Tom Quaadman- discussed with RAA at their dinner. POC: Beth Stanaland USChamber.com Advance Staff: DoL Photographer: Attendees: Mike Crowl /-\ Joe Sweeney General Counsel President, Advice & Wealth Management Products & Service Delivery Ameriprise Financial Joe Monk Senior Vice President, FinancialServices& President and CEO,State Farm Bank State Farm Barry Stowe Chairman and Chief ExecutiveOfficer JacksonNational Bob Reynolds President and Chief ExecutiveOfficer Putnam Investments Dennis Glass President and Chief ExecutiveOfficer Lincoln National Corporation Jim Tricarico Chief LegalOfficer Edward Jones Michael Fanning Head Mass Mutual, US M. pVERSIGHT 24 UBSAmericas DOL-17-0281-C and 17-0282-E-000085 David Hirschmann President and CEO, CCMC U.S. Chamber of Commerce Thomas Quaadman Executive Vice President, CCMC U.S Chamber of Commerce Randy Johnson Senior Vice President, LIEB U.S Chamber of Commerce AMf HICAN PVERSIGHT 25 DOL-17-0281-C and 17-0282-E-000086 Verxa, Christopher W - ASAM Subject: Location: Meeting with Governor Pawlentyof FinancialServicesRoundtable Secretary'sOffice Start: End: Show Time As: Tue 9/5/2017 4:00 PM Tue 9/5/2017 4:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC RA Acosta;zzOSEC-SCHEDULING-AND-ADVANCE; zzoasam-dpo-agents;Conway, Molly E - OSEC;Allende, Pedro M - OSEC Lineberger,Timothy L - OSEC Optional Attendees: Time: 4:00pm - 4:30pm Location: Secretary's Office Subject: Meeting with Governor Pawlenty of Financial Services Roundtable Topic/Issue: Introductory meeting to discuss Financial Services Roundtable priorities and Fiduciary Rule Attire: Business Staff: Molly/ Pedro Notes/Background: Per Governor Pawlenty•s request. POC: Amanda Parry, fsroundtable.or , (b)(6) Attendees: Governor Pawlenty Jill Hoffinan Felicia Smith AM~ HICA'\J PVERSIGHT 18 DOL-17-0281-C and 17-0282-E-000087 FSRStaff Bios Tim Pawlenty President& CEO Tim Pawlenty is the CEOof the Financial Services Roundt able. Governor Pawlenty brings dynamic leadership and visibn to an organization which represents leading financial service companies in their effo rts to protect t he security, integrity and success of our nation's financial syst em. Asa forme r two-term Governor of Minnesota, he is a leader with significant executive experience having overseen a $50 billion biennial budget, led 30,000 state employees, and managed 20 individual state agencies and departmen t s. As Governor, his education, healthcare,and energy initiatives were widely Viewed as among the me, t innovative in the nation. He served as chair of the National Governor's Association from 2007-2008 and chair of the Midwest Governor's Association from 2006-2007. While serving as chair of the Minnesot a State Board of Investment, Governor Pawlenty provided oversight for over $60 billion in investments . Governor Pawlenty is a nationally respected policymaker who combines his depth of subject matter knowledge with a unique ability to communicate on complex issues. His recognition as one of the foremost thought leaders in the country brings peerless credibility to FSRand its members. JillHoffman Vice Presidentof GovernmentAffairsfor InvestmentManagement Jill Hoffman serves as the Vice President of Government Affairs for Investment Management at the Financial Services Roundtable (FSR). FSRis the leading advocacy organization for America's financial services industry. FSRmembers include the leading banking, insurance, asset management, finance and credit card companies in America. FSRis driven at the CEOlevel and provides a unique and influential voice in Washington. In her position, she oversees investment management, retirement, and systemic risk related public policy issues. Jill contributes as an expert media spokeswoman on behalf of FSRand is the author of the blog series Wonky Talk, which has been featured in CNN Money. Before joining FSR,Jill was the chief lobbyist before the Senate Banking and House Financial Services Committees for the National Association of Insurance and Financial Advisors (NAIFA) where she served for ten years. During her time at NAIFA, Jill represented the organization's interests through the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Jill also played a lead role bringing about the enactment of the National Association of Registered Agents and Brokers (NARAB). AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000088 Before her time with NAIFA, Jill lobbied for the American Council of Life Insurers (ACLI), worked on the AFLACFederal Relations staff, and served in the office of Senator John Breaux (D-LA). A graduate of Louisiana State University, Jill serves on the Board of the University's College of Humanities and Social Sciences. She is married and lives with her husband and young son in Alexandria, Va. FeliciaSmith Vice President& SeniorCounselfor RegulatoryAffairs Felicia Smith is Vice President and Senior Counsel for Regulatory Affairs for the Financial Services Roundtable, and is a member of the Regulatory 1 Department. She also serves as a Lead Subject Matter Expert for the Investment Management activity. Prior to joining FSR,Smith was a Visiting Professor at Mississippi College School of Law, where her teaching assignments included Securities Regulation and Business Associations. Smith also was a member of the Mississippi Secretary of State 2008 Business Reform Securities Law Committee. Smith is a former in-house corporate and securities counsel for a securities firm with its headquarters in New York City. She provided legal counsel for public offerings, private placements, and resales of equity and fixed income securities (including rule 144, rule 144A, rule lObS-1 trading plans, Regulation D, and Regulation S). Smith drafted and negotiated equity securities research distribution agreements, equity securities trading agreements, and securities trading technology vendor contracts. She also was counsel to several of the firm's new product review committees and business review committees, and supervised broker-dealer filings with federal and state securities regulators, securities exchanges, and self-regulatory organizations, and securities exchange membership applications and related filings. Smith began her legal career at the United States Securities and Exchange Commission, where she was a Special Counsel in the Chief Counsel's Office for the Division of Corporation Finance, and was the Commission's expert on the Trust Indenture Act. As a member of the Chief Counsel's staff, she recommended policy and participated in decision-making, including over 200 no-action and interpretative letters on a variety of federal securities law issues arising under the Securities Act, the Securities Exchange Act, and the Trust Indenture Act. Smith's rulemaking activities included the rules implementing the Trust Indenture Reform Act of 1990 and the U.S.-Canada Multijurisdictional Disclosure Systems. As a member of the Business Law Section of the American Bar Association, Smith was editor of, and a contributor to, the ABA Comment Letter filed in response to The Regulation of Securities Offerings (the "Aircraft Carrier'' Release), and co-editor of a comment letter on Revisions to Rule 144 and Rule 145 to Shorten Holding Periods for Affiliates and Non-Affiliates. Smith also was a contributor to the ABA Revised Model Simplified Indenture (2000). Smith holds the LL.M. in Securities Regulation from Georgetown University Law Center and the Doctor of Jurisprudence from Mississippi College School of Law. She is admitted to practice in the District of Columbia and the Supreme Court of the United States. AM RICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000089 Verxa, Christopher W - ASAM Location: Meeting with Morningstar, Inc Secretary'sOffice Start: End: Show Time As: Tue 9/5/2017 1:30 PM Tue 9/5/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC Geale, RA Acosta; zzoasam-dpo-agents;zzOSEC-SCHEDULING-AND-ADVANCE; Nicholas C. - SOL;Hauser,Timothy - EBSA Lineberger,Timothy L - OSEC;Jennings,Alexandra - OASAMSecurityCenter; McDaniel, Keshia- OSEC;Darling, Kevin E - OASAM Security Center,Davis,Clinton J - OASAM Security Center, Pipkins,CharlesP - SecurityCenter; Aivazis,EliasK - OASAM Security Center, Downey, DanielW - OASAMSecurityCenter;Allende, Pedro M - OSEC;Gardner, JanelleA - OSEC;Vilca,Joseph H. - OSEC;Hoffman, Emily E - OSEC Subject Optional Attendees: Time: 1:30pm- 2:00pm Location: Secretary'sOffice Subject: Meetingwith Morningstar,Inc Topic/Issue: Fiduciary Attire: Business Staff: Nick/othersfrom EBSA TBD Notes/Background: Attendees: • • • Kunal Kapoor, Chief ExecutiveOfficer Anna Nordseth, Relationship Manager, Global BusinessDevelopment Aron Szapiro,Director of Policy Research POC: Aron Szapiro cell, (b)(6) Advance Staff: DoL Photographer: 835698.pdf AM~ HICA\J PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000090 Yerxa, Christopher W - ASAM Subject: Location: Meeting with Morningstar, Inc Secretary's Office Start: End: Show Time As: Thu 8/31/2017 1:30 PM Thu 8/31/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta zzoasam-dpo-agents; zzOSEC-SCHEDULING-ANDADVANCE; Geale, Nicholas C. - SOL; Hauser, Timothy - EBSA Lineberger, Timothy L - OSEC;Jennings, Alexandra - OASAM Security Center; McDaniel, Keshia - OSEC;Darling, Kevin E - OASAM Security Center; Davis, Clinton J - OASAM Security Center; Pipkins, Charles P - Security Center; Aivazis, Elias K - OASAM Security Center Optional Attendees: Time: 1:30pm - 2:00pm Location: Secretary's Office Subject: Meeting with Morningstar, Inc Topic/Issue: Fiduciary Attire: Business Staff: Nick/others from EBSA TBD Notes/Background: Attendees: • • • Kunal Kapoor, Chief Executive Officer Anna Nordseth, Relationship Manager, Global Business Development Aron Szapiro, Director of Policy Research POC: Aron Szapiro cell, (b)(6) Advance Staff: DoL Photographer: 'LJ 835698.pdf AMf HICAN PVERSIGHT 32 DOL-17-0281-C and 17-0282-E-000091 Yerxa, Christopher W - ASAM Subject: Location: HOLDfor Meeting with Morningstar, Inc Secretary'sOffice Start: End: Show Time As: Thu 8/31/2017 1:30 PM Thu 8/31/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC zzoasam-dpo-agents;zzOSEC-SCHEDULING-AND ; Hauser,Timothy - -ESSA Time: TBD Location: Secretary's Office Subject: Meeting with Morningstar, Inc Topic/Issue: Fiduciary Attire: Business Staff: Nick/others from EBSA TBD Notes/Background: Attendees: Kunal Kapoor- CEO And others TBD POC: Aron Szapiro cell, (b)(6) Advance Staff: DoL Photographer: AMf HICAN PVERSIGHT 31 DOL-17-0281-C and 17-0282-E-000092 Barrett, Gloria - EXECSEC Aron Szapiro i g>morningstar.com> Monday, July 17, 2017 9:49 AM palmer.wayne@dol.gov; Executive Secretariat Trooper Sanders;Anna Nordseth Meeting On Fiduciary Rule RFI From: Sent: To: Cc: Subject: Dear Mr. Palmer: I am writing on behalf of Morningstar, Inc to request a meeting with the Secretary and our CEO, Kunal Kapoor, to discuss the recent RFIon the "Fiduciary Rule" and ways the department can help advance innovations supporting Americans' retirement security. Morningstar, Inc. is a leading provider of independent investment research, and our mission is to create products that help investors reach their financial goals. Because we offer an extensive line of products for individual investors, professionai-flnancial advisors, and-institutional clients, we have a broad view on the rule and its possible effect on the financial advice retirement investors will receive. In particular, we believe based on our three decades analyzing mutual funds and explaining them to ordinary investors, we have expertise on how to define new clean share classes if the department were to use them as part of a new streamlined exemption. Like the department, we also believe there is great promise for clean shares, but we caution that defining these share classes too broadly could undermine their effectiveness at helping investors attain access to unconflicted advice. Additionally, as the Department mentioned in the RFI, the regulated community has been developing new technology to help financial institutions satisfy the supervisory requirements of the rule. We believe technology and innovation can help with an extremely important part of the rule: ensuring that rollovers are in investors' best interests. However, some additional actions by the Department could better unleash financial technology innovators to improve outcomes for investors and reduce the costs of compliance with the rule. We look forward to a meeting with DOL leadership . Best, Aron Szapiro S,) I .,'"'to. C, \~, •n11[,,,c A' -.., Pl) f 1 r11lr' tyr Sent: Monday, April 16, 2018 1:18 PM To: Hoffman, Emily E - OSEC Subject:RE:ANCOR Summit Hello Emily! It was great chatting with you back in August and September as we worked to see if Secretary Acosta to speak to our membership (as a quick reminder ANCOR is a national trade associa tion for disability service providers - representing one of the fastest growing workforces of direct care workers). I wanted to reach back to you since you had mentioned that the Secretary would be interested in our 2018 conference - which we now have scheduled. We will be at the Hyatt Capitol Hill on Tuesday and Wednesday, October 2nd and 3rd 2018. We would love to have the Secretary come by on one of those days to say a few words and so that we could express our appreciation for his leadership at DOL including his focus on apprenticeships and his thoughtful approach to reexam ining the DOL overtime rule. Let me know if you have any questions and hope all is well! Esme Esme Grant Grewal, Esq. Vice President of Government Relations American Network of Community Options and Resources (ANCO R) --------·--------------------------- 2018 ANCORConference April 15-17 New Orleans, LA AMf YICAN pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000118 1101 King St., Suite 380 -Alexandria, VA 22314-2944 Phone: (202) 579-7789 FAX: (703) 535-7860 Email: eqrant@ancor.org www.ancor.org I From: Hoffman, Emily E - OSEC[ mailto:hoffman.emily.e@DOL.gov 1 Sent: Monday, September 11, 2017 9:47 PM To: Esme Grant Subject: RE: ANCOR Summit Sept 18 Thank you, Esme! I will be sure to pass your message along to the Secretary . Emily From: Esme Grant [mailto:egrant@ancor.org ] Sent: Sunday, September 10, 2017 10:11 PM To: Hoffman, Emily E - OSEC Subject: RE: ANCOR Summit Sept 18 Hi Emily! I'm so sad to hear it BUT I am really grateful for your hard work to try and make it work. We'll definitely take you up on next year's offer and I'll let you know as soon as I confirm the dates and location. Please send our best wishes to Secretary Acosta and let him know our entire association is thinking of him and his fellow Floridians as they face the onset of Hurricane Irma. Best, Esme From:Hoffman, Emily E - OSEC [mailto:hoffman.emily.e@DOL.gov ] Sent: Friday, September 8, 2017 9:40 PM To: Esme Grant Subject: ANCOR Summit Sept 18 Hi Esme, I hope this finds you well ! Unfortunately, Secretary Acosta will be unable to attend the ANCORSummit this year, however would like to participate next year if possible! In the future, please do not hesitate to contact me at Hoffman.emily.e@dol.gov . Thank you! EmilyHoffman AM[ HICAN PVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000119 Deputy Director of Scheduling U.S. Department of labor 200 ConstitutionAve NW Washington, D.C. 20210 P: (202)693-6000 E: hoffman.emlly.e@DOL.gov AM HICA\J pVERSIGHT 3 DOL-17-0281-C and 17-0282-E-000120 Yerxa, Christopher W - ASAM Subject: Location: SPEAKat the US Chamberof Commerce Labor RelationsCommittee Meeting US Chamberof Commerce HQ, 1615 H St NW, Washington DC Start: End: Show Time As: Tue 11/14/2017 11:30 AM Tue 11/14/2017 12:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Optional Attendees: Acosta,Alexander - OSEC Acosta,Alexander - OSEC;RA Acosta;zzoasam-dpo-agents;zzOSEC-SCHEDULINGAND-ADVANCE;Grappone,Jeffrey Y - OSEC;Wimer, Andrew P - OPA;Holland, EricW OPA; Rogers,Jillian B - OPA; Law,Charlotte E - OPA Lineberger,Timothy L - OSEC;Pipkins,CharlesP - OASAM Security Center; Davis, Clinton J - OASAM Security Center; Darling, Kevin E - OASAM SecurityCenter; Hoffman , Emily E - OSEC;McDaniel, Keshia- OSEC;Patterson,Andrew M - OSEC;Downey, Daniel W - OASAM Security Center;Vilca,Joseph H. - OSEC Categories: Blue Category Time: 11:30arn- 12:00pm Location: US Chamber of Commerce HQ, 1615 H St NW, Washington DC Subject: SPEAK at the US Chamber of Commerce Labor Relations Committee Meeting Topic/Issue: Apprenticeships, vision for regulations and enforcement (Overtime, persuade r, OSHA, OFCCP), DOL's relationship with employers, Immigration, DOL's interaction with 0MB in regards to both the budget and OIRA (How will 2 for 1 regulation EO work?) Attire: Business Staff: TBD Notes/Background: RAA speak for 20 mins, then do 10 rnins Q&A. PRESS: POC: Randy Johnson Advance Staffer: Andrew Patterson D Tallangpoints for 11.14.17Chamber FallLRC RSVPS - LRC Agenda Faff eventual ca... AM( HICAN l abor Relatio... pVERSIGHT as of 10-17-1.. 2017- Oraft.d... 11 DOL-17-0281-C and 17-0282-E-000121 Yerxa, Christopher W - ASAM From: Sent To: Cc: Subject Johnson, Randel Wednesday, September 13, 2017 11:59 AM Hoffman, Emily E - OSEC Mullan, Walter Talking points for eventual call with Sec. Acosta and/or his staffers Emily, I thought this might be useful to have before our call. Randel K. Johnson Senior Vice President Labor, Immigration and Employee Benefits U.S. Chamber of Commerce 1615 H Street, NW Washin ton, DC 20062 (P) (F) Who: U.S. Chamber of Commerce Labor Relations Committee members (businesses, trade Association s, law firms) and U.S. Chamber staff. What: U.S. Chamber of Commerce's Labor Relations Committee Meeting. Where: U.S. Chamber of Commerce HQ, located at 1615 H Street NW, Washington, DC. When: November 14th, 2017. Anytime between 9 AM and Noon. Expected length of remarks is 20 minutes, with a 10 minute q&a). Why: See below. Samplingof companiesthat attended the last meeting: • • • • • • Aramark AT&T Boeing Booz Allen Hamilton Deloitte FedEx Ground • IBM • • • • • • • JPMorgan Chase & Co Lockheed Martin Microsoft Coca Cola Toyota Walmart Major law firms would also be in attendance Potentialsubjectsfor his remarks: • • Apprenticeships Vision for regulations and enforcement, touching on top priorit ies. Our group would be interested in overtime, persuader, OSHA, OFCCP AM HICA\J pVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000122 • • • DOL's relationship with employers Immigration DOL's interaction with 0MB in regards to both the budget and OIRA (How will 2 for 1 regulation EO work?) Other notes of interest for the Secretary: • • • • This is the Labor Relations Committee, not the Employee Benefits Committee so it is unlikely to get questions on the fiduciary reg. Former Secretary of Labor, Tom Perez, previously addressed an LRCmeeting and also gave out his personal cell phone number (I) I I We have had the heads of OSHA, Wage and Hour, and OFCCPspeak as well as a Deputy Secretary of Labor and Solicitor of Labor attend the LRCpreviously. Scott Mugno is the current Chairman of the LRC. AM HICA\J pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000123 CORRESPONDENCEID: 838825 FUNCTIONDATE: 11/14/2017 ADDRESSEDTO: SecretaryAlexanderAcosta INVITATIONTYPE: GOVT ORIGINATOR~ Johnson, Randel K. (SeniorVice President) ORGANIZATION: US Chamberof Commerce;Labor, Immigration& Emp loyeeBene; DATEOF INVITATION: 8/18/2017 DATE ECO RECEIVED: 8/24/2017 FUNCTIONLOCATION: Washington DC INFO COPIESTO: BW, NC, DOLFO,OCIA, OPA, OSEC, SOL FUNCTIONTYPE: Speaker ACTION: D • • COMMENTS: REMARKS: NRN ACCEPT byphone by letter by card REGRET by phone by letter by card D D D D DATE: DATE: • • Secretaryinvited to addressUS Chamberof Commerc e, Committee,the morningof November14, 2017, Cham Labor Relations ber Headquarters, Washington,DC. If the Secretarycould speak for 20 min, with 10 min Q&A or more. The Committeesets the Chamber'spriorities in employment rAIAtinnR~rAA D AMERICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000124 Waterloo, Anthony - EXECSEC From: Sent: To: Subject: McDaniel, Keshia- OSEC Thursday,August 24, 2017 11:50 AM ExecutiveSecretaiat r FW: Invite to speak for the Secretary,morning of November 14th, 2017 at ChamberHQ Please add to STMS From:Hoffman, EmilyE - OSEC Sent: Thursday, August24, 2017 12:22 AM To: McDaniel, Kesh ia - OSEC Subject: FW:Invite to speakfor the Secretary, morningof November14th, 2017 at ChamberHQ Hasthis beenaddedto SIMS? From:Conwa,y Molly E - OSEC Sent: Friday, August 18, 2017 5 :14 PM To: Johnson, Randel Cc: Hoffman, EmilyE - OSEC Subject : Re: Invite to speak for the Secretary,morningof November14th, 2017 at ChamberHQ Thanks, Randy. I've copied Emilyon the Secretary's schedulingteam. Havea greatweekendI ~1 ( '"t.l 0 :r-iO Molly r., X ~__, ··-· :J-•1 1 • • · C/) (/l ....., 2 -.., ;r:,. '= c., oo"'m N .,. 00 1 .l:: ,...c'._,::n rn • ~ -0 r-.>>C_, ::: oa,rl> N> 0ex, .... ;o m m 0 < m 0 Molly, Sorry to burdenyou with this, but perhapsyou can route It properly. I would like to invite the Secretaryto speakbefore the Chamber'sLaborRelatlons Committ ee on the morning of November t h 14 , 2017. The Committee is comprisedof a wide variety of employersfrom across the economic spectrum, complim ented by a mix of law firms and trade associations. This commit tee of course sets t he Chamber's priorities In t he employment relations areas. Our normal attendancerangeis 120-130 attendees. If the Secretarycould do 20 minute s with 10 minutes of Q&A or a bit more t hat would be great. Obviously the audiencewould be a sympat hetic one and this should be an easy lift . The eventwould be here at Chamberheadquarters. ThanksMolly, and I hope you' re gettingsome time off. RandelK. Johnson Senior VicePresident Labor, Immigration and EmployeeBenefits U.S.Chamberof Commerce 1 AMf YICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000125 1615 H Street,NW Washin ton, DC 20062 2 AM HICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000126 First Name Christine Claiborne Denise Jeff Jennie Michael Ben karen Ben Jim Bill Teresa Lynn Lynn Paul Alexandre Bill Jake Kai Eric Clyde Jon Penni Mei Brian Leonard Leonard Peter Peter Bradley Tim Dean Mark Gerald Colleen Robert Richard Carla Heather Dana Scott Kate Jason I AMEf \ICAN Last Name Scullion Guy Gold Williams Massey Goscinski Brubeck livingston Brubeck Young Latimer Jakubowski Clements Clements Kehoe Buswell Noonan Kuhns Hirabayashi Ellman Jacob Beamer Bradshaw Haas Balonick Court Court Schiron Brown Paskievitch Winnard Elliot Carter Hathaway Moss Boonin Heiser Laszewski Chambers Graber FitzGerald Sheerin Bartlett pVERSIGHT Organization Accenture AGC of America AGC of America Allstate Amazon American Bakers Association AssociatedBuildersand Contractors Associated Buildersand Contractors AssociatedBuilders and Contractors AssociatedGeneral Contractors Bank of America Barnes & Thornburg LLP BerkshireAssociates Inc. BerkshireAssociates, Inc. Booz Allen Hamilton Borden Ladner Gervais Boyd Gaming Corporation Cargill Caterpillar CDIA Coats Rose CognizantTechnologySolutios ConstangyBrooks Smith & Prophete Constangy,Brooks, Smith & Prophete Cozen O'Connor Cropwe & Dunlevy Crowe & Dunlevy Deloitte Deloitte DHL DHL Supply Chain Dillard's Inc. Dinsmore& Shohl Drinker Biddle & Reath Duke Energy Dykema Gossett PLLC FedEx FedEx FiatChrysler Food Marketing Institute FragomenWorldwide Google Hormel Foods Corporation DOL-17-0281-C and 17-0282-E-000127 Meredith Singer David Barnes IBM Corporation Michael Layman IFA IBM Corp. Lindel Waclawski Intel Corporation Matt Haller Peter Joseph International Franchise Association Invest in the USA Nicole Merlene Invest in the USA Philip Rosen Jackson Lewis P.C. Jack Pawley Kohler Co. Phillip Wilson Labor Relations Institute Ilyse Schuman Littler Tammy Mccutchen Littler Mendelson Joshua Waxman Littler Mendelson Stefan Marculewlcz Littler Mendelson Michael Lotito Littler Mendelson, P.C. Mike Asplen Littler Mendelson, PC Nora Vele Merck Frank DeLos Reyes Merck Scott Beightol Michael Best Charles Cohen Morgan Lewis Thom Stohler NAPEO Misty Chally National Franchisee Association Jaime Castaneda Shannon Meade National Milk Producers Federation National Restaurant Association Duane Musser Craig Brightup National Roofing Contractors Association National Roofing Contractors Association NBC Universal Stephen Malone Kate Beaulieu Jess McCluer NBWA NGFA Aimee Cipicchio Nucor Eric Hobbs Ogletree James Plunkett Ogletree Peter Murphy Wendy Gerard Old Dominion Freight Line, Inc. On Assignment, Inc. Bernadette Hobson PepsiCo Ken Flechler Pike Corporation Suzanne Morgan Plastics Industry Association Marie Gargas Paul Salvatore Plastics Industry Association (PLASTICS) Proskauer Zach Fasman Charles John O'Byme Proskauer Rose LLP Related Companies RILA Evan Armstrong Anthony Zingales Ryder System Inc. Edward Levin Saul Ewing AMEf{ICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000128 Larry Camm Camille Olson Schweitzer Engineering Laboratories, Inc. Seyfarth Shaw LLP Richard Lapp Seyfarth Shaw LLP Lawrence Lorber Seyfarth Shaw LLP David Chidlaw Sheppard Mullin Michael Altken SHRM SHRM Lisa Horn Nancy Hammer SHRM William Wahoff Steptoe & Johnson PLLC Colleen Litkenhaus The Dow Chemical Company Robert Chiappetta Steven Lehotsky Toyota Motor North America, Inc. U.S. Chamber Litigation Center U.S. Chamber of Commerce Anna Vredenburgh Arielle Thomas- U.S. Chamber of Commerce Mark Floyd Uber Ulman Public Policy Basil Thomson David Keeling UPS Chris Bales UPS David Keeling UPS Greg Ossi Venable LLP Richard Markuson Kapil Sharma Western Electrical Contractors Association Wipro Ann Kingston Wipro Cate Thorin Zimmer Biomet AM HICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000129 & D1\'1s roN LABOR, ll\1.1\IIGR.\TIO!\ El\r PLOYEE BEKEFITS U.S. CHAMBER OF CO\L\1ERCE LABOR RELATIONS COMMITTEE MEETING November 13 and 14, 2017 AGENDA Monday, November 13th 10:00-4:30 Registration 10:15 -11:45 Immigration - Rust Briefing Center 12:00-1:00 Lunch - Rust Briefing Center 1:15- 2:15 Equal Employment Opportunity- Rust Briefing Center • Featuring speaker Commissioner Victoria Lipnic, Equal Employment Opportunity Commission 2:30- 3:30 Wage, Hour, and Leave - Rust Briefing Center 3:4S-4:45 National Labor Relations Act - Rust Briefing Center • Featuring speaker James Sherk of the Domestic Policy Council, Executive Office of the President Occupatio1:1alSafety and Health - Library 5:00-6:30 Reception - Lee Anderson Veterans Center Meeting materials available online at: AM RICA https:/ /www.uschamber.com/labor-relations-committee-meeting PVERSIGHT DOL-17-0281-C and 17-0282-E-000130 Tuesday, November 14th 8:00-9:00 Continental Breakfast Served 8:15-12:30 Full Committee Meeting - Lee Anderson Veterans Center I 8:15- 8:30 Welcoming Remarks Scott Mugno, Chairman Labor Relations Committee AM ~ 8:30 - 9:00 Representative Bradley Byrne (R-AL) 9:00 - 9:30 Senator Thom Tillis (R-NC) 9:30 - 9:45 Committee Photo on the front steps of the Chamber 9:45 - 10:30 Subcommittee Reports 10:30 - 10:45 Break 10:45-11:00 Anti-Human Trafficking Taskforce Presentation 11:00-11:30 U.S Chamber Litigation Center 11:30 - 12:00 Secretary Alexander Acosta U.S. Department of Labor 12:00-12:45 Lunch Served 12:30-12:45 Concluding Remarks Please save the date for the spring 2018 LRC Meeting which will be held on May 3-4, 2017 DOL-17-0281-C and 17-0282-E-000131 pVERSIGHT Yerxa. Christopher W - ASAM Subject: Location: (9:30amPT- 10:30amPn SPEAKat National BeerWholesalersAssociation CaesarsPalace,3570 LasVegas Blvd South, LasVegas NV 89109 Start: End: Show Time As: Mon 10/9/2017 12:30 PM Mon 10/9/2017 1:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta;zzoasam·dpo-agents;zzOSEC·SCHEDULING-AND-ADVANC Wimer, E; Andrew P • OPA; Rogers, Jillian B - OSEC;Holland, EricW - OPA;Allende, Pedro M • OSEC Lineberger,Timothy L - OSEC;Davis,Clinton J - OASAM SecurityCenter; Darling, Kevin E - OASAM Security Center; Pipkins,CharlesP • Security Center;Jennings,Alexandra OASAM Security Center; Hoffman, Emily E - OSEC;Vilca,Joseph H. - OSEC;Patterson, Andrew M - OSEC Optional Attendees: Categories: Blue Category Time: TBD Location: Caesars Palace, 3570 Las Vegas Blvd South, Las Vegas NV 89109 Subject: SPEAK at National Beer Wholesalers Association Topic/Issue: Overtime regulation, importance of quality jobs and other policy issues of interest to independent, family owned businesses Attire: Business Staff: TBD Advance Staff: Eric Evans Notes/Background: See att POC: Patti Rouzie, , https: //W:Vw.nbwa.org/sites /default/files/2017-NBW A-Convention-Brochure.pdf EJ 10.09.2017 National BeerW... AMf f ICAN PVERSIGHT NBWA D RE: NBWA 14 DOL-17-0281-C and 17-0282-E-000132 Yerxa, Christopher W - ASAM Subject: Location: (9:45am PT- 10:30amPn SPEAKat National Beer WholesalersAssociation CaesarsPalace,3570 LasVegas Blvd South, LasVegas NV 89109 Start: End: Show Time As: Mon 10/9/2017 12:45 PM Mon 10/9/2017 1:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Optional Attendees: Acosta, Alexander - OSEC Acosta, Alexander - OSEC;RA Acosta; zzoasam-dpo-agents;zzOSEC-SCHEDULINGAND-ADVANCE;Wimer, Andrew P - OPA; Rogers,Jillian B - OSEC;Holland, EricW OPA;Allende, Pedro M - OSEC Lineberger,Timothy L - OSEC;Davis,Clinton J - OASAM Security Center; Darling, Kevin E - OASAM Security Center;Pipkins,CharlesP - OASAM Security Center;Jen ings, Alexandra - OASAMSecurity Center; Hoffman, Emily E - OSEC;Vilca, Joseph H. - OSEC; Patterson,Andrew M - OSEC;McDaniel, Keshia- OSEC;Mannix, Patrick M - ODEP; Downey, Daniel W - OASAM Security Center Categories: Blue Category Time: 9:45am-10:30am **SPEAK at 10:lSam** Location: Caesars Palace, 3570 Las Vegas Blvd South, Las Vegas NV 89109 Subject: SPEAK at National Beer Wholesalers Association Topic/Issue: Overtime regulation, importance of quality jobs and other policy issues of interest to independent, family owned businesses, overtime initiatives, career jobs with solid wages Attire: Business Staff: TBD Advance Staff: Eric Evans Notes/Background: See atta POC: Patti Rouzie, https://www .nbwa.org/sites/default/files/2017 -NBWA-Convention-Brochure.pdf Line-by-Line: 9:45am: Arrive in Greenroom, receive microphone get set-up 10: 12am: NBWA President and CEO Craig Purser introduces RAA, RAA enters stage from behind 10:15am: RAA speaks for 15 mins 10:30am: RAA departs stage D NswA AMf ICAN D RE:NBWA pVERSIGHT 1[Untitled]_20170... 15 DOL-17-0281-C and 17-0282-E-000133 --C)/eq ~ . o..;t~ f()J}f)fl>~ UJ\r-~ 0 ~ ~ ~ -- (2. ~ - fflS -t 0-0 i.._y-V'V\.!k" SECRETARYOF LABOR -+t) A\ :, ~ ~~~ (f-10 h .>o..-·t.l. ~ 1t~ 0 EVENT INFORMATION REQUESTFORM INSTRUCTIONS: Please fill out this form with as much information as possible as it relates to your request. Upon compl~tion, please email it to . Shoulq you have any questions, please do not hesitate to contact Secretary Acosta's scheduling office at (202)693-6 003 . Thank you! General Information Event Name: Name of requesting organization OR individual : Event Date(s) & Time (s). Proposed date & time for the Secretary's participation: 0 Event Location (city/state): Specifically what are you asking of the Secretary (Keynote/Speak/Meet/Tour/Q&A/Roundtable) If speaking, proposed duration remarks?: etc? Topic(s) to be discussed and/or spoken about: Good jobs beer industry , strong wages and benefit a POC(please include email, direct line and cell): and activity in community (Jobs in the Future) POCfo r day of: l AM HICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000134 Venue Informat ion Event Venue: Caesars Palace - Augustus Ballroom Venue Address and Phone Number : Event Room Name/Floor/Number: Program Information Agenda for Secretary's Portion of the Program IPlease attach agenda to include all speakers (Be sure to include name/ title of person introducing the Secretary) Event Speakers I Ltst name, title, organ ization of all other event speakers Press I Open or Closed, Photographer available, Will event be recor ded or broadcast? ~~ ~ J trade press/ recorded but not broadcasted/ flexib le with RAA being recorded VIP Attendees Y) __,Ailo--- o{ ~ -O. ( IJJ) J ~ Audience Size Expected Size: ~ e._ { ~ 1800_2000 I List name, ti t le, organizati on etc: President & CEO of Anheus~r Busc h & Pres ident of Heineken Describe Event/Room Setup Pod,umonstage I Stage, teleprompter, Theater seating - podium, audience setup, seating arran gement, etc : I Y L>-~ O ~~ r~ lo-:, ~~ - ~, ~ o~ ~ 2 AMEf \ICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000135 SECRETARY OF LABOR EVENTINFORMATIONREQUESTFORM INSTRUCTIONS: Pleasefill out this form with as much information as possible as it relates to your request. Upon completion, please email it to Should you have any questions, please do not hesitate to contact Secretary Acosta's scheduling office at (202)693-6003. Thank you! General Information Event Name: NBWA's 80th Annual Convention & Trade Show Name of requesting organization OR individual : National Beer Wholesalers Association (NBWA) Event Date(s) & Time (s): October 8- 11 Proposed date & time for the Secretary's participation: Event Location (city/state): Oct. 9 or 10, 9.30am-12pm - FLEXIBLE Las Vegas, NV Specifically what are you askingof the Secretary (Keynote/Speak/Meet/Tour/Q&A/Roundtable) If speaking, proposed durat ion remarks?: etc? Featured Speaker Topic(s) to be discussed and/or spoken about: Good jobs beer industry, strong wages and benefit a POC(please include email, direct line and cell): and activity in community (Jobs in the Future) POCfor day of: 1 AMf ICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000136 Venue Information Event Venue: Caesars Palace - Augustus Ballroom Venue Address and Phone Number: Event Room Name/Floor/Number: Program Information Agenda for Secretary's Portion of the Program IPlease attach agenda to include all speakers (Be sure to include name/ title of person introducing the Secretary) Event Speakers I List name, title, organization of all other event speakers Press I Open or Closed, Photographer available,Will event be recorded or broadcast? trade press/ recorded but not broadcasted/ flexible with RAA being recorde d Audience Size Expected Size: 1800_2000 VIP Attendees I List name, title, organization etc: President & CEO of Anheuser Busch & President of Heineken Describe Event/Room Setup I Stage, teleprompter, podium, audience setup, seating arrangement, etc: Podium on stage. Theater seating AMEHICAN pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000137 Miscellaneous Event Attire: Speakers - Business ' Attendees - Business Casual Should you plan to present the Secretary with any gifts or mementos, please identify them and their approximate value, so we can determine their compliance with ethics: Additional comments/information: INTERNALUSEONLY: Scheduling confl icts: SOLApproval: Agency vetting results: R: 3 AMEHICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000138 COMPLIANCE INFORMATION Vetting I Due to requirements from the White House and the Department of Labor's Office of the Solicitor, the Department must vet all participants who will speak during the Secretary's portion of the program . In addition, the Department must vet any organizational leadership, honorees, and/or staff the may interact with the Secretary. Furthermore, any individuals, including but not limited to featured speakers, honorees, staff, etc., whose names will be used in conjunction with that of the Secretary must also be vetted. The information necessary to complete this procedure can be found below. Use of the Secretary'sName I Please note that any use of the Secretary's name in publicity materials must be cleared by the Department of Labor, especially when used on fundraiser invitations and promotional materials . Any materials for approval should be included with completed form. Is your organization a recipient of grants from the Department of Labor? If so, which grant(s) and when? NO Are you a 501(c)3? NO Is your organization a Registered Lobby Organization? NO. but they have lobbyist m org. Is this a fund-raising event? If so, what group(s), organization(s), and/or individual(s) benefit(s) from the event? NO Are tickets being sold for the event? NO If so, what is the face value of the ticket? If there Is no ticket value for this event, what is the estimated cost of attendance? Is there a meal being served at the event? If so, what is the value of the Secretary's meal? Will the Secretary be receiving an award? Is there a monetary award? If so, what are the criteria for receiving the award? Please list past recipients of the award. 4 AM RICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000139 BOTH NBWA ANNUAL CONVENTION & TRADE SHOW CAESARS AM RICA\J pVERSIGHT PALACE • OCT . 8 - 11, 2017 #NBWAVEGAS DOL-17-0281-C and 17-0282-E-000140 b< • m JJ ( en G) ::c -I VUvvUI October 8 - 11 at Caesars Palace rn Las Vegas! An all-star lineup of engaging speakers will or return the enclosed registration form. Be sure to ·he discounted fees for early registration and for multiple registrants . make you r reservations at Caesars Palace today to receive 1tes. " ~ part of the digital conversation using IINBWAVegas . Join us on md lnstagram! "' t IUHIII JJJ ililll IIIIUIII 111111111 Caesars Palace is home to an abundance of din ing options. Mr. Chow has made its way to Vegas and Caesars . The luxurious eatery featuring Beijing cuisine transports guests to a glamorous, elegant and electric experience. A favorite among celebrities , Mr. Chow is known for its sense of style and design. In addition to Mr. Chow, several renowned chefs house their restaurants in Caesars Palace Including Gordon Ramsay Pub & Grill, Asi favorite Nobu , Bobby Aay's Mesa Grill an City's famous Rao 'sl 111111111 J1:1111111 ·1111111 ,JJUIIIII The Forum Shops at Caesars F something for everyone - from such as Burberry, Christian Dio Vuitton to Nike, Gap and Seph< Shops include more than 160 t: also can explore the Shoppes c or stroll around the vibrantly co Grand Bazaar shops. \ A• Craig A. ifurser NBWA President and CEO f the Board L Whether you are interested In fine dining, nightclub or Just taking in the sights, the t: Las Vegas is within steps of Caesars Pala 19 the general session program. We will hear from FOX f The Five and former press secretary for President George W. Bush, istributors to attend the This Important session offers a candid forum for ·s to hear from elected leaders and NBWA professional staff about the >ortunities that face the beer d1stribut1on industry today. Learn what 1elp your businesses grow and to stren gthen America 's independent 1istribution . I llv Locationonthe Vegas! This year's convention will offer an exciting program packed with great speakers, lnfor'T}ative presentations, and a floor filled with more than offering innovative products and services to help your company grow' .houghts on the current political climate. Sportscastin g legend ire some of th e best stories and highlights from his illustrious career . panel of retailers, moderated by industry veteran some of the most pressing industry issues impacting your business . V I UIUvv Don't miss getting your ticket to ride the High Roller! At 550 feet tall, this ride-offers unparalleled views of the downtown area, day and night. Afterward, head to the LINO, where shops, restaurants and bars are waiting. And don't forget to check out the shows on the strii: are interested in headline entertainment, c nr v n II w~nt tn rfanr.P thP ninht ;:iw.::iv vn, 1 DOL-17-0281-C and 17-0282-E-000141 D)> < m ESPN and ABC television networks. Musburger will take us behind the scenes of America's most memorable sporting events and talk about lessons learnedfrom some of the great sports figures of our time. JJ en -) G Former White House Press Secretary Dana Perino helps drive the conversation and provides polltical analysis on s co-host of the popular Five. She served seven ,t George W. Bush, ?partment right after :acks and eventually House Press Office where last day of the Bush tlso is a veteran of Capitol reporter at 1V stations and her home state of :::c -I >utthe dynamic political .e of American voters, the healthy democracy and s for advancing a policy ry. How can distributors, brewers and retailers work together to jump start beer sales across the country? How can the beer segment gain back market share? What do state legislative challenges mean for the independent beer distribution system and for the future of the beer category? Industry insider Bump Williams will lead a panel that will discuss how distributors, along with their supplier and retail partners, can work together to improve the healtt, of the beer category. to own and operate the family business, which opened its doors in 1934 with one truck and one brand. Today, F.E.B. Distributing and Capital City Beverages service 22 counties, sell more than 100 brands of beer and employ more than 200 people. Today, four of Bertucc1's nephews are involved in the business and are active in NBWA's Next Generation Group. One nephew, Brian Drennan, serves on the NBWA Board of Directors. During his time on the Board, Bertucci has worked to strengthen relationships among beer distributors and with state associations. He has served as chairman of the NBWA Political Action and the Government Affairs committees and has held all elected positioms. Schedule of Events Friday, October 8 NB\r\ Com Saturday, October 7 NB\!\ Com Reg!! Sunday, October B Regl: NBVv Com Educ Dlstr Meal Welc Monday, October 9 Regi: Educ ' Jim Matesich is the third generation to own and ~ operate Matesich Distributing Co., which was started in 1928. The company employs more than 100 people and services 11 counties in Southeast Ohio. Matesich is past president of the Board of Directors of the Wholesale Beer & Wine Association of Ohio and past co-chairman of the Beer Industry Electronic Commerce Cyoalition,a national organization that represents the combined interests of distributors and brewers in the development of electronic commerce throughout the beer industry. Oper Sess Trad, ' • t , football and basketball 1rgerhas served as a ;, a play-by-play man and ,,,..,.,. : ... , ...._. '"'""'' 'ln • 7 #.,...._.., Paul J. Bertucci is the executive vice president of F.E.BDistributing Company, Inc. in Gulfport and Capital City Beverages, Inc. In Jackson, Mississippi. Bertucci, along with his brother Frank Bertucci and his cousin l=ranl, n,onnan ron,oc,ont tho thirrl nonoratinn Sup~ Hos~ Tuesday, October 10 Regi: Oper Educ Gem Trad• Sup~ Hos~ Wednesday, October 11 DOL-17-0281-C and 17-0282-E-000142 o~ < G) 'Vlng most recently as position , he worked 1ships among beer state associations. He 1ainT1anof the Industry 3nt Affairs committees. ~ ,- m ~ u, C Craig Purser serves as the primary advocate for Amenca's 3,000 Independent beer distribut ion companies . which employ 135,000 Id brands of all sizes and 1sumer cho ice in every t 1nthe U.S. NBWABoard and iolicy, regulatory and ,ational level and ~·ssupport for state •ocate for independent :ate legislatures. He also rs to ensure the NBWA tie top poht1cal action untry year after year. 1ist in the nation's capital . 3d by The Hill newspaper 2016 . He serves on a oards including the !I Society and the Bryce ,oard of Governors. admit that the most o 1sgett ing to work with often saying, "We work \nd we take care of each owned beer distr ibutors I Sund ay, October 8 DistributorMemberrv1 eeting onday , October 9 Sunday, Oct ober 8 Distributors will want to arrive n time to join fellow beer d 1stnbutors and the NBWA elected leadersh ip for candid conversation about the most pressing issues facing distributors today in an off-the-record setting. Distributors will have the opportunity to share what's on their minds and receive feedback on today's hot topics . Don't miss this important session! With advances m technology and growing_ consu mer demand for variety , value and convenience, what y.,ill the beer aisle and beer retailer of the future look like? How can beer distributors help reta ilers meet consumer demand and succeed in an increasingly competitive marketplace? A panel of experts from across the t iers will discuss the ever-chang ing retail landscape and where it appears to be headed. Welcome Reception Sunday, October 8 Celebrate NBWA's 80 th Annual Convention & Trade Show and America's beer distributors! The NBWA Convention & Trade Show w ill kick off with a poolside reception, featuring delicious food and a wide selection of beer! Attendees will enjoy an evening under the stars , while catching up with fellow beer distributors and enjoying entertainment Vegas style. .!i1ui I la~ ,1:h j '· •' I This session 1sspec lflcally designed for next generation leaders and current leadersh ip to attend TOGETHER. Learn how to create a formal next generation development plan and communicate progress at each step along the career path . This plan will serve two purposes : to_ learn how to be the best possible leader and be fully competent to run the business, and to get approved as successor or equity manager by the company's major suppl ier partners. Discuss the roles of each person involved in executing the development plan , and explore career path opt ions and timing. A divers fled distributor cases a more profitable product lines including non-alcoho l and snack potentially benefit from distributorsh ip. HoweVE needs to account for th regulatory and busines ! products add . This pan dec1s,on to purchase ar alcohol bus iness or adc your beer d istribution b The most important as~ distribution business 1s to distribute beer, yet rr be overlooking critical < maintenance in supplie panel will explore the m hiring In-house counsel understanding of legal to contracts, labor law resources and other ch beer distribution busine w ill share best practice eff1c1encyand reduce h This seminar will discu~ franchise protection an issues that protect the DOL-17-0281-C and 17-0282-E-000143 ~~ m ent is a consideration JJ::redit, and strong, CJ)d value to all three of the good and - 3S :::[ d don't. There Is a lot friendly confines of the 1ese days, including ,e laws, lawsuits among >rs and various attempts Jes.OMAC wiU delve into ,r the Industry as well as Jsiness. G) trlbutors and brewers ___J --, craft distribution come a time when ers to your portfolio you. Whether due aw geographies, or 1 do you gain their 1 mutually beneficial happens If they refuse tion rights as part of ,in Baker Tilly's guest 'f!JW of best practices for :>liowith craft brewery esltant to Join your roster. ;i dered how the superIn taxes? There are nvestors use that are l wise. If you own or ,roperty, this discussion , will break down the tax cost segregation. He ,l's tax and engineering 3 h1 dlrHnnfc:\ rli.,lrlo personal property from real property, and reduce taxable income, thus lowering your taxes. Clugston will work with your CPA to bring this deduction straight to you. This seminar is worth $60,000 - $100,000 for every $1 million In building cost basis. Beer business dynamics are changing at an astounding pace, making warehouse requirements more complex than just 12 months ago. Distributor acquisition, brand expansion, go-to-market changes and customer requirements ar.e all contributing to a multifaceted business model. To keep pace with changing_dynamics, distributors must continue to modernize their warehouse ca~ability. Using sample warehouse design analysis, warehouse layouts and case studies, PDC will demonstrate the out-ofthe-box approach that distributors - from 1 million cases to 15 million cases- must take to plan for the future. Business success is based on strategy, structure and systems. If your organization structure breaks down, your strategy and systems also will break down. Organization structure impacts effectiveness and profits more than any other aspect of a wholesaler. This seminar will address these key questions: Is your organization structure aligned with your o~erall business strategy? Does your organization structure have too many layers? What are the right spans of control for key functions? Who should manage specific functions? What are the mnc::t rnmmnn nrn,::inl7,::,tinn c::tri1rh 1ro rloc::inn errors? How can you balance organization structure needs and costs? Are your managers doing $50 an hour work or $20 an hour work? Today's distributor landscape has evolved into one dominated by consolidated mega-distributors and large suppliers, both characterized as "Goliaths," and by smaller successful distributors more typical of the proverbial "David." Distributors like David may have a harder time surviving when Goliath threatens. However, just as in the biblical parable, there are power play options for David that when used with nimbleness and skill willenable David to stay in business and thrive. Statistics tell us that the average individual entering today's workforce will have seven different jobs before the age of 38. Simple math would tell you that the average length of employment per job if they entered at age 22, would be just over two years per job. It's stats like these that have the industry complaining about this generation known as millennials. This seminar will help distributor management teams learn when and with whom to apply the right influence, time and effort, to develop the right indiv iduals. Participants will leave with an understanding of how to build, structure. coach , train and develop the "36-month employee. " NBWA members have E hand how increasing SI resulted In a variety of c warehouse operations, constraints, longer pick pick errors and high err One new solution is an warehouse automation orchestrates proven pie reduce travel time while productivity, pick accur space. A panel will shar led them to warehouse implementation proces: tn coming years, the m, most Importantly, result Tuesday, Octob e r 11 NBWA and Fintech wlll on the alcohol industry' data managed by the E of Fintech's OneSource and reliable sales to ret supply in the beer indui a new level of insight to beer distributors and th seminar will bring toget industry data to presen trends that are shaping DOL-17-0281-C and 17-0282-E-000144 'o)> eerbrands every G) tant to build the business, too. Top ,rofessionals will share >help you develop a h to selllng your own ands you build, the jobs ,e commun ity projects n how you can use social nal media to effectively consumers, elected stakeholders . Hear best tnbutors around the about resources NBWA , distributor members so >19results without a big :::c: -I eetings fall short of :1tions because they don't ince and, ultimately, ; are not met. Fox will 1mentals of developing an :1genda- making sure to se Items that will make a ,ure that the knowledge ransferred does so. If JS are not inspiring and 1ms, this session is a jeload truck driver e four times before it :>ensand closes the a day. This coupled with explosive SKU growth and reduction m the time avatlable for your warehouse to pick and load the delivery vehicles each day has wholesalers reengmeenng their operations. This seminar will detail the evolution of delivery methods and the options available to distributors today. Learn a fivestep methodology for evaluating your delivery strategy. By choosiny the right delivery method, distnbutors will improve operational and delivery efficiencies and increase profitab1hty. Industry veteran and company founder Tracy Neal will introduce you to a panel of distributor sales managers who can honestly say that display tracking is no longer the headache that it was before using CPG Data as an execution tracking platform. After a brief introduction to how CPG Data works, you 'II hear real stones from distributor peers m an interactive Q&A between the audience and the panel. If you can take away one idea that saves you one hour across the 40 incentives you'll track this year, then this session will be worth a whole week's worth of work in value - or an extra weekend! IBG has spent the last six to eight months researching the historical trends of the three-tier system includin g cost, volume , margin . profitab ihty, consumption per capita, share of stomach, etc . A complete understand ing of these trends s cntical for anyone consider ing buying , selling or merg ng. With a focus on distributors and their ability to add value to brewers, retailers and consumers, this seminar w all discuss the strenaths and weaknesses of leaders are finding it ha with performance revle• and Barrett will share p evaluating your compar and leading more enga, employees. the three -tier system and present ways to maximize the strengths and minimize the weaknesses. With the emergence of alternative distribution systems such as Amazon, Dnzly and self-distribut ion, tt Is crlt1cal that distributors enhance the sales, market ing and logist ic benefits they deliver What will the new American Health Care Act mean for you and your dist ributorsh ip? Since the inception of health care reform, companies across America have been looking for ways to reduce one of their top five line-Item expenses - health insurance. Hear from a panel of industry experts and fellow distributors on creative ways to manage member dollars outside of the traditional appro13chto avoid wasted spendin g and provide state-of-the-art benefits to your employees. Annually, your employees expect feedback on their performance . Whether It's good or bad, they want to know how they're delivering against expected results. The question, however, is how effective is your process? El'T'ployee expectat ions are Dellvenng high quality J customers means more wholesalers and retalle1 challenge to convey thi: who view quality as an expense . This interactil, move beyond basic dra will focus on how to pre consultant-level serv ice Attendees will leave thi: effective selling tools to Improving quality mean Thts seminar win d iscu!: operat ons with the cha of labor constraints, pa and the shrinking spacE ensure that a distributo the future. Golladay will use of technology first 1 process and then how 1 technology that assists Lastly, he will share the bu1ld1nga collaborative departments , realizing 1 not operate 1na vacuun gain an understand ing , the warehouse drives a chain. DOL-17-0281-C and 17-0282-E-000145 o< tors are excited to share new and innovative products and services m ~year's Trade Show at Caesars Palace! JJ~ CJ'i _ zl> G) :I: P.chnologv -I ducts m •ersid1-1 ny :imotions npany ,c. :truction BevMage Group entu1cs ,c. IC. llS Inc. '3, Brewery Plastics Inc. Brother Mobile Solutions Buck's Trucks, LLC Rugsy Brewing Cascade Corporation C:BDistributors Cenual Waters Brewing Company Chila rt Cicerone Certification Program Cirrus Tech, Tnc. CM Profit Group CMGlobal Coast to Coa:,t Printing Supplies, LLC Copa Di Vino Copper Mountain Beverage Cornelius Beverage Technologies CPG Data, LLC Craft Beers of Canada Craftsmen Utility Trailer Crown Equipment Corporation Data Consultants, Inc. Datasaurus De'LaRoca Jewelrv fr Manufacture Dcmauc Digital Meclic1Warehouse Displavs by Martin Paul lnc. EasyCheck Eclipse Flem Service LLC Encompass TP.chnologies Entrcmatic: enVista EPIC Worldwid"' Essenua Water Fintech F'reightline.r Trucks Garage Brewing Co. Geloso Bcvcrngc Group Global Keg Go GPS Good Ass Beer Goodyear Tire and Rubber Company Grandstand SportsweJr and Glass,,·are GreatVines GreenMilc LLC Guns fr Oil Brewing Company Hackney Halo HOA Architrcts I lcartland Computers Inc. Heineken USA Herlitz Inventory Management Inc. l lcsse, a Division of Cambli Group Hey Y'all! Hard Iced Tea HighJump Hoop Tea Hy:,ter Comp,my iControl lnflatable Images InTouch GPS Iowa Rotocast Plastics, Inc. Ippolito Christon & Co. IT\\T Pressure RegulatQr Technologies 1 KV Kanopy, lnc. Lightweight Containers Inc. King III Solutions Lantech LexJet LilyPad Solutions Lincoln Motor Companv Lion Brewery Liquid Ice Energy Drink Lost Vineyards LPM Systems LR Imnorts LLC Mcshane Construction Co MHW Ltd Michele fr Group Moclelin; Inc. l\·!ickey Truck Bodies Micro Matic USA, Inc. MicroStar Logistirtt,; Mike's Hard Lemonadf' MillerCoors Minhas Craft Brewery ·MKE Brewing Co. Motus MuHu Inc. New Age Industrial NILFTSK Omnitracs OnTra k Software Orion Packaging Owners-Rep Pabst Brewing Company Parallel Products I'DC Phase Change Energy Solt Phusion Projects Polar Beverages Rehrig Pacific Co. Rite Hite Corport1tion Rory Shogren Insurance A Farmers lnsuranrP Rutherford & Associates Ryder ·s.M. Wilson & Co. Safety Vision Salii>nl \1anagi>ment Sapporo USt\, Inc. S.izPrac Ctimp,iny ~cotto Cellars DOL-17-0281-C and 17-0282-E-000146 b )::> <~ m:IJ JJO It's easy to register for NBWA 's 80 1' Annual Convention & Trade Show: CJ)P _z G) www.nbwa.org/convent ion :I: --I d fl\ National Beer Wholesalers Association P.O. Box 79556 Baltimore, MD 21279-0556 LLC l C, Verc1que - ~vstc:m Logistu .:- ,t Louis ' IP 703-519-3079 VPX Sports Waterfall R, c;mc Alr1::,l,,_.1 Wa) matK lnr Wellbeing Brewing Comp,m, Ill acion of Cider Makers gc W1ld Tonic Wool Ia Brf'\\lin~ Company - fore ign Beer Lmports Wrangler Workwcar, VF Workwea1 Yale Mc1tcnJ '::,Hamlhng Co1 porc1tion t Zeb ra T Prlm ologiei. g Inc . riesBV tn Sponsors to thank the following companies for their sponsorship of the 8011, >nand Trade Show : Sponsor n Mu•u.i.l ,I/( u\'• Diamon d Sponsor ~ Bronze Leve l Sponsors J.P.Morgan ' There are two ways to save! Get $50 off the full re91stration fee when you register by Substant ially reduced fees also are available for three or more registrants from the same company . These savings are increased with early registration . Taxi service for the five-mile trip from the airport to Caesars Palace Is approximately $20 . Hops & Barley Sponsor fin te c h evel Sponsors mmoreland@nbwa.org Business casua l Is the suggested d ress for official convention events . A jacket may be required for some Las Vegas dining . _ Temperatures for Las Vegas in October average in th e 80s dufing the day and in the 60s in the evening . A Jacket or sweater is recommended for evenings and coo l hotel meeting rooms . "vl /\. Sponsors as of June 23, 2017 nlzed sponsorshipopportunties, pleasecontact Mary Michalikat or 312-265-9650 or Matt McLt ughllnat matt@corcexpo.comor 312-265-9655. Contact the NBWA Membersh ip and Meetings Department at 800-3006417 or email info@nbwa.org with any Caesars Palace is this year's Annua l Trade Show: Caesars Palace 3570 Las Vegas Bi Las Vegas , NV 89· To make hote l resE 1-866-227-5944 . When mak ing youi reservations, be Sl that you are attenc Convention & Trad advantage of disc, rates: $209 per night - J $217 per night - P and Octavius Tow, TheNBWAg can sell out prior t, 2017. Once the blc rates cannot be Ql DOL-17-0281-C and 17-0282-E-000147 ~f Rle:GDSTRAT"O'\III\IIS-'IU.JJC1r"O!\l'S~ l\flD l"OU m- Please allow three (3) weeks for a registration acknowledgment from NBWA. JJ( ~~ IT'S EAS Y Te REGIS TE R! WEB: www.nbwa.org/convention G') :I: -I MAIL: National Beer Wholesalers Association P.O. Box 79556 Baltimore, MD 21279-0556 EMAIL mmoreland@nbwa.org FAX: 703-519-3079 GENERAL INFORMATION 0 0 0 0 0 Use one form for each person or couple registering. Photocopy additional forms as needed. A check payable to NBWA for all fees due must accompany this form or provide VISA or MasterCard information. All funds must be in U.S. dollars. American Express is not accepted. Type or print all requested information. Badges will be printed exactly as the forms are submitted. The cut-off date for pre-registration is October 3, 2017. After that date NBWA cannot guarantee your registration packet will be available in the pre-registration lines. After October 3, 2017, please register on-site. VOTING DELEGATE CREDENTIAL ., NBWA member distributors in good standing are asked to designate one person from their company to act as their voting delegate during the NBWA Distributor Member Meeting on Sunday, October 8, 2017. The voting delegate credential box should not be signed by the Questions? s person who is designated as the company's voting delegate but by another officer of the company. i :I,~ -~ --. -I i~; '11•1• ~I "· ..i ~ CANCELLATION AND •e1 · EFUND POLIC I ES 0 All requests for refunds must be made in writing. Telephone requests cannot be honored. • A 100% refund will be made on registration cancellations received in writing by September 15, 2017. 0 A $100 administration fee per person will be charged on registration cancellations received in writing September 16 through September 29, 2017. 0 No refunds will be made for registration fees, welcome reception tickets or seminar tickets after September 29, 2017. 0 Send written notification of cancellation to Maggie Moreland by fax to 703-519-3079or email mmoreland@nbwa.org. 0 NON-ME MBER SUPPLI ERS 1 I In order to attend the NBWA Annual Convention, NBWA policy requires all suppliers to the beer distribution industry to be NBWA associate members. For membership information, please contact the NBWA Membership Department at 800-300-6417, ext. 114. Call N • WA at 800-3• 0-6417 or email infoianllwa.org .r- w ~ HOTEt RESERVATIONS All hotel reservations should be made directly through: Caesars Palace 3570 Las-Vegas Boulevard South Las Vegas, NV 89109 To make reservat ions, call: 1-866-227-5944 The last day to make hotel reservations and receive the discounted room rate is September 8, 2017. The NBWA guest room block can sell out prior to September 8, 2017. Once the block is sold, room rates cannot be guaranteed. The discounted room rates are: $209 per night - Julius Tower $217 per night - Palace, Augustus and OctaviusTowers . Be sure te indicate you are attending the NBWA Convention and Trade Show in order to take advantage of the discounted room rates . DOL-17-0281-C and 17-0282-E-000148 Yerxa, Christopher W - ASAM From: Sent: To: Patti Rouzie Saturday, August 26, 2017 4:45 PM McDaniel, Keshi a - OSEC Subject: NBWA Follow Up Flag: Flag Status: Flag for follow up Completed Hi Keisha, Thank you for your call regarding the Secretary's participa t ion in NBWA's 80th Annual Convention and Trade Show. We would be honored to have the Secretary speak to our group and hear his thoughts on overtime regulation, the importance of quality jobs and other policy issues of intere st to independent, family-owned businesses. Below is a link to NBWA's full Convention program. After reviewing, please let me know if you have additional questions:htt ps:// www.nbwa.or g/ sites/ default / files / 2017-NBWA-Convention -Brochure. pdf Thank you again, Patti Patti Rouzie I Vice President, Member ship and Meetings National Beer Wholesalers Association 1101 hing St., Ste 600 Alexandria VA 22 31-l 0: 80TH NBWA ANNUAL CONVENTION &TRADE SHOW CAESARS PALACE · OCT. 8 - 11, 201 7 •NBWAVEGAS America's Beer Distributors: Delivering Choice and Value Facebook I Twitter I YouTube www.nbw a.org AMf f ICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000149 Yerxa, Christopher W - ASAM Patti Rouzie ~ Thursday, August 31, 2017 10:28 PM McDaniel, Keshia - OSEC RE:NBWA From: Sent: To: Subject: Hi Keshia, I look forward to hearing from you. We are keeping our fingers crossed. Let me know if you need anything else. Patti From: McDaniel, Keshia - OSEC[mailto:McDaniel.Keshia@dol.gov] Sent: Thursday, August 31, 2017 10:49 AM To: Patti Rouzie Subject:RE: NBWA Hi Patti, I was out of the office earlier this week. I just wanted to reply to your voicemail and email. Thank you for the infonnation below. We should have a decision later this week on whether if the Secretary will be able to participate at the convention. Thank you again, Keshia From:Patti Rouzie Sent: Saturday, August 26, 2017 4:45 PM To: McDaniel, Keshia - OSEC Subject: NBWA Hi Keisha, Thank you for your call regarding the Secretary's participation in NBWA's 80th Annual Convention and Trade Show. We would be honored to have the Secretary speak to our group and hear his thoughts on overtime regulation, the importance of quality jobs and other policy issues of interest to independent, family-owned businesses. Below is a link to NBWA's full Convention program. After reviewing, please let me know if you have additional questions. htt ps:// www.nbwa.or g/ sites/ default / files / 2017-NBWA-Convention -Brochure. pdf Thank you again, Patti Patti Rouzie I Vice President, Membership and Meetings National Beer Wholesaler s Associ ati on 1101 King St., Ste 600 Alexandr ia, VA 223 H O: •-·----C : • AM HICA'\J PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000150 America's Beer Distributors : Delivering Choice and Value Facebook I Twitter I YouTube www .nbwa.org AM HICA\J PVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000151 Verxa, Christopher W - ASAM Subject: Location: KEYNOTE-RAGAEvent Mizner Ballroom and Courtyard, The Cloister, 100 Clois ter Start: End: Show Time As: Fri 9/8/2017 6:00 PM Fri 9/8/2017 8:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Drive, Sea Island, GA 31561 Acosta, Alexander - OSEC Acosta, Alexander - OSEC;RA Acosta; zzoasam-dpo-ag ents;zzOSEC -SCHEDULINGAND-ADVANCE Lineberger,Timothy L - OSEC;Darling, Kevin E - OASA MSecurity Center; Davis,Clinton J - OASAM SecurityCenter, Pipkins,CharlesP - Secu rity Center;Jennings,Alexandra OASAM SecurityCenter;Aivazis, EliasK - OASAM Secu rity Center; Hoffman, Emily E OSEC;Downey, Daniel W - OASAM SecurityCente r; McDaniel,Keshia- OSECVilca, ; Joseph H. - OSECAllen ; de, Pedro M - OSEC Optional Attendees: Categories: Purple Category Time: 6:00pm - 8:00pm Location: Mizner Ballroom and Courtyard, The Clois ter, 100 Cloister Drive, Sea Island, Georgia 31561 Subject: Reception & Keynote Dinner Topic/Issue: Attire: Business Staff: NIA Notes/Background: Keynote Dinner. 100 attendees. Reception 6-7pm in Mizner Courtyard and 7-8pm in the Mizner Ballroom POC: Amanda Gonzalez, Event Line by Line Friday, September 8, 2017 6:00pm- Pre-event Reception begins 7:00pm - Dinner begins 7:15pm-Attomey General Rutledge kicks off the progr am, introduces Mr. Acosta (5 minutes) 7:20pm - Mr. Acosta Speaks (30 minutes) 7:50pm-Attomey General Reyes thanks Mr. Acosta and makes closing remarks (5 minutes) 7:55pm.:.. Dinner concludes · Advance Notes: RAA will be speaking from a stage at the front of the ballroom which will be equipped with a podium and handheld microphone. We are happy to make any adjus tments to the stage and to accommodate any AV needs you may have. Attending Attorney Generals: Mtorncys 1 Atvf f CAN pVERSIGHT Lener.ii 33 DOL-17-0281-C and 17-0282-E-000152 Steve Leslie Cynthia Pam Chris Curtis Tim Doug Wavne, Alan Martv Ken Sean Brad ) j Marshall Rutledge Coffman Bondi Carr Attorney General, Alabama Attornev General, Arkansas Attorney General, Colorado Attornev General, Florida Attorney General, Georgia Hill Attorney General, Indiana Fox Attorney General, Montana Peterson Attorney General, Nebraska Stenehjem Attorney General, North Dakota Wilson Attorney General, South Carolina Jackley Attornev General, South Dakota Paxton Attorney General, Texas Reyes Attorney General, Utah Schimel Attorney General, Wisconsin ) ' j ERCAgendaERCRetreat - ERC2017 Meetingl_ERC-Retreat_lnv11 Speaker .pcff Attending AGs.p...Speaktng Memo.. AMt f11CA 34 I pVERSIGHT DOL-17-0281-C and 17-0282-E-000153 TO: FROM: DATE: RE: The Honorable Alexander Acosta Scott Will August 14, 2017 2017 ERC Retreat The purpose of this memo is to provide you preparatory information for your keynotes remarks at the Friday , September 8 dinner at the RAGA ERC Retreat. If you have any questions , please don't hesitate to call me (cell: (515) 783-7582). The dinner will be held Friday, September 8, from 7 :00-8:00 PM EDT, inside the Mizner Ballroom of The Cloister at Sea Island ( 100 Cloister Dr., Sea Island, GA) as part of the ERC Retreat. The audience will consist of more than 100 registered attendees including an anticipated 15 Republican Attorneys General, their families, and our 50 top corporate members . Please note, there will be a reception from 6:00-7:00 PM EDT in the Mizner Courtyard, preceding the dinner. If your schedule allows, we would be honored for you to attend. Below is a draft run of show for the dinner: Frida y, September 8. 2017 6:00pm - Pre-event Reception begins 7:00pm-Dinner begins 7: 15pm - Attorney General Rutledge kicks off the program, introduces Mr. Acosta (5 minutes) 7:20pm - Mr. Acosta Speaks (30 minutes) 7:50pm - Attorney General Reyes thanks Mr. Acosta and makes closing remarks (5 minutes) 7:55pm - Dinner concludes You will be speaking from a stage at the front of the ballroom which will be equipped with a podium and handheld microphone . We are happy to make any adjustments to the stage and to accommodate any AV needs you may have. We hope you will be able to touch upon continued efforts to rescind various overreaches of the previous administration such as the overtime rule and joint employer mandate . Our audience would also be thrilled to hear about any progress made on licensing and regulatory reform as well as ways we can all work together to bolster our economy. Atv * * * RepublicanAttorneysGeneralAssociation 1747 PennsylvaniaAvenue,NW, Suite 800 Washington,DC20006 (202) 296-5910 lnfo@RepublicanAGs.comwww.RepubllcanAGs.com Twitter: @RepubllcanAGs Facebook.com/RepublicanAGs PVERSIGHT * * * DOL-17-0281-C and 17-0282-E-000154 Republican Attorneys General Association 2017 ERCRetreat-September7-10,2017 Attending Attorneys General General,Arkansa General,Colorado General,Florida General,Geor ia General,Indiana General,Montana General,Utah General,Wisconsin AMERICAN pVERSIGHT •as of 8/10/2017 DOL-17-0281-C and 17-0282-E-000155 RAGA ,. , , 1,1 ' • ' ,1 • • •• • j, \, "l.. • ,.,• . 2017 ERC RETREAT AGENDA Thursday, September 7 - Sunday, September 10, 2017 The Cloister at Sea'lsland • Sea Island, Georgia Thursday, September 1:00PM - 6:00PM 7Lh 6:00PM - 8:00PM Friday, Seplem !J er 81" 7:00AM - 9:00AM 8:00AM-11 :30AM 11:30AM -1 :30PM 2:00PM - 5:00PM 6:30PM - 8:30PM 6:00PM - 8:00PM Registration Location: Oglethorpe Room Welcome Reception & Dinner Location: Black Banks Terrace Breakfast {on own) Optional Mornin2 Activities Available Lunch Location: Spanish Lounge Ootional Afternoon Activitie s Available Reception and Dinner Location: Mizner Ballroom Reception and Dinner Location : Ocean Room, Cou ~i•ihe8Miii4 ,hii§ifoii 7:00AM - 9:00AM Breakfast ard & Patio on own Subject to Change AMf HICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000156 You are cordially invited to attend the 2017 Edmund Randolph Club (ERC) Retreat with Republican Attorneys General Thursday, September 7th - Sunday, September 10th TENTATIVEAGENDA Thursday, September 7 Welcome Reception and Dinner Friday, September 8 Breakfast Optional Morning Activities Available Lunch Optional Afternoon Activities Available Dinner Saturday, September 9 Breakfast Optional Morning Activities Available Lunch Optional Afternoon Activities Available Golf Tournament* Closing Reception and Dinner * Slots Available on First-ComeFirst-ServedBasis Sunday, September 10 Breakfast The Cloisterat Sea Island- Sea Island,Georgia J. \J PVERSIGHT DOL-17-0281-C and 17-0282-E-000157 Yerxa, Christopher W - ASAM Subject: Location: Meeting w/ LeadershipConferenceon Civil and Human Rights Employment Task Force Secretary'sConference Room Start: End: Show Time As: Fri 8/4/2017 11:00 AM Fri 8/4/2017 11:30 AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC Acosta, Alexander - OSEC;RA Acosta ; zzoasam-dpo-agents; zzOSEC-SCHEDULING-AND -ADVANCE;Conway,Molly E - OSEC;Ray, Paul J - OSEC; Geale,Nicholas C. - SOL Jennings,Alexandra - OASAM Security Center; Davis,Clinton J - OASAM Security Center; McDaniel, Keshia- OSEC;Darling, Kevin E - OASAM Security Center;Hoffman, Emily E OSEC;Downey, Daniel W - OASAM Security Center;Gardner,JanelleA - OSEC;Vilca, Joseph H. - OSEC;Lineberger,Timothy L - OSEC-Aivazis,EliasK - OASAM Security Center; Patterson,Andrew M - OSEC Optional Attendees: Time: 11:00am-11:30am Location: Secretary's Conference Room Subject: Meeting with Leadership Conference on Civil and Human Rights Topic/Issue: Employment Task Force Attire: Business Staff: TBD Attendees: TBD Notes/Background: POC: June Zeitlin Agenda • Introduction • OFCCP and Enforcement ofE.O. 11246 - • • • • • • • Overtime Rule - • DOL Budget - • The Leadership Conferenceon Civil and Human Rights Lawyers· Committeeon Civil Rights UnderLaw National Partnershipfor Women& Families Human Rights Campaign Association of UniversityCenterson Disabilities NAACP National EmploymentLaw Project (NELP) • AFSCME Participants • Kristine Lucius, Executive Vice-President for Policy, The Leadership Conference on Civil and Human Rights • June Zeitlin, Director of Human Rights Policy, The Leadership Conference on Civil and AMf f ICA PVERSIGHT Js DOL-17-0281-C and 17-0282-E-000158 • • • • • • • • • Human Rights Sarah Fleisch Fink, National Partnership for Women and Families, Employment Task Force Co-Chair Yona Rozen, AFL-CIO, Employment Task Force Co-Chair Dariely Rodriguez, Lawyers' Committee for Civil Rights Under Law, Employment Task Force Co-Chair Judy Conti, National Employment Law Project Andy Imparato, Associatio~University Centers on Disabilities Robin Maril, Human Rightq_jn paign , Michael Messina, AFS ;Mf'.attendees... Hilary Shelton, NAACP - Brent Wilkes, LULAC _J iJ FW: Medm g 11 st of attendees Request from T... AMf YICAN pVERSIGHT iJ agenda.doo: 36 DOL-17-0281-C and 17-0282-E-000159 Yerxa, Christopher W-ASAM From: Sent: To: Subject: Attachments: Gardner,JanelleA - OSEC Friday,July 14, 20174:44 PM McDaniel,Keshia- OSEC FW: Meeting Requestfrom The LeadershipConference on Civil and Human Rights Meeting_request_Sec_Acosta .pdf For sims please JanelleGardner Director of Scheduling U.S.Department of Labor (202)693-6000 From: Lineberger,Timothy L - OSECOn Behalf Of Acosta,Alexander- OSEC Sent: Friday,July 14, 2017 4:23 PM To: ExecutiveSecretariat;Gardner,JanelleA - OSEC Subject: FW: MeetingRequestfrom The LeadershipConferenceon Clvll and Human Rights fyi From: KristineLucius Sent: Friday,July 14, 7 :4 PM To: Acosta,Alexander- OSEC Cc: Anderson,Byron E - OSEC;Ray,PaulJ - OSEC;Way, Elizabeth- EXECSEC; Palmer,WayneD - OSEC Subject: MeetingRequestfrom The LeadershipConferenceon Civil and HumanRights Dear Secretary Acosta , I am writing on behalf of The Leadership Conference on Civil and Human Rights Employment Task Force to request a meeting with you to discuss our priorities for the Department of Labor. The Leadership Conference is a diverse coalition of over 200 national organizations committed to advancing civil and human rights for all who live in America. The Employment Task Force is chaired by three member organizations-AFL-CIO, Lawyers' Committee for Civil Rights Under Law, and the National Partnership for Women & Families. We are seeking to meet with you this month and look forward to the opportunity to discuss the wide range of the Department's civil and human rights issues . June Zeitlin, Director of Human Rights Policy at The Conference, will follow up with your office. She can be reached at I or - lliiiiilil •••• Sincerely, Kristine Lucius Kristine Lucius AM HICA'\J PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000160 Executive Vice President The Leadership Conference on Civil and Human Rights The Leadership Conference Lducation Fund 1620 L Street NW, Suite I I 00 Washin ton, DC 20036 PRIVILEGE AND CONFIDENTIALITY NOTICE: This email and any attachments may contain privileged or confidential information and is/are for the sole use of the intend ed recipient(s). Any unauthorized use or disclosure of this communication is prohibited. If you believe that you have received this email in error, please notify the sender immediately and delete it from your system. Af'v'1tf11CA 2 I pVERSIGHT DOL-17-0281-C and 17-0282-E-000161 TheLeadershiConf p erence onCivilandHumanRights 1620L Street,NW Suite1100 WashmgtonDC 20036 202466.3311 voice 202466.3435fax w "vW ov,lnghtsorg r'' f The Leadersh ip Conference The Leadership Conference on Civil and Human Rights Employment Task ForceMeeting with Secretary Alex Acosta August 4, 2017 Final List of Attendees • Kristine Lucius, Executive Vice-President for Policy , The Leadership Conference on Civil and Human Rights • June Zeitlin, Director of Human Rights Policy, The Leadership Conference on Civil and Human Rights • Sarah Fleisch Fink, National Partnership for Women and Families, Employment Task Force Co-Chair • Yona Rozen, AFL-CiO, Employment Task Force Co-C hair • Dariely Rodriguez, Lawyers' Committee for Civil Rights Under Law, Employment Task Force Co-Chair • Judy Conti, National Employment Law Project • Andy Imparato, Association of University Centers on Disabilities • Robin Maril, Human Rights Campaign AM RICAN • Michael Messina, AFSCME • Hilary Shelton, NAACP • Brent Wilkes, LULAC pVERSIGHT DOL-17-0281-C and 17-0282-E-000162 TheLeadership Conference on CivilandHumanRights 1620L Street,NW Suite1100 Washington, DC 20036 202466.3311 voice 202466.3435fax w1Nwovilrightsorg r'' f " The leader ship Conference The Leadership Conference on Civil and Human Rights Employment Task Force Meeting with Secretary Alex Acosta August 4, 2017 Agenda AMERICAN PVERSIGHT • Introduction • The Leadership Conference on Civil and Human Rights • OFCCP and Enforcement of E .O. 11246 • Lawyers' Committee on Civil Rights Under Law • National Partnership for Women & Families • Human Rights Campaign • Association of University Centers on Disabilities • NAACP • Overtime Rule • National Employment Law Project (NELP) • DOL Budget • AFSC ME DOL-17-0281-C and 17-0282-E-000163 TheLeadership Conference onCivilandHumanRights 1620l Street,NW Suite1100 Washington, DC 20036 202.466.3311 voice 202.466.3435 fax www.civ1hi9hts.org fFf"" f.. The Leadership Conference The Leadership Conference on Civil and Buman Rights Employment Task Force Meeting with Secretary Alex Acosta August 4, 2017 Final List of Attendees • Kristine Lucius, Executive Vice-President for Policy , The Leadership Conference on Civil and Human Rights • June Zeitlin, Director of Human Rights Policy, The Leadership Conference on Civil and Human Rights • Sarah Fleisch Fink, National Partnership for Women and Families, Employment Task Force Co-Chair • Yona Rozen, AFL-CIO, Employment Task Force Co-Chair • Dariely Rodriguez, Lawyers' Committee for Civil Rights Under Law, Employment Task Force Co-Chair • Judy Conti, National Employment Law Project • Andy Imparato, Association of University Centers on Disabilities • Robin Maril, Human Rights Campaign • Michael Messina, AFSCME • Hilary Shelton, NAACP • Brent Wilkes, LULAC AM RICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000164 Yerxa, Christopher W - ASAM Subjed: Location: SPEAK-PlasticsIndustry Fly-In ReserveOfficers Association - 1 Constitution Ave NE,Washington, DC 20002 - 5th Floor Ballroom Start: End: Show Time As: Wed 7/26/2017 8:30 AM Wed 7/26/2017 9:00 AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC RA Acosta;zzoasam-dpo-agents;zzOSEC-SCHEDULING -AND-ADVANCE;Geale, Nicholas C. - SOL;Wimer, Andrew P - OPA; Rogers,Jilhan B - OSEC Davis,Clinton J - OASAM Security Center; Pipkins,CharlesP - SecurityCenter; Gardner, JanelleA - OSEC;Vilca,Joseph H. - OSEC;Jennings,Alexandra - OASAM Security Center; McDaniel,Keshia- OSEC;Aivazis,EliasK - OASAM Security Center;Hoffman, Emily E OSEC;Mannix, Patrick M - OSEC;Darling, Kevin E - OASAM SecurityCenter; Downey, Daniel W - OASAM SecurityCenter Optional Attendees: Categories: Blue Category PlasticsFly- in Event BRIEF.do... Brief: Time: 8:30am - 9:00am Location: Reserve Officers Association - 1 Constitution Ave NE, Washington, DC 20002 - 5th Floor Ballroom Subject: SPEAK- Plastics Industry Fly-In Topic/Issue: Possible speaking topics: apprenticeship, workforce development, SkillsGap, EO on Apprenticeship Attire: Business Staff: TBD Notes/Background: Audience: 100. 30 minutes with Q&A POC: Suzanne Morgan; Advance: Eric Evans ij Plasttcs lndumy Invitation -... 8:20AMRAA arrives; Greeted by Jim Murphy and SuzanneMorgan proceeds to hold area (outside ballroom) 8:28AM RAAproceeds to 5th Floor Ballroom stage 8:29AM RAAintroduced by James Murphy - Chairman of Plastics Industry Association. AMf HICAN PVERSIGHT 43 DOL-17-0281-C and 17-0282-E-000165 8:30AMRAAbeginsremarks20 minutes 8:S0AMRAAQ&A session 9:00AMRAAconcludesremarks/Q&A- DEPARTS Advance Notes • RAAto be greeted in the lobby by Suzanne Mor gan, Senior Director or CEO Bill Carteaux • RAAwill escorted to 5th Floor and will wait in a holding area • Lavalier mike requested • CEO Bill Carteaux will introduce RAA • Room setup: Ballroom with rounds and stage set with risers • Advance team can do a walk-thru the day of at 7-7:30am B FW:NextWeek's PlasticsIndustry Event CompanyList.. 1 Atvf H CAN pVERSIGHT 44 DOL-17-0281-C and 17-0282-E-000166 • ~ ._ C -~"1) '•I 1"' ;:,.: - ~ "I ~ • Plastics Industry Fly-In Reserve Officers Association 5th Floor Ballroom 1 Constitution Ave NE, Washington, DC 20002 Wednesday, July 26, 2017 8:30AM -- 9:00AM ' I. PURPOSE REMARKS and Q&A to PLASTICS trade association II. NEED TO KNOW INFORMATION • RAA's Role: 30 minutes ofremarks w/Q&A to 100 executives in the plastics industry. • William (Bill) R. Carteaux - President & CEO of Plastics is currently in the Fairfax hospital Leukemi c has returned. • Scott DeFife,, VP of Advocacy will provide opening "Welcome" • RAA will be introduced by James Murphy, Chairman of Plastics • Executives will represent the entire supply chain engaged in manufacturing and development of plastic products . • This event is a combination of 6 Trade Association lead by Plastics • Executives will spend the afternoon on the Hill visiting and educating members /staff about their industry. • Suzanne Morgan, Director of Government Affairs, believes that a revised speech of NAM would be good for this audience. • Topics of Interest: o Apprenticeships o Workforce Development • Q&A may touch upon OSHA and Overtime • WH speaker will speak around noon - George Sifakas,. III. PRESS- CLOSED to Media -please note two trade publications owners will be in attendance and have been informed that all comments are off the record. IV. ABBREVIATED AGENDA I-Arrive~ 8:15AM 2-Greeted By Jim Murphy and Suzanne Morgan 3-RAA Remarks w/Q&A ~ 30 minutes total has been allotted 4-Depart ~ 9:00AM V. AUDIENCE MAKE-UP Approximately 100 Plastics Executives from across the country AM pvE I( VI. SCHEDULE OF EVENTS 8:20AM RAA arrives; Greeted by Jim Murphy and Suzanne Morgan proceeds to DOL-17-0281-C and 17-0282-E-000167 hold area (outside ballroom) RsIGHT 8:28AM RAA proceeds to 5th Floor Ballroom stage 8:29AM RAA introduced by Bill Carteaux -President & CEO of Plastics 8:30AM RAA begins remarks 20 minutes 8:50AM RAA Q&A session 9:00AM RAA concludes remarks/Q&A-DEPARTS VII. - EVENT SET-UP RAA will be on stage at a podium All attendees will be seated at rounds Plastics will have a videographer and photographer present DOL will have photographers in attendance to take photos. VIII. STAFF IN ATTENDANCE Eric Evans {Advance) AM RICAN pVERSIGHT DOL-17-0281-C and 17-0282-E-000168 July 17, 2017 The HonorableAlexanderAcosta Secretary Departmentof Labor 200 ConstitutionAvenue, N.W. Washington,DC 20210 Dear Mr. Secretary: On behalf of the six participatingtrade associationsin the Plastics Industry Fly-In, we would be honored if you could speak at our briefing session on Wednesday morning,July 26. We would offer a slot of 30 minutes at a time convenientfor you sometime between 8:30 and 11:30 a.m. The session will be held at the Reserve Officers Associationbuilding at One Constitution Avenue, N.E. In the audience of nearly 100 will be CEOs and senior leadership of small, medium and large U.S. plastics manufacturingcompaniesrepresentingthe entire plastics supply chain. They will be interestedto hear your commentsabout the President's Executive Order on apprenticeshipsas well as other remarks about workforce development. You met with our president and chief executive officer, Bill Carteaux,a few weeks ago on the subject. Workforcedevelopmentis one of the major concernsfor plastics industry manufacturers,and an issue that our participantswill be discussingwith their senators and representativeson Capitol Hill that afternoon. By way of background,the Plastics IndustryAssociation(PLASTICS),formerly SPI, is the only organizationthat supports the entire plastics supply chain, representingnearly one million workers in the $418 billion U.S. industry. Since 1937, PLASTICShas been working to make its membersand the industry more globally competitivewhile advancing recycling and sustainability. I am happy to work with your staff on answeringquestionson attendees the content of your or at address and an lo istics that ou may have. I can be reached at Thank you for your consideration. We look forward to your appearance next week. Best regards, ~ 1,'c) Suzanne Morgan Senior Director, GovernmentAffairs 1425 K Street NW, Suite 500, Washington, DC 20005 AM RIU PVERSIGHT I plast Icsindustry.org DOL-17-0281-C and 17-0282-E-000169 Yerxa. Christopher W - ASAM From: Sent To: Cc: Subject: Attachments: Suzanne Morgan Friday, July 21, 2017 9:42 AM McDaniel, Keshia - OSEC Wimer, Andrew P - OPA FW: Next Week's Event Plastics Industry Company List.xlsx Hi Keshia: Attached is the list of companies and associations who will have a representative or representatives in the audience on Wednesday morning. Our registration is over 100 people as of today. Our Fly-In includes representatives of member companies from six plastics industry trade associations which represent he entire supply chain: Plastics Industry Association American Chemistry Council American Mold Builders Associates International Association of Plastics Distribution Manufacturers Association for Plastics Processors Plastics Pipe Institute Our program on Wednesday morning includes speakers for each of the five issue areas for which our participants will advocate on Capitol Hill that afternoon: Workforce development/ apprenticeships : The Honorable Alexander Acosta (invited) Tax reform: Dorothy Coleman, Vice President, Tax and Domestic Policy, National Association of Manufacturers Trade: Linda Dempsey, Vice President, International Economic Affairs, National Association of Manufacturers Open competition for infrastructure: Michael Meenan, Senior Director, Federal Affairs, American Chemistry Council Regulatory reform: Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce White House update: George Sifakas , Assistant to the President and Director for the Office of Public Liaison (invited) Please let me know what else you need . Do you think I can get a confirmation today so I can assign speaking slots to the other speakers? Thanks, Suzanne Suzanne Morgan Senior Director, Government Affairs & Grassroots Advocacy Plastics Industry Association From: Sent: Friday,July 21, 2017 9:06 AM AM HIGA PVERSIGHT 1 DOL-17-0281-C and 17-0282-E-000170 To: SuzanneMorgan Subject: Fwd: Next Week'sEvent -Original MessageFrom: McDaniel, Keshia - OSEC To: szmorgan----Cc: Wimer, An~ ndrew.P@dol.gov> Sent: Thu, Jul 20, 2017 4:47 pm Subject: Next Week's Event Hi Suzanne, How are you today? Can you please give me some infonnation about the audience such as a list of the companies in attendanc e? Also, can you please provide a list of those giving remarks as well? Thank you, Keshia McDaniel Special Assistant, Scheduling & Advance, Office of the Secretary (D) 202.693.6043I I (E) mcdaniel.keshia@dol.gov U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210 AM HICA\J pVERSIGHT 2 DOL-17-0281-C and 17-0282-E-000171 Organization AGC ChemicalsAmericas, Inc. ALAC InternationalInc. American ChemistryCouncil American Mold BuildersAssociates Americas StyrenicsLLC BASF Corporation I BASF PerformancePolymers Borealis CompoundInc. C&G/MercuryPlastics, Inc. CanadianPlastics IndustryAssociation Covestro LLC CreativeTechnologyCorp Dart ContainerCorp. Davis-Standard,LLC Deere & Company Dymotek Dynisco, LLC E.I. du Pont de Nemours & Co. Gardiner Plastics,Inc. Gros ExecutiveRecruiters High-TechnologyCorp. 12techLLC InternationalAssociationof Plastics Distribution lndelco Custom Products IndustrialHeater Corp. Jergens Inc. Kureha America Inc. Lakeside Plastics, Inc. LyondellBasell Magna Exteriors Magna InternationalInc. Manar, Inc. ManufacturersAssociationfor Plastics Processors Milacron LLC Mold Craft, Inc. MSI Mold Builders Mueller Prost LC Palram Americas Plastics IndustryAssociation Plastics Pipe Institute Polymer Conversions, Inc. Polymer.Industries Polymershapes PolyQuest PrecisionPlastics, Inc. Printpack Inc. PrvsmianGroup Regal Plastic Supply Royce Associates SABIC Series One LLC AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000172 Society of Plastics Engineers The Catcher Consulting LLC Zeiger Industries AMERICA'\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000173 Yerxa, Christopher W - ASAM Subject Location: Roundtable Discussionwith Members of the Denver FranchiseBusinessNetwork 1509 York St #300, Denver,CO 80206 - Conference Room Start: End: Show Time As: Sat 7/22/2017 6:00 PM Sat 7/22/2017 7:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta ; zzOSEC-SCHEDULING-AND-ADVANC Gardner, E; JanelleA - OSEC;Hoffman, Emily E - OSEC;Lineberger,Timothy L - OSEC;zzoasam-dpoagents Patterson,Andrew M - OSEC Optional Attendees: Time: 4:00pm MT - 5:00pm MT Location: 1509 York St #300, Denver, CO 80206 - Conference Room Subject: A meet n' greet with Denver area franchisees and franchise interests. Topic/Issue: DFBN would like to discuss three topics: 1) Joint employer; 2) franchising's response to the apprenticeship proposal, and 3) the overtime threshold Attire: Business Casual Staff: Tim Lineberger Andrew Patterson (Advance)N otes/Background: Event Line by Line: Attendees: • Lani Dolifka, President/CEO, Watennill Express • Dan White, Founder, Growler USA • Kevin P. Hein, Chief Development and Strategy Officer, Alexius LLC • David See, Wendy's Franchisee, AKSAN United Fortune, Inc. • Todd Isaacson, Owner, Express Employment Professionals • Jerry Hair, Franchisee, FastSigns • Andrea Hair, Franchisee, FastSigns • Jeff Brimer, Chief Operating Officer, Alexius • Jenni Wisniewski, Vice President, Alexius • Trish Barrett, Senior Legal Consultant, Alexius • Josephine Arwood, Office Manager, Alexius • Chris Winslow, VP of International Development, Sperry Van Ness • Cindi Winslow, Outreach Director, Professional Case Management, Inc. • Mike Weinberger, President, Maui Wowi • Dave Shaw, Chief Operating Officer, Growler USA • Derek Visocky, OneSource Director, Keysight Technologies • Laurel Visocky, Partner Sales Executive, Microsoft • Mike Korenblat, General Counsel, Suncor Energy AMf f ICAN PVERSIGHT 39 DOL-17-0281-C and 17-0282-E-000174 • • • • • Jim Lal, Senior Vice President, Eventus Solutions Group Sophie Lal, CEO, MeetingOne Wy Livington, CEO, Wystones World of Teas Ben Jones, CEO, Sola Salons Steve Greenbaum, former IFA chair and former CEO of Postnet AMERICAN PVERSIGHT 40 DOL-17-0281-C and 17-0282-E-000175 Yerxa, Christopher W - ASAM Subject: Location: Meeting with Women's Organizations Secretary'sOffice Start: End: Show Time As: Wed 7/12/2017 1:30 PM Wed 7/12/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta; zzoasam-dpo-agents; zzOSEC-SCHEDULING-AND-ADVANCE; Palmer,Wayne D - OSEC;Conway, Molly E - OSEC;Allende, Pedro M - OSEC Jennings, Alexandra - OASAM Security Center; Davis, Clinton J - OASAM Security Center Optional Attendees: Time: 1:30pm - 2:00pm Location: Secretary's Office Subject: Topic/Issue: Women's Labor Issues- see notes/ attached invitation Attire: Business Staff: TBD/W ayne/Molly/Pedro Notes/Background: Would like to use this meeting to discuss: o Enforcement of the Family and Medical Leave Act and enforcement of the Fair Labor Standards Act- particularly in low-wage, female dominated industries; o The president's paid parental leave proposal; o The department's plans with respect to prior DOL investments in state paid leave analysis; o Enforcement of rules regarding paid sick leave, equal pay, and protections against sex discrimination and harassment for employees of federal contractors; o Interpretation and implementation of the ACA's preventive services coverage; o Women's access to apprenticeships; defense of the overtime rule; o Data collection that is critical to understanding the barriers women face in the workplace today; o Harmful proposed changes to the Office of Federal Contract Compliance Programs; and o Drastic proposed cuts to the Women's Bureau. POC: Vicki Shabo, ) Women's Issues Invitation.pelf AM f ICA\J pVERSIGHT 46 DOL-17-0281-C and 17-0282-E-000176 -. 6/8/2011 / • . • • -'···,¥ . •. ')' ! ,• - ;. -· ,I . .: :·j,. •. ::-. ~ ~ ·--.~: ..~:.: .._ : execuTIVEs&ortEfARIA'f :/·:, ..A,~:•..... :~ ..-·~-t -~ ':..-:·~ ~~-(/ ':. . . ' . f, ~-.. ·~,~.. .. ' ·~ _::·..,-.,.;.i :\:·· . •1'1VJTl'P'JC)}i _~ ,rfft~4~~· • • , • .,.. 1 '.• • .. . :"'· • I , • • .' :·· r,- • ; • ' 'J CORRESP.ONDENCE ID: 832403 FUNCTION DATE; 6/8/2017 ADDRESSEDTO: Secretary Alexander Acosta INVITATIONTYPE: ORG ORIGINATOR: Ness, Debra: Goss Graves, Fatima & Mora, Iliana ORGANIZATION: National Partnership for Women & Families; National Womens Laf:a DATE OF INVITATION: 6/5/2017 DATE ECO RECEIVED: 6/8/2017 FUNCTIONLOCATION: Washington INFO COPIESTO: BW, NC, DOLFO, OCIA, OFCCP, OPA, OSEC, OSHA, SOL, WB, ~ FUNCTIONTYPE: Meeting 7/31/2017 DC ACTION: • • • COMMENTS: REMARKS: AMERICAN PVERSIGHT NRN ACCEPT 0 D D by phone by letter bycard REGRET by phone by letter • • • DATE: DATE: by card President Debra L. Ness of the National Partnership for Women & Families, President-Elect Fatima Goss Graves of National Women's Law Center and President/CEO Iliana L. Mora of Women Employed would like to meet with the Secretary to discuss important issues affecting women in America's wnrknl~M II DOL-17-0281-C and 17-0282-E-000177 LI" national partnership for women & families i'I NATIONAL ~ J"..411 WOMEN'S LAWCENTER I, June 5, 2017 Alexander Aco.c1ta Sccrctarv of Labor U.S Department of Labor 200 Connecticut Avenue, NW Washington, DC 20210 Dear Secreta1y Acosta : We al'e writing to request a meeting on behalf of our three organ1.1:at1011s nnd a small group of other women's civil rights organizations . Our goal is to discuss a range of impot tant employment issues nffrcting women in Amedcn's workplaces, includ ing pohcJes nnd program . affectmg women's civil nghts, workplace safety and equal employment opportunity. We believe strongly that women's economic opportun ities are inextricably hnkcd to the economic vitality of families and the country- and we seek to ensure that th e> nation 's civil rights. wage and hour laws and labor protections are fairly and fully enforced Our orgam,mt1ons have met with every Secretary of Labor since the adm11w ,tra l10n of Gerald Fo1d. We seek to forge a productiw working relationship with you and key officials at the Deparlment of Labor . We would hke to u:-e Lhii:1 meeting to discus s several pressing issue s that we beheve should b<·tmpol'tant pr1or11:lesf0t· you1· department including : • ~nfo1·cement of the Fa mily and Medical Leave Act and enforcement of the Fair Labor Standards Acl particularly m low-wage , female dominated mdu i:.tne -.: • The president's ptud pnrcntal leave proposal ; • The departmenL's plans with respect to priol' DO(. investments m :-;tatc pn 1d lenve analysis; Enforce ment of rule~ regarding paid sick leave. equal pay, and protections agamst • i;ex d1scnmmat1011and harassment for emplovees of federa l contractors; • Interp1·etat1on and implementation of the ACA's preventive services coverage ; • Women's accesi; to apprenticeships; defense of the overtime rule; • Data collection that is critica l to understanding the barriers women face lll the workplace today; • Harmful proposed changes to the Office of Federal C'ontract Compliance Programs ; ,-., and :2 Drastic --.I proposed cuts to the Women's Bureau • I ') - -- :--:J . l I ,l ..- ; ., ·.;:;; C1 l, J w AM RICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000178 We hope you are able to find a time to meet with us in the very near future. Please contact V1ck1Shabo, Vice Pu~s1dent at the National Partnership for Women & Families at (20i) 2::JS--1832,to arrnnge a convenient time for our gl'OUJ>S to meet with you. Ms . Shabo can also work with your staff on an agenda for what we are certain will be a productive meeting. Sincerely, Debra L. Ness President National Partnership for Women & J:<"amilies AMER CAf\ PVERSIGHT Fatima Goss Graves Incoming CEO and P1·esident-Elect National Women's Law Center Iliana L. Mora Incoming President and CEO Women Employed DOL-17-0281-C and 17-0282-E-000179 Waterloo, Anthony- EXECSEC McDaniel,Keshia - OSEC Thursday,June 08, 201710:29AM ExecutiveSecretariat waterloo, Anthony • EXECSEC;Barrett,Gloria - EXECSEC FW: Request from women'sorganizationsto meetwith Sec. Acosta NPWF NWLC WE AcostaMeetingRequest pdf From: Sent: To: Cc: Subject: Attachments: From: Gardner,JanelleA - OSEC Sent: Wednesday,June 07, 2017 8:22 PM To: McDaniel,Keshia- OSEC Subject: fW: Requestfrom women'sorganlzatlonsto meet with Sec.Acosta For SIMS JanelleGardner Directorof Scheduling of Labor U.S.Department (202)693-6000 From: VickiShabo Sent: Monday,June 05, 2017 5:36 PM Hazelton,Jennifer- OSEC To: Gardner,JanelleA - OSEC:palmer,wayne.a@dQl.gov; Cc: •••••• MelissaJosephs;RaquelMeng;SarahFlelschFink; DebbieWNkes Subject: Requestfrom women'sorganizationsto meet with Sec.Acosta Dear Mr. Palmer,Ms. Hazeltonand Ms. Gardner: On behalf of the presidentsof the National Partnershipfor Women & FamIlles,the National Women's Law Centerand Women Employed,pleasefind the attached letter requestinga meeting with SecretaryAcosta.We hope you are settling in at DOLand look forward to meeting you and the Secretarysoon to discussIssuesof critical Importance to women and the familiesthey help to support. Pleasecontact me if you have questionsor need further information. Best, VickiShabo ~ vicki shabo policy progr.tm·~and str.it8gi~<., for ·'l:o,·~pt;c:,.! vie.;:p1eo;1dent ,(tll~{S.hiP..OJ9 .O!J.c;!IP,(J ·ysh.aP..Q.CQ.'rntl national partnership for women & f-amilies , •• , ••••• ' . ,·1· 1875 C main: ., fin~~ ka.e ~ . .:, ~ < . -- .-· : .., I ... ~ 9 :-:J : :t .., . ·) I~ j ,1 ',:J •.;J w l AM HICA\J PVERSIGHT DOL-17-0281-C and 17-0282-E-000180 Yerxa, Christopher W - ASAM Subject: Location: HOLD for Call with Senator Elizabeth Warren (D-MA) Phone, Secretary's Office Start: End: Show Time As: Thu 6/22/2017 9:00 AM Thu 6/22/2017 9:15 AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta ; zzoasam-dpo-agents; zzOSEC-SCHEDULING-ANDADVANCE; Conway, Molly E - OSEC Time: TBD/9:00am- 9: 1Sam. Please call TBD Location: Phone, Secretary's Office Subject: Call with Senator Elizabeth Warren (D-MA) Topic/Issue: Overtime Attire: Staff: Molly Notes/Background: POC: Advance Staff: DoL Photographer: AMf ICAN pVERSIGHT 52 DOL-17-0281-C and 17-0282-E-000181 Verxa, Christopher W - ASAM Subject: Location: Call with Senator ElizabethWarren (D-MA) Phone,Secretary'sOffice Start: End: Show Time As: Thu 6/22/2017 8:45 AM Thu 6/22/2017 9:00 AM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta, Alexander - OSEC RA Acosta ; zzoasam-dpo-agents;zzOSEC-SCHEDULING-ANDADVANCE;Conway,Molly E - OSEC;Hazelton,Jennifer- OSEC Gardner,JanelleA - OSEC;Jennings,Alexandra - OASAM SecurityCenter; Pipkins, CharlesP - Security Center; Hoffman, Emily E - OSEC;Davis,Clinton J - OASAM Security Center;Aivazis,EliasK - OASAMSecurityCenter;Darling, Kevin E - OASAMSecurity Center; Mannix, Patrick M - OSEC;McDaniel,Keshia- OSEC Optional Attendees: Time: 8:45am- 9:00am. Please call - Laura's direct and she will transfer RAA to the Senator. Location: Phone, Secretary's Office Subject: Call with Senator Elizabeth Warren (D-MA) Topic/Issue: Overtime Attire: Staff: Molly Notes/Background:Senator Warren requested this call. POC: Laura B. Gerrard- Deputy Scheduler, Advance Staff: DoL Photographer: AM[ HICAN PVERSIGHT l DOL-17-0281-C and 17-0282-E-000182 Yerxa, Christopher W - ASAM Subject: Location: SPEAKat The American Hotel and Lodging Association (AHLA)LeadershipSummit Hay Adams Hotel: 800 16th Street NW- 9th Floor "Top of the Hay" Start: End: Show Time As: Wed 6/21/2017 1:00 PM Wed 6/21/2017 1:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Acosta,Alexander - OSEC RA Acosta ; zzoasam-dpo-agents;zzOSEC-SCHEDULING-ANDADVANCE; Rogers,Jillian B - OSEC;Hazelton,Jennifer - OSEC;Harris, Ondray T - ETA Gardner,JanelleA - OSEC;Vilca, Joseph H. - OSEC;Downey,Daniel W - OASAM Security Center, Davis,Clinton J - OASAM Security Center;Jennings,Alexandra - OASAM Security Center, Darling, Kevin E - OASAM Security Center, McDaniel,Keshia- OSEC;Pipkins, CharlesP - SecurityCenter;Aivazis, EliasK - OASAM SecurityCenter; Hoffman, Emily E OSEC;Mannix, Patrick M - OSEC;Morton, Lindsey D - OSEC Optional Attendees: Categories: Blue Category Time: 1:00pm - I :30pm Location: Hay Adams Hotel: 800 16th Street NW- 9th Floor "Top of the Hay" (there is a separate elevator that goes directly to the 9th Floor). Subject: SPEAK at the American Hotel and Lodging Association (AHLA) Leadership Summit Recent Topics of Discussion/Issue: https://www .ahla.com/press-release/hotel-indus try-commits apprenticeship-program PRESS: CLOSED Press Attire: Business Staff: Ondray Harris Advance Staff: Lindsey Morton DOL Photographer: TBC Notes/Background: RAA to address the American Hotel & Lodging Associations (AHLA) Annual Leadership Summit. The Summit brings together CEOs and Senior Leadership from all segments of the lodging industry. James Tauscher Conference Services Manager AMf ICAN pVERSIGHT 75 DOL-17-0281-C and 17-0282-E-000183 I Attffldee li st as Sec. Acosta AHLA of 6-14.xlsx Event Briefin... Event Line-by-Line: 1:00pm RAA arrives; greeted by Brian Crawford (Director of Gvt Affairs-AHLA); escorted to the 9th Floor "Top of the Hay" 1:05pm RAA introduced by President & CEO Katherine Lugar 1:07pm RAA delivers remarks (10-20 minutes) ** TBD-- ~JO minutes o{Q&A with Audience has been requested between RAA and the audience following his remarks . ** 1:30pm RAAdeparts Advance Notes/ Logistics: • RAA will be greeted by Brian Crawford (Director of Gvt Affairs-AHLA) upon arrival (at the drop point decided by the Secretary's Detail); escorted to the 9th Floor . • Upon arrival, RAA will proceed to his reserved seat at the front table until introduced. • AHLA will have a photographer/videographer for internal purposes in attendance. • Approximately 80 CEOs lSenior Executives from all segments of the hotel industry will be in attendance . • Secretary's Private Hold Room - TBD. • A full agenda is forthcoming. • A stage will not be set-up due to low ceiling heights. A podium will be set-up for remarks. The podium will be set-up in front of the windows, with presentation screens to help with photos. A lav mic will be provided for the Secretary. Lindsey Morton will facilitate . • TBD-DOL Seal/ Any Images on the screen during the Secretary's remarks? • Dignitaries : Katherine Lugar (President/CEO), Mark Carrier (President ofB.F . Saul Company Hospitality Group & AHLA Chairman of the Board) and GeoffBallotti (CEO of Wyndham Hotel Group and AHLA's Vice Chairman). **Wyndham had 5 apprentices in D. C. for the workforce development events this week and they met with Secretary Acosta on Wednesday, June 14. AM f ICA\J pVERSIGHT 76 DOL-17-0281-C and 17-0282-E-000184 FtrstName Jim Art Andrew Alex Robert Jim John Geoffrey Tom Michael Chuck John Monty Ross Barry Jon Banks Jeffrey Mark Mark Gerald Arthur Thomas Bill Michael Prem Sheetal Doug Austin Kevin Alan Krissy David Terri Robert Daniel Jeffrey Jean Dave Sheila Christopher Richard Nick Don Kirk Paul Justin Ben Chris Ray nm Mike Last Name Abrahamson Adler Alexander Alt Alter Amorosia Arabia Ballotti Bardenett Barnello Bauman Belden Bennett Bierkan Bloom Bortz Brown Brown Brugger Carrier Chase Clyne Corcoran DeForrest Deitem eyer Devadas Doshi Dreher Flajser Frid Fuerstman Gathright Grissen Haack Habeeb Hansen Horwitz Jakoby Johnson Johnson Jordan Kelleher Kellock Kilburn Kinsell Kirwin Knight Koopman Loflin Martz Marvin Mcilwain AM[ HICAN PVERSIGHT Title Company Managing Director & CEO,Hotels and Hospitality President President President President& CEO President& CEO I President& CEO Chief Operating Officer President& CEO SVP,Hotel Sales& Strategic Accounts President& CEO Chief ExecutiveOfficer President& CEO EVP&COO Chairman, President & CEO Partner CEO Chief ExecutiveOfficer President President & COO SeniorVice President & General Manager Chairmanof the Board President& CEO CEO President RegionalVice President - Americas President& CEO President COOfor North & Central America Founder/ChiefExecutiveOfficer COO,EVPof Asset Management Group President President Chief ExecutiveOfficer President & CEO Partner Vice Presidentof Global Sales President & CEO CEO Chief ExecutiveOfficer Chief Operating Officer President JonesLang LaSalle RedRoof Inns, Inc. SabreHospitality Solutions SeaviewInvestors,LLC G6 Hospitality, LLC SunstoneHotel Investors,Inc. I Wyndham Hotel Group ExtendedStayAmerica LaSalleHotel Properties EncoreEventTechnologies DavidsonHotels & Resorts Ashford Hospitality Trust RU LodgingTrust Xenia Hot els & Resorts Pebblebrook Hotel Trust McDermott, Will & Emery SchahetHotels, Inc. Diamond RockHospitality Company B.F. Saul CompanyHospitality Group New Castle Hotels & Resorts, LLC PSAV FelCorLodgingTrust, Inc. Spire Hospitality Interstate Hotels & Resorts SalamanderHospitality American Express The Hotel Group Carr Hospitality AccorHotels Montage Hotels & Resorts Apple Hospitality REIT,Inc. Marriott International, Inc. Terranea Resort,Destination Hotels & Resorts First Hospitality Group, Inc. Summit Hotel Properties, Inc. Proskauer PepsiCO Aimbridge Hospitality SalamanderHospitality Wells Fargo Pyramid Hotel Group Concord Hospitality EnterprisesCompany PearsonAcceleratED President& CEO President President, Hospitality Vice President EVP&CFO EVP President & CEO Northcott Hospitality Apple Hospitality REIT,Inc. The Donohoe Companies, Inc. Ecolab Pebblebrook Hotel Trust Jones Lang LaSalle PSAV DOL-17-0281-C and 17-0282-E-000185 McNeal Medzigian Executive Vice President & General Manager, Global Client Group Chairman & Managing Partner American Express Watermark Capital Partners, LLC Miller Mohrfield Founder & Managing Director President & CEO PM Hotel Group California Hotel & Lodging Association Morse Murray President of Hospitality President Caesars Entertainment John Chris Nassetta President & CEO Hospitality Properties Trust Hilton Worldwide, Inc. Greg O'Stean Keith Ronald Dave Overton Pohl Chief Investment Officer President & COO Loews Hotels, Inc. Tradewinds Island Resorts Pollin Senior Vice President & COO President The Buccini/Pollln Group Rena James Reiss Risoleo Wolfram Ben Schaefer Seidel Jay Shah Bob Rob Smith Snyder CEO Owner President Rick Ted Takach Teng President & CEO President and CEO Jonathan Jeremy Tisch Welter White Chairman EVP,Asset Management Glenda Michael Greg Lynn Bob Bruce Len Alfred Wolman Young AMf HICAN PVERSIGHT Executive Vice President, General Counsel & Secretary President & CEO President & CEO President & CEO Chairman & Founder Chairman and CEO Chief Operation Officer Best Western International, Inc. Hyatt Hotels Corporation Host Hotels & Resorts, Inc. Avendra, LLC. Real Hospitality Group Hersha Hospitality Trust Sebasco Harbor Resort Tishman Hotel Corporation Vesta Hospitality, LLC The leading Hotels of the World Loews Hotels, Inc. Ashford Hospitality Trust White Lodging Services Corporation Waterford Hotel Group, Inc. LaSalle Hotel Properties DOL-17-0281-C and 17-0282-E-000186 AHLALEADERSHIP SUMMITEVENTBRIEFING FORM The Honorable Alexander Acosta, Secretary of Labor AHLA LeadershipSummit: The American Hotel & lodging Association's (AHLA) annual leadership Summit brings togetherCEOs and Senior Executives from all segments of the lodging industry, including iconic brands such as Hilton, Marriott, IHG, Hyatt, Four Seasons, Montage and many others, as well as major hotel ownership companies, REITs,and ManagementCompaniesforathought provoking and engaging event with high-level speakers from Congress and the Administration . ATTENDEES: So+ CEOsand Senior Executives from all segments of the hotel industry(attendee listattached). LOCATION: The Hay-Adams Hotel, 80016 th Street NW; 9th Floor-''Top of the Hay" (there isa separate elevator that goes directly to the 9'h floor) DATEANOTIME LOGISTICS: Wednesday,June 21- Speaking at 1:05 PM, includes with 20 mins of prepared remarksplusl0 minsforO/Afromthe audience. The program begins at 1:00 pm. Katherine Lugar, AHLA President & CEO,will make brief welcome remarks and then introduce Secretary Acosta. Upon arrival, the Secretary will be taken to the AV table to receive his lavalier microphone. ONSITEPOINTOF CONTACT: Brian Crawford _ wi II meet Secretary Acosta inside the main entrance lobby of the hotel. PARKING:Valet service provided at entrance to hotel on 16th Street. MEDIA: CLOSEDto media. AHLA will have a photographer and videographeron-siteforinternal purposes only . SUGGESTED AREASOF DISCUSSION: • PresidentTrump'sExecutiveOrderExpandingApprenticeships in America o o • PotentialUpdateto FairLaborStandardsAct (FLSA)and our nation'sovertimelaws o • The hotel industry submitted extensive comments to DOLand 0MB in response to the Obama Administration's proposed update in June 2015. The hotel industry did not oppose an update the FLSA,rather urged the DOLto consider regio nal economic disparities and to provide for a phase-in to lessen the economic impact on small employers . JointEmployer;AHLApraisedSecretaryAcostafor withdrawingthe administrativeinterpretation issuedunderthe ObamaAdministrationwhichexpandedthe joint employerliabilitytest into the FLSA o u AM RICAN AHLA is committed to expanding apprenticeship programs into non-traditional industries such as hospitality ; We are pleased to be working with Secretary Acosta and the DOL on designing and establishing a formalized apprenticeship program for hotel See "AHLA's Commitment to Workforce Development'' below PVERSIGHT Expansion of jo int employer liability under the Obama Administration's National Labor Relations Board is of great concern to the hotel industry. AHLA has filed an amicus brief in support of Browni ng-Fer ris Industr ies Appeal in the DCCircuit . DOL-17-0281-C and 17-0282-E-000187 OVERVIEWof AHLAPRIORITIYISSUES: THE FULLAHLA LODGINGINDUSTRYPOLICYGUIDE AHLA'sCommitment to Workforce Development and ApprenticeshipOpportunities I The lodging industry is nostrangerto investing in its employees-they are our industry's greatest resource. For ove r60 years, the American Hotel & Lodging Association (AHLA)has helped advance th e lodging industry workforce through its portfolio of industry recognized certifications that prepare employees for job success. Indeed, our industry exemplifies the American Dream, w ith more than SOpercent of hotel General Managers getting their start in entry -level positions. So many global hotel CEOs, began their careers at the front desk or as a line level employee in a hotel. We groomtalentand grow careers, supporting some 8 million jobs across the United States, paying $74 billion in wages to our employees. To further address the skills gap in the United States, AHLA has recently unveiled two key national initiatives to ensure the ed ucation marketplace is furtherconnectedtothe needs ofthe lodging industry. In the fall of 2016, AHLAand our partners were awarded one of fourteen industry intermediary contracts from the Department of Labor (DOL) to grow apprenticeship in new and high growth industries. Ourcommitmentto the DOL includes enrolling 225apprentices by September, and to date we have more than 360 commitments from our membership. The apprenticeship program was designed with the goal of aligning cert ificat ion with the fundamentals of apprenticeship, and was constructed using more than 100 competencies found in leading AHLA certifications. The result is an industry-created, competency -based, apprent iceship program that offers a direct path to upper management and credential attainment. Apprentices in the DOLapproved AHLA program have the opportunity to earn while they learn, but also acquire two industry certifications and credit towards a college degree. AHLA recently joined a consortium of2 and 4-yearaccredited colleges and univers ities that will work to provide continuing education and accessto a college degree at no cost to lodgingindustryemployees. Through an innovative combination of Pell Grant funding, employer tuit ion reimbursement programs, and scholarships from the colleges themselves, AHLA has created an opportunityforthe industry's workforce to obtain a tuition free college education. More importantly, AHLA is working with this consortium to better link the fields of learning and work by offering college credit for prior on the job experien ce. Colleges can choose to offer credit hours for prior work, as well as credit for industry certifications and the AHLA apprenticeship program. By doing so, employers are now ensuring that partnerships with area colleges are formally connected through skills attainment valued by the industry. Colleges have a dir ect line of connection to employers who are seeking to enroll candidates into apprenticeship programs , orotherwork and I earn models. Supporting these initiatives is the American Hotel & Lodging Association's Education Foundation (AHLEF),which is dedicated to providing scholarships and research grants, as well as investments in key programs, such as workforce development, school-to-career and appr enticesh ip programs that directly benefit our associates while promoting the long-term goals and success ofthe hospitality industry. Since its incep.tion , the AHLEFhas distributed more than $21.5 million to emerging leaders in the hospitality industry, and in 2016, we provided an additional $1.5 million in direct financial support to worthy recipients. SUPPORTING OURWORKFORCE: The hotel industry supports nearly8millionjobs in communities across America and remains a driving force in providing vast opportunities for professional training, long-term careers, competitive wages and good benefits. With three out of every five hotels considered small businesses-or the majority of our industry-from B&Bs AM f ICA\J pVERSIGHT DOL-17-0281-C and 17-0282-E-000188 and independently owned properties to franchise locations, the hotel industry supports policies that empower the entrepreneurial spirit and encourage business growth. However, in recent years, many workforce and labor initiatives at the local, state and federal level have threatened to impede this growth, jeopardizing those who seek to achieve the American Dream. AHLAPOSITION: I AHLA supports policies that strengthen our employees' well-being, workforce flexibility and a fair and equitable work environment, as well as the abilityforemployersto create jobs and improve the career paths of those in the workforce. REININGIN ILLEGAL HOTELS: From coast to coast, we have seen action taken at the local and state level to rein in unregulated commercial activity fostered by short-term rental companies such as Airbnb and HomeAway. Facilitated by these entities, commercial operators list ma1tiple units in the same metropolitan area or list units for extended periods oftime, flouting basic safety and security laws, zoning rules and taxes. Policy debates and the adoption of commonsense regulations are taking place around the country in cities and towns of all sizes, as well as in state capitals and increasingly here in Washington, to rein in commercial activities and discern the appropriate regulation and tax collection for short -term rentals in order to protect constituents and support communities. A broad coalition of affordable housing advocates, neighborhood associations, labor, and concerned citizens and policymakers, including our industry, have argued thatthis often illegal commercial activity can compromise consumer safety, undermine job growth, limit affordable housing options, and endanger the character and security of residential neighborhoods. AHLAPOSITION: AHLA believes thatthere should be a level and legal playingfield within the lodging sector, and that regulations and taxes with respect to short-term rentals should be strictly enforced. We support the rights of property owners to occasionally rent out a room or their home, but commercial operators within the short-term rental industry should not be allowed to operate outside of the law. PROTECTING THECONSUMER: Technology and the ever-evolving online channels, from desktops to mobile phones to Internet-enabled devices such as smartwatches, have transformed the way guests book their hotel rooms and created new customeroriented business models. The hotel industry has been tremendously successful in connecting consumers with online bookings, averaging 500 hotel bookings per minute in the United States. Throughout this transformation, the hotel industry continues to put guests first to ensuretheygetwhattheywantand need out of their reservation and theirtravel experience. AHLA and the industry are focused on raising awareness and curbing deceptive marketing practices, as well as ensuring ample consumer choice and transparency throughoutthe on line booking process, amid significant OTA marketplace consolidation. AHLAPOSITION: AHLA believes consumers have rightto know who they are booking a reservation with, whether they book online using a third party or with the hotel directly, and the government should crackdown on websites that pose as hotels in orderto prey on travelers. a PROMOTINGTRAVELAND TOURISM: The hotel industry has been a bright spot in job growth, leading the nation's economic resurgence and improving the employment landscape. Critical to generating and maintaining this growth has been, and will be, AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000189 government and industry focus on increasing the flow of foreign visitors to the U.S.and recognizing the value of government, business, and leisure travel hereat home. AHLAPOSITION: Working with the broadertravel industry, AHLAwill continue to support policy initiatives that promote tourism, such as the visa waiver program, to strengthen business and leisure travel and efforts to bolsterimportanttravel infrastructure here at home. AHL.Ais also committed to comprehensive immigration reform to e~able the lodging industry to meetthe increasing demand for employees, while enhancing national security and ensuring all workers are protected. ABOUTTHE AMERICAN HOTEL& LODGINGASSOCIATION(AHLA): • • • 24,000+ Members 80% of All Franchise Hotels 9 out of 10 Top U.S. Hotel Brands AHLA proudly serves our members who represent every segment of the hotel & lodging business acrossthe country. We are the singular voice that bringstogetherand represents the industry's multitude of constituents and our members include: • Leading global hotel brands • Hotel owners, management companies and Real Estate lnvestmentTrusts(REITs) • Independent properties and Bed and Breakfasts • State hotel associations • Industry partners and suppliers Not only do we represent most U.S. hotel properties, we represent the thousands of individuals that make them run including: • CEOs • Owners • SeniorManagers • General Managers • Senior Staff across all segments of the industry • Every Team MemberWho Works in the Front and Back ofthe " House" in Hotels Across Amer ica AMERICA'S HOTELS: STRENGTHENING THEECONOMY IN EVERY STATE. • • • • • • • • • • • • Each day, nearly S million people check into a hotel. Annually, there are more than 1.1 billion guest nights. The hotel industry has created jobs month after month for four consecutive years. We support some 8 million American jobs. We support $1.1 trillion in sales, including hotel revenue, guest spending and taxes . We contribute $S90 billion to U.S.GDP. We generate $167 billion in federal, state and local taxes. We offer good salaries and benefits and provide incredible opportunities for upward mobility : More than 50"-' of our General Managers began in entry-level jobs. 8 out of 10 hotel jobs pay above the minimum wage. More than 85% of employers provide medical insurance benefits to non-exempt workers. 61% o.f hotels are run by small business owners AMERICAN PVERSIGHT DOL-17-0281-C and 17-0282-E-000190 U.S. Department of Labor Office of the Solicitor Washington, D.C. 20210 AUG .1·5 2018 Austin R. Evers American Oversight 1030 15th Street, NW, Suite B255 Washington, DC 20005 Dear Mr. Evers: This correspondence is in further response to your Freedom of Information Act (FOIA) request dated July 21, 2017 (tracking number 836892) wherein you requested: 1. All calendar entries for any meetings pertaining to the development, implementation , consideration , evaluation, reconsideration , or re-evaluation of the "Fiduciary Rule" or "Conflict of Interest Rule," 29 C.F.R. § 2510.3-21. For calendar entries created in Outlook or similar programs , the documents should be produced in "memo" form to include all invitees , any notes, and all attachments. Please do not limit your search to Outlook calendars--we request the production of any calendar--paper or electronic , whether on government-issued or personal device--used to track or coordinate how these individuals allocate their time on agency businesses. 2. All meeting agendas and list of attendees for any meetings held pertaining to the development, implementation, consideration , evaluation, reconsideration , or reevaluation of the Conflict of Interest Rule. 3. All lists of attendees for any meetings held pertaining to the development, implementation , consideration , evaluation, reconsideration , or re-evaluation of the Conflict of Interest Rule. 4. Any materials distributed by DOL or provided by non-DOL attendee s at any meetings attended by persons not employed by the executive branch and held pertaining to the development , implementation, consideration, evaluation , reconsideration, or reevaluation of the Conflict of Interest Rule. 5. All e-mails reflecting requests for meetings with non-DOL parties to discuss the development, implementation , consideration, evaluation , reconsideration, or reevaluation of the Conflict of Interest Rule. 6. Copies of all correspondence pertaining to the development, implementation , consideration , evaluation , reconsideration , or re-evaluation of the Conflict of Interest Rule. This includes any official correspondence to or from DOL, including correspondence to or from other federal agencies, as well as correspondence with or by any non-governmental person or entity. By email of August 31, 2017, you clarified item number 6, indicating that American Oversight would welcome the opportunity to review a log of correspondence and identify specific entries that would be of interest to the organization. We provided you with that log along with our letter of May 1, 2018. /\ f ICAN PVERSIGHT As you know , your request has been assigned to multiple DOL agency components for processing. In accordance with our FOIA regulations published at 29 C.F.R. § 70.20, when it is determined that records responsive to a request may be located in multiple components of the Department , the Office of Information Services (OIS) , within the Office of the Solicitor , may coordinate a Departmental response. In this instance, my staff in OIS continues to work with the assigned agency components to process records deemed responsive to your request. This response contains the monthly release of responsive records from the Employee Benefits Security Administr ation (EBSA) and the Plan Benefits Security Division of the Office of the Solicitor , in accordance with the Joint Status Report (JSR) filed on July 11, 2018. As reflected in the JSR, the Department of Labor agreed to pro vide monthly releases ofEBSA records and to process SOL ' s records in a specific order. Regarding the Office of the Solicitor's records , this response provides the first release of responsive records from the first tranche. Consistent with the schedule from the JSR , the referenced agency components located 316 page s of records for this response. We are releasing them in the following manner: • • • 87 pages are being released in full, and 173 pages were reviewed and determined to be nonresponsive , and 56 pages have been redacted in part pursuant to 5 U.S.C. § 522 (b) (6), which permits the withholding of personnel, medical and similar files when disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Please note that additional responsive documents will be provided to you on a rolling basis. Questions regarding this response can be addressed to Sharon Hudson , SOL FOIA Coordinator, by phone at 202-693-5406 or by email at hudson.sharon@dol.gov . If you need any further assistance or would like to discuss any aspect of your request, please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks , at 202 -693-5427 or by email at hicks.thomas@dol.gov . Alternatively , you may contact the Office of Government Information Services (OGIS) to inquire about the mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road , College Park , MD 20740-6001. You can also reach that office by email at ogis@nara.gov , by phone at 202-741-5770 , by fax at 202 -741-5769, or by calling toll-free at 1877-684-6448. Although this matter is currently in litigation, you retain the right to file an administrative appeal. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the ground s for the appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate proce ssing of the appeal, please include your mailing address and daytime telephone number , as well as a copy of the initial request and copy of this letter. The envelope and appeal letter should PVERSIGHT be clearly marked "Freedom of Information Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. The appeal should be addressed to the Solicitor of Labor, Division of Management and Administrative Legal Services, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2428, Washington , D.C. 20210 . Appeals may also be submitted via email at foiaappeal@dol.gov . FOIA appeals submitted to any other email address will not be accepted. Sincerely , g~r~~ Deputy Solicitor for National Operations Enclosures /\M f ICAN PVERSIGHT From: To: Dalton, lish Egbuonu, Chizoba; Miller, Joel; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary, Joe - EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - ESSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA; Turner, Jeffrey - EBSA; Rebecca Zak; Orange , Michael W.; McBride, Christopher 2/9/2017 3:02:42 PM RE: DOL Fiduciary Rule- IRA Bank Deposit Issue Sent: Subject: ,-·-·-·-·-·-··-·-·-·-.-·-·-·-- Corrected Code: IEx (6) I •-·-·-·-···-·-·-··-·-·-·-·-·-· ' Tish Dalton Asset Management Group r·•·•-•--•••••••- ••-• • I-•"'•••••• •••• ••·· • ·•-·-•-·-·-·-·-·- •-·-•- •-·- •-•-••••·•••••• •• • •• •••-•• E (6) I__ ..._........ ?_<:__·-···-·-····-···i 1 i -----Original Appointment----From: Egbuonu, Chizoba Sent: Monday, January 30, 2017 11:51 AM To: Egbuonu, Chizoba; Miller, Joel; Dalton, Tish; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary , Joe- EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd , Karen - EBSA; Wong, Fred - EBSA; Hansen , Megan D - SOL; Hall, Lyssa - EBSA; Turner, Jeffrey - EBSA; Rebecca Zak; Orange, Michael W.; McBride, Christopher Subject: DOL Fiduciary Rule- IRA Bank Deposit Issue When: Thursday , February 09, 2017 3:00 PM-4:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: c::~-~J~j~~I:~:~]Code [.____ Ex__ (6)____ j Please use the following conference line and code for our call on Thursday, February 9th : Thanks, Chiz. /\ f ICAN PVERSIGHT DOL-17-0281-D-000001 Khawar, Ali - EBSA 'McDonald,Tom' Scindian,Vilma; Geale, NicholasC. - SOL; Hauser,Timothy- ESSA 4/24/2017 11:37:58 AM RE: Need to RescheduleMeeting----DOL StakeholderMeetingon April 24 at 1 pm From: To: CC: Sent: Subject: Ok, thanks for letting us know. Ali F;~;;,; -M~o~~ -~,d -T;~mailtoJ , [ Ex (6) L, - . -•- •-' • •-• - · -•- .• . - . - . •. - • -•-·-·- 1· -·-·------- . - -·-- --- ·-------· - ------····· •·- · --·-••· -·- •- .••• ·-• -• • •- .•. • • - ·-• •• •• • ,t Sent: Monday,April 24, 2017 11:32 AM To: Khawar,Ali - EBSA Cc: Scindian,Vilma; Geale, NicholasC. - SOL;Hauser,Timothy - EBSA Subject: Needto RescheduleMeeting----DOLStakeholderMeeting on April 24 at 1 pm Hi Ali, Unfortunately, I'm going to need to rescheduleour meeting at 1 PM today. I will circle back with you to get it back on the schedule. Sorry for any inconvenience caused. I appreciate your help. Thanks! Tom l· ! From: Khawar Ali - EBSA Ex (6) ' '-········· ·-·-·-·-·-·-·-· -·-···········-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·· Sent: Friday,April 21, 2017 11:49 AM To: McDonald,Tom Cc: Scindian, Vilma Subject: RE:DOLStakeholderMeeting on April 24 at 1 pm Great. We'll have a few more people. In addition to myself and Nick Geale (Acting Solicitor), Tim Hauser (Deputy Assistant Secretary), we'll also have representatives from our Office of Exemption Determinations,Office of Regulations and Interpretations,and Office of Policy and Research. The room numberis N5677. See you Monday Ali F-~~~ :-M~D;~ - -~-idT~~~- ~aiitoj I [ :...:..:.=.:..: Ex (6) !··-·· -············· ·-· ···- ·············- ··· ····· ·· --············ ·· ·· ·· ·· ·· ·· ········· ····· ··· ·-. -·- ·- · -·-· •. - ·-·-· -·-· - .•.•. -· -· - ·- ·- ·- ·-. _,-· - ·-·-·-·-· ' Sent: Friday,April 21, 2017 9:56 AM To: Khawar,Ali - EBSA Cc: Scindian,Vilma Subject: Re: DOLStakeholderMeeting on April 24 at 1 pm Thanks Ali DOL-17-0281-D-000002 Best Tom Sent from my iPhone 21, 2017, at 8:46 AM, Khawar, Ali -EBSA'--·-·-···~~OH:1TApr 1 --·-(~_) ___ ____ ____Iwrote: om, Can you let me know the number of attendees from your end? That's going to dictate the room we use. Thanks Ali From: -McDonald,Tom[~ .·-·-·-.-·-·-·-·-·-·-·-.-·-·-·-.-·-·-·-·-··-·-·-·-.-·-.-·-·-·-·-\ Ex (6) 1•··-······-·-·-·---·--····-·~---·•-------·------···-·--·--- -···-·····--··•·· ·-·--···-··-- Sent: Friday, April 21, 2017 9:16 AM To: Khawar, Ali - EBSA Cc: Scindian, Vilma Subject: DOL Stakeholder Meeting on April 24 at 1 pm Hi Ali Just confirming my meeting on Monday at l pm? Can you please list the DOL attendees and their titles? What room will the meeting be held in? Have a good weekend. Thanks Tom Sent from my iPhone On Apr 14, 2017, at 3 : 10 PM , Khawar, Ali - EBSA i•-·-·-·-·-·-·-·-·-Ex (6) !wrote: ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· Great. I assume you know where DOL is, but just in case, we are at 200 Constitution Ave NW. The visitor 's entrance is around the corner at the intersection of 3 rd and C streets NW . When you get in you and your party will need to clear security and they 'll call up for an escort (let them know you have a meeting with me). In case you need it, my number is l.__ _______Ex..(6)·-·-·-··___] How many clients will you be bringing with you and will anyone else from your firm attend? Depending on the number of people , we may need to submit names to security in advance (and I want to make sure the room we'd ordinarily use works and will fit everyone) . Thanks Ali • · -· - · - · - ·-·-. F;o~;·M~D;~~ -ic1 ;-i;;·[;·-ii'"" J Sent: Friday, April 14, 2~5 - · -·- · -·- ·-·-. - · -· - ·-·- ·- · -·- ·- · -. -· - ·-. -· -. -· - · 1 Ex (6) I· PM·-·-·-·-·-·-·--·-·-··-·-·-·-·-·-·-·-··-·-·· ·-·· To: Khawar, Ali - EBSA Cc: Scindian, Vilma Subject: Re: DOL Stakeholder Meeting PVERSIGHT DOL-17-0281-D-000003 Hi Ali Yes, I will take l to 2 pm on Mon April 24. Where am I coming to? Will you clear me into the building? Thanks, Tom Sent from my iPhone On Apr 14, 2017, at 3:39 PM , Khawar , Ali -EBSA On Apr 14 , 2017 , at 10:59 AM, Geale, Nicholas C . - SOL > > Tom, > > I will be in office today at Happy to help you set something up. > l-, • •• •• • • •• •-• • •• •- ••• • •• •• •• •• •• > -----Original Message ----,····································- -············; > f rom: McDonald , Tom [mailto :! Ex (6) > Sent: friday , April 14, ~01 7'··Tv~·Tz--·AM· ······································· ···~ > To: Geale, Nicholas C. - SOL > Subject: DOL Stakeholder Mee ting > > Hi Nick > > I ' m a Partner at BakerHostetler and would like to schedule a stakeholder meeting Fiduciary Rule. wrote l..... ... ...........Ex ..(6.).... ....... .......! : l Ex (6) I I ! > > Can you please help me arrange on the DOL this? >· > Thanks' > > Tom McDo na l d > > Sent from my iPhone > > > > This email is intended on l y for the use of the party to which it is addressed and may contain information that is privileged , confidential, or protected by law. If you are not the intended recipient you are h ereby notified that any dissemination, copy in g or distribution of this email or its conte nt s is st ri ct ly prohibited. > If you have received. this message in error, please notify us immediately . by replying to t he message and deleting it from your compute r. > > Any tax advice in this email is for information purposes o n l y. The content of this email is limited to the matters specifically addressed herein and may not contain a full description of all relevant facts or a complete analys i s of all relevant issues or authorities . > > Internet conununications are could be intercepted , corrupted viruses. Therefore , we do not present in th is email , or any /\Mf f ~ICAN PVERSIGHT not assured to be secure or c lear of inac cu r acies as information , lost , destroyed , arrive late or incomplete, or con tain or omis sio n s that are accept respon sib ility for any errors attachment , that have arisen as a result of e -mail transmission. DOL-17-0281-D-000009 From: To: CC: Sent: Subject: Travis Johnson Hoffman, Emily E - OSEC Geale, Nicholas C. - SOL 9/6/2017 2:52:05 PM Re: Meeting Request - Equity Dealers of America We are here, at security. They tried calling Nicholas and left a voicemail. o.. Sep ' · 2017, " 12,20 PM. Hoffm'" , Emily E . OSEC L...Ex___ (6>....J wrote, Thank you! Emily " ... ...... ...... ... ......... ! Ex (6) From: Travis Johnson [mailtoi j Sent: Tuesday, SeptemberOS, 201712:1 5 PM .........· · To: Hoffman, Emily E - OSEC Cc: Geale, Nicholas C .• SOL Subject: RE: Meeting Request • Equijy Dealers of America Emily , Thank you so much. I know it's a last minute request and meeting with Nick is perfect. Nick has suggested a time tomorrow at three and that w orks for EDA . We (me , Ron , and Chris lacovella) will see him then. I appreciate you both helping with this request. Best, Travis ....., Ex (6)..........1 From: Hoffman , Emily E - OSEC Lmailtof Se nt: Saturday , Sep tember 2 , 2017~f'TV To: Travis Johnson! Ex (6) ··--1 I • ••~• ••-"'~ "'-- - --···---, Cc: Geale, Nicholas C . - SOL 1 Ex (6) Subject: RE: Meeting Requesi':"Eqiiify"Deafers'·orA'-m-e-nc_a_ _ __. Hi Tra v is, /\M f ICAN PVERSIGHT DOL-17-0281-D-000010 Secretary Acosta is unable to meet during these times, however the Secretary's Chief of Staff, Nick Geale, is available. I have cc'd Nick here. Thank you! Emily Ex (6) ··-····.l From: Travis Johnson (mailt; r· Sent: Friday, September 01, zu1T 11·:s1:r~1V1· To: McDaniel, Keshia - OSEC Cc: Hoffman, Emily E - OSEC Subject: Re: Meeting Request - Equ~y Dealers of America Thank you so much , Keshia . Emily, it's nice to meet you . Let me know if you have any questions about the request. Thanks. i r·4•4••--- On Sep 1, 2017, at 9:25 AM, McDaniel, Keshia- OSEC Good Morning Travis, ' ------, Ex (6) r wrote: ...................... .............i I am connecting you with the Deputy Director of Scheduling, Emily Hoffman. She will be able to assist you in this matter. Thank you, Keshia - -·· ··· ·- -- - r······· · ············--- Ex (6) -·····1 i From: Travis Johnson [rnailt,Qj Sent: Friday, September 01, ~OTTT :46.AM To: McDaniel, Keshia · OSEC Subje ct: Re: Meeting Request - Equity Dealers of America Keshia , Ron Kruszewski , the Chairman and CEO of Stifel , Nicholas & co is back in town next week. I know this is a bit of a Hail Mary, but he is wondering if the Sec retary and/or his lead policy advisor on the fiduciary rule would have 10-15 min to follow up their previous meeting on how Ron and the Equity Dealers trade association can be helpful as the Dal implement s the fiduc iary rule. /\ f ICAN PVERSIGHT DOL-17-0281-D-000011 Ron is available in next Wednesday, 9/6 starting at 3 p.m. until dinner (whichis scheduledfor §...IU!lJ If Wednesdaydoes not work, he could also do Thursday, 9/7 starting at 3:45 p.m. until 6:30 p.m. (whendinner is scheduledto begin). His last meeting on Thursday is scheduledto begin at 3 QI!1 and finish at 3:30 p.m. If there is any availability he would appreciate some time. I hope your August went well. It"shard to believe it's September already. Best, Travis ;·••·----· On Jul 18, 2017, at 12:32 PM, McDaniel, Keshia - OSEC ···················· ············, I Ex (6) Great! I have locked you in for July ! .J L •.•.•.•. - •.•.•.. .•.•.• .• , _____ Travis, I Jwrote: 2sth at 1pm in the Secretary 's Office. I am attaching arrival instructions below. ~W and C Street EntranceArrival Instructions The Departmentof Labor is located at 200 ConstitutionAve NW. Please enter through the 3rd and C Street entrance. Upon arrival please check-inat the security desk and notify the agent on duty that you are here for a meeting with Secretary Acosta. Tim Lineberger, Special Assistant to the Secretary, will greet and escort you to the location of your meeting. Please contact Tim should you have any questions prior to your arrival atI Ex (af······ ··1 1•.• .• •• •• ••.• •• .••• •••••• •••• ••.• •• Thank you and have a great day. Keshia F~o .~:T;~vi: Ex ( 6) J~h;;on -[[!1~ilt~i Sent: Tuesday, July 18, 2011·-rz:rn·PTvr··---··· ····---To: McDaniel, Keshia - OSEC Subject: Re: Meeting Request - Equity Dealers of America Yes, please lock us in for 1p. Thank you! On Jul 18, 2017, at 11:29 AM, McDaniel, Keshia - OSEC NOTI CE: This communication may contain pri vileg ed o r other confidential informati on. If you are not the intended recipient, or belie ve that you have received this communication in error , please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have receiv ed this communication in error, and delete the copy you received . /\ f ICAN PVERSIGHT DOL-17-0281-D-000019 From: David Bellaire Geale, Nicholas C. - SOL Robin Traxler; Conway, Molly E - OSEC 8/9/2017 12:00:29 PM Re: Request for a 30-day Extension of RFI Response Deadline FINAL FSI Comment Letter- RFI Fiduciary Rule with Solutions and Oxford Study 08-08-17 .pdf To: CC: Sent: Subject : Attachments: Nick & Molly: We buckled down and submitted our comment letter yesterday (see attached below) . Please note that it include s a study performed by Oxford Econ omics that I believe yo u will find intere sting. We have reached out to Karen Lloyd to request a meetin g in which to discuss the study and our recommended changes to the DOL Fiduciary Rule. Please let me know if there is someone else I should be contacting to schedule such a meetin g. Thanks. David T. Bellaire, Esq. Executive Vice President & General Counsel Financial Services Institute, Inc. 607 14th Street, NW, Suite 750 ..... Washington, DC .. 20005 ................................................... , ; Ex (6) 1 i ! '-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-··-·-·-·-·-·-·-·-·'. ·-·~ · FSI FORUM t_- MEMBERS ONLY- THRIVING IN A POST.OQ L FIDUCIARY WORLD _ ..--·· September 1 1- 13, 20 17 • Atlonto, GA NOTICE : This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication In error, please do not print, copy, retransmit, disseminate, or otherwise use the information . Also, please ind icate to th e send er that you have received thi s communication in error, and delete th e cop y you rece ive d. On Jul 21, 2017, at 12:20 PM, Geale , Nicholas C. - SOL! Ex (6) Iwrote : '-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·. DavidThanks for your note. I am wo rking on making it more prominent for everyone to see, but EBSA has already posted a respo nse to a number of requests for extension and will gladly accept your co mments after A ugust i has long as they come in reasonably soon thereafter. We are certainly mindful of the fact that additional time can be helpful to the regulated community in respondin g to these important questions. Th e extension notice is posted here for reference: PVERSIGHT DOL-17-0281-D-000020 https://www.do I.gov/ sites/default/files/ebsa/laws-and-regulations/rules-and-regulati ons/public-comments/121OA B82/dates-for-submitting-public-comments.pdf ! From: David Bellaire[mailto:1 Ex (6) Sent: Friday,July 21, 2017 11-:urAivr··-··· -·-·-·-·-·-·-·-·-·-·-·-·-·- -·-·-·-·-·-·-·-·-·-·-·--·' . To: Geale,NicholasC. - SOL;Conway,Molly E - OSEC Cc: RobinTraxler Subject: Requestfor a 30-dayExtensionof RFIResponseDeadline Nick & Molly: FSI is working diligently to prepare our response to the DOL' s RFI on the Fiduciary Rule for the August 7th deadline . However, we believe our input would be more insightful and meaningful to the DOL's review if the comment deadline were extended by 30-days. We included this recommendation in our letter responding to Question l in the RFI (see attached below) and ur ge you and your colleagues to consider extending this deadline. Please feel free to contact me or my colleague Robin Traxler if you have any questions . Thanks. David T. Bellaire, Esq. Executive Vice President & General Counsel Financial Services Institute, Inc. 607 l 4th Street, NW, Suite 7 50 Washington, DC 20005 ! Ex (6) I i-·-·-·-·-·-·-··-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·! NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information . Also, please indicate to the sender that you have received this communication in error, and delet e the copy you received. /\ f ICAN PVERSIGHT DOL-17-0281-D-000021 VOICE OF INDEPENDENT FlNANClAI.$ERVl"CES ARM$ ADVISORS FINANCIAL ANOIND'EPfNOENT VIA ELECTRONICMAIL August 7, 2017 Employee Benefits Security Administration Office of Exemption Determinations U.S. Department of Labor 200 Constitution Avenue, NW Suite 400 Washington, DC 20210 Re: RIN l 21 0 -AB82: Request for Information Regarding the Fiduciary Rule and Prohibited Transaction Exemptions Dear Deputy Assistant Secretary Hauser: On July 6, 2017, the Employee Benefits Security Administration of the Department of Labor (DOL) published a request for information (RFI) in connection wit h its examination of the final rule defining who is a "fiduciary" of an employee benefit plan for purposes of the Employee Retirement Income Security Act of 197 4 (ERISA) and the Internal Revenue Code (IRC), as a result of giving investment advice for a fee or other compensation with respect to assets of a plan or IRA (Fiduciary Rule).1 The RFI seeks public input about possible additional exemption approaches or changes to the Fiduciary Rule. The Financial Services lnstitute 2 (FSI) appreciates the opportunity to respond to this important request for comment . FSI supports a carefully-crafted, uniform fiduciary standard of care applicable to all financial advisors providing personalized investment assistance to retail clients.3 However, we believe that this standard of care should reflect input not only from the DOL but also the Securities and Exchange Commission (SEC), and the Financial Industry Regulatory Authority (FINRA). FSI believes the Fiduciary Rule as it is currently wri tten not only fails to achieve its intended goals, but indeed harms the very investors it was designed to protect. The Fiduciary Rule's increased compliance costs and litigation risk have caused firms to reduce their product and service offerings, deprivi ng investors of vital personal retirement planning services. Fortunately, 1 U.S. Department of Labor , Request for Information, Definition of the Ter m Fiduciary (July 6, 2017) availabl e at: -thehttp s:// www.federalre gi ster .gov/documents / 2017 / 07 / 06 /2 017-14101 /regues t-fo r-in fo rma tlon-reg ardinq -exemptions. flduciar y-rule-a nd -pr ohibl ted-tronsoctlon from the Independe nt 2 The Financia l Services Institute (FSI) is an advo cacy association comprise d of membe rs financial advisors Independent of behalf on solely advocating financial services industry, and is the only organization ness, FSI has aware public and ion ucat ed advocacy, ugh thro 2004, Since s. firm services and Indep endent financial , been working to crea te a healthier regulatory environment for these membe rs so they can provide affordable . Americans Street objective financial advice to hard-working Main Financial Services Institute, to 3 See, e.g., Letter from David T. Bellaire, Exe cutive Vice President & General Counsel, (commenting on Duties of 2013) 5, (Jul. Commission Elizabeth M . Murphy, Secretary, U.S. Securities and Exchange ), availabl e at 4-606 No. File IA-3558; 34-69013; No. Release s, Advisor Brokers, Dealers, and Investment http s://www.sec. gov/ comments/ 4-606 / 4606-31 38 .pdf. 888 373-1840 I 607 14"' S1ree l l~W I Suile 750 I Wosh ing lon, D.C. 20005 I finoncia lservice s.org PVERSIGHT DOL-17-0281-D-000022 Deputy Assistant Secretary Tim Ho user August 7, 2017 Page 2 of 35 we believe that this outcome is still avoidable. We offer more detailed feedback below along with suggestions as to how the Fiduciary Rule could better achieve its goals without causing unintended harm to investors. 4 Background on FSI Members The independent financial services community has been an important and active part of the lives of American investors for more than 40 years. In the US, there are approximately l 67,000 independent financial advisors, which account for approximately 64 .5% percent of all producing registered representatives. 5 These financial ad visors are self-employed ind ependent contractors, rather than employees of the Independent Broker-Dealers (IBD). FSl's IBD member firms provide business support to independent financial advisors in addition to supervising their business practices and arranging for the execution and clearing of customer transactions. Independent financial advisors are small -business owners w ith strong ties to their communities and know their clients personally. These financial advisors pr ovide comprehensi ve and affordable financial services that help millions of individuals, families, small businesses, associations, organ izations, and retirem ent plans . Their services include financial education, plann ing, implementation, and investment monitor ing. Due to their unique business model, FSI member firms and their affiliated financial advisors are especially w ell posit ioned to provide Main Street Americans with the financial advice, products, and services necessary to achieve their investment goals. FSI members make substantial contributions to our nation 's economy . According to Oxford Economics, FSI members nation wide generate $48.3 billion of economic activity . This activity, in turn, supports 482, l 00 jobs including direct employees, those employed in the FSI supply chain, and those supported in the broader economy. In addition, FSI members contribute nearly $6 .8 billion annually to federal, state, and local government ta x es. FSI members account for appro ximately 8.4 % of the total financial services industry contribution to U.S. economic activity .6 Discussion While FSI strongly support s the implementation of a uniform fiduciary standard of ca re, we ha ve long expressed significant concerns with the DOL' s Fiduciary Rule because we believe it will harm investors by reducing their ac cess to personal reti rement plann ing services. Firms now have substantially more knowledge about the Fiduciary Rule's requirements, appropriate compliance strat egies, and costs. A growing body of evidence demonstrates that the Fiduciary Rule is resulting in higher costs for the indust ry, which are passed to consumers in the form of FSI is a p ar ty to a lega l challeng e to th e Fid uciary Rule. O ur respo nse to the DO L's RFI and our eff ort lo off er solutions to the issues w e id entif y wi th the Fiduciar y Rule shoul d not be int erp ret ed as bei ng in conf lict with the arg uments rai sed in that case. We rema in committe d to pursuing that matt er. See U.S. Chamber of Commerce et a l. v. U.S. Depa rtme nt of Lab or et al., case number 17 • 10 2 38, befor e the U.S. Co urt of A pp ea ls for the Fifth Circuit. 5 The use of the term "f inan cia l ad visor" o r " ad v iso r" In this lett er ls a ref ere nce to an fndlvldu a l w ho ls a regis tered repre sentati ve of a brok er- d ealer , an inv estment ad vi ser rep resentat ive of a reg ist ered investment ad viser f irm, or a dua l regi strant . The use of the ter m " Inv estm ent advi ser" or " advi ser " In t hi s lett er ls a referen ce to a fir m or Individual regi stered with th e SEC or state securit ies d iv ision as an Investment ad v iser. 6 O xford Economi cs for th e Flnanclal Ser vices Institute, The Economic Impa ct of FSl' s M embe rs (201 6) htt p://w ww.fin ancial servic es.org/ upl oad ed Files/ FSI Con tent / N ewsroom / Publicatlon s/ Resea rch/ FSl-hnpac t- Repor tFinal. pdf. 4 /\ f ICAN PVERSIGHT DOL-17-0281-D-000023 Deputy Assistant Secretory Tim Hauser August 7, 201 7 Page 3 of 35 reduced product choices and a loss of access to much needed retirement planning services. This information necessitates a reconsideration by the DOL of the assumptions underlying the Fiduciary Rule to ensure it does not harm the very investors it hopes to help. To respond to the RFI, FSI surveyed its members regarding their experience in implementing the Fiduciary Rule.7 Their responses indicate that the Fiduciary Rule is resulting in a reduction in product choice that was not explicitly included in the cost-benefit analysis performed by the DOL during the rulemaking process. Our members indicate they are limiting product choice in response to the Fiduciary Rule for several reasons, including : the large fixed costs to establish the necessary data feeds from product manufacturers and mutual fund families; the increased risk of class action and other litigation; and the complexity of compliance. These factors are causing firms to alter their business strategies in ways that limit the investment vehicles they offer to investors. For instance, many firms are considering whether they must eliminate A-Share mutual fund offerings, the low cost direct-to fund business, and other offerings that benefit investors. This leads us to conclude that, the DOL overstated the Fiduciary Rule's benefits by failing to account for the reduction in product choice. Our survey also found that the actual implementation costs to broker-dealers are nearly three times the DOL's previous estimotes. 8 Extrapolating to other affected entities, this would imply total costs of $39 billion-$47 billion, an amount that already exceeds the DOL's benefit estimotes. 9 Such costs will be passed along to investors. A 2017 report estimated that the Fiduciary Rule will increase consumer costs by approximately $800 per account, or over $46 billion in the aggregate. 10 The combination of lower fees and high fixed transaction costs means that it is no longer economical for many financial advisors to serve smaller clients . Whereas all firms interviewed reiterated their commitment to meeting the needs of smaller investors, many suggested that below certain asset levels smaller investors will be directed to web-based products that do not rely on a financial advisor. The range of asset size at which this transition is expected to occur varied from $25,000 to $70,000 in assets per firm interviewed .11 Moreover, financial advisors are small business with their own overhead expenses to . cover; consequently, they indicated to us that their breakeven point may be lower still. 12 Much of the benefit of retirement planning services results from on advisor's ability to encourage product diversification, and behavioral coaching: encouraging savings; establishing and maintaining long term strategies; and eliminating the emotional decision-making that often arises during periods of market volatility. These benefits are especially critical for lower and middle class investors, and it is imperative that they have access to financial education and guidance as research shows that investors who work with financial advisors save more, are better prepared for their retirement, and have greater confidence in their retirement planning . For example, a study of the positive value of financial advice found that the investment assets of households working with a financial advisor gained 69 % more value after four years and grew 7 O xford Economics for the Financial Services Institute, Encouraging Market Alternative s to the Fiduciary Rule (2017). Included as Appendix 2 to this document. 8 Id. at 3. 9 Id. Meghan MIiioy, American Action Forum, The Consequences of the Fiduciary Rule for Consumers (April 10, 2017), available at: https: // www.americanactlonforum.org / research / consequ ences-fiduciary -rule-consumers/. 11 Oxford Economics, supra note 6 at 26. ,2 Id. 10 /\ f ICAN PVERSIGHT DOL-17-0281-D-000024 Deputy Assistant Secretary Tim Hauser August 7, 201 7 Page 4 of 35 to 290% more value over 15 years, which is 3.9 times the value of assets of a non-advised household. 13 Another study published by Vanguard estimates that access to an advisor adds 300 basis points to an investor's expected return. 14 However, the benefit calculation used by the DOL throughout its rulemaking process undervalued holistic financial and retirement planning services by equating variance in the performance between and within products as being a valid measure of the value of retirement planning services. Regrettably, this miscalculation will have significant consequences to investors who lose access to retirement planning services. While the DOL has vnderestimated the costs, it has also overestimated the benefits attributable to the Fiduciary Rule by narrowly basing its benefit calculation on differences in front-loaded (domestic only) mutual fund performance and foiling to connect its substantive elements with the expected benefits calculation. 15 Domestic equity mutual funds, however, do not represent all front-end load mutual funds. In fact, while broker -sold mutual funds are seen to underperform self-selected mutual funds when it comes to domestic equities, they typically overperform self-selected mutual funds when it comes to international equities . 16 While the benefits calculations are entirely based on relatively subtle questions of mutual fund choice (i.e., that advisors will select funds with half a percentage point higher annual returns on average as a result of the rvle), much of the rule is not tailored to achieving this ovtcome. 17 We believe this is a significant error that must be revisited in light of the increased costs. For these reasons, FSI appreciates the DOL delaying the implementation date of the Fiduciary Rule until January l, 20 l 8, but urges the DOL to adopt a further delay in order to conduct a detailed review of the Fiduciary Rule, its negative impact on investors' access to retirement planning services and products, and new innovations and approaches that may alleviate many of these concerns. 18 Our members svpport the thoughtful adoption of market based solutions, which will result in more cost-effective approaches that better serve investors. However, time is required for market solutions to develop, be implemented, and prove acceptable to consumers. We believe that investors are well protected by existing federal and state regulatory structures and the June 9, 2017 application of the Fiduciary .Rule's Impartial Conduct Standards, but the tight time frame imposed by the January l, 2018 implementation date severely restricts the industry's ability to properly develop and implement these emerging market solutions. Therefore, we vrge the DOL to eliminate the Fiduciary Rule's harmful effects and ensure consumer access to retirement planning services and protection under a best interest standard of care by making the following changes, which we discuss in more detail below: 13 Claude Montmarquette, Nathalie Viennot -Briot. Centre for lnteruni versity Research and Analysis on Organizations (CIRANO), The Gamma Factor and the Value of Advice of a Financial Advisor, available at https://www.cirano.gc.ca/files/publications/2016s -35.pdf 14 Klnnlry, Jaconett l, DlJosespeh, Zibe ring & Bennyhoff, Vanguard Research , Putting a value on your value: Quantifying Vanguard Advisor's Alpha (September, 2016). See also: David Blanchett & Paul Kaplan, Morningstar, Alpha, Beta and No w...Gamma (2013) available at http://corporate.morningstar.com/ euconf 3 /p resentations /D aviclo/o20BI anchett, %20Mo rning star .pelf; Marsden, Mitchell et. al., The Value of Seeking Financial Advice, Journal of Family and Economic Issues 32(4): 625-643 (2011 ). 15 Oxford Economics, supra note 6 at 22. 16 Id. 17 Id. at 23 . 18 Lette r from David T. Bellair e , Executive Vice President & General Counsel, Financial Services Institute, to DOL Employee Benefits Security Administration (July 21 , 2017), available at https: //www. dol.gov/sites / d efault /fi les/ ebsa/laws-and-regulations/rules-and-regulations/public-comments/ 121 OABB2/00042.pdf. /\ f ICAN PVERSIGHT DOL-17-0281-D-000025 Deputy Assistant Secretary Tin, Hauser August 7, 2017 Page 5 of 35 • Streamline the documentation and disclosure requirements of the Best Interest Contract Exemption (BICE) while eliminating its private right of action; • • Create a single best interest standard applicable to all advisors and investors; Revise and broaden the levelized compensation rules; • Revise rules for IRA rollovers; • Expand grandfathering provisions to compensation in connection with securities purchased prior to June 9, 2017; and • Delay the full implementation of the full Fiduciary Rule until April 10, 2019. We explain our suggested solutions and respond to specific questions asked by the Request for Information in greater detail below. I. Adopt Alternative Enforcement Mechanisms for the Best Interest Contract Exemption A. Introduction As the Fiduciary Rule is implemented, it has become apparent to our members that the private right of action created by the Best Interest Contract Exemption (BICE) is increasing industry costs, which in turn will increase the prices that investors and retirees must pay, and ultimately reduce access to retirement planning services. The private right of action created by the Fiduciary Rule's BICE is certain to result in an increase in litigation, directly contributing to this unnecessary increase in cost to investors. FSI strongly asserts that investor access to retirement planning services can be preserved by cutting the costs associated with the BICE of the Fiduciary Rule. In 2017, FSI engaged Oxford Economics to conduct another study, "How the Fiduciary Rule Increases Costs and Decreases Choice" (2017 Oxford Economics Study) to update their economic analysis 19 on the impact of the final Fiduciary Rule.20 The findings of the 2017 Oxford Economics Study are based on the actual experience of FSI member firms implementing measures to comply with the Fiduciary Rule, not assumptions or projections, which makes these figures far more reliable than the DOL's Regulatory Impact Analysis' (RIA) figures. This report indicates that as reported in the 201 6 RIA, broker dealer startup costs have been 1.7 times the DO L's estimate, and recurring costs are expected to be 3.5 times the DO L's estimate, with total 10-year costs exceeding DOL estimates by nearly 2.9 times. Extrapolating from these underestimates of costs to 19 In 2015, FSI engaged Oxford Economics to Conduct a study on the "Economic Consequences of the DOL Fiduciary Rule" (2015 Oxford Economics Study available at http://www.flnanclalservices.org/uploadedFlles /FSI Content /Docs /DOL/FSI-Full-Oxford-Econom ics-Study .PDF). The study estimated the Fiduciary Rule would result in startup costs ranging from $1. l million to $1 6.3 million per firm, depending on firm size.19 The 2015 Oxford Economics Study indicates that their estimates e xceed the DOL's totals by significantly larger margins for small and medium sized firms - specifically, 4.6 -5.1 times as high; as for large firms - 3.3 times as high. This is due to the DOL's inctccurate estimate of costs for small and medium- sized firms. Where the DOL estimates that medium firms' costs wfli be only 1 3.3%, and small firms only 4.8% of large firms' costs, Oxford estimates they will be significantly larger at 20.6% and 6.9%, respectively.19 The 2015 Oxford Economics Study went on to warn that the DOL "dramatically underestimated" the cost to comply with the Fiducia ry Rule and that smaller firms would find It difficult to stay in business once It took hold. 20 Oxford Economics 2017 Report, "How the Fiduciary Rule Increases Costs and Decreases Choice" (April 2017), available at http://www.financialservices.org / uploadedFiles/FSI/Advocacy Action Center / The Fiduciary Rule Incre ases Costs And Decreases Cholce .pdf. /\ f ICAN PVERSIGHT DOL-17-0281-D-000026 Deputy Assistant Secretary Tim Hauser August 7, 2017 Page 6 of 35 broker-dealers billion. 21 to all the rules costs, implies a total cost figure of roughly $39 billion-$47 FSI members report that one consequence of the Fiduciary Rule's Best Interest Contract Exemption (BICE) is that the economics of managing small accounts will change such that the fixed cost of servicing the account will exceed revenue that will be earned. For example, the sheer complexity of new transaction-specific process documentation imposes large costs on the advisor with questionable benefit to the client. Our survey found that the Fiduciary Rule requires up to 12 pages of documentation and the required documentation and disclosure take anywhere from 20 minutes to two hours to complete. 22 As a result, many of our IBD member firms indicate that smaller investors will be offered robo-investing type account services or be asked to move their accounts. These small (often entry level, novice investors) would lose access to the personalized retirement planning services vital to their planning for a dignified retirement. While the definition of a small investor varies among our member firms, Oxford generally estimates that the breakeven point for servicing an investment account ranges from $25,000 to $70,000 in assets.23 Since the median IRA balance has ranged from $23,785 to $33, 185 between 2010 and 2014, it is clear that without significant changes the Fiduciary Rule will have a devastating impact on investor access to retirement planning services and small investors will bear the brunt of that impact .24 B. BICE Private Right of Action Will Harm Investors The BICE created a private right of action by requiring, as a condition of the exemption, that financial institutions enter into a contract with IRA holders, subjecting financial institut io ns and advisors to lawsuits for breach of contract on terms and in forums dictated by the DOL. The private right of action, including - and arguably encouraging - the possibility of class action suits, is a major contributor to uncertainty regarding the true costs of the Fiduciary Rule and has been a fundamental element of the opposition to the Fiduciary Rule. The private right of action creates substantial financial risk for advisors and financial institutions and will not produce benefits to investors that are commensurate with its costs. Industry members estimate that the increased litigation stemming from the inappropriate use of the private right of action in enforcing the BICE will result in between $70 million and $1 50 million in costs to the industry each year. 25 An analysis by the American Action Forum similarly found that firms involved in litigation as a result of the Fiduciary Rule could face annual costs of up to $150 million .26 Data shows that lawsuits like the type that would flow from the Fiduciary Rule provide almost no benefit to the class members of the action, but rather primarily benefit their lawyers .27 Id. at 12. n Id. at 14. 21 Id at 26. "Individual Retirement Account Balances, Contributions, Withdrawals, and Asset Allocation longit udinal Results 2010 -2 0 14: The EBRI IRA Databme" (January 17, 2017) available at https://www .e bri.org/pdf /briefspdf /E BRI IB 4 29 IRA-long.17 Jan 17.pdf. 25 Morningstar, Inc., Weighing the Strategic Tradeoffs of the U.S. Department of Labor's Fiduciary Rule (February 2017). 2 6 American Action Forum, The Consequences of the Fiduciary Rule (April 10, 2017) available at: www.americanactionforum.org/ research/ consequences -fidu ciary -rule -consumers. 27 Mayer Brown LLP . "Do Class Actions Benefit Cla ss Members? An Empirical Analysis of Class Actions." December 11 , 201 3. Available online: http: //www.i nstituteforlegal reform.com/up loads /si te s/ 1 /Class -Action-Study.pdf (last visited April 17, 2017). 23 24 /\M RI AN PVERSIGHT DOL-17-0281-D-000027 Deputy Assistant Secretary Tim Hauser August 7, 20 l 7 Page 7 of 35 A U.S. Court of Appeals judge observed that certification of a class action forces defendants "to stake their companies on the outcome of a single jury trial, or be forced by fear of the risk of bankruptcy to settle even if they have no legal liability." 28 Defendants are often forced to make a rational economic decision of settling with an extremely litigious plaintiff's bar instead of spending years on defense and tying up even more money in discovery costs. The result is that attorneys earn big fees, class participants get small settlements, and the costs of litigation gets factored into the price investors must pay to access retirement planning services. As a result, BICE's private right of action is an inappropriate and ineffective mechanism for enforcement that should be replaced by a means more likely to promote compliance without imposing an unmanageable burden on financial advisors and financial institutions. In addition, enforcement through private litigation harms investors because it provides a disincentive for financial advisors to provide necessary education. The risk of private litigation is proving counterproductive to the interests of retirement investors by distorting the professional advice they receive. For example: • • • A nationally syndicated financial columnist recently reported an instance where an advisor, who had previously recommended managing diversification jointly for the IRAs of a husband and wife with equities in the husband's IRA and bonds in the wife's IRA, changed that recommendation in connection with the Fiduciary Rule to recommend diversification in each account. That change plainly was driven by a concern about private liability exposure and not by any substantive "fiduciary" defect in the prior recommendation and may have involved additional cost for the investors. 29 FSl's financial advisors members are reporting that, when asked by a retired investor 30 whether to take cash needed for some specific purpose from a taxable account or a retirement account, the advisor is defaulting to the taxable account out of a perception that there is less risk to the advisor in making that recommendation. That in fact may routinely be the recommendation in the investors "best interest", but a material driver of that recommendation is the liability concern on the part of the advisor. One of the principal benefits to investors of the broker-dealer system in the U.S. has been the opportunity to access a very wide range of investment products and services as appropriate to each investor's circumstances. However, there is considerable concern over new legal risks created by the Fiduciary Rule. In response to these concerns, many firms are moving toward a more homogenized product offering to reduce variance in product performance within specific product classes. The wider range of products offered, the wider the difference in fees and performance will be. There is a perception among firms that the Fiduciary Rule creates too much opportunity for trial attorneys to exploit these differences in fees and performance through a class action lawsuit. Therefore, many firms are carefully considering how much fee or expected performance variance they are In re: Rl1one-Poulenc Rorer , Inc., 51 F.3d 1293, 1299 (7 th Cir. 1995). Michelle Singletary, New retirement rule may not stop your adviser from giving you bad advice (June 17, 2017) available al: htrp, // www .journalnow.com/busine ss/columnists/ michel le -sing letary -new -retl rement-rule-may -not -stop your-adviser /a rticle 28c 142d8 -ee2 8-5cae-9d 1f - b761 b 1863d4a.html. 30 It is almost never advisable to withdraw funds from a retirement account before age 59 .5, we use the term 'retired investor' lo mean one who Is 59.5 or older. 28 29 f ICAN PVERSIGHT DOL-17-0281-D-000028 Deputy Assistant Secretary Tim Hauser August 7, 2017 Page 8 of 35 willing to offer through varied product selection. As a result, products become homogenized and choice limited. 31 While it is certainly the case that none of those outcomes is specified in the Fiduciary Rule, each of them is an entirely rational response to the imposition of an exceptionally high fiduciary duty that may be adjudicated after the fact through private litigation in state court. The DOL did not adequately account for litigation costs and the resulting reduced access to advice in its RIA. The Northern District of Texas found that the "DOL did not specifically quantify potential class action litigation costs." 32 A Presidential Memorandum instructed the DOL to examine whether the Fiduciary Rule is likely to cause on increase in litigation. 33 The DOL now has an opportunity to address those comments describing the increased litigation costs the Fiduciary Rule imposes on the industry and investors. Given the above, the most harmful aspect of the BICE is that by design, private litigation is the primary enforcement mechanism. The Fiduciary Rule's reliance on private enforcement reflects a non-empirical judgment by the DOL that the prohibited transaction enforcement mechanisms enacted by Congress in 1974 and as evolved in practice are inadequate. Those mechanisms are: • The prohibited transaction excise tax of Code section 4975 . As with the overall federal tax system, section 4975 is enforced primarily through voluntary compliance. That is, every taxpayer that owes the section 497 5 excise tax has an obligation to pay it without an assessment from the IRS; and • For ERISA plans, the remedial provisions of ERISA including private litigation. The consequences of the Fiduciary Rule have spurred other financial services regulators to act: the SEC issued a request for comment on standards of conduct for broker dealers and investment advisors, expressing a desire to collaborate with the DOL to provide clarity for advisors serving retirement investors; states are also introducing legislation and regulations expanding fiduciary status, for example Nevada's effort is discussed below . In an environment where a broader group of regulators will be holding advisors accountable to fiduciary standards, the creation of a private remedy under BICE and other PTEsloses its justification. And when the risk of private litigation is compromising the ability of advisors to provide best interest advice, elimination of that ri sk becomes essential to the purposes of the Fiduciary Rule. As the BICE is implemented, its enforcement mechanism is increasing industry costs, which in turn increases investor costs and reduces access to products and services, ultimately harming investors . Further, the BICE harms investors because it provides a disincentive for financial advisors to provide necessary education. FSI strongly suggests that these negative effects on investors can be reduced by eliminating the BICE's private right of action, which will reduce industry costs that are passed on to investors and preserve their access to retirement planning services. 31 32 33 Oxford Economics, supra note 6 at 5. Chamber of Commerce of the U.S. v. Hug/er, No. 3: l 6-cv- 147 6, dkt. l 37 at 63 (Feb. 8, 20 17). Presidential Memorandum on Fiduciary Duty Rule , 82 Fed. Reg. 9675 (Feb. 7, 2 017) . /\M RI AN PVERSIGHT DOL-17-0281-D-000029 Deputy Assistant Secretory Tim Hauser August 7, 2017 Page 9 of 35 C. Alternative to Private Enforcement Mechanism: Coordinated Enforcement The interests of retirement investors can be better protected - and the goals of the Fiduciary Rule achieved - without a written contract and its consequences for access and costs. To the extent the DOL lacks direct enforcement authority, coordination with regulatory agencies that do have such authority will lead to better targeted results without the wasted resources of meritless litigation. Contractual warranties on policies and procedures would not be necessary, but the substance of those warranties could be converted to conditions of the exemption As previously discussed, the DOL created the private right of action in the BICE because it lacks another enforcement mechanism. However, other financial regulatory agencies have robust enforcement programs, with which the DOL could coordinate to leverage their expertise and infrastructure. Indeed, the Fiduciary Rule is already relying on enforcement support from the securities and banking regulators in order to administer the PTEs.In contrast to forcing the industry to pay millions of dollars to plaintiffs' attorneys, just to settle cases outside of their merits, leveraging existing information shoring arrangements and entering into memoranda of understanding with other enforcement agencies ensures that amounts recovered benefit the investor and penalties paid go back into the regulatory system to cover the costs of enforcement. Moreover, placing enforcement in the hands of more experienced financial regulators means less likelihood of frivolous suits, reducing costs to the system and producing more direct action against actual wrongdoers. Further, retirement investors already have an independent, private remedy available in the form of FINRA arbitration. Pursuant to FINRA rules, claims that retirement investors have against FINRA member firms are subject to arbitration and, in the absence of pleading standards for those proceedings, those claims will in the future invoke the Fiduciary Rule. As noted above, FINRA arbitration has proven to be an effective forum for investors, and avoids the delay and expense of private litigation. Consequently, to the extent DOL has determined that retirement investors should have direct rights against broker-dealer firms, those rights already exist in the right to FINRA arbitration, making the contract and warranties under the BICE a needless complication and expense. Again, this is a circumstance where the conditions of the exemption as written will not functionally advance the interests of retirement investors. Enforcement coordination is further discussed in Section Ill below. Using private litigation as the primary enforcement mechanism does investors more harm than good. We contend that retirement investors' interests can be better protected without a written contract and its consequences on access and costs through coordination with financial regulatory agencies that already have direct enforcement authority. Placing enforcement in the hands of experienced financial regulators will reduce costs resulting from frivolous litigation and producing more direct action against wrongdoers. In addition, a private remedy for retirement investors already exists in the form of FINRA arbitration, which avoids the delay and expense of private litigation. However, thoughtful interogency coordination will toke time and full implementation of the Fiduciary Rule should be delayed beyond January 1, 201 8. D. Alternatives to Contractual Warranties The warranties required under the BICE are unprecedented in the DOL's administration of ERISA. The DOL's usual practice, of course, has been to leave the methods and means of meeting fiduciary standards to fiduciaries themselves, as informed by the low of trusts and guidance in the /\M RI AN PVERSIGHT DOL-17-0281-D-000030 Deputy Assistant Secretory Tim Hauser August 7 , 2017 Pagel O of 35 context of particular fact patterns. Thus, a primary purpose, if not the primary purpose, of the warranties is to serve as an additional basis for contractual liability on the part of fiduciary advisors and financial institutions. If, as submitted above, the private right of action under the BICE is withdrawn as counterproductive, it follows that the warranties can be deleted from the exemption as well . To the extent the DOL determines to retain the substance of the warranties, they should be reformulated as terms of the exemption rather than contractual warranties. For example, the warranties in section Ill( d)( 1) and (2) that the Financial Institution has and follows written policies and procedures designed to promote adherence to the Impartial Conduct Standards and identifying and mitigating material conflicts of interest can readily be restated as conditions for the relief provided by BICE. Section lll(d)(3) contemplates a warranty that the policies and procedures: •.. require that neither the Financial Institution nor (to the best of its knowledge) any Affiliate or Related Entity use or rely upon quotas, appraisals, performance or personnel actions, bonuses, contests, special awards, differential compensation or other actions or incentives that are intended or would reasonably be expected to cause Advisers to make recommendations that are not in the Best Interest of the Retirement Investor. Notwithstanding the foregoing, this Section ll(d)(3) does not prevent the Financial Institution, its Affiliates or Related Entities from providing Advisers with differential compensation (whether in type or amount, and including, but not limited to, commissions) based on investment decisions by Plans, participant or beneficiary accounts, or IRAs, to the extent that the Financial Institution's policies and procedures and incentive practices, when viewed as a whole, are reasonably and prudently designed to avoid a misalignment of the interests of Advisers with the interests of the Retirement Investors they serve as fiduciaries (such compensation practices can include differential compensation based on neutral factors tied to the differences in the services delivered to the Retirement Investor with respect to the different types of investments, as opposed to the differences in the amounts of Third Party Payments the Financial Institution receives in connection with particular investment recommendations) . While FSI agrees that policies and procedures that mitigate the effect of material conflicts of interest are important, the ability to ensure that the policies and procedures comply with an exemption condition is essential to making the exemption structure work for both the industry and for investors. When converting this warranty into an exemption condition, a tighter description of the substance of the written policies and procedures is appropriate to ensure compliance certainty. This description should identify the specific compensation-related conflicts to be addressed by the written policies and procedures . For example, the description could outline policies and procedures addressing the following: (i) /\M RI AN PVERSIGHT A supervisory program that employs processes for monitoring when an advisor is approaching a compensation threshold that would: a. Result in a higher payout percentage in the Financial Institution's compensation grid, b. Qualify an Advisor to receive a back-end bonus, or c. Qualify an Advisor to participate in a recognition club; DOL-17-0281-D-000031 Deputy Assistant Secretary lim Hauser August 7, 2017 Page 11 of 35 (ii) (iii) {iv) Compensation policies that minimize incentives for advisors to favor one type of product or another, or proprietary products or products for which the Financial Institution has entered into revenue sharing arrangements, over non-proprietary products that do not entail revenue sharing arrangements; A supervisory program that monitors advisors' recommendations around key liquidity events in an investor's lifecycle; and Use of processes and metrics to assess good and bad behaviors on the part of advisors and make appropriate compensation adjustments for advisors based on the assessments. FSI believes that written policies and procedures that address each of these items will ensure that all financial institutions mitigate the impact of conflicts of interest in a consistent manner. This necessarily benefits investors . Under the current structure, investors shopping for financial professionals would be required to request policies and procedures and compare them between advisors to obtain assurance that the conflicts were being adequately addressed . Finally, the RFI also asked for information on the extent to which the industry would be willing to contribute to the development of model policies and procedures . FSI is prepared to assist in such a process. II. Streamline BICE Documentation and Disclosures A . Introduction The BICE creates a significant volume of disclosures that are cumbersome and expensive to create, will confuse investors with their sheer volume and complexity, and because of the private right of action created by the Fiduciary Rule, could create immeasurable legal liability. The DOL designed the Fiduciary Rule's BICE to protect IRA investors through these detailed disclosures. However, the significant costs associated with these disclosure requirements will harm investors through by reducing their access to investment products and retirement planning servi ces. The disclosure costs include: • The practical costs of trying to accumulate and disseminate the information required ; • The direct costs of mailing and distributing the disclosures; and • The opportunity cost of devoting precious time with clients to discussing paperwork. The increased administrative burden makes retirement planning services more expensive and difficult to access because financial advisors will find it difficult to meet with the same number of clients in the course of their work day and are unable to work with smaller account balances that do not cover their overhead . Our members report that setting up an IRA takes approximately two hours under the new requirements, making it much more challenging to economically justify working with smaller account balances. While our member firms are committed to meeting the needs of smaller investors, many have indicated that below certain asset levels smaller investors will be directed to web-based products that do not rely on a financial advisor. Oxford Economics describes the problem below: The range of asset size at which this transition is expected to occur varied from $25,000 to $70,000 in assets per firm interviewed. Moreover , financial advisors are small business with their own overhead expenses to cover; consequently, their breakeven point may be /\ f ICAN PVERSIGHT DOL-17-0281-D-000032 Deputy Assistant Secretory Tim Houser August 7, 2017 Page 12 of 35 lower still. One financial advisor whom we interviewed reported that although he remains committed to serving small investors, the current economics may not allow for these relationships to continue. As a result, small investors will be doubly disadvantaged. They will lose access to the retirement planning services that will help them increase their retirement assets, and this will then further limit their ability to take advantage of products and services that can enhance financial security during retirement years . 34 In his Congressional testimony on behalf of FSI, David Knoch, President of 1st Global gave the following example of the real-world impact of the BICE disclosure obligations on investors: 35 Today, in our entry-level investment advisory programs for o fiduciary account with o minimum asset size of $5,000, the paperwork bundle that the client is required to sign is 191 pages in length. Of these 191 pages, 149 are disclosure, including the delivery of Form ADV and its required inclusions. This means that 78 percent of the paperwork o client signs in our "entry level" investment advisory program is disclosure. If you add the prospectus delivery requirement to the count, a client receives 503 pages of paperwork, totaling 461 pages of disclosure, or 92 percent of the paperwork . Additionally, ofter the January 1 applicability date, for a small commission-based account, which can be opened with as little as $50 initial investment utilizing the Best Interest Contract Exemption, we expect the number of pages of paperwork to be 98 pages, with 70 of those pages being disclosure. When prospectus delivery is added, the number swells to 117 of the 145 total pages, or 81 percent of the total paperwork burden imposed on clients. 36 In addition, the Fiduciary Rule's website and transaction level disclosure obligations are too burdensome for firms and are not calculated to provide investors the type of information they actually need. The complicated and comprehensive nature of the disclosures makes it highly unlikely that they will be effective in achieving the DOL's goal of transparency and usability for investors. Investors do not need or want these voluminous and duplicative disclosures, and will not read, refer to, or rely on them. Further, the cost of complying vastly outweighs any marginal usefulness of the disclosures. Experience has demonstrated that more disclosure does not equate to better disclosure. For example, the 1999 Gramm-Leach-Bliley Act required financial institutions to make very detailed annual disclosures to consumers. Critics contended that the resulting notices were long, complex, and written in legalistic jargon that was difficult for consumers to understand. In 2006, Congress directed the financial regulatory agencies to jointly develop a streamlined model financial privacy form. 37 Consumer testing commissioned by the agencies showed that consumers were more likely to read notices that were simple, provided key context up front, and had pleasing design elements, such as large amounts of white space . This testing indicated that notice in the form of a table was more effective than the long notice originally required by 34 Oxford Economics, supra note 6 at 26 . 35 Impact of the DOL Fiduciary Rule on the Capital Markets: Hea ring Before the Subcommitt ee on Capita l Market s, Securities and Investment of the House Financial Services Committee, 115 th Congress (2017) (testimony of David Knoch, President, l 11 Global) available at http s:// financlc1lse rvices.house.go v / UploadedFiles / HHRG - 1 15- BA 16WState-DKnoch - 20170713.pdf. 36 Id. 37 Peter Swire & Kenesa Ahmad, Investment Company Institute, Deliv ering ERISA Disclosure for Defined Contribution Plans: Why the time has come to prefer e lectronic delivery (June 2011) avai/ob/e of: https :/ /www.ici.org /p df / ppr l l disclo sure dc.pdf. /\M RI AN PVERSIGHT DOL-17-0281-D-000033 Deputy Assistant Secretary Tim Hauser August 7, 2017 Page 13 of 35 Gramm-Leach-Bliley, which performed poorly on all measures. 38 These findings were successfully incorporated into the agencies' model form and should serve as a guide to the DOL. 39 The SEC has greater expertise related to investor disclosure regimes and would be well positioned to aid the DOL in drafting its disclosures to maximize their effectiveness. As SEC Commissioner Michael Piwowar observed in his comments on this RFI,the SEC hos historically mode great effort to ensure the accuracy and effectiveness of disclosures to investors. 40 He pointed to the work of the SEC's Office of the Investor Advocate's Policy Oriented Stakeholder and Investor Testing for Innovative and Effective Regulation (POSITIER)Initiative, which is engaged in an evidence-based study of the impacts of proposed policy changes, including disclosure-oriented policies. He contended that, "[r]ather than dismiss out of hand the role of disclosure in policing conflicts of interest, I would strongly encourage the Department to redouble its efforts to work with the Commission and its expert staff, who may bring to bear our decades of experience in enforcing multiple disclosure-based regimes ." 41 Additionally, as firms have worked in the months since the Fiduciary Rule was promulgated to try to scope and begin building technological systems to comply with the transaction level disclosures, it has become apparent that industry-wide changes must be considered, reviewed, structured, and implemented, which would necessitate considerable time and expense that are unrealistic with a January l, 20 l 8 implementation date. Our members report that they a re building databases in order to perform the complex analyses of all available products, channels, fees and expenses to provide such a disclosure, but still have a significant amount of work left to be ready by January l . Until the databases can be developed and implemented (at least 12 months), they are instituting a manual process, which is time consuming and can often be errorprone. The DOL has maintained throughout the rulemaking process that "disclosing conflicts alone would fail to adequately mitigate the conflicts or remedy the horm." 42 However, the DOL has not discussed why disclosure coupled with other less burdensome requirements could not offer a superior alternative to the Fiduciary Rule. We believe the post Fiduciary Rule adoption experiences of financial institutions and financial advisors demonstrate the need to reconsider the BICE's disclosure obligations . For these reasons, we urge the DOL to consider an alternative disclosure regime. B. Alternative Global Disclosure Document We suggest that firms should instead be required to deliver a "global" disclosure document about their services, forms of compensation, and material conflicts of interes t at the time an account is established. The relevant disclosures should be available on a website maintained Id. Final Model Privacy Form under the Gramm -Leach-BIiie y Act, 17 CFR Part 248 (2009) ovo iloble ot : https:// www.sec.gov/rules/final/2009 /34 -61003.pdf. 40 Leiter from Commissioner Michael S. Piwowar, U.S. Securities and Exchange Commission, lo the DOL Employee Benefits Security Administration (July 25, 2017) ovoi/oble othttps: / /www .sec.gov / new s/ public-statement / plwowar comment-dol-flduclary-rule-prohibited-transaction -exemptions. 4t Id. 42 Definition of the Term "Fiduciary;" Conflict of Interest Rule - Retirement Investment Advice; and Related Exemptions, 81 Fed . Reg 20945 at 20950 (April 8, 2016). 3a 39 MRI AN PVERSIGHT DOL-17-0281-D-000034 Deputy Assistant Secretory Tim Houser August 7, 2017 Page 14 of 35 by the firm, and access to it should be deemed equivalent to delivery of the disclosures for existing clients. For example, draft legislation circulated by Representative Ann Wagner (R-MO2) includes a disclosure requirement at the outset of the account relationship and provides a workable format: a description of the type and scope of services to be provided, the standard of conduct applicable to the relationship, the types of compensation that may be charged, and any material conflicts of interest. It also envisions disclosure of transaction costs on first purchases of new products. 43 We support this model, but believe even it can be simplified for the benefit of investors. Thus, the DOL could reduce the costs of the Fiduciary Rule without affecting its functional utility for retirement investors by modifying the disclosures required under the BICE. These disclosure provisions would be greatly improved, from both a cost-benefit perspective and from an investor protection perspective, if they were revised as follows : • If the Financial Institution is already subject to a conflicts disclosure under federal or state law - in the setting of our industry, the Form ADV or the 404a-5 disclosure for ERISA plan participants - no additional disclosure would be required under the BICE. While these other disclosures are not identical to those currently required under the BICE, the differences are not so material as to justify the costs and other detriments of an additional disclosure . • If the Financial Institution is not subject to a conflicts disclosure obligation, it would post on its website a simple, concise narrative disclosure of the key points about conflicts that retirement investors should understand, in a form that permits ready comparison among Financial Institutions. Those key points are: o That the Financial Institution and Advisor are compensated for their services; o That compensation may vary among the products and services they offer; o That they do or do not offer proprietary products; o That they receive third-party payments; and o That there are products and services appropriate for a given retirement investor that the Financial Institution does not offer. The objective is to ensure that, if printed in hard copy, this disclosure could be presented on a single page in an accessible format. In either case, specific disclosures about the recommended transaction would be available on request, and retirement investors would be apprised of the opportunity to obtain that information. • The burdensome disclosure and documentation requirements of the BICE harm the very investors they were designed to protect . However, this harm can be avoided by implementing a global streamlined disclosure document as described above. This approach would ensure that the disclosures available to retirement investors are useful to them, at a radically reduced cost. The result would be better informed investors who have access to the retirement planning services they need and desire. 43 Impa ct of the DOL Fiduciar y Rule on the Capital Markets: Hearing Before the Subcommittee on Capital Markets, Securities and Investment of the House Financial Services Committee, 115th Congress (2017). /\M RI AN PVERSIGHT DOL-17-0281-D-000035 Deputy Assistant Secreto ry Tin, Hauser August 7, 2017 Page 15 of 35 Ill. Simplify the Regulatory Regime by Leveraging the Expertise of other Regulators A. Introduction Because of the Fiduciary Rule, the inconsistent standards between tax-qualified and all other accounts have created an unworkable regulatory regime, which is confusing and counterproductive for investors and unworkable for financial advisors. This is because the Fiduciary Rule fails to recognize that most clients are actually household units that have both qualified and non-qualified accounts. As FINRA observed in its comments on the proposed Fiduciary Rule: 44 The Proposal would impose a best interest standard on broker-dealers that differs significantly from the fiduciary standard applicable to investment advisers registered under the federal and state securities laws, and it would impose the best interest standard only on retirement accounts. This fractured approach will confuse retirement investors, financial institutions, and advisers. Below is a depiction of the panoply of regulatory regimes that will apply under the Proposal to different accounts served by the same financial adviser for a single customer. Customer's Investment Portfolio FINANCIAL ADVISER Broker-DealerAccounts Investment Adviser Accounts Potential to have fi sets of rules for any product The increased costs of complying with overlapping regulatory regimes, some of which rely on private litigation to enforce its complex requirements, is causing higher prices and reduced investor access to retirement planning services. These problems can be addressed most effectively through increased coordination and cooperation between the relevant regulatory author ities. Unlike the DOL, the SEC has existing examination and enforcement protocols and trained staff to perform these important functions. Similarly, the NAIC has valuable expertise in regulating the insurance industry, including regulation of financial professionals who sell insurance products. They 44 Letter from Marcia Asquith, Senior Vice President and Corporate Secretory, Financial Industry Regulatory Authority, to Deportment of Labor , Employee Benefits Security Administration (July 17, 2015) available at: https:/ /www. dol.gov/ sites/ default/flies/ ebso/laws-ond -regulotions/rules-ond-regulotlons/ publlc-comments/1 21 0AB3 2-2 /00405.pdf https: // www.dol.gov/ sites/ default/ files/ ebso/laws-ond-regu lalions/rules -andreg ulations /public -comments/ 1210 -AB32-2/00405.pdf. /\ f ICAN PVERSIGHT DOL-17-0281-D-000036 Deputy Assistant Secretory Tim Houser August 7, 2017 Poge 16 of 3 5 must be part of the solution if we are to ensure investors retain access to a wide array of investment options and retirement planning services. Recent statements by Secretary of Labor Alexander Acosta and SEC Chairman Jay Clayton indicate that they understand the SEC's unique expertise in the regulation of broker dealers and investment advisors necessitates close coordination between the regulators. "The SEC has important expertise and they need to be part of the conversation," Secretary Acosta said to the Senate Appropriations subcommittee on labor and health and human services. 45 "It's my hope that •••the SEC will continue to work with the Department of Labor on this issue." In recent remarks to the Economic Club of New York, Choir Clayton observed that, "with the Department of Labor's Fiduciary Rule now partially in effect, it is important that the Commission make all reasonable efforts to bring clarity and consistency to this area. It is my hope that we can act in concert with our colleagues at the Department of Labor in a way that best serves the long -term interests of Mr . and Ms. 401 (k)." 46 FSI is encouraged by these statements. However, we recognize that coordination bet ween the DOL, SEC, FINRA, and the state insurance regulators to develop a common approach will require thoughtful and meaningful work. Not only will it take time to develop a uniform best interest standard, but once developed the DOL, SEC and other regulators will need to engage in and coordinate their respective rulemaking processes, which will necessarily include notice and comment periods. The SEC has already issued a request for comment regarding standards of conduct for investment advisors and broker-dealers to evaluate potential regulatory actions in light of current market conditions, but this is just the start of the ir rulemaking process. 47 A collaborative effort will take more time than the current Janua r y 1, 2018 implementation date allo ws. An e xtension of the implementation date is necessary to avoid the harm to investors that is resulting from disparate regulatory regimes. We offer a solution in further detail below. B. Modification of Impartial Condu ct Standards. The impartial condu ct standards, introduc ed in the BICE and exported into e xisting exemptions, consist of three underlying standards: ( 1 ) investment advice must be in the " best interest" of the retirement investor; (2) compensation for such advice must not be in excess of reasonable compen sation; and (3) any statements made in connection with tha t advi ce must not b e materially misleading . The best interest standard is described as follo ws: Investment advice is in the "Best Interest" of the Retirement Investor when the Adviser and Financial Institution providing the advice act with the core , skill, prudence , and diligence under the cir cumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, based on the investment objectives , risk toleran ce, financial circumstance s, and needs of the Retirement Investor, w ithout regard to the financial or Ma rk Schoeff, loba ·'sAlex.order Acasloc:xidSEC'sJayClaytontell kw makers /heywill wo,-ktogetheronfiduciary rule,Inve stme nt News (June 27, 2017) available at: http ://www .investrnentnews .com/ art icle /2 01 7 06 27 / FREE/17 06 29 9 31 / lab orsale xande r-aco sta -and -secs-jay -clayton -tell -la wmaker s-they. A 6 Ja y Clayton , Chai rman, U.S. Securities and Exchange Commission, Remarks at the Economic Club of New York (July l 2, 2017) available at: https://www.se c.g ov/ ne ws/spe e ch/rem a rks-ec onomic-club- new-york. 47 Ja y Clayton, Chairman, U.S. Securitie s and Exchange Commission, Public Comments from Retail Investor s and Othe r Inte rested Parties on Standards of Conduct for Investment Advise rs and Broker-Dea le rs (June l, 201 7 ) avail able at : https://www.se c.go v/ news/p ub lic-sta te me nt/s ta teme nt-chainn o n-cloyton-2 01 7 -0 5- 31 . 45 /\M RI AN PVERSIGHT DOL-17-0281-D-000037 Deputy Assislont Secretory Tim Houser August 7, 2017 Page 17 of 35 other interests of the Adviser, Financial Institution or any Affiliate, party. Related Entity, or other This language differs from existing fiduciary standards - including that of ERISA itself (and while the DOL has explained in the preamble that the BICE standard is intended to be identical in substance to the ERISAsection 404(a) standard, it has not credibly explained this difference in language). There is, of course, a body of federal and state fiduciary law that already applies to financial institutions and financial advisors outside of these exemptions, notably including: • • • • ERISA itself, to the extent the financial institution and advisor is acting as an investment advice fiduciary to an ERISA plan or participant; The Investment Advisers Act of 1940, if the financial institution is a registered investment adviser; 48 The fiduciary standards administered by the Federal Reserve Bank and the OCC, if the financial institution is federally chartered bank, or similar state lows for state chartered banks 49 ; and The fiduciary standards mandated by the Municipal Securities Rulemaking Board for municipal advisers. 50 In addition, the SEC is considering the prospect of a uniform fiduciary standard for financial advisors to retail investors including retirement investors, which the SEC hos under consideration and which FSI has long supported; states such as Nevada hove instituted lows to similar effect. 51 These standards were all developed for a specific setting - ERISA plans, or a particular type of financial institution - and in that respect are more tailored than the universal "best interest" standard of the Fiduciary Rule. The DOL based the Fiduciary Rule on examples that arise in circumstances where no fiduciary standard applies under the other laws outside of the DOL's exemptions. There is no material showing that these standards are inadequate to the purposes of protecting retirement 48 Registered Investment advisors are sublect to a fiduciary duty under the Advisers Act, which has developed through Federal common law. The SEC has described it on its website as including "a fundamental obligation to act in the best interests of clients .... [and] a duty of undivided loyalty and utmost good faith. https://www.sec.gov/ divisions/Investment/ advove rvlew.htm. 49 See, e.g., 1 2 CFR § 9.1 2. Where a national bank has investment discretion over f iduciary accounts that it acquired from itself, its affiliates or other related parties, or any other Individuals or organization s with a potential conflict of interest that might affect the national bank's best judgment, the national bank cannot invest such funds unless otherwise authorized by law. Similarly, except under certain narrow circumstances, nationa l banks with investment discretion over fiduciary accounts cannot lend, sell, or transfer such assets to any such related parti es. 50Mun. Sec. Rulemaking Bd., Rule G-42, as updated by Exchange Act Release No. 34 -76753, 80 Fed. Reg. 81614 (Dec. 30, 2015), File no. SR-MSRB-2015-03. Consistent with the statutory fiduciary duty owed under Section l 5{c)(l) of the Securities Exchange Act of 1934 (Exchange Act), a municipal advisor engaging In municipal advisory activities on behalf of a municipal entity client is subject to a fiduciary duty which includes a duty of care and a duty of loyalty. Munlclpol advisors must also disclose all material conflicts of Interests, Inform their clients In writing of any direct or Indirect compensation, and ensure that all recommendations ore reasonable (and Inform the client as to the risks, reasoning, and any f easible alternatives to the recommended Investment). 51 S.B. 383, 2017 Leg., 79 111Session (NV 2017) ovoi/ob/e o/: http://nvsos.gov/so s/licensing/securities/new -fiducla ry duty /\M RI AN PVERSIGHT DOL-17-0281-D-000038 Deputy As,istant Secretary Tim Hau,er Augu,t 7, 2017 Page 18 of 35 investors. Indeed, in explaining the basis for the Fiduciary Rule, the DOL has often said that "[w]hile many financial advisers acted in their customers' best interest, not everyone was legally required to do so." 52 At a minimum, similar to the conclusions it reached with respect to "level fee" fiduciaries, the DOL can fairly conclude that, when a financial institution and financial advisor is independently subject to federal or state fiduciary standards, the risk of adverse consequences to retirement investors from conflicts is so attenuated that the DOL can provide exemptive relief on more streamlined conditions. FSI proposes that the BICE be amended (with conforming revisions to other exemptions) to include an additional exemption for "fiduciary advisors" - i.e., advisors that are "legally required" to act in the best interest of customers under other bodies of law - to the effect that the relief provided by the exemption is available if: • The financial institution and advisor is subject to a fiduciary duty to retirement investors under federal or state law; • Their compensation does not exceed reasonable compensation; • Any statements made in connection with their recommendations are not materially misleading; and They provide disclosures in the manner described above. 53 • Under this approach, the DOL's "best interest" standard itself would govern in circumstances where no other fiduciary standard was in effect. The problems with multiple articulations of a best interest standard of care would be avoided while retaining the remaining two impartial conduct standards - reasonable compensation and no materially misleading statements. Constructive engagement between the DOL, SEC, FINRA, and the NAIC will ensure these regulations are workable and appropriate for their respective industries. Further, this consistent standard could also serve as the basis for an alternative PTEavailable to firms and advisors who are subject to a substantially similar best interest standard adopted by another regulator. Appendix l to this comment letter presents a proposed articulation of this standard. We urge the DOL to consider its adoption. IV. Revise and broaden the levelized compensation rules A. Introduction The Fiduciary Rule offers streamlined compliance requirements to Level Fee Fiduciaries. A "Level Fee" is a fee or compensation provided on the basis of a fixed percentage of the value of the assets or a set fee that does not vary with the particular investment recommended, and does not include a commission or other transaction-based fee. The DOL has explained that such an approach would reduce conflicts of interest with respect to mutual fund recommendations, therefore reducing the need for heightened surveillance around advisor conflicts of interest. As a result, many firms have transitioned their brokerage accounts to these fee -based advisory 52 Consumer Protectfons for Retirement Investors - FAQs on Your Rights and Financial Advisers, Q&A-6 (January 2017) (emphasis added), previously published on EBSA's website . 5 3 While this solution is not a true uniform standard, It creates a pathway through which the SEC could create a single standard for broker-dealers and investment advisors that applies to both retirement and non-retirement accounts. NAIC could follow suit by addressing the standard of care due to inve stors in insurance products. /\M RI AN PVERSIGHT DOL-17-0281-D-000039 Deputy Assistant Secretary Tim Hauser August 7, 2017 Page 19 of 35 accounts to avoid having to rely on the BICE. Recent media reports have highlighted the decisions being made by some firms to change their service models and product availability, including (a) moving clients to fee-based accounts, (b) eliminating commission-based IRAs; (c) raising investment minimums for commission-based IRAs; (d) eliminating variable annuity products; and (e) excluding certain products from commission-based IRAs (e.g., annuities, mutual funds, and exchange-traded fvnds). 54 These decisions simplify and rationalize the compliance obligations for firms and financial advisors, but can have unfortunate impacts on some investors by depriving them of access to products, lower cost investment options, or access to retirement planning services. Recent product innovations may create opportunities to achieve the Fiduciary Rule's goals at a lower cost to firms and investors, but more time is needed for these to come to fruition . Broadening the availability of the levelized compensation rules would allow firms to offer Wholesale Shares (also known as "Clean Shares"), T-shares, fee -based variable annuities and other product innovations to create level fee arrangements using commissionable products. 55 Unfortunately, these efforts will take considerable time to come to fruition . For example, American Funds, Janus and Columbia Threadneedle are reported to be the only companies to issue "clean" shares 56 of their mutual funds thus far. 57 As mutual fund, insurance and other companies develop new share classes or other pricing options, clearing and introducing firms must wait to develop the necessary trading, surveillance, commission and other systems to support their use. Due to the sequential nature of the various intermediaries' development of the necessary systems, it is doubtful that wholesale shares, other new share classes, or product options, can be fully operationalized for at least 18 - 24 months. As previously discussed, the impartial conduct standards prohibit the financial institution, financial advisor, and their affiliates from receiving more than "reasonable compensation." FSI members support the concept of reasonable compensation, but the standard as w ritten is too vague, creates significant compliance challenges, and stifles innovation. Under proper analysis, the reasonableness of compensation is determined based on the particular facts and circumstances at the time of the transaction is entered into. It is informed by several factors, including the marke t pricing of the services provided, the scope of investment monitoring and the complexity of the product. While the DOL has asserted that reasonable compensation does not mean that the lowest cost product must always be sold, we remain concerned that absent specific See: Wursthorn, New Retirement Rule Is Delayed, but Not Its Impact, Wall St. J. (Apr. 8, 2 017); Wursthorn, A Complete List of Brokers and Their Approach to "The Fiduciary Rule," Wall St. J. (Feb. 6, 20 17). See Also: Letter from Richar d Foster, Senior Vice Preside nt and Senior Counsel for Regulatory and Legal Affairs, Financial Services Roundtable, to Department of Labo r, Employe e Benefits Security Administration (April 17, 2017) available at: https://www.do l.go v/sites/ d efau lt/files/ebsa/laws- and -regulations/rules -and regulations/public -comments/121 0-AB79 /01309.pdf. 5SGreg lacurci, In new fiducia ry rule FAQs, DOL gives quasi -endorsement of clean shares, Inves tment News (May 23, 2017) available at: http://www.investmentnews .com/article / 20170523 / FREE/170529973/in -new-ficluciary -rulefaqs-dol -gives-guasi-en dorsement-o f-clean. Lette r from Richard Foster, Senior Vice President and Senior Counsel for Regul at ory and Legal Affair s, Financial Services Roundtable, to Department of Labor , Employee Benefit s Security Administration (April 17, 201 7) available at: htt ps: //www .doI.go v/ sites / default / file s/ e bsa /laws -and -reg ulatlons /ru les-and-reg ulatlons /pub liccomments / l 21 0-AB79 / 01309 .pdf. 56 As described in a 2017 SEC staff interpretive letter, clean shares a re a class of shares of a mutual fund without any front-end load, defe rred sale s charge, or other as set-based fee for sales or distributi ons. See Capital Group, SEC Staff Letter (Jan. 11, 2017),www .sec .gov/divisions/investment/noaction/2017 /c a pital-group -0 l l l l 7-22d. htm. 5 7 Greg lacurci, Investment New s, "Innew fidu::iaryruleFAQs,DOLgivesq.iasl-enclorsementof dean shares"(Moy23, 2017) available at http:// www.&westmentnews.com/artide/20170523/FREE/l 70529973/ in-new-fldJdary-rule-fags-dol:9ives:9uoslendorsernent-of- 33 of 35 6. In the case of a rollover to an IRA, relevant tax law differences relevant to the Retirement Investor (e.g., required minimum distributions, early distribution rules, rollover restrictions) iii. The financial professional may be conflicted in its advice because he or she only gets paid if the participant chooses to rollover . B. If the rollover is to an IRA, prior to or contemporaneous with the transaction, the Retirement Investor is provided with a copy of the IRA's Disclosure Statement described in 26 U.S.C. § 1.408-6 . I II. Definitions. A. "Advisor" shall have the same meaning as in section Vlll(a) of Prohibited Transaction Exemption 201 6 -01 . 8. "Financial Institution" shall have the same meaning as in section Vlll(e) of Prohibited Transaction Exemption 2016-01. C. "Retirement Investor" shall have the same meaning as in section Vlll(o) of Prohibited Transaction Exemption 2016-01 . D. "Rollover Advice" shall mean a recommendation to rollover all or part of a Retirement Investor's account balance from an employee pension benefit plan (as defined in ERISAsection 3(2)) to another employee pension benefit plan or individual retirement account described in Code section 408(a) or 408(b). A recommendation regarding the allocation of assets among various options under an individual retirement account is not Rollover Advice covered by this exemption. D. Addition to Investment Education Exception New Section 29 U.S.C. §25 10 .3-21(b)(2)( iv)(B)(10) ( 10) general information on rollovers that does not include a recommendation regardi ng the allocation of investments between specific investment alternatives under the IRA or new plan; E. Grandfather Rule New Section 29 U.S.C. §2510 .3-21(k) (k) Preexisting Transaction s. (i) Not withstanding anything in this section to the contrary, this section shall not apply to compensation paid in connection with any tran saction occurring before June 9, 2017 (a "preexisting tran saction"). (ii) Compensation paid in connection with (A) the addition, deletion or substitution of investment alternative s to an investment account established befor e June 9, 201 7 , without a separate recommendation to purchase, sell or hold a specific investment alternative, and / or (b) /\ f ICAN PVERSIGHT DOL-17-0281-D-000054 Deputy Assistant Secretary Tin, Hauser August 7, 2017 Page 34 of 35 additional contributions made to an investment account established before June 9, 2017, shall be considered to be paid in connection with a preexisting transaction for purposes of paragraph (i). /\ f ICAN PVERSIGHT DOL-17-0281-D-000055 Deputy Assistant Secretary Tim Hauser August 7, 2017 Page 35 of 35 Appendix 2 See the attached Oxford Economics: Encouraging Market Alternatives to the Fiduciary Rule (August 7, 2017) /\\IH f~ICAN PVERSIGHT DOL-17-0281-D-000056 & ... OXFORD ECONOMICS ENCOURAGING MARKET ALTERNATIVES TO THE FIDUCIARY RULE AUGUST 7, 2017 /\\IH f~ICAN PVERSIGHT DOL-17-0281-D-000057 Oxford Economics Oxford Economics was founded in 1981 as a commercial venture with Oxford University's business college to provide economic forecasting and modeling to UK companies and financial institutions expanding abroad. Since then, we have become one of the world's foremost independent global advisory firms, providing reports, forecasts, and analytical tools on 200 countries, 100 industrial sectors, and over 3,000 cities. Our best-of-class global economic and industry models and analytical tools give us an unparalleled ability to forecast external market trends and assess their economic , social and business impact. Headquartered in Oxford, England, with regional centers in London , New York, and Singapore , Oxford Economics has offices across the globe in Belfast, Chicago , Dubai, Miami, Milan, Paris, Philadelphia, San Francisco, and Washington DC. We employ over 250 full-time people, including more than 150 professional economists , industry experts, and business editors-one of the largest teams of macroeconomists and thought leadership specialists . Our global team is highly skilled in a full range of research techniques and thought leadership capabilities, from econometric modeling, scenario framing, and economic impact analysis to market surveys, case studies, expert panels, and web analytics . Underpinning our in-house expertise is a contributor network of over 500 economists, analysts, and journalists around the world. Oxford Economics is a key adviser to corporate, financial and government decision-makers and thought leaders. Our worldwide client base now comprises over 1,000 international organizations, including leading multinational companies and financial institutions; key government bodies and trade associations ; and top universities , consultancies, and think tanks. Financial Services Institute The Financial Services Institute (FSI) is the only organization advocating solely on behalf of independent financial advisors and independent financial services firms. Since 2004, through advocacy , education and public awareness , FSI has successfully promoted a more responsible regulatory environment for more than 100 independent financial services firm members and their 160,000+ affiliated financial advisorswhich comprise over 60% of all producing registered representatives . FSI effects change through involvement in FINRA governance as well as constructive engagement in the regulatory and legislative processes, working to create a healthier regulatory environment for its members so they can provide affordable , objective advice to hard-working Main Street Americans . For more information, please visit fnancialservices.org. August 2017 All data shown in tables and charts is Oxford Economics' own data, except where otherwise stated and cited in footnotes. All information in this report is copyright© Oxford Economics Ltd. This report is confidential to FSI and may not be published or distributed without their prior written permission . The modelling and results presented here are based on information provided by third parties , upon which Oxford Economics has relied in producing its report and-forecasts in good faith. Any subsequent revision or update of those data will affect the assessments and projections shown. 1 /\M RI AN PVERSIGHT DOL-17-0281-D-000058 TABLE OF CONTENTS Executive Summary .................................................................................................. 3 1. Introduction ............ ................................................................................................ 7 1.1 Report overview ....................................................................... ...................... 7 1.2 Overview of Key Provisions of the Fiduciary Rule ................................. ........ 7 1.3 Regulatory Impact analysis ............................................ ............. ................. 11 2. Cost Estimates ........................................................ ................... ......................... 12 2.1 Total costs .................................... .................................... ............................ 12 2.2 Cost categories ........................................................ .................................... 13 2.3 Comparison with past estimates ......................................................... ......... 16 3. Revisiting the Benefit Calculation .......................................................... ............. 19 3.1 Review ofthe DOL calculations .............................. ..................................... 19 3.2 Origin of underperformance assumption ..................................................... 21 3.3 Little connection between Rule's provisions and benefit calculation ........... 23 3.4 The value of financial advice .................. .................. ................................ .... 24 3.5 A special note on small investors ............................................................... .. 26 4. Market-Based Solutions can Better Serve Investors ................ .......................... 27 4.1 Emerging market solutions ........................................... ............................... 27 4.2 How regulation can undo market solutions .................................................. 29 4.3 Promoting collaboration ........................................... .................................... 30 5. Conclusion ............. ....................................................... ....................................... 31 Appendi x A - Methods .................................... .................................................. ....... 33 Appendi x B - Detailed cost tables .................................................. ........................ 35 Appendix C - Overview of Independent Financial Services Firm s ......................... 37 Appendix D - Economic impact of FSI members ............... .................................... 38 2 /\\IH f~ICAN PVERSIGHT DOL-17-0281-D-000059 EXECUTIVE SUMMARY The Financial Services Institute (FSI) commissioned Oxford Economics to interview and survey its members regarding their experience in preparing to implement the Department of Labor's (DOL) fiduciary rule. This report follows earlier studies completed by Oxford Economics during 2015 and 2017 in which one-time and recurring compliance costs to firms were estimated . As with the earlier engagements, Oxford Economics interviewed leading executives in the independent financial advisor community to update our understanding of the challenges confronting the community of independent financial services firms as it continues its efforts to implement the fiduciary rule. Oxford Economics calculates implementation costs nearly 300% the DOL estimate ; and that is before litigation impacts are considered. One key finding in this report is that the rule is resulting in a reduction in product choice that was not explicitly included in the DOL's cost-benefit analysis that accompanied the rule's promulgation. For this and other reasons, in this report we reexamined the DOL's earlier benefit calculations. We found that the DOL overstated the rule's benefits by failing to account for the reduction in product choice, the value of retirement planning services , and a more general failure to link the purported benefits of the rule to any specific key provision of the rule. When combined with our calculations of actual costs incurred by firms in implementing the rule, there is considerable doubt about the potential for positive net benefit attributable to the rule at all. REGULATORY IMPACT ANALYSIS UNDERESTIMATES COSTS AND OVERSTATES BENEFITS Building on our earlier work, we re-analyzed the Regulatory Impact Assessment, in which the DOL estimated the costs to industry and the purported benefits to investors of the rule. The DOL's calculations estimated $14 billion-$16 billion in new costs from the rule, and $33 billion-$36 billion in gains to investors . However, our estimate of the rule's costs, based on a detailed survey of firms we conducted in April 2017, finds that actual costs to broker-dealers are nearly three times the DOL's estimates. Extrapolating to other affected entities, this would imply costs of $39 billion-$47 billion , an amount that already exceeds the DOL's benefit estimates . Importantly, these costs do not include the costs from potential litigation , which the rule will almost certainly increase substantially. Moreover , the DOL's estimated benefit to investors that it expects will result from the rule are based on highly speculative assumptions applied to a small segment of retirement assets (front-end load mutual funds held in Individual Retirement Account s). The estimated gains in this asset segment are based on assumptions derived from an analysis of an even smaller segment of assets: domestic equity mutual funds, where the DOL estimates a 59-basis point underperformance of broker-sold relative to direct-sold funds. For foreign equity funds, however, brokersold funds overperform direct-sold funds. In the DOL's own analysis, when both foreign and domestic funds are considered, the net underperformance is only 6basis points, implying benefits only one-tenth DOL's estimates. 3 /\ f ICAN PVERSIGHT DOL-17-0281-D-000060 Outside of front-end load mutual funds, the DOL asserts broad additional gains as a result of reduced conflicts of interest , but in fact, as our interviews with industry now confirm, a major impact of the rule is loss of access to a large array of investment products, with consequent losses to investors. Variable annuities, an important income-supplementing product favored by many retirement savers, are reportedly less available as a result of the rule. In another example, non-accredited investors (mid-sized portfolios) will likely have less opportunity to invest in nontraded products that are especially suitable for diversification from volatile financial markets. Additionally , and contrary to DOL predictions , our interviews confirm earlier claims that the rule is causing smaller investors to lose access to advising services , with consequent losses. Regulatory agenc ies can play a critical role in promoting constructive dialogue to produce better market -solutions . Finally , it's worth noting that the calculation of purported gains on front-end load mutual funds are entirely divorced from the specific provisions of the rule. While all parties agree that eliminating conflicts between advisors and clients is a good thing, these rules impose large costs by creating multiple standards of care, requiring large amounts of redundant and largely unproductive paperwork , and inviting litigation to settle disputes . These costs are expected to accelerate as the January 1, 2018 requirements become imminent. MARKET-BASED SOLUTIONS PRODUCE BETTER OUTCOMES During this engagement, important insights were gained about possible market solutions that are evolving to address many of the challenges presented by the fiduciary rule. Many of those interviewed expressed frustration that the promise of these solutions is being curtailed by time constraints imposed by the rule. In add ition, anti-trust concerns are preventing key industry participants from engaging in the collaborative dialogue that would facilitate the establishment of industry standards that best meet the demands of investors and retirement savers . The thoughtful adoption of market-tested industry standards will very likely result in more cost-effective approaches that better serve investors than what is allowed by the existing rule. Regulatory agencies can play a critical role in creating appropriate forums for industry participants to engage in constructive dialogue about the optimal characteristics that should be accepted as industry standard . Innovative level pricing structure s and means to replace important third-party revenue sources are two important examples of emerging industry solutions that would benefit from a more careful consideration of what constitutes the most appropriate industry standard than what is allowed by the constraints of the current rule. Many of these innovations would , if allowed to properly mature, likely reduce costs and improve access to retirement services for investors. • Level pricing: In major product categories , such as mutual funds, annuities , and REITS , there is a clear movement toward pricing that is more level across specific product classes . In general , these level pricing structures combine a smaller upfront fee with trailing commissions. Most firms interviewed were not philosophically opposed to level pricing schemes . There was widespread concern , however , that under the existing time constraints many of the solutions emerging either inadvertently harm some 4 /\ f ICAN PVERSIGHT DOL-17-0281-D-000061 investors (e.g., T-Shares) or are currently offered by too few product manufactures to allow widespread distribution on service platforms (e.g. , clean shares) . • Mutual fund manufacturers are having difficulty offering rule compliant product. One major brokerdealer reports that it now offers fewer than 30 mutual fund families down from more than 400 before the rule went into effect. Revenue Shifting: Firms are exploring ways to replace third-party revenue sources with more direct and transparent charges for service and expense reimbursement. Many of those interviewed expressed support for this trend but also pointed out that in many cases their firms currently lack the administrative and technological capacity to layer new service charges over other charges imposed by product manufacturers and service platform providers. An orderly transformation of this pricing and revenue structure will take more time than is allowed by the rule. In general , those we interviewed expressed confidence that these and other innovations would achieve the DOL's goals at substantially less cost and without restricting access to retirement planning services and products . However , these efforts will likely be truncated before reaching their full potential without more time than what is allowed by the rule. REDUCED PRODUCT CHOICE Product choice is important because it allows an investor to create a portfolio that best reflects that person 's unique financial situation , investment objectives , and risk profile. Many of those interviewed in our earlier engagements expressed thei r commitment to offering the broadest array of products possible. During this engagement, however , we gained new insight into how most of those interviewed were now limiting product choice in response to the rule. In general , this reduction in product choice stemmed from one or more of the following reasons : • Data feeds : There are large fixed costs to establishing and maintaining the data feeds from product manufacturers and mutual fund families that are necessary for broker-dealers to provide information required by the rule to investors . As a result , most broker-dealers report that fewer product families will be available to their clients . • Litigation risk: There is considerable concern over new legal risks created by the rule. Many firms reported movement toward a more homogenized product offering as a strategy for reducing varianc e in product performan ce within specific product classes . The wider range of products offered , the wider will be the differen ce in fees and performanc e. The rule is perce ived to create too much opportunity for trial attorneys to exploit these differen ces in fees and performance through class action lawsuit. Therefore, many firms are carefully considering how much fee or expected performanc e variance they are willing to offer through varied product selection . As a result, products become homogenized and choice limited . • Complexity of compliance : Many mutual fund manufacturers intend to offer "T-share class" or "clean share" mutual funds and a number of mutual fund manufacturers filed the se new products with the Securities and 5 /\ f ICAN PVERSIGHT DOL-17-0281-D-000062 Exchange Commission ("SEC"). Unfortunately , the current offering of such funds is extremely limited resulting in retirement investors having few commissionable mutual fund options from which to choos e. Specialized product manufacturers similarly report that the added complexity of offering non-standard products to investors (for example , non-traded REITs) , is severely limiting the range of products created and available to retirement investors . In the chapters that follow , we explore each of these findings in more detail. First , howeve r, we present a brief overview of the rule and some of its key impacts . 6 /\ f ICAN PVERSIGHT DOL-17-0281-D-000063 1. INTRODUCTION 1.1 REPORT OVERVIEW In June, 2017, the Department of Labor (DOL) published a Request for Information (RFI) regarding its review of its Fiduciary Duty Rule. To help it respond to this RFI, the Financial Services Institute (FSI) commissioned this study by Oxford Economics. Oxford Economics has previously examined and reported on various aspects of the fiduciary rule on behalf of the FSI . 1 This report builds on our earlier findings, and summarizes industry insights and opinions gleaned from over a dozen interviews conducted in recent months .2 This report will focus on the following themes: • The DOL's regulatory impact analysis (RIA)3 underestimated the cost of implementing the rule. • The DOL's RIA significantly overstated the rule's benefit; this overstatement results from a number of shortcomings in the RIA. • Market-based solutions, spurred in part by the rule, are emerging that address the key objectives of the rule in a more cost-effective way but need more time for development and implementation. These themes will be examined, respectively , in chapters 2, 3, and 4 of this report. 1.2 OVERVIEW OF KEY PROVISIONS OF THE FIDUCIARY RULE The basic premise of the fiduciary rule is to reduce conflicts of interest between broker-dealers and investment advisors , and their investor-clients . While everyone agrees that avoiding conflicts of interest is a worthy goal in principle , and that some potential conflicts have existed, there is significant disagreement about how these are best addressed . An important theme of our recent interviews discussed in this report is that many of the conflicts of particular concern to the DOL are 1 Oxford Economics , August 2015. "Econo mic Consequences of the US Department of Labor's Proposed New Fiduciary Standard." http://www .financialservices .org/uploadedFiles/FSI Content/Advocacy Action Center/ DOL/FSI OE-Econom ic-l mRact-Study.PDF. Oxford Economics, April 2017. "The Fiduciary Rule Increases Costs and Decreases Choice." http://www.financialservices.org/uploadedFiles/FSI/Advocacy Action Center/The Fiduciary Rule Increases Costs A nd Decreases Choice.pdf. 2 See appendix A on methodology . 3 Regulatory Impact Analysis (RIA): DOL (April 2016). "Regulating Advice Markets : Definition of the Term 'F iduciary' Conflicts of Interest-Retirement Investment Advice ." Regulatory impact analysis for final rule and exempti ons. https://www .dol .qov/sites/default/files/ebsa/laws -a nd-regulation s/rul es-and- requlation s/completed-ru lema king/121 OAB32-2/confl ict-of-interest-ria. pdf 7 /\ f ICAN PVERSIGHT DOL-17-0281-D-000064 being addressed by market mechanisms, which the DOL can help foster rather than attempt to circumvent through regulation. In order to avoid conflicts of interest, the new rule generally prohibits , in the first instance, 4 transactions on behalf of a client in which an advisor or broker stands to receive differential compensation depending on whether a specific transaction occurs. While a blanket prohibition on such transactions might seem sensible at first blush, in fact such situations are nearly ubiquitous in the financial industry , and in many cases, are simply unavoidable. For example, any transaction in which brokers are compensated by commission on the amount transacted is prohibited under the new rule unless an exemption has been provided and all of the requirements met. To get around this , some financial advising firms are reor ienting their business models to avoid commissioned transactions altogether , and instead shift to an assets-under-management (AUM) fee structure .5 However, AUM fees present challenges. For example, these fees are not in the best interest of many clients, especially so-called buy-and -hold investors, who do better to pay a single fee up-front and then accumulate earnings over the long term. If a consequence of the rule is that it deprived these investors the option to receive investment advice in a commissioned account , that would be contrary to these clients' best interests, and would be a perverse outcome. In addition , certain types of specialty or illiquid investments are extremely difficult to value on an ongoing basis, and thus do not lend themselves to asset-based-fee style accounts .6 The loss of these products would limit diversification options and increase risk in investors' retirement portfolios. This is also contrary to investors' best interest and an undesirable outcome. Because the DOL recognized that conflicts of interest were impossible to eliminate in their entirety, the rule provided exemptions to the general prohibition on transactions in which brokers or advisors had some level of conflict. The most significant exemption is the best-interest contract (BIG) exemption. The BIG allows an advisor to execute an otherwise prohibited transaction under the condition that a contract is executed between the advisor and client that discloses potential conflicts of interest, and states that the advisor is acting in the best interest of the client. Importantly, the provisions of the BIG exemption require that this contract be enforceable in state courts-Le., that disputes arising under such contracts cannot be made subject to binding arbitration. This provision is referred to as a private right of action. Perhaps no provision of the new rule is as concerning to the industry as this one, which seems to invite class-action lawsuits and has raised fears of major and uncertain new litigation costs .7 Concerns about litigation 4 5 i.e., with exceptions, discu ssed below . That is, the advisor's compensation is equal to a certain fixed share of the total amount invested , regardless of what financial instrume nts th e assets are invested in or th e frequency of transaction s. Importantly , several of our interviewees note, for clients with a mixture of more and less liquid assets , it often makes most sense to concentrate such illiquid investments in retirement accounts, which are by their nature harder to 6 access on short notice . 7 FS I Is Involv ed in litigation to challenge the private right to action and other provisions of the rule. 8 /\ f ICAN PVERSIGHT DOL-17-0281-D-000065 expense has the potential to push retirement planning services out of the reach of many investors. The new rule also requires a wide range of expanded disclosures to clients about compensation, as well as expanded record keeping. While those we interviewed were supportive of the value of disclosure in general, there was a widespread perception that investment clients are already inundated by disclosures in this heavily regulated industry, and that the new paperwork will do little to better inform clients while adding significant costs (that must ultimately be passed on to clients). These costs will also impact investor access to retirement planning services, creating another undesirable result of the rule. A few other specific provisions of the rule were also singled out by interviewees. For example, the rule places a special burden on advisors executing a rollover of funds from a client's existing retirement account (e.g., a 401 (K) from a previous employer) into a new retirement account. In such cases, an advisor is required to specifically review with the client the fee structures of the two accounts; notwithstanding that obtaining precise information about a client's existing account held with a different advisor can be difficu lt or impossible . This challenge has the potential to deprive investors of much needed education about their retirement account options when changing employers. It is important to note that the new rule, implemented by the DOL under the Employee Retirement Income Security Act (ERISA) , applies only to retirement accounts. This fact creates a seam in the standards of care between different accounts of a single individual working with a single advisor, i.e., between the individual's retirement and non-retirement accounts. Many of those interviewed suggested that investors would be better served by a single standard of care implemented by the Securities and Exchange Commission in conjunction with the Financial Industry Regulatory Authority, which are each thought to have more expertise on these matters and thus better able to craft and enforce more thoughtful and less costly rules. 1.2.1 One Key Impact of the Rule: Reduced Product Choice This subsection describes the implementation challenges presented by some of the previously discussed provisions of the rule. Our earlier report,8 written in 2015 when a draft version of the rule had just been proposed, attempted to predict what would be some of the most significant impacts of the rule. Now that the rule is already partially in effect, and is scheduled to take full effect at the start of 2018, the likely impacts are much better understood . One important conclusion reached by virtually all of those we interviewed is that firms are reducing product choice in order to comply with the fiduciary rule. The more product choice , and the more varied the choice within product family , the greater the risk in litigation as a result of the rule. It is difficult to overstate how 8 Oxford Economics (August 2015). "Economic Consequences of the US Department of Labor's Proposed New Fiduciary Standard." Report produced for the Financial Services Institute . 9 /\ f ICAN PVERSIGHT DOL-17-0281-D-000066 significantly this result-the limitation of product choice-is at fundamental odds with the core mission of the community of independent financial services firms and the needs of retirement investors. Firms interviewed all expressed concern that the opportunity for class-action lawsuits created by the private right of action was narrowing the availability of many products. An oversimplified description of concern is that more options (especially those with liquidity, price or performance characteristics) invited class action lawsuits and therefore the solution is to standardize fewer products that are less differentiated and more homogenized. While many firms remain committed to providing as much product choice as possible, most firms could point to specific examples of how choice has been reduced . For example: • One firm indicated that it had already reduced the number of mutual fund families offered from 185 to 30. Many of the smaller families dropped were precisely those with the most innovative managers and approaches to investing, but because of scale, these smaller emerging funds could no longer be offered. • Another firm eliminated all commiss ionable alternative investments in qualified accounts. This resulted in a 50% reduction in the number of real estate products offered. 1.2.2 Another Rule Impact: Complex Paperwork for the Investor The sheer complexity of new transaction-specific process documentation imposes large costs on the advisor with questionable benefit to the client. Per-transaction process documentation with the full disclosures required by the fiduc iary rule were estimated by our interviews to require up to 12 pages of documentation and take anywhere from 20 minutes to two hours to complete. Furthermore, many argued that the actual content of this documentation often varied little from transaction to transaction and that an annual or semi-annual summary statement could provide the same information in a much more cost-effective manner . It was further noted that this extensive documentation at the time of each transaction is fundamentally at odds with the way in which most investors typically interact with their advisor. Most investors initiate discussions with their advisor over the phone; and the purpose of the call is often to initiate a transaction that involves timely execution. That is often not the right environment or context in which to begin complex legally oriented paperwork discussions and review. By analogy , one might consider how worthwhile (if at all) it is to receive complex service agreements each time one wishes to upgrade software on a mobile device and whether similarly lengthy legal documents are the best way to transmit important investment advice between an advisor and investor. Effective communication that properly balances frequency of disclosure and the content of what is disclosed would serve investor interests better than comprehensive , detailed disclosures that are provided in forms and at times that do not help inform investment strategy . 10 /\MRI N PVERSIGHT DOL-17-0281-D-000067 1.3 REGULATORY IMPACT ANALYSIS Like other economically significant regulations, the Regulatory Impact Analysis (RIA) includes an analysis of costs and benefits. Oxford Economics reviewed the reported costs and benefits associated with the draft rules in August of 2015. 9 Following that , and in part in response to our and others' critiques of the draft rule , the DOL released revised cost and benefit calculations with the final rule in April 2016.1° Overall, the DOL estimates costs of the rule to be between $12 billion and $31 billion over 10 years, depending on various assumptions. 11 Our review of the DOL's cost estimates focuses on their cost estimates (based on our earlier work) and uses their "medium reduction scenario," 12 the overall estimates for which are $14-$16 billion in costs over 10 years, depending on the time discount rate used. Of these, approximately 31%, or $4-$5 billion, reflects costs to broker-dealers. In late March 2017, Oxford Economics performed a survey of FSI members to estimate cost implications of the rule on BDs, the results of which are presented in section 2 below. 13 We find total 10-year BD costs of roughly $12 billion-$14 billion, or nearly three times the DOL estimate. If this rate of underestimate were extrapolated to the full DOL cost estimates, this would imply total 10-year costs of the rule of roughly $39 billion-$47 billion. In comparison, the DOL estimates that the total 10-year benefits of the rule are roughly $33 billion-$36 billion. Thus, estimated costs already exceed the DOL's benefits estimate. The DOL's benefit calculations are reviewed in section 3. Fundamentally , the DOL only considers gains from increased returns on front-end-load mutual funds held in IRA accounts-roughly 12% of IRA assets. These calculated gains are subject to a great deal of uncertainty based on underlying assumptions of the underperformance of broker-sold funds, as well as the effectiveness of the rule in correcting this underperf ormance. The DOL asserts broader gains to investors outside the universe of front-end-load mutual funds in IRA accounts , but given the rule's broad curtailment of investor access to a variety of assets, and loss of access to retirement planning services by many low-net-worth investors, there are good reasons to doubt this assertion. Importantly , there is a lack of direct connection between the benefits calculations and the specific provisions of the rule. Emerging market-based solutions will likely be able to achieve many of the goals of the fiduciary rule at dramatically lower cost. Government regulators, like the DOL and the SEC, do have a role to play in fostering such innovation , and facilitating coordination of leveling of compensation across the industry , a point further discussed in Chapter 4. 9 See footnote 1. 10 This CBA is presented in the rule's RIA. 11 See table 5-13 of the RIA, page 249. This refers to a medium reduction in burden/cos t relative to the original 2015 notice of proposed rulemaking . 12 13 Altho ugh small additiona l extrapo lation s have been added , section 2 is largely identical to our April 2017 report. 11 /\ f ICAN PVERSIGHT DOL-17-0281-D-000068 2. COST ESTIMATES In late March of 2017, OxfordEconomics,workingwith FSI, conducteda surveyof Oxford Economics estimates that actual one-time startup costs to broker-dealers will be 1.7 times the DOL estimate . Recurring costs will be 3.5 times the DOL estimate and total costs 2.9 times greater. FSI members to estimate independent financial services firms' costs of compliance with the Fiduciary Rule. 14 Because the Fiduciary Rule had been scheduled since 2016 to go into effect on April 10, 2017, firms had already incurred a great deal of the expense related to one-time start-up costs , and were in a good position to estimate recurring annual costs. 15 Overall, our results indicate that as reported in the 2016 RIA, broker dealer startup costs have been 1.7 times the DOL's estimate , and recurring costs are expected to be 3.5 timesthe DOL's estimate,withtotal 10-year costsexceedingDOL estimates by nearly 2.9 times. Extrapolating from these underestimates of costs to BDs to all the rules costs, implies a total cost figure of roughly $39 billion-$47 billion. It is important to note that the cost estimates here generally do not include any estimate of expected litigation costs , which firms still report being unable to estimate reliably . An analysis by the American Action Forum suggests that firms involved in litigation as a result of the rule could face annual costs of up to $150 million. 16 Similarly , Morningstar has estimated t hat class-action settlements as a result of the rule will cost the industry an average of $70-$150 million per year 17 . While this still leaves the fundamental question of how many firms will end up facing litigation uncertain , it does help establish the scale of potential impacts (which are absent from the DOL as well as our own cost calculati ons). 2.1 TOTAL COSTS Firms in our survey were asked to estimate: • • • Start-up costs already incurred Remaining start-up costs , assuming the rule goes into effect Recurring annual costs, assuming the rule goes into effect 14 This section is largely taken from our April 2017 report and is based on the survey we conducted for that work, which is described further in Appendix A Section 2. 3.1 has been added. 15 Much of the rule ultimately did go into effect, followi ng a delay , on June 9, 20 17. Some disclosure requirements have long been scheduled to take effect at the start of 2018, w hile firms report that th e DOL is providing some flexibility on other requirements for which compliance systems are still being developed . 16 American Action Forum (April 10, 2017). "T he Consequences of the Fiduciary Rule" . www.americanactionforum.org/research/conseguences-fiduciary-ru le-cons ume rs. 17 Morningstar. Financial Services Observer (February , 2017). "We ighing the St rategic Tradeoffs of the U.S. Department of Labo r's Fiduciary Rule. A f ICAN PVERSIGHT 12 DOL-17-0281-D-000069 Fig. 1: below summarizes average total costs across these three categories by size of the responding firm. 18 These survey responses were then extrapolated out to the full universe of FSI member firms, and then to the industry at large . At the time of the survey , it was estimated that BDs had already incurred nearly half of the overall implementation costs, which were estimated at $394 million in total for FSI members. Ongoing costs were estimated at an additional $230 million per year for FSI members. Fig. 1: Summary of total cost estimates Revenues Small BDs Medium BDs $0-50m $50 m-$500 m 12% 9% Share of FSI firms responding to survey N!iMI-HMAll BDs · $500 m+ 12% Total col$ per flnn $3,787,000 $13,105,000 $3,619,000 Costs incurred $367,000 $1,472 ,000 $8,354,000 $1,741,000 Remaining implementation costs $544,000 $2,315,000 . $4,751,000 $1,878,000 $2 ,407,000 $7,375,000 $2,113,000 Recurring annual costs FSl-member estimated coat& 56 42 FSI members Total implementation costs $38,262,000 109 11 $212,072,000 $144,155,000 $394,489,000 $189,740,000 Costs incurred $15,414,000 $82,432 ,000 $91,894 ,000 Remaining·implementation costs $22,848;0QO,-· ·- $129 ;640,000 $52,261,000 $204,749 ,000 · $134,792 ,000 $81,125,000 $230,365,000 Recurring annual costs Industry ·estimatedcosts $14,448 ,000 2,320 Industry size (from DOL) Total Implementationcosts Costs incurred Remaining implementationcosts Recurring annual costs 147 2 ,509 42 $2,113,520,000 $556,689,000 $550,410,000 $3,220,619,000 $851,440,000 $216,384,000 $350,868,000 $1,418,692,000 $1,262,080,000 $340,305,000 $199,542,000 $1,801,927,000 $798,080 ,000 $353 ,829 ,000 $309,750 ,000 $1,461,659 ,000 Source: Oxford Economics 2.2 COST CATEGORIES In addition to total costs, firms in our survey were asked to break their spend into 16 detailed categories of cost (see Fig. 2 : for a description of the categories) . This 18 Total estimated costs for the broker-dealer industry are based on the breakdown of number of firms by size category in the DOL Regulatory Impact Analysis , counting only BDs affected by the new rules (those providing retirement accounts) . It's worth noting that our current firm size definitions , based on revenues , do not precisely match DOL 's firm size definitions , which are based on capital . This may be partly responsible for ou r higher ratio, compared to DOL's estimates, of costs for medium-sized firms than for small or large firms ; however , our cost estimates are still significantly higher for all three size classes of firms . Only one of the medium-sized firms in our samp le had revenues between $250 million and $500 million . 13 AM RICAN PVERSIGHT DOL-17-0281-D-000070 section explores the categories of both start-up and recurring costs. Detailed tables of these costs can be found in Appendix B. Fig. 2: Description of cost categories Description Cost category Additionalvendor costs · . Additionalvendor costs (hot h_ardware related) Best-interestcontracts _ Best~interestcontract implementationand monitoring_ .· Client communications Client communicationletters (preparation,mailing, postage) CommissioiJsystems changes . - Commissio~systems-changes or upgrndes . ·Supervisory/complianc e oversight modifications(typicaUymore compliance Complianceoversight Di~closuremodifications officers) Disciosuremodifications(website,forms, BIC contracts, a·dvisory contracts, 12(8)· 1 fee disclosures).. , .. . . • . E&O insurance 1;&0 irisuranqepremiums(c_tianges anticipatedin responseto heightenedrisks) Paymentto clearing house Change.in paymentto clearing house/platform,if applicable Planl')ing& _management Planningand project management(managementand staff time spent preparing) Changingrecords retentionstandardslo comply with rule requiremen~~ . .· R~cords·reteniion Reportingquarterly returns Calculationand reportingof quarterlyreturns Newly required system interfaces(external/internalfeeds) for historic/performance System interfaces/feeds data Trai~ing/educationalmaterials (for use by internal staff) Training/educational , -- ·Transaction reporting···- -··· ..--Transaction·reportingcosts ... - Vendor interface Modificationsto vendor interface Website Website (public view for direct/indirectpayouts) Other Other issues mentionedby firms such as: legal, additional staff, outside counsel consultation,loss of revenue from AAM contract renegotiationto an annual platform fee, DOL/BICCompliance Officer, additionaloperationsand supervision resourcesto process FIAs, orphanedaccount advis_ or, level fee repricing, operational review & processing 2.2.1 Start -up costs Fig. 3: provides a detailed examination of the types of start-up costs firms have incurred or expect to incur related to the final rule. An examination of Fig. 3: reveals that for the group as a whole, over 20% of the expense incurred was in planning and management. These survey results are cons istent with what was reported during the interviews, wherein firms generally reported that large task forces were established within each company to comprehensively plan for the rule's implementation. Since the rule was proposed, most firms reported that they have had little to no time to invest in any initiative at the corporate level other than compliance efforts associated with the final rule. /\ f ICAN PVERSIGHT 14 DOL-17-0281-D-000071 Fig. 3: Detailed breakout of start-up costs II Webs ite E&Oi nsurance • Report ing quarte rly returns • Transaction reporti ng 100% • 90% 80% • Training/ educational • Commission systems changes • Records retention • Vendor interfa ce 70% 60% 50% • Total • Add iti onal vendor costs • Client communic ations 40% 30% • Disclosure modifications 20% • 10% • Compliance oversight • Best inte rest contracts l O% .. Small BDs Medi um -- ~ arge BDs BDs Source: Oxford Economics ___ FSI System interfaces/feeds • Payment to clearing house • Planning & management members _ ___ ..__ -·-·· _ _ ______ -·· ·---------·-·•··•··-··- ! !! -- ___ ...J 2.2.2 Recurring costs Firms participating in interviews and surveys had good insight into most of their expected recurring costs. We now have reliable est imates for the cost of data-f eed interfaces needed from product manufacture rs and fund families , the number of additional compliance and regulatory officers that will be hired , and the cost of maintaining a SIC-compliant website. One important expense category that is still in flux is the payment relationship between th e broker-dealer community and the clearing platforms that service their accounts . In our discussions with the brokerdealers it was reported that one major platform provider was negotiating pricing plans but that given the uncertain future of the rule, in most cases these negotiations are still ongoing. Other firms using a different platform provider described being offered a wide range of compliance solutions . Once the rule is implemented , firms will select those solutions that are most suitable for their compliance and client needs . That process also remained unresolved. Different firms appear to be basing survey respons es to this question either by projecting current payments going forward or by anticipating that fundamentally new pricing would be in place . 15 /\ f ICAN PVERSIGHT DOL-17-0281-D-000072 Fig. 4: Detailed breakout of recurring costs • Othe r 100% • 90% 80% Vendor int erface Ill Commission systems changes • Reporting quarter ly returns 70% 60% • 50% Records reten tion • Website • Tra ining/ 30% educational 20% • 10% • Transaction 0% • Small M edium Large System Inte rfaces/ feeds reporting Planni ng & management FSI members Source: Oxford Economics 2.3 COMPARISON WITH PAST ESTIMATES A major focus of our 2015 report, like the current repo1i, was to provide estimates of the anticipated costs of complying with the proposed DOL rule. When the prior estimate was calculated, however , there was uncertainty about the precise structure of the final rule. Firms now have substantially more knowledge about the rule's requirements , compliance strategies , and compliance costs. Fig. 5: below reviews multiple estimates of firm start-up and recurring costs for small, medium , and large 8D firms. In the original 2015 RIA for the conflict of interest rule, the DOL estimated start-up costs of 8D firms to vary between $53,000 and $1.1 million, depending on firm size. The DOL also provided a "high" estimate between $242,000 and $5 million, which it considered an overestimate. In our 2015 report, based on surveys and interviews, we estimated start-up compliance costs would be between $1.1 million and $16.3 million depending on firm size, roughly 20 times the DOL's preferred estimate in aggregate. In its 2016 revised RIA, the DOL presented updated start-up cost estimates based , in part, on the estimates in our 2015 report. However , the DOL asserted that , in response to comments, it had simplified and clarified the rule, resulting in cost reductions relative to our 2015 estimates. Based on its view of the degree of simplification, the DOL concluded in its 2016 RIA that start-up costs would vary between $508,000 and $6.7 million per 8D firm. 19 19 https :/lwww.dol .gov/sites/default/file s/ebsa/laws-and -regu lations/rules-and-regulations/completedrulemakinq/1210 -AB32-2/conflict-of-in terest-ria.pdf , see section 5.3, especially table 5-9 . Several cost estimates are presented in that section; we focus here on the "FS I medium reduction scenario " estimates . Note that DOL updated 16 A f ICAN PVERSIGHT DOL-17-0281-D-000073 Fig. 5: Comparison of cost estimates •iiii=i•Hiri@jjlj;; •:j•N . . . : 2,320 . lndustry.slze (DOL) . . 147 ·. . · $145,000 DOL originalestimates (Apr 2015) ' .• DOL;;,high" estir:nates(Apr 2015) . . .. · . $242,000 $663,000 $1,118.,000 · $3,350,000. - Total BO industry I . 42" $1,091,000 · $190,097.000 $5,000,000 ·. OE/FSI 2015 report (Aug 2015) DOL adjustedestif!Jates(Apr 2016) $556,301 · Current estirriates(Apr.2017) $911,000 $16,266,000 $~.769,~.ooo $1,777,688 · • $7)66,036 ' · $3,787,000 Ratio of current estimateto 2015 DOL estimate 17.2 26.1 R.atioof current estimatetq 2016 O()L estimate 1.6 2.1 $1,861,811,968 $13,105,000· $3,220,619,000 12.0 16,9 . --- • Per-firm recurring costs DOL original estimates (Apr 2015) . $21,000 DO"L "high" estimates(Apr 2015) $97,000 DOL adjustedestimates(Apr 2016) Current estim~tes(Apr 2017) Ratio of current estimateto 2015 DOL estimate · $2,407,000 $344,000 41.5 16.4 Ratio of current estimateto 2016 DOL estimate Source: Oxford Economicsand DOL RegulatoryImpactAnalyses Whether because the DOL's 2016 revisions to their 2015 proposed rule was not as effective at cost reduction as it thought , or because our original cost estimates were too low, the current estimates of total start-up costs are roughly 1.7 times the DOL's (revised) 2016 estimates for the industry. Because the rule and the associated costs were so poorly understood at that time, our 2015 report did not estimate recurring costs, except by scaling up the DOL estimates by the ratio of our start-up cost estimates to the DOL's start-up cost estimates . The DOL's revised RIA also did not provide a detailed breakout of recurring costs by size category, but estimated overall industry recurring costs at $413 million , about 5.5 times its 2015 estimate. Compared to this revised estimate, however, our result of nearly $1.5 billion in annual recurring costs for the BD industry is roughly 3.5 times higher than the DOL's estimate. Based on these results for start-up and recurring costs, we calculate the total 10year costs of the rule to the broker-dealer industry to be approximately $14.2 billion using a 3% discount rate, or roughly $11.9 billion using a 7% discount rate. These its number of affected BDs slightly between the 2015 and the 2016 RIAs. In this table, we apply the new number of BDs to the old cost estimates, which accounts for the small differences with past total figures- costs per BO are identical. 17 /\ f ICAN PVERSIGHT DOL-17-0281-D-000074 estimates are nearly three times the DOL's comparable cost estimates for BD costs (see Fig. 6:)_20 Fig. 6: 10-year discounted costs of rule on Broker-Dealers 10-year discounted costs ($ millions ' .. _ Current estimates (Apr 2017) . . $4,93Q $4,255 $14,176 $11,910 2.9 2.8 Ratio·of current estimate to 2016 DOL estimate Source: Oxford Economics 2.3.1 Extrapolating beyond broker-dealers Oxford Economics has only generated independent cost estimates of the Fiduciary Rule on BDs, based on our survey of independent financial services firms. However , in the RIA, the DOL also identifies costs for six other cost categories under the rule.21 While our basis for estimating costs in these categories is slim, we can provide a rough estimate by assuming the DOL underestimated costs in these categories by a similar magnitude to its cost underestimates for BDs, i.e., by 2.82.9 times, as shown in Fig. 6:. Fig. 7: below presents such an approximation, showing 10-year costs of the rule between $39 billion and $47 billion. Fig. 7: Overall implied costs using BD cost ratios . . .... . .. .. 10-year discounted costs ($ millions) Cost categories (DOL RIA figure 5-12) •·• I • . . : ~ lt¥!HHi:\iit¥!BHi:\91%iiHH!:i9ihiH Broker-dealers $4,930 $4,255 $14_.176 $11,910 Registered lrwestmentAdvisor firms L1sing exemptions $5,369 $4,637 $15,570 $12,984 Insurers $1,304 $1,124 $3,782 $3,147 --· E&O Insurance $620 $510 $1,798 $1,428 Registered Investment Advisor costs $151 $135 $438 $378 $57 $50 $165 · $140 $3,713 $3,058 . $10,768 Other service provider costs Other PaperworkReduction Act costs ITqt~ , . ,-___:;,.,._;~.... 20Ibid, table 5-12. We follow here the DOL convention of assuming start-up costs come in as a lum p sum at the end of year 1, and recurring costs are incurred once a year at the end of year 2 through the end of year 10. 21 See figures 5-12 and 5-13 of the RIA , p. 248-24 9, and accompanying text for a description of these categories. For the first three rows in this table , as for our estimates above , we use the "FSI ' estimates-Le., those th e DOL based on our 2015 work-under the " medium reduction scenario ". The costs in the last four rows do not have a similar breakout, but we continue to use the cost ratios of 2.8 and 2.9 from Fig. 6:. 18 /\ f ICAN PVERSIGHT DOL-17-0281-D-000075 3. REVISITING THE BENEFIT CALCULATION In its RIA, the DOL asserts that investors will experience savings across a wide variety of products in investment accounts as a result of the rule. However, the DOL does not consider that a major impact of the rule appears to be the curtailment of investor choice in many products. Moreover, the DOL's quantitative analysis of the rule's benefits comes entirely from a single source, specifically, the purported improved returns on front-end load mutual funds held in IRAs.22 Ultimately , the DOL estimates benefits of $33 billion$36 billion in net present value terms over 10 years, with their main scenario (scenario 1) corresponding to the lower end of this range , $32.5 billion. 23 The calculations underlying this claim are reviewed briefly in section 3.1 below, after which some of the weaknesses and omissions are discussed. 3.1 REVIEW OF THE DOL CALCULATIONS This section presents a simplified version of the benefits calculations in the DOL RIA. The major difference between the calculations presented here and those in the RIA is that the latter makes complex assumptions about how much of the purported benefit in each year is reinvested and earns compounded interest through the end of the 10-year time horizon. 24 The DOL's estimates of the benefits of the fiduciary rule are based entirely on purported underperformance of front-end-load mutual funds in IRA accounts. The fundamental assumption behind these calculations, which the DOL bases on a review of academic literature and its own analysis of Morningstar data, 25 is that for every 100 basis points 26 of front-end-loads paid to brokers, investors will experience a 45-basis-point reduction in annual returns as a result of conflicts of 22 The DOL's analysis is presented in appendix B of the RIA, pages 340-364 . Net present value is a technique for aggregating the value in the present of a future stream of costs or benefits by discounting the value of future costs or benefits at an increasing rate the further in the future they come. In layman 's terms , a dollar today is worth more than a dollar next year , which is worth more than a dolla r in two years . Specifically , the DOL uses a 5.4% discount rate in its calculations . 24 This is DOL' s main scenari o reflecting the impact of the Fiduciary Rule, and the one the se calcu lations most closely reflect. Scenarios 2 and 3 make addit ional assumptions about lower advising fees as a result of the rule and a faster ramp-up of the rule's effects. Because over most of this period , the overall rates of return in both the baseline and the DOL' s scenario 1 are quite close to the discount rate of 5.4%, the impact of these assumptions is quite minor. The results presented here are only 1% lower than DOL's own estimates . 25 The academic review based on that in Burke , Jeremy et. al. (2015) "Impacts of Conflicts of Inte rest in the Financial Services Industry ". Rand Labor & Population working paper WR - 1076. DOL's review of the Morningstar data is on 23 pages 340-343 of the RIA. A basis point is one one-hundredth of a percent. 26 19 A f ICAN PVERSIGHT DOL-17-0281-D-000076 interest that it expects the fiduciary rule to eliminate. 27 This assumption will be discussed further in section 3.2 below, but for now is taken as given. Using data from the Investment Company Institute (ICI), the DOL projects that front-end load fees paid to brokers will decline from 124 basis points in 2017 to 93 basis points in 2026, 28 meaning that the annual cost from conflicted advice on newly purchased funds is projected to fall from 56 basis points to 42 basis points. 29 (See columns Band C of Fig. 8: below.) However, since investments are held for multiple years, the total effect of conflicts on investment returns is assumed to be a weighted average of conflict-generated underperformance from current and past years (column D). This assumption on annual underperformance due to conflicts is then multiplied by estimates of the total amount affront-end-load mutual funds in IRA accounts. Based on data from Cerulli Associates ,30 the DOL estimates 2017 IRA assets at $8.7 trillion, 2017 IRA mutual fund assets at $3.8 trillion, and 2017 front-end-load IRA mutual fund assets at $1.043 trillion, increasing to $1.600 trillion in 2026 under the baseline projection (column E of Fig. 8:). Column F of Fig. 8: shows the implied underperformance in current dollars, while column G presents this amount discounted to net present value. 31 The total of this column, $32.1 billion, is slightly below the DOL estimate of $32.5 billion in benefits over 1O years because, for this example, we disregard the impacts of compound interest. 32 27 This is in addition to the direct cost of the fees themselves, which are not assumed to change in scenario 1, which is modeled here, but are assumed to be reduced under scenario 2. This is on the assumption that 81 .4% of all front-end-load fees get paid to the broker; remaining fees go, for example, to the product sponsor. Total fees are projected to decline from 153 to 114 basis points over this period. 28 29 30 = = 56 0.45 * 124; 42 0.45 * 93. See page 343 of the RIA. The Cerulli Report is titled "Retirement Markets 2015." This report is also used for forecasts of future IRA assets in the DOL calculations. 31 Similarly, to DOL, we assume returns are realized at the end of the year, and discounted to 2016. 32 A philosophical argument could be raised as to whether it makes sense to assume compound investment returns on the benefits from the rule, but not to assume that the costs incurred by the rule will come out of funds that might otherwise have been saved and earned compound interest. However , because the future dis counting rate of 5.4% is quite simila r to the rate of return investors are assumed to earn, the overall impact of compound interest is smallhere, it is the difference between the DOL's result of $32 .5 billion and our result of $32 .1 billion. /\ f ICAN PVERSIGHT 20 DOL-17-0281-D-000077 Fig. 8: Summary of DOL benefit estimate calculations Year Front-end-loads paid to brokers Underperformance due to conflicts Weighted average of current and past underperformance (Al (Bl (Cl (Dl (El (Fl (Gl $ billions $ billions =(Dl • (El (Fl discounted at 5.4% Baseline frontend-load mutual fund assets Units Basis points Basis points Basis points $ billions Source Based on ICI data DOL assumes .45 ' (Bl Weighted average of(C) Cerulli Associates data = Implied underperformance NPV Discounted underperformance . $1 .7 2018 · 120 $1,0E$ $1.9 . 2019 117 $1,157 $2:9 2020 1,13 · 51 $1,217 $3.9 $3.0 109 . 49 2021 $i4 " · 38 $1,278 ' $4.8 $3.5 $1,340 $5.6 $3.9 ' 2022 106 48 42 . 2023 102 . 46 45 $1,404 · $6.3 $4.2 2024 : 99 45 43 . 47 $1,468 $6.9 $4 .3 47 $1,533 $7.2 42 46 $1,600 $7.4 2025 2026 96 93 To summarize Fig. 8:, the DOL's benefits calculations assume increased annual returns of9-47 basis points (column D) as a result of the rule on $1 trillion-$1 .6 trillion (column E) in front-end load mutual fund assets over a ten-year time frame , resulting in $1 billion-$7.4 billion in increased return per year (column F). In present discounted value terms, this sums to $32.1 billion (column G). The DOL makes additional assumptions about compound interest that raises this number to $32.5 billion . The DOL also presents some variations on this model, adjusting parameters such as the portion of funds withdrawn in a given year, yielding benefits of $33 billion-$36 billion over ten years. 3.2 ORIGIN OF UNDERPERFORMANCE ASSUMPTION As noted above, the fundamental assumption of the DOL's benefits calculations is that broker-sold front-end-load mutual funds annually underperform direct-sold mutual funds by 45 basis points for every 100 basis points of front-end-load, or roughly 50 basis points overall on average over the 10-year window. This assumption is in turn based on the DOL 's analysis of Morningstar data on fund 21 /\ f ICAN PVERSIGHT DOL-17-0281-D-000078 returns, 33 which found an overall underperformance of 59.4 basis points specifically for domestic equity mutual funds. 34 Including foreign as well as domestic mutual fund performance reduces the DOL's benefit calculations to one tenth it's reported amount. Domestic equity mutual funds, however, do not represent all front-end load mutual funds, the universe to which these estimates are being applied. In fact, it is widely known that while broker-sold mutual funds are seen to underperform self-selected mutual funds when it comes to domestic equities, they typically overperform selfselected mutual funds when it comes to international equities. In the same table in which they present their estimate of 59.4 basis points underperformance looking only at domestic equity funds , the DOL presents an estimate of a 161.4 basis point overperformance of broker-sold foreign equity mutua l funds, yielding an aggregated underperformance among asset-weighted domestic and foreign equity funds of only 6.0 basis funds, roughly one-tenth the headline number of 59.4 basis points they emphasize. This is highly consistent with the !Cl's estimated underperfonnance of broker-sold funds across nearly all asset classes on an asset-weighted basis of 10-11 basis points.35 The DOL argues, in essence, that the 59-basis point underperformance of brokersold domestic equity mutual funds is the true cost of conflicts of interest to investors, applicable to all front-end load mutual funds, including overperforming foreign equity funds. The 161-basis point overperfo rmance they estimate on foreign equity mutual funds, then , is a net figure incorporating both losses from conflicts as well as unrelated gains-which must therefore total 220 basis points before conflict-related losses.36 This questionable assumption seems to result in an overstatement of the benefit calculation. While it's possible that reducing conflicts of interest in the industry-either through something like the Fiduciary Rule or other mechanisms-might further increase the already significant overperformance of broker-sold international equity funds ; it's also possible that loss of access to advisory services as a result of the rule (see section 3.4) will lead to greater investor losses on foreign equity funds .37 33 Essentially, the work in this area uses aggregate (i.e., as opposed to account-level) data on various mutual funds' returns, total assets, loads, and distribution channel to measure performance on both an absolute and a risk-adjusted basis. Appendix A (p 330-339) of the RIA presents the DOL's own version of this analysis, and responds to (and largely rejects) criticis ms from ICI on the assumptions in the 2015 NPRM RIA. 34 See table A-7, p. 338 of the RIA. The assumption above of 45 basis points for every 100 basis points of front-end load fees is actually cited by the DOL to Christoffersen, Susan, Richard Evans, and David Musto. "W hat Do Consumers' Fund Flows Maximize? Evidence from Their Broke r's Incentives." Journal of Finance 68 (2013) : 201 235. Their own result of 59.4 basis points average underperformance for domestic equity funds is presented as consistent with this. 35 ICI comment letter on DOL Fiduciary Rule (March 17, 2017). www.ici.org/pdf/17 ici dol fiduciary applicability ltr.pdf, p. 14. These results are also roughly consistent with those in Reuter, Jonathan (2015) . "Revisiting the Performance of Broker-So ld Mutual Funds ." Working Paper. 36 37 See, again, table A-7 on p. 338 of the RIA, as well as footnote 628 and related main body text on p. 337. On this general point, see also table 5 (p. 21) and accompanying text of ICl's April 17, 2017 comment letter . https://www .ici.org/pdf/17 ici dol fiducia ry reexamination ltr.pdf . 22 /\ f ICAN PVERSIGHT DOL-17-0281-D-000079 Taking the DOL's 6 .0 basis point underperformance estimate in place of their 59.4 basis point one would scale down the DOL's benefits impacts to roughly one-tenth its reported value, or about $3.3 billion, far lower even than the DOL's own estimate of the estimated cost of the rule (roughly $13 billion-$16 billion). 38 Note also that, in addition to the possibility that the current underperformance of broker-sold funds is overestimated, there is also the possibility that the rule will be less successful than the DOL assumes at alleviating this underperformance. That is, if the rule is only half as successful as the DOL assumes at improving advisors' selection of mutual funds through reduced conflicts, its benefits will be only half what they otherwise would be.39 Importantly, the narrow focus on examining investment returns associated with a subset of total available mutual funds are sold to investors ignores completely other critical considerations important to investors such as annuitization (income), death benefits (estate planning), and correlation (or diversification) with other investments. The rule is having a significant impact on limiting choice both in and out of retirement accounts for products such as annuities , REITS , and BDCs. 3.3 LITTLE CONNECTION BETWEEN RULE'S PROVISIONS AND BENEFIT CALCULATION At least as significant as the fundamental uncertainty described above in the magnitude of potential benefits, however, is the general lack of connection between the substantive elements of the rule and the benefits calculation justifying those elements. While the benefits calculations are entirely based on relatively subtle questions of mutual fund choice (i.e., that advisors will select funds with half a percentage point higher annual returns on average as a result of the rule), much of the rule is not tailored to achieving this outcome. As previously noted, during our interviews it was made clear that the rule is having significant impacts on the availability of a wide range of investment choices , such as annuities , REITs, and Business Development Companies (BDCs), both inside and outside of retirement accounts . While the DOL broadly asserts that conflicts affect these investments as well, and therefore the new rule must only improve outcomes for investors, the reality is that many mainstream investors are losing access to these investment options, which are often high performing and have desirable properties relative to traditional mutual funds .40 By focusing narrowly on That is, if the assumed gains to benefits to investors in the DOL' s benefits estimates were only one-tenth the DOL's current assumptions-reflecting the 6-basis point net underperformance of all broker-sold funds , rathe r than the 59-basis point underperformance just of domestic equity funds- then the DOL's total benefits number would be 38 reduced from $32.5 billion to $3.3 billion. The DOL would of course point out that, in addition to the possibility that current underperformance is being overestimated, there is the possibility that it is being underestimated. This same possibility does not extend to uncertainty over the rule's effectiveness, which is capped at 100%. 40 Non-traded assets have distinct advantages that are attractive to many investors . These include performance that is not generally (as) correlated to the volatile swings in financial markets or dedicated income streams and often (in the case of non-retirement accounts) provide significant tax benefit. Because, by definition, these products are not available on publicly traded markets , they are generally only available to retail investors through a financial advisor . 39 23 /\ f ICAN PVERSIGHT DOL-17-0281-D-000080 front-end-load mutual funds in its calculations, the DOL has assumed away effects on the rest of the retirement savings, and indeed the broader investment market. Specific contentious provisions of the rule, such as the private right of action , are hard to justify based on the DOL's benefits calculations. It seems unlikely that an investor's dissatisfaction with an advisor 's recommendation of a slightly underperforming mutual fund is most appropriately resolved through a class-action lawsuit. Moreover, while other elements of the rule , such as a leveling of fees and disclosures, may help achieve the outcome of improving fund selection by advisors , emerging market-based solutions to these problems (admittedly spurred in part by this rule) will likely prove to be a cheaper and more effective way to achieve these objectives (this is further discussed in Chapter 4). 3.4 THE VALUE OF FINANCIAL ADVICE From the beginning of the rule-making process, a central point of dispute over the fiduciary rule has been whether the DOL is properly valuing the retirement planning services that investors gain through a relationship with a financia l advisor. In its RIA, for example, the DOL speaks approvingly of so-called "robo-advisors which use new technology to target clients using automated-advice solutions and human advisers through the process of setting up portfolios." 41 In fact, since the DOL first proposed the Fiduciary Rule, top providers of robo-advising have switched tacks, emphasizing more human assistance for sizable accounts. 42 To many in the industry, the DOL has been dismissive of the human side of the financial advising industry when divor ced from a robo-advisor . As many noted during our interviews , the main value of a financia l advisor is not in chasing shortterm gains of a few basis points of return in the market. Rather, the advisor's role is to inform strategy and options that help a client make appropriate asset-allocat ion decisions, ensure that clients are realistic about the amounts they need to save for retirement (and often coach clients to better implement these strategies). Even the most experienced investors can benefit from the advisor's encouragement to maintain well-considered investment and savings strategies even during periods of market volatility. This advice can often have consequences on retirement savings; for example, in preventing rash investment decisions that might result in a 20% tax penalty for early withdrawal. In addition, advisors help make sure clients are protected from unforeseen risks through products like life and long-t erm care insurance and encourage investors to plan for a financially secure retirement. It is a fundamental shortcoming of the DOL benefit calculation that it equates variance in the performance between and within some mutual fund products as being a valid measure of the 41 RIA p. 87. 42 See, e.g .: www.kitces.com/b log/be tterme nt-digita l-raises-fees-adds-plus-premium -and-advisor-network "Bette rment Raises Fees and Pivots to Platform Offering Human Advisors ." And www .financ ialplanninq .com/news/personal-capital-reverses-course-ra ises-acco u nt-minimums-to-1 00k-aga in "Personal Capital Reverses Course, Raises Account Minimums to $100K Again ." 24 /\M RICAN PVERSIGHT DOL-17-0281-D-000081 value of retirement planning services. In fact, much of the benefit of retirement planning services results from the advisor's ability to encourage diversification into products such as non-traded investment vehicles or various insurance products precisely because the performance of these products is not strongly correlated to the performance of financial markets. Investors also benefit from advisor's behavioral coaching and other soft services. Valuing the soft benefits of financial advising is notoriously difficult , but some have attempted to do so. 43 One study published by Vanguard , for example, estimates that access to an advisor can add 300 basis points to an investor's expected return. 44 In this as in other studies, much of the benefit results from behavioral coaching; the ability of an advisor to encourage savings, establish and maintain long-term strategies; and eliminate the emotional decision-making that often accompanies periods of market volatility. Although 300 basis points is a significant improvement in investment performance, studies of this nature by thei r very design tend to underestimate the value of retirement planning services. Listed below are examples of categories of advice that are not adequately captured in studies limited to a comparison of expense and return ratios: • Retirement planning: Older investors often have investment concerns that transcend an analysis grounded in expense and return ratios. For example, investors in or near retirement often confront difficult financial tradeoffs such as the desire to preserve assets for estate planning against the need to generate current income. Access to a financial advisor can result in improved financial planning that helps to achieve these objectives. However , the optimal strategy selected in these circumstances will likely transcend a simple comparison of expense and return ratios. • Suitability of low- or no-return products: Financial advisors bring value by encouraging investors to purchase products that are suitable for long-term life cycle planning but will actually reduce short-term investment return. Encouraging the purchase of insurance for long-term nursing home care is an important example. In addition, conservative bond funds that generate income but low return are entirely appropriate investments for large segments of the retirement investor population rather than focusing on aggressive funds with higher rates or return. In addition to the Vanguard study discussed below, see also Blanchett, David and Paul flvf· ·-·-·-· -···~ To: Hoffman, Emily E - OSEC; Geale, Nicholas C. - SOL; Eilers-Bowser , Heather Cc: Sagat, Mark; Sonnichsen, Ethan Subject: RE: Meeting Request PVERSIGHT DOL-17-0281-D-000107 Hi, EmilyDoes Secretary Acosta have any availability on Thursday , October 26? Currently , attendees from our side would include NAIC President and Wisconsin Insurance Commissioner Ted Nickel and NAIC's Managing Director of Government Relations , Ethan Sonnichsen. We may invite other Commis sioners , schedules permitting, after we are able to confirm a meeting date and time. I'll be out of the office on vacation for the next two weeks, but I have Cc'd Mark and Ethan to help coordinate . Thanks so much, Julianne Julianne Jensby Administrative A ssistant to the Chief Executive Officer National As sociation of Insurance Commissioners Hall of the State s I Suite 700 444 N . Capitol Street NW Washington, DC 20001 I •·-·-· Ex (6) ] ·l,atlcin rAsaio-ciati of on NAI C InsurancCom e missioners Ex (6) / From : H~ffman , Emiiy E • OSEC [mailto j Sent: Wednesday , September 27, 2017 ':rnrPrvr ·-·-·-·--··-·-·-·-·-·-·-·-·-· -·-·-·-·-· -· To: Jensby, Julianne; Geale , Nicholas C. • SOL ; Eilers-Bows er, Heather Cc: Sagat, Mar k Subject: RE: Meeting Request Hi Julianne , Just following up with you regarding the list of attendees and dates? Thanks! Emily -- - -- - From: Hoffman , Emily E • OSEC -- --------- Sent: Wednesday , September 13, 201710 :12 PM To : Jensby , Julianne; Geale , Nicholas C. - SOL ; Eilers-Bow ser, Heather Cc: Sagat, Mark Subject: RE: Meeting Request Sounds great , thanks! -- I ·-·-·-···-·-·-·-·-·-···-·-·-·-·--···-·-·-·1- ;,;· };_~.J~) _____ _,_ From: Jensby, Julianne [maitto:!__,____ __J Sent: Wednesday, September 13, ,w17 6 :u9 PM To: Hoffman, Emily E - OSEC ; Geale, Nicholas C. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark --- ---------- -- - - Subject: RE: Meeting Request Hi, Emily- pv R IGHT DOL-17-0281-D-000108 Thanks for you quick response. We are going to check schedules with our Officers and will circle back around to you with attendees and dates next week. Thanks so much , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Washington , DC 20001 i'-·••· •-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-Ex (6) l ·-·-·-·-·-·-· -·-·-·-·-·-··-·-·-·-·-·-··-·-·-·-· -·-·-·-·-·-·-·-·-·· National Association of Insurance Commissioner s ••• •••~--•~- •--- -•~•• •• •~•••••-•-- •u~ -• • • •• ~•-••• ••-- •>. ''' •- i •• ••• • •••••••• •• •••••••• •••• •••• •• •••• •••• •.. •.. •• •••••••• ••• • ••, Ex (6) i • •••• • -••- • • •• ••~•~ ......• -•••• ••~••• -•• _.,,,.. ---••----•- ......•••-,-••- o•n•o•---.• - · • From: Hoffman, Emily E- OSEC [mailto:! Sent: Tuesday, September 12, 2017 5:54·pwr···················································· To: Geale, Nicholas C. - SOL; Jensby, Julianne; Eilers-Bowser , Heather Cc : Sagat, Mark Subject: RE: Meeting Request Hi Julianne, Would you be able to send over some September / October dates that work with NAIC as well as the list of attendees who would be present? Thank you! Emily From: Geale , Nicholas C. - SOL Sent: Tuesday, September 12, 2017 5:26 PM To: Jensby, Julianne; Eilers-Bowser , Heather Cc: Sagat, Mark; Hoffman, Emily E - OSEC Subject: RE: Meeting Request Emily. Hoffman is.the Secretary 's _scheduler. ·····-···-·---..-...-......--.-··-· ···-· -··· .. ···-··-··- ...-- .....- ..--..... ·····-..-..·-··-··-·--········-···•-· ..·..·-····.... .... ..J From: Jensby, Julianne [mailto:1..............~~.J~L Sent: Tuesday, September 12, 2017 5:13 PM To: Eilers-Bowser, Heather ; Geale , Nicholas C. - SOL Cc: Sagat, Mark Subject: RE: Meeting Request Hi, NickWould you be able to connect me with Secretary Acosta's assistant so that we can work to find a mutually convenient time for a meeting? Thanks , p ~rra n"6 IG HT DOL-17-0281-D-000109 Julianne Jensby Administrative As sistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Washington, DC 20001 I ·----·- Ex (6) NAIC _] National Association of Insurance Commissioners From: Eilers-Bowser, Heather Sent: Tuesday, September 12, 2017 3:26 PM To: r····--·-·-···-·-·-· Ex' (6) ·····-·-·-·········-·i Cc: 'sagat, Mark; Jensby, Julianne Subject: Meeting Request Nick, Thank you for taking my call. As we discussed , we would like to schedule a meeting with Secretary Acosta to discuss issues related to the fiduciary rule. I am including others on this e-mail who can provide more information and wo rk out the date. Thank you and again , congratulations on your new position! Heather Eilers-Bowser Financial Policy & Legislative Counsel National Association of Insurance Commissioners (NA IC) I •·-·- Ex (6) i -·National Association of Insurance Commissioners ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NAIC and are intended only for the addressee. Information contained herein is confident ial, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waive r of the confidential, privileged or exempted status of the information transmitted . Unauth orized forwa rding, printing, copying, distribution or use of such infonnation is strictly prohibited and may be unlawful. If you are not the addressee , please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAIC Help Desk at (816)783-8500. ~ --------- -------------------------------- CONFIDENTIALITY NOTICE This message and any attachment s are from the NAIC and are intended only for the addressee . Informati on contained herein is confidenti al, and may be privileged or exe mpt from disclosure pursuant to applicable federal or state law. Th.is message is not inten ded as a waiver of the confiden tial, privileged or exempted status of the information transmitted . Unauthorized forwarding, printin g, copying, distribution or use of such infonnation is strictly prohibited and may be unlawful. If you are not the addressee , please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the DOL-17-0281-D-000110 'fJ e1 i-s16)783-8soo. 11 e Ht ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NAIC and are intended only for the addressee. Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted. Unauthorized forwarding , printing, copying, distribution or use of such infonnation is strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAIC Help Desk at (816)783-8500. ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NAJC and are intended only for the addressee. Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted . Unauthorized forwarding, printing , copying , distribution or use of such infonnation is strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAJC Help Desk at (816)783-8500. ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NATC and are intended only for the addressee . Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law . This message is not intended as a waiver of the confidential , privileged or exempted status of the information transmitted . Unauthorized forwarding, printing , copying , distribution or use of such information is strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAIC Help Desk at (816)783-8500. A f ICAN PVERSIGHT DOL-17-0281-D-000111 From: To: CC: Hoffman,EmilyE - OSEC Sagat, Mark;Jensby,Julianne;Geale, NicholasC. - SOL; Eilers-Bowser,Heather Sonnichsen,Ethan Sent: Subject: RE: MeetingRequest 10/4/2017 10:56:27 AM Hi Mark, Thanks for your patience. I will have an answer for you by close of business tomorrow on the date! Thanks! Emily f i Fro~is;~ ·at, M~rk[mailt~-=! Ex (6) I Sent: Wednesday,October'u-{-·;mrrrn:U•:rAM"-·-·-·-·-· ' To: Hoffman,Emily E - OSEC;Jensby,Julianne;Geale,NicholasC. - SOL;Eilers-Bowser,Heather Cc: Sonnichsen,Ethan Subject: RE:MeetingRequest Hi Emily, Hi Emily, As Julianne indicated, she is out this week and next on vacation. I just wanted to check in on this for her. Thanks, M~ E- . , ~J ;;~~; -Hoff~;n ; Em.il~ OSEC -(~;ilt~L Ex (6) Sent: Saturday,September30, 20174:53 PM To: Jensby,Julianne;Geale,NicholasC. - SOL;Eilers-Bowser,Heather Cc: Sagat,Mark; Sonnichsen , Ethan Subject: RE:MeetingRequest Hi Julianne, Let me check the schedule. I will be in touch shortly! Thanks! Emily r··-·-·-·-·-·-·-•-·-·-·-·-·-·-·-·-·-·-•-, Ex (6) Fr~m: J;ns.by, Julian~~--[m;Hto:I 1· Sent: Friday,September~ 7 3:33 PM To: Hoffman,Emily E - OSEC;Geale,NicholasC. - SOL;Eilers-Bowser,Heather Cc: Sagat,Mark; Sonnichsen,Ethan Subject: RE:MeetingRequest Hi, EmilyDoes Secretary Acosta have any availability on Thursday, October 26? Currently , attendees from our side would include NAIC President and Wisconsin Insurance Commissioner Ted Nickel and NAIC's Managing Director of Government Relations , Ethan Sonnichsen . We may invite other Commissioners , schedules permitting, after we are able to confirm a meeting date and time. DOL-17-0281-D-000112 coordinate . Thanks so much , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW ,-·-· Washington ,_DC _20001 l , -·-·-·-·-·-·-·-· ·-·-·-·-·-·-·-· I Ex (6) iation ·-NatioiiafA"ssocof ··-··- NAI C Insurance Commissioners From: Hoffman, Emily E ~-OSEC[mailtor- ···-·-·-·-·-·-···-E>t(Sf -·-•-T-,-·-·-······'1 ·- ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· Sent: Wednesday,September27, 2017 3:UTPm·-·-·-·-·To: Jensby,Julianne;Geale,NicholasC. - SOL;Eilers-Bowser,Heather Cc: Sagat,Mark Subject: RE:MeetingRequest Hi Julianne, Just following up with you regarding the list of attendees and dates ? Thanks! Emily From: Hoffman, Emily E - OSEC Sent: Wednesday,September13, 2017 10:12 PM To: Jensby, Julianne; Geale, Nicholas C. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark Subject: RE:MeetingRequest Sounds great , thanks! -- ·· --- · --- ·r·•··· ·-·-·-···-···-·-·-·-·-·-·-···-·-·-···-·-·-1 I Ex (6) From: Jensby,Julianne[mailtol ·-·-·-·-·-·-·· , Septembert3 ;·zu1T6:l l':rt1M" Sent: Wednesday - SOL;Eilers-Bowser,Heather C. Nicholas , Geale OSEC; E Emily Hoffman, To: Mark , Sagat Cc: Subject: RE:Meeting Request Hi, Emilyback Thanks for you quick response . We are going to check schedules with our Officers and will circle around to you with attendees and dates next week. Thanks so much, Julianne PVERSIGHT DOL-17-0281-D-000113 Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Washington, DC 20001 ··-·-·-·-~-~i i i i '·-·-·- i Ex (6) ·-·National Association of NAI C~ Insurance Commissioners E- F;~·m=·H -off~an : E;;ily osic [~ailt~r·- ·-·-··············ex··(sf··· ···-···-·-·-·-·-·r . .... Sent: Tuesday,September12, 2017 5:54·ptvr········· ·········-·· ·-···-················ ·······-· To: Geale, NicholasC. - SOL;Jensby,Julianne; Eilers-Bowser,Heather Cc: Sagat, Mark Subject: RE:Meeting Request Hi Julianne, Would you be able to send over some September/ October dates that work with NAIC as well as the list of attendees who would be present? Thank you! Emily From: Geale,NicholasC. - SOL Sent: Tuesday,September12, 2017 5:26 PM To: Jensby,Julianne; Eilers-Bowser,Heather Cc: Sagat, Mark; Hoffman, Emily E - OSEC Subject: RE:Meeting Request Emily.Hoffman is.the .secretary's .scheduler.··--···•· ·•····· From: Jensby,Julianne [mailto:L._._·········~~.l~L ..._........l Sent: Tuesday,September12, 2017 5:13 PM To: Eilers-Bowser,Heather; Geale,NicholasC. - SOL Cc: Sagat, Mark Subject: RE:Meeting Request Hi, NickWould you be able to connect me with Secretary Acosta's assistant so that we can work to find a mutually convenient time for a meeting? Thanks , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Washington, DC 20001 ( pVERSI l ,- , -·-·-·- · -·-·-·-•-•-·-·• x 6) •- •- ••• - •• •- •- ••• - ••• • •• •- • • •••- •• ••• • •- •-• • •• •• •- •• •• •- •••··-•• ••·• I DOL-17-0281-D-000114 - ·-·-·-·-·"\ ·-·····-·-···········-·-·-····••·••·····-·-·-···-·-···-···-···-·-·-·-·-···-·-·-· ' '; Ex (6) t 1 of al ciation -walionAsso NAI C InsurancCom e missioners From: Eilers-Bowser,Heather Sent: Tuesday, September12, 2017 3:26 PM _ Ex(~!____ To: f'--·-·-· Cc: Sagat, Mark; Jensby,Julianne Subject: Meeting Request Nick, Thank you for taking my call. As we discussed , we would like to schedule a meeting with Secretary Aco sta to discuss out issues related to the fiduciary rule. I am including others on this e-mail who can provide more information and work the date . Thank you and again, congratulations on your new position ! Heather Eilers-Bowser Financial Policy & Legislative Counsel National Association of Insurance Commissioners (NAIC) L_ 6 of Association Ex ( ) --Nado~I issioners e lnsurwComm ----------------------------------------- CONFIDENTlALITY NOTICE This message and any attachments are from the NAIC and are intended only for the addressee. Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted . Unauthorized forwarding, printing, copying, distribution or use of such information is strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the cleliveiyerror by e-mail or by calling the NAIC Help Desk at (816)783 -8500. -----------------------------------------CONFIDENTIALITYNOTICE This message and any attachments are from the NAIC and are intended only for the addressee. Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted. Unauthorized forwarding, printing, copying, distribution or use of such information is strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAIC Help Desk at (8 16)783 -8500 . ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NAIC and are intended only for the addressee. Information contained herein is confidential, and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted. Unauthorized forwarding, printing, copying, distribution or use of such info1mationis strictly prohibited and may be unlawful. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the Alc.He!P Desk at (8 16)783-8500. DOL-17-0281-D-000115 ----------------------------------------- CONFIDENTIALITY NOTICE This message and any attachments are from the NAlC and are intended only for the addressee . Information contained herein is confidentiaL and may be privileged or exempt from disclosure pursuant to applicable federal or state law. This message is not intended as a waiver of the confidential, privileged or exempted status of the information transmitted. Unauthorized forwarding, printing , copying, distribution or use of such information is strictly prohibited and may be unlawful. If you are not the addressee , please promptly delete this message and notify the sender of the delivery error by e-mail or by calling the NAJC Help Desk at (816)783-8500. /\ f IC N PVERSIGHT DOL-17-0281-D-000116 Jensby, Julianne Hoffman, Emily E - OSEC; Sagat, Mark ; Geale , Nicholas C. - SOL; Eilers-Bowser, Heather Sonnichsen, Ethan; Jones, Arion J - SOL; Matthews , Jolie H. 10/18/2017 5:36:26 PM From: To: CC: Sent : Subject: RE: MeetingRequest Emily, Thank you for the logistical details. Might you be able to share which staff will be accompanying the Secretary for this meeting? Regards , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW , .......................................... ......Washington,_DC _20001........... l Ex (6) ! l..... ofion ·onar1rssoaat Na11 ··· NA/ ( , Insurance Commissioners ' I ••- •..•• ~ - ·-- .• - - t Ex (6) i ! From: Hoffman, Emily E- OSEC [mailto:! ······· ·············· ································· Sent: Tuesday, October 17, 2017 1:27 FIM·· To: Jensby, Julianne; Sagat, Mark; Geale, Nicholas C. - SOL ; Eilers-Bow ser, Heather Cc: Sonnichsen, Ethan; Jones, Arion J - SOL; Matthews, Jolie H. Subject: RE: Meeting Request Julianne, Great! We are confirmed for Tuesday , October 26 at 1:30pm. Building Arrival Instructions are Below : 3rd and C Street, NW Entrance Arrival Instructions The Department of Labor is located at 200 Constitution Ave, NW. Please enter through the 3rd and C Street, NW here entrance . Upon arrival, please check-in with your ID at the security desk and notify the agent on duty that you are for a scheduled meeting in the Secretary's Fish Bowl. Ario n Jones will greet and escort you upstairs. Be sure to should you have any questions prior to your arrival at the Department. contact! Ex (6) i "·-·-·-·-·-·-·--·-·-·-·-·-·-·. Thank you! Emily Hoffman i ...... .. • .. - · - · • .. .. .... ...... ... Ex (6) i I Juli~~~; [m; iltoi Fro~;J~~by, ···············' ··Pfvf··········· Sent: Monday, October 16, 20'f7"6':o·3 To: Hoffman, Emily E - OSEC; Sagat, Mark ; Geale, Nicholas C. - SOL ; Eilers-Bowser, Heather DOL-17-0281-D-000117 Cc: Son ·chsen, Ethan; Jones, Arion J • SOL; Matthews , Jolie H. Subject: RE: Meeting Request Hi, EmilyWe can confirm Thursday, October 26 at 1:30 PM ET. Attendees on our side will be: Ted Nickel, Wisconsin Insurance Commissioner and NAIC President Julie McPeak, Tennessee Commissioner of Commerce and Insurance and NAIC President-Elect Ethan Sonnichsen, Managing Director of Government Relations, NAIC Jolie Matthews, Senior Health and Life Counsel, Government Relations , NAIC Thanks so much , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Wasl1ington, DC 20001 '; I Ex (6) ; ; ; i,,_, ··"Nifi"o·narA·ssociafion of NAI C Insurance Commissioners --------·--··---·-·-----·-- - ----·-··---·--·----------· --- - -·· From: Hoffman, Emily E - OSEC [mailto:~ Ex (6) / Sent: Sunday, October 15, 2017 4:38 Pl\ii-····· ·························································J To: Saga!, Mark; Geale, Nicholas c. - SOL; Jensby, Julianne; Eilers-Bowser, Heather Cc: Sonnichsen, Ethan; Jones, Arion J - SOL Subject: RE: Meeting Request -----·----------·---- ..-------- Hi Mark , Thanks for your patience. We were able to shift a few things around- how does 1:30pm on Thursday , October 26 work on your end? Thank you! Emily -•-••-•,-• •UO~• • ••-• •••• -•-• -•- --•-•-•- 1•••••• •• •• •• ••••·•"···· -·-·-• - •-•-•••••- •-•-, •••- •- Ex (6) l ••••• --• ••- - - •••• • •• ••• •--••••• ••••-- - -----••••_, •••••• •••-••••••••••~••-•• •-••• •••••-••••- •- --- •• -••-~• From: Sagat, Mark [mailto:! Sent: Tuesday, October 1o~·-zo1T'3'!:Jo.-Pl'ill ····--·······To: Geale, Nicholas C. - SOL; Jensby, Julianne; Eilers-Bowser, Heather Cc: Sonnichsen, Ethan; Hoffman, Emily E - OSEC; Jones, Arion J - SOL Subject: RE: Meeting Request Thanks Nick. Very much appreciate the offer for a meeting , but we aren't necessarily whetted to that week. If that week doesn't work for him, what about another week in November? There is an expectation from Congress and the insurance sector that DOL and NAIC coordinate on these issues so we feel it is important that our leadership meet with the Secretary in light of that. Thanks, Mark N PVERSIGHT DOL-17-0281-D-000118 ~-• Assistant Director, Financia l Policy and Legislation National Association of Insurance Commissioners Ex (6) ~-------·--"--• ··-··-~ ····· •······-······ -·-·-·-·-·. ·-·-·--·-·-·-·-·-·-· -- -- ·-·-·-·-·-·-·-·-·-.. Ex (6) From: Geale, Nicholas C. - SOL [mailtj Sent: Monday, October 09, 2017 2:52 PM To: Sagat, Mark ; Jensby, Julianne; Eilers-Bowser, Heather Cc: Sonnichsen, Ethan; Hoffman, Emily E - OSEC; Jones , Arion J - SOL Subject: RE: Meeting Request i· MarkUnfortunately, the Secretary's schedule is pretty thick that week already and l1e may be out of town part of the week also. I can host and meet with your folks and update you on anything. Does that work? If so, I'll let Ar ion Jones my assistant arrange the time. Thanks. -Nick • .. • . • ··- ..... ..••.•.•.•••••••••••••.•••••.•.•••••••.•.•.1 , Ex (6) From: Sagat, Mark [mailtoi Sent: Monday, October 09:··zcrrrz:-nrFwr······ ···J To: Hoffman, Emily E - OSEC ; Jensby , Julianne; Gea le, Nicholas C. - SOL; Eilers-Bowser , Heather Cc: Sonnichsen, Ethan Subject: RE: Meeting Request Hi Emily, Just wanted to check back in on this. Thanks! Mark -·-·-·-·-·-·-·-, ·-·-·-·-······· ·-·-·-·-·-·-·-·-·-·-·-· 1··-··- -- -- (6) Ex [mailto:j From: Hoffman, Emily E - OSEC ·-····································-···' Sent: Wednesday , October 04, 2017 1 0:'so·:n:M"· C. - SOL; Eilers.Bowser , Heather Nicholas , Geale Julianne; Jensby, To: Sagal, Mark; Ethan Cc: Sonnichsen, Subject: RE: Meeting Request l Hi Mark, Thanks for yo ur patience. I will have an answer for you by close of business tomorrow on the date! Thanks! Emily J- From: Sagat, Mark [mailtoi l.. , . ................ EX{6) . ......... . . . ....... ... .......... I . .. . DOL-17-0281-D-000119 Sent: Wednesday, October 04, 2017 10:04 AM To: Hoffman, Emily E - OSEC; Jensby , Julianne; Geale, Nicholas C. - SOL; Eilers-Bowser, Heather Cc: Sonnichsen, Ethan Subject: RE: Meeting Request Hi Emily, Hi Emily, As Julianne indicated, she is out this week and next on vacation. I just wanted to check in on this for her. Thanks, Mark Ex (6) ! Fr~m: Hoffman, Emily E - OSEC [mailto! Sent: Saturday, September 30, 2017 4:5"3·P1Vl·-······ ···-···-·-·-··-·--·-·-·-···-·-··-·-·-·J To: Jensby, Julianne; Geale, Nicholas C. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark; Sonnichsen, Ethan Subject: RE: Meeting Request Hi Julianne, Let me check the schedule. I will be in touch shortly! Thanks! Emily F·~·~~ =·J~~~tiy·: ·J~ii~~~~r~alit~ :J Ex (6) 1 ··· --·· ... -·--··· ··- ···--·-··-··----··--···-----·· ---·-- sent: Friday , September 29, 20°fT3.:J3·PNr·-···-···················' To: Hoffman, Emily E - OSEC; Geale, Nicholas C. - SOL ; Eilers-Bowser, Heather Cc: Sagat , Mark; Sonnichsen, Ethan Subject: RE: Meeting Request Hi, EmilyDoes Secretary Acosta have any availability on Thursday , October 26? Currently , attendees from our side wou ld include NAIC President and Wisconsin Insurance Commissioner Ted Nickel and NAIC's Managing Director of Government Relations , Ethan Sonnichsen. We may invite other Commissioners , schedules permitting, after we are able to confirm a meeting date and time. I'll be out of the office on vacation for the next two weeks, but I have Cc'd Mark and Ethan to help coordinate. Thanks so much , Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW Washington, DC 20001 I -·-·-·-·-·-· ~-~.-·-(~J _..... ... ............. -·-·-··-··· l PVERSIGHT DOL-17-0281-D-000120 National Association of NAI C Insurance Commissioners ··--······-·--··--·-• ··- ···-·-·- ·-·•·---···--·--·-····--·---··-·! l·· -·-•···-· ·- ····•······--···-·-·········--·•----· ···--·-···---····--·-··- -········-·-- .. ( ! Ex 6) From: Hoffman, Emily E- OSEC [mailto:! Sent: Wednesday, September 27, 2017 :l~OrPWr···--····-···-···· ···················· ·······-' To: Jensby, Julianne; Geale, NicholasC. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark Subject: RE: Meeting Request Hi Julianne, Just following up with you regarding the list of attendees and dates? Thanks! Emily -----~-···-- -·· --·----· - -~-·-··· ···-····-··- . --- - --·- ··· ·--~---.. _., • -- • •· · ••··-- - -- - - -··- -·-·· -·· ·•··---- - ·---·-----·-· ----··-----· ------·· ·--·-· --- From:Hoffman, Emily E - OSEC Sent: Wednesday, September 13, 2017 10:12 PM To: Jensby, Julianne; Geale, NicholasC. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark Subject : RE: Meeting Request Sounds great , thanks! ,.............................. .................. ............... . Ex..(6 )...... J From: jen;by, Juliann~ [maittdl...•..... Sent: Wednesday, September 13, 2017 6:09 PM To: Hoffman, Emily E - OSEC; Geale, NicholasC. - SOL; Eilers-Bowser, Heather Cc: Sagat, Mark Subject: RE: Meeting Request Hi, EmilyThanks for you quick response. We are going to check schedules with our Officers and w ill circle back around to you with attendees and dates next week. Thanks so much, Julianne Julianne Jensby Administrative Assistant to the Chief Executive Officer National Association of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW ,···-·Washington,.DC. 20001 ·········································-·······, Ex (6) I ····-· I · Nation ·arAssociation of NAI C~Insurance Commissioners i;~~~ -·H~ .i~-~~ :-E~~i1~ -E~-osEc-(~i1~l p Ex (6) !""·····-·- sent. Tuesday, September 12, 2017 5.Sl~··· ·~········--··········································· ffiD e_ le, "ia la1Ct - SOL; Jensby, Julianne; Eilers-Bowser, Heather DOL-17-0281-D-000121 Cc: Sagat, Mark Subject: RE: Meeting Request Hi Julianne, Would you be able to send over some September/ October dates that work with NAIC as well as the list of attendees who would be present? Thank you! Emily ··········-···- ·•·• ........ . ·····-·-· •····- .. ·•··········- ······-··-·••·- --·-··· ··-···· ·····-· ····---· From: Geale, Nicholas C. - SOL Sent: Tuesday, September 12, 2017 5:26 PM To: Jensby, Julianne; Eilers-Bowser, Heather Cc: Sagat , Mark; Hoffman, Emily E - OSEC Subject: RE: Meeting Request ~mily __ ~offman _i~-the Secretary's scheduler... -------·-···-·..... --·--·- --·······--·--· __····-·-·---·-· ----•----------.....--· ···----·---·-·-·-----···_______ . _ .... From: Jensby , Julianne [mailto:r··· ············e·x--(6f ·-········ ·····1 Sent : Tuesday, September 12, '201To:TSPM··· ···· ·················~ To: Eilers-Bowser , Heather; Geale, Nicholas C. - SOL Cc: Sagat, Mark Subject: RE: Meeting Request Hi, NickWould you be able to connect me with Secretary Acosta's assistant so that we can work to find a mutuall y convenient time for a meeting ? Thanks , Julianne Julianne Jensby Administrati ve Assistant to the Chief Executive Officer National A ssociation of Insurance Commissioners Hall of the States I Suite 700 444 N. Capitol Street NW ............ _ ,.... Washington, .DC_20001 .......... ................... I ,... Ex (6) NAIC ! ··N ···ational Association of Insurance Commissioners From: Eilers-Bowser, Heather Sent: Tuesday , September 12, 2017 3:26 PM To:!···· ··············- ·-···Ex·(6) ·····-···············1 Cc:'Sagat, Mark ; Jensby , Julianne Subject: Meeting Request Nick, PVERSIGHT DOL-17-0281-D-000122 Thank you for taking my call. As we discussed, we would like to schedule a meeting with Secretary Acosta to discuss issues related to the fiduciary rule. I am including others on this e-mail who can provide more information and work out the date. Thank you and again, congratulations on your new position! Heather Eilers-Bowser Financial Policy & Legislative Counsel National Association of Insurance Commissioners (NAIC) Ex (6) i L___ , I -··Natloha1 Association of lnsuranrrnuor.--2t1n·eons"fimtrcirc;i;r-i:rriii: : ·Nw :··'i\l:1-sruiig toK..1JC :.11 1znr' r ······..... ....... ....... Fr;.;,: Tra~is Joh.~so~-[mailt~L ............Ex.(6) ..........J-Sent: Tuesday,July 18, 2017 6:13 AM To: Gardner,JanelleA - OSEC Cc: McDaniel, Keshia- OSEC Subject: Re: MeetingRequest - EquityDealersof America - Thanks! Would anytime between 1 - 230 work? Let me know what the secretary's availability is if that doesn't work. On Jul 17, 2017, at 8:48 PM, Gardner, Janelle A · OSEC I Ex (6) •-------- ' !> wrote: ; -·-·······--; The Secretary wou ld be happy to m eet with the gro up on the 25t h. /\ f ICAN PVERSIGHT DOL-17-0281-D-000138 Keshia- cc'd here will facilitate. Thanks! JanelleGardner Directorof Scheduling U.S.Department of Labor L. .... .Ex..(6).... .....J ~~if:: ~~~~::J~~~~~~~~~1f~i;:~:~=~.J~.~) .._... .::~ ~i-·· To: Gardner,Janelle A - OSEC Subject: RE:Meeting Request- EquityDealersofAmerica Thank you, Janelle. Let me knowwhen you can. /\\IH f~ICAN PVERSIGHT DOL-17-0281-D-000139 [Llli!IBQ;j Ex (6) From: Gardner, Janelle A - OS EC Sent: Thursday, July 13, 2017 10:43 AM L... ........... -..... To : Travis Johnson ,r···· ·······-····· ····Ex·1sf· ·············· ···-1 ----'----Subject: RE: Meeting Request - Equity Dealers of America Got your requ est. Will circle back as soo n as we can . JanelleGardner Director of Scheduling ,..u.s..Dep;irtment of Labor L... ... Ex (~L..................I L.......... .. .... From: Travis Johnson Ex (6) __·- ··-·-···--...] Date: July 12. 2017 at 6:36:55 PM EDT Subject: Meeting Request - Equity Dealers of America Byron, I was I1oping you could help me. I need to request a meeting with the Secretary on the fiduciary duty rule for n,y client , the Equity Dealers of A111erica.A number of the CEOs of the member companies are in town on July 25 th and they would really like to d iscuss their take on the impact of the rule. Be low you will find a list of attendees . If you could help me find the appropr iate place to make this inquiry, I would greatly appreciate ii. For your background, t he Equity Dealers of America is a trade association th at exclusively represents the reta il and institutional equity capital markets interests of its middle-market financial services firm members. The EDA works tirelessly with its members, regulators, and policymakers to promote fa ir, efficient, and competitive ly balanced eq uity capital markets, which we believe advances financial independen ce, stimulates job creation , and increases prosperity. The EDA will zealously oppose one-size -fits-all undifferentiated regulations that disproportionately impact midd le-market financial services firms . Attendees: Ron Kruszew ski, C/Jairman, President and CEO of Stifel, Nicolaus & Company, Inc., Paul E. Purcell, Chairman of Robert W. Baird & Co Curt Bradbury, Jr .• Chief Operating Officer Stephens Inc & Chair of the ASA Nik Fisken, Head of Global ECM Stephens. Inc. & Chair of the Equity Dea lers of America /\ f ICAN PVERSIGHT DOL-17-0281-D-000140 Christopher lacovella, CEO Equity Dealers of America Thanks, Travis Tra vis Johnson Eris Group 439 New Jersey Ave SE Washington , DC...... 20003 .................. Ex (6) , _J /\\IH f~ICAN PVERSIGHT DOL-17-0281-D-000141 From: To: Microsoft: Outlook on behalfor Gatesman Valerie • EBSA HauserTimothy• EBSA Subject: MeetingForwardNotification:Reg.Update Yourmeeting was forwarded HYPERLINK"ma,ho 'Galesmon,Valerie• EBSA hos forwardedyour meeting rc 2:0i/7 ~i.J,~~, •,,;, ' 1" .-,, ~\.o,-\ !_-;..:~,, 13 .'_'.-:'t------;7•m ;; \ t--- ------- 1 1!: ,1 j \:' !- ;.._•:·..·: • Mondo• '----+----- - --- .•l•! 14 12 19 26 Mo 6 l3 20 27 F•brvary 2017 Tu We Th 7 14 21 28 l 2 8 15 22 9 16 23 March 2011 · fr s, 3 10 17 4 24 .11 18 25 Su Mo s 6 12 13 l9 20 26 27 •Tu 7 H 21 , 28 w. 1 8 15 22 Th 2 9 16 23 29 .. 30 Fr 3 10 17 2• . 31 So 4 11 18 25 "j Tue>da• '--- + - - -----------+--- W4!dnesday 15 -+----------1---- - -- -- -- 16 -- --t-,------------- Thurs-d~y -~ triday 17 --__Ji--:;;,..,~~ w • ---l- - -- -- Monfq ueOut _ ----- __ _ I •• 1 - - ----1 ;goo ,, ! 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Monday ..;.._ ___ 28 -t-____ fu.,sday l Wednosdoy 2 ----1r-----~---+---...:.::.::::.:::::. __;_ ___ 3 Frldoy --t..:_---=~----l Thursday ___ •·i, _:_ 1.~ ..: .-:·-r- --- .,. :::. --- ------- '.·.:.:r------ -t-- -- ------------t------------- ---t----------t-- -- --------- - -------+----- l- ------------ --- -- ....l --+----------J '1' j,, : .9.9° . ....:t-- -------t------10 .. ---1----- --t- ------- 1------- --1----------J 00 0 ,\.• · 11 oo. ~·· '• ., 1-----------------l R•9. Update NS6n ~Fishbowl , ',. ,L:·. H~user, Timothy - EBS/.\ '12pm ... .....1_-:' ,.,:i QO 4~ t---- -- ·,:.·i---------t--... ---+-- -- ---- -+--~=--=,,L----+--- ----- t-- --'---- -------+-------- ---1------- --J -----jl-------- --J ·•500 .,,....•·i------------7--------..r~} L. ·:. .:_, ,.•. .,· .., ----t- -- -- - ------ +---------- -- -1------------ ----1 :l;, ·t-···, Hall, Lyssa- EBSA 9 9/5/2017 3:59 PM DOL-17-0281-E-000067 ,• :, .. 5 ' 1' ,li . 19 '. • ,26 · 6 .;,. l)londay Tuesday 7 ~7ar;n ·~):'.: ,1.', r----- - ------- --- - t- ------------- --if- -- --- -t--- - - ·------ +- ---- Wednesday 9 -- - -- - ----4 -- ------ Thursday Friday 10 - --------l- --------------- -1 ,, ~00 t---- ---- -- --+--------- + ---- ---- --1 .·.·····• 900 ·' ; __ .:. ...-..i·:;. i OOO ..,,. 1----..... ' •; } ----- - ---- - +-- ---- - --------- , j. ·1po ,_ __ 1---- -- ---- - - - --~ __,_______ _ ________ 12pm .',,._( 1--- - -- -- - ---- Reg. Update N5677 • Fishbowl ., Hauser, Timothy EBSA p - ---1----------------I--- ,:.•t+---------------- - --------- - - - i 00 iwNk ly Muting on ConfUct o f Jntere Fishbowl Call In 877 -929 ·06S 5 Hauser, Timothy - [BSA ProposadiMO class e-xt mptlo'h, nm·sotfice "-. HilUStr, Timothy • EBSA ci,yard Jo n,.,_ -.:J_f / foOO ~ .' .: \.7' . •; ,- 1---- 0 ----------41-------------'--- I . ..:r.·· iiq? . , :.• .,.',1---- -- ---- - --- - --l .•' .' :~ 1~:;_-:.' i---4----- - ------------l 1~-P'!' .. ;i- ---. ;,_ . R•g . Updat• N56TT•Fishbowl it----- t.' Hauser, fimolhy - EOSA 1----------------....J - --t------- ------- -t- ---- -- + --- --+- -- ---------+- --- - ------- - --+ - ----l -==------l ~: ,-;~·· ,i--- --------+ - -- -- - - --- +- ---------- 1--- ----------U ,_ ..I -4.~-r----------- ·:. :s~··i---' -·· r6.~. ·•.:'.,--j..:;, t- - -- -- -+-----------t---- - ----------t--------- ------- -- t---- - -- --------- - ---------1-------,f--- -- -- ------ - --- --------1 --l---- - - --------1------ -11-- - ------ - --- ------ --- ----_J - - - -l~- - -- ------- -l------ -- - -- --l ----------1 - r_., , .. Hall, Lyssa- ESSA 17 9/5/2 017 3:59 PM DOL-17-0281-E-000075 '.Jt '.'..::/J/,:f,:/.)·( ',//,.'•''.'.•.','1,:..... -l\l.l~~ :..Q.~~t2Pi 7.-:.., l\/l ~y:;,; g·~-i/i'. (li1 : ._,.,•· 1-- - - .. '' -· .. ' .:..·;:. ~•,. ,-•• 1 Monday ;',...., '• i------------t------_.;_.; , 2 Tuesday 3 Wedne,doy +-______ _;_ ____ +4_____ ____ ----t------- - 1--- --- - -1 1--- S ...::.:..:.:..._ ____ ..+::.,_ ___ Thursd•y - --- Friday _:=!_-----l --l ------ - --l . ~-gOO ··•. 9,.f!O t- --------- -t ----------+--------- --1 --- - --- - --_J_v It---- - ----- - --- - - ~ Reg. Updat e NS677-Fishbowl f-'--'- + --- - ---- -- - - --- -1Houser,Timothy· EBSA - tt-------+--------1 1• ',' ,1 00 1' : ,. 1--------- - -+- ---------+------'------f.. r.} "'• t- ------- -~6~0 i-- -- Hall, Lyssa - EBSA - +- ------- -- - - -i--- -- -+-- --- -j --- -------+------- -----f---- 18 - ---1-------- - -- -- -l -1- - - - -----1 9/5/ 20 17 3:59 PM DOL-17-0281-E-000076 i-----.;,__--+----.,;.__--r--....,;;:.;,:.:.:.::.... 10 / ;· · '· 8 Mond•y i•m ,::r-- ·1 'A 9 ------t- •••• Tuesday --- ---- t---- Wednesday __ ----- 11 -F-__ Tllu1sday ...;;;:;:::.:._ __ + 12__ __.::::._ __ 1----------jf------ Friday -- ---1 ------! '.i5 1JQ .... t- ------ -- : tf) t--- --- -- ------ J, .;··: 1000 -- -t ------ - ----+---------- -jf---- ---1- ----------------1--------- -- ----- ------- -+-----------__j l--'--- ----------.....l -119 0 . , ,1----------------1 e---- --- ------'izP.m i- ----- - -------- 1-~...;.. · -'" ' • '' •I ..100_, . ---:-',~ t-----------+ : 5 00 -:',,;::•,-, 6_~ , ,:.,,.-: !- - -- : t· --------------- Reg. Update N5677-fishbowl ----l H.1user, nmo1hy - EBS.A. j- ------- - - -- ---- .:."It--- ------r-------- - -- ---+-----------j f------------ - -- --l-- -- --.....:~.::---,,,,,_:::.... ___ --f ----------+-------------l t--- -- +-- ------- - ---t--------1-- - --- -------i f-- ------ ---1 - •• Hall, Lyssa • ESSA 19 9/5/2 017 3:59 PM DOL-17-0281-E-000077 I •. • .r -/; .-:·. •. ! ·;,-'. . ..~ ·\ ,, • • •, • .,. ;, ,... Monday 01,-:r; ·:;;:,·· i--- - - ,I I • ::·-. ; ;; ..- l ~ ...-; •. , 15 ·.•; .. . it_'.;·:,,. .. ·.-. t 16 --t--- -:•-.••,_. ~ ·. Tuesday - 17 Wednesday 18 ---+--------- Thursday +------ 19 ----1--- ---__J J: ... . ·.,soo .- _:.. • ,.I :-: -~:•, ,·.,' .. 9 00 .-,:..t------ - ----- '" .;:~ -1-'i, -;/·".;,t---- ~ 1--- . 1;i. _. - -- -----+------------- i----,--'-'-+-- --- 1°2pm •• :-.< -- - -t--------- ,- -- ---" - --- --+---- --- ---------- ------ --+ -- - - -----------+- --- - ---- ------_J -- - Canc~ ed: Reg . Updat• jHauser.Timothy•ESSA N56n-Fishbowl -- --------..J - I-'---------- ----t-------+------ --- -- -;_,~Hr---- ------- - -----1--------- ------ ~----------- ---- ---f-- ---------1----- ...J -__J • I . '··i-- -------t-------+------- ~' - Biwffl-: sb!/ t----/,6~ . ...,'.:·;''i-----_; .:~ , ---- ---j------ -t------- --+------ ---+---------+___::::=~---====::__ ----,t----------jf---- -,---- - -l -----l---------l •. ~:,,._.....,', I Hall, Lyssa- ESSA 21 9/ 5/2017 3:59 PM DOL-17-0281-E-000079 .'~ ; 12_9 ______M_o_ndoy_;_ _____ ~,3;.0;______ r_"_sdo _; •y______l.:3.:1;__ ____ "'. w..:• .:. dn .:.•:•.:.d•:; .: Y ______ t1;_______ Thu ::;::,:":dav::. ______ ti2 Iiiiiiii F i,ia id iyi iiiii~ . 7 •m ' ·: .. f 500 ~ ·,:;,.:J. i---------- --j--- .,•..., -- - -- -- -+ - -- - ----- --j f---- - - -- ----l- - --- ----~ - ----- - - - _j ·g oo ,. 1,. r - - - -- --------t;;;::::-::=:;::-;-:::-;-;:-=::-::==-=-:-::--:-r 1--- - -- -- - -:. :: :::-.:.. +-- -- ----- --- -- - --l i~ . • . •~ , .., r''--+ -- - ------ -------l Rtg. Updole NS6n-Fishbowl Hauser, Timot hy~ EBSA ,.r .. . • .~•. -·.,,, 500 r---- ~?O1--------- Hall, Lyssa - EBSA -----t-- ---- - - f---------1L--- - ---~ - -- - -- -_j - - - -l- - --- 22 9/ 5/2017 3:59 PM DOL-17-0281-E-000080 • ·,_ },•.•,•1.'._•l·t~-'.' :,.: ~ ' \ ·· ..;·: ~\-· -::.._,:-,_._. ' ! '. • : l :·•: • .. _. ' I::,•.:· ... \.!_1 ;_ .. .. . . ,, , .,.rs______ , '7 am '-:·:.ffi- -- ---~--:.. 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Wednesday 14 - --- ---- ---ai------- .. 9.~ ·.:~ ,;, i--- --- ---- ----+-- - -- - -- --- - -- +- - - ------ - - - -+---- ---- - -----+ - ---- ------ ---1 -1':L'.'° 12 ,Pm 10!> 50!) :,,,-~ r- -------------1--------- ..,..-_i-- ---------t- Hall, Lyssa - EBSA - -- - -- 1-- -- -- ---------1 ------ -- +-- ---- ----1-- 24 1------------ ---- - -- ---j~---------- -- ---4--------- --- -I -1 9/5/2 017 3:59 PM DOL-17-0281-E-000082 .., ,.,. .. . ' •!' • : •.'U ~. : · .\ . '.,.' _'.,,"(' 19 Monday \!ft- . i---- ------------- .;:(::).: t--·,·.,\; --:-- --- ;·..,.. ~.. 20 Tuosday t----------------t--------- :J~½~ i----------------t----------' -\·~oo ' '--- - +------ 21 -----1--- --- Wedne,doy _;_ _____ ---- 22 ----------,f-- +-- -- - ---- Thursd,y ...1i-:;;:...-----..:....:..~------li.:.;:.- - ---- -- ---- +-------- 23 Fridoy _____ .:.:,:::::: ___ ___ _J -- -lf------ -- -- --- ---- ...l - -1--- -- -- - -_J --- -- - _J t ~· . ··:-:·t,_ t- - ---..,,:,·.r . 1000, ~~~·_ ..{;t--'-- -- ------+-------------+--- ------------- -- ---------+------ +-----,.-""""'.,,... --- --- --- --- - -1------- ----< ;L ,. '#~rii1--------------d•y - -- __ -------- 13 Thursd•y 14 -,+.:-::---....:==---+--.....:::~--_j + - - - -,---- ---- --+--- Friday ------ - --_J .. s·oo .;:., · •· ,} ,; ,- -- - - -- -- -----t- !"'. ·,. ' )~000 1100 . !•' :-j· 1------ 1-- ----- 6~ -----------a Reg. Update NS6n•Fishbowl Hauser,Timothy • ESSA f---------- Hall, Lyssa- EBSA - ---+--- .:.• - -------' 1---------------1------ r--- - -- - ---- - -- - - 1--- - - --- -- ------ l- -------- - - - --_J - --- --- ·i2Pm }: 00 - -------------t--- ! it ----- - ----;1- - -------- +- ----- -- -__J - -- --- - ---1-------+---- - 28 ---+--------J 9/5/ 2017 3: 59 PM DOL-17-0281-E-000086 .•.,:·•'• ". 17 .·=~···:•-", ...,L.,._:.T·..,.. Tuesday 18 Monday Thursday 20 Wednesday 19 21 Friday ~--- ,w~~ ',;'(i:_';.: t--- --- ---- -- ----t---------------t----------- ---- +------- --------+----------------1 '1• -.1 . i 1-- -----c:~...• ------l- :; ' • :12iini ; '.,..'i--- -------- ---------- -- +---- --+--- --- ---- - ---- ------ +-- - ---- ---- F========= ---------+- ------- =-----.....J t------- -- ----- ----J - -+- - ------ I ------1 ·. ):1., :" :;·_100 ': -' i----------- - -----i----- t----- ---------- --lf---- -- --- ----- - - ----l~--------- - ------1 "j. ' (! '.,2 .ll°, ·/ ·/,:~1::: 1--------~ 00 ·,:.5 00 \\\ !- ----------- t-----~-- :'-.600, ·• . ,r---------f ---- -----, -+, ---- --+---- --------- --i-- - -- - - -- -+ ------------- -+-------- --+------1-- ------ ---- -----+- ---- ---'---+------ ------ -- -1 -- - --l ....: • ' ... 'I', • . ·~ :7> : .. ,, ·~_ Hall, Lyssa - EBSA 29 9/5/201 7 3:59 PM DOL-17-0281-E-000087 l ·#•_u , .........· • :. · , •• ,. ·-· ·- - • ~ r• 1 ·• ~i~)y/z.4;::. ~~~i·1.;-_:/._··:· ..:_. Jca.t~ I~~)~.~i.,... :.. ~ oi •.. •·- Mond•y 24 i ~00 t- -- -- - - \• Tuesday 25 - . t- -- ....... 26 --- - - ") -. , . .••·.: w ,.,dnesd•y f---,----- -- 27 ----j---- Thursday - Friday 28 - ---4 - ---- - - lOOd_il'f;._ _____ ru_e_ld_a_v______ + _1_9 _____ -4-2:.0:.____ ,_"'-"_'o_•,;. 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Update N5077-Fishbowl - -!'1 Hau:sc1: Timothy - EBSA , FiduciaryRufe-: Dela: -- = .=-+----- J,1, 00.. fi\-..;,1r -'.i'.4·-' - -- - - - -------"' - ---------- nm'sFishbcWI Tum,r,'/effrey ·• ESSA +- --- - - -- - ---- ;- -- - ------- -- --+ - - -- -- - - - - - -----1- - - -- ----- ·p_l,••.]' RtS~ 1~0~~-h\~ 1--- - - -- - - --- --- ---j--- - -- - - - -- - - --- --j-- -- - - --- - -- --- -1- -- - - - - -- - ----- -+- -- - - - - --- tt~:):• ·i,.·6·" 00' ·t ' -~1. "ML'1; ..: r-- ·Ff'.Z: - - - - --- Connor, Mark - EBSA - ---- -+-- - - -- - - - - - -- - - +-- - --- - -- - --- 7 --+- -------------- -1--- - --- --- -- - - ---l 9/ 5/ 2017 4:01 PM DOL-17-0281-E-000096 .,.:. ' .. rt:J 'r .~ ,_2_o ______ 't'h7 •m Ji\r t-------- --- --- "7l~~~ ( ::i:g,po , • ll I •.> t- ---- ---- :x,,;--:(.-'. ,.2_1 ______ M_o _nd_ 1Y ________ ---- T_uesd __ lff______ - t-- ------------- --- t- ---- -- ·- - -1r2_2 ______ t------- -------- -11-- - -- +z_3 _ _____ w_w _ ne _s_d_• Y______ - ----- - - - -- T _hu _ rs_d_ ay______ - ---j f-- ----------- - -- --j - --- 4 _2_4______ F_,i_d.•;.Y _____ - -..jf----------- ----------- -+- ------ _ -f - ----1 - -- ----- --I ------- 4 9~·1---·in -- ----------+--- - ----------- 1 1 --1 I j'OO ~\1t;~;~.;~ >-----------------< Canceled: Reg.. Update N5677-Fis~ bowl .·;;.·._ ..,,_ ,:;'ltt--- Hauser,Tirriothy • EBSA ···12.pm :,)}:t:1------- - ---- '~: :,3~'!? ! '.:.i~~;.~ 1--- ---' ,...·~ -- --1- ------ - -- ------11--------- ---- - --- - --- -11-------- --- ---+---- - -- - - -- -t- ---- --------- + ------------ -- -------- -+-- - -- ----- - -1 ----- -I - ------1,----------------l, (~~, 'ili'S,og, :"J 1,i~{r·:r i- ------I ti, .,I - ------t------- ~ - -------t------------ - --1- -- ----- --- ----1-------------- -1 ';:'..!. .:.."'l J'6·!!0 ,)~:·,:.1----; - ----- --- --11---------- -- --- -11-- --------------1--------------- -l-- ---------- - - - - -l ; ·..:,_. ..••,~~·. Connor,Mark- EBSA 8 9/5/2017 4:0 1 PM DOL-17-0281-E-000097 ••• r1~' , I·: ...'\.~f , , '.. • ·:•.• Feb~;\y2Q17 "'----- --- ---- --- -+'------------ -- ---4: ·,·c.t:' ·• ~-.;·I'' ... Connor, Mark - EBSA 16 9/5/2017 4:01 PM DOL-17-0281-E-000105 ' ' ,,·.• ,,~' '. • •"' • 4. ; :•, ";" '(I .: 0 (, • •, •• t••~ ~ - •.. ~. • • • • '"l • I •, .., .. " ...~-. : 1, 1•1 I ·:,.. :,, '• •"' ",i~ 0: •:~- •/'•.-, f"• "' .' · : -:· '• •: J .. ,':!J :,Su #o I,~ • ,, 3 2 9 ! 10 H , 30 ,};., ·:S 24 Monday ;~r u.r'!l --\f ~:-i- - ---------- 25 Tutsd•y -- -------- 26 Wodne,doy 27 -- t---- -----..;..-- - - -- t- -- -------------t---- ·, ·U ½~ 23 '·":~~~iJ t----------------t---- 4 : 11 , Thuosd"Y 28 Friday ---.....Jt------ - --;_-----....lf.:::.....-----:.:.::.:.:: ____ __ ~ -- - -- - ------t- ---- -------- - ----,f-- ----------- ---1 ,,<1P."i~"; •·• lg -00 itr t---- ----- - --- -- - t----- - ---------1:"91)0 ··•\ i• ·t-- -------t----_::~j)~}~ ··16J!O , :~;~;~~~ t--- - ---- ---- - --- 1--------- ·!_ --- t------- -- ------t---- t------ - - ------ --t--------- ----t- -- --- - ---¥ ,..._ _____, ., ,;.,·~h. - --- I ----+--- ! ------ -1 ------1 I \~~e.t-- ---- ---- --- --- 1'1 I Connor,Mark - EBSA 17 - -~ 9/5/2017 4:01 PM DOL-17-0281-E-000106 [~~(:r1______ 1-.1_ on_d _a;. y ______ -t2;._ ______r_u_ •sday_ · ...:.. ______ +3~----- -½_;4:._ _____ r..:h.: u.:,:u,: d:;:•Y:._ _____ w_ed ..:..._ ne ..: sd _;,y ...:._ _____ -4,;:5~-----_;F,::rlda;::y:_ _____ _J i~.1 -,,• .. 1·•• '·-~'"1-' t- -------+---------t----=-------+-------~-----~----1 fit~~~ \ ,10 s•~lj .ttt:t i-----------------t-------------} l:/ ,- -------------- - -11------- -i-- ---- ---- ---- ~ - ---- - - - ---- -- t- - --- --- - -- -- -l- ------ ------ --...,1--- - -------- -- ---- - ---- -+- ---------------1 - -- --- _j -- - -- ----~ _-~!~!~;•,.. l ~10~ ·"~f;,,,J------ I,~,-:i It ,d 1 00 t--1~~· ~ ~- ;i;. • -- --- - -------- -- - --- • A NSG 77~fish&b~ - -- ;t4f!.·..... -- - - ---- -- -----1-- l, - ----1 1 H,uwr, Timcahy• IBSA _ ....,. - --------- H--------------- -t ------ - --- - -----+------------ ----1 -----li-- ---- ·,r,1,..·;,. ,~,. ~~:~\":i-----------------1------.r,.th-,1 L~ i.J.~~- ..::~.}f;,i,:. , -----4 .:,• !" ~- -----------' · "'-1-. cxl ,•; j ,...._____ - - ---l'J Reg. l}pd•te ·· I• f--':;;:., ,,,.:+-------- . :1,fpm - - ~ ; ':,fl' - -------- - ----- t- --- - ------ - ---l f-- ---------- - ---- t- ------ - - ---+ - ---- - ---i l- - ---- - - - -------1- ---- -- - - - - -- -- ~ 1 • ,· , -':f l~ i---- - - - --------'' ,:!s 00' ·.;.;·( !t{i-.;~:• i- -------- - t-- --------------1--- -t--- - - -- --- - ---- -j--l--- - ---------- - -------+-----------+------------1- -+--- - ----- - - ---- _j - - - ------_J .,;.~.' t:;''-1.: ;• .~:2 f ~?: . -------- ~\1}(,~:' Connor,Mark • EBSA +------ ---+------ - ---+----------1---------_J 18 9/ 5/2017 4:01 PM DOL-17-0281-E-000107 txJ: ,_8 ______ ..,._9 ______ M_ o n_ d_•_Y ______ r_u_•_•d_•_Y ______ ..,.1_ o______ w_ed_no_,_d_ .._v_____ __.t-l_l ______ 1n_u_r_sd_•;_Y_ __ ___ +l.:.. 2._______Fr_ld_a:._y _ _____ -l f.,..J.:Ji ;:;-~ ~ 2P~ t;~~::;. 1---------------.-llJ.i ~•.t t--- - - - ------ - - - -t- - - -- ------- - ---t---- --- ---- - - ---f- - - - ------- - ----J l '\'.fl":l ,: t"\3 qo ~;{ 1-------l ,1 400 -fJ\,:1,·~'.'~ 1------ ;f~:.· oo , --- - - ---1------ ----- -- ----- - --t- - --------- - - - --it-- - ------ --- t-- ---- - -------;1------- ------ -- - --- -----1 - -- t---- - - - --- --- --- - - ----------~ - --~ t-----------------l 'j-1 ·.-i· i;: ir. -~' r:~i1,o·t 1--- - ------~~1~•;t~~"1 : 1··ftfqo i,, 1,• .; ,i~t---------------- Connor, Mark - EBSA -- --- +-- -------------- 1---------------~t-- t-- -- -- - --------- t--- -- -- -- -- -----1----- 19 ---- -- - ------- ----- ----- --l1-- -- ------- - - f------ ----- - -------- -1 -l 9/5/2017 4:0 1 PM DOL-17-0281-E-000108 ·:.··· \ ·.~~tit•~ l-1s______ M _o_n_d_•Y ______ -Jt-1_6 ______ _,1, 7~m ""~t, ·::-, r - -- - -- -- -- -----r... , .i~\'l' r_"•-•-d-•y-------l -- - -- ------- ...1_1 ______ --1--- w_ e_d_ne_,_d..:...------\-=l:.:8 ay -- - -- -- ----- ______ -t ----- T _h_u_rs_ day .:..______ ------ ,1-:l;.9 _____ _J ....:, F.:.: rid .:.•:::Y ______ -- -- -+- - ----- --------....I ·r_,st-:.s. 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Connor, Mark - EBSA 20 9/ 5/2 017 4:01 PM DOL-17-0281-E-000109 '.ti .. :. ..·,.. \ •.-,·•·. , • 22 ~ Monday 23 Tu.sday -·t------------t-------------;--- 24 i[1~..·t~:.. ·.\,._. ,·. , ..>; Wednesday 25 TI,ursday --- -------t-------...;... _ _ __ 26 Friday -+;;_;_-------=~--- - --1 Cance led: Reg. Updote NS 677 ·fi~ bo\Y l.: •' Hauser,Timothy - ESSA ,) ~.~-' \·,Ptil..11,..,., \,)'. ' --------- ---- 1 -- 1--- - - - ---------- 1--- --- - - ------ --l'------ ----- - -----l------- - --- - - - - -J ;tn~~,~ -} ~:,¥~.1--------'./\.;.';'1~ t;i;r~ -- - - ---1- - - -- ------ - - - - --i1-- ------------- -l ------ - -- - --- -- -l- -- ---------- ---J ·.·-r69P :/l/f:~(1--- ----- ------- - +--------------- - +-- -- --- - -- -- ---- f--- - ·- --- -- -- -----1- - - ---- -- ----- - - -1 IJt:~ 11 :,v,- Connor, Mark - EBSA 21 9/ 5/ 2017 4:01 PM DOL-17-0281-E-000110 I ff~1;1-2 ______ 9 t-3_o ______ 0 M_ _n_d_• r_______ :,1, 7·~ t,,. :··: Jf_;J,~ 1-------- ----- ....,_3_1 ___ r_ue5d __ ay ______ , ___ w_e_d_n_esd _ay ______ ---1_1 ______ r_h_u_ n_d_•Y ____ _ _ -+_2_______ --1----------------,t-----------------,t----------------,1---- F_ri_d•_v______ ---1 - -----------I ·,~,--:•!'.iJ ~!:i\ if~~ f~;t;- 1---- - --- - - ------t-- -- - --------- --, 1---- ---------- - - -j - ----- -- ---- -- --+---------- - ---- -I ·,,·9;00 ?ihtl ::.. 10Dit' :-!*!j.~ f.t-- -- - ----------~1--- ·j~~'j,~'i {ifoo . :ti'f,:'.:.~ t--- ,·f.:'.'f./. 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Connor, Mark • EBSA 24 9/ 5/ 2017 4:01 PM DOL-17-0281-E-000113 ~!}l}; 1-1_9 ______M_o_nd_•Y'---------t-2_o ______ Connor,Mark - ESSA r_u_e,_d_•Y ______ -'t-2_1 ______ w_c_d_n_•s_ d... •y;_ _____ 25 +2...2______ r_hu_,_,d_•... Y______ +2::3:________ F,__ id__ •;.Y ______ -I 9/5/2017 4:01 PM DOL-17-0281-E-000114 ;\.\ '. 26 Monday :ri:~'.~,; 1------- 27 Tuesday Wednesday 28 Thursday 29 -------+---------------t---------------+-------...;..------+-------..:.... r.,~-4·· ·; ;.. ·t~afl\ ·ri·~·--\i.1--- -------------t----- --- 't,? ~~~-'.~ ,ffe. sP '.\!t~f t- ------- ---- - ---,c----- - -- - --- -- - --f------- 30 -- -- - ----+- - ---- Friday ---- ------ ---I - - ---I 0 - ----- - - 1--- - - - ---- - - -- - --j--- - -- - - -- - ---- --f-- - -------------+----- ---- r------- - ----- --I '11 !f':~--------------t-----------------+ I 1 ------------ :i" l ,o,P ·'t$.•1 1------------------it:1:;~;;r,;~,:,M , : ,;,...~~l·.,._ - - - -- ~t1•00- ·j.. 1-------------- - -----+-----------t - - - -- -'--- ---+--------- -- ---, i . :.~~~tr -~ 1---I';;~-- - -t----+--- ------ ~ ~}:j!.i : ;,.~3"~ {)~- -- - ---- --- -- --+--------- HauSK.Timothy- EOSA ••; l!~fll' ;If., "f- --·..;~~~~~-~ • - --- --- - - - -- -+- -- ----- ---1------ -- ----- -- -1 - - ----+------ - - - - -- -- - - - --+ - -------- ----1 -- -- -l I - --- - -------1- ---- ----- - ------, c------- - -- - -- - ---j----- ----- ----- -+-- - ---- -- - -- -----1 ·-:,;,: .1·i4;P0· ~Air;; .i~K~ •;~)Ytt1-- --·?A'Q, io' 1--------tffiltft~· ?.: n(>O t~f!:t, ;·1------ --- -t- -- ---;------------- ------- ------ ;•ti f,:y.:) -- -- --- Thursday 6 - -- - i------------- -+-----+----- --- Friday -- ------- ---- -- --- --- -+- -- ------- 00 ·~~\~:~.~ l,i..• - ---- ------- ~~it.1;, Wednesday Tu~'{, . ?•,3~ 0 .fi:l~, i ,:,i- ---- t1 "· - --- 1'1"~> - -- ---t------ -----------1 1-- --- - --- - ---+- -- - ----- - -- -+--------- - -- --l -;~,,i.Wi :i-¼': A°~ ;-~ a,:"~ 1- --- ·:qp•·{,p - ----- -- ----'-- t---- ----- ------ t- ------ - -- -- -- -t- --- - --------- - t----- -- --- ---- - -- ----- -l ·hi,~~•lt,; ·trs·r ·~•\1f'."1; 1-- - -- -------- -- -1- -- --- ----------ii-- - --- - -------- -i -- ----- -f-- -- -- - ------t -- ----- -J :n~t..fJ,.~ tl~6.-21> , ,!f •~~~?-\l,! 1-- ------------,C';'n,~" ."J I -jf---- ------ --- -- -j ----------- -- -- --- ------ -- -f----- ---- -- - -- - -J ~~Jf;', Connor,Mark- EBSA 29 9/ 5/ 20 17 4:0 1 PM DOL-17-0281-E-000118 ··,f:1 '-'' 24 Monday 25 ---- -- --1---- Tuesday 26 Wadnesday 27 Thursday 28 i~~~i· l------,----------~1-----------------1---------------;----------------+----------------l Frid.iy ·.•·•fim },~._{,.'· ,., ,~:i['l- --- ---- ---- -- - - ----lf------ - - - ------ -+-- - - -- ---- - ---- -+--- -- - - --- -- -----l ~ .,,.:/:r ,;j, ii~ -~~~:,.. 1---------------- 1------ 1~t ·;~1 .;,,900 -r1t· .. , .1~·'. :~!;? 1------ -------- --,r-- -- - -- - - - --+ -- ----------- ----- ---+- -- - - - - - --1- -- - ------ ----- -- ------- -- - ---+---------- ---- -+--------------- -t---- --l - - -- ---------l ! ·,.. :-,1oOQ ' ' ·!,,. :f.'(.·.! 1--- -- -- -- .i: :._~·!. ~ ,,~ 1-I'~~%{ 1--- -- --- j~f -------1-- --- - ------ -- - -- --- led: R~ . Update -- - - --1 Cann N5677·Fl•~~-wl Hauser,limothy ~ ESSA ,:1-2Pin ,.~lfi• 'tL~ r----- - - - -- r -------- -, . ••••• • '211°~!' ·:f:.). ,: ~-100- ~:{,·•· jl· ,r,rft,.•.1---------- ---- +-- - -- ------ - -- +- - - --- - - - -- -- -+--- -- -- - --- - - -+------ - ---- -- -l 'i~~~;j\;t';). ' ~)_!3IQ\l v . '.'~-t..1_ 1--- -----r ,.-~. -r ..~ -- -- - --r- -- - ----- -------1- -------- - - - -- - -t- - -- - -------- -- -t--- --- ---- -- - ----l ~f,:·;,J .~;:t sJli ,'.-.~./~~t'!; t-- -- ------------r--- ·:,ii~>J :;i;6,~: - ---- ·t, ...,~t----- - - ------+ - --- ------ - --- ------f- ----- - -- - -----, r-- ----- -- - -- -+----- ---- ---- -1f---- - -- --- - - - -t----------- ----------- - - - - -+- - - -- -- -- -- - --- ---11--- - - --- --- - --+----- -- -+- -- - ---- - ------ -t-- - ---- - ------- --- -1 -l - - - - -l ~"'ft-~ ... t:.!·. Connor,Mark • EBSA 30 9/5/2017 4:01 PM DOL-17-0281-E-000119 . •. . 31 Tuesday Monday Wedne,day 2 Thunday Friday 4 !i !~!!1>0 1:~ /' J.t--- --- ------ ----+-- -- ------------ 1---- ' I ------- -----,f-- ------ --- - ------l ------- ------- --l :r~~;).; 1.· /..t l4 ~l ·l~~ ;,1-- ---------+----------;--;~ j:~:L -- -------j--- '-+-- ----------+------------+------------ Connor, Mark - EBSA -- - - - ---+----- ---1----- --------l-- 31 -- -- ------ -- --1 ---...l 9/5/2017-4:01 PM DOL-17-0281-E-000120 ) (.~.,~ lt:t t----------------t------- -- ------ -1-- - - - - - - - - - ------1------ - -------- -l---------- -- -----l I I C~n~ele~;.R•g. Upda~e N56TT-flshbowl . .t Haus•r, Timothy· EOSA l:~_ t:'~ 1 ..,;i:;;,,1; t- --------------' ?Z·t.. ' t-- ------- - -----· i!tt-----------t-- -- - -- --1~-------- ! I ,___ - ---- - ---1---- - ----- --t - -- - -- -t - ---------------+----------------l --·- -- !.__ __ I _ .. f.'~" oq. ,11,.!!. :;:~J.~•,r i--- -- ----- -- - ---1---- - -----------1r--------------- -t -------------- - -+----------------1 ·.·k"';.~~i , •:.t• 400 · )l;;.~~ :i------------- - ---11------------- - - -1--- ------------ -t ------ - ---------+ - --- - ----- - -- ----1 ·:,.6·~ :i ~i:, Connor,Mark - EBSA 32 9/5/2017 4 :01 PM DOL-17-0281-E-000121 ------ !January 16, 2017 I ~anuary 20, 2017 r •• t..l ,,, ·' 11 Ii~---- ---- ___ ·"" ~'I I , 1; '" ~.. b r, t ; ... •· ' H • [u I I ·, --, 7 '. r 8" I 9~ - ----- r-' ! • t II 12 • 1 s ") 6 ~ F•.J•.:I I , I Jv;,:t)l1 · •-- :B5A DOL-17-0281-E-000122 January 23, 2017 January 27, 2017 Z3 ~.,\io 1 2 k I'. 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I __ __.~ f ,-, ... • :o · .. ·-1 LI 6 .. i I __ _ _ Pacer an,, lns1cnh FRSI\ DOL-17-0281-E-000135 Apt :017 April 24, 20 17 April 28, 2017 iu --- r... \'h: Th. \1,y 2:1, r, s., s... l I7 it " .:•, 3( -~ , ,,.,.~J ,, -- - , - .- 1 9 l• . ]J )( 3 IC - ____ _ • . L~ 1•~ -- - :~ 17 1.: .II 2~ r, s. ; 11 l~ ( l, 2· . ~, ·_ ·_=+ ____ --- ~ I I 8 '7 - "h 4 :I Vlt r.l,.:, ' n ;?; l·' ,, 2! 10 2S 7 a,... t.lc, - - · -- - .. - -i.. - - =-=--- - ~-!- ---~_.! .I. - --- ti .. i' -~-l I ~I. t\t,uJUntJ>U l C1l11,1n11.,.t --,. JP(_,.,•'!-~I U I "' w~ "1 • · f'J(",. .~ , ..... .. , .. ' I - -~ i 1-- · II a ,-I' dcen:1111, Ju~o:µli· EOSA 9/,il U!7 •l:O/ P'I DOL-17-0281-E-000136 ,, May ·01, 2017 May OS,·2017 7 !4 n 28 3 'h<:o.. •~•~''t •I M,> ·u I 2 ~ ? 11 ,, ~9 v..,y20 1 / w, lh !6 B JO 3 10 II ,. 4 ta ,.; ~s 31 fl 1111~1:. ,~ •• s l2 1.9 ?6 ~6 ll ;o JI .I.r e IOI/ --Su ~ 11 11 l, "-1.; ' 1: 1~ 2b -'" 6 H 20 n s /;e '"I -2--J " e 7 ll ll ,, d !~ ll 9 lb B s, 10 ii l~ JJ ,,.JJ, 7 ""' If Hotg. Up JJ tc.M'i•>"7 ;l\h \·~.•I t \,1,..,· ,·. - .. ,..,.fl~lfl'u• .· 'i -! ,,, Bi~1•+lilyM~~1ing on Co~fhct ,, fntcn'!Jt i1t9 :::,f1I ,,,ti -, , •• { ' \ l •!tt ' •1 _____ !;l {Cl ..._.1. __ /'--' •~I- ·•·.._t •I ! Jif•ct11·1t,11 l.111, _ '•' , c ,1 .-.iu , :.1.. n r ..u \' tU_.,; I .I- ,. 4 '" --1 5 ·"l _________________ _ ,_ ..,__ P dLert 1'l1, losep•, · LBSA 1!.l DOL-17-0281-E-000137 1 1.-1.,~ • ~OJ: May 08, 2017 May 12, 2017 1J !1 !============== ==== J,, 9 s 1.IJ ===========--==-" 71.e.J , ·1 J~~- 1 L 1, l.' .N 1 Wre .1 J ,r ;o~ / ~h Fr :-i i~ ii: l 1 2S ]{" ]. S1.. 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' -1:( DOL-17-0281-E-000149 fl('., July 3.1, 2017 August 04, 2017 ll Su j .t 1:, .. ~ l l'.t 31 4 :l l~ 7 lA LI !t 1 ,, .,_ --~ ·•, .; ,. h ,· " '·" , 1.- • ' .:') A•J!JJ)t 201/ l lJ W'!: 1,-. fr l:IC'l l u 0 !S lJ " .!tl .(~I 2 ,21 ,j • l•I l, .!l .!8 l.!. ,, IC• I; ~-I jJ ,, 4 :1 :s 2': ,L 1---4--- -- --- --------------------7 J:ll 8 Cil ,,• I i,?rllh ; I iol •• 1,.; , .,,, • ~I• (' ,II ~ - -¥------- - -: 1..uu 1·11 , 1J.-lil ~• vi ) , t r . ~! I· ' 12 pr• I· 1 , j ' Gl v lJ-:l '.ih t...1t ___ ~ I ~, •ntr ..i~J.: \..1h, c- c.;.•:A \' , ~LfJ, .-1Con:#•r- r c..-I' "" . _ .; __ ,- . :r.: -~ -- --- - ---- Piaccnll1 ,, Joseµh E13S/\ Jl 9/5/2 01 7 -1:07 Pt·' DOL-17-0281-E-000150 Aly ..;st 2\) 17 Aug ·ust 07, 2017 August 11, io11 ..,,,,i,.:: ..., SJ f.1n u• ,.1• :.'O I 27 T,,.: .J Jy :~•,.· ·•r.-\.1.,v 9 10 1 ~ I, We "h I 2 lS !l ir, 3 10 17 12 13 1• • ~b ,9 w Sc-r,,~ ,...,tcr 7U!7 r, s.. 4 s 18 ll l? JC. n ZS :o r. ~ • ) :1 J: J! ,.....,~~~-, 1~ I> 25 'ih • s !l l! 10 '/Jt ll ;6 ;, l 7 L.\ 20 l l i' 28 8 IS u ;9 s, ! ' !-i 23 31 , ...r,Jy 11 7 >m r-- I --1 12 .,, 1 )Q -----' .ti ,- -· O,wu·J1fy"-"~~·ttng onC: n 1iiu >i lnt,_,,,.d ~ "9 -, • • .• -~11 1 1 ..... i ~t ' f - :.; " '""l "l- • :t 'j '.'.I I• -1 _/ -/ i L. It P1JCCllll", l, J/J~eJ I E65\ 3· DOL-17-0281-E-000151 U.S. Department of Labor Office of the Solicitor Washington , D.C. 20210 SEP14 201 8 Austin R. Evers American Oversight 1030 15th Street, NW , Suite B255 Washington , DC 20005 Dear Mr. Evers: This correspondence is in further response to your Freedom oflnformation Act (FOIA) request dated July 21, 2017 (tracking number 836892) wherein you requested : 1. All calendar entries for any meetings pertaining to the development, implementation, consideration , evaluation, reconsideration, or re-evaluation of the "Fiduciary Rule" or "Conflict of Interest Rule," 29 C.F.R. § 2510.3-21. For calendar entries created in Outlook or similar programs, the documents should be produced in "memo" form to include all invitees , any notes, and all attachments. Please do not limit your search to Outlook calendars-- we request the production of any calendar--pape r or electronic , whether on government-issued or personal device- -used to track or coordinate how these individuals allocate their time on agency businesses . 2. All meeting agendas and list of attendees for any meetings held pertaining to the development, implementation , consideration , evaluation, reconsid eration, or reevaluation of the Conflict of Interest Rule. 3. All lists of attendees for any meetings held pertaining to the development , implementation, consideration , evaluation , recon sideration , or re-evaluation of the Conflict of Interest Rule. 4. Any materials distributed by DOL or provided by non-DOL attendees at any meetings attended by persons not employed by the executive branch and held pertaining to the development , implementation , consideration , evaluation , reconsideration , or reevaluation of the Conflict of Interest Rule . 5. All e-mails reflecting request s for meetings with non-DOL parties to discuss the development , implementation, consideration , evaluation, reconsideration , or reevaluation of the Conflict of Interest Rule. 6. Copies of all c01Tespondencepertaining to the development, implement ation, consideration, evaluation, reconsideration , or re-evaluation of the Conflict of Interest Rule. This includes any official correspondence to or from DOL, including correspondence to or from other federal agencie s, as well as correspondence with or by any non-governmental person or entity. By email of August 31, 2017, you clarified item number 6, indicating that Americ an Oversight would welcome the opportunity to review a log of correspondence and identify specific entries that would be of interest to the organization. We provid ed you with that log along with our letter of May 1, 2018. /\M RIC N PVERSIGHT As you know, your request has been assigned to multiple DOL agency components for processing. In accordance with our FOIA regulations published at 29 C.F.R . § 70.20, when it is determined that records responsive to a request may be located in multiple components of the Department, the Office of Information Services (OIS), within the Office of the Solicitor, may coordinate a Departmental response. In this instance, my staff in OIS continues to work with the assigned agency components to process records deemed responsive to your request. This response contains the monthly release ofresponsive records from the Plan Benefits Security Division of the Office of the Solicitor , in accordance with the Joint Status Report (JSR) filed on July 11, 2018. As reflected in the JSR, the Department of Labor agreed to provide monthly releases of EBSA records and to process SO L's records in a specific order. Regarding the Office of the Solicitor's records, this response provides the second release of responsive records from the tranche. Consistent with the schedule from the JSR, the referenced agency components located 134 pages of records for this response. We are releasing them in the following manner: • • 8 pages are being released in full; and 126 pages have been redacted in part pursuant to 5 U.S.C. § 522 (b) (6), which permits the withholding of personnel , medical and similar files when disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Please note that additional responsive documents will be provided to you on a rolling basis . Questions regarding this response can be addressed to Sharon Hudson, SOL FOIA Coordinator, by phone at 202-693-5406 or by email at hudson.sharon@dol.gov . If you need any further assistance or would like to discuss any aspect of your request, please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks, at 202-693-5427 or by email at hicks.thomas@dol.gov . Alternatively, you may contact the Office of Government Information Services (OGIS) to inquire about the mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration , 8601 Adelphi Road, College Park , MD 20740-6001. You can also reach that office by email at ogis@nara .gov, by phone at 202-741-5770, by fax at 202-741-5769 , or by calling toll-free at 1877-684-6448. Although this matter is currently in litigation , you retain the right to file an administrative appeal. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the grounds for the appeal , and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal , please include your mailing address and daytime telephone numbe r, as well as a copy of the initial request and copy of this letter. The envelope and appeal letter should be clearly marked "Freedom of Infonnation Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. The appeal should be addressed to the Solicitor /\M RIC N PVERSIGHT of Labor , Division of Management and Administrative Legal Services, U.S. Department of Labor, 200 Constitution Avenue , N.W. , Room N-2428, Washington, D.C. 20210. Appeals may also be submitted via email at foiaappeal@dol.gov . FOIA appeals submitted to any other email address will not be accepted. Deputy Solicitor for National Operations Enclosures /\M RIC N PVERSIGHT From: Kate McBride Geale, Nicholas C. - SOL 9/5/201711 :37:21 AM Fwd: Meeting request w ith Secretary Acosta To: Sent: Subject: Dear Nick, I am writing becau se our reque st for a meeting with Secreta1y Acosta (belo w ), sent to Janell e Gardne r, was return ed. I understand that wa s becau se she ' s no longer with th e Departm ent. Would yo u please let me know to whom we should make our reque st? Thank you, Kate McBride Ka1hlc<11Id hk Flm k .. -1117 .\ 1 • Etlitt11. I L:;(10 Fklui:1ar~ Stamlan l :-:un t:~ .-\,.;..: 1t.:ditctl lu,1.::-.fm1..:n l Fklu..:rn) .\ u al~:-:t" 1l•FI'.\ .\11a~ xl It \: uh '-' for i"1th11.L 11) 11~1..clk.-11 ....c I W\\W .c c fo x . flr!! ('nw ai h 1g I \\'c \s ses s RI.\ Fi, l\l :-4. Fid11..: 1i1 r y P1iX1-""~ s tn r 1 'Ef,'FX ( \: 1tih:: 1it1111 l fid111.i·1n l',11h.l (l ' L...........•...•.•.....•.............Ex (6) .•.• .• .•.• .• .•.•.•.•.•.•.• .• ...• .. .•.J www .Fitlul.!~1n ·Pa th.\!om l' a:-.1t 'h;1i1 Tlk: (',, uu rnlk·<.· l u 1 lh,.· Fi,.lu..::b1;- ~t 11klan l I ww w.thcf11.l11..::i.1n 1-: lamford.nr!!, · :;. Be gin forwarded message : From: Kate McBride Subject: Re: Meeting request with Secretary Acosta Date: August 31, 2017 at 3:40:41 PM EDT . To: "Gardner , Janelle A- OSEC" . - - -~~---- -Cc: Ron Rhoades , Patti Houlihan - Dear M s Gardn er, We und erstand that Secreta1y Acosta will be mee ting next wee k with represe ntatives of compani es that oppose the DOL Fidu ciary Rule . We hope the Sec reta ry will also mee t with organiza tions that supp ort the Fidu cia1y Rul e . I hereby request such a mee ting at the Secreta1y ' s ea rliest availabili ty . The Conunittee for the Fidu ciary Standar d (www. thefidu cia1ys tandard.oru) has an all-volunte er stee ring gro up of fiduciar y practition ers (RIA owners and fiduciary ex perts). and a broad er communit y of l,1 60 advisors who are fiduciarie s. We advoc at e that all perso11.ali zed finan cial and investment advice to investors be rende red as fidu ciary advice. \J PVERSIGHT DOL-17-0281-F-000001 EAO0000850 We would like to hear what Secreta1y Acosta is thinking and offer our ex pe1tise on the fiduciary standard in practic e, which may be ve1y different from what he hears from the financial services and insurance industt y . We would appreciate the opportunity to meet at the Secretary ' s first availabilit y. Jfyou should need to reach me. please call 732-241-4988. Sincerely . Kate McBride l,,11hk e11 hi hkH , i,I..:..\IF .\ "· Ftlilor li36HFklui:~,n Sl;rntlard Sun:t:~ .-\ t:~n.·diktl lun:i-hn...: nl Fkh1c~11T \ 11 .ahs l •:•· ('l!FE\ .-\na h :,:I I (.\: nl l t' trn F ,L.lu1.:~ll). cx~cl:n...:c:I \\ \\ \\ ...:C'f t:X..l\ f!.! 1 \1n:-: 11hiugI \\'..: \N :-:1.:;-1:-1 IU.\ Finn.,: Fitl111 .:1:11~ Jlr111. :1.::-i :-tt11r, 'FFI·.\ 1\: 1lih,.:.il1n11 ww w .Fhlui.:i:irrPnOt.t.: om P;1i-i 1 'h:1i1 ·1h•.:,.\111mullc..:-1111 1h1..· l-'khtci.11~· St;111tl anl I www. 1hdll 11 ~ian~t:rnda nl.or!! On Ma y 25, 2017 , at I :56 PM , Gardner , Janelle A - OSEC wrote : Good afternoon Ms. McBride- We will be in touch. Thanks! A f IC N PVERSIGHT DOL-17-0281-F-000002 EAO0000850 JanelleGardner Director of Scheduling •·• -•11·1 • .• or From:Kate McBride[mailto:kmcbride@fiduciaiypath.com] Sent : Wednesday, May 24, 2017 5:16 PM To: Gardner,JanelleA - OSEC Cc: RonRhoades;Patti Houlihan Subject: Meeting requestwith SecretaryAcosta Dear Ms. Gardner , On behalf of The Com mittee for the Fiduciar y Standard 1 hereby request a meeting with Secreta 1y Acosta. We we re pleased to see that Secretaiy Acosta uph eld the law with regard to the Fiduc iary Rule and its June 9 applicability date , even as he reviews the Rule. The Committee for the Fiducia1y Standard (www .thefiduciarvstandarcl .org) includes an all-volunteer steerin g group of fiducia1y practitioners (RIA owners and fiduciary experts). and a broader community of L.160 advisors who are fiduciaries. We advocate that all personalized financial and investment advice to investors be rendered as fiduciar y advice . We would like t o hear what Secretary Acosta is thinking and offer our expertise on the fiduciary standa rd in practice , which may be ve1y different from what he hear s from the financial services and insurance indust ry. We wou ld appreciate the oppo 1tunity to meet at the Secretar y's first availability . If yo u shou ld need to reach me. please ca ll 732-241-4988 . Sincerel y, k. ,thk cu H ~kllrn k . \I F\,. E,tit111f"L\(10 r ~li1..;i:1n St;1utl:ird Snrn:~ t \ ..:..: rc(lilL'LIlm c..11n~11cPklui:i.: 11 ~ \ n.il.\st "· 'EFE\ .-\naly"N i I ( \::utrt: tor J•'id11 ·- ~1ry l!x...:-(. ·lkn~·artment.ofJ-,abor i Ex (6) i L·-•-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-•-•-·-•-·-•.,, r ·-·-·••••••••-•••·••··•··- ·-·-·-·-•-•••··• ·-•-···- ·-·-·-·-·-·-·-·-·•·-1 Ex (6) From: AronSzapiro [nu1i1to:i 1·· Sent: Tuesday. August U1. 2017 T0 5.PM················································Tu: Gardner. J:melle A · OSEC Cc: McDanie l. Keshia· OSEC: Anna Nordseth: Hauser. Timot11y- EBSA Subject: Re: Meeting wit11Secrc1ary Acosla Hi Janelle and 1'.eshia. Thanks so much for follmYing up. Ho\\· would L 2. or 3 pm ,York on Aus11.1 st 23? My colleague Anna Nordsdh had separately been in touch ,yith Tim Hauser at EBSA. and he thought that date might ,rnrk for Secretary Acosta. 1'.unalis based in Chicago. but he is happy to make the trip. If the 23rd doesn't work. kt me kno,Ysome times that do. and rll check ,YithKuna! and ,Ye'II make it ,York. Feel free to email or call me t ... ....... .. ..... ........ ...... Ex..(6}___··· ·········································.J Thanks again. Aron Get Outlook for Android From: Gardner. Janelle A - OSEC Sent: Tuesday, August l. 12:44 PM Subject: Meeting ,YithSecretary Acosta To: Aron Szapiro Cc: McDaniel. Keshia - OSEC Good afternoon Aron! ju st left you a voicemail. Following up on the recent meeting request on behalf of your CEO. Mr. Kapoor. to meet ,Yith Secretary Acosta to discuss the fiduciary rule. Is Mr. Kapoor locally based? We do have some times available for next ,yeek OR we can look at later in August OR September. Please advise. Thank you. Janelle Gardner Director of Scheduling U.S. Department of Labor [........... ..Ex..(.6)....... . ....... ....'. /\ f IC N PVERSIGHT DOL-17-0281-F-000006 EAO0001208 From: To: CC: Sent: Subject: Gardner, Janelle A - OSEC Aron Szapiro McDaniel, Keshia - OSEC; Anna Nordseth; Hauser, Timothy - ESSA; Geale, Nicholas C. - SOL 8/2/2017 5:05:33 PM RE: Meeting with Secretary Acosta Sounds good- we are holding on his calendar for now and let us know when we can confirm. When available- please send finalized list of attendees w / titles on your end. Keshia- cc'd here- will provide you with building instructions. Thanks! JanelleGardner Directorof Scheduling U.S.Department of Labor I~---·-·-·-·Ex (6)·-·-·-·-·-·-·-·-·-·-·-·-·I· ·-·-·-·-········-·-·-·-·-·-·-·-·/\ f IC N PVERSIGHT DOL-17-0281-F-000007 EAO0001213 ,-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-··-·-·-·-·-·-·--·-·-·-·-·-· -·-·-·-·-·. Ex (6) Fr~~ i -A;~-ns z;pi~o [~;il -t;J 1- ·-------·· --- ---·· ---- ---·-·-·- ----- --- -~--- .. - Sent: Wednesday, August o:,t;~"2UIT3:"S6 ..Pfvr--·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·To: Gardner, Janelle A - 0SEC Cc: McDaniel, Keshia - 0SEC; Anna Nordseth; Hauser, Timothy - EBSA;Geale, Nicholas C. - SOL Subject: RE: Meeting with Secretary Acosta That looks good on his schedule. We've blocked it out and can tentati vely confirm . Mr. Kapoor is overseas right now , and given the time difference , I'd expect to be able to move from tentati vely confirmed to definitely by tomorrow AM . Thanks, Aron Get Outlook for Android -----------.....;' From: Gardner , Janelle A - OSEC Sent: Wednesday , August 2, 2017 ~ ' ..- -------------- -- Ex·-·-·-·-· (-·-6) 2:·3-a·:-2"9-PM-·-·-··-·-··-·-·-·-·-·-·-··-·-·-' To: Aron Szapiro Cc: McDaniel, Keshia - OSEC ; Anna Nordseth; Hauser , Timothy - ESSA ; Geale , Nicholas C. - SOL Subject: RE: Meeting with Secretary Acosta Aron- The Secretary w ill n ot be in DC on August 23rd. He is available to meet on Thur sday August 31s t at 1:30pm- do you think that wo uld work for Mr. Kapo or? JanelleGardner Directorof Scheduling PVERSIGHT DOL-17-0281-F-000008 EAO0001213 U.S.Department of Labor L·-·-·-·-· -·--·-Ex__ (6) ·-·-·-·-· -·-·-·--' ,·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·..................................... ... Ex (6) ! Fr~m: Aron Szapiro[mailt~ :1 Sent: Tuesday, August 01, 20ITZ:U5-PM'·-·-·-·-··-·-·-·-· -·-·-·-·-· -·-··--·-·To: Gardner, Janelle A - OSEC Cc: McDaniel,Keshia- OSEC;Anna Nordseth;Hauser, Timothy - EBSA Subject: Re: Meeting with SecretaryAcosta Hi Janelle and Keshia, Thanks so much for following up. How would 1, 2, or 3 pm work on August 23? My colleague A nna Nordseth had separately been in touch with Tim Hauser at EBSA , and he thought that date might work for Secretary Acosta . Kunal is based in Chicago , but he is happy to make the trip. If the 23rd doesn't work , let me know some times that do, and I'll check with Kuna! and we'll make it work . .I ----------·-----·-·---------·-·-·-·----·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··---·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-,; Feel free to emai l or call me a, Thanks again , Ex {6) 1 L.-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-··-·-·-··-·-·-·-·-·-·-·-·-··-·-- · ' Aron Get Outlook for Android From: Gardner , Janelle A - OS EC Sent: Tuesday , August 1, 12:44 PM Subject: Meeting with Secretary Acosta To: Aron Szapiro Cc: McDaniel , Keshia - OSEC Good afternoon A ronI just left yo u a voicemail. Following up o n the recent meeting request on behalf of you r CEO , Mr . Kapoor , to meet with Secretary Acosta to discuss the fiduciary rule. Is Mr. Kapoor locally based? W e do have some times available for next week OR we can look at later in A ugust OR September. Please advise . Thank yo u, Janelle Gardner Director of Scheduling ~·-·U.S ..Department of _Labor i Ex (6) L .... .. ...... ,_ .. ,_ , .,,.,,., , .,,.,,.,,., ............ , ... .. , .. ,.,,., ,.,,.,,.,,., f IC N PVERSIGHT i ,,..J DOL-17-0281-F-000009 EAO0001213 From: Aron Szapiro Gardner, Janelle A - OSEC McDaniel, Keshia - OSEC; Anna Nordseth; Hauser, Timothy - EBSA ; Geale, Nicholas C. - SOL 8/2/2017 3:55:37 PM RE: Meeting with Secretary Acosta To: CC: Sent: Subject: That looks good on his schedule. We've blocked it out and can tentatively confirm . Mr. Kapoor is overseas right now, and given the time difference , I'd expect to be able to move from tentatively confirmed to definitely by tomorrow AM . Thanks , Aron Get Outlook for Android -------- - ---- --ii···········-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·,_,- - ---------------- ;Hall. Lyssa - ESSA. ~---~~-l~L-Ex-fsf}§~~~;i;~.~~ion ! -··1 ·- ---- ·-,. J - SOL L...... ... ...... ~~..(~L..............J i i ' Fiduciary rule and streamlineifexempfici"ris········--···················" S-2018 Fri 10/27/20 17 3:00:00 PM Fri 10/27/2017 3:30:00 PM (none) Accepted Hauser , Timothy - ESSA;Canary, Joe - ESSA; Piacentini, Joseph - ESSA;Hall, Lyssa - EBSA;Scott , William - SOL;Jones, Arion J - SOL;Geale. Nicholas C. - SOL Lloyd, Karen - EBSA DOL-17-0281-F-000035 EAO0003801 From: Sent: To: ,---· -·Dorey, _David __ R_-_SOL ~--------------------·-· i·-· -·-·, _____________ Ex (6) _________________________ I'·-·-·-11/ 17/2017-12:01:00 PM·--·-·-·-·-·-·Ex (6) i ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·------------· -·-·-·-·-·-·-· -·--·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-·-·-· -·-·- ---·-·-· -·-· , Wilson, Jeanne - EBSAr ·------- --- ·-·E°x"(6) _________ ________ _! Geale, Nicholas C. - OSEC ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·J···· ······ ·········-·-·-·-·-·-·-·-·--·-·-·-·-·-·-·-·-·-' ......... ..................... ...... ...... ...... ...... ....... ....... Subject: Show Time As: F1duc1aryRule Meeting Free ·-------------------·--·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-··' Recurrence: Required Attendees : (none) Wilson, Jeanne - EBSA;Geale, Nicholas C. - OSEC;Hauser, Timothy - EBSA L,-------,---------------~!CJ~L ___ _ __ ___ __ _________ _JHauser, Timothy - ESSA 4 Ex (6) ! Change to accom modate schedules. A f IC N PVERSIGHT DOL-17-0281-F-000036 EAO0003803 From: _.Dorey ._David .R_-__ SOL .~" """'"'"'"~""'"''""'""'"'"'""""""'"'""""""'"""'""'"' .Ex ,(6)""'"'"'"''""""""""""""""'""""""""'"'"'"' .i·-·-·-·-·-·· i Ex (6) ! l·-·-•••-•-•-·-•-•-••••••••·-·-·-·-·-·-·-•••••••··-·-·-·-·-·-·-·-·-·••-·-••·-·-·•••••••••••·•·-·-·-•-•-••••·•·-••·-·-·-·-·-·-•-·•••·•·••-•-·-·-·-·-••••••••••·-••••·•·-·-·-·-·-·-·-·-·-·-·•·•••·····-···-·-·-·· ··· . Sent: To: Subject: Show Time As: Recurrence: Required Attendees: /\ f IC N PVERSIGHT 11/ 16/2017 4:17:48 PM Wilson, Jeanne - EBSA j Ex (6) !;Geale, Nicholas C. - OSEC c ;;~~ ;~·;.;~;~~~~J~;n~ -=~:·:.:.-:.:.-: .-:J,auser, Timothy - EBSA [_'~--·--·-··-·--·-·~-~j~~---·-·--·-·-·-·--·-_j Free (none) Wilson, Jeanne - EBSA;Geale, Nicholas C. - OSEC;Hauser, Timothy - EBSA DOL-17-0281-F-000037 EAO0003804 From: ,··Love,. Montque. - .EBSA 1........ ..... . . ................. .................. . ........Ex.(6) .......................................................... ..... i ..........., i•-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·Ex (6) : -·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·······-·-·-·-·-·-' Sent: To: 10/27/2017 9:37 :44 AM Canary , Joe - EBSA ! Ex (6) i Piacentini , Joseph - EBSA r-···················-················~········1 0v>·;.Hall,.Lyssa·_· EBs,r··· ··········································1scott, William - SOL : Ex (6) ;Jones, Arion J. SOL Ex (6) i ~Fiduciary rule and streamlined exemptions Free ,J..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,..,...,..,. ........... ,...• ,. ; Hall, Lyssa - EBs{· -·-·-·-·-·-·-·--·-·-·-·-· -·-·-·-·-·-·-·-·-· -·-·'$cott, William - SOL !Jones, Arion J - SOL Geale, Nicholas c. i Ex (6) .' _. f6-l_ ___~---.J: - SOL 'L--·-·-·-·-·-··-·-·-·-·-·-·Ex. (6)·-·-·-·-·-·-·-·-·-·-··-·-·-·1 A Subject: Show Time As: Fiduciary rule and streamlined exemptions Free Recurrence: Required Attendees: (none) Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Scott, William - SOL;Jones, Arion J - SOL;Geale, Nicholas C. - SOL f IC N PVERSIGHT DOL-17-0281-F-000039 EAO0003810 From: Sent: To: rHoffman, .J .Emily .E.-. OSEC .1.................................... ............................Ex(GL.......................................................• !L--·-·-·-·-·-·-·-•-·-·••-•-·•••·-·-·-·-·-·-·-·-·-·•·•·-•••••••••-••••••••••••·•·-·-···-·-·-·•••••••• Ex (6) i •·-·-·-·-·-·-·-·-·-·-·-·•·••••••••••··-·•• •••••·•·••·•··-·-·•··••·•••••••·•·· ·-·-·-·-·-·-·-·-·' 9/2/20171:52 :18 PM RA Acosta ! ····· ·· · ····e·x(Gf····· · --·· ···i zzOSEC-SCHEDULI NG-AND-ADVANcE[::::::::::::::J~]~L: r··-·-·-·-·-·-·-·-·-·-·-'-------------'--'---------•-·-·- :::::::J •·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·--·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·"'1 L.............. .......................~.~J?.L ................. -·--··.J.z.z..~asa m-dp~-agent s j Ex (6) ! Geale, Nicholas C. - SOL~ ·-·-·- Ex (6) ~· Allende-·Pimr•·M ··~·u::,1::c;································- Subject : {:~.~--~--~--~--~--~--~--~ -~Ii:I~f--~ --~--~--~--~--~--~--~~] Conway , Molly E - OSEC C. ............... ~ ..E.~J~L ........ .... .....J Meeting with U.S. Chamber CEOs Show Time As: Free Recurrence: Required Attendees: (none) RA Acosta ;zzOSEC-SCHEDULING-AND·ADVANCE;zzoasam•dpo-agents ;Geale , Nicholas C. SOL;Allende, Pedro M - OSEC ;Conway, Molly E - OSEC Lineberger, Timothy L - OSEC;Davis , Clinton J • OASAM Security Center;Hoffman , Emily E OSEC ;Darling, Kevin E - OASAM Security Center;Pipkins, Charles P - Security Center;Jennings , Alexandra - OASAM Security Center;McDaniel, Keshia - OSEC Optional Attendees : Time: 3 :OOpm- 3 :OO pm Location: Secreta1y's Conference Room Subject: Meeting with CEOs Topic/Issue: Fiduciary Duty Rule Attire: Business Staff: Nick/Pedro Notes/Background : Request came from Tom Quaadman- discussed with RAA at their dinner. POC: Beth Stanaland,! Ex (6) Advance Staff: '···································· ·········· ················ ············· ·' DoL Photographer : i Attendees: Mike Crowl General Co unsel UBS Americas Joe Sweeney President , Advice & Wealth Management Products & Service Delivery Amer iprise Financial Joe Monk Senior Vice President , Financial Services & Preside nt and CEO, State Farm Bank State Farm Barry Stowe Chairman and Chief Executive Officer Jackson National Bob Reynolds President and Chief Executive Officer Putnam Investments Dennis Glass President and Chief Executive Officer Lincoln National Corporation Jim Tricarico ~ hief Legal Officer Edward Jo nes Michael Fanning Head Mass Mutual, US David Hirschmann President and CEO, CCMC U.S. Chamber of Commerc e !Thomas Quaadman Executive Vice President, CCMC U.S Chamber of Commerce Randy Johnson Senior Vice President , LIEB U .S Chamber of Commerce Aliya Wong, Executive Director, U.S. Chamber of Commerce PVERSIGHT DOL-17-0281-F-000040 EAO0003835 From: _,_, _,_,_ExJ6l_,_,_,_,_,_,_,___ ,___ ,_, _,_,_,_,_,_ -·-·-·-··-·-·-·-·-·-··i ,..Hoffman.EmilvE -OS E.. C,_j ·-· -·-·-·-·-·-·-·-·_-·--·-·-·-··--·-··-·- : Ex (6) l , - - • -•--•- Sent: To : •• •• •- - •• •• 1••-•- ••• • ·•• • •• •.. . .. .. . . . .. . . . ... .. . ........... . .. ... . ..... ... . .. ......... ............. !; .. ,.. . .. . .. . . . . . . .. ... ......... ... . .. . ..... ... ... . .. . .. ...... . .... . . .... . . ... .. . .... ,.. ... ... . .. . .. ,............................. ... . .. . .. . .. . .. ) 8/9/201711:06:05 PM E·x-jsf'-·-·-·-·-·-· -·7;zzOSEC-SCHEDULING-AND-ADVANCE 1 Ex (6) RA Acosta r- -·-·--·-·-·-;-·-·-·-·-·-·-·-·-·-·-·-· Ex (6) -·- -·-·-!;zzoasam-dpo-agent s r- ·-·-·-·-·-·-··-·-·-··-"'·WEiwN6NNNNNNN~ .---·-·--·-·-·7 '-Geiife;-N1 cffoiis·c·.-·:·-soLT' "'"'"'"'"'"'"'"'"'"'"' "'ex·iif--·-·---·-·-iA11 ende~·-pecffo M-·:·-osE~J.-·-·-·-·-·-·-·--·-·--·-·-·-·' i ··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-·~---·-·•-·-·-·-·-·-·-·-·-·-·-·-·-·-· )._·_·_·_·_·_· _·_·_·_·_·_·_·. Ex (6) i ~ Subject: HO[D'foTM'eetfn~fwiffi'-CEO-s"' Show Time As: Free Recurrence: Required Attendees: (none) RA Acosta ;zzOSEC-SCHEDULING-AND-ADVANCE;zzoasam-dpo-ag ents;Gea le, Nicholas C. SOL;Allende, Pedro M - OSEC Time : 3:00 pm- 3:00p m Location: Secreta1y's Office Subject: Mee ting with CEOs Topic/Issue : Fiducia1y Duty Rule Attire: Business Staff: Nick/TBD Notes /Background : Per Chamber POC: Beth Stanaland , r-·-·-·-·-··--·-·-·-·-·Ex·-(sf'-·-·-·-·-·-·-··-·-·- -·1 Advance Sta ff: '·--·--·-·-·--·--·-·-·-·-·--·-·-·-·---·-·-··-·-·-·-· -·-·-·-·-·-·" DoL Photographer: Tentative List of Attende es: 1. Tim Armour , Presid ent, and CEO, Cap ital Gro up 1. Jame s Weddle , Ma naging Partner , Ed wa rd Jones 1. Roger Cra ndall, Chairman , Pr eside nt, and CE O, Mass Mutua l 1. Robert McCan n, CEO , UBS 1. Peter Schneid e r, Pre sident P rimerica 1. Jame s Cracc hiolo, Chairman, and Chief Execut ive Officer , Ameripri se 1. Dennis Glass, Pr esiden t and Chief Executive Offic er , Linco ln National Corporati on 1. Robe1t Rey nolds, Pre sident and Chief Exec utive Officer, Putnam Inves tments 1. Barry Stowe, Chairm an, and CEO, Jackso n Nationa l AM f ICAN PVERSIGHT DOL-17-0281-F-000041 EAO0003836 From: ,-·-McDaniel,__ Keshia .-.OSEC _::-:;:-zz=o:;;S:;;; E:;;C-;·S:;;C:;,H-;;:E:.D:;,U" L"IN :;;G:::: .-.A :-:.A;;;D~V~A;;;N-;:;C:;;: E~--~ ,RA.Acostar·.:;.:..::.:..~:...ex_{_&l...'::.===]Zz=o-=-as::-:a:-:m-::-:;dp::-:o:- Subject: Show Time As: Recurrence: Required Attendees: Optional Attendees: l Ex·(6) ; ... Conway, Molly E. '---------- OSEC L.... ....... . Ex (6) ····-·······j Geale, NicholasC. . SOL Meeting with Senator Sherrod Brown (D-OH) Free (none) RA Acosta;zzoasam-dpo•agents;zzOSEC·SCHEDULING-AND-ADVANCE;Conway , Molly E • OSEC;Geale, Nicholas C. · SOL Gardner, Janelle A • OSEC;Pipkins, Charles P • Securtty Center Time : 4: I Spm• 4:45pm Location: 713 Ha11 Subject: Meeting with Senator Sherrod Brown (D·OH ) Topic/Issue: FoUow-up to their phone call on June 8th, RE- OT. Fiduciary. CLAB and Restaurant Associates issues. Attire: Business Staff: Nick/(Molly FYI) Notes/Background: .Norn Todd.will be staffing the Senator. POC: Dianna Browri Advance Staff: '-----··· DoL Photo grapher: Ex (6) ·····················-'-:.......----_.... [maiJtd i From: Todd, Nora (Brown) Ex (6) Sent: Friday, June 09, 2017 11:56 AM· · ·····-······· · ······· ········ ···••·••···-······' To: Conway, Molly E · OSEC Subject: RE: Call with Secretary Acosta Hi Molly- I just wanted to follow up on yeste rday's call with the Secretary and the senator. Senator Brown thought it was a really good call and apprec iated the Secretary taking the time to disc uss all the issues that he raised. As a note for you, in addition to the overtime and fiduciary rules, the senator did raise the !LAB and Restali'ant Associates issues I flagged for you in advance. They also both expressed interest in trying to find time fo r a face .to-face meeting in the future. Since the senator had the oppo rtunity to raise severa l issues on yesterday 's call, I don't know that it is urgent, but the senator is interested in meeting with him whenever he has time. Sincerely, Nora EAO0003847 /\ f IC N PVERSIGHT DOL-17-0281-F-000054 --------From: - - Recurrence: Required Attendees: Attachments: -- --; 1················· ················· ··········· ··········· ··························· ········· ········ ··············································· ················; Ex (6) r··Johnson.Terri L-.SOL~ i Sent: To: Subject: Location: Start: End: Show Time As: -- L .•. Ex {6) i 1....... ........................................... .................. ............ ........................ . ........ .... ....................... ...................1 ,1797zo1r2:·or :·1o·PM.. Geale, ~ic.hol~s C.• SOL.°-~.~}~~.IJ!l~ ..:.§!?.§A.<:i ............... ~ j Geale, Nicholas C. - OSEC 1 Subject: Show Time As: •••• •• ••• .. •.. ••• .. • .. •• •.. •• • • •VNN N~NNi,_ Ex {6) I Ex (6) (6) t··· ·····················~ IF101arFraucrary'"Ru1e·Me ·errn9··· ············ Free (none) Wilson, Jeanne - EBSA;Geale , Nicholas C. - OSEC Hold pending Jeanne 's confirmation of availability. /\M f IC N PVERSIGHT DOL-17-0281-F-000056 EAO0003852 .----·-·-·-··-·-·-·-·······-·-···-·-·-·-······-•-·o,-•-·-·-·····-·-·-·····-·-·-·-·-·········-·-···-·-·-··· ···-·-·····-·-·-·-···-·-·-·····-·-···-···-·-·-1 From: :·--·--··~~~-5-~.~'.-~~ii\-Jy-~~-L-._ ·____ ·_·_· ._.l Ex (6) : "-·-·- ·-·-·-·- ·-- ·-·-·-·- ·-·- ·- ·-······ ··· ............................ t: ..................... ........... ~ ......... .. .. ............. ....................... ......................................................... ........................................................................................... ! Sent : To: 10/23/2017 1:15:56 PM Hauser Timoth - EBSA :Hall, Lyssa - EBSA, ;scott , William - SOL Ex (6) !ones, Arion J - SOL ; goV> °Fiduciary rule and streamlined exemptions Free 1 Subject: Show Time As: ·-E·x ·-·{sy ·-·--·-·--· -·--·-·-·-·-·-·-·-·-·-·-·-·-··--·-·-·-·----· 1 E {6) ; Conway, Molly E - OSEC 1 Ex (6) i Subject: Show Time As: HOLD for Meeting with CEOs/U.S. Chamber Free Recurrence: Required Attendees: (none) RA Acosta;zzOSEC-SCHEDULING-AND-ADVANCE;zzoasam-dpo-agents;Geale , Nicholas C. SOL;Allende, Pedro M - OSEC;Conway, Molly E - OSEC Lineberger, Timothy L - OSEC;Davis, Clinton J - OASAM Security Center;Hoffman, Emily E OSEC;Darling, Kevin E - OASAM Security Center;Pipkins, Charles P - Security Center;Jennings, Alexandra - OASAM Security Center;McDaniel, Keshia - OSEC Optional Attendees: '-----·-·-·-------------·-·-·--·--·-·--·-·-·-·--·-·-·' Time: 3 :OOpm-3 :OOpm Location: Secreta1y's Office Subject: Meeting with CEOs Topic/Iss ue: Fiduciary Dut y Rule Attire: Bu siness Staff: N ick/Pedro Notes/Background: Request came from Tom Quaadrnan- discussed with RAA at their dinner. POC: Beth Stanaland , [ Ex (6) j Advance Sta ff: L-------------··---- ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·--·-·-·-·-· -·-______ , DoL Photographer: Attendees: /\ Mike Crowl General Counsel UBS Americas Joe Sweeney President , Advice & Wealth Management Products & Service Delivery Ameriprise Financial Joe Monk Senior Vice President , Financial Services & President and CEO , State Farm Bank State Farm Barry Stowe Chairman and Chief Exec utive Officer Jackson National Bob Reynolds President and Chief Executive Officer Putnam Investments Dennis Glass President and Chief Executive Officer Lincoln National Corporation Jim Tricarico Chief Legal Officer Edward Jones Mic hael Fanning Head Mass Mutual, US David Hirschmann President and CEO , CCMC U.S. Chamber of Commerce Thomas Quaadman Executive Vice President , CCMC U.S Chamber of Commerce Randy Johnson !Senior Vice President , LIEB U .S Chamber of Co mmerce f IC N PVERSIGHT DOL-17-0281-F-000059 EAO0003884 From: r.M,g~~E~~(6)·Q§ _0-1L-\: --------------------_Ex...(6) ---------.. ____ _____ __ _I Sent: To: Subject: Show Time As: 8/23/2017 1 :59: 19 PM ,·-·-·-·- -·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-- ·-·, ·-·-·-·-·-·-·-·-·-·-···Ex. (6)···················· ··-·-__j Geale , Nicholas C. - SOL .9.~_.5 r--~~E~Y.) __ l?.~-~ •·-·Canceled -·-·-·-· -·-·-· -·-·-·-·-·-·-·-·-·-·-·-· - ·-·-·-·-· -·-·-·-·-·-·· : Fiduciary Rule PCC g , .~--·-·-·-·-·-·-·-·-·-·-·-· Ex-·-·-·-·-·-·(6) ·-·-·--·-·-·-·-·, Start: End: Show Time As: Thu 3/8/2018 4:30:00 PM Thu 3/8/2018 5:30:00 PM Free Recurrence: Meeting Status: (none) Accepted Required Attendees: Optional Attendees: Dorey, David R - SOL ;Geale , Nicholas C. - OSEC ;Rutledge , Preston - EBSA W ilson, Jeanne - EBSA /\M f IC N PVERSIGHT DOL-17-0281-F-000065 EAO0003896 .·-·- ·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·--·-·-·-·-·-·-·- ·-·-- ·-·- ·-·-·-·--·-- ·-·-·-·-·-·-········ ···-·-···-·-·-·-·-·-·-· -·-·-·-···-·-·-·-···-···-·-·······-·········-·-·-·-···-·-·-·-·-·-·-·····-·-·-·-·-·-·-·-·•-·-···-·-·-·-·-·-· '; ! Not Responsive ·-···-···-·····-·-·····-·-·-·······-·-···-···-···-·-···-·-·-···-···-·········-·-·····-·-···-·-·-·-·-·····················-·-·-·-·-···-·····-·-···········-·-·········-·····-·······-···-·················-·········-···········-·-·-·-·-·-·-·-·-·-·-·-···-···-·-·· -----Original Message----From : McDaniel, Keshia - OSEC Sent: Tuesday, October 17, 2017 12:08 PM To: 'Rahn, Steve' Cc: Geale, Nicholas C. - SO L; Beatty , Tammy; Lineberger, Timothy L- OSEC Subject: RE: Lincoln Financial Group CEO Meeting Request Hi Steve, Any materials that you wish to submit before the meeting are welcomed. The meeting will be 30 minutes. When we get closer to the meeting date, please provide the name and title of anyone who will be accompanying Mr. Glass. I have attached the arrival instructions below: 3rd and C Street Entrance Arriva l Instructions The Department of Labor is located at 200 Constitution Ave NW. Please enter through the 3rd and C Street entrance. Upon arriva l please check-in at the security desk and notify the agent on duty that you PVERSIGHT DOL-17-0281-F-000066 EAO0003903 are here for a meeting with Secretary Acosta. lim Lineberger, Special Assistant to the Secretary, will greet and escort you to the location of your meeting. Please contact lim upon your arrival at Ex. (6) j f L•-•-•• • ••••••• ·••• •• ·-• • •• •• •••• ' Please let me know if you need any additional information or assistance. Thanks again, Keshia . ·-·-·-·-··-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-· · ;;~ir~::~.~~=~:1;~~1~) Ex. (6) I L--·-·····-·-·-·-·-·-·--·-·-·-·-·-·-·-·-·-·-·-·· Sent: Tuesday , October 17, 201711:58 AM To: McDaniel, Keshia - OSEC Cc: Geale, Nicholas C. - SOL; Beatty , Tammy Subject: RE: Lincoln Financial Group CEO Meeting Request Keshia, Perhaps one other if agreeable with you. We'll be discussing that internally, and I'll provide you with background on that person along with additional information about Dennis as soon as I know. I'm also copying Tammy Beatty , who is Dennis' assistant. She'll be happy to help with arrangements too. For scheduling purposes, how long should we anticipate this introductory meeting lasting? Also, I assume that as we get closer to the meeting you'll be providing details on any security info we need to provide for access to the office. Let me know if you need anything else right now, and, again, thanks so much for all of your assistance. Best regards , Steve E (6) i i -----Original Message----From: McDaniel , Keshia - OSEC [mailtoL_ __ ___ ______ __________~-~---·--·-----·-·-·--·___i Sent: Tuesday, October 17, 201711:44 AM To: Rahn, Steve Cc: Geale , Nicholas C. - SOL Subject: RE: Lincoln Financial Group CEO Meeting Request Hi Steve, The change is fine. To confirm, I have Mr. Glass scheduled for November 27th at 3pm. Will anyone else be accompanying him to the meeting? Thank you, Keshia -----0 rig inaI Message-- --- ,·- -·-·-·-·-··--·-·-·-····-·-·-·-- -·-·-·-· ··-·, From: Rahn, Steve [mailto:i Ex. (6) Sent: Tuesday, October 17'. 2017 10:57 AM To: McDaniel, Keshia - OSEC Cc: Geale, Nicholas C. - SOL Subject: RE: Lincoln Financial Group CEO Meeting Request ! Oops. Quick change. Turns out now that the November 27th at 3 p.m. would work best. Sorry! -----Original Message----From: Rahn, Steve Sent: Tuesday, October 17, 2017 10:53 AM To: 'McDaniel , Keshia - OSEC' Cc: Geale , Nicholas C. - SOL Subject: RE: Lincoln Financial Group CEO Meeting Request Keshia, All the times suggested would work, although Dennis' preference wou ld be for December 12th at 1:30 p.m. On November 13th, Dennis needs to be in NYC by 4:00 p.m. Thanks again. Let me know what works best for the Secretary . Steve ----- Original Message----- PVER SIGHT DOL-17-0281-F-000067 EAO0003903 i Ex. (6) From: McDaniel, Keshia - OSEC [mailto j Sent: Monday, October 16, 2017 2:40 p'ti,JI"'· ··············... ······················· ·········· ···············" To: Rahn, Steve Cc: Geale, Nicholas C. - SOL Subject: RE: Lincoln Financial Group CEO Meeting Request Hi Steve, The Secretary would like to accept the meeting invitation from Mr. Glass. Please let me know which of the following dates and times will work for him. November November November December 13th at 11:30am 17th at 11:30am 27th at 3:00pm 12th at 1:30pm I would love to lock in this meeting. Respectfully, Keshia McDaniel ...Soe..cJaLAs.s.i~taot...S.c.be.d.ullna ..&..8ct.\lao.c.~~.Qffl c.e..oUb~..S..e.cr.e.tar.v. ........, L.......... . .......................... .. .... .... .... ..~.~..J~)....... .. .... .... ....... ...... ... .... ................ ...µ.s.Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210 -----Original Message••··· r···· ·············· . .................. ...•.•...•.. ........., From: Rahn, Steve [mailto:s.__ .J Sent: Monday , September 25 , 2017 10:55 AM To: McDaniel , Keshia • OSEC Subject: RE: Lincoln Financial Group CEO Meeting Request · ······-···-!.~.:J~L................. I fully understand , and can't even begin to imagine how full his calendar is. Here are some dates that would work for Dennis. Let me know if any of these might work for a short , introductory meeting: Monday , Nov. 6 Monday , Nov. 13 Friday , Nov. 17 Tuesday, Nov. 21 Monday , Nov. 27 Monday, Dec . 4 Monday, Dec. 11 Tuesday, Dec. 12 Wed., Dec. 13 r··········· ··· · · ··· ····························· ····1 ••••• orig inaI Message••·-· From: McDaniel , Keshia. OSEC [mailto :j Sent: Monday, Se pt ember 25, 2017 9: 53'·Fiw1·· ············-···-·-·········· ···············' To: Rahn, Steve Subject: RE: Lincoln Financial Group CEO Meeting Request Ex. (6) i Good Morning Steve, Thank you for reach out. Unfortunately , the Secretary's schedule does not have any openings today. Would you be able to provide dates for your future trips to DC. Thank you for your understanding . Respectfully, Keshia •-···Original Message ••·-· ,.......•................................ ..............., ·····-········ ··j From: Rahn, Steve [mailto:L...... ............~.~.,l6)__ Sent: Monday, September 25, 2017 9:32 AM To: McDaniel , Keshia • OSEC Subject: RE: Lincoln Financial Group CEO Meeting Request PVERSIGHT DOL-17-0281-F-000068 EAO0003903 Hi Keshia -- Just checking in. I have a meeting with Dennis Glass later this morning. Appreciate the consideration. Let me know if there is anything else we can provide. Thanks! Steve -----Original Message----.............................................. .................., From: McDaniel, Keshia - OSEC (mailtoi Sent: Thursday , July 27, 2017 2:32 PM :..............................: ................................) To: Rahn, Steve Subject: RE: Lincoln Financial Group CEO Meeting Request i Ex (6) ***This email is from an external source. Only open links and attachments from a Trusted Sender.*** Steve, Thank you for contacting Secretary Acosta's scheduling office. We are currently reviewing his calendar and will be back in touch with you shortly. Thank you, Keshia McDaniel Special Assistant, Scheduling & Advance, Office of the Secretary i Ex. (6) ___ ' Washington, DC 20210 · ······· !U.S.Department of Labor, 200 Constitution Avenue, NW, ···· -----Original Message----- a················································; From : Rahn, Steve (mailto:L. ......•......Ex. (6) ........... .. i Sent: Thursday , July 27, 2017 2:25 PM To: McDaniel , Keshia - OSEC Subject: Lincoln Financial Group CEO Meeting Request Dear Ms. McDaniel, Our CEO, Dennis Glass, would like to schedule an introductory meeting w ith Secretary Acosta. By way of background, Lincoln Financial Group is a Fortune 250 company w ith a focus on retirement and financial security products and services including life insurance, annuities, retirement plan services, and group protection. Mr. Glass is passionate about the important role our industry plays in helping Americans meet their financial security and retirement needs and has been very active in the discussion of related legislative and regulatory issues. Recently, for example, he participated in a meeting with Vice President Pence arranged by Governor Kempthorne of the American Council of Life Insurers (ACLI). He serves on the ACLI board and is a member of its Executive Com mittee. During that meeting, Mr. Glass led the discussion on the DOL fiduciary rule. He has also participated in numerous briefings with members of Congress, and other Lincoln off icers have previously met with former Secretary Perez in White House listening sessions and in recent Treasury discussions around the regulation of the industry. Mr. Glass wou ld appreciate the opportunity to meet and offer whatever assistance he and Lincoln Financial might be able to contribute to the discussion of current issues. Thank you for your consideration of this request. Please feel free to reach out to me as needed. I have attached Mr. Glass' bio for your information . Notice of Confidentiality: **This E-mail and any of its attachments may contain Lincoln National Corporation proprietary information , which is privileged, confidential, or subject to copyright belonging to the Lincoln National Corporation family of companies. This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail , you are hereby notified that any dissem ination , distribution , copy ing, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error , please notify the sender immed iately and permanently delete the original and any copy of this E-mail and any printout. Thank You.** Notice of Confidentiality: **This E-mail and any of its attachments may contain Lincoln National Corporation proprietary information , which is privileged, confidential , or subject to copyright belonging to the Lincoln National Corporation family of companies . This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution , copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error , please notify the sender immediat ely and permanently delete the original and any copy of this E-mail and any printout. Thank You.** \J PVERSIGHT DOL-17-0281-F-000069 EAO0003903 Notice of Confidentiality: **This E-mail and any of its attachments may contain Lincoln National Corporation proprietary information , which is privileged, confidential, or subject to copyright belonging to the Lincoln National Corporation family of companies . This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immed iately and permanently delete the original and any copy of this E-mail and any printout. Thank You.** Notice of Confidentiality: **This E-mail and any of its attachments may contain Lincoln National Corporation proprietary information , which is privileged, confidential , or subject to copyright belonging to the Lincoln National Corporation family of companies. This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail , you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immediately and permanently delete the original and any copy of this E-mail and any printout. Thank You.** Notice of Confidentiality: **This E-mail and any of its attachments may contai n Lincoln National Corporation proprietary informat ion, which is privileged, confidential , or subject to copyright belonging to the Lincoln National Corporation family of companies. This E-mail is intended solely for the use of the individual or entity to which it is addressed . If you are not the intended recipient of this E-mail , you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the content s of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immediately and permanently delete the original and any copy of this E-mail and any printout. Thank You.** DOL-17-0281-F-000070 EAO0003903 From: Sent : To: Subject: Start : End: Recurrence: Meeting Status: Required Attendees: Optional Attendees: /\ f IC N PVERSIGHT r__ QQ!!l~.-~~~: -(a"QJ _____ _i I Ex. (6) ·······-· ·-- ························_)············-·······J-········ ·····················································-·························································· ·································' 3/2/2018 6 :25:18 PM -g!.~.Y..! ..9.."!:09.. .£3..~..!3.9..~.t,:: :,,,,,,,,7.,--··· ···~!<: .!~)-.;,•······~· ···_.]Geal~, .Nicholas .C ..- .OSEC ............... , . .... .• lflduciary ~~~ (~tc· ··········· · ·_JRutledge, Pre ston - EBS~······················~ ·~·:J~L ....... ......... J Thu 3/8/2018 4:30:00 PM Thu 3/8/2018 5:30:00 PM (none) Accepted Dorey, David R - SOL ;Geale , Nicholas C. - OSEC ;Rutledge , Preston - ESSA Wilson, Jeanne - ESSA DOL-17-0281-F-000071 EAO0003904 From: Sent: To: ~~~~~,1 ~~~~;:~~\~ EOP/WHO ,t·-·--·-·-·-··-·-·-·-·_J;~_~_J§l_ -·-·-···-·· ·-···-·}·-·___j i Ex. (6) i Gross , Mackenzie A. EOP/WHO Olmem, Andrew J. EOP/WHO '4° ···- ··-········· ·······Ei._(6f~........ -._·····-··°1; Bo.rivliilan, Marcus··D. EOP/WHO [~ :~::::·~::·:: :~::::: _:~:~~_:j~f :::..:_:~::::.:::::.-:::~~~:~:;,~~i;,1.:~~[:=::~:: ::: ~ ::~X:j~L::::: : :::: :::::: :J •...Doty, .George_E ..EOP/WHO . <....-·--"····- ·-···~;Cj~L..... -....•-_,.••····~JHarris, Jeffrey M. EOP/OMB ! Ex. (6) --! Geale, Nicholas C. - OSEC ~·····-···-·····-···-·-···ex·:i&i'" ·······················1 ~~~~~~~,~~~~l¥.ihl~~~:~~ :.~~:.~~ !.:.!~ i.ii·,i~d;~~ ·;~.~~~: .~t~:i:£ ;.l~~:~?!!~~ :-:.~~ :~ E: :i;~:iij:: :~:::::::: ::: ::= ::J:: '··~~~~~ [ 9 L._.~°.~~~~'.~.~~~~~:.~~~~.~=t ~iherk, .James. s.·~~ .~~~Ho' <9.:~:~·.~~·.~~·.~:_l · Mosk~~'.t(6)Lucas.·.~·~·~· .~:~:~·~:·:! Subject: Location: Start: End: Recurrence: Meeting Status: PCC: DOL Fiduciary Duty Rule EEOB 229 Wed 3/7/2018 4:30:00 PM Wed 3/7/2018 5:30 :00 PM (none) Accepted Required Attendees: Gross , Mackenzie A. EOP/WHO;Ohnem , Andrew J. EOP/WHO ;Bonvillian, Marcus D. EOP/WHO ;Campau, Anthony P. EOP/OMB ;Amin, Stacy C. EOP/WHO ;Doty, George E. EOP/WHO;Harris , Jeffre M. EOP/OMB·Geale Nicholas C. OSEC ;'Craig .Phillips'; alabria , Mark A. EOP/OVP ;Nordquist , DJ D. EOP/CEA;Mo skowitz, Lucas ;Sherk , James B. EOP/WHO All, Tomorrow NEC will be holding a PCC to discuss next steps with regards to the DOL Fiduciary Rule EO the President Ex ..(G).•.•..!For those who need it, please fill out the signed early last year . The meeting will take place at 4 :30 PM in L..... following security form by COB today ! Ex. (6) j Best , i.• .• .• .•.•.•.•. • .•.•. •.•.• .• .• .• ·- ···- ·-···-· - ·-·-·-·- ·- ·· ·· ·-·- ·-· - ·- ·-·-·-·······-··· - ·· ·· ·· ·· ·· ·· ·-·····-··· · ··· ··· ·· ·-· · ·-·-· · ·- ··········· ; Mackenzie Gross Associate Director National Economic Council DOL-17-0281-F-000072 EAO0003905 ----------------j ··············-···························· ··················································· ···························· ························· ··············7 ! I From: 1:::::'::::~i~:::{;t::~_::::] ___ --------~~-:_ _(~)___ --------_____ ___ __ __! Sent: To: Subject: Start: End: Show Time As: 3/2/2018 6:25:18 PM •............... ..... ........................ ....., porey,.David .R. - .soL.~ ·-·······-····~·~·~·:·.l~L ....._,....... JGeale, Nicholas c. ~Tduciary'RTi~~p~~·--···············...iRutledge ' Preston - ESSA - OSEC r:::: ::·.~::· :::·::.:::Ix.:J ~r::::: :::: ::::::::::. :] Wed 317/2018 4:30 :00 PM Wed 3/7/2018 5:30:00 PM Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Optional Attendees: Dorey, David R - SOL;Geale, Nicholas C. - OSEC;Rutledge, Preston - ESSA Wilson, Jeanne • ESSA DOL-17-0281-F-000073 EAO0003906 ,-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-··-·-·······-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-···-·-·······-·-·-·-·-· -·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-From: ;-= -'.?.~ - -~-L__ _l r--·-·--·g_°-~~lE~~d Ex. (6) i :_____ ____ ________________ ______ ___ ( ·-·) ·-·-·-·-·-·-·-·-·-·r·-·-·-·-· -·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-·-·-·-·-·-·-···-·-· -·-·-·-·-·-·-·-·······-·-·····-·-·-···· ·-·-·-·-·-·-··· -·-·-·-·-·-·-·-·-·····. Sent: To: /\ 3/2/2018 6:25:18 PM _.!2.. .....-...~•··-_j· t:! Subject: Location: Start: End: Recurrence: Meeting Status: Required Attendees: Optional Attendees: /\M f IC N PVERSIGHT Hauser, Timothy - EBSA;Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Scott , William· SOL;Jones, Arion J - SOL;Geale , Nicholas C. - SOL Lloyd, Karen - EBSA;Campagna, Lou• EBSA;Turner, Jeffrey - EBSA DOL-17-0281-F-000078 EAO0003912 From: ! Acosta,E~~(G} ~ L·-·-··-······---··-···~~'.J .~J_.__ --······--·-··__I OSEC L ,-· -·-• • ·- ·-•-·-·- ·- ·-···- ·-·-·-·-·-·•••·•••••·••• Sent: To: •• ·• ••••·-••••• . 8/9/2017 11:06: 11 PM ,-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·--·-·-·-·-·-·-·-·-·-·-·-·-·· Acosta, Alexander - OSEdL·-·-·-·-·-··-·-·-·-·-~~:.J~L ._._._. __._._ ._.__jRA Acosta 1·-·-·-·-·-······e· ·····x·····-·-·(···s·-···)-·· ·-·-·-·-·-·-·-··1 zzOSEC-SCHEDULING-AND-ADVANCE r··-·····-······ ········ex".· ··s·-···-·-···-···-·-··-··1 " i .·········-·······-···········-···-·-·····-···-·-···-·-············1.!.J._ ._._ ·_·-·-···-·-·····'"·-·-·-·-·-·-·-·-·····-·-··-··-···-·-· ·······-·-·· ········· zzoasam-dpo-agents; Ex. (6) i Geale , Nicholas C . - SOL L....................-..~~... {~) ' iA!J~odeI Pe-d~Q ..M..~, OSEC Conway' Molly E - OSEC 1 Ex. (6) : Meeting with U.s '.-Cliaiii6er ·cEC5s ·--·-·-····-····· ··-··--- L::::: =:::::::::::::E.~J~r=::: ::::::::::::= J Subject: Location: Start: End: Recurrence: Meeting Status: Required Attendees: Optional Attendees: Secretary's Conference Room Tue 9/5/2017 3:00:00 PM Tue 9/ 5/2017 3:30 :00 PM (none) Accepted Acosta, Alexander - OSEC;RA Acosta ;zzOSEC-SCHEDULING-AND-ADVANCE ;zzoasamdpo-agents ;Geale, Nicholas C. - SOL ;Allende, Pedro M - OSEC;Conway, Molly E • OSEC Lineberger , Timothy L - OSEC;Davis, Clinton J - OASAM Security Center;Hoffman, Emily E OSEC;Darling, Kevin E - OASAM Security Center ;Pipkins, Charles P - Security Center;Jennings , Alexandra - OASAM Security Center;McDaniel, Keshia - OSEC Time: 3:00pm- 3:00pm Location : Secreta1y' s Conference Room Subject: Meeting with CEOs Topic/Issue: Fiducia,y Duty Rule Attire: Business Staff: Nick/Pedro Notes/Background: Request came from Tom Quaadman- discussed with RAA at their dinner. POC: Beth Stanaland,j Ex. (6) Adva II ce St aff: '·-·-·-·-·-·-·--·-·-·-·-·-·-·-·-· -·--·-·-···-····-·-·-·-·-·-·-· -·-·-·-·-·-· -·' DoL Photographer: l Attendees : Mike Crowl General Counsel UBS Americas Joe Sweeney President , Advice & Wealth Management Products & Service Delivery Ameriprise Financial Joe Monk Senior Vice President , Financial Services & President and CEO , State Farm Bank State Farm Barry Stowe Chairman and Chief Executive Officer Jackson National Bob Reynolds President and Chief Executive Officer Putnam Investments Dennis Glass President and Chief Executive Officer Lincoln National Corooration Jim Tricarico Chief Legal Officer Edward Jones Michael Fanning Head Mass Mutual, US David Hirschmann President and CEO , CCMC U.S. Chamber of Commerce Thomas Quaadman U.S Chamber of Commer ce PVERSIGHT Executive Vice President , CCMC DOL-17-0281-F-000079 EAO0003925 Randy Johnson ~enior Vice President, LIEB U .S Chamber of Commerce Aliya Wong, Executive Director , U.S. Chamber of Co mmerce M f IC N PVERSIGHT DOL-17-0281-F-000080 EAO0003925 ' Ex. (6) t~°-=-~~ o~~~J·--··-·---· · -·-: From: Alexander- 1 L.-··--·-··-·-·-· -·-·-·-·-Ex. -·(6) ·-···-·-·-·-·-·-·-·-·-·-·-J·-·-···-·-·-·····················-·············-·····-·········-·····-···············-············ ······ ·-·······-·-···-·-···-·····-··J 8/23/2017 1 :59: 22 PM ,······· ··- ·-·-·····-···-·····-···-·-·-·-·····-· ··-··, Acosta , Alexander- 09E.C ..~L~'..'.~'.~'.~'.~'.:~'.~ '.£X:Xiff~'.~'.~'.~'.~'.~'.~:~'.]; RA Acosta <1 Ex. (6) zzoasam-dpo-agents .J .~J§.1.. .... . ....•...iRA Acosta r::::::::::::::::::::~~j~L:::: ::: ::::J ..................!·d zzOSEC-SCHEDULING-AND-ADVANCE i~. ......... .... ....Ei.(sr······ · ··El( •.1~r-Geaie;··NTctioi'as··c :··:··s6L f·°-~~.~: ..~.?.!!Y.ei~ ..?l~... ............ ......l···············································-·········································· ···························································-1 Sent: To: 7/ 18/2017 1:21:25 PM ,··········· ······················--, Acosta, Alexander - OSEC ':~.J ~t~:".:~:~:~:~.':':~:~:~J~.~ .~?..~. tA, zzOSEC-SCHEDULI NG-AND-ADVANCE. .Q .!::.i. Ex. (6) . ,....- ...i; Hazelton, Jennifer - OSEC r········-···•·e·,;-_--·s ·- ·' ·'--····1; Rogers, Jillian B - OSEC Ex. (6) i 1 MeelTiiifii.iltliS~~afoTSTieri'od Brown (D-OH) -·- - ·············· ······ ··········-·····J 713 Hart SoB Tue 711112017 4:15:00 PM Tue 7111/2017 4:45:00 PM (none) Accepted , Subject : L ocation : Start: End: Recurren ce: Meet ing Statu s : ·--····J Ex. (6) _J; 1 Acosta , Alexander - OSEC;RA Acosta;zzoasam-dpo-agents ;zzOSEC-SCHEDULING-AND-ADVANCE;Conway, Molly E - OSEC;Geale, Nicholas C. - SOL;Hazelton, Jennifer - OSEC;Rogers. Jillian B - OSEC Ga rdner, Janelle A - OSEC;Pipkins, Charles P - Security Center;Vilca, Joseph H. - OSEC;Jennings, Alexandra - OASAM Security Center; Davis, Clinton J - OASAM Security Center;Mannix, Patrick M - OSEC;Darling, Kevin E - OASAM Security Center;McDan iel, Keshia OSEC;Hoffman. Emily E. OSEC;Aivazis, Elias K - OASAM Security Center Time: 4: l Spm- 4:45pm Location: 713 Hart Subjec t: Meeting with Senator Sherrod Brown (D-OH) . r······-·, :-···•··•······ · ········ ······ ··-···---Topic/Issue: Follow-up to their phone call on June 8th, REj NR iFiducia1yi Atti r e : Business L......J NR c_' ! -- i ______________ __, Staff: Nick/(Molly FY I) Notes/ Backgro und : Nora Todd will be staffing the Senator. POC: Dianna Brown.I Ex ....(6) Advance Staff: !... ..____ ~-- ~ DoL Photograp her: Ex. (6) From : Todd, Nora (Brown) [mailto :! Sent: Friday, June 09, 2017 11:56 , •., ..·----·------To: Conway, Molly E - OSEC Subject: RE: Call wit h Secretary Acosta -~ Hi Molly- I just wanted to fo llow up o n yeste rday 's ca ll with the Secretary and the se nator. Senator Brown thoug ht it was a really good call and app reci ated ianct fiduciary rules , the senator did raise the Sec retary taking the time to d iscuss all the issues that he raised. As a note for you , in addition to t he NR jssues I flagged for you in advance . They also bo th expressed inter'.....~..,•- , , hg to fin d time fo r a face-to -face meeting the in the future. Since the senator had .the opportunity to raise several issues on yesterday's ca ll, I don 't know that it is urgent, but the senator is inte rested in I NR meet ing with him whenever he has time . Sincerely , EAO0003934 /\ f IC N PVERSIGHT DOL-17-0281-F-000087 Nora DOL-17-0281-F-000088 r-·-·-·-··-·-·-··-·-·-·-·-·-·-·-·-··-·-·-·····..·········-········ ·····-··-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-···-···-·-·-·-·-·-·-·-·-·--·-·-·-··-·-·-·. From: 1:::~~::~riie~~::1. _______________ ~~-:J ~'-----______ ____ _ J Sent: To: Subject: Location: Start: End: Recurrence: Meeting Status: 6/23/2017 9:37:24 PM Conway , Molly E - OSEC i r ······· ·········· ·······--Ex~ ·csr········· ·················r ' Required Attendees: Ex. (6) i; Geale, · Nicholas C. - SOL Meeting: Wells Fargo (fiduciary) fishbowl Thu 6/29/2017 11:30:00 AM Thu 6/29/2017 12:30:00 PM (none) Accepted Conway , Molly E - OSEC ;Geale , Nicholas C. - SOL From: I Ex. (6) .J Sent: Friday, June 23 , 2017 11:10 AM To: Conway , Molly E - OSEC Cc: , Ex. (6) ..... i Subject: RE: Meeting Request - DOL Conflict of Interest rule Categories: Red Category Hi Molly, I wanted to let you know that I will be out of the office next week but if you have any questions prior to next Thursday 's meeting with Wells Fargo please feel free to contact Matthew Hoffman who I have copied on this email. His telephone number is L.. .. .......~!< :..(~L.............i The Wells Fargo participants for next Thursday 's meeting at 11:30 am are flying into DC Wednesday evening and will go to the Department of Labor's front desk. I have asked them to arrive prior to 11:30 am as my experience is it somet imes takes a little time to check in and go through security. Once again , thank you for meeting with us and have a great weekend. Thank you , Bob Robert J. McCarthy Senior Vice President and Director of Regulatory Policy One North Jefferson Avenue St. Louis, MO. 63103 PVERSIGHT DOL-17-0281-F-000089 EAO0003935 1••·- ·· ·- ··· - ·-···-·· ··· · ·· ···- ·· ···· ·· ·· ·· ···· ··· · ·- ···-·· ·-·· ·-·- ·· •· ·••·····•·1 i i I Ex. (6) 1 i.·-·-·· ·· ·· ···· ·········· ···-·-·-···· ···· ······ ·· ·-·-············ ·· ···-·-···-·· ; From : McCarthy , Robert Sent: Thursday , June 22, 2017 4:16 PM To: 'Conway , Molly E - OSEC' Cc: Meyer, Brand ; McHale, Jim Subject: RE: Meeting Request - DOL Conflict of Interest rule Hi Molly, Sorry for the serial emails but I have attached bios for the Wells Faro personnel you will be meeting with next Thursda y. I also attached a copy of our latest comment letter to the DOL on the Confl ict of Interest rule submitted on April 17, 2017 (the 150 pages plu s of appendices consist ing of our prior comment letters were deleted ). Please feel free to contact me w ith any que stions. Thank you , Bob Robert J. McCarthy Senior Vice President and Director of Regulator y Policy One North Jefferson Avenue St. Louis, MO. 63103 ·-·········· ·........... ............................ ................... . I Ex. (6) I L .•.•.•.• .• .. ,. .. ...... . .. .. ............ . .. ... . .. .. .. .... ... . ..... ; DOL-17-0281-F-000090 EAO0003935 From: Sent: To: ~~~~~·1 ~:~:r~!e ' -·-··-·E _x _!,_,J.6.l __ _______ i -·-·-··-__.i A~ EOP/WH°i- ·-·--·--·-·- Olmem, Andrew J. EOP/WHO Ex. (6) Sent: Monday , May 22, 2017 8:57 PM To: Conway , Molly E - OSEC Cc: Geale, Nic hola s C. - SOL Subject: Re: Ficluciaiy Rule Thanks, Molly. I lrnow that Johnny app reciated the personal heads up from the Secreta 1y today. Can we chat tom orrow? I don't wa nt yo u to stay there any longe r than yo u need to:) Doe s 1130 or 2 work? On Ma y 22 , 20 17, at 20:54, Conway, Mo lly E - OSEC > wro te : Hi Tommy: As I'm sure yo u heard , our bosses spoke today regarding the fiduciar y rule. The pre ss release can be fo und here - it includ es FAQs and the non-enforcement policy , along with a link to the WSJ op-eel (also copied below) . ..---·-·-·---·-·-·-----------·-·-·-·-·-·-·-·-•--1 i If you would like to chat tonight. I will be here for at leastthe next hour and can be reached i ••IEX, (6} I i.,___________ ______•-·•- ·-·-·-·-·- ·-·-·- ·-·- ·- ·-; If not tonight , Nick and I wo uld be more than happy to set up a time to chat via phone . Just let us know if yo u' re interes ted . Have a great night, Molly N PVERSIGHT DOL-17-0281-F-000093 EAO0003962 Molly Elizabeth Conway Department of Labor . ----·--·---·Ex·~·-·(6)-·-·-·-··------·--·-i I..--··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·····...................... . ....... .................. ........ i think you mean 11.30 am /\\IH f ~ICAN PVERSIGHT DOL-17-0281-F-000094 EAO0003962 Event From: Conwa y , Molly E - OSEC Subject: Call with Tommy Nguyen Begin Date/Time : 5/24 /2017 4 :30:00 AM End Date/Time: 5/24/2017 5:00:00 AM Alarm Trigger: Display 15 minutes prior to Start Alarm Description: REMINDER Alarm Repeat: Repeat O times ------------ From : Nguyen, Tommy (HELP Co mmitt ee) ca n be found here- it includ es FAQs and the non-enforc along with a link to the W SJ.op- ecl( also _cogied below). If you would like to chat tonight, I will be here for at le, Ex. (6) !If not tonight, Nick and I would be more than happy to set up a tim hour and can be reached at ! phone . Just let us !mow if y~u ' re interested. H ave a great night, Mo lly M olly E lizabeth Conway De pa11ment of _______ ___ Ex.__(6) ...... ......J Direct:i._, /\ f IC N PVERSIGHT DOL-17-0281-F-000095 EAO0003963 Acosta, Alexander - OSEC <{·-·-·-·-·-·--·-·--- ·-·-·-· -·-·-·-·-·-·-·-·-· -·---·-·-·--·-·ex (61______________ ______ __________________ _____________________ ; From: [___·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-···-···-·····-···-··-·-·-·-·-·-··-·Ex __ ( 6) ·-·-·-·-·-·-·-··-·-·-·-·-···-·-·····-·-·-·-·-·-·-·-·-·-·-·-····-·-·-·-·-·-·-····-·-·· J Sent : 10/ 17/2017 6:34:00 PM Acosta, Alexander - OSEC Ex (6) r, RA Acosta r--·--·-·---·-·-·-· Ei(sf -·-·-·-·--··---1 zzoasam-d po-a_gentsr··-··· · ··'·-·-·-·-·-·· ·-·-~ilGC·' -·- -·--~----·-~;.izOSEC-SCHE6UCiNG .:Ji.Nt)~Ai5VANc·E·- i To: j Ex (6) rGeale , Nicholas C. - SOL '·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··~ Subject: Location: Start: End : Recurrence: Meeting Status: STOP-BY: National Association of Insurance Commissioners Meeting Fishbowl Thu 10/26/2017 1:30:00 PM Thu 10/26/2017 1:35:00 PM (none) Accepted Required Attendees: Acosta, Alexander - OSEC;RA Acosta;zzoasam-dpo-agents ;zzOSEC-SCHEDULINGAND-ADVANCE;Geale, Nicholas C. - SOL Lineberger , Timothy L - OSEC;Hoffman, Emily E - OSEC;Darling, Kevin E - OASAM Security Center;Pipkins, Charles P - OASAM Security Center ;Davis , Clinton J - OASAM Security Center;Allende, Pedro M - OSEC;Vilca, Joseph H. - OSEC ;McDaniel , Keshia - OSEC Optional Attendees: Time: l :30pm- l :35pm Location: Fishbowl Subject: STOP BY: National Association of Insurance Commissioners Meeting Topic/Issue: Fiducia1y Rule Attire: Business Staff: Nick Notes/Background: j ! POC: Julianne Jensby,j X E { ) 6 i.. .. .. ................... .......... .. ........................ ................ i ... ....... ....... ............... .. .................. .. ,•.•.• , •.• .•.• • Attendees: • • • • A Ted Nickel. Wisconsin Insurance Commissioner and NAIC President Julie McPeak , Tennessee Commissioner of Commerce and Insurance and NAIC President-Ele ct Ethan Sonnichsen, Managing Director of Government Relations, NAIC Jolie Matthews. Senior Health and Life Counsel, Government Relations, NAIC f IC N PVERSIGHT DOL-17-0281-F-000096 EAO0003800 From: Sent: To: r-~·~Q.a. ~i_(!. 1,Keshia. OSEf.L ·r----------,······· ...Ex'Ta 10/17/201711:48:37 AM -----RA Acosta i Ex (6) Ex (6) _< ..(.~)-._·_.L· · ·-····..... L..·-···-·····-·· ······················~~J.~L ....._...__.._.._.....--.-· ···.lzzoas am-d po•ag e nts t ·-·····-···-·····-·-···-·-Ex .(6) ····-·-·······-···-···-·-···i Conway, Molly E • OSEC L_·····-···········-·Ex (6) 1 Ex (6) ··········-···-··· -L Geale , Nicholas C. • SOL ! ofWells Farg o Advisors Subject: Show Time As: Meeting with David Kowach CEO Free Recurrence: Required Attendees: (none) RA Acosta;zzOSEC·SCHEDULING•AND·ADVANCE ;zzoasam•dPO•agents;Conway, Molly E • OSEC ;Geale, Nicholas C. • SOL McDaniel , Keshia • OSEC ;Lineberger , Timothy L • OSEC;Davis , Clinton J - OASAM Security Center;Vilca , Joseph H. • OSEC ;Jennings , Alexandra - OASAM Security Center ;Pipkins, Charles P • Security Center;Darling , Kevin E • OASAM Security Center ;Dow ney, Daniel W • OASAM Security Center;Mannix , Patrick M · OSEC;Allende, Pedro M • OSEC;Hoffman, Emily E - OSEC Optional Attendees: Time: 2:00pm - 2:30pm Location: Secreta1y' s Office Subject: Meeting with David Ko wach CEO of Wells Fargo Advisors Topic/Issue: Fiducia1y Rule Attire: Business Staff: Molly/ Nick Notes/Background: POC: Rob er t 1. McCarth y:! ··-·-·-·-·-·-·-·-·- -·-·-·--·-·-·-·-···-·-·-·-·-·-.......................... ..-·-·- .....-·-·-................................- ······-·-· -·-·-·-- - - - -·-·-·-· Attendee s: I. David Kowach - CEO of Wells Fargo Advisors 2. Brand Meye r- Head of DOL Fiduciary Program Efforts 3. Doug Kelly - General Counsel 4. Jim McHale - Chief Co mpliance Officer 5. Margaret Simmons - Government Relations Ex (6) A f IC N pVERSIGHT I DOL-17-0281-F-000099 EAO0003834 ------ -- ---- - ----~ ·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-···-·-·-·-·······-·-·-·-·-·-·-·-·-·-·-·-·-············ ·············-·-·-···-·-·····-···········-·· Acosta, Alexander - OSEC From: [ i Ex (6) i Ex (6) , ] 'f 011112011 ·6:34: oo·PM-·······-···-·····-········· ··-·-···-- ·····················-·-·-·-···-·-·-·-·-·-·-·········- ··-·····-·····-·-···-·-·-···-·········-·-·-···-·-·-·····-···· Sent: 0 To: ~::::~~~ep~-:~:n;s :J L • - •• •• •• •• •• •• •• •• •• ••• - ••• • •· · - ·-·•·-·-·• 1~~~ ..1 .._._·· ·· ····Ex · t~f" -.(~L .._..._..-.1·~ ; ~~:~~:~~ ·EoUUN·G~·l~6?-xo vANCE ! (S) Geal e, Nicholas c. - SOL !; EX ·• •• •• •• ••• • ••·- •-•·· - ·- ·- ·-·-·• ·-·• •• •• •• •• •• •• •••• ••·••J Subject: Location: Start: End: Recurrence: Meeting Status: STOP-BY: National Association of Insurance Commissioners Meeting Fishbow l Thu 10/26/2017 1:45:00 PM Thu 10/26/20 171 :55:00 PM (none) Accepted Required Attendees: Acosta, Alexander - OSEC;RA Acosta;zzoasam-dpo-agents;zzOSEC-SCHEDULINGAND-ADVANCE;Geale, Nicholas C. - SOL Lineberger , Timothy L - OSEC;Hoffman, Emily E - OSEC;Darling, Kevin E - OASAM Security Center;Pipkins, Charles P - OASAM Security Center ;Davis, Clinton J - OASAM Security Center;Allende, Pedro M - OSEC;Vilca, Joseph H. - OSEC ;McDaniel, Keshia - OSEC Optional Attendees: Time: 1:45pm- I :SSpm Location: Fishbowl Subject: STOP BY: National Association of Insurance Commissioners Meeting Topic/Issue : Fiduciary Rule Attire: Business Staff: Nick Notes/Ba c kgr ouncl: ,...····················-·-···-·········-·· ·································-·········-···-···-···-···-···-·····-·····; PO C: Julianne Jensby, j Ex (6) i "·-·-··-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-·-·-' Attendees: • • • • TeelNickel, Wisconsin Insurance Commissioner and NAIC President Julie McPeak, Tennessee Commissioner of Commerce and Insurance and NAIC President-Elect Ethan Sonnichsen, Managing Director of Government Relations, NAIC Jolie Matthews, Senior Health and Life Counsel. Government Relations, NAIC f IC N PVERSIGHT DOL-17-0281-F-000100 EAO0003839 From: Sent: ·;·· -~~~rc:?-~~~·{::~ ......_...... :::: '·········1wn12olTTf:48· :·4·1··AM········ Acosta, Alexander - OSEC r ···········-··········Ex-·"if· ·- ··-··············1 RA Acosta ;-················-···ex"[6T ·-·················; ll.Oasam-dpo-agents <1 -········'-··· ·····-·····Ex···6····LL ....... .......i;u.OSEC-SCHEDULffJi:fAND~·AovANCE. To: ~···········································································L·l.....................•..... ?..:~ge nts <1 Ex (6)· ••-. •.••• .•...•.•.•)zzOS EC-SC HEDULING-AND-ADVANCE 1 i...-·-·----····-·· ·-·~~J6) .. ; Geale, Nicholas C. - SOL 4 Ex (6) , Canceled: STOP-BY : National Asso ciation of Insurance Commissioners Meeting ·- ·········•·• Free To: Subject: Show Time As: ···-···' (none) RA Acosta;zzoasarn •dpo.agents ;zzOSEC-SCHED ULING-AND-ADVANCE;Gea le, Nicholas C. - SOL Lineberger, Timothy L - OSEC;Hoff man, Emily E • OSEC;Darling, Kevin E - OASAM Security Center;Pipkins, Charles P • OASAM Secur ity Center ;Davis, Clinton J • OASA M Security Center;Allende, Pedro M · OS EC;Vilca, Josep h H. - OS EC;McDaniel, Keshia - OSEC Recurrence : Required Attendees: Optional Attendees: Time: I :30pm- 1:35pm Location: Fishbowl Subject : STOP BY: National Association of Insurance Commissioners Meeting Topic/Issue: Fiduciary Rule Attire: Business Staff: Nick Notes/Background: c-----· 1 PO C: Julianne Jensby,J ·- ----- ···················· Ex (6) • ! ·-·······-··· ····---·-·············-·--·················•·•·•·•···· ·········-·······--' Attendees: • • • • Ted Nickel, Wisconsin Insurance Commissioner and NAlC President Julie McPeak, Tennessee Commissioner of Commerce and Insurance and NAIC President-Elect Ethan Sonnichsen. Managing Director of Government Relations, NATC Jolie Matthews. Senior Health and Life Counsel. Government Relations, NAIC EAO0003853 /\M f IC N PVERSIGHT DOL-17-0281-F-000102 From: r··---~~!~~~:'..i __ t____ --------------__ _Ex___ (6) __------------------- 0:1:!:~:~~~ 1~:~~~ r- ·-·-·-·--·· ···Ex····s·-·-··········· ·· iRA r·········· ·E ·x·Tsf····· ····1 ........ ( _} ~ ·- Sent: To: 6~EC .···-·..... . .................. ~oasam-dpo-aQents. j .. ............. ··,•.•. Acosta ' . ·-·... ·-·· ·-·-···-·· ...... ..•...·····.......} Attendee s: I . David Ko wach - CEO of Wells Far go Advisors 2 . Brand Me yer- Senior Mana ging Direct or 3. Doug K elly - Senior VP Assistant General Coun sel 4. Jim Mc Hale- Senior VP and Chief Complian ce Officer 5. Margaret Simmons - Federal Director of Government Relations mll ) .. David Kowach bio_May_2017 .pdf IJDI )~ Jim McHale Bio May 2017 - 51817.pdf Doug Kelly2017.pdf lml /-. brand_meyer .pdf - Margaret Simmons bio.pdf PVERSIGHT DOL-17-0281-F-000108 EAO0003870 From: Sent: To: ·-·-·-·_Acosta,.Alexa.nder .-.osEc ! Ex (6) , 8/23/2017 1: 58: 51 PM l_,·-·-··-·-·-······ i EX(6) ! ··T..'..... ··············-···-·-···-·····-····· ········-·····-·····-·-·-·-···-·········-···-·-···-·-·-·-·-···· ····-·················-·····-·-·-···············! Ex (6) ! Acosta , Alexander - OSEC j E~. l6.L ..-···-·-···-·-·-·_l.RA.Ac.asta.1. ! zzOSEC-SCHEDULING-ANb::-At>V.A:KlcE· ·~ Ex (6)•-·•-·-·-·-·-·-·-·-·-·-·1..·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·.! ·· ·-·-· -· ·-·-·-· -·-·-·-·-·--·-·zzoasam-d o-a ents {-·-···-·-·-·-·-·-·-···· ····E'x-·ir-···-·-·-·-·-·-·-·-··-·-··, Conwa Moll E - OSEC r·-·-····-·-·· ·-·-·· -li(lf'· · ····..-·····--·--JGeaTe:·-i,Jf c~oiii's·c~ · :··soc.c::: :::::::'. : ::::J~:r~c: : :::::::::::::i Subject: Location: Start: End: Recurrence: Meeting Status: Meeting with David Kowach CEO of Wells Fargo Advisors Secretary' s Office Thu 9/21/2017 2 :00:00 PM Thu 9/21/2017 2:30:00 PM (none) Accepted Required Attendees: Acosta , Alexander - OSEC ;RA Acosta;zzOSEC-SCHEDULING-AND-ADVANCE ;zzoasamdpo-agents ;Conway, Molly E - OSEC;Geale , Nicholas C. - SOL McDaniel, Keshia - OSEC ;Lineberger, Timothy L - OSEC;Davis, Clinton J - OASAM Security Center;Vilca , Joseph H. - OSEC ;Jennings, Alexandra - OASAM Security Center;Pipkins , Charles P Security Center;Darling , Kevin E - OASAM Security Center ;Downey , Daniel W - OASAM Security Center;Mannix , Patrick M - OSEC;Allende, Pedro M - OSEC;Hoffman, Emily E - OSEC brand_meyer.pdf ; David Kowach bio_May_2017.pdf ; Doug Kelly2017.pdf ; Jim McHale Bio May 2017 - 51817.pdf ; Margaret Simmons bio.pdf Optional Attendees: Attachments: Time: 2:00pm - 2 :30pm Location: Secret ary's Office Subject : Meetin g with Da vid Kowach CEO of Wells Fargo Advisors Topic/Issue: Fidu cia1y Rule Attire: Business Staff: Molly/ Nick Notes /Background: , POC: Robert J. McCa1th y: Tel: l Att end e es: Ex (6) . : '···········-···-·-·-·-·-·-·-·-·-···················-·-·······-·············-·-·-···-·-···-···-·-··-···-·····-·-·-·-···-·-·-·-·-·-···-··· · l. David Ko wach - CEO of Wells Fargo Advisors 2 . Brand Me yer- Senior Mana ging Director 3. Doug Kelly - Senior VP Assistant General Counsel 4 . Jim McHale - Senior VP and Chief Complian ce Officer 5. Mar garet Simmons - Federal Dire ctor of Government Rel ations tml ./David Kowach bio_May_2017 .pdf mil /~ Jim McHale Bio May 2017 - 51817.pdf ID ,;... ·- Doug Kelly2017 .pdf IU ) .. brand_meyer.pdf M f IC N PVERSIGHT DOL-17-0281-F-000109 EAO0003876 Margaret Simmons bio.pdf DOL-17-0281-F-000110 ~i-tsr~~<; _ L.____ ______ ___ ___ __ ___-__ ·--·-·-·-·-·-·-·-·~~--__(.~_)_ ___ ____ _______ ____ __ ·-·-·-·-·--··-·--·-·· -___ __j From: r·--t!~!f~~!! '.__ Sent: To: ~!L. ___ 9/ 15/2017 3;.0~t2.5 ..P.M ._____ ____ _________________ ___ _ i-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·1 .-BA.Acos1a~----·-·-·E·-·-·-·-E6. __~__(_EH _______________ lz.zapEC-SCHEDULI NG-ANR~~_g_y~-~~Ei Ex (6) 1 Subject: i Ex (6) ! 'Mee1Tng-w1ffi'DaviaXo wacfi--C E6 of Wells Show Time As: Free Recurrence : Required Attendees: (none) RA Acosta;zzOSEC-SCHEDULING-AND-ADV A NCE;zzoasam-dp o-agents ;Conway , Molly E OSEC;Geale, Nicholas C. - SOL McDaniel, Keshia - OSEC ;Lineberger , Timothy L - OSEC;Davis , Clinton J - OASAM Security Center;Vilca , Jo seph H. - OSEC ;Jennings, Alexandra - OASAM Security Center;Pipkins, Charles P Security Center;Darling, Kevin E - OASAM Security Center;Downey, Daniel W - OASAM Security Center;Mannix , Patrick M - OSEC;Allende, Pedro M - OSEC;Hoffman, Emily E - OSEC Optional Attendees: i :._ ____ ____ ____ __ ________ _______ ______~__{_J ___________ __________ _j zzoasam-dpo-agents ·L -~~-(~l ____.fdp._._.,. _____ -=--··"1"""·•·-·, ·-·-·-·_.1 _QQQ~(~Y.L.MQl!Y...~ ..::__Q_§ _~_g__s_________ ____ ______Ex _ _(6)______ _________ _____J;Geale , Nicholas C. - SOL Fargo Advisors Time: 2:00pm - 2:30pm Location: Secretary's Office Subject: Meeting with David Kowach CEO of Wells Fargo Advisors Topic/Issue: Fiduciary Rule Attire: Business Staff: Molly/ Nick Notes/Back gr ound : ,--______---·-·-·-·-·- _______ -·-·-·-·-_____-·-·-··-·-·-·-_____ __-·-·-·-·-___________ ________ ____________ POC: Robert J. McCarth y: Tel: 1 Ex (6) Attendee s: f IC N PVERSIGHT 1 : i.-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·······-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-···-·········-·-···-·-·-·-·-·-·j DOL-17-0281-F-000111 EAO0003882 From: Acosta, Alexander - OSEC: ··························· ······················--········· ···································································· ··························, r-···-------·--·-· Ex··-(sj· · -···-·-----------1 t..,_, ___ Sent: To: Subject: Location: Start: ,_ , _ , _ , ... . . . . . .. ... ... .............................. . ..... . ..... ... ...... ... ... . .. ............ 8/23/2017 1:58:51 PM . ........ . .. ... . .. . .. . .. . .. ....... .. . ................. i Ex (6) . .. . .. . ... ...... .. ......... ............... ,. -················ ······ -· ··· ··············•······· -, ......... .... .. ... . .. .............. .. . .. . ... ... .. ......... . ..... . .. . ........ . .. ....... .. ... . .. . .. . ...... . r···· •·•·•·•·· ······················ ··········, Show Time As: Secretary's Office Thu 9/21/2017 2:00:00 PM Thu 9/21/2017 2:30:00 PM Tentative Recurrence: Meeting Status : (none) Not yet responded Required Attendees: Acosta, Alexander - OSEC;RA Acosta;zzOSEC-SCHEDULING-AND-ADVANCE;zzoasamdpo-agents;Conway, Molly E - OSEC;Geale, Nicholas C. - SOL McDaniel, Keshia - OSEC;Lineberger, Timothy L - OSEC End: Optional Attendees: I Ex (6) On !ul 21 , 2017, at 3:03 PM , Conway , Molly E- OSEC wrote. ;. ................. ...................... .........................; > > Hi Warren - How about 11:00am on the 26th? > > Thanks , > > Molly > > -----Original Message----- ,................................. ..................... ................, EX (6) i > From: ~arren Tryon (mailto! > Sent: Friday , July 21, 2017 ~ :;;r;.,··l"lwr·· ························ ····················· ··········' > To: Conway, Molly E - OSEC > Subject: FW: American Retirement Association - appointment request > > Molly , > > Just checking in to see if you have sometime next week for a meeting with the CEO of ARA. Thank you so much Molly. > > Warren > > -----O riginal Message----- > From: Warren Tryon > Sent: Wednesday , July 19, 2017 4:47 PM > To: L. ....... ............ ...Ex .(6) ....... ....... ........i > Subject: American Retirement Association - appointment request > > > > Molly , > > I used work with Kyle Fortson many years ago . Congrats on your DOL appointment. > > Was wondering if you have some time to meet with Brian Graff, CEO of the American /\ f IC N PVERSIGHT DOL-17-0281-F-000114 EAO0003893 Retirement Assoc iation some time this Tuesday 7/25 afternoon or anytime Wednesday 7/26? It will be on the DOL fiduciary rule. Thank you very much. > > Warren •.>_Warren Tryon ............................... .. ! Ex (6) j L-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-··-·······-·-•-·•-·-·-·-•-' /\ RIC N PVERSIGHT DOL-17-0281-F-000115 EAO0003893 From: Sent: To: ~-- Gardner, Janelle A- OSEC <>; Ex (6) · L.-·-·-·-··-·-·-·-·-·-·-·--·--·-·-·-·-·-·-·-·-·-·-··-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·- ·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-· -·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-· -·-·-·-·-··-·-·-·-·-·-·-·-·-··-·-·-·-·-·-·-·-·-·-·-·-·-·-·~ IL.-6/20720T'r10:2F0"5 Ex (6).AM·-·-·-·-·-·-·-·. -·-' ~~,~~~t~.~-°-~ E6-OSE.~_j- ·7 . ( ) _! Ex (6) IGeale, Nicholas C. - SOL -·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·' Subject: Show Time As: Meefifi~fwiHfPYesicfei'ifoTAWierican Council of Life Insurers (ACLI) Free Recurrence: Required Attendees: (none) Conway, Molly E - OSEC ;Ge ale, Nicholas C. - SOL Time: 1:00pm - I :30prn Location: Secreta1y' s Office Subject: Meeting with American Council of Life Insurers (A.CU) Topic/Issue : Private outreach on fiducia1y rule and Gov. Kempthorne to share some experiences with Secy. Attire: Business Staff: Molly/Nick Notes/Background: President.of A.CU_is .Governor.Dirk Kempthorne and former Cabinet Secretary of Interior. ' _._. R.Q~:.JY.:1~_L!!_i_~~.P.-~~t • STOP-BY with Dennis Glass, CEO of Lincoln Financial Group Fishbow l Mon 11/27/20 17 3:15:00 PM Mon 11/27/2017 3:30:00 PM Tentative Subject: Location: Start: End: Show Time As: Recurrence: Meeting Status: (none) Not yet responded Required Attendees : Acosta, Alexander - OSEC;RA Acosta;zzoasam-dpo-agents;zzOSEC-SCHEDULINGAND-ADVANCE;Geale, Nicholas C. - SOL;Jones , A rion J - SOL;Dorey, David R - SOL McDaniel, Keshia - OSEC;Lineberger , Timothy L - OSEC;Davis, Clinton J - OASAM Security Center;Pipkins, Charles P - OASAM Security Center;Darling, Kevin E - OASAM Security Center;Vilca, Joseph H. - OS EC;Dow ney, Daniel W - OASAM Security Center;Allende, Pedro M - OSEC;Hoffman, Emily E - OSEC Optional Attendees: Time : 3:I Spm - 3 :30pm Location: Fishbowl Subject: STOP-BY with Dennis Glass, CEO of Lincoln Financial Group Topic/Issue: Fiduciary Rule Attire: Business Staff: Nick/ David Notes/Background: POC: Steve Rahn;j Ex (6) J "···-·-·-·-·· ··········· ..·····••·••······-·-·-·-·-·-·-·····. /\ f IC N PVERSIGHT DOL-17-0281-F-000119 EAO0003899 Ex (6) ! From: ,..... Acosta, .Alexander.•.OSEC .; Dorey , David R - Subject: Location: Start: End: Recurrence: Meeting Status : STOP-BY with Dennis Glass , CEO of Lincoln Financial Group Fishbowl Mon 11/27/2017 3:00:00 PM Mon 11/27/2017 3:30:00 PM (none) Accepted Required Attendees: Acosta, Alexander - OSEC;RA Acosta ;zzoasam-dpo-agents;zzOSEC · SCHEDULING• AND-ADVANCE;Geale , Nicholas C. - SOL;Jones , Arion J - SOL;Dorey , David R - SOL McDaniel, Keshia - OSEC ;Lineberger , Timothy L - OSEC ;Davis, Clinton J - OASAM Security Center;Pipkins , Charles P - OASAM Security Center;Darling , Kevin E - OASAM Security Center;Vilca, Joseph H. - OSEC;Downey , Daniel W- OASAM Security Center ;Allende, Pedro M - OSEC ;Hoffman , Emily E - OSEC Optional Attendees : Time: 3 :00pm - 3 :30pm Location: Fishbowl Subject: STOP-BY with Denni s Glass, CEO of Lincoln Finan cial Group Topic/Issue: Fidu ciary Rule Attire : Bu siness Staff: Nick/ David Notes/Bac kgrounc~:·······················-···· ········-·-··; POC: Steve R ahn: Ex (6) ! 1 L,, _ , ___ __ __ __ __ __ __ __ ____ __ __ ____ ____ ·-·-·-·-•-' /\ f IC N PVERSIGHT DOL-17-0281-F-000120 EAO0003900 J (,_c_o~~'lic""~,'-:.'?."ES\__________________ _______ EX__ (6}___________ ________ From: Sent : 10/ 17/2017 11:48: 41 AM a ·- -·- ·-·- ·- -·-·-·- ·-·-·- ·-·-·····-·-· - -·-· - ·- - -·- -, Acosta, Alexander - 0§>~.~~.~q.~6~ ··················-····1:··c········· (!t.D'"'Er< · ····························; zzoasam- po.agent s < •............. ......., .......!l~·········=-·······~·······1, onway, o y c:: - ~ '-' {.~·=·~·~==·~=·~·~ ·.·_'f,_~J~L::.~~.~·.~.:~.~.~.J; Allende, Pedro M - OSEC On Jul 21, 2017, at 3:03 PM, Conway, Molly E - OSEC <~.: • !! wrote: !i....... ,..._•-•-•- •- •-•- •-•-•-• - •-•-•-• - •- •-•-•-•- •- •-• -•- •-•-• I > > > Hi Warren - How about 11:00am on the 26th? > Thanks, > > Molly > > -----Original Message----- :-·-··-·-·-·-·-·-·-·-·-···-·····.................._.___.___........._,___...---·, > From: Warren Tryon (mailtq Ex. (6) ! > Sent: Friday, July 21, 2017'g :·35·AM·························· ··················· ····~ > > > > > To: Conway, Molly E - OSEC Subject: FW: American Retirement Association - appointment request Molly, > Just checking in to see if you have sometime next week for a meeting with the CEO of ARA . Thank you so much Molly. > > Warren > > > > > -----Original Message----From: Warren Tryon Sent: Wednesday, July 19, 2017 4:47 PM To:! Ex. (6) .J .•........ > Subject: American Retirement Association - appointment request > > > > Molly, > DOL-17-0281-F-000126 EAO0003931 > I used work with Kyle Fortson many years ago . Congrats on your DOL appo intment. > > Was wondering if you have some time to meet with Brian Graff , CEO of the American Retirement Association some time this Tuesday 7/25 afternoon or anytime Wednesday 7/26? It will be on the DOL fiduciary rule. Thank you very much. > > Warren > Warren Tryon -·-·-·-·-· ->.: ..C~.P..itoJ.C.Q .Yns.e.l.J..LC .. ' L_· ·-············· ··-Ex..(6) ··················--·! /\ RI N PVERSIGHT DOL-17-0281-F-000127 EAO0003931 From: Acosta , Alexander- OSEci I Sent: To: Ex . (6) 6/20/2017 10:21 :07 AM · Ex. {6) !.-·-·-·-·-_--·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·--·---·-·-·-·--·-·-·-·--·-·-· -·-·-·-·-·-·--·-·-·-·-·-·-·-·-·-·-·-··--·--·--·-·-·-·-·-·-·-· --' . Acosta, Alexander - OSEC ; zzOSEC-SCHEDULING-AND-ADVANCE Geale , Nicholas C. - OSEC 1 Ex. (6) \ Jones, Arion J - SOL i...·--··-··Ex. (6) ·-····-·· · i:l1ore\i :-oavi'd"R" -:so-cr ...._. .........~'·J~L.... . _....t Subject: Show Time As: - -- • Canceled: STOP·BY with Dennis Glass, CEO of Lincoln Financial Group Free Recurrenc e: Required Attendee s: Optional Attendees: (none) RA Acosta ;zzoasam-dpo-agents ;zzOSEC-SCHEDULING-AND-ADVANCE;Geale, Nicholas C . - OSEC ;Jones , Arion J - SOL;Dorey , David R SOL McDaniel, Keshia - OSEC ;Lineberger, Timothy L - OSEC;Davis, Clinton J - OASAM Security Center;Pipkins, Charles P - OASAM Security Center;Darling, Kevin E - OASAM Security Center ;Vilca, Joseph H. - OSEC;Downey, Daniel W - OASAM Security Center;Allende , Pedro M OSEC ;Hoffman, Emily E - OSEC Time: 3: 15pm - 3:30 pm Location: Fishbo wl Subject: STOP-BY with Dennis Gla ss. CEO of Linc oln Financial Group Topic/Issue: Fiducia1y Rule Attire: Business Staff: Nick/ David Notes/Bae kgroun:·uo rey;·naviaR°: ·socject: AMc:HICAN pVERSIGHT Lloyd. Karen - EBSA Hall Lyssa - EBSA: $hiker Brjan - EBSA; Hesse. Erin - EBSA; Wilker Susan - EBSA COI next steps OED meeting DOL-17-0281-G-000001 From: To: Cc: Subject : JudsonVictoriaA Cana1Y, Joe - EBSA;KuehnleRogerS; WeiserCarol- OTP;EvansWilliam - OJP NeisRobert- OTP;Tad~--?-??; ??;-~ -~=?:=---------?-?? ??? ?L -~-?,"{ ?-?-?-~;~~?~~~ ?-????-?? \J . 0 = V ?- . -??? .o... ?-?-? ...... .D.....?o-o?- ? .. .......???--?-?- .................. . -. ~~ .~.Go-_-.. .. ? ...~ V\ ...... .Cv ~H? .\?g47J.?-_75.. :f~ .es?Jr. ??-??o _~ ~?.s ~o_L/:resx:?_: ? _:f fe~r;,~;; _-_.-??? ??---~~-...-~:_??-_:::?_ ??--i:}~es.ti??? ?-?5.o _?_1 _:-.-_ -???.-~~ _ ___f!~~.1: ?_: __ :: ?__:_...?-.... ~:.: :-~ -_ ?t?.??~?o~-i __ =:?~ r_;J;~ ~ ?__ ~:?: ~;: t;; ~t~: :~ - ?-???-???-???------? ..?------ ?-------???-?--??-?------ -- --?-- -?. -?????----??? ----- -??-?- -?--?-?- ? .. - - -- ------ ??????--- ??-? ?--? ???---? ? ----- ----~--- ?????-?-?--- --???-?-???o????-?-- - ??--????- . ?----?? -?- --- --???-???-- ?-? --?-?-????---?---- - ?????-? -- ??--? ?-? - - -??. ?--?- --??--- - -?-------- ----?-- ____. ., ___ DOL-17-0281-G-000020 From: To: Subject: Date: Golding.Debra- EBSA Connor.Mark?EBSA FW:Webcasts Thursday, August 10, 2017 11:10:53 AM FYI- we will proceed with our other two opt ions - From: Khawar, Ali - EBSA Sent: Thursday, August 10, 2017 10:57 AM To: Golding, Debra - EBSA Subject: RE: Webcasts this FY. You can move forward with your alternate plans - it looks like we won't be doing a COi one From: Golding, Debra - EBSA Sent: Monday, August 07, 2017 2:21 PM To: Khawar, Ali - EBSA Subject: RE: Webcasts Just checking in to see if any update. Thanks -----------????---- - -????. ?-?--- -- ---- -- --- -- ------- ---??-??- ---- ????--?- From: Khawar, Ali - EBSA Sent: Monday, July 31, 2017 5:58 PM To: Golding, Debra - EBSA Subject: RE: Webcasts I don't have an answer yet but hopefully will by the end of the week ??-?? ??- ????----?? --- ?- ???--? - ??-----???--?-?? ? ----?. - -?? oo??- -?-?? ?-----? ----?- ?------- From: Golding, Debra - EBSA Sent: Monday, July 31, 2017 5:58 PM To: Khawar, Ali - EBSA Subject: Webcasts if we I wanted to check to see if there is still possible interest in webcasts on COi. OHPSCAasked le for would be doing a health com p liance webc ast because they are t rying t o det ermi ne their schedu check. would I thought but moment the remainder of the FY- we told them it was on hold at the Than ks - DOL-17-0281-G-000021 Subject : Location: COi Check-in Joe's office or OPR Conference Line Start: End: Show Time As: Thu 6/ 29/2017 1:00 PM Thu 6/29/2017 1:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Lim, Youngok - EBSA Piacentini, Joseph - EBSA;Cosby, Chris - EBSA; Buyniski, Brian - EBSA; Beckmann, Allan - EBSA;Bloom, Teresa - EBSA If you want to join the meeting by phone, please use the OPR conference line; Thanks! Youngok AMc: ICAN pVERSIGHT DOL-17-0281-G-000022 Subject: Locati on : Brian Graff -- Fiduciary Rule Fishbowl N-5677 . Start : End: Show Time As: Thu 5/18/2017 11:00 AM Thu 5/18/2017 12:00 PM Tentative Recurrence: . (none) . Meeting Status : Not yet responded Organizer: Required Attendees : . Hauser, Timothy - ESSA - EBSA;Cosby, Karen Lloyd, ; ESSA Joseph Piacentini, Canary, Joe - ESSA; ESSA Lou , Campagna Chris - ESSA;Hall, Lyssa - ESSA; ? Turner, Jeffrey - EBSA Optional Attendees : Tim please see below the list of attendees for the meeting on May 18th at 11 am. Look forward to seeing you. Brian o o o o o o o Brian Graff, America n Retirement Association David Levine, Groom Law Group Doug Fisher, American Retirement Association Craig Hoffma n, American Retirement Association Mark Quinn, Cetera Financ ial Group Kevin Crain, Bank of America MerrilJ Lynch Ralph Derbyshire, Fide lity Investments Could you put thi s on my calendar and invite the usual COi attendees? Thanks. -----Original Messa e---From: Brian Gra Sent: Thursday, Apri l 13, 2017 12:01 PM To: Hauser, Timothy - ESSA Cc: Sean Huff; Craig Hoffman Subj ect: Re: Potential meeting dates very much Tim the group consensus is that May 5th at 11 am is th e preferred dat e and time . Thanks and look forward to the discussion. Brian Brian Graff Chief Executive Offi cer American Retirement Association DOL-17-0281-G-000023 > On Apr 10, 2017, at 1:55 PM, Hauser, Timothy - EBSA wrote: > > How about 4/26 at 2 or 5/5 at 11? > > -----Original Messa e----> From: Brian Graff > Sent: Thu_rsday, Apn > To: Hauser, Timothy - EBSA > Cc: Sean Huff > Subject: Potential meeting dates > > Tim, so far the following firms want to participate in a meeting regarding the issues we have previously discussed by phone: > > Cetera > Fldelity > Merrill Lynch > Morgan Stanley > Raymond James > > Good group. Before working on dates with them I wanted to make sure that you didn't have any current conflicts on the following dates (and certainly let me know of you have any preferences). > > April 18, 19, 26 or 27 > May 2, 3, or 4 > . > Thanks, and look forward to beginning this conversation . Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > AMc: ICAN pVERSIGHT DOL-17-0281-G-000024 Subject: Location: Brian Graff Fishbowl N-5677 Start: End: Show Time As: Fri 5/5/2017 11:00 AM Fri 5/5/2017 12:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini, Joseph - EBSA Lloyd, Karen - EBSA;Cosby, Chris - EBSA; Hall, Lyssa - EBSA; Campagna, Lou EBSA Could you put th is on my calendar and invite the usual COi attendees? Than ks. ----Original Mess e----From: Brian Graff Sent: Thur sday, April 13, 2017 12:01 PM To: Hauser, Timoth y- EBSA Cc: Sean Huff; Craig Hoffman Subject: Re: Potential meeting dates Tim the group consensus is that May 5th at 11 am is th e preferred dat e and time. Thanks and very much look forward to the discussion. Brian Brian Graff Chief Executive Officer American Retirement Associat ion > On Apr 10, 2017, at 1:55 PM, Hauser, Timothy- EBSA > . > How about 4/26 at 2 or 5/5 at 11? wrote: > > ----Ori ginal Message----- > From: Brian Graff > Sent: Thursday, April 06, 2017 4:41 PM > To: Hauser, Timothy - EBSA > Cc: Sean Huff > Subject: Potential meetin g dates > > Tim, so far the following firms want to participate in a meeting regarding the issues we have previously discussed by phone: > > Cetera > Fidelity DOL-17-0281-G-000025 > Merrill Lynch > Morgan Stanley > Raymond James > > Good group. Before working on dates with them I wanted to make sure that you didn't have any current conflict s on the following dates (and certainly let me know of you have any preferences) . > > April 18, 19, 26 or 27 > May 2, 3, or 4 > > Thanks, and look forward to beginning this conversation. Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > AM ICAN PVERSIGHT DOL-17-0281-G-000026 Subject: Location: Call with OIRA re Fiduciary Proposed Extension of Applicability Date Start: End: Show Time As: Wed 2/22/2017-11:00 AM Wed 2/22/2017 12:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Swirsky, Stephanie - ASP Swirsky, Stephanie - ASP; Hauser, Timothy - EBSA; Harthill , Susan - SOL; Scott, William - SOL; Piacentini, Joseph - EBSA;Canary, Joe - EBSA;Turn er, Jeffrey EBSA; Peters, Pamela - ASP; Hugler , Edward - ASAM; Hansen, Megan D - SOL; Craig, James - SOL; Geale, Nicholas C. - SOL; Yerxa, Christopher W - ASAM; Rooney, Nancy -.OSEC-Dawkins Laura M - ASP Khawar, Ali - EBSA Optional Attendees: OASP Conference Room+ call in Please come t o the OASP conference room for this call. For those who are out of town the call in is below. Call-in AMc: ICAN pVERSIGHT DOL-17-0281-G-000027 Subject : Location: COi next ste ps N5677-Fishbo w l Start: End: Show Time As: M on 5/15 /2 017 3:00 PM M o n 5/1 5/20 17 3:30 PM Tent ati ve Recurrence : (none) Meeting Status : Not yet responded Organizer : Required Attend ees: Hauser, Timothy - EBSA Khawa r, Ali - EBSA; Lloy d, Karen - EBSA;Canary, Joe - EBSA; Hansen, Megan D - SOL; Piacentini, Joseph - EBSA Please invit e additional staff as needed .. AM RICAN PVERSIGHT DOL-17-0281-G-000028 Subject: Location: Start: End: Show Time As: COi Delay Comment Review Collaboration OPR Conference Room (N5707) ? Thu 3/2/2017 11:00 AM Thu 3/2/2017 12:00 PM Tentative Recurrence: (none) Meeting Status : Not yet responded Organizer: Required Attendees: Lim, Youngok - EBSA Lim, Youngok - EBSA;Campagna, Lou - EBSA;Wong, Fred - EBSA;Goodman, Elizabeth - EBSA; Kress, Marjorie - EBSA;Turner , Jeffrey- EBSA; Craig, James SOL; Hansen, Megan D - SOL; Lloyd, Karen - EBSA;Cosby, Chris - EBSA; Bloom , Teresa - EBSA; Butikofer, James - EBSA;Beckmann, Allan - EBSA; Henderson , Richard L - EBSA; Dennis, Melissa - EBSA Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Wilker, Susan - EBSA; Blinder, Warren - EBSA Optional Attendees: Hi Everyone, You are all invited to discuss the COi Delay Comment Review Process. Please feel free to forward this meeting invitat ion to appropriat e staff members in your group, if I missed. More information will follow. You can also 'oin the meeting by phone using the information below : o Hope to see you all tomorrow! Thanks! Youngok AMc: ICAN pVERSIGHT . DOL-17-0281-G-000029 Subject: Location: COi Fishbowl N-5677 Start: End: Show Time As: Wed 2/15/2017 4:30 PM Wed 2/15/2017 5:30 PM Tentative Recurrence : (none) Meeting Status: Not yet responded Organizer: Required Attendees: Hauser, Timothy - EBSA Piacentini, Joseph - EBSA;Cosby, Chris - EBSA; Decressin, Anja - EBSA Discuss COi AMc: ICAN pVERSIGHT DOL-17-0281-G-000030 Subject: Location: DOL Fiduciary Rule- IRA Bank Deposit Issue Telephone Conference Start: End: Show Time As: Wed 5/31/2017 1:00 PM Wed 5/31/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Egbuonu, Chizoba Updated- I orig inally had the wrong date. All- please use the following dial-in number and code for the call. Thanks, Chiz AMc: ICAN pVERSIGHT DOL-17-0281-G-000031 Subject: Location: Fiduciary Rule Meetings/Listening Sessions Fishbowl Start: End: Show Time As: Thu 5/25/2017 11:00 AM Thu 5/2 5/201711 :30 AM Tentative Recurrence : (none) Meeting Status: Not yet responded Organizer: Required Attendees: Canary, Joe - EBSA Piacentini, Joseph - EBSA; Hall, Lyssa - EBSA;Lloyd, Karen - EBSA;Cosby, Chris - EBSA;Scott, W illiam - SOL; Hansen, Megan D - SOL Campagna, Lou - EBSA;Turner, Jeffr ey - EBSA;Wong, Fred - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - SOL;Goodm an, Elizabeth - EBSA Optional Attendees: Purpose of the meeting is to discuss ORI, OED, OPR and PBSDstaff assignments for the listening sessions on Tuesday, May 30. From: Canary, Joe - EBSA Sent: Wednesday, May 24, 2017 9:58 AM To: Hauser, Timothy - EBSA; Piacent ini, Joseph - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Hansen, Megan D - SOL Cc: Campagna, Lou - EBSA; Turner, Jeffrey - EBSA; Wong, Fred - EBSA; Halliday, Susan - EBSA; GrilloChope, Luisa - SOL; Goodman, Elizabeth - EBSA; Kress, Marjorie - EBSA Subject: FW: Fiduciary Rule Meetings/listening Sessions Tim: Nick forwarded below as the ema il t hat is going out/already went out (7) on the list en ing session fo r this coming Tuesday. There will be two meetings - one with financial services industry people and the other with consumer groups. Lists of invitee_s is in the attached separate email from Nick. The first meeting is at 11am and the second at 3pm (I don't know which is first}. Nick said he does not want you or me to attend {I am assuming that also means Lyssa, Karen, Jeff, Lou, and Joe P). He does want staff support, however, to (1) ta ke notes and prepare a summary of the meet ings and (2} help w it h gett ing attendees to the conference _room and othe r logistics. I think best if staff from ORI, OED, OPRand PBSD all participate (one or two people per off ice). I think that will give us the best shot at a good comp rehensive summary and spread the logist ical support work around. Copying ail of the offices to get them into the loop. I w ill also ask Nick whet her they are making arrangemen ts fo r the conference room or whether he wan t s us to tak e care of that too. In light of the shortne ss of time, we may need to have him intervene wi t h DOL conference peop le if they balk. Nick also said he wou ld like some sort of script to open t he meeting. We w ill start putting somethi ng basic to gethe r. AME ilCAN pVERSIGHT DOL-17-0281-G-000032 ..--?-----?--?- ??---?--- From: Geale, Nicholas C. - SOL Sent: Wednesday,May 24, 2017 9:11 AM To: canary, Joe - EBSA Subject: Fwd: Fiduciary Rule Meeting From: "Lineberger, Timothy L - OSEC" Subject: Fiduciary Rule Meeting Date: 24 May 2017 08:42 To: y rule and Thank you for your request to meet regarding the Department of Labor's fiduciar session to listening a hold will related exemptions. Next Tuesday , May 30, Department staff regarding meet, to hear your individual views, and those of other stakeho lder groups that asked found policy ent the Secretary's announcement in the op-ed Monday and the FAQs and enforcem s . We will also below. If time permit s, Department staff may also be able to take a few question advice or group of type any seeking not are We memorial ize attendance and the conversation. recommendatio ns. ution Avenue The meeting will take place at the U.S. Department of Labor, 200 Constit that this meeting NW, Washington, DC, on Tuesday , May 30, 2017, at 11:00am. Please note Because of e. sferrabl non-tran is n invitatio is off-the-record and not for press purposes. This tion. limited space, there is a restriction to two persons per organiza May 26, with the If you plan to attend, please RSVP to this email no later than 5:00pm, Friday, early full names of all attendees for security purposes. P lease plan to arrive at least 10 minutes to allow time to clear security. @ - ? t - Labor Department News Brief U.S. Department of Labor I May 22, 2017 New fiduciary rule guidance from US Labor Department DOL-17-0281-G-000033 WASHINGTON - Fiduciary rule guidance for financial advisors, retirement plan sponsors, and This individua l workers and retirees has been published on the U.S. Labor Department 's website. date. ity applicabil 9 June rule.'s the of information comes in advance Read Frequently Asked Questions. Read the Employee Benefits Security Administration's enforcement policv. (also see Read Secretary Alexander Acosta's op-ed discussing the rule and other regulatory issues ?attached). ### Media Contacts: Jennifer Hazelton , (202) 693-4608, hazelton. jennifer@dol.gov Michael Trupo, (202) 368-8788, trupo.michael@dol.gov Release Number : 17-715-NAT AM IC \J PVERSIGHT DOL-17-0281-G-000034 Subject: Location : Morningstar Comment. OPR Conference Room (N5707) Start: End: Show Time As: Fri 4/28/2017 1:00 PM Fri 4/28/2017 2:00 PM Tentative Recurrence : (non e) Meeting Status: Not yet responded Organizer: Required Attendees : Lim, Youngok - EBSA Piacentini, Joseph - ESSA;Cosby, Chris - EBSA; Aron Szapiro ; Jeff Schwantz; Paul Ellenbogen; Julie Hi All, atio n below : If you are joining the meeting by phone , please use the info rm Thanks! Youngok \J PVERSIGHT DOL-17-0281-G-000035 Location : Fiducia ry Rule Fishbo w l N-5677 Start : End : Wed 6/21/2017 4:45 PM Wed 6/21/2017 5:45 PM Show Time As: Tentative Recurrence: (none) Meeting Status: Not yet respon de d Organizer: Required Attendees: Hause r, Timothy - EBSA Canary, Joe - EBSA; Hall, Lyssa - EBSA; Piacentini, Joseph - EBSA; Scott, Wi lliam - SOL; Khawar, Ali - EBSA Lloyd, Karen - EBSA; Turner , Jeffrey- EBSA Subject : Optional Attendees: Group for June 21 at 4:30? Please Could you calendar this meeting on the fiduciary rule with the Raben care to bring. ey inv ite Joe Canary, Lyssa Hall, Joe Piacentini, Bill Scott, and anyone th From: Francella Chinchilla Sent: Wednesday, June 1 , To: Hauser, limothy - EBSA Cc: Estuardo Rodriguez Subject : Re: Meeting Request for Secretary Acosta Hi Tim, Let's do June 21st at 4 :30pm. In attendance will be: o Board Chair Pamela Sandy o President ShannonPike o President-elect Frank Pare o Executive Director Lauren Schadle o Director of AdvocacyKaren Nystrom o and o Estuardo Rodriguez,Raben Group (he is the PoC and his cell ? Thank you! Please send along any instructionswe may need for entry. Francella On Wed, Jun 14, 2017 at 5:55 PM, Hauser , Timothywrote: EBSA DOL-17-0281-G-000036 21 st at 4:30 looks a little easier for me, but I can make either time work. Just let me know. Tim From: Francella Chinchilla Sent: Wednesday, June 14, 2017 5:43 PM To: Hauser, Timothy - ESSA Cc: Estuardo Rodriguez Subject: Re: Meeting Request for Secretary Acosta Hi Tim, We could also do the 21st at 4:30pm. Francella On Wed, Jun 14, 2017 at 5:25 PM, Estuardo Rodriguez wrote: Apologies for my delay, we have been looking at the schedules. Would 12:30 p.m work on the 20th? Es On Fri, Jun 9, 2017 at 4:04 PM, Hauser, Timothy - EBSA wrote: AMc: ICAN pVERSIGHT DOL-17-0281-G-000037 I'd be happy to meet with you on the 20 1\ but I'm afraid the morning is booked up except for 9:00 a.m. Would that work for you? If not, and you'd still like to meet, I'd be happy to look at th other dates (or late afternoon on the 20 )- Tim From: McDaniel, Keshia - OSEC June 09 2017 12:19 PM Sent: Frida To Cc: Hauser, Timothy - EBSA Subject: Meeting Request for Secretary Acosta Hello Eduardo, Per our phone conversation this afternoon, Secretary Acosta will not be able to meet with your organization due to sched _uling constraints. However, we have forwarded your request to Deputy Assistant Secretary of Program Ope ration s Tim Hauser of EBSA . I have included him on this email in order to introduce you. The Secretary thank s you for your request . We appr~ciate your understanding. Respectful! y, Keshia McDaniel Special Assistant, Scheduling & Advance, Office of the Secretary U.S. Department of Labor, 200 Constitution Avenue, NW, Washington; DC 20210 AMc: ICAN pVERSIGHT DOL-17-0281-G-000038 DOL-17-0281-G-000039 Subject: Location: FW: OMB/SIFMAmeeting on DOLfinal rule, "Definition of the Term Fiduciary - Delay of Applicability Date" EEOB238 Show Time As: . Tue 3/28/2017 4:00 PM Tue 3/28/2017 5:00 PM Tentative Recurrence: (none} Meeting Status: Not yet responded Start: End: ? Organizer: ? Brammer, JoshJ. EOP/OMB Who woul d you like to attend? -----Original Appointment----From: Brammer, Josh J. EOP/OMB Sent: Monday, March 27, 2017 5: 17 PM To: Brammer, Josh J. EOP/OMB;Hauser,Timothy - EBSA;Geale, NicholasC. - SOL; Harthill, SusanSOL;Aguilar, Brenda L EOP/OMB;Mancini, Dominic J. EOP/ OMB; Campau, Anthony P. EOP/OMB;Doyle, Emma K. EOP/OMB;Sellers, Douglas C. EOP/OMB; Swirsky, Stephanie - ASP Cc: Peters, Pamela- ASP; Dawkins, Laura M - ASP Subject: Fwd: OMB/SIFMAmeeting on DOLfinal rule, "Definition of the Term Fiduciary - Delay of Applicability Date" When: Tuesday, March 28, 2017 4:00 PM-5:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: EEOB238 Let me know if you would like to attend. We will need to send in WAVES . Stephanie Begin forwarded message: Subject: OMB/SIFMA meeting on D ma Fiduciary - Delay of Applicability Date" AMc: ICAN pVERSIGHT DOL-17-0281-G-000040 This E.O. 12866 meeting was requested by Dave Oxner, SIFMA. AMc: ICAN pVERSIGHT DOL-17-0281-G-000041 Subject: Location: FW: Fiduciary Rule meeting HOLD Start: End: Show Time As: Thu 3/23/2017 1:00 PM Thu 3/23/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Amin, Stacy C. EOP/WHO -----O riginal Appointment----From: Amin, Stacy C. EOP/WHO Sent: Friday, March 17, 2017 4:41 PM To: Amin , Stacy C. EOP/WHO; Brem berg, Andrew P. EOP/WHO; Salvi, Mary E. EOP/WHO; Sherk, James B. EOP/WHO; Knight, Shahira E. EOP/WHO; Anderson, Jessica C. EOP/OMB; Geaie, Nicholas C. - SOL; Murray, Brian (OASG); Czajkowski, Daniel V. EOP/WHO; Campau, Anthony P. EOP/ OMB Subject: Fiduciary Rule meeting When: Thursday, March 23, 2017 1:00 PM-2:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: HOLD Please send waves info to at least 24 hours in advan ce. Thank you. AMc: ICAN pVERSIGHT DOL-17-0281-G-000042 Location: HOLD Follow -up Call with OIRA re Fiduciary Proposed Extension of Applicability Date OASP Conference Room Start: End: Show Time As: Thu 2/23/2017 3:30 PM Thu 2/23/2017 4:30 PM Tentative Recurrence : (none) Meeting Status: Not yet responded . Organizer: Required Attendees: Swirsky, Stephanie - ASP Hauser, Timothy - EBSA; Harth ill, Susan - SOL; Scott , William - SOL; Piacentini, Joseph - EBSA;Canary, Joe - EBSA;Turner, Jeffrey - EBSA;Peter s, Pamela ASP; Hugler , Edward - ASAM; Hansen, Megan D - SOL; Craig, James - SOL; Geale, Nicho las C. - SOL; Yerxa, Christopher W - ASAM; Rooney, Nancy - Subject: Optional Attendees: OSEC;Dawkins, Laura M - ASP Khawar, Ali - EBSA for this call. Please HOLD pending OIRA review. PLEASEcome to the OASPconference room IC \J PVERSIGHT DOL-17-0281-G-000043 Subject : Location: Meeting with Tom McDonald (BakerHostetler) on COi N5677 Start: End: Show Time As: Mon 4/24/2017 1:00 PM Mon 4/24/2017 2:00 PM Tentati ve Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees : Khawar, Ali - EBSA Hauser, Timothy- ESSA;Geale, Nicholas C. - SOL; Canary, Joe - EBSA; Piacentini, Joseph - ESSA;Hall, Lyssa - EBSA DOL-17-0281-G-000044 Subject: Location: Next Steps in COi Rulemaking Fishbowl N5677 Start: End: Show Time As: Mon 4/10/2017 3:30 PM Mon 4/10/2017 4:30 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Hauser, Timothy - EBSA Optional Attendees: Beckmann, Allan - EBSA;Craig, James - SOL Please come prepared to discuss possible new approaches to exemptive relief for fiduciary advisers and ways to move the project forward. Thanks. AME ilCAN pVERSIGHT DOL-17-0281-G-000045 Subject: Location: Start: End: Show Time As: Morningstar Discussion on Fiduciary Rule EBSAFishbowl Conference Room; Conference Line: - Mon 2/6/2017 3:30 PM Mon 2/6/2017 5:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Zimmerman , Elaine - EBSA Optional Attendees: Blumenthal, Mara - EBSA;Grillo-Chope, Luisa - EBSA;Beckmann, Allan - EBSA; ; Lim, Youngok - EBSA Butikofer , James - EBSA Morningstar has asked to meet with DOL to share their thoughts on the Fiduciary Rule and feedback t hey've received from the industry . Below is a proposed agenda as well as the list of Morningstar attendees and their titles. Please note a call-in number has been provided for DOL employees: Agenda t9pics: o Retirement plan data and rankings; compat ibility with portfolio costs (investo r total cost of ownership) o Best Interest: Scorecard; Insights (enterpris e level surveillance); and value (and cost) of financial advice o Share classes: T, 'clean', and a new framework for identifying t he 'cheapest' share class in terms of investor situat ion o Fee disclosure based on investo r situat ion, based on five 'buckets ', and in dollars o Representation of historical returns and rankings, based on actual past performance, across product types, and full costs o 5500 modernization rule Morningstar Attendees: Paul D. Ellenbogen, Head of Global Regulatory Solutions Aron Szapiro, Director of Policy Research Scott Burns, Head of Asset Management Solut ions Jeff Schwantz, Head of Advisor Solutions Lawrence Johnson, Head of RightPond Solut ions AMc: ICAN pVERSIGHT DOL-17-0281-G-000046 DOL-17-0281-G-000047 Subject: Location: OPR Check-in on COi Fishbowl N-5677 Start: End: Show Time As: Mon 7/3/2017 11:00 AM Mon 7/3/2017 12:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Required Attendees: Hauser, Timothy - ESSA_ Piacentini, Jose h - EBSA Khawar , Ali - EBSA OPR Check-in on COi AMc: ICAN pVERSIGHT DOL-17-0281-G-000048 Subject: Location: Next Steps on COi Joe's Office Start: End: Show Time As: Thu 3/2/2017 1:00 PM Thu 3/2/2017 2:00 PM Recurrence: (none) Meeting Status: Not yet responded Tentative ? Organizer: Required Attendees: AMc: ICAN pVERSIGHT DOL-17-0281-G-000049 Subject: location: Time Changed to 1pm: COi Check-in Joe's Office o Start: End: Show Time As: Fri 6/23/2017 1:00 PM Fri 6/23/2017 1:30 PM Tentative Recurrence: (nbne) Meeting Status: Not yet responded Organizer: Required Attendees: Lim, Youngok - EBSA Piacentini, Joseph - EBSA; Butikofer, James - EBSA;Buyniski, Brian - EBSA; Beckmann, Allan - EBSA; Bloom, Teresa - EBSA Due to Joe's schedule conflicts , we are going to meet at 1pm instead of 11am. As discussed Please join the meeting by phone using the OPR conference line: Thanks! YOungok AMc: ICAN pVERSIGHT DOL-17-0281-G-000050 ------ ------------------------------------Ziegler , Mary G - WHO Swir sky , Stephanie - ASP; Hauser, Timothy - EBSA ; Davidson, Patricia J - WHO; Horrigan, Michael BLS Rooney, Nancy - OSEC ; Mittelhauser , Mark - ILAB; Harthill, Susan - SOL; Dawkins , Laura M - ASP ; Kim, Hong J - ASP; Peter s, Pamela - ASP ; Larkin, Jes sica K - ASP ; Ghanbari , Lyda - ASP ; Hugler, Edward - ASAM ; Yerxa, Christo pher W- ASAM ; Applewhaite , Helen M - WHO 4/ 13/2017 8:49:25 AM Re: Scheduling: IMF US Arti cle IV- DOL From: To: CC: Sent: Subject: Stephanie , Helen Applewhaite will represent WHO for only the last question identified for WHO. The other th ree questions identified for WHO seem more appropriate for BLS or OASP to field . Please let me know if you have questions . Mary From: Swirsky, Stephanie - ASP Sent: Wednesday , A pril 12, 20171 :32 PM To: Hauser, Timothy - EBSA ; Davidson , Patricia J - WHD; Ziegler , Mary G - WHD; Horrigan , Michael- BLS Cc: Rooney , Nancy - OSEC ; Mittelhauser , Mark- ILAB; Harthill, Susan - SOL ; Dawkins, Laura M - ASP ; Kim , Hong J - ASP ; Peters , Pamela - ASP ; Larkin, Jessica K- ASP ; Ghanbari, Lyda - ASP ; Hugler, Edward - ASA M; Yerxa, Christopher W - ASAM Subject: RE : Scheduling: IMF US Article IV - DOL Can folk s let me know this week who they will have participate in this meeting and if the tim e wo rks? Thanks! Stephanie Swirsk y De puty Assistant Secretar y for Policy ..... 11?1 o ooo ' From: Sw irsky , Stephanie - ASP Sent: Monday , April 10, 2017 12:32 PM To: Hauser Timoth - ESSA Davidson , Patricia J - WHO; Ziegler , Mary G - WHO; Horrigan , Michael BLS EC; Mittelhauser , Mark - ILAB; Harthill , Susan - SOL ; Daw kins , Laura M - ASP Cc: oo e , ; Kim, Hong J - ASP ; Peters, Pamela - ASP ; Larkin , Jessica K - ASP ; ; Hugler , Edward - ASAM; Yerxa, Christopher W - ASAM All, ' I received the below fr om Treasury. They are scheduling the 2017 IMF U.S. Article IV meetings and asking if Mo nday, June 5, 3:30 PM - 5:00 PM , wo uld work for us to brief participants. Below are the issues/questions IMF staff would like to discuss with the DO L staff . EBSA and W HD are the agencies that would participate, based on the issues raised. et7me -n1W??Jhu~ yoar staff you would like to participate. Note, as I understand it, in past years, the Department DOL-17-0281-G-000051 is generally represented by technical experts, rather than political staff. Thanks for your help, and let me know if you have any questions, Stephanie I. Department of Labor The following are suggested topics for discussion, and written answers are not requested. Fiduciary Rule: On process. What is the status of the evaluation process of the questions posed in the President's memorandum? What is the timetable for finalizing the rule and implementation? What is the process for amending the rule? How is the question on the impact of the rule on the availability of retirement products and savings information being assessed? What is the approach with respect to other questions in the President's memorandum? What, if any, possible relief or clarifications of provisions to the final rule are being considered? Wage income, labor regulations, and leave In your view, what are the reasons behind the relatively low wage growth rate over the last few years, especially for lower skilled workers in the United States? What are your expectations for wage growth in the current and next year? What can be done more broadly to raise median wages and to constrain a widening of income polarization? Do you see a role for the public sector policies? If so, which ones? What are your views on the effects of higher minimum wage on income growth? Do you think an expansion of the EITC could help with employment and income growth at the low-skilled spectrum? What are your views on the appropriateness of current regulations and their effects employment and labor compensation (e.g., overtime rule, fair labor standards)? What are your views and plans on the provisions in the Family and Medical Leave Act on eligibility and expansion of benefits? AMc: ~ICAN pVERSIGHT DOL-17-0281-G-000052 From: To: Sent: Subject: Attachments: Beth Thompson Hugler, Edward - ASAM ; Hauser, Timothy - EBSA ; Harthill, Susan - SOL 2/ 15/2017 3:04:53 PM Proposal to Delay Fiduciary Rule DOL Definition of Fiduciary Comment Letter 021517.pdf Attached please find the Futures Industry Association 's comment letter regarding DOL Definition of Fiduciary. Please do not hesitate to contact the FIA with any questions or comments. Fl: Beth Thompson I Law & Compliance Program Coordinator and Execut ive Assistant 2001 Pennsylvania Avenue NW Suite 600 ! Washington. D.C. 20006 One FIA. Global Reach. l~egional Expertise. AMc ~ICAN pVERSIGHT DOL-17-0281-G-000053 F 200 1 Pennsylvania Avenue NW Suite 600 I Washi ngton, DC 200 0 6 February 15, 2017 Acting Secretary Edward Hugler U.S.Department of Labor 200 Constitution Avenue NW Washington, DC 20210 RE: Proposal to Delay Fiduciary Rule Dear Acting Secretary Hugi er: The Futures Industry Association ("FIA")writes on behalf of our members to ask for a delay in the applicability date of the Department of Labor's ("Department") "Definition of Fiduciary" package, including the rule and all of the associated exemptions ("Fiduciary Rule"). FIA is the leading trade organization for the global futures, options and ove r-thecounter cleared derivatives markets. Its mission is to support open, transparent and competitive markets, protect and enhance the integrity of the financial system and to promote high standards of professional conduct. FIA's core constituency consists of futures commission merchants ("FCMs"),which provide clearing and execution services for clients active in financial markets around the world. FIA's FCM members play a critical role in managing systemic risk in the global financial markets. They provide the majority of the funds that support clearinghouses and commit a substantial amount of their own capital to safeguard customer transactions. FIA's membership also includes the major global exchanges, clearinghouses , t rading platforms, technology vendors , legal services, and consulting firms representing the futures and derivatives industry. As I am sure you are aware, the Fiduciary Rule is causing enormous upheaval in the financial industry . Its impact extends to FCMs, many of which are embedded in large banks . Not only are FCMs considering modifications to their client documentation as client service providers, but they also are in many cases having to coordinate with other divisions and affiliates within their bank structure on Fiduciary Rule implementation . Among the more challenging aspects of that implementation effort is work to prepare and provide relevant documentation to plans, plan investment managers and other planrelated clients and counterparties . In the absence of a delay of the April 10, 2017 , applicability date, we fear that plan trading in such usual and important instruments as futures, foreign exchange, swaps, and repurchase agreements will be harmed. AME ICAN pVERSIGHT DOL-17-0281-G-000054 Accordingly , we urge the Department to propose a delay in the applicability date for at least 180 days and to act on this proposal as expeditiously as possible. Firms need clarity as the April 10 compliance date nears. If Department staff has any questions relating to this I Lurton, Senior Vice President and General Counsel, at - ??-- ... ... :. Sincerely, Ir/Jr/"' Walt L. Lukken President & Chief Executive Officer 2 AME ICAN pVERSIGHT DOL-17-0281-G-000055 From: Sent: To: Location: Start: End: Show Time As: FW: E.O. 12866 Meeting on Requestfor Informationon FiduciaryRule and ProhibitedTransaction Exemptions Room 9258 New ExecutiveOffice Building Tue 6/13/2017 3:00:00 PM Tue 6/13/2017 3:30:00 PM Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Echols, Mabel E. EOP/OMB;Hauser,Timothy- EBSA;Scott, William- SOL;Canary,Joe EBSA;Harthill, Susan- SOL;Peters, Pamela- ASP;Dawkins,Laura M - ASP;Mancini, DominicJ. EOP/OMB;Aguilar, Brenda L. EOP/OMB;Brammer,Josh J. EOP/OMB;Ashley, ElizabethM. EOP/OMB;Rutledge, Ross A. EOP/OMB;Spavins,Rebecca L. EOP/OMB;Bomberger, Melissa 8. EOP/OMB;Swirsky, Stephanie- ASP Subject: -----Original Appointment----From: Echols, Mabel E. EOP/OMB Sent: Friday,June 09, 2017 12:25 PM To: Echols, Mabel E. EOP/OMB; Mancini,Dominic J. EOP/OMB; Aguilar, Brenda L. EOP/OMB; Brammer, Josh J. EOP/OMB; Ashley, ElizabethM. EOP/OMB; Rutledge, RossA. EOP/OMB; Spavins, RebeccaL. EOP/OMB; Bomberger, MelissaB. EOP/OMB; Swirsky, Stephanie - ASP Subject: E.O. 12866 Meeting on Requestfor Information on FiduciaryRule and ProhibitedTransaction Exemptions When: Tuesday, June 13, 2017 3:00 PM-3:30PM(UTC-05:00) EasternTime (US& Canada). Where: Room9258 New ExecutiveOffice Building Th" f o o t db J V o AARP I AMc: ICAN pVERSIGHT DOL-17-0281-G-000056 -------?------------------------------------From: Yerxa, Christopher W- ASAM Sent: To: Subject: Location : Start: End: Recurrence: Meeting Status: Oversight Meeting : House Committee on Financial Services Fiduciary Letter S-2203 OASAM Conference Room Thu 5/4/2 017 3:30:00 PM Thu 5/ 4/2017 4:00:00 PM (none) Accepted Required Attendees: Yerxa, Christopher W- ASAM;Hauser, Timothy - EBSA;Khawar , Ali - EBSA ;Page, Emily - OASAM DBC;Swirsky , Stephanie - ASP;Rooney, Nancy - OSEC ;Harthill, Susan - SOL;Barr , G. Stephen OPA ;Allen-Holmes, Tiffany - EXECSEC;Me hrens, Nathan P - OSEC;Contact - OASAM Scott, William - SOL 2017-04-28 JH to DOL regarding Fiduciary Rule.pdf Optional Attendees: Attachments: Please invite appropriate staff IIID'.il ).. 2017-04-28 JH to DOL regarding Fiduciary Rule.pdf AMc ICAN pVERSIGHT DOL-17-0281-G-000057 J EB IIENSAALING , TX,,CHAIHMAN 'll:l nitcd~rotc.silotlstof1Rtprcncntoth rr.s MAXINE WATERS, CA, H/~NKING MEMBER (Eonunitttt on.financial ~crottcs 2129'!Eta)!bUl'll~ -OU~C. '9 ftiC ? :t,o ildin_g ? llDonhington, ~(t 20115 ? April 28, 2017 The Honorable Alexander Acosta Secretary Department of Labor 200 Constitution Ave. N,W. Washington D.C. 20210 Dear Sec.retary Acosta: On February 3, 2017, the President direoted the Secretary of Labor to examine the Department of Labor's ("DOL'') final r_ule entitled Definition pf th e-tern'/, "Fiduciaiy "i Conflict ?of lnte.1-estRule -Retirem .ent Irwestme,nt .A~vi~e_.l Preside pt Trump' s Memorandum orders the DOL to rrepare an updated economic and legal analysis of the Tule and to specifically consider the potential reduction in Americans' acc~ss to retirement information , advice , and products; dislocations. or disruption s within the retirement services industry that may adversely affect investors or retirees; and the potential increas ~ in litigation or in the prices tha t investors q.nd retil'ee~ 1uust pay to gain access to retirement ,services 2. On. April 7, :2017, the DOL'f! Employee Benefit s SecU1?ityAdministration ("EBSA") issued a finalrule that contains provisions that seem to contravene the dirnctives in the Presidential Memorandum of February 33. For instance, EBSA ,determined it was appropriate to extend the applicability of the rule .by only 60 days . and certain other provisions until January 1, 2018-despitQ flatly conceding that ~he "careful and thoughtful proc~ss" required by the President's directiv e will take significantly longei? than 60 days. '1o Additionally , EBSA affirmatively stated th.at the fidtwiary definition and Impartial Con.duct .Standards "will }>ecom.eapplic~ble op, Jl.\ne 9, 2017,)' even before th e substantive comment period regarding th e review of the rule had closed. 5 'Ne are concerned that the final rule prejudged the outcome of 1 1 1?.iile, Metnora.ndum for t!?e Secr etary of Labor; Fidueial'y Dut;> 82 Ped. Reg. 9,675 (Feb . 7, 2017) . -2 3 See id. 4 Id. Ill. Defir)it~o11of the term "Fiducjary'; Conflict of Int eJ,'es~R,uie-Retirement In vest men t Advice, 82. J:i'ed. Reg, 16,902(Apr. 7,2017). 5 AMc: ICAN pVERSIGHT DOL-17-0281-G-000058 Honorable Alexander Acosta April 28 1 2017 Pa_ge2 the review in:structecl by the Presiden tial Memorandum, even if additional delays are eventually dE)emed necessary . Since the issuance of this final rule ; there have been .reports that EBSA employees adopted this approach in a calculated effort to undermine the Pr(!}sident's directive 1 thereby further jeopardizing American s' near-term access to finan'cial info1?mation and .retirement advice 6 o We are concerned by these reports that Administration staff undermined the President objectives. However , we are pleased that with your-confirmati 9n by?the Senate you will bTing much needed leadership to this issue. Due to? these cqncerns, please provide the following by Mar '12, 2017 to better inform our understanding of EBSA's actions: 1. A_llcopiml!nicEttions, betwe .e-n staff and any non-governme11t .al entity,. relating to the Pre sidential Metnora:ndum of Fo:bi:uary 3, 2017 .. 2. All communication s, between staff and any nongovernmental entity, relating to the Proposed Rule published in the Federal Reg ister on Mru?ch 2, 2017. 3. All d Conubunications , between staff and any nongovernmental entity, relating ? tQ the Final Rule publi shed in the Federal Register on Ap:ril 7, 2017. 4. All communications, b~tween sta ff and any nongovernmental entity, relating to cost beneflt analysis of the Final Rule published in the Federal Register on April 7 1 2017 .5~ All communications, betweeh staff and eP1ployees at othe-r executive bxa11ch a,gep.cies, relating to EBSA's implementation of President 's Memorandum of February 3 1 2017. Additionally , we ask that you please make Tim Hauser, th e DOL'i;, Dep-uty Assistant Secretary of the Employee Benefits Security Administration, available to brief ?committee staff on Ma y lO , 2017. 6 Review & Outlook, Labor Departmetit Mutiny, WALL ST. J., Apr. 13, 2017. AMc: ilCAN pVERSIGHT DOL-17-0281-G-000059 Honorable Alexander Acosta April 28, 2017 Page 3 I:n..the meantime , due to the uncertainty facing stakehol _ders and the millions of customers th~y serve in tue retirement advice industry with respect to ptovisions of the fiduciary rule coming into eifeet on June 9 while a comprehensive review of the 1;ule is, still ongoing , we also urge you to immediately move. to extend tue applicability d~te of the fiduciary rule in its entirety. Thank you for yom? pioo.mpt attention to this request. Since1?ely, Sul>committee on ? Market s, SecuTities, and hi .vestment Chairman Subcommittee on Oversig:ht .and Inve st igations CC: Mr. Donald F. McQahn, White :House Counsel AM ICAN pVERSIGHT DOL-17-0281-G-000060 From: Sent: Hugler, Edward - ASAM 2/6/2017 4:08:21 PM To: Show Time As: y o o o I po S-2203 ASAM Office Wed 2/8/2017 1:30:00 PM Wed 2/8/2017 2:00:00 PM Free Recurrence: Meeting Status: (none) Accepted Required Attendees: Hugler, Edward - ASAM;Hauser, limothy - EBSA ;Harthill, Susan - SOL;Palmer, Wayne D OSEC;Burr, Geoffrey G - OSEC Subject: Location: Start: End: We believe this meeting is no longer needed due to the 11am EBSA Touch Base meeting. Let us know if you have any questions. AMc: ~ICAN pVERSIGHT DOL-17-0281-G-000061 From: Sent: To: Hugler, Edward -ASAM 2/6/2017 12:43 :00 PM Subject: Location: Start: End: Recurrence: Meeting Status: Fiduciary Rule Update S-2203 ASAM Office Mon 2/6/2017 3:00:00 PM Mon 2/6/2017 3:30:00 PM (none) Accepted Required Attendees: Hugler, Edward - ASAM;Hauser , Timothy - EBSA;Palmer , Wayne D - OSEC ;Burr, Geoffrey G OSEC;Harthill, Susan - SOL AMc: ICAN pVERSIGHT DOL-17-0281-G-000062 From : Sent : To: Hugler, Edward - ASAM o I 1: on J I po Office 1:30:00 PM 2:00 :00 PM Subject: Location: Start: End: Show Time As: o o S-2203 ASAM Wed 2/8/2017 Wed 2/8/2017 Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Hugler, Edw ard - ASAM;Hauser , Timothy - EBSA;Harthill, Susan - SOL ;Palmer , Wayne D OSEC ;Burr , Geoffrey G - OSEC AMc: ~ICAN pVERSIGHT DOL-17-0281-G-000063 From: Sent: To: Location: Start: End: Show Time As: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Transaction Exemptions Room 9258 New Executive Office Building Mon 6/19/2017 11 :00:00 AM Mon 6/ 19/2017 11 :30:00 AM Free Recurrence: Meeting Status: (none) Declined Required Attendees: Echols, Mabel E. EOP/OMB ;Mancini, Dominic J. EOP/OMB;Aguilar , Brenda L. EOP/OMB ;Brammer , Josh J . EOP/ OMB;Ashley, Elizabeth M. EOP/OMB;Rutledge , Ross A. EOP/OMB ;Spavins, Rebecca L. EOP/OMB ;Bomberger, Melissa B. EOP/OMB ;Swirsky , Stephanie - ASP ;Harthill, Susan SOL;Hauser, Timothy - EBSA ;Scott , William - SOL ;Bylenok, Tasha R. EOP /OMB (lntern) ;Amin, Stacy C. EOP/WHO;Olmem, Andrew J. EOP/WHO Subject: AMc: ~ICAN pVERSIGHT DOL-17-0281-G-000064 From: Sent: To: Subject: Show Time As: Recurrence: Required Attendees: (none) Mancini, Dominic J. EOP/ OMB;Aguilar , Brenda L. EOP/ OMB;Brammer , Josh J. EOP/OMB;Ashley , Elizabeth M. EOP/OMB;Rutledge , Ross A. EOP/OMB ;Spavins, Rebecca L. EOP/ OMB ;Bomberger, Melissa B. EOP/OMB ;Swirsky, Stephanie - ASP;Harthill , Susan - SOL;Hauser , Timothy - EBSA ;Scott , William - SOL;Bylenok, Tasha R. EOP/OMB (lntern) ;Amin, Stacy C. EOP/WHO ;Olmem , Andrew J . EOP/WHO This meeting was requested by Tom McDonald , BakerHostetler on behalf of Fidelity & Guaranty Life . AM ilCAN pVERSIGHT DOL-17-0281-G-000065 From: Sent: Swirsky, Stephanie- ASP 6/9/2017 12:26:14 PM To: Subject: Show Time As: Recurrence: Required Attendees: FW: E.O. 12866 Meeting on Request for Informationon Fiduciary Rule and Prohibited Transaction Exemptions Free (none) Hauser, Timothy - EBSA;Scott, William- SOL;Canary, Joe - EBSA;Harthill,Susan - SOL;Peters, Pamela - ASP;Dawkins, Laura M - ASP -----Original Appointment----From: Echols, Mabel E. EOP/OMB Sent: Friday, June 09, 2017 12:25 PM To: Echols, Mabel E. EOP/OMB; Mancini, Dominic J. EOP/OMB; Aguilar, Brenda L. EOP/OMB; Brammer, Josh J. EOP/OMB; Ashley, Elizabeth M. EOP/OMB; Rutledge, RossA. EOP/OMB;Spavins, RebeccaL. EOP/OMB; Bomberger, Melissa B. EOP/OMB; Swirsky, Stephanie - ASP Subject: E.O. 12866 Meeting on Requestfor Information on Fiduciary Rule and Prohibited Transaction Exemptions When: Tuesday, June 13, 2017 3:00 PM-3:30 PM (LffC-05:00) EasternTime (US & Canada). Where: Room 9258 New Executive Office Building AMc ICAN pVERSIGHT DOL-17-0281-G-000066 --- ---------------------------------------From: Sent: To: Yerxa, Christopher W- ASAM 5/2/2017 8:53:02 PM Subject: Show Time As: Oversight Meeting: House Committee on Financial Services Fiduciary Letter Free Recurrence: Required Attendees: (none) Hauser, Timothy - EBSA;Khawar, Ali - EBSA;Page, Emily - OASAM DBC;Swirsky, Stephanie ASP;Rooney, Nancy - OSEC;Harthill, Susan - SOL;Barr, G. Stephen - OPA;Allen-Holmes, Tiffany EXECSEC;Mehrens, Nathan P - OSEC;Contact - OASAM 2017-04-28 JH to DOL regarding Fiduciary Rule.pdf Attachments: .. Please invite appropriate staff )- 2017-04-28 JH to DOL regarding Fiduciary Rule.pdf AMc: ilCAN pVERSIGHT DOL-17-0281-G-000067 JCB.IJENSARLING, TX,,CHAIHMAN "ll:lll_ it?Jl~totc.Sfl0llSt of'Rrptc.&tntotlUtsMAXINE.WATERS, CA H/.\N-KING MEMBER ttommttttt onj"nancial ~rmitc.s 2) 2Q '18..l) lbUl'll ~ou~e0 1lic?;)Snildi n] l lDo.o hhmton,'.'f>l!.1 0'i15 ?? April 28 , 2011 The Honorable Alexander Acosta Secretary Department of Labor 200 ConstitutionAve. N.W . Washi11gton D.C. 20210 Dear Secretary Acosta: 011 February 3, 2017, the President directed the Secretary of Labor to examine the Department of Labor 's ("DOL'') final r.ule entitled Definition of th.e-term ''Fiduciaty '7 Conflic.t ?of Interest Rii.le-Retitem .ent l1wesUnent AdviG~.1 Presidept Trump' s Memorandum ord~rs the DOL tp prepar e an updated economic and legal analysis of the rule and to specifically consider the potential reduction in Am ericans' acc<:;ssto.retirement info1?mation 1 advice , and products ; dislocations or disruptions within the retirerri.ent services industry that may adversely affect investors or retiree s,; and the potential increas e in litigation or in the prices that i11vestors and retirees 1nust pay to gain access to retirement services 2 o Ori Ap:i::il71 :2017, the DOL'~ Employee Benefits Secm ?ity Ad:ministration ("EBSN') issued a final rule that contain s prnvi sions that seem to contravene the directives in the Presiden ti al Memorandum .0f February 3s. For in stance, EBSA .determined it was appropriate to .extend the applicability of the rule '.by only 60 days . and certait1 other provision s until January 1, 2018-despite flatly conceding that ~he''caref ul and thoughtful prnces s" required by the Pre sident 's directiv e will take significantly longer than 60 days. '1? Additionally, EBSA affo:matively stated that the . fiduciary definition and Impartial Con.duct.Standards "will b:ecome applicable on Jun e 9, 2017," even before the substantive comment J?eriod regarding th e review of tlie rule had closed. 5 We ar e concer ned that the final rul e prejudged the outcome of 1 M en10randum for the Secte tar y ofLahor ; Fidu ciary Duty Rul e, 82, .B ~ed. Re g. 9,675 (Feb . 7, 2017) . ?2 See id. 3 D efinit ion of the term "Fidu ciar y''; Conflict of Inte res t R;ule-Retireme nt Investment Advicll, 82 Fed. Reg . I 6,902 (Apr. 7, 2017), 4 Id 5lll. AMc: ICAN pVERS .IGHT DOL-17-0281-G-000068 Honorable Alexande1? Acosta April 28, 2017 PaJ;e2 the rnview instructed by the Preside11tial Memorandum, even if additional delay s are eventual_ly deemed necessary. Since the issuance of this final rule; there have been reports that EBS.A employees adopted this approach in a calculated effort to und ermine the President's directive 1 thereby further jeopardizing Americans' near-term access to financial information a11dretirement .advice 6 o We are conce_rned by these reports that Administration staff undermined the President objectives. However, we are pleased tha-twith your confirmati9n by?the Senate you will bTing ?1nuch needed leadei'ship to this . issue. Due to these c9ncei?ns, please provide the following by Mar 12 , 2017 to better inform our understanding of EBSNs actions: 1. AU communicatio .ns, betwe .en staff and any non-government.al enti .ty, relating to the Pr .esidential M~mora:ndum of fe :btuary 3, 2017. 2. All communications , between staff and any nongovernmental entity, relating to the Proposed Rule publi shed in the Federal Register on March 2, 2017. 3. All d communications, between Eitaff and any nongov ernm ental entity, re1ating to the Final Rule published in the Federal Register on April 7, 2017. 4. All couimunications, between staff and any nongovernmental entity, .relating to cost benefit analysis of the Final Rul e published in the Federal Register on April 7, 2017 .5. All communications, between $taff and employee s at other executiv e btauc _h ag_Hp.cies,relating to EBSA's implementation of President' s Memorandum of February 3 1 2_017. Additionally, we aslc that you please make Tim Haus er, the DOL'$ Deputy Assistant Secretary of the Employee Benefits Security Administration, available to brief committee staff on May 10, 2017. ~Review & Outlook, Labor Depa-rtm.e11,t Mutiny, WALL ST. J., Apr. 13, 2017. AMc: ICAN pVERSIGHT DOL-17-0281-G-000069 Honorable Alexander Acosta April 28, 2017 Page 3 In the meantime , due to the uncertainty facing sta keholder s and the millions of customers they serve in the retir ement advice industry with respect to provisions of the fiduciary rule coming into elrect on June 9 while a coni.prehensive review of the rule is still ongoing, we also urge you to immediately move to extend the applicabili:ty d~te of the fiduciary rule in its entirety . Thank you for your ptompt attention to thi s request. SinceTely, Chafrman Subcommittee on Markets, Securities, and Inves tment Chairman Subcommittee on Oversight and Investigations CC: Mr . Donald F. McQahn, White House Counsel AM ICAN pVERSIGHT DOL-17-0281-G-000070 Robins, Douglas - ASAM From: Sent: To: : I o o o n ' y o I po Subject: Show Time As: Free Recurrence: Required Attendees: (none) Hauser, limothy - EBSA;Harthill, Susan - SOL;Palmer, Wayne D - OSEC ;Burr, Geoff rey G - OSEC o o We believe this meeting is no longer needed due to the 11am EBSA Touch Base meeting. Let us know if you have any questions. AMc: ICAN pVERSIGHT DOL-17-0281-G-000071 From: Sent: To: Yerxa, Christopher W - ASAM 2/6/2017 4:08:18 PM Subject: Show Time As: Fiduciary Rule Update Free Recurrence: Required Attendees: (none) Hauser, Timothy - EBSA;Harthill, Susan - SOL;Palmer, Wayne D - OSEC;Burr , Geoffrey G - OSEC AMc: ICAN pVERSIGHT DOL-17-0281-G-000072 From: Sent: To: Subject : Show Time As: Yerxa, Christopher W- ASAM 2/6/2017 12:42:57 PM Recurrence : (none) Required Attendees: . Harthill, Susan - SOL AMc: ~ICAN pVERSIGHT DOL-17-0281-G-000073 Show Time As: Harthill, Susan - SOL 6/15/2017 7:49:34 PM Echols, Mabel E. EOP/OMB Declined: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Transaction Exemptions Free Recurrence: Required Attendees: Attachments : (none) Echols, Mabel E. EOP/OMB invite.ics From: Sent: To: Subject: AMc: ICAN pVERSIGHT DOL-17-0281-G-000074 Event From: Echols , Mabel E. EOP/OMB Subject: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Transac Exemptions Begin Date/Time: 6/ 19/2017 4:00:00 PM End Date/Time: 6/ 19/2017 4 :30:00 PM Alarm Trigger : Display 15 minutes prior to Start Alarm Description: REMINDER Alarm Repeat: Repeat O times AM RICAN pVERSIGHT DOL-17-0281-G-000075 Show Time As: Harthill, Susan - SOL 6/9/20171 :16:46 PM Echols, Mabel E. EOP/OMB Ac cepted : FW: E.O . 12866 M . . Transaction Exemptions Free Recurrence: Required Attendees: Attachments: (none) Echols, Mabel E. EOP/OMB invite.ics From : Sent: To: Subject: .. - . . . . . . . . . n Fiduciary Rule and Prohibited AMc ICAN pVERSIGHT DOL-17-0281-G-000076 Event From: Echols , Mabel E. EOP/OMB Subject: FW: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Trc Exemptions Begin Date/Time: 6/ 13/2017 8:00:00 PM End Date/Time: 6/ 13/2017 8:30:00 PM Alarm Trigger: Display 15 minutes prior to Start Alarm Description: REMINDER Alarm Repeat: Repeat O times AM RICAN pVERSIGHT DOL-17-0281-G-000077 Sent: To: Subject: Show Time As: Harthill, Susan - SOL 5/2/2017 9 :12:44 PM Scott , William - SOL Oversight Meeting: House Committee on Financial Services Fiduciary Letter Free Recurrence: Required Attendees: Attachments: (none) Scott , William - SOL 2017-04-28 JH to DOL regarding Fiduciary Rule.pdf Forwarding Oversight From: Please invite: invite appropriate Meeting : House Committee on Financial Services Fiduciary Letter staff AMc:HICAN pVERSIGHT DOL-17-0281-G-000078 J[l3 1lENSAP!LING, TX, CHAIRMAN tl nitcilffe!,tott.s flotu;e of 'Rrprcnentot iuta MAXINE:WATERS, CA f\/.1.N KING MEMBER tiommittt(onj~mmtial ~rroitcs 2J2g 1Rau ou1'111i:i ou?S t @fficc;mnildlng lblon hhmton , l->lt.20'5 15 ? April28, 2017 The Honorable Alexander Acosta Secretary Department of Labor 200 Constitution Ave. N,W. Washingt .on D.C. 20210 Dear Becretary Acosta, 011 February 3, 2017, the President directed the .Secretary of Labor to examine the Department of Labor's ("DOL'') final rule e.ntitled Definition ofthe .tePnt ''Ficlucia;-y''iConflict ?of Interest Ru,le-Retitem .ent Invest,ne,nt AcJ,uice) Presidei1t Trump's Memorandum orders the DOL to prepare an updated economic and legal analysis of the rule and to specifical ly consider the potential reduction in Americans' access to retirement information, ' advice, and products; dislocations or .. disruption s within the retirement serv ices industry that may adversely affect investors or retirees; and the potential increase in litigation or in the prices that investors and retirees must pay to gain access to retirement services 2 . Op. April 7, 2017, the DOL'& Employee Benefits Security Administration ("EBSA") issued a final rule that contains provisions that seem to contravene the directives in the Presidential Memorandum 0f Feb1?u111 ~y 33o For instance, EBSA .determined it was appropriate to extend the applicability of the rule '.byonly 60 days . and certain other provisions \.U1tilJanuary 1, 2018-despite flatly con~eding that ~he ,.,careful and thoughtful pro~ess " required by the President's dil-ective will take significantly longer than 60 day s} Additionally , EBSA affirmativ ely stated that the fiduciary definition an:d Impartial Con.duct .Standards "will be?ome applicable op. J1.r11e 9, 2017," ~ven before tl:i.esubstantive comment period regarding the review of the rule had closed. 5 Vfo are concerned that the final rule prejudged the outcome- of M em.orandum for the ~ectetary of Labor ; P'idueiary Duty Rule , BZ-J 3/5/2018 9:29:21 AM ,,, ... , - .,. ,- ,-.-. Subject: Show Time As: Free Recurrence: Required Attendees: (none) OScannlain,Kate S - SOL;Harthill, Susan - SOL -----Original Appointment----From: Rutledge, Preston - EBSA Sent: Monday,March05, 2018 9:25 AM To: Rutledge, Preston- EBSA;Hauser,Timothy - EBSA;Scott, William - SOL;Piacentini, Joseph- EBSA;Wilson, Jeanne EBSA;Dorey, David R - SOL;Geale, NicholasC.-: OSEC Cc: Dundee, Mark - EBSA Subject: NO BUMP:FiduciaryRule Briefing When: Monday, March 05, 2018 3:00 PM-4:00PM(UTC-05:00) EasternTime (US & Canada). Where: S2524 Preston's Office AMc ICAN pVERSIGHT DOL-17-0281-G-000084 U.S. Department of Labor [JOVt 5 2018 Office of the Solicito r Washington, D.C. 20210 EcE,vEn 0 nNOV19 2018u B't-?----- Austin R. Evers American Oversight 1030 15th Street, NW, Suite B255 Washington, DC 20005 Dear Mr. Evers: This correspondence is in further response to your Freedom oflnformation Act (FOIA) request dated July 2 1, 20 17 (tracking number 836892) wherein you requested: 1. All calendar entries for any meetings pertaining to the developme nt, implem entation, 2. 3. 4. 5. 6. consideration, evaluation, reconsideration , or re-evaluation of the "Fiduciary Rule" or "Conflict ofl nterest Rule," 29 C.F.R. ? 25 10.3-21. For calendar entries created in Outlook or similar programs, the documents should be produced in "memo" form to include all invitees, any notes, and all attachments. Please do not limit your search to Outlook calendars--we request the production of any calendar--paper or electronic, whether on government-issued or personal device--used to track or coordina te how these individuals allocate their time on agency businesses. All meeting agendas and list of attendees for any meetings held pertaining to the development , implementation, considerat ion, evaluation, reconsideration, or reevaluation of the Conflict of Interest Rule. All lists of attendees for any meetings held pertaining to the development, implementation, consideration, evaluation , reconsideration, or re-evaluat ion of the Conflict of Interest Rule. Any materials distributed by DOL or provided by non-DOL attendees at any meetings attended by persons not employed by the executive branch and held pertaining to the development, implementation , consideration, evaluation, reconsideration, or reevaluation of the Conflict of Interest Rule. All e-mails reflecting requests for meetings with non-DOL parties to discuss the development, implementation , consideration, evaluation, reconsideration, or reevaluation of the Conflict of Interest Rule. Copies of all correspondence pertaining to the development, implementatio n, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest Rule. This includes any official corresponde nce to or from DOL, including correspondence to or from other federal agencies, as well as correspondence with or by any non-go vernmental person or entity. By email of August 31, 2017, you clarified item number 6, indicating that American Oversight would welcome the opportunity to review a log of correspondence and identify specific entries /\M RICAN PVERSIGHT that would be of interest to the organization. We provided you with that log along with our letter of May 1, 2018. As you know, your request has been assigned to multiple DOL agency components for processing. In accordance with our FOIA regulations pub lished at 29 C.F.R. ? 70.20, when it is determined that records responsive to a request may be located in multiple components of the Department, the Office oflnformation Services (OIS), within the Office of the Solicitor, may coordinate a Depaiimenta l response . In this instance , my staff in OIS continues to work with the assigned agency components to process records deemed responsive to your request. This response contain s the monthly release of responsive records from the Employee Benefits Security Adm inistration (EBSA) and the Plan Benefits Security Division of the Office of the Solicitor (SOL), in accordance with the Joint Status Report (JSR) filed on July 11, 2018 . As reflected in the JSR , the Department of Labor agreed to provide monthly releases of EBSA records and to process SOL's records in a specific order. Regard ing the Office of the Solicitor's records , this response provides the fourth release of respon sive records from the tranche. Consistent with the schedule from the JSR, the referenced agency components located 491 pages of records for this response. We are releasing them in the following manner (note that some page s may include redactions und er more than one exemption) : o o o 391 pages are being released in full; and 2 pages have been redacted in part pursuant to 5 U.S .C. ? 522 (b)(5), which permit s the withholding of record s reflecting deliberative materia ls such as advisory opinion s and recomm endations, and 101 pages have been redacted in part pursuant to 5 U.S.C. ? 522 (b)(6), which perm its the withholding of personnel , medical and similar files when disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Please note that additional responsi ve documents will be prov ided to you on a rolling basis. Question s regarding this response can be addressed to Sharon Hudson, SOL FOIA Coordinator, by phon e at 202-693-5406 or by email at hudson.sharon @dol.gov. If you need any further assistance or would like to discuss any aspect of your request, please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks, at 202-693-5427 or by email at hicks.thomas@dol.gov . Alternative ly, you may contact the Office of Government Information Services (OG IS) to inquire about the mediation servic es they offer. The contact information for OGIS is as follows : Office of Gove rnment Information Services, Nat ional Archives and Records Administration, 8601 Ade lphi Road, College Park, MD 20740-6001. You can also reach that office by email at ogis@nara .gov, by phone at 202-741-5770, by fax at 202-741-5769, or by calling toll-free at 1877-684-64 48. Although this matter is current ly in litigation, you retain the right to file an admini strative appeal. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the grounds for the appeal, and it may include any /\M RICAN PVERSIGHT supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal, please include your mailing address and daytime telephone number, as well as a copy of the initial request and copy of this letter. The envelope and appeal letter should be clearly marked "Freedom oflnfonnat ion Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. The appeal should be addressed to the Solicitor of Labor, Division of Manag ement and Administrative Legal Services, U.S . Department of Labor , 200 Constitution Avenue, N .W., Room N-2428, Washington, D.C. 20210. Appeals may also be submitted via email at foiaappeal@dol.gov . FOIA appeals submitted to any other email address will not be accepted. Sincerely, ;5~} ;' ~ Deputy Solicitor for Regional Enforcement Enclosures /\MERICAN PVERSIGHT Edozie. Melinda U - ESSAon behalf of Hauser. Timothy - EBSA Patrick McCormick(mfpllc@gmail.com): Canary. Joe - EBSA;Hall. Lyssa - EBSA;Khawar. Ali - EBSA;Piacentini. Joseph - EBSA;Scott, William - SOL Patrick McCormick From: To: Subject: Mr. McCormick, Mr. Hauser will hold.the meeting in the Francis Perkins Building, Room N-5677. To access the buildinfj please use the visitor's entrance at C St and 3rd St NW. When you check in with the guards, have them call Melinda Edozie at extension????wal come down to escort the you up to the (b) (6) room. Please be sure to arrive at least 10 minutes early in case there is a wait at the security desk Thanks, Melinda Edozie I will be in DC to meet with several other Leaders on June 20, which my schedule is open after 2:30 PM, and I am free most of the 21st and can move things around to accommodate meeting you. My very good Friend Congressman Lenard Lance speaks highly or you, as does my brother in law Bob Dix. As you may know I served many years on those grounds, and look forward to returning. Patrick McCormick MVGroup Chairman On Fri, Jun 9, 2017 at 3:46 PM, Hauser, Timothy - EBSA < HYPERLINK "mailto:(b) Dear Mr. McCormick, I'd be happy to meet with you to discuss the impact of the fiduciary adv I and times that work for you to Melinda Edozie ( HYPERLINK "mailto:(b) something up. o I I o I (6)(b) (6)(b) (6)(b) (6) t I. I I I I oII . o . (6)(b) (6)(b) (6)(b) (6)(b) (6) ol.gov> wrote: t could send some dates ) and we will set Tim Hauser From: McDaniel, Keshia - OSEC Sent: Friday, June 09, 2017 To: HYPERLINK "mailto: (b) (6)(b) (6)(b) Cc: Hauser, Timothy - EBS Subject: Meeting Request for Secretary Acosta (6)(b) (6) Dear Mr. McCormick, Secretary Acosta will not be able to meet with your organization due to scheduling constraints. However, we have forwarded your request to Deputy Assistant Secretary of Program Operations Tim Hauser ofEBSA. I have included him on this email in order to introduce you. The Secretary thanks you for your request. We appreciate your understanding. Respectfully, Keshia McDaniel (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Patrick C McCormick MV Group Chairman lliiila (b) (6)(b) (6) ncial Products LLC http://www.themvgroup.com/ This email is confidential, intended only for the named recipient(s) above and may contain information that is privileged'. If you have received this message in error or are not the named recipient(s), please notify the sender immediately or call 800-272-7181 and delete this email message from your computer as any and all unauthorized distribution or use of this message is strictly prohibited. Thank You. A\111HICAN PVERSIGHT DOL-17-0281-H-000001 From: To: Subject: Edozie, Melinda U - EBSAon behalf of Hauser. Timothy - EBSA Canary, Joe - EBSA; Hall. Lyssa- EBSA;Piacentini. Joseph - ESSA;Scott, William - SOL; Khawar. Ali - EBSA Fiduciary Rule Cou ld you calendar this meet ing on the fidu ciary rule with the Raben Group for June 21 at 4:30? Please invite Joe Canary, Lyssa Hall, Joe Piac entin i, Bill Scott, and anyone they care to brin g. (b) (6)(b) (6)(b) (6)(b) (6) From: Francell a Chinchill Sent: Wednesd ay, June 14, _ To : Hauser, Timothy - EBSA Cc: Estuardo Rodriguez Subjec t: Re: Meeting Request for Secretary Acost a Hi Tim, Let's do June 2 1st at 4:30pm. In attendance will be : Board Chair Pame la Sandy President Shannon Pike President- elect Frank Pare Executi ve Director Laur en Schadle Director of Advo cacy Karen Nystrom and Estuardo Rodriguez, Raben Group (he is the PoC and his cell is HYP ERLINK "tel:(202)%206 31-2892"(202) 63 1-2892) Thank you I Please send along any instru ctions we may need for entry . Francella FRAN CELL A CHIN CHILLA! DIRECT OR tr.:I, ?- AAo o o~ (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) I THE RABEN o GROU P N DC 20005 I HYP ERLINK "https://twitter. corn/frenchica" @FRENCHICA On Wed , Jun 14,201 7 at 5:55 PM, Haus er, Timoth y - EBSA < HYPERLINK "mailto (b) (6)(b) 21st at 4?:30 looks a little easier for me , but I can make either time work. Just let me know. (6)(b) (6)(b) (6)(b) (6) wrote: Tim From: Franc ella Chinchilla [mailto: HYPE RLINK "mailto: Sent Wednesday, June 14, 2017 5:43 PM To: Hau ser, Timothy - EB SA Cc: Estu ard o Rodrigue z Subject: Re: Meeting Request for Secretary Acosta (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Hi Tim , We could also do the 21st at 4:30pm . Francella FRANC ELLA CHINCHILLA! DIRE CTOR I THE RABEN GROUP 1341 G STNW, 20005 HYPE RLINK "tel ?I ? I ????-??-?? DIRECT I HYPERLINK "te1(202)%20466-8585"202 "https:/ /twitt er. com/fr enchica"@FRE NC HI CA 5TH FLOOR I WASHfNRJWPS On Wed , Jun 14, 2017 at 5:25 PM, Estuardo Rodri guez< HYPERLINK "mailto (b) Apologi es for my delay, we have been looking at the schedules. Wou ld 12:30 p. Es . 466 8585 MAIN I HYP ERL INK (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On Fri , Jun 9, 2017 at 4:04 PM, Hauser , Timothy - EBSA < HYPERLINK "mailt (b) I'd be happy to meet with you on the 20th, but I'm afraid the morn ing is booked u o still like to meet, I'd be happy to look at other date s (or late aftern oon on the 20th ). (6)(b) (6)(b) (6)(b) (6)(b) (6) -, ' '' - ,, oo o . u, o ,, ' ote: wrote: and you'd Tim From: McDaniel, Kesh ia - OSEC o o '11'.4 Sent Friday, June oo To: HYPE RLINK (b) (6)(b) (6)(b) (6)(b) Cc: Hauser , Timo Subje~t: Meeti ng Request for Secretary Acosta (6)(b) (6)(b) (6)(b) (6) Hello Eduardo, Per our phone conversation this afternoon, Secretary Acosta will not be able to meet with your organization due to scheduling constraints. Howeve r, we have forwarded your request to Deputy Assistant Secre tary of Progra m Operations Tim Hauser ofEBSA. I have included him on this email in order to introdu ce you. AMERICAN pVERSIGHT DOL-17-0281-H-000002 The Secretary thanks you for your request. We appreciate your understandi ng. Respectfully, Keshia McDani el Special Assistan t, Scheduling & Advan ce, Office of the Secretary 0 " " HYPERLINK "tel:(202) %20295-714 4"202.2 95.7144 I (E) HYPE RLINK 0 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) ashington, DC 20210 ESTUARD O V. RODRI GUEZ JR I PRINC IPAL I THE RABEN GROUP 1341 GStre etNW5thFlo or I WASHINGTO NDC2 0005 HYPERL INK "teL202%C2%A 0463%204806" 202 463 4806 DIREC T I HYPERLINK "tel:202 %20466%208 585!'202 466 8585 MAIN HYPERLINK "tel:202%2 0631 %202892"202 631 2892 MOBIL (b) (6)(b) (6)(b) (6)(b) (6) HYPERL INK "mailto:ERODRIGUEZ@RABENGROUP.COij????? I HYPERL INK "http://www.rabe ngroup.com/"WWW. RAB ENGROUP.COM HYPERLINK "https://twitter.com/TheRabenGroup " I HYPERL INK "https ://twitter. com/TheRabenG roup" AM::=RICA\J pVERSIGHT DOL-17-0281-H-000003 From: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) To: Subject: Good Morning, The Address is: 200 Constitution Ave. NW Washington DC, 20210 FPB N-5677 Mr. Hauser will host this meeting in the Francis Perkins Building, Room N-5677. To access the building, please use the visitor's entrance at C St and 3rd St NW . When you check in with the guards, have them call Melinda Edozie at extension 3-8433 . I will come down to escort you up to the room . Please be sure to arrive at least IO minutes early in case there is a wait at the security desk. Thanks , Melinda Edozie (b) (6) Call in number (b) (6) That sounds great, Melinda -- here's who [ recommend be in attendance for the call: Tim Hauser (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Derren Burrell , CDFM, AIF(R) Chief Operating Officer I TAG Resources, LLC .. . xviUe, TN 37919 . . . ' HYPERL INK "http://tagresources.com"www .tagresources. com Notice: This electronic mail transmission is for the use of the named individual or entity to which it is directed and may contain information that is privileged or confidential. It is not to be transmitted to or received by anyone other than the named addressee (or a person authorized to deliver it to the named addressee). It is not to be copied or forwarded to any unauthorized persons . If you have received this electronic mail transmission in error, delete it from your (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) I ..... , . .. . . . To: McDaniel , Keshia - OSEC Cc: Troy Tisue Subject: Meeting request with Sec Acosta regarding COi Rule Keshia, Thank you for discussion today on the best path forwa rd in getting an audience with the Secretary to discuss the Conflict oflnteres t (CO[) Ru le and a potential enhancement program to the rule as it stands to day. TAG Resou rces is a third party administrator (TPA) out of Knoxville, TN, and as such does not subscribe to one particular view on the efficacy of the rule in its current form, we simply desire to increase the retirement opportunities for Americans. Our TP A has been instrumental in the past in obtaining clarification/passage from various DoL/Congressio nal actions on certain retirement initiatives (e.g., Open MEP, 5500 Relief for Prototype Plan, etc). Our staff is very experienced in working within DC avenues to help the administration meet its goals. Per your direction, here's the details : What: Meeting request with the Secretary of Labor to discuss mitigation strategies and enhancements to the COi rule Attendees: Troy Tisue, President TAG Resources Derren Burre ll, COO, TAG Resources Bob Toth, ERISA Attorney Scott Albert , DOL/EBSA Bottom-line Benefits: [ncrease opportunities for the retirement industry by utilizing outsourced expert fiduciaries (i.e., 3(16) P lan Administrator and 3(38) Investments Manager) to allow different certification requirements to facilitate the selling of retirement plans. This will address the concerns of the insurance industry wltile still meeting the intent of the COi. Also to leverage existing policies Format/Date: Would prefer in-person anytime after June [6. Able to do teleconference call if necessary. Background Details: A\111HICAN PVERSIGHT DOL-17-0281-H-000004 Point is to encourage coverage in the best interest of the participant; not exclude the advisor population that does no.I have a significant retirement business o Recommendation: Rely on industry experts who perform fiduciary services and thus assume liability: this should shift the fiduciary requirement from the advisor Put forth the idea that utiliz ation ofa product with built-in fiduciary protection (i.e., Full 3(16) Plan Administrator and 3(38) Investment Manager in the Prototype Model) allows the "expert advice" that would permit an advisor to utilize the BIC exemption clause o May have to modify BIC , but this was occurring anyway To encourage further streamline /increase coverage, also add to the COI rule an amendment allowing 5500 relief to the Prototype Plan Hopefully this is enough information , but I'm happy to provide further info should you have any questions. v/r, Derren Derren Burr ell, CDFM, AIF(R) Chief Operating Officer I TAG Reso urces, LLC 6322 Deane Hill Drive , Suite 20 1, Knoxvi lle, TN 37919 HYPERLINK "tel:(865)%20670- 1844"865.670.1844 office I HYPERLINK "tel:(865)%20670-0227"865.670.0227 fax HYPERLINK "http://tagresource s.com"www. tagresources.com Notice: This electronic mail transmission is for the use of the named individual or entity to which it is directed and may contain information that is privileged or confidential. It is not to be transmitted to or received by anyone other than the named addressee (or a person authorized to deliver it to the named addressee). It is not to be copied or forwarded to any unauthori zed persons. If you have received this electronic mail transmission in error, delete it from your system without copying or forwarding it, and notify the sende r of the error by replying via email or calling TAG Resources, LLC at HYPERLINK "tel:+ 1865670184 4"865-670-1844, so that our address record can be corrected. IRS Circular 230 disclo sure: HYPERLINK "https://www.irs.gov /pub/irs-utl/Revised _Circular_230 _ 6_-_ 2014. pdf'Click here AMf HICAN PVERSIGHT DOL-17-0281-H-000005 From: To: Subject: AMr RICA PVERSIGHT Edozie.MelindaU - EBSAon behalf of Hauser.Timothy - EBSA Canary.Joe - EBSA;Piacentini.Joseph - EBSA;Hall. Lyssa- EBSA COi DOL-17-0281-H-000006 u- From: To: EBSAon behalfof Hauser.nmothy - EBSA Edozie.Melinda Canary. Joe - EBSA;Piacentini.Joseph- EBSA;Hall. Lyssa- EBSA Subject: COi AM~ HICA\J PVERSIGHT DOL-17-0281-H-000007 From: To: Hauser. Timothy - EBSA Hall Lyssa- EBSA;Lloyd. Karen - EBSA Subject: COI AM~ HICA\J PVERSIGHT DOL-17-0281-H-000008 From: To: Subject: AMERICA\J PVERSIGHT Edozie.MelindaU - EBSAon behalf of Hauser.Timothy - EBSA Hall. Lyssa- EBSA;Uoyd. Karen - EBSA COi DOL-17-0281-H-000009 From: To: Subject: Uoyd. Karen- EBSAon behalf of Cooney Anne Hall Lyssa- EBSA;Pinto. Dean; D"Ellsa. ThomasJ; Lloyd. Karen - EBSA FW: Followup Call on DOLFiduciary Rule -----Original Appoin From: Cooney, Ann (b) (6)(b) (6)(b) (6)(b) (6) Sent: Wednesday , M To: Cooney, Anne ; Pinto, Dean; D'Elisa , Thomas J; Lloyd, Karen - EBSA Subject: Follow up Cal l on DOL Fiduciary Rule When: Wednesday, June 07, 2017 12:00 PM-12:30 PM (UTC-05 :00) Eastern Time (US & Canada). Where: Anne's dial-in Participan t Code: MS Access: NA Access: Toll free: (b) (6) NOTICE : Morgan Stanley is not acting as a municipal adviso r and the opinions or views contained herein are not intend ed to be, and do not constitu te, advice mthin the meaning of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protec tion Act. If you have received this commun ication in error, please destroy all electronic and paper copies and notify the sender immediately. Mistransmission is not intended to waive confidentiality or privilege. Morgan Stanley reserve s the right, to the extent permitted under applicable law, to monitor electronic communications. This message is subject to term s available at the following link : http://www .morganslanley.com /disclaimers If you cannot access these links, please notify us by reply message and we will send the contents to you. By communicating with Morgan Stanley you consent to the foregoing and to the voice recording of conversations with personnel of Morgan Stanley . AMERICAN PVERSIGHT DOL-17-0281-H-000010 Lloyd. Karen - EBSAon behalf of Julie Mochan Hall. Lyssa- EBSA;Wilker. Susan- EBSA;Lloyd. Karen - EBSA;Nick Scalzo; Megan Meade; Rick Lavin FW: Fiduciary Ruling explore/DOLDiv ClassExemptions From: To: Subject: (b) (6)(b) (6) (b) (6) (b) (6) AMERICAN PVERSIGHT DOL-17-0281-H-000011 From: To: Subject: Lloyd. Karen - EBSA Hall. Lyssa- EBSA(b) Fiduciary Rule Lyssa and Karen to call Frank at-(b) A\111HICAN PVERSIGHT (6)(b) (6)(b) (6)(b) (6) (6) DOL-17-0281-H-000012 From: To: Cc: Subject: Canary.Joe - EBSA Piacentini.Joseph - EBSA;Hall. Lyssa- EBSA;Lloyd. Karen - EBSA;Cosby.Chris - EBSA;Scott. William - SOL; Hansen Megan D - SOL Campagna.Lou - EBSA;Turner. Jeffrey - EBSA;Wong. Fred - EBSA;Halliday. Susan- EBSA;Grillo-Chope.Luisa SQ!.;Goodman.Elizabeth- EBSA FiduciaryRule Meetings/ListeningSessions Purpose of the meeting is to discuss ORI , OED, OPR and PBSD staff assignments for the listening session s on Tuesday , May 30. From: Canary, Joe - EBSA Sent: Wednesday, May 24, 2017 9:58 AM To: Hauser, Timothy - EBSA; Piacentini, Joseph - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Hansen, Megan D - SOL Cc: Campagna, Lou - EBSA; Turner, Jeffrey - EBSA; Wong, Fred- EBSA; Halliday, Susan - EBSA; Grillo-Chope, Luisa - SOL; Goodman, Elizabeth - EBSA; Kress, Marjorie - EBSA Subject: FW: Fiduciary Rule Meetings/Listening Sessions Tim: Nick forwarded below as the email that is going out/already went out(?) on the listening session for this coming Tuesday. There will be two meetings - one with financial services industry people and the other with consumer groups . Lists of invitees is in the attached separate email from Nick. The first meeting is at I lam and the second at 3pm (I don't know which is first). Nick said he does not want you or me to attend (I am assuming that also means Lyssa , Karen, Jeff, Lou, and Joe P). He does want staff support , however , to (I) take notes and prepare a summary of the meetings and (2) help with getting attendees to the conference room and other logistics . I think best if staff from ORI , OED, OPR and PBSD all participate (one or two people per office). I think that will give us the best shot at a good comprehensive summary and spread the logistical support work around. Copying all of the offices to get them into the loop. I will also ask Nick whether they are making arrangements for the conference room or whether he wants us to take care of that too. In light of the shortness of time, we may need to have him intervene with DOL conference people if they balk. Nick also said he would like some sort of script to open the meeting. We will start putting something basic together. PS: I suggested twice that the email not expressly say the conversation will be memorialized because that is just going to generate requests for the memorialization, but they apparently decided otherwise. From: Geale, Nicholas C. - SOL Sent: Wednesday, May 24, 2017 9:11 AM To: Canary, Joe - EBSA Subject: Fwd: Fiduciary Rule Meeting (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: "Lineberger, Timothy L - OSEC" < HYPERLINK "mail to: Subject: Fiduciary Rule Meeting Date: 24 May 2017 08:42 To: Thank you for your request to meet regarding the Department of Labor's fiduciary rule and related exemptions. Next Tuesday, May 30, Department staff will hold a listening session to hear your individual views, and those of other stakeholder groups that asked to meet, regarding the Secretary's announcement in the op-ed Monday and the FAQs and enforcement policy found below . If time permits, Department staff may also be able to take a few questions. We will also memorialize attendance and the conversation. We are not seeking any type of group advice or recommendations. The meeting will take place at the U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC, on Tuesday, May 30, 2017, at 11:00am. Please note that this meeting is off-the-record and not for press purposes. This invitation is non-transferrable. Because of limited space, there is a restriction to two persons per organization . If you plan to attend, please RSVP to this email no later than 5:00pm , Friday , May 26, with the full names of all attendees for security purposes. Please plan to arrive at least 10 minutes early to allow time to clear security . Labor Department News Brief U.S. Department of Labor I May 22, 2017 New fiduciary rule guidance from US Labor Department WASHINGTON - Fiduciary rule guidance for financial advisors, retirement plan sponsors, and individual workers and retirees has been published on the U.S. Labor Department's website. This information comes in advance of the rule's June 9 applicability date. Read HYPERLINK "https://www.dol .gov/sites/default/fil es/ebsa/about-ebsa/our-activiti es/resource-center /faqs/coi-transition-period .pdf' Frequently Asked Questions. Read the Employee Benefits Security Administration's assistance-bulletins/2017-02" enforcement policy. HYPERLINK "https://www .dol.gov/agencies/ebsa/employers-and-advisers /guidance/field- Read HYPERLINK "https://www.wsj.com/arti cles/ deregulators-must-follow-the- law-so-regulators-will-too-14 9 5494029" Secretary Alexander Acosta's op-ed discussing the rule and other regulatory issues (also see attached). ## # AMERICAN PVERSIGHT DOL-17-0281-H-000013 Media Contacts: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) AMERICAN PVERSIGHT DOL-17-0281-H-000014 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini,Joseph - EBSA;Lloyd, Karen - EBSA;Cosby, Chris - EBSA;Hall Lyssa- EBSA; Campagna, Lou - EBSA Turner, Jeffrey - EBSA Brian Graff -- Fiduciary Rule Tim please see below the list of attendees for the meeting on May 18th at 11 am. Look forward to seeing you. Brian Brian Graff, American Retirement Association David Levine, Groom Law Group Doug Fisher, American Retirement Association Craig Hoffman, American Retirement Association Mark Quinn, Cetera Financial Group Kevin Crain, Bank of America Merrill Lynch Ralph Derbyshire, Fidelity Investments Could you put this on my calendar and invite the usual COl attendees? Thanks. -----Original Mes From: Brian Graf (b) (6)(b) (6)(b) Sent: Thursday, Ap , :,: To: Hauser, Timothy - EBSA Cc: Sean Huff; Craig Hoffman Subject: Re: Potential meeting dates ' (6)(b) (6) ' - Tim the group consensus is that May 5th at 11 am is the preferred date and time. Thanks and very much look forward to the discussion. Brian Brian Graff Chief Executive Officer American Retirement Association (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) > On Apr 10, 2017, at 1:55 PM, Hauser, Timothy - EBSA < HYPERLINK > > How about 4/26 at 2 or 5/5 at 11? > > -----Original Message----> From: Brian Graff [mailto (b) (6)(b) (6)(b) (6) > Sent: Thursday, April 06, 2017 4:41 PM > To: Hauser, Timothy - EBSA > Cc: Sean Huff > Subject: Potential meeting dates > > Tim, so far the following finns want to participate in a meeting regarding the issues we have previously discussed by phone: > > Cetera > Fidelity > Merrill Lynch > Morgan Stanley > Raymond James > > Good group. Before working on dates with them l wanted to make sure that you didn't have any current conflicts on the following dates (and certainly let me know of you have any preferences). > > April l 8, 19, 26 or 27 > May 2, 3, or 4 > > Thanks, and look forward to beginning this conversation. Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > AMERICAN __ PVERSIGHT DOL-17-0281-H-000015 From: To: Subject: Egbuonu. Chizoba Canary. Joe - EBSA; Rebecca Zak; Orange, Michael W.; Turner. Jeffrey - EBSA; Michael Ofori-Kuraqu; Ackmann. Rachel J.; Campagna. Lou - EBSA; Craig James - SOL; Lloyd, Karen - EBSA; Wong. Fred - EBSA; Hansen Megan D - SOL; Hall. Lyssa - EBSA; Halliday , Susan - EBSA; Hauser. Timothy - EBSA; Scott. William - SOL; Piacentini, Joseph - EBSA; Miller. Joel; Dalton. Tish DOL Fiduciary Rule- IRA Bank Deposit Issue Updated- I originally had the wrong date. All- please use the following dial-in number and code for the call. Thanks, Chiz (b) (6) AMLHICA\J PVERSIGHT DOL-17-0281-H-000016 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Lloyd, Karen - EBSA;Cosby, Chris - EBSA;Hall, Lyssa - EBSA; Campagna, Lou - EBSA Turner, Jeffrey - EBSA Brian Graff -- Fiduciary Rule Tim please see below the list of attendees for the meeting on May 18th at 11 am. Look forward to seeing you. Brian Brian Graff, American Retirement Association David Levine, Groom Law Group Doug Fisher, American Retireme nt Association Craig Hoffman, American Retire ment Association Mark Quinn, Cetera Financial Group Kevin Crain, Bank of America Merrill Lynch Ralph Derbyshire, Fidelity Investments Could you put this on my calendar and invite the usual COI attendees? Thanks. -----Origi nal Message----(b) (6)(b) From: Brian Graff [mailto Sent: Thursday, April 13, To: Hauser, Timothy - EBSA Cc: Sean Huff; Craig Hoffman Subject: Re: Potential meeting dates (6)(b) (6) Tim the group consensus is that May 5th at 11 am is the preferred date and time. Thank s and very much look forward to the discussion. Brian Brian Graff Chief Executive Officer American Retirement Association > On Apr 10, 2017, at 1:55 PM, Hauser , Timothy - EBSA < HYPERLINK "mailt > > How about 4/26 at 2 or 5/5 at 11? > > -----Original Message---(b) (6)(b) (6)(b) (6) > From : Brian Graff [mailt > Sent: Thursday , April 06, _ > To : Hauser , Timothy - EBSA > Cc: Sean Huff > Subject: Potential meeting dates (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) > > Tim, so far the following firms want to participate in a meeting regarding the issue s we have previously discussed by phone: > > Cetera Fidelity > Merrill Lynch > Morgan Stanley > Raymo nd James > > Good group. Before working on dates with them I wanted to make sure that you didn't ?have any current conflicts on the following dates (and certainly let me know of you have any preferences). > > > April 18, 19, 26 or 27 > May 2, 3, or 4 > > Thanks, and look forward to beginning this conversation. Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > AMLHICA\J PVERSIGHT DOL-17-0281-H-000017 From: l"o: Subject: AM[ HICAN PVERSIGHT Hauser,Timothy - EBSA Canary, Joe - EBSA;Campagna, Lou - EBSA;Hall, Lyssa- EBSA;Lloyd, Karen - EBSA;Piacentini, Joseph - EBSA; Cosby, Chris - EBSA;Scott William - SOL; Hansen, Megan D - SOL; Geale, Nicholas C. - SOL Meeting with Fidelity Representatives-- COI DOL-17-0281-H-000018 From: Canary, Joe - EBSA To: Hauser, Timothy - EBSA; Piacentini, Joseph - EBSA; Hall: Lyssa - EBSA; Lloyd, Karen - EBSA; Campagna, Lou EBSA; Turner, Jeffrey - EBSA Subject: IAA Barr Meeting on COI (Hold) Meeting with Investment Adviser Association. AM[ HICAN PVERSIGHT DOL-17-0281-H-000019 From: To: Subject: Edozie. Melinda U - EBSAon behalf of Hauser. Timothy - EBSA Canary. Joe - EBSA;Piacentini. Joseph - EBSA;Lloyd, Karen - EBSA;Cosby, Chris - EBSA;Hall. Lyssa- EBSA; Campagna. Lou - EBSA Brian Graff Could you put this on my calendar and invite the usual COi attendees? Thank s. -----Original Message- ---(b) (6)(b) From : B rian Graff [ma ilto Sent: Thur sday, Apr il 13, To: Haus er, Timothy - EBSA Cc: Sean Huff; Craig Hoffm an Subject: Re: Potent ial mee ting dates (6)(b) (6) Tim the group consensus is that May 5th at 11 am is the preferred date and time. Th anks and very much look forward to the discussion. Brian Brian Graff Chief Executive Officer Americ an Retirement Association > On Ap r 10, 2017 , at 1:55 PM , Hau ser, Timothy - EBSA > How abou t 4/26 at 2 or 5/5 at 11? > > ----- Ori ginal Messag e----- ~ > From: Brian Graff [mailto (b) (6)(b) (6)(b) (6) 17 : > Sent: Thursday, April 06, > To: Ha user, Timothy - EBSA > Cc: Sean Huff > Subje ct: Potential meeting dates > > Tim, so far the following firms want to partic ipate in a meeting regarding the issues we have previously discussed by phon e: > > Cete ra > FTdelity > Merri ll Lynch > Morga n Stanle y > Raymond James (6) te: > > Good gro up. Befo re worki ng on dates with them I wanted to make sure that you didn"t have any current co nflict s on the following dates (and certain ly let me know of yo u have any preferences ). > > Ap ril 18, 19, 26 or 27 > May 2, 3, or 4 > > Thank s, and look forward to beginnin g this con versation. Brian > > > > Bria n Graff > Chief Executive Officer > Ameri can Retirement Association > AMLHICA\J PVERSIGHT DOL-17-0281-H-000020 From: To: Subject: Gatesman, Valerie - EBSA Lloyd, Karen - EBSA;Hall, Lyssa - EBSA Phone Call Regarding the Department"s Fiduciary Rule 1 PM EST, 10 am PST From: Gatesman , Valerie - EBSA Sent: Tuesday, April 18, 20 I 7 1:11 PM To: "Michael and Erika Overall" Subject: RE: Your l2/18/16 e-mail to Secretary Tom Perez Good Afternoon, Ms . Overall, Ms. Lyssa Hall and Ms. Karen Lloyd from EBSA's Office of Exemption Determin ations will contact you at I p.m. EST, 10 a.m. PST, Thursday, April 20, 20 17 at the number you provided below. Valerie A. Gatesman Special Assistant Office of the Acting Assistant Secretary Em lo ee Benefits Security Administration (b) (6) (b) (6)(b) (6)(b) (6) From: Michael and Erika Overall [mailt Sent: Monday, April 17, 2017 10:19 PM To: Gatesman, Valerie - EBSA Cc: erika.overall Subject: Re: Your 12/18/16 e-mail to Secretary Tom Perez Dear Valerie, I apologiz e for the delay in getting back to you. Your email got pushed down a little in my inbox and I forget about it over the holiday weekend. I would love to schedule a time to learn more about any updates to the fiduciary rule and its impact on adviser compensation arrangements. I work Monday - Friday from 8 am - 4:30 pm (PST) but can easily schedule a break during the day to take a phone call. My work number is (206) 477-2803 and Twill try to call in the morning myse lf as we ll. Thank you very much for responding to my concerns, I truly appreciate it. Erika Overall From: Gatesman, Valerie - EBSA < HYPERLINK "mailto (b) (6)(b) (6)(b) Sent: Wednesday, April 12, To : HYPERLINK "mailto: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Subject: Your 12/18/16 e-m (6)(b) (6)(b) (6)(b) (6)(b) (6) Dear Ms. Overall, On December 18, 20 16, yo u sent the attached e-mail to then-Secretary Thomas Perez concerning the Department 's final rule under the Employee Reti rement Security Act on fiduciary investment advice for retirement savers. Your e-mail stated that your investment adviser informed you that as part of upcoming fiduciary changes scheduled for implementation in April 20 17, she will begin charging an annual fee on your accounts, rather than a charge per transaction as historically had been done. We would like the opportunity to discuss with you the concerns you raised in your e-mail by telephone so that we can provide updated information regarding the Department's Rule and its impact on adviser compensation arrangem ents. Please contact me at the number below to arrange for a date and time to schedule a call. Sincerely, Valerie A. Gatesman Valerie A. Gatesman Special Assistant Office of the Acting Assistant Secretary Security Ad_ministration -- (b) (6) AMLHICA\J PVERSIGHT DOL-17-0281-H-000021 From: To: Subject: Edozie, Melinda U - EBSAon behalf of Hauser. Timothy - EBSA Piacentini. Joseph - EBSA;Canary, Joe - EBSA;Hall. Lyssa- EBSA;Lloyd. Karen - EBSA;Campagna. Lou - EBSA; Cosby. Chris - EBSA Fiduciary Rule/TransitionalIssues From: HYPERLINK "mailto:(b) (6)(b) (6)(b) (6)(b) (6) Sent: 4/17 /20 I 7 1:30 PM To: HYPERLINK "mailt (b) (6)(b) (6)(b) (6)(b) (6)(b) Subject: RE: Fiduciary Ru Sounds good. (6) (b) (6)(b) (6)(b) (6) From: Hauser, Timothy - EBSA [mailto: Sent: Monday, April 17, 2017 2:25 To: Abbey, David< HYPERLINK' (b) (6)(b) (6)(b) (6)(b) (6)(b) Subject: RE: Fiduciary Rule/Transiti n (6) How about 3:30 Friday? From: HYPERLINK "mailto (b) (6)(b) (6)(b) (6)(b) (6) Sent: 4/17/2017 12:17 PM (b) (6)(b) (6) ser, Timothy - EBSA To: HYPERLINK "mailto:~au Subject: RE: Fiduciary Rul~1'11be traveling then. 11am works, but sometime later that week would work as well. Thanks From: Hauser, Timothy - EBSA [mailto (b) (6)(b) (6)(b) (6) Sent: Monday, April 17, 2017 12:54 P To: Abbey, David< HYPERLINK "mailto: (b) (6)(b) (6)(b) (6)(b) Subject: RE: Fiduciary Rule/Transitional ls (6) Looks bad. How about 4:30 or 5:00? From: HYPERLINK "mailto (b) (6)(b) (6)(b) (6)(b) (6) Sent: 4/17/2017 I 1:08 AM To: HYPERLINK "mailto: (b) (6)(b) (6)(b) (6)(b) (6)(b) Subject: RE: Fiduciary Rule/Transitional Issues Does I pm or 2pm work for you? (6)(b) (6) (b) (6)(b) (6)(b) (6) From: Hauser, Timothy - EBSA [mailt Sent: Monday, April 17, 2017 I 1:5To: Abbey, David< HYPERLINK (b) (6)(b) Cc: Hauser, Timothy - EBSA < H Subject: RE: Fiduciary Rule/Transitional Issues (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Happy to talk, David. How about Wednesday? Is there a time that works for you? Abbey, David From: HYPERLINK "mailt (b) (6)(b) (6) Sent: 4/17/2017 I 0:33 AM (b) (6)(b) (6) Hauser, Timothy-EBSA To: HYPERLINK "mailto:........ Subject: Fiduciary Rule/Tr~ Tim, Hope all is well. Just wanted to know if you have time for a short call. I'm interested in finding out if the Department will be open to issuing some clarification of certain of the last set of FAQs and transitional guidance prior to June 9 and, if so, what form and when will you need our questions/requests? Thanks, David David Abbey I Deputy General Counsel - Retireme nt Policy a ~ o 11 ~ o pany Institute ~ HYPERLINK (b) (6)(b) (6)(b) (6)(b) -(b) (6) I AMLHICA\J PVERSIGHT I I o I (6)(b) (6) DOL-17-0281-H-000022 From: To: Subject: AM~ HICA\J PVERSIGHT Khawar. Ali - EBSA Hauser Timothy - EBSA;Geale, Nicholas C. - SOL; Piacentini.Joseph - EBSA;Hall, Lyssa - EBSA;Canary, Joe EBSA Meeting with Tom McDonald (BakerHostetler) on COI DOL-17-0281-H-000023 To: Lloyd Karen - EBSA Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA Subject: COI Fr.om: AM[ HICAN PVERSIGHT DOL-17-0281-H-000024 From: To: Subject: Hauser. Timothy - EBSA Canary Joe - EBSA;Campagna. Lou - EBSA;Hall Lyssa - EBSA;Lloyd, Karen - EBSA;Piacentini.Joseph - EBSA; Cosby Chris - EBSA;Scott William - SOL; Hansen, Megan D - SOL; Lim. Younqok - EBSA;Khawar, Ali - EBSA Next Steps in COI Rulemaking Please come prepared to discuss possible new approaches to exemptiv e relief for fiduciary advisers and ways to move the project forward. Thanks. AM~RICA'\J PVERSIGHT DOL-17-0281-H-000025 From: To: Hauser, Timothy - ESSAon behalf of Brammer, Josh J. EOP/OMB Canary, Joe - ESSA;Hall. Lyssa - ESSA;Hauser, Timothy - ESSA;Piacentini,Joseph - ESSA;Geale, Nicholas C. SOL; Harthill, Susan - SOL; Aquilar, Brenda L. EOP/OMB;Mancini, Dominic J. EOP/OMB;Campau, Anthony P. EOP/OMB;Doyle, Emma K. EOP/OMB;Sellers, Douglas EOP/OMB;Swirsky, Stephanie - ASP Peters Pamela - ASP; Dawkins Laura M - ASP FW: OMB/SIFMAmeeting on DOL final rule, "Definition of the Term Fiduciary - Delay of Applicability Date" c: Cc: Subject: Who would you like to attend? -----Original Appointment----F rom: Brammer, Josh J. EOP/OMB (b) (6)(b) (6)(b) (6)(b) (6) Sent: Monday, March 27, 2017 5 1 To Brammer, Josh J EOP/OMB; Hauser, Timothy - EBSA; Geale, Nicholas C. - SOL; Harthill, Susan - SOL; Aguilar, Brenda L. EOP/OMB; Mancini, Dominic J. EOP/OMB; Campau, Anthony P. EOP/OMB; Doyle, Emma K. EOP/OMB; Sellers, Douglas C. EOP/OMB; Swirsky, Stephanie ASP Cc : Peters, Pamela - ASP ; Dawkins , Laura M - ASP Subject: Fwd: OMB/SIFMA meeting on DOL final rule , "Definition of the Term Fiduciary - Delay of Applicability Date" When: Tuesday , March 28 , 2017 4 :00 PM -5:00 PM (UTC-05 :00) Eas tern Time (US & Canada) . Where: EEOB 238 Let me know if you would like to attend. We will need to send in WAVES. Stephanie Begin forwarded message: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) This E.O. 12866 meeting was requested by Dave Oxner , SrFMA . (b) (6) AMI HICAN PVERSIGHT DOL-17-0281-H-000026 From: To: Cc: Judson Victoria A Canary, Joe - EBSA; Kuehnle Roger S; Weiser Carol - OTP; Evans William - OTP Neis Robert - OTP; Tackney Steph en B; Hauser, Timothy - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Turner Jeffrey - EBSA; Campagna, Lou - EBSA Non-Applicability of Excise Taxes Under? 4975 To Conform With DOL Temporary Enforcement Policy on Fiduciary Duty Rule (ANN-109183-17) Subject: Joe, Here is an Outlook invite and a call in number for tomorrow morning's discussion of 408(e) question and talk through the implementation process for the PTEs under the current rules. (b) (6) We look forward to talking with your team then. Thanks, Victoria A Judson ~ I o I o o I " (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6) From: Canary , Joe - EBS Sent: Tuesday, March 21, 2017 4:01 P To : Judson Victoria A Cc: Neis Robert - OTF; Tackney Stephen B; Hause r, Timothy - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Turner, Jeffrey - EBSA; Campagna, Lou - EBSA Subject: RE: Expedited Green Circulation a408(e)nd Clearance: Announcement providing relief from excise taxes under section 4975 (ANN-10918317) Yes. The exemption people confirmed they are available at 9am. Should we use a call in number? From: Judson Victoria A [mailto:(b) (6)(b) (6)(b) (6)(b) (6) Sent: Tuesday, March 21, 2017 3: To : Canary, Joe - EBSA Cc: Neis Robert - OTF; Tackney Stephen B; Hauser, Timothy - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Turner, Jeffrey - EBSA; Campagna, Lou - EBSA Subject: Re: Expedited Green Circulation a408(e)nd Clearance: Announcement providing relief from excise taxes under section 4975 (ANN-10918317) Could we set up a call for 9 am tomorrow on the 408( e) issue? Victoria A Judson Associate Chief Counsel (TEGE) From: Canary, Joe - EBSA Sent: Tuesday, March 2 1, 2017 1:35 PM To: Judson Victoria A Cc: Neis Robert - OTP; Tackney Stephen B; Hauser, Timothy - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Turner, Jeffrey - EBSA; Campagn a, Lou - EBSA Subject: RE: Expedited Green Circulation and Clearance: Announcement providing relief from excise taxes under section 4975 (ANN-109 183-17) Vicki: Just finished meeting with Tim. We should have proposed revised text to you shortly. Folks here from our Office of Exemption Deterrnina tions are available today to address your 408( e) question and talk you through the implementation process for the PTEs under the current rules. Let me know what time works for you and we will set up a call. Thanks again. From: Judson Victoria A [mailto (b) (6)(b) (6)(b) (6)(b) (6) Sent: Monday, March 20, 2017 4:03 P To : Canary, Joe - EBSA Cc: Neis Robert - OTF; Tackney Stephen B Subject: FW : Expedited Green Circulation and Clearance: Announcement providing relief from excise taxes under section 4975 (ANN- I 09 183- 17) Joe, Attached is a draft of the announcement which we have circulated in combined green and pink, a mechanism we use at the IRS Chief Counsel to expedite clearance. We welcome comment s generally, but in particular, wanted to know if you would be comfortable with the following from page 2: Consisten t with FAB 2017-01, the DOL has advised the Treasury Department and the Internal Revenue Service (IRS) that, to the extent circumstances surroundi ng its decision on the proposed delay of the April 10 applicability date give rise to the need for other temporary relief, including retroactive prohibited transaction relief, the DOL will consider taking such additional steps as necessary so that there would be no prohibited transactions, and hence no liability for excise taxes under ? 4975 , with respect to the arrangements and transactions covered by the DOL temporary enforcement policy AMLHICA\J PVERSIGHT DOL-17-0281-H-000027 and subsequent related DOL guidance. Also, a member of our team asked whether we should include something such as the following (taken from SIFMA's letter): "unless the transaction would have been a nonexempt prohibited transaction under the law as it existed prior to April 6, 2016, the publication date of the Fiduciary Rule." to ensure we don't pull in more than intended. We thought that it probably was not necessary because something that was a PT under the rules in effect prior to April 6, 2016 would not be covered by your temporary enforcement policy. But, is that incorrect? Is there other language you think we should consider to cover this concept? Was hoping that we could touch base at the end of the day to discuss timing, status, etc. Would that work for you? Vicki (b) (6)(b) (6)(b) (6) From: Kuehnle Roger S Sent: Monday, March 20, 2017 3:50 PM To: &TEGE Green Sheet-BTC Cc: Khoury Mireille T; Brown Kyle N; Paxson Kirk M; Leslie Louis J; San Juan Eric A; Neis Robert - OTP; Weiser Carol - OTP; Evans William OTP Subject: Expedited Green Circulation and Clearance: Announcement providing relief from excise taxes under section 4975 (ANN-109183 - 17) Importance: High Document Title: Announcement Providing Temporary Relief From Excise Taxes Under Section 4975 Code Section: 4975 The attached draft announcement provides temporary relief from the excise taxes under section 4975 (re lating to prohibited transactions) to retirement plan advisors who may be subject to receqtly issued Department of Labor (DOL) rules relating to the definition of"fiduciary ," which are effective beginning April 10, 2017 . It was requested by DOL to conform to their non-enforcement policy anno unced in Field Assistance Bulletin (FAB) No. 2017 -01. IRS non-enforcement will coincide with the period announced in the FAB for DOL 's non-enforcement. Due to the urgent nature of this relief, the document is being submitted for formal clearance (Pink Sheeting) simu ltaneously with this Greenshee t Circulation. THIS ANNOUNCEMENT lS TARGETED FOR PUBLICATION BY THE END OF THIS WEEK Please review the document and provide us with any commen ts. The draft announcement and an executive summary are attached. PLEASE PROVIDE COMMENTS ON THIS DOCUMENT BY NOON MARCH 21, 2017, TO ROGER KUEHNLE. If you have any questions concerning this matter, please contact Roger Kuehnle at 202-317 -6349. A\111HICAN PVERSIGHT DOL-17-0281-H-000028 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary. Joe - EBSA;Hall. Lyssa - EBSA;Piacentini,Joseph - EBSA;Scott William - SOL; Taylor. William - SOL; EBSA.Departed - EBSA;Khawar. Ali - EBSA;Hansen. Megan D - SOL; Bloom, Teresa - EBSA Cosby. Chris - EBSA;Bergstresser. Keith - EBSA;Beckmann, Allan - EBSA;Buyniski, Brian - EBSA;Butikofer, James - EBSA;Decressin,Anja - EBSA;Lim. Youngok - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - EBSA; Lloyd. Karen - EBSA;Zarenko, Kristen - EBSA;Campaana. Lou - EBSA;Wong, Fred - EBSA;Beadle. Nicholas D SOL; Craig. James - SOL; Hopkins, Elizabeth - SOL; Mares, Judith - EBSA Biweekly Meeting on Conflict of Interest Reg This is a standing bi-weekly meeting to discuss current issues on the conflict of interest regulation. Please be prepared to discuss the assignments from our last meeting, as well as any new issues. Please also include interested members of your staff. The Conference Number below has been updated to what is actually used. (b) (6) A\111HICAN PVERSIGHT DOL-17-0281-H-000029 From: TI'>: Cc: Subject: AMf-HICAN PVERSIGHT Canary Joe - EBSA Hauser. Timothy - EBSA;Hansen. Megan D - SOL Scott William - SOL; Piacentini. Joseph - EBSA;Campagna. Lou - EBSA;Hall, Lyssa- EBSA;Lloyd. Karen - EBSA; Khawar. Ali - EBSA;Turner. Jeffrey - EBSA Edward Jones/Brad Campbell Meeting on COI Delay NPRM DOL-17-0281-H-000030 From: To: Dalton, nsh Egbuonu, Chizoba; Miller, Joel; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary Joe - EBSA; Campagna, Lou EBSA; Craig James - SOL; Lloyd, Karen - EBSA; Wona, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA; Turner Jeffrey - EBSA; Rebecca Zak; Orange Michael W.; McBride, Christopher Subject: Date: Importance: RE: DOL Fiduciary Rule- IRA Bank Deposit Issue Thursday, February 09, 2017 3:05:37 PM High Corrected Code:-(b) (6) Tish Dalton (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) -----Original Appointment----- From: Egbuonu, Chizoba Sent: Monday, January 30, 2017 11:51 AM To: Egbuonu, Chizoba; Miller, Joel; Dalton, Tish; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary, Joe - EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA;Turner, Jeffrey- EBSA; Rebecca Zak; Orange, Michael W.; McBride, Christopher Subject: DOL Fiduciary Rule- IRA Bank Deposit Issue , Februar 09, 201 7 3:00 PM-4:00 PM (UTC-05:00) Eastern Time (US & Canada) . Where (b) (6) Please use the following conference line and code for our call on Thursday, February 9th : (b) (6) Thanks, Chiz. AMLHICAN PVERSIGHT DOL-17-0281-H-000031 From: To: Subject: AMr HICAN PVERSIGHT Hauser. Timothy - ESSA Canary. Joe - ESSA;Campagna. Lou - EBSA;Hall Lyssa - ESSA;Lloyd. Karen - ESSA; Piacentini. Joseph - EBSA; Cosby Chris - ESSA;Connor. Mark - ESSA COI Next Steps DOL-17-0281-H-000032 From: To: Cc: Subject: Zimmerman. Elaine - EBSA Hauser. Timothy - EBSA;Khawar. Ali - EBSA;Piacentini. Joseph - EBSA;Canary Joe - EBSA;Hall. Lyssa - EBSA; Anna Nordseth; Decressin. Anja - EBSA;Turner. Jeffrey - EBSA;Campagna. Lou - EBSA;Cosby. Chris - EBSA; Halliday Susan - EBSA;Goodman. Elizabeth - EBSA; Lloyd, Karen - EBSA Blumenthal. Mara - EBSA;Grillo-Chope Luisa - EBSA;Beckmann.Allan - EBSA;Butikofer. James - EBSA;Lim. Younqok - EBSA;Garrett West - EBSA Morningstar Discussionon Fiduciary Rule Morningstar has asked to meet with DOL to share their thoughts on the Fiduciary Rule and feedback they've received from the industry. Below is a proposed agenda as well as the list of Morningstar attend ees and their titles. Please note a call-in number has been provided for DOL employees: (b) (6) Agenda topics: Retirement plan data and rankings; compatibi lity with portfolio costs (investor total cost of ownership) Best Interest: Scorecard; Insights (enterprise level swveillance); and value (and cost) of financial advice Share classes : T, ' clean', and a new framework for identifying the 'cheapest' share class in tenns of investor situation Fee disclosure based on investor situation, based on five 'buckets', and in dollars Representation of historical returns and rankin gs, based on actual past performance, across product types, and full costs 5500 moderni zation rule Morningstar Attendees: Pa ul D. Ellenbogen, Head of Global Regulatory Solutions Aron Szapiro , Director of Policy Research Scott Burns , Head of Asset Management Solutions Jeff Schwantz, Head of Advisor Solutions Lawrence Johnson, Head of RightPond Solutions AMLHICAN PVERSIGHT DOL-17-0281-H-000033 From: To: Cc: Subject: Zimmerman. Elaine - EBSA Hauser, Timothy - EBSA;Khawar, Ali - EBSA;Piacentini, Joseph - EBSA;Canary, Joe - EBSA;Hall. Lyssa- EBSA; Anna Nordseth /Anna.Nordseth@morningstar.com): Decressin,Ania - EBSA;Turner Jeffrey - EBSA;Campagna, Lou - EBSA;Cosby, Chris - EBSA;Halliday, Susan - EBSA;Goodman. Elizabeth - EBSA;Lloyd, Karen - EBSA Blumenthal, Mara - EBSA;Grillo-Chope, Luisa o EBSA Morningstar Discussion on Fiduciary Rule Morni ngstar has asked to meet with DOL to share their thoughts on the Fiduciary Rule and feedback they've received from the industry. Below is a proposed agenda as well as the list of Morningstar attendees and their titles. Age nda topics: Retireme nt plan data and rankings ; compatibility with portfo lio costs (investor total cost of ownership) Best Interest: Scorecard ; Insight s (enterprise level surveillance); and value (and cost) of financial advice Share classes : T, 'clea n', and a new framework for identifying the 'c heapest' share class in terms of investor situation Fee disclosure based on investor situation , based on five ' buckets ', and in dollars Representation of historical returns and rankings, based on actual past performance, across product types, and full costs 5500 modernization rule Mornings tar Attendees: Paul D. Ellenbogen, Head of Global Regulatory Solutions Aron Szapiro, Director of Policy Research Scott Bums, Head of Asset Manag ement Solutions Jeff Schwan tz, Head of Advisor Solutions Lawrence Johnson, Head ofRightPond Solutions AMf HICAN PVERSIGHT DOL-17-0281-H-000034 From: To: Subject: Egbuonu Chizoba Miller Joel; Dalton, Tish; Michael Ofori-Kuragu: Ackmann. Rachel J.; Canary, Joe - ESSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D ' SOL; Hall, Lyssa - EBSA; Turner Jeffrey - EBSA; Rebecca Zak; Orange Michael W.; McBride, Christopher DOL Fiduciary Rule- IRA Bank Deposit Issue Please use the following conference line and code for our call on Thursday , February 9th: (b) (6) Thanks, Chiz. AMLHICAN pVERSIGH DOL-17-0281-H-000035 From: To: Cc: Subject: Hauser. Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa - EBSA;Piacentini. Joseph - EBSA;Scott, William - SOL; Taylor; EBSA,Departed EBSA;Khawar, Ali - OSEC;EBSA, Departed - EBSA;Hansen, Megan D - SOL; Bloom. Teresa - EBSA Cosby, Chris - EBSA;Bergstresser. Keith - EBSA; Beckmann.Allan - EBSA;Buyniski. Brian - EBSA;Butikofer, James - EBSA;Decressin,Anja - EBSA;Um. Youngok - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - EBSA; Lloyd Karen - EBSA;Zarenko. Kristen - EBSA;Campaana. Lou - EBSA;Wong, Fred - EBSA; Beadle, Nicholas D SOL; Craig. James - SOL; Hopkins, Elizabeth - SOL . Biweekly Meeting on Conflict of Interest Reg This is a standing bi-weekly meeting to discuss current issues on the conflict of interest regulation. Please be prepared to discuss the assignment s from our last meeting, as well as any new issues. Please also include interested members of your staff The Conference Number below has been updated to what is actually used. (b) (6) AM::=RICA\J pVERSIGHT DOL-17-0281-H-000036 From: Hansen, Megan D - SOL To: Hauser, Timothy - ESSA; Scott, William - SOL; Tso, Thomas - SOL; Sieger, Edward - SOL; Piacentini, Joseph ESSA; Raab, Michael (CIV); Shih, Michael (CIV): Canary, Joe - ESSA; Hall, Lyssa - ESSA; Lloyd, Karen - ESSA; Turner, Jeffrey - ESSA Subject: Attachments: COI: 5th Cir Response Chamber Opening Brief (COI 5th Cir).pdf ACLI and NAIFA Ooening Brief (COI 5th Cir).pdf IALC Opening Brief (COI 5th Cir).pdf (b) (6) (b) (5) Please forward this invite to others who should join. A\111HICAN PVERSIGHT DOL-17-0281-H-000037 DOL-17-0281-H-000038 Case: 17-10238 Document: 00513977124 Page: 1 Date Filed: 05/02/2017 No. 17-10238 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, DOING BUSINESS AS LAKE HOUSTON CHAMBER OF COMMERCE; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS -TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - WICHITA FALLS, Plaintiffs-Appellants, V. AM[ HICAN PVERSIGHT DOL-17-0281-H-000039 Case: 17-10238 Document: 00513977124 Page: 2 Date Filed: 05/02/ 4QJ7 UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Texas No. 3:16-cv-01476 BRIEF FOR CHAMBER OF COMMERCE PLAINTIFFS-APPELLANTS Russell H. Falconer GIBSON, DUNN & CRUTCHERLLP 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 (214) 698-3100 Eugene Scalia Jason J. Mendro Paul Blankenstein GIBSON, DUNN & CRUTCHERLLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 [additional counsel listed on next page ] AMERICAN PVERSIGHT DOL-17-0281-H-000040 Case: 17-10238 Document: 00513977124 Page: 3 Date Filed: 05/02/2017 Counsel for Plaintiffs Chamber of Commerce of the United States of America, Financial Services Institute, Inc., Financial Services Roundtable, Greater Irving-Las Colinas Chamber of Commerce, Humble Area Chamber of Commerce doing business as Lake Houston Area Chamber of Commerce, Insured Retirement Institute, Lubbock Chamber of Commerce, Securities Industry and Financial Markets Association, and Texas Association of Business Steven P. Lehotsky Janet Galeria Kevin Richard Foster Felicia Smith U.S. CHAMBER LITIGATION CENTER FINANCIAL SERVICES ROUNDTABLE 1615 H Street, NW Washington, D.C. 20062 (202) 463-5337 600 13th Street, N.W. Suite 400 Washington, D. C. 20005 (202) 289-4322 Counsel for Plaintiff Chamber of Commerce of the United States of America Counsel for Plaintiff Financial Services Roundtable David T. Bellaire Robin Traxler Kevin Carroll Ira D. Hammerman FINANCIAL SERVICES INSTITUTE, INC. SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 (888) 373-1840 1101 New York Avenue, N.W. 8th Floor Washington, D. C. 20005 (202) 962-7300 Counsel for Plaintiff Financial Services Institute, Inc. Counsel for Plaintiff Securities Industry and Financial Markets Association J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D.C. 20005 (202) 469-3000 Counsel for Plaintiff Insured Retirement Institute AM[ HICAN PVERSIGHT DOL-17-0281-H-000041 Case: 17-10238 Document: 00513977124 Page:,A Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, DOING BUSINESS AS LAKE HOUSTON CHAMBER OF COMMERCE; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS -AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS - WICHITA FALLS, Plaintiffs-Appellants, V. AM[ HICAN PVERSIGHT DOL-17-0281-H-000042 Case: 17-10238 Document: 00513977124 Page: 5 Date Filed: 05/02/2017 UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. The undersigned counsel of record certifies that the following interested persons and entities described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. There are no corporations that are either parents of any plaintiffappellant or that own stock in the plaintiffs-appellants. A. Plaintiffs-Appellants 1. 2. Chamber of Commerce of the United States of America Financial Services Institute, Inc. AM[ HICAN PVERSIGHT 11 DOL-17-0281-H-000043 Case: 17-10238 3. 4. 5. 6. 7. 8. 9. 10. B. Document: 00513977124 Page: 6 Date Filed: 05/02/2017 Financial Services Round table Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business Others who are not participants in this matter but may be financially interested in its outcome include members of PlaintiffsAppellants Current and Former Attorneys for Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein Rachel Mondl GIBSON,DUNN& CRUTCHERLLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 David T. Bellaire Robin Traxler FINANCIALSERVICESINSTITUTE, INC. 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON,DUNN& CRUTCHERLLP 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 Kevin Richard Foster Felicia Smith FINANCIALSERVICESROUNDTABLE 600 13th Street, N.W .. Suite 400 Washington, D. C. 20005 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, D. C. 20062 J. Lee Covington II INSUREDRETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D. C. 20005 AM[ HICAN PVERSIGHT 111 DOL-17-0281-H-000044 Case: 17-10238 Document: 00513977124 Page: 7 Date Filed: 05/02/2017 Kevin Carroll Ira D. Hammerman SECURITIESINDUSTRY ANDFINANCIAL MARKETSASSOCIATION 1101 New York Avenue, N.W. Washington, D.G. 20005 C. Co-Plaintiffs-Appellants 1. 2. 3. 4. 9. 10. 11. 12. 13. American Council of Life Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors Amarillo National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors Worth National Association of Insurance and Financial Advisors Southwest National Association of Insurance and Financial Advisors Wichita Falls Indexed Annuity Leadership Council Life Insurance Company of the Southwest American Equity Investment Life Insurance Company Midland National Life Insurance Company North American Company for Life and Health Insurance D. Attorneys for Co-Plaintiffs-Appellants 5. 6. 7. 8. David W. Ogden Kelly P. Dunbar Ari Holtzblatt Kevin M. Lamb WILMERCUTLERPICKERINGHALE ANDDORRLLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 AM[ HICAN PVERSIGHT - Texas - Dallas - Fort - Great - Andrea J. Robinson WILMERCUTLERPICKERINGHALE ANDDORRLLP 60 State Street Boston, MA IV DOL-17-0281-H-000045 Case: 17-10238 Document: 00513977124 Michael A. Yanof THOMPSONCOE COUSINS& IRONS, LLP 700 North Pearl Street Twenty-Fifth Floor - Plaza of the Americas Dallas, TX 75201 Page: 8 Date Filed: 05/02/2017 Yvette Ostolaza SIDLEYAUSTINLLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 Joseph P. Guerra Peter D. Keisler Eric D. McArthur SIDLEYAUSTINLLP 1501 K Street, N.W. Washington, D.C. 20005 E. Defendants-Appellees 1. 2. United States Department of ;Labor Edward C. Hugler, Acting Secretary, U.S. Department F. Attorneys for Defendants-Appellees Michael Shih Michael S. Raab OFJUSTICE U.S. DEPARTMENT CML DIVISION,APPELLATE SECTION 950 Pennsylvania Avenue, N.W. Suite 7268 Washington, D.C. 20530 Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen OF UNITEDSTATESDEPARTMENT LABOR OFFICEOFTHESOLICITOR 200 Constitution Avenue, N.W. Suite N-2119 Washington, D.C. 20210 AM~ HICA\J PVERSIGHT of Labor V DOL-17-0281-H-000046 Case: 17-10238 Document: 00513977124 Page: 9 Date Filed: 05/02/2017 Galen N. Thorp Emily Newton Joyce R. Branda John R. Parker Judy L. Suhar U.S. DEPARTMENT OFJUSTICE CIVILDIVISION,FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W., Room 6140 Washington, D.C. 20530 G. Amici in the District Court 1. 2. 3. 4. 5. 6. 7. 8. 9. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce H. Attorneys for Amici in District Court Mary Ellen Signorille AARP FOUNDATION LITIGATION 601 E Street, N.W. Washington, D. C. 20049 Martin Woodward STANLEYLAWGROUP 6116 North Central Expressway Suite 1500 Dallas, TX 75206 Bernard A. Guerrini 6500 Greenville Avenue Suite 320 Dallas, TX 75206 AM[ HICAN PVERSIGHT Vl DOL-17-0281-H-000047 Case: 17-10238 Document: 00513977124 Page: 10 Date Filed: 05/02/2017 Deepak Gupta Matthew W. H. Wessler GUPTAWESSLERPLLC 1735 20th Street, N.W. Washington, D. C. 20009 Braden W. Sparks BRADENW. SPARKSPC 12222 Merit Drive Suite 800 Dallas, TX 75251 Brandan S. Maher STRIS& MAHERLLP 1920 Abrams Parkway Suite 430 Dallas, TX 75124 Dennis M. Kelleher BETTERMARKETSINC. 1825 K Street, N.W. Suite 1080 Washington, D.C. 20006 Doug D. Geyser STRIS& MAHERLLP 6688 North Central Expressway Suite 1650 Dallas, TX 75206 Theodore Carl Anderson, III Alexandra Treadgold KILGORE& KILGOREPLLC 3109 Carlisle Street Suite 200 Dallas, TX 75204 Brent M. Rosenthal WEINERLLP ROSENTHAL 12221 Merit Drive Suite 1640 Dallas, TX 75251 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road Suite 650 Dallas, TX 75254 Julie Alyssa Murray GROUP PUBLICCITIZENLITIGATION 1600 20th Street, N.W. Washington, D. C. 20009 Charles Flores BECKREDDENLLP 1221 McKinney Street Suite 4500 Houston, TX 77010 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER& KIRKPLLC 1523 New Hampshire N.W. Washington, D.C. 20036 AM~RICA\J PVERSIGHT Avenue, vu DOL-17-0281-H-000048 Case: 17-10238 Document: 00513977124 Page: 11 Date Filed: 05/02/2017 Isl Eugene Scalia Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business AM[ HICAN PVERSIGHT Vlll DOL-17-0281-H-000049 Case: 17-10238 Document: 00513977124 Page: 12 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT This appeal concerns significant changes in the financial-services and insurance industries, which are being imposed by the U.S. Depart- ment of Labor instead of Congress or the nation's primary regulator of investment products and services, the Securities and Exchange Commission. Appellants submit that oral argument would be useful to the Court's consideration of the case. AM[ HICAN PVERSIGHT IX DOL-17-0281-H-000050 Case: 17-10238 Document: 00513977124 Page: 13 Date Filed: 05/02/2017 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ......................................... i STATEMENT REGARDING ORAL ARGUMENT ................................. ix TABLE OF AUTHORITIES .................................................................... xii INTRODUCTION ...................................................................................... 1 JURISDICTIONAL STATEMENT ........................................................... 3 STATEMENT OF THE ISSUES PRESENTED ...................................... 3 STATEMENT OF THE CASE .................................................................. 4 SUMMARY OF ARGUMENT ................................................................. 22 STANDARD OF REVIEW ....................................................................... 24 ARGUMENT ............................................................................................ 27 I. The Rule's Redefinition Of "Fiduciary" Is Unlawful ........... 27 A. Under ERISA And The Code, The Hallmark Of A "Fiduciary" Is A Relationship Of Trust And Confidence .................................................................... 27 B. The Plain Language Of ERISA And The Code Forecloses The Rule's Redefinition Of "Fiduciary" .... 32 C. The Labor Department's Construction Of "Fiduciary" Is Unreasonable And Arbitrary ............... 38 II. The Department Unlawfully Misused Its Narrow Exemptive Authority To Regulate Services And Products It Lacks The Power To Regulate ........................... 43 III. The Department Impermissibly Created A Private Right Of Action In The BIC Exemption ............................... 52 AM[ HICAN PVERSIGHT X DOL-17-0281-H-000051 Case: 17-10238 Document: 00513977124 Page: 14 Date Filed: 05/02/2017 TABLE OF CONTENTS Page (continued) A. B. IV. DOL Unlawfully Created'A Private Right of Action ........................................................................ The BIC Exemption's Enforcement Provisions Are Unreasonable, Arbitrary, and Capricious ........... 57 ThEUR Rule's Ban Of Class Waivers In Arbitration Agreements Violates The Federal Arbitration Act And Is Arbitrary And Capricious ............................................... .. 59 CONCLUSION ........................................................................................ AM[ HICAN PVERSIGHT .... 52 63 XI DOL-17-0281-H-000052 Case: 17-10238 Document: 00513977124 Page: 15 Date Filed: 05/02/2017 TABLE OF AUTHORITIES Page(s) Cases Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) .............................................................................. Alexander v. Sandoval, 532 U.S. 275 (2001) .................................................................... 47 4, 52, 57 Am. Fed'n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc'y of the U.S., 841 F.2d 658 (5th Cir.1988) ................................................................ 33 Assoc. Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016) ................................................................ 24 Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110 (2011) ........................................................................ 53, 56 AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ........................................................................ 59, 62 Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906 (10th Cir. 2005) .............................................................. 40 Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) ............................................................ 40 Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013) ................................................................ 26 Cent. & S. W. Servs., Inc. v. EPA, 220 F.3d 683 (5th Cir. 2000) ................................................................ 42 Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ........................................................................ AM[ HICAN PVERSIGHT 25, 27 Xll DOL-17-0281-H-000053 Case: 17-10238 Document: 00513977124 Page: 16 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) ............................................................................ 61 D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) ................................................................ 60 FAA v. Cooper, 132 S. Ct. 1441 (2012) .......................................................................... 28 Farm King Supply, Inc. Integrated Profit Sharing Plan & Trust v. Edward D. Jones & Co., 884 F.2d 288 (7th Cir. 1989) ................................................................ 41 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................................................................. 44 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) .............................................................................. 29 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1 (1983) .................................................................................. 55 Granik v. Perry, 418 F.2d 832 (5th Cir. 1969) ................................................................ 28 Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir. 2003) ................................................................... 56 Gutierrez-Brisiel v. Lynch, 834 F.3d 1142 (10th Cir. 2016) ............................................................ 26 Hearth, Patio & Barbecue Ass'n v. U.S. Dep't of Energy, 706 F.3d 499 (D.C. Cir. 2013) .............................................................. 47 INS v. St. Cyr, 533 U.S. 289 (2001) .............................................................................. 38 King v. Burwell, 135 S. Ct. 2480 (2015) .................................................................... AMERICAN PVERSIGHT 25, 50 Xlll DOL-17-0281-H-000054 Case: 17-10238 Document: 00513977124 Page: 17 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Kramer v. Smith Barney, 80 F.3d 1080 (5th Cir. 1996) ................................................................ 61 Loughrin v. United States, 134 S. Ct. 2384 (2014) .......................................................................... 48 Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014) ............................................................ 50 Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) ................................................................ 24 Market Synergy Grp. v. Dep't of Labor, No. 17-3038 (10th Cir.) ........................................................................ 21 MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994) ........................................................................ MD I DC I DE Broadcasters Ass'n v. FCC, 253 F.3d 732 (D.C. Cir. 2001) .................................................. 45, 50 52, 59, 63 Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928) ..................................................................... 33 Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) .............................................................................. 36 MM&S Fin., Inc. v. NASD, Inc., 364 F.3d 908 (8th Cir. 2004) ................................................................ 56 Molzof v. United States, 502 U.S. 301 (1992) .............................................................................. 28 Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) .................................................................................. 59 Motor Vehicle Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................... 25 AM[ HICAN PVERSIGHT XIV DOL-17-0281-H-000055 Case: 17-10238 Document: 00513977124 Page: 18 TABLE OF AUTHORITIES (continued) Date Filed: 05/02/2017 Page(s) Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 (Jan. 13, 2017) ...................................................................................... 60 Nat'l Ass'n for Fixed Annuities v. Dep't of Labor, No. 16-5345 (D.C. Cir.) ........................................................................ 21 Neder v. United States, 527 U.S. 1 (1999) .................................................................................. 28 NFIB v. Sebelius, 132 S. Ct. 2566 (2012) .......................................................................... 61 Oak Cliff Bank & Trust Co. v. Steenbergen, 497 S.W.2d 489 (Tex. Civ. App.-Waco 1973, writ refd n.r.e.) ..................................................................................................... 28 OPE Int'l LP v. Chet Morrison Contractors, Inc., 258 F.3d 443 (5th Cir. 2001) ................................................................ 59 Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001) .............................................................................. 31 Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ................................................................................ 31 Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F. Supp. 107 (N.D. Ala. 1971) ....................................................... 32 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963) ................................................................................ 6 South Dakota v. Dole, 483 U.S. 203 (1987) .............................................................................. 61 Tax Analysts v. IRS, 214 F.3d 179 (D.C. Cir. 2000) .............................................................. 58 AM~ HICA\J PVERSIGHT xv DOL-17-0281-H-000056 Case: 17-10238 Document: 00513977124 Page: 19 Date Filed: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Texas v. United States, 497 F.3d 491 (5th Cir. 2007) ................................................................ 27 THI of N.M. at Hobbs Ctr., LLC v. Spradlin, 532 F. App'x 813 (10th Cir. 2013) ....................................................... 40 Thrivent Fin. For Lutherans v. Hugler, No. 0:16-cv-3289 (D. Minn.) ................................................................. 21 Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979) ................................................................................ 57 Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59 (3d Cir. 2008) ................................................................... 56 United States v. Flores, 404 F.3d 320 (5th Cir. 2005) ................................................................ 26 United States v. Whitten, 610 F.3d 168 (2d Cir. 2010) ................................................................. 52 Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989 (2016) .......................................................................... 28 Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427 (2014) .......................... 25, 34, 35, 36, 44, 45, 46, 50,? 51 Varity Corp. v. Howe, 516 U.S. 489 (1996) ........................................................................ 29, 36 Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468 (1989) ................................. 62 Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) ........................................................................ Whitman v. United States, 135 S. Ct. 352 (2014) ............................................................................ AM[ HICAN PVERSIGHT 44, 47 26 XVI DOL-17-0281-H-000057 Case: 17-10238 Page: 20 Date Filecl: 05/02/2017 TABLE OF AUTHORITIES (continued) Page(s) Document: 00513977124 Statutes 5 U.S.C. ? 706 ................................................................... 24, 42, 52, 59, 63 59 .................... ..???????????????? 9 U.S.C. ? 2 ???????????????????ooNoo???????????????????????????????? 5 15 U.S.C. ? 78o-3(b)(6) ................................................................................ 7, 10 15 U.S.C. ? 80b-2(a)(ll) ........................................................................ 26 U.S.C. ? 4975 ............................................ 8, 9, 26, 30, 31, 37, 40, 47, 57 28 U.S.C. ? 1291 .......... ................................................................................. 3 28 U.S.C. ? 1331 .......................................................................................... 3 29 U.S.C. ? 1002(21)(A) ........................................... , ...................... 7, 30, 37 7 29 U.S.C. ? 1104(a) ..................................................................................... 7, 40 29 U.S.C. ? 1106(b) ............................................................................... 8 29 U.S.C. ? 1108 .......................................................................................... 9, 46 29 U.S.C. ? 1135 .................................................................................... Doud-Frank Act, ? 913(b), 124 Stat. 1824 (2010) .................................... 21 Dodd-Frank Act,? 913(g), 124 Stat. 1828 (2010) .............................. 41, 50 12, 42 Dodd-Frank Act, ? 989J, 124 Stat. 1949 (2010) ................................ Reorganization Plan No. 4 of 1978, ? 102 (Aug. 10, 1978), reprinted in 5 U.S.C. app. 1 (2016), and in 92 Stat. 3790 (1978) ???????????????????????????????????????????????????????????????????????????????????????????? Regulations .... 9, 4 7 and Rules 29 C.F.R. ? 2510.3-21(j) ............................................................................ 10 76 Fed. Reg. 66,136 (Oct. 25, 2011) ......................................................... 19 AM~RICA\J PVERSIGHT xvn DOL-17-0281-H-000058 Case: 17-10238 Document: 00513977124 Page: 21 Date Filed: 05/02/2017 TABLE OF AUTHORITiES (continued) Page(s) 82 Fed. Reg. 7,336 (Jan. 19, 2017) ........................................................... 20 82 Fed. Reg. 9,675 (Feb. 7, 2017) ............................................................. 22 82 Fed. Reg. 16,902 (Apr. 7, 2017) ........................................................... 45 FINRA, Rule 2111 ...................................................................................... 6 Other Authorities The American Heritage Dictionary of the English Language (1969) .................................................................................................... 37 Black's Law Dictionary 753 (rev. 4th ed. 1951) ...................................... 29 Josh Blackman, Gridlock, 130 Harv. L. Rev. 241, 261 (2016) ................ 25 George G. Bogert, George T. Bogert & Caryl A. Yzenbaard, Bogert's Trusts & Trustees ? 481 (2016 update) ........................... 10, 28 H.R. Rep. No. 93-533 (1973) ............................................................... Hughes, Exchange Act Release No. 4048, 1948 WL 29537 (Feb. 18, 1948) ...................................................................................... AM[ HICAN PVERSIGHT 10, 29 33 XVlll DOL-17-0281-H-000059 Case: 17-10238 Document: 00513977124 Page: 22 Date Filed: 05/02/2017 INTRODUCTION This case involves an attempt to impose profound changes in the financial-services and insurance industries by an agency that is charged with overseeing labor and employment matters and has virtually no authority beyond those arenas. The Department of Labor (the "Depart- ment" or "DOL'') seeks to outlaw the compensation models that have long been a cornerstone of these industries, impose on them new standards of conduct, erase universally recognized distinctions between salespeople and fiduciary advisers, and reconfigure relationships and insurance representatives and their customers-all among financial at staggering costs that will stretch well into billions of dollars. The goal of the Department's ambitious new regulatory scheme is to circumvent its lack of statutory authority over Individual Retirement Accounts ("IRAs"). Congress never vested DOL with authority to regulate IRAs, which have nothing to do with the labor and employment mat:. ters that Congress charged the Department with overseeing. DOL nonetheless has decided that certain changes should be required for financial and insurance professionals when they are handling retirement-related AM~RICA\J PVERSIGHT DOL-17-0281-H-000060 Case: 17-10238 accounts, regardless Document: 00513977124 Page: 23 Date Filed: 05/02/2017 whether the accounts are employers' retirement plans or individual IRAs. To that end, the Department deployed a two-step strategy to transcend the limits on its power. First, the Department exploited its limited authority to interpret certain terms in the Employee Retirement Income Security Act of 197 4 ("ERISA") and the Internal Revenue Code ("Gode") to subject brokers, insurance agents, and other financial professionals to fiduciary restrictions that would transform or even destroy their busi- nesses unless they obtain exemptive relief. Second, DOL made clear it would withhold that exemptive relief unless they agree to opt in to DOL's expansive new regulation of the IRA market. The Department thus lev- erages its deregulatory power into a regulatory power to coerce additional obligations on the IRA market-all in circumvention of Congress's deci- sion to withhold from DOL the authority to regulate IRAs. This so-called "Fiduciary Rule" (or "Rule") and its related exemptions are arbitrary, Department capricious, and contrary to law. Through them, the uproots the term "fiduciary" from its statutory and common law meaning, expanding it to encompass stock brokers, insurance agents, and other professionals engaged in ordinary sales or other traditionally AM[ HICAN PVERSIGHT 2 DOL-17-0281-H-000061 Case: 17-10238 Document: 00513977124 Page: 24 Date Filed: 05/02/2017 non-fiduciary activity. The Rule misuses DOL's narrow authority to relieve regulatory burdens as a tool to compel regulated entities to submit to onerous new requirements It impermissibly that DOL has no power to impose directly. creates a new private right of action that Congress never authorized. And it imposes unlawful restrictions on arbitration agreements in violation of the Federal Arbitration Act. The Fiduciary Rule and its related exemptions should be vacated. JURISDICTIONAL STATEMENT The district court had original jurisdiction under 28 U.S.C. ? 1331. That court entered final judgment on February 9, 2017, ROA.9954, and Plaintiffs-Appellants filed a notice of appeal on February 24, 2017, ROA.9955. This Court has jurisdiction under 28 U.S.C. ? 1291. STATEMENT OF THE ISSUES PRESENTED I. Did the Department interpret "fiduciary" and "renders invest- ment advice for a fee" in a manner that is unreasonable, arbitrary, and capricious, and conflicts with the plain meaning ofERISA and the Code? AM[ HICAN PVERSIGHT 3 DOL-17-0281-H-000062 Case: 17-10238 II. Document: 00513977124 Was it unreasonable, Page: 25 Date Filed: 05/02/2017 arbitrary, and capricious for the Depart- ment to use its "exemptive" authority, which is meant to reduce regulatory burdens, to impose transformative IRAs that the Department III. related to had no authority to impose directly? Was it contrarytoAlexander and arbitrary, new requirements v. Sandoval, 532 U.S. 275 (2001), capricious, and otherwise unlawful, for the Department deliberately to create new enforceable rights with respect to IRAs and to dictate the forum, procedures, and remedies available for the vindication of those rights? IV. Did the Department violate the Federal Arbitration Act ("FAA") by barring any firm that seeks exemptive relief from entering arbitration agreements unless the firm allows class-wide claims? STATEMENT OF THE CASE I. The Financial-Services Industry And Insurance Americans saving for retirement Industry depend on the services and prod- ucts offered by hundreds of thousands of financial and insurance professionals, small businesses, and other institutions AM[ HICAN PVERSIGHT in the financial-services 4 DOL-17-0281-H-000063 Case: 17-10238 Document: 00513977124 and insurance industries. Page: 26 Date Filed: 05/02/2017 Studies show that individuals who receive as- sistance from financial and insurance professionals save more than those who do not. ROA.3722-23. Financial services and insurance are among the most comprehensively regulated industries in the United States. The laws regulating financial services include the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 ("Advisers Act"), the Investment Company Act of 1940, and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The States also regulate the financial-services industry, as do self-regulatory organizations such as the Financial Industry Regulatory Authority ("FINRA"). See 15 U.S.C. ? 78o-3(b)(6); ROA.2700-01, 8085-86. The business of insurance is sub- ject to extensive regulation at the state level. ROA.2295-96, 6130-31. Certain insurance products-such ously regulated as variable annuities-are by state insurance departments simultane- and the SEC. See ROA.6130. For nearly 80 years, federal and state law have recognized three basic categories of financial and insurance professionals: AM[ HICAN PVERSIGHT 5 DOL-17-0281-H-000064 Case: 17-10238 Document: 00513977124 Page: 27 Investment advisers offer ongoing investment Date Filed: 05/02/2017 advice to clients, for which they typically receive periodic fees. Their fees may be based on the value of the assets in customers' accounts, or may be a flat fee or hourly charge. See, e.g., ROA.9095-97. Brokers-also known as registered representatives-sell invest- ment products, ordinarily receiving compensation for each transaction executed. This compensation typically takes the form of a commission, mark-up, or sales load. State-regulated insurance agents sell fixed-indexed, fixed-rate, and variable annuities and other insurance products and ordinarily are compensated on a transaction basis. See ROA.8535. Under federal and state law, investment pensated for their advice-have advisers-who are com- long been recognized to be fiduciaries. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 190~92 (1963). This generally is not the case for brokers and insurance nonetheless must adhere to strict standards they recommend only transactions agents, who of conduct, including that that are "suitable" for their customers. See FINRA, Rule 2111. AM[ HICAN PVERSIGHT 6 DOL-17-0281-H-000065 Case: 17-10238 II. Document: 00513977124 Page: 28 Date Filed: 05/02/2017 Regulation Of Fiduciaries Under ERISA Individuals often save for retirement retirement through employer-sponsored plans, and through IRAs. Employer-sponsored plans are governed by Title I of ERISA, which regulates the plans in three ways that are pertinent to this appeal. First, ERISA designates certain service providers to plans as fiduciaries, and holds them to heightened duties of loyalty and prudence. U.S.C. ? 1104(a). ERISA contains a three-part 29 definition of "fiduciary." As relevant here, a person is a fiduciary "to the extent" that "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." 29 U.S.C. ? 1002(21)(A)(ii). This tracks lan- guage in the Advisers Act, which defines an adviser-a long recognized as fiduciary-as role that has been someone who "for compensation . .. ad- vis [es] others ... as to the value of securities or as to the advisability of investing in, purchasing, or selling securities." 15 U.S.C. ? 80b-2(a)(ll). Second, ERISA bars fiduciaries from engaging in several "prohibited transactions." AM[ HICAN PVERSIGHT 29 U.S.C. ? 1106(b)(3). These include transactions in 7 DOL-17-0281-H-000066 Case: 17-10238 Document: 00513977124 Page: 29 Date Filed: 05/02/2017 which the fiduciary receives a commission paid by a third party or compensation that varies based on the advice that is provided. Id.; ROA.383, 453. Third, ERISA creates several exemptions to allow transactions would otherwise be prohibited, and authorizes the Department-the tion's principal employment regulator-to if certain criteria are satisfied. that na- create additional exemptions 29 U.S.C. ? 1108(a), (b). The Act gives DOL enforcement and regulatory authority over employer-sponsored tirement plans, in addition to authorizing plan participants ciaries who breach their duties of loyalty or prudence. re- to sue fidu- Id. ? l00l(b); id. ? 1132(a). III. Regulation Code of Fiduciaries under the Internal Revenue IRAs (and certain other tax-favored retirement accounts) are gov- erned by the Internal Revenue Code, not ERISA. The two laws have similarities-and importance differences. The Code contains an essentially identical definition of "fiduciary," 26 U.S.C. ? 4975(e)(3), and also enumerates certain "prohibited transac- tions," id. ? 4975(c). However, fiduciaries to IRAs are not subject to the AM~ HICA\J PVERSIGHT 8 DOL-17-0281-H-000067 Case: 17-10238 Document: 00513977124 Page: 30 Date Filed: 05/02/2017 duties of loyalty and prudence that apply to ERISA fiduciaries. Moreo- ver, DOL has no enforcement or regulatory authority over IRAs, and the Code provides no private right of action. The Code's prohibited-transaction provisions are enforced by the Treasury Department, through audits and excise taxes. Id. ? 4975(a), (D(8)(E). For reasons of administrative convenience, Congress gave DOL lim- ited authority with respect to IRAs in two areas where ERISA and the Code overlap: DOL "may define accounting, technical and trade terms" as they appear in both laws, 29 U.S.C. ? 1135, and may grant exemptions from the prohibited-transaction Reorganization provisions of the Code, as for ERISA, see Plan No. 4 of 1978, ? 102 (Aug. 10, 1978), reprinted in 5 U.S.C. app. 1 (2016), and in 92 Stat. 3790 (1978) ("Reorganization Plan No. 4"). As noted, however, DOL has no enforcement authority over IRAs. See id. ? 105. IV. The Department's Original Interpretation Of "Fiduciary" In 1975, DOL promulgated a regulation setting forth a five-part test for determining who is a fiduciary under the investment-advice AMERICAN PVERSIGHT provision 9 DOL-17-0281-H-000068 Case: 17-10238 Document: 00513977124 Page: 31 Date Filed: 05/02/2017 of the definition in ERISA and the Code. 1 DOL's 1975 regulation sought to capture the hallmark special relationship of a fiduciary relationship of trust and confidence. at common law: a E.g., George G. Bogert, George T. Bogert & Caryl A. Yzenbaard, Bogert's Trusts & Trustees? 481 (2016 update). See also R.R. Rep. No. 93-533, at 2082 (1973), as reprinted in 1974 U.S.C.C.A.N. 4639, 4649 (Congress adopted "fiduciary" definition that "in essence, codifies and makes applicable to these fiduciaries certain principles developed in the evolution of the law of trusts"). The reg- ulation embodied the common law distinction recognized in the Advisers Act between an investment-advice fiduciary and a "broker or dealer" who provides advice that is "solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor." 15 U.S.C. ? 80b-2(a)(ll)(C). 1 The regulation defined an investment-advice fiduciary as someone who (1) "render[ed] advice as to the value of securities or other property, or [made] recommendation[s] as to the advisability of investing in, purchasing, or selling securities or other property"; (2) "on a regular basis"; (3) "pursuant to a mutual agreement, arrangement or understanding," with the plan or plan fiduciary; (4) where the advice "serve[d] as a primary basis for investment decisions with respect to plan assets"; and (5) the advice was individualized "based on the particular needs of the plan." 29 C.F.R. ? 2510.3-21(j). AM[ HICAN PVERSIGHT 10 DOL-17-0281-H-000069 Case: 17-10238 V. Document: 00513977124 The Department's Page: 32 Date Filed: 05/02/2017 New Fiduciary Rule And Exemptions In April 2015, DOL proposed a new definition of "fiduciary," two exemptions, and amendments new prohibited-transaction exemptions. ROA.1020-52 (new interpretation ROA.1053-1139 (amendments to six existing and new exemptions); to existing exemptions). After notice and comment, the new definition and exemptions were adopted and published in the Federal Register in April 2016 as a package of seven different rules, which are referred to collectively ROA.322-538 (new interpretation (amendments as the "Fiduciary Rule." and new exemptions); ROA.539-624 to existing exemptions). DO L's new Rule rests on a sweeping critique of the securities laws, insurance products, broker-dealers, mutual funds, and other matters out- side DOL's limited mandate of regulating employer-sponsored plans. For example, disclosure requirements retirement are a cornerstone of these- curities laws and state insurance regulation, but DOL concluded that disclosure was "ineffective to mitigate conflicts in advice" and might actually "make consumers worse off." ROA.326-27, 780. Congress had determined that AM~ HICA\J PVERSIGHT insurance products known as "fixed-indexed" annuities 11 DOL-17-0281-H-000070 Document: 00513977124 Case: 17-10238 Page: 33 Date Filed: 05/02/2017 should not be regulated by the SEC if certain state regulatory requirements are satisfied, Dodd-Frank Act, ? 989J, 124 Stat. 1949-50 (2010), but DOL criticized those products and decided that heightened federal oversight was needed anyway, ROA.554-55. DOL also based the Rule on its preference for "passively managed mutual funds (i.e. index funds)" over "actively managed funds," and its "deep and continuing concern[s]" with "proprietary" financial products, for example, insurance that an insurance company both designs and markets. policies ROA.429, 782. The Rule aims to address these perceived problems by instituting what DOL calls a "best interest" standard of conduct for all financial professionals, particularly those who service IRAs. (As noted, DOL has no regulatory authority over IRAs, and the Code does not subject IRA fiduciaries to duties of loyalty and prudence.) The Rule has two basic components: First, it adopts an interpretation of "fiduciary" that captures vir- tually all financial and insurance professionals who provide services to IRAs and ERISA plans-thereby ited-transaction requirements. subjecting them to those laws' prohibThese professionals are thus barred from receiving forms of compensation that have been a cornerstone of their business models for generations. AM~ HICA\J PVERSIGHT Second, the Rule provides an exemption 12 DOL-17-0281-H-000071 Case: 17-10238 Document: 00513977124 Page: 34 Date Filed: 05/02/2017 from those prohibitions, but only if brokers and agents adhere to a range of new requirements standard. designed by DOL to implement its best-interest The Rule thus forces brokers and insurance agents to either "comply with [an] Exemption" or "curtail" services. ROA. 7959. A. The Labor Department's "Fiduciary" New Interpretation Of The Rule's new definition of "fiduciary" applies to any person who provides "investment advice" to an ERISA plan participant or "IRA owner" and receives a "fee or other compensation" in connection with that advice. "Investment advice" is defined broadly by DOL to include "recom- mendations" regarding, among other things, whether to buy or sell "securities or other investment property"; the "rollover" of retirement assets to an IRA; and how "securities or other investment plan property" should be invested in an IRA. ROA.373. "Recommendation," in turn, is also defined broadly 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." ROA.373 (emphasis added). AM[ HICAN PVERSIGHT 13 DOL-17-0281-H-000072 Case: 17-10238 Page: 35 Document: 00513977124 Taken together, these definitions dramatically Date Filed: 05/02/2017 expand the scope of the statutory definition of "fiduciary." As the Rule operates in practice, a person can become a fiduciary if she simply "[d]irect[s] ... advice to a specific advice recipient" regarding the "advisability of a particular in- vestment ... decision." ROA.373. That is, the Rule treats any suggestion in connection with a sale as conferring fiduciary status, with narrow exceptions. Under DO L's rule, for example, if an insurance sales agent tells a prospective customer, "You will be very pleased with my company's new annuity product," that agent is deemed-for of salesmanship-to having engaged in that act be a fiduciary. The Rule thus rejects the distinction between selling products and giving advice that has been fundamental to the securities laws for nearly 80 years. B. The "Best Interest Contract" Exemption DOL recognized that its new interpretation broad and impractical. relationships of"fiduciary" was over- This "broad test," it said, "could sweep in some that are not appropriately regarded as fiduciary in nature and that the Department does not believe Congress intended to cover as fiduciary relationships." ROA.324. The consequences of that are im- mense, because the prohibited-transactions AM~RICA\J PVERSIGHT provisions of the Code and 14 DOL-17-0281-H-000073 Case: 17-10238 Document: 00513977124 ERISA bar the third-party Page: 36 Date Filed: 05/02/2017 payments, commissions, and sales loads that are the norm for brokers and insurance agents. See, e.g., ROA.368, 37980. DOL recognized that outlawing those payments was unacceptable. Transaction-based compensation such as commissions are "commonplace in today's marketplace," DOL said, and "often support beneficial advice arrangements." ROA.439-40. "[B]anning all commissions, transaction- based payments, and other forms of conflicted payments ... could have serious adverse unintended consequences." ROA.439. Indeed, DOL said, it is "abusive conduct" to use fee-based compensation rather than a transaction-based commission for smaller customer accounts that only engage in infrequent trading. ROA.388-89 n.18, 932 n.573. 2 Rather than scale back its unacceptably broad interpretation duciary ," DOL simultaneously of "fi- promulgated numerous "exemptive rules" to permit certain otherwise prohibited transactions to continue-but only 2 See also ROA.6114-16 (for year 2010, approximately 50% of IRA accounts contained assets of $25,000 or less and had on average 3 to 5 trades per account for that year); ROA.8354 (Approximately 95% of accounts under $25,000 rely on transaction-based models). AM~RICA\J PVERSIGHT 15 DOL-17-0281-H-000074 Case: 17-10238 Document: 00513977124 Page: 37 Date Filed: 05/02/2017 if brokers and insurance agents accede to a range of new "conditions" designed by DOL. 3 The most important Exemption. of these is the Best Interest Contract ("BIC") Under the BIC Exemption, brokers and insurance agents may receive commissions (and other transaction-based financial institution or insurance payments) if the company that employs them, among other things: o acknowledges in writing that it and its professionals serving as fiduciaries; are o acknowledges that the company has adopted "impartial conduct standards" under which the professional's recommendations must be in the "best interest" of the investors (requiring in part that the recommendations be made "without regard to the financial or other interests of the Adviser, Financial Institution or any Affiliate, Related Entity, or other party"), and the professional does not receive payment "in excess of reasonable compensation"; 3 In a surprise change from the proposal, DOL narrowed the scope of an important and long-standing exemption, Prohibited Transaction Exemption 84-24; although only individual variable annuities were excluded from the exemption as proposed (because they are regulated as securities), the final exemption also excludes group variable annuities and fixed-indexed annuities. ROA.548-49. It now includes only fixedrate annuities. AM[ HICAN PVERSIGHT 16 DOL-17-0281-H-000075 Case: 17-10238 Document: 00513977124 Page: 38 Date Filed: 05/02/2017 o provides warranties regarding policies and procedures implemented by the company to ensure adherence to these impartial conduct standards; and o makes various disclosures of conflicts of interests and third-party payments that may be received from the transaction. ROA.453-57. 4 A "critical" feature of the BIC Exemption, DOL said, was its requirement that IRA fiduciaries enter enforceable contracts with customers. ROA.397 . These contracts bind them to fiduciary duties of loyalty and prudence (which do not apply under the Code) and may not contain provisions that are commonly used to limit liability, such as a liquidated damages clause or an arbitration agreement that waives participation in class actions. See ROA.379-80, 453, 455-56. This new contract's "enforce ability," DOL said, "and the potential for liability" it created, were "central goals of this regulatory project." ROA.398, 410. 4 Principal Transactions DOL created a second new exemption-the allows financial institutions to engage in, and receive Exemption-that transactions. in connection with, otherwise-prohibited payments ROA.523, 525-28. The Principal Transactions exemption requires the same contractual obligations and liabilities as the BIC Exemption. See ROA.4 79-530. For simplicity, the remainder of this brief refers to both exemptions collectively as the BIC Exemption. AM~RICA\J PVERSIGHT 17 DOL-17-0281-H-000076 Case: 17-10238 Document: 00513977124 Page: 39 Date Filed: 05/02/2017 DOL thus concluded that the protections Congress had put in the Code were inadequate, and took it upon itself to fill in the holes it believed Congress had left. "Unlike participants ered by Title I ofERISA," the Department and beneficiaries in plans covlamented, IRA owners "do not have an independent statutory right to sue fiduciaries for violation of the prohibited transaction rules." ROA.398; see also ROA.410. Therefore, DOL "creat[ed] a mechanism for investors" to sue. ROA.398. As a senior DOL official explained, DOL "had to be creative to try to find a way to" create enforceable rights under the Rule; "that's how we came up with the best interest contract exemption," "deputizing" consumers to bring "state contract actions." ROA.49-50. The new Rule will have significant adverse effects for IRA owners, other retirement savers, and the products and professionals they rely upon. Advisory accounts (unlike brokerage accounts) usually require the account holder to maintain a minimum account balance to be eligible to receive services from an investment professional. ROA.6120. Because of account minimums, the Rule "could eliminate access to meaningful investment services for over 7 million IRAs." ROA.6106. DOL nonetheless brushed aside the record evidence indicating that the Rule would curtail AM~ HICA\J PVERSIGHT 18 DOL-17-0281-H-000077 Case: 17-10238 Document: 00513977124 the availability of investment Page: 40 Date Filed: 05/02/2017 assistance and advice, harming the indi- viduals it purported to help. ROA.2736-37, ROA.3719-23. DOL even ignored its own previous estimates that investment mistakes cost investors approximately $114 billion per year, that access to financial assistance reduced the cost of those mistakes by $15 billion per year, and that increased access to financial assistance would enable them to save billions more. Investment Advice-Participants and Beneficiaries, 76 Fed. Reg. 66,136, 66,152 (Oct. 25, 2011). Individuals' access to certain products will be especially impaired, due to DOL's decision to favor certain products and distribution models while disfavoring others-including that Congress indicated the fixed-indexed annuities products in Dodd-Frank should be regulated by the States. Supra 11-12. Fixed-indexed annuities are often sold through independent insurance agents who may be part of an independent marketing organization ("IMO"). An IMO cannot qualify for the BIC Exemption: Only "Financial Institutions" Institutions are eligible, and IMOs are not Financial within the meaning of the Exemption. ance companies that create annuities And although insur- do qualify as Financial Institu- tions, ROA.454, ROA.460, those companies cannot obtain relief under the AM[ HICAN PVERSIGHT 19 DOL-17-0281-H-000078 Document: 00513977124 Case: 17-10238 Page: 41 Date Filed: 05/02/2017 BIC Exemption with respect to independent insurance agents, because the BIC Exemption imposes strict supervisory requirements ance companies cannot satisfy with respect to independent that insuragents: those agents might sell the fixed-indexed annuities of several different insurance companies, and none of those companies can supervise the products the agent or IMO offers at a particular time, or the compensation offered by other companies. Because independent agents can neither receive commissions under the Rule nor qualify for the BIC Exemption, they may be forced to exit the market, thereby reducing consumer access and choice and shuttering the businesses of independent agents, many of whom are sole proprietorships or small businesses. DOL belatedly recognized its error and purported to address it in a proposed rule regarding "insurance intermediaries," 5 but that proposal-which is not law-serves only to point up the error of the Rule DOL adopted, and which is before this Court. The Rule's consequences ments. Many broker-dealers reach well beyond retirement and other investment firms serve both IRAs 5 See Proposed Best Interest Contract Exemption Intermediaries, 82 Fed. Reg. 7,336 (Jan. 19, 2017). AM~ HICA\J PVERSIGHT invest- for Insurance 20 DOL-17-0281-H-000079 Case: 17-10238 Document: 00513977124 Page: 42 Date Filed: 05/02/2017 and other types of accounts, and must now navigate a "panoply of regulatory regimes" regarding "different accounts" held by "a single cus- tomer." ROA.2703. DOL nonetheless concluded that it could not wait for other regulators to act, ROA.439, including the SEC, which Congress had instructed in the Dodd-Frank Act to consider whether a new standard of conduct for broker-dealers was needed, Dodd-Frank Act, ? 913(b), 124 Stat. 1824 (2010). Instead, DOL elected to front-run the SEC and install itself as the paramount regulator of IRAs, a range of insurance products, and the financial professionals who offer them. VI. District Court Proceedings Plaintiffs-Appellants the U.S. Chamber of Commerce et al. ("Plain- tiffs") challenged the Fiduciary Rule under the Administrative Procedure Act ("APA"). Two other actions filed in the same court were consolidated with this case. 6 On cross-motions for summary judgment, the district 6 Three other suits challenging the Rule are proceeding before other courts. Nat'! Ass'n for Fixed Annuities v. Dep't of Labor, No. 16-5345 (D.C. Cir.); Market Synergy Grp. v. Dep't of Labor, No. 17-3038 (10th Cir.); Thrivent Fin. For Lutherans v. Hugler, No. 0:16-cv-3289 (D. Minn.). AMt HICAN PVERSIGHT 21 DOL-17-0281-H-000080 Document: 00513977124 Case: 17-10238 Page: 43 Date Filed: 05/02/2017 court adopted DOL's litigating position across the board and granted it summary judgment. ROA.9873-9953. This appeal followed. ROA.9955. 7 SUMMARYOF ARGUMENT The Fiduciary Rule is arbitrary, capricious, unreasonable, and con- trary to law. The Court should vacate the Rule for each of the following four reasons. I. The plain meaning of "fiduciary" precludes the Department from interpreting sales relationships. the term so broadly that it encompasses virtually all When Congress uses a common-law term of art in a statute, it incorporates the term's settled meaning, and at common law, a "fiduciary" relationship arises only where there is a special relationship of trust between the parties. The Fiduciary Rule's novel re-interpretation of "fiduciary" divorces that term from the relationships properly equating sales interactions with disinterested that define it, imfiduciary advice. 7 Shortly before the district court issued its opinion, the President issued a memorandum directing DOL to reconsider the Fiduciary Rule in light of its potentially adverse effects on investors. 82 Fed. Reg. 9,675 (Feb. 7, 2017). Specifically, the President directed the Department to assess whether the Rule might cause certain specified harms to investors. Id. If DOL determines that any of the specified harms will likely occur, it is to propose "rescinding or revising the Rule." Id. AM~ HICA\J PVERSIGHT 22 DOL-17-0281-H-000081 Case: 17-10238 Document: 00513977124 Page: 44 Date Filed: 05/02/2017 Even if ERISA and the Code gave DOL some leeway in construing "fiduciary," the Rule has reinvented it in a way that is irreconcilable with its settled meaning and is unreasonable, II. The Fiduciary Rule exceeds the Department's abuses its exemptive authority. of exemptive authority arbitrary, and capricious. power and An agency cannot deploy a narrow grant to promulgate industry-reshaping regulations. The Department, however, has attempted to radically redesign the mar- ket for IRAs-a market that it has no power to regulate through its limited authority to reduce regulatory burdens. directlyThis back- door regulation is unlawful, arbitrary, and capricious. III. In the absence of congressional authorization, an agency may not create a private right of action directly or indirectly. The BIC Ex- emption flouts this principle by creating private liability for the purpose of enforcing the requirements of the Fiduciary Rule. In crafting this new enforcement regime, DOL also engaged in an unreasonable, arbitrary ex- ercise of regulatory power that is directly at odds with Congress's design. IV. The Fiduciary Rule violates the Federal Arbitration Act ("FAA") by prohibiting financial and insurance professionals who rely on the BIC Exemption from entering arbitration AM[ HICAN PVERSIGHT agreements that contain 23 DOL-17-0281-H-000082 Case: 17-10238 class waivers. Document: 00513977124 Page: 45 Date Filed: 05/02/2017 The FAA prohibits States and federal agencies from con- ditioning the enforceability of arbitration agreements on the presence absence of particular terms. Accordingly, the Department's OF impermissi- ble attempt to use the BIC Exemption to dictate the terms of arbitration agreements is contrary to federal law. 8 STANDARD OF REVIEW This Court "review[s] de novo a district court's grant of summary judgment, applying the same standard as the district court." Assoc. Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215, 219 (5th Cir. 2016) (quotation omitted). Under the APA, this Court "shall ... hold unlawful and set aside agency action" that is "in excess of statutory jurisdiction, authority, or limitations," or "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. ? 706(2)(A), (C); see also Luminant Generation Co. v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). "Normally, an agency rule would be arbitrary and capricious if the agency has relied on 8 Plaintiffs incorporate by reference the briefs (and all arguments therein) filed today by the Indexed Annuity Leadership Council ("IALC") Plaintiffs-Appellants and the American Council of Life Insurers ("ACLI") Plain tiffs-Appellants. AM[ HICAN PVERSIGHT 24 DOL-17-0281-H-000083 Case: 17-10238 Document: 00513977124 Date Filed: 05/02/2017 Page: 46 factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The deference that often is given an agency's interpretation of a statute under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), does not apply to "question[s] of deep economic and political significance" that Congress did not "expressly" assign to the agency. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citation omitted). Thus, an agency is pro- hibited from adopting a regulation that "would bring about an enormous and transformative congressional expansion in [its] regulatory authority without clear authorization." Util. Air Regulatory Grp. ("UARG") v. E.P.A., 134 S. Ct. 2427, 2444 (2014) (emphasis added); see also Josh Blackman, Gridlock, 130 Harv. L. Rev. 241, 261 (2016) (describing the "major question doctrine" as an "exception to Chevron" under which "the agency is owed no deference" when its "regulation implicates a 'major question"'). AM~RICA\J PVERSIGHT 25 DOL-17-0281-H-000084 Case: 17-10238 Document: 00513977124 Page: 47 Date Filed: 05/02/2017 Chevron deference also should not apply to a term-like definition of fiduciary-that ERISA's has both civil and criminal applications. rule oflenity "requfres interpreters The to resolve ambiguity in criminal laws in favor of defendants," Whitman v. United States, 135 S. Ct. 352, 352-53 (2014) (statement of Scalia, J., respecting the denial of certiorari), yet "[a] single law should have one meaning," Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 730, 733 (6th Cir. 2013) (Sutton, J., concurring). Therefore, a term with both criminal and civil consequences should be interpreted using the rule of lenity, not Chevron. Id.; accord Gutierrez-Brisiel v. Lynch, 834 F.3d 1142, 1155-56 (10th Cir. 2016) (Gorsuch, J., concurring). Cf United States v. Flores, 404 F.3d 320, 326-27 (5th Cir. 2005) (declining to "decid[e] whether full Chevron deference is appropriate" where a statute "involv[es] a mixture of both immigration and criminal law" (footnote omitted)). 9 9 Since the definition of "fiduciary" in the Code is effectively identical to the definition in ERISA and was passed at the same time, see Pub. L. No. 93-406, 152-53, 88 Stat. 829, 877 (1974); 26 U.S.C. ? 4975(e)(3)(B), the Court also should not defer to the Department's interpretation of "fiduciary" in the Code. AM~ HICA\J PVERSIGHT 26 DOL-17-0281-H-000085 Case: 17-10238 Page: 48 Document: 00513977124 Date Filed: 05/02/2017 In circumstances where Chevron does apply, courts follow a familiar two-step process: At step one, if "the text and structure of a statute unambiguously foreclose an agency's statutory interpretation, "the intent of Congress is clear, [and] that is the end of the matter." 467 U.S. at 84243 & n.9. At step two, an agency's interpretation will be rejected if it is "unreasonable," gress's] intent." of an ambiguous statute including if it "violate[s] [Con- Texas v. United States, 497 F.3d 491, 501, 506 (5th Cir. 2007). ARGUMENT I. The Rule's Redefinition Of "Fiduciary" Is Unlawful. In promulgating its new interpretation of "fiduciary," DOL contra- vened the plain text of the Code and ERISA, adopting an unreasonable construction that strayed far beyond what Congress intended. The interpretation, and the Fiduciary Rule as a whole, must be vacated. A. Under ERISA And The Code, The Hallmark Of A "Fiduciary" Is A Relationship Of Trust And Confidence. The plain meaning of the term "fiduciary" precludes the Department from adopting an interpretation AM~ HICA\J PVERSIGHT so broad that it includes virtually 27 DOL-17-0281-H-000086 Case: 17-10238 Document: 00513977124 Page: 49 all persons who engage in sales interactions, of a relationship Date Filed: 05/02/2017 regardless of the presence of trust and confidence. It is a "cardinal rule of statutory construction that, when Congress employs a term of art" from the common law, "it presumably knows and adopts the cluster of ideas that" the common law attached to that term. FAA v. Cooper, 132 S. Ct. 1441, 1449 (2012) (quotation marks omitted). Even where a statute "abrogates the common law in certain respects," courts must nevertheless "presume that Congress retained all other ele- ments of [the common law] that are consistent with the statutory text." Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 1999 n.2 (2016); see also, e.g., Neder v. United States, 527 U.S. 1, 23-25 (1999); Molzof v. United States, 502 U.S. 301, 310-11 (1992). At common law, a "fiduciary" relationship arises only where "spe- cial intimacy or ... trust and confidence" exists between the parties. Bogert, supra? 481; see also, e.g., Granik v. Perry, 418 F.2d 832, 836 (5th Cir. 1969) (a "fiduciary" relationship exists where "a relation of trust and confidence exists between the parties" (citation omitted)); Oak Cliff Bank & Trust Co. v. Steenbergen, 497 S.W.2d 489, 493 (Tex. Civ. App.-Waco AM~ HICA\J PVERSIGHT 28 DOL-17-0281-H-000087 Case: 17-10238 Document: 00513977124 Page: 50 Date Filed: 05/02/2017 1973, writ refd n.r.e.) ("a fiduciary relationship" is "one of trust and confidence"); BlackJs Law Dictionary 753 (rev. 4th ed. 1951) (defining "fiduciary" based on the "trust and confidence involved" in the relationship). Thus, in ERISA and the Code, Congress used the term "fiduciary"a well-defined, common law term of art-to special relationships refer to individuals having of trust and confidence with their clients. SeeJ e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110-11 (1989) (ERISA and the Code incorporate principles of the common law of trusts). The word "fiduciary" has, "over the years," obtained "a legal meaning, to which, we normally presume, Congress meant to refer." Varity Corp. v. Howe, 516 U.S. 489, 502 (1996). The House Report on ERISA specifically confirms that ERISA imports the common-law principle that a "fiduciary is one who occupies a position of confidence or trust." R.R. Rep. No. 93- 533, at 2082 (1973), as reprinted in 1974 U.S.C.C.A.N. 4639, 4649. And for more than forty years DOL itself recognized this settled definition of "fiduciary" in its regulations, which expressly confirm that fiduciary status applies only to persons who rendered advice "on a regular basis" and "pursuant to a mutual agreement" that was "individualized" and "serve[d] as a primary basis for investment decisions." See supra note 1. AM[ HICAN PVERSIGHT 29 DOL-17-0281-H-000088 Case: 17-10238 Document: 00513977124 Page: 51 To be sure, ERISA contains definitional guide how "fiduciary" should be interpreted, Date Filed: 05/02/2017 provisions that further but none of those provisions suggest that Congress discarded the settled meaning of"fiduciary"-as any other word would have equally sufficed. Congress abandoned the essential characteristic cial relationship if Nor do they suggest that of a "fiduciary": a spe- of trust and confidence. Rather, the definitional provi- sions confirm that Congress was referring to advisers who occupy a privileged and influential role. The definition of "fiduciary" in ERISA and the Code has three elements. See 26 U.S.C. ? 4975(c)(3); 29 U.S.C. ? 1002(21)(A). The first makes a person a fiduciary if she exercises "dis- cretionary authority or discretionary control respecting management" of a plan, and the third provides that a person is a fiduciary if he has "discretionary authority istration. 26 U.S.C. ? 4975(c)(3)(A), (C); 29 U.S.C. ? 1002(21)(A)(i), (iii). Both contemplate or discretionary a substantial, responsibility" over plan admin- ongoing, and confidential relationship with a plan. DOL's new interpretation concerns the second requirement garding the provision of "investment AM[ HICAN PVERSIGHT (re- advice"), under which a person is a 30 DOL-17-0281-H-000089 Case: 17-10238 Document: 00513977124 Page: 52 Date Filed: 05/02/2017 fiduciary if she "renders investment advice for a fee or other compensation, direct or indirect, with respect to" an IRA, or if she ''has any authority or responsibility to do so." 26 U.S.C. ? 4975(e)(3)(B) (em.phases added). The essence is that a fee is being paid to procure the "advice" of someone with expertise and independent judgment about the best course to pursue, as opposed to a commission being paid for consummating transaction with a broker or insurance sales agent. a The second half of this definition, with its reference to "authority" and "responsibility," confirms the focus of the definition as a whole on substantial, ongoing rela- tionships of trust and confidence. Further, this requirement must be read in conjunction with the first and third that bookend it, both of which plainly contemplate a substantial relationship of trust and confidence. "[I]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme," Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (quotation omitted); see also Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,852 (2001). AM[ HICAN PVERSIGHT 31 DOL-17-0281-H-000090 Case: 17-10238 Document: 00513977124 Page: 53 Date Filed: 05/02/2017 Yet as shown below, DOL's Rule sweeps well beyond the relationships captured by the term "fiduciary" and the statute's "investment advice" definition. The Plain Language Of ERISA And The Code Forecloses The Rule's Redefinition Of "Fiduciary." B. Under DOL's rule, the very act of selling-recommending a broker or an insurance chase of a financial product-makes fiduciary. 10 the puragent a That clashes with the plain meaning of "fiduciary." At the time ERISA was enacted, it was well recognized that an arms-length sales transaction did not give rise to a fiduciary relationship of trust and confidence. See, e.g., Robinson v. Merrill Lynch, Pierce, Fen- ner & Smith, Inc., 337 F. Supp. 107, 113-14 (N.D. Ala. 1971) (broker not 10 Moreover, "providing a selective list of securities" and indicating for [that] investor" without making a they are "appropriate "recommendation ... with respect to any one security" can create a An ROA.348. and fiduciary obligations. fiduciary relationship introductory conversation with a broker during which an IRA was suggested as an investment option would be fiduciary "advice," even if the broker's statement was entirely incidental to the ultimate sale. See ROA.343-44. AM~ HICA\J PVERSIGHT 32 DOL-17-0281-H-000091 Case: 17-10238 Document: 00513977124 Page: 54 Date Filed: 05/02/2017 a fiduciary), aff d, 453 F.2d 417 (5th Cir. 1972). 11 As the SEC explained, "render[ing] investment advice merely as an incident to ... broker-dealer activities" does not by itself place broker-dealers and confidence as to their customers." "in a position of trust Hughes, Exchange Act Release No. 4048, 1948 WL 29537, at *7 (Feb. 18, 1948), affd, Hughes v. SEC, 174 F.2d 969 (D.C. Cir. 1949). This Court's precedent is in accord: "Simply urging the purchase of [the company's] products does not make an insurance company an ERISA fiduciary with respect to those products." Am. Fed'n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc'y of the U.S., 841 F.2d 658, 664 (5th Cir. 1988). Indeed, at common law and under the securities laws at the time of ERISA's enactment, a fiduciary was defined in contra-distinction to salespeople and other third parties who, because they "act[ed] at arm's length," did not have to abide by a fiduciary's "punctilio of an honor the most sensitive." Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (Cardozo, J.). 11 The fact that brokers are not fiduciaries does not leave investors without any recourse for alleged misconduct. Investors can exercise contractual rights and enjoy the protection of FINRA's suitability standard. AMERICAN PVERSIGHT 33 DOL-17-0281-H-000092 Case: 17-10238 Document: 00513977124 Page: 55 Date Filed: 05/02/2017 To conclude that someone is a salesperson is to conclude that she is not a fiduciary; DOL's interpretation Perhaps not surprisingly, turns this on its head. then, DOL conceded in the rulemaking that its new "broad test" for determining who is a fiduciary "could sweep in some relationships" intended that "the Department to cover as fiduciary does not believe Congress relationships." ROA.324; see also ROA.1033 ("Congress did not intend to cover as fiduciary 'investment advice"' communications "that parties would not ordinarily view" as "characterized by a relationship of trust or impartiality"); ROA.325 (acknowl- edging the need to "avoid[] burdening activities that do not implicate relationships of trust"). That concession ends this case. The Department to adopt an interpretation at odds with a law's "intended" meaning. agency "must always give effect to the unambiguously of Congress." has no authority An expressed intent UARG, 134 S. Ct. at 2445 (citation and quotation marks omitted). DOL defends this flaw by arguing that the Rule's overbreadth is repaired by the BIC Exemption, which enables the Rule's newly dubbed fiduciaries to engage in transactions AMERICAN ?pvERSIGHT otherwise prohibited by ERISA and 34 DOL-17-0281-H-000093 Case: 17-10238 Document: 00513977124 Page: 56 Date Filed: 05/02/2017 the Code. See ROA.380. That is non-responsive; DOL's interpretation of the statute must stand on its own. The EPA made a similar error in the UARG case, where it adopted an overbroad statutory interpretation, which it purported to cure with a companion "tailoring rule." But as the Court explained, "Agencies are not free to adopt unreasonable interpre- tations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness." 134 S. Ct. at 2446 (internal quotations and alterations omitted). In the absence of exemptive relief, DO L's broad definition of fiduciary would bar the widely accepted practice of commission-based compensation, which DOL admitted in the rulemaking "could have serious adverse unintended consequences." ROA.439. Here, as in UARG, the need to provide exemptive relief "should have alerted [the agency] that it had taken a wrong interpretive DOL's other arguments fare no better. turn." Id. DOL insists that decisions about IRA rollovers "are often the most important financial decisions that consumers make in their lifetime," ROA.641, but the importance of a transaction does not establish that the professionals who facilitate it fall within the definition of"fiduciary" under the Code. "[A]n agency may not AM[ HICAN PVERSIGHT 35 DOL-17-0281-H-000094 Document: 00513977124 Case: 17-10238 rewrite clear statutory should operate." Page: 57 Date Filed: 05/02/2017 terms to suit its own sense of how the statute UARG, 134 S. Ct. at 2446. DOL also contends that ERISA departed from the common law by "expanding the universe of persons subject to fiduciary duties," Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993), but that limited departure refutes DOL's position. Mertens clarified that ERISA defines "fiduciary" "in functional terms," eschewing only the formal requirement that a fi- duciary be a named trustee in a written trust document. Id. The upshot is that a fiduciary's function at common law plays a central role in determining who holds that status under ERISA. This was demonstrated in Varity, where the Court looked to the common law to determine whether fiduciary functions were being performed. These common law antecedents Varity, 516 U.S. at 502-03. should be given great weight, the Court or its purposes said, unless "the language of the statute, its structure, require departing from common-law trust requirements." Id. at 497. DOL again goes astray when it contends that a person can be deemed a fiduciary if making recommendations-and vestment advice"-is compensation. AM~ HICA\J PVERSIGHT hence, giving "in- one part of what the person does while obtaining But giving investment advice makes a person a fiduciary 36 DOL-17-0281-H-000095 Case: 17-10238 Document: 00513977124 only ifhe "renders investment rect or indirect." Page: 58 Date Filed: 05/02/2017 advice for a fee or other compensation, di- 26 U.S.C. ? 4975(e)(3)(B) (emphases added); 29 U.S.C. ? 1002(21)(A)(ii) (same). This language limits the category to persons who are paid for the purpose of rendering advice. 12 It does not inquire whether a person who is paid for something else might incidentally make a "suggestion" that is neither essential to receiving the fee nor sufficient to earn it, as in the case with brokers and insurance agents, who are paid a commission if and only if a sale is made. If no sale is made, then no fee is paid, regardless of whether (and how much) advice was conveyed. On the other hand, if a sale is made, the commission is paid even if no advice was provided. Under DOL's approach an appliance salesperson "renders appli- ance advice for a fee" by making a "recommendation" to buy an appliance. That is absurd, and any permissible interpretation ment advice for a fee" must distinguish of "render[] invest- circumstances where the fee is 12 The preposition "for" indicates that the purpose of the compensation is to pay for the advice. See The American Heritage Dictionary of the English Language (1969) (defining "for" as, among other things, "[a]s a result of' or "out of'). AMF HICA\J PVERSIGHT 37 DOL-17-0281-H-000096 Case: 17-10238 Document: 00513977124 Page: 59 Date Filed: 05/02/2017 for advice from circumstances where it is for something else. To the extent, as DOL will argue, that some brokers and agents hold themselves out as advisors to induce a fiduciary-like trust and confidence, the solution is for an appropriately authorized agency to craft a rule addressing that circumstance, not to adopt an interpretation that deems the speech of a salesperson to be that of a fiduciary, and that concededly is so overbroad that (like the rule vacated in UARG) it must be accompanied by a raft of corrections. C. 13 The Labor Department's Construction Is Unreasonable And Arbitrary. Of "Fiduciary" Even if there were ambiguity to the term "fiduciary" (and there is not), the Fiduciary Rule would still fail because the Department's pretation is patently unreasonable: inter- Chevron deference, even when appli- cable, does not license an agency to take a statutory term with a settled meaning and distort it to mean the opposite. But that is what the Fidu- 13 Even if DOL's construction fell within the outer limits of ERISA's definition of "fiduciary" (it does not), the serious First Amendment concerns raised by DOL's interpretation require rejecting it. See ACLI Br. Part I; INS v. St. Cyr, 533 U.S. 289, 299-300 (2001). AM~ HICA\J PVERSIGHT 38 DOL-17-0281-H-000097 Case: 17-10238 Document: 00513977124 ciary Rule does, by equating two things-a ciary relationship-that Page: 60 Date Filed: 05/02/2017 sales relationship and a fidu- ordinarily are defined in contra-distinction to one another. DOL contends that it is reasonable for the Rule to "reject[] the purported dichotomy between a mere 'sales' recommendation, on the one hand, and advice, on the other," ROA.357, because "the dichotomy between advice and sales" is "no[t] existent in reality," ROA.5579. That assertion is emblematic of DOL's breezy disregard for concepts written into the law by Congress (supra 10), and is erroneous in numerous other respects. First, DOL's rejection of the advice-sales dichotomy rings hollow because DOL embraced that dichotomy in another portion of the Rule that excludes certain transactions involving large employer-sponsored plans (plans with at least $50 million in assets). For this aptly named "seller's carve-out" to apply, "the person must not receive a fee or other compensation directly from the plan ... for the provision of investment advice (as opposed to other services)," i.e., sales, ROA.359 (emphasis added). In this manner, DOL recognized a sales exclusion for ERISA retirement plans that fall within DOL's core regulatory authority, while insisting on AM[ HICAN PVERSIGHT 39 DOL-17-0281-H-000098 Case: 17-10238 Page: 61 Document: 00513977124 Date Filed: 05/02/2017 in the agents and broker-dealers making fiduciaries out of the insurance IRA market for which Congress gave DOL no regulatory authority. Rest- ing part of a rule on the rejection of a supposedly illusory distinction, while making that distinction the basis for another section of the rule , is arbitrary textbook agency action. and unreasonable See, e.g., Bus. Roundtable v. SEC, 647 F.3d 1144, 1148-49, 1153-54 (D.C. Cir. 2011). Second, the Code and ERISA recognize the sales-advice dichotomy by generally plans. prohibiting from selling financial fiduciaries products to See 26 U.S.C. ? 4975(c)(l); 29 U.S.C. ? 1106(b) . Yet the Rule makes the sale of a financial product to a plan a marker of fiduciary status. the fact that a person has done That is, the Fiduciary Rule treats something that a fiduciary generally that the person is a fiduciary. may not, as dispositive evidence That is patently unreasonable. Third, touting one's own product-in common parlance, "selling''- has always been a tell-tale indicator that one is not a fiduciary. See, e.g., THI of N.M. at Hobbs Ctr., LLC v. Spradlin, 532 F. App'x 813, 819 (10th Cir. 2013) ("Ordinarily, a buyer-seller relationship is not fiduciary in na- ture .... ") (citation omitted); Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 912-13 (10th Cir. 2005) (noting "the weight of core authority AM~ HICA\J PVERSIGHT 40 DOL-17-0281-H-000099 Case: 17-10238 Document: 00513977124 holding that the relationship fiduciary in nature"). Page: 62 Date Filed: 05/02/2017 between a product buyer and seller is not A broker, insurance agent, or other financial-sales professional may make "individualized solicitations much the same way a car dealer solicits particularized interest in its inventory." Farm King Supply, Inc. Integrated Profit Sharing Plan & Trust v. Edward D. Jones & Co., 884 F.2d 288, 294 (7th Cir. 1989). That does not make them fidu- ciaries, see id., as DOL itself recognized in 1975 when promulgating its five-part test for fiduciary status, see supra note 1. Fourth, if there were any remaining doubt that DOL's interpretation of "fiduciary" is unreasonable, Congress's treatment of commission- based compensation in the Dodd-Frank Act would dispel it. Dodd-Frank gives the SEC authority to promulgate a single fiduciary standard advisers and broker-dealers providing personalized investment for advice about securities to retail customers, but forbids it from adopting a standard under which receipt of "commission[s] or other standard compensation" by broker-dealers is prohibited. Dodd-Frank Act? 913(g), 124 Stat. at 1828. Yet that is exactly what DOL has done: Under the Fiduciary Rule, a transaction in which a broker-dealer receives a commission is a prohibited transaction. AM[ HICAN PVERSIGHT It is implausible that Congress prohibited the 41 DOL-17-0281-H-000100 Case: 17-10238 SEC-an try-from Document: 00513977124 Date Filed: 05/02/2017 Page: 63 agency with broad authority over the financial-services creating a standard for broker-dealers indus- that banned commis- sions, while leaving DOL free to adopt an interpretation with that exact consequence under ERISA and the Code. Finally, DOL's defiance of Congress is particularly acute in the case of fixed-indexed annuities. Dodd-Frank barred the SEC from regulating these products if certain state insurance law requirements were satisfied, Dodd-Frank Act,? 989J, 124 Stat. at 1949-50. But DOL cited its concerns with the products-and Rule. ROA.554-55. with state insurance laws-as justification for its 14 For all of these reasons, the Fiduciary Rule is contrary to law, arbitrary, capricious, and unreasonable, and the Court should vacate it in its entirety. A "reviewing court shall . .. hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, ... not in accordance with law" or "in excess of statutory ... authority[] or limitations." 5 U.S.C. ? 706(2)(A)(emphasis added). But see Cent. & S. W. Servs., Inc. v. EPA, 14 Plaintiffs join in full the arguments concerning the Rule's impact on fixed-indexed annuities advanced by the IALC Plaintiffs and the ACLI Plain tiffs. AM~ HICA\J PVERSIGHT 42 DOL-17-0281-H-000101 Case: 17-10238 Document: 00513977124 Page: 64 Date Filed: 05/02/2017 220 F.3d 683, 692 (5th Cir. 2000) (remanding without vacatur). Moreo- ver, the criteria thought to justify remanding a rule without vacatur in some cases plainly are not satisfied here. Id. II. The Department Unlawfully Misused Its Narrow Exemptive Authority To Regulate Services And Products It Lacks The Power To Regulate. The Department the IRA market-and has arrogated to itself the authority to regulate as a practical consequence, virtually all investment services and products-by using a narrow authority Congress gave it to reduce regulatory restrictions. That contravenes the Code (and ERISA) and is the very essence of arbitrary and capricious decisionmaking. The BIC Exemption is the centerpiece Through this exemption-which of the Fiduciary Rule. allows brokers and insurance agents to make commission-based sales that would otherwise be "prohibited transactions" under the Code-DOL changes for broker-dealers seeks to institute the most sweeping since the Securities Exchange Act of 1934. The Ex'emption imposes a detailed code of conduct, extensive disclosure requirements, compelled contracts, limitations on arbitration rights, and potential class action liability. See supra 16-18. The scale of what DOL has done is reflected in the scope of its criticisms of existing laws and AM[ HICAN PVERSIGHT 43 DOL-17-0281-H-000102 Case: 17-10238 practices-of Page: 65 Document: 00513977124 Date Filed: 05/02/2017 the securities laws' disclosure requirements, ance law, proprietary state insur- financial products, and actively managed mutual finds. Supra 11-12. And yet, DOL is instituting to a segment of the market-IRAs-over changes revolutionary which Congress gave DOL nei- ther regulatory nor enforcement authority. DOL cannot base a regulatory transformation the limited interpretive of this magnitude on and exemptive authority it has with respect to IRAs. An agency may not enact a regulation that "would bring about an enormous and transformative expansion in [its] regulatory without clear congressional authorization." authority UARG, 134 S. Ct. at 2444. "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance," id. (citation omitted), because Congress does not "hide elephants in mouseholes"-that it does not "alter the fundamental is, details of a regulatory scheme in vague terms or ancillary provisions," Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001), nor "delegate a decision of ... economic and political significance to an agency in so cryptic a fashion," FDA v. Brown & William- son Tobacco Corp., 529 U.S. 120, 160 (2000). For that reason, when "an agency claims to discover in a long-extant statute an unheralded AM~ HICA\J PVERSIGHT power 44 DOL-17-0281-H-000103 Case: 17-10238 Document: 00513977124 Page: 66 Date Filed: 05/02/2017 to regulate a significant portion of the American economy, [the courts] typically greet its announcement with a measure of skepticism." UARG, 1348. Ct. at 2444 (internal citation and quotation marks omitted). Thus, in MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 234 (1994), the Court rejected an agency's claim that its authority "modify" the requirements removing one requirement to in a statute allowed it to adopt a rule entirely "It is highly for a segment of the industry. unlikely that Congress would leave" such a momentous decision to the agency's discretion "through such a subtle device as permission to 'modify'" the statute's requirements. Id. at 231. The agency could not use this modest authority to "effectively ... introduc[e] ... a whole new regime of regulation." Id. at 234. Similarly, in UAR,G the Court rejected as unreasonable terpretation EPA's in- of a provision in the Clean Air Act that would have caused "millions of small sources" not previously regulated under the Act to "be swept into" regulations applying only to "major sources." 134 S. Ct. at 2436, 2446. An agency may not "lay[] claim to extravagant statutory power over the national economy," the Court explained, if "the statute does not compel [the agency's] interpretation." AM[ HICAN PVERSIGHT Id. at 2444. 45 DOL-17-0281-H-000104 Case: 17-10238 Document: 00513977124 Page: 67 Date Filed: 05/02/2017 These principles are fatal to the Fiduciary Rule. The sweeping nature of the regulatory transformation DOL has effectuated is undisputed. See 82 Fed. Reg. 16,902, 16,908 (Apr. 7, 2017) (DOL citing "major and costly market disruptions" as a reason to delay implementation of the Rule). The Rule fundamentally restructures of parts the markets for IRAs, fixed-indexed and other annuities, and other retirement products, as well as the practices of brokers, insurance agents, and the independent keting organizations that support independent mar- agents. Indeed, the Rule may require many IMOs to exit the market entirely because they are neither eligible for the BIC exemption themselves nor able to rely on insurance companies to supervise their independent would comply with the Exemption. ing approaching agents in a manner that See supra 19-20. But DOL has noth- the "clear congressional authorization," UARG, 134 S. Ct. at 2444, necessary to institute such changes. Although Congress gave DOL substantial ployer-sponsored authority over the em- benefit plans governed by ERISA, it gave the agency only two slivers of authority relevant to IRAs: Authority to interpret "accounting, technical and trade terms" in the Code and to grant exemptions from the Code's prohibited-transaction AM[ HICAN PVERSIGHT provisions. See 29 U.S.C. ? 1135; 46 DOL-17-0281-H-000105 Case: 17-10238 Document: 00513977124 Page: 68 Date Filed: 05/02/2017 Reorganization Plan No. 4, at? 102; 26 U.S.C. ? 4975(c)(2). The Department may not regulate, inspect, investigate, or bring enforcement actions against IRA fiduciaries. DOL rests its new, detailed requirements to grant exemptions-that for IRAs on its authority is, regulatory relief-when to do so is "admin- istratively feasible, in the interest of the plan and of its participants beneficiaries, and protective of the rights of participants and and beneficiar- ies of the plan." 26 U.S.C. ? 4975(c)(2). But it is "fundamental that an agency may not bootstrap itself into an area in which it has no jurisdiction," Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990) (quotation marks omitted), nor may an agency manipulate "safe harbor criterion" to conduct "backdoor regulation," Hearth, Patio & Barbecue Ass'n v. U.S. Dep't of Energy, 706 F.3d 499, 507-08 (D.C. Cir. 2013). Never before has DOL suggested that the "mousehole" of its exemptive authority, Whit- man, 531 U.S. at 468, could be used to implement changes of the elephantine proportions involved here-let alone for IRAs, over which it lacks regulatory power. The fact that DOL lacks authority to embark on a wholesale restructuring AM~ HICA\J PVERSIGHT of the IRA market is reason enough to vacate the Fiduciary 47 DOL-17-0281-H-000106 Case: 17-10238 Document: 00513977124 Page: 69 Date Filed: 05/02/2017 Rule and its exemptions in their entirety, but DO L's use of its exemptive authority is plainly flawed in at least two other respects. First, the new regulatory regime DOL has erected stands in direct conflict with what Congress enacted in the Code and ERISA. In simultaneously enacting ERISA and the IRA provisions of the Code, Congress prescribed a detailed code of conduct and private rights of action with respect to ERISA fiduciaries-and wholly omitted similar provisions for IRAs. But DOL, through the use of the BIC Exemption, is imposing on insurance agents and broker-dealers who service IRAs the very ERISA- style obligations that Congress omitted. DOL acknowledged as much in the rulemaking, explaining that the BIC Exemption "is intended to effec:. tively incorporate" into the Code's treatment of IRAs "the objective stand- ards of care and undivided loyalty that have been applied under ERISA." ROA.405. But the fact that Congress "include[d] particular language in" ERISA-for example, fiduciary duties and a private right of action-"but omit[ted] it in" parallel provisions of the Code, indicates "that Congress intended a difference in meaning." Loughrin v. United States, 134 S. Ct. AM~ HICA\J PVERSIGHT 48 DOL-17-0281-H-000107 Case: 17-10238 Document: 00513977124 Page: 70 Date Filed: 05/02/2017 2384, 2390 (2014). It is not DOL's role to construct a regulatory framework that Congress purposely omitted. 15 Second, DOL's exemptive rule here-unlike tive rule-attaches any prior DOL exemp- not merely new conditions to the availability of ex- emptive relief, but new consequences if those conditions are not met. Ordinarily, failure to satisfy a condition attached to an exemption means the exemption is lost and the statutory duties and penalties snap back into place. But under the BIC Exemption, if a firm seeks exemptive relief but falls short of the requirements of its "Best Interest Contract," it not only loses the exemption and becomes subject to the statutory penalty (an excise tax imposed by the IRS), it also incurs the new, non-statutory consequences that are written into the "Best Interest Contract," including potential class action liability without the protection of a liquidated damages clause or the possibility of arbitration. A firm that declined to use the "Best Interest Contract," and simply violated Congress's prohibited transaction requirements, would face fewer consequences than a firm 15 In some respects, the restrictions DOL places on IRAs exceed what Congress imposed on employer plans in ERISA. This includes the restriction on arbitration agreements. Infra 59-63. AM~RICA\J PVERSIGHT 49 DOL-17-0281-H-000108 Case: 17-10238 Document: 00513977124 Page: 71 Date Filed: 05/02/2017 that "violated" DOL's supposedly exemptive rule. That is arbitrary, ca- pricious, and a gross distortion of agency authority. Each of the district court's reasons for allowing DOL to remake the market for IRAs was demonstrably erroneous. For starters, the district court relied on what it saw as the agency's "explicit and broad authority to regulate IRAs." ROA.9904. But DOL has no regulatory authority over IRAs; its regulatory authority extends only to employer-sponsored ERISA plans. In fact, in the Dodd-Frank Act, Congress gave the SECthe nation's principal securities regulator-the authority uniform fiduciary standard for broker-dealers. Dodd-Frank? to develop a 913(g), 124 Stat. at 1828. The district court also gave DOL Chevron deference, but that is precisely the error the Supreme Court sought to correct in UARG and MCI Telecommunications, where it explained that an agency may not "bring about an enormous and transformative expansion in [its] regulatory au- thority without clear congressional authorization." UARG, 134 S. Ct. at 2444 (emphasis added); see also supra 25; King, 135 S. Ct. at 2489; Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir. 2014). Here, the burden was on AM[ HICAN PVERSIGHT 50 DOL-17-0281-H-000109 Case: 17-10238 Document: 00513977124 Page: 72 Date Filed: 05/02/2017 DOL to show that the statute "compel[s]" the approach it took." UARG, 134 S.Ct. at 2444. Finally, the district court reasoned that DOL had remained within its statutory "authority to grant conditional exemptive relief' because "the industry has been given viable choices." ROA.9902. In reality, the industry was given no choice at all-acceptance a fait accompli. of the BIC Exemption is See ROA. 7959 (result of Rule is that new "fiduciaries" "will be required to ... comply with [the BIC] Exemption" or otherwise "curtail" services). The district court's conclusion is contradicted by the Department's own repeated statements that it would be "abusive con- duct" to recommend fee-based accounts for certain segments of the market. See supra 14-15. * * * In short, DOL has erred both by using its exemptive authority in a sweeping way that Congress never intended, and by introducing obligations that are plainly inconsistent with lines carefully drawn by Con- gress. For these reasons, the BIC Exemption must be vacated, and vacatur of that exemption, in turn, requires vacatur of the Fiduciary Rule and all related exemptions. AMERICAN PVERSIGHT DOL repeatedly said that the BIC Exemption is 51 DOL-17-0281-H-000110 Case: 17-10238 Page: 73 Document: 00513977124 integral to the Rule because its interpretation Date Filed: 05/02/2017 of fiduciary, and the Rule's cost-benefit analysis, are premised on the availability of that exemption. See, e.g., ROA.322-23, 339, 368. These provisions were adopted together, and together they now must fall. 5 U.S.C. ? 706(2); MD I DC I DE Broad- casters Ass 'n v. FCC, 253 F.3d 732, 734-36 (D.C. Cir. 2001). III. The Department Impermissibly Action In The BIC Exemption. Created A Private Right Of The BIC Exemption is meant to enable IRA holders to bring lawsuits against IRA fiduciaries, even though the Code itself gives IRA holders no private right of action. This violates Alexander v. Sandoval, 532 U.S. 275 (2001). It is also arbitrary and capricious, because DOL may not erect an enforcement regime inconsistent with the one established by Congress. A. DOL Unlawfully "Like substantive Created A Private Right of Action. federal law itself, private rights of action to en- force federal law must be created by Congress." Sandoval, 532 U.S. at 286. An agency "may not create a right that Congress has not." Id. at 291. And of course, "the government may not do indirectly what it cannot do directly." United States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) (quotation omitted). AM~ HICA\J PVERSIGHT Accordingly, just six years ago the Supreme Court 52 DOL-17-0281-H-000111 Case: 17-10238 Document: 00513977124 Page: 74 Date Filed: 05/02/2017 unanimously rejected an attempt to use contract law to create a private right of action under a statute that provided none. Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110, 113-14, 117-19 (2011). The contracts in Astra incorporated federal statutory duties: "Though labeled differently, suits to enforce [the statute] and suits to enforce [the contracts] are in . substance one and the same." Id. at 114. Because the statute contained no private right of action, the Court held that a private citizen could not sue as a third-party beneficiary to enforce the contract, explaining: "The absence of a private right to enforce the [statute] would be rendered meaningless" if private citizens "could overcome that obstacle by suing to enforce the [contractual] obligations instead." Id. at 113, 118. Unlike ERISA, which creates a right of action for beneficiaries of employer-sponsored retirement plans, the Code establishes right of action. Thus, the Department IRA owners lack "an independent conceded in the rulemaking that statutory right to bring suit against fiduciaries for violation of the prohibited transaction Nor can the Department no private rules." ROA.398. "bring suit to enforce the prohibited transaction rules on their behalf'; the only liability Congress provided under the Code AM[ HICAN PVERSIGHT 53 DOL-17-0281-H-000112 Case: 17-10238 Document: 00513977124 was the imposition of excise taxes Page: 75 Date Filed: 05/02/2017 by the Treasury Department. ROA.398. The enforceable contract required for the BIC Exemption is meant to circumvent Congress's decision not to provide a private right of action. DOL's "central goal[]" in adopting the BIC Exemption, it said, was to "create[] a mechanism for [IRA owners] to enforce their rights," including through "class litigation." ROA.398, 410; see also ROA.480. This contrivance, explained a senior Department official, was the result of the De- partment being "creative to try to find a way to make the ... fiduciary responsibility [in ERISA] ... enforceable in the IRA context." ROA.4621; see also ROA.397-98, 403-06. Tellingly, the enforceable contract requirement for the BIC Exemp- tion does not apply to fiduciaries to ERISA plans. See ROA.397. That is because, DOL explained, "the statutory framework ... already provides enforcement rights to [ERISA] plans, their participants and beneficiar- ies, and the Secretary of Labor." ROA.399. Thus, the BIC Exemption was crafted to foster private claims against IRA fiduciaries precisely be- cause such claims were not authorized by Congress. ROA.397, 398, 410, 418. AMERICAN PVERSIGHT 54 DOL-17-0281-H-000113 Case: 17-10238 Document: 00513977124 Page: 76 Date Filed: 05/02/2017 In upholding the private right of action created by the BIC Exemption, the district court reasoned that the right of action is a creature of state law. ROA.9909. That is both incorrect and irrelevant. The premise is incorrect because the BIC is a federally mandated contract, and the fiduciary duties it memorializes are creatures of federal regulation: It is DOL's rules, not state law, that create the compulsion to enter into the BIC, specify the terms the contract must contain, determine the forum in which suit can proceed, and prescribe the remedies and procedures that must be available-including mandatory class ac- tions (which, under ERISA, may be waived). At the very least, any suit to vindicate a right created by the BIC would turn on the construction of the meaning and scope of fiduciary duties created by federal law. See generally Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9 (1983). It is irrelevant in any event whether the cause of action that DOL created is denominated a state- or federal-law claim. Astra establishes that a federally required contract incorporating statutory duties may not be the basis for a private right of action that the statute omitted, because AM[ HICAN PVERSIGHT 55 DOL-17-0281-H-000114 Case: 17-10238 Document: 00513977124 Page: 77 Date Filed: 05/02/2017 private suits to enforce the contract would be "incompatible with the statutory regime." 563 U.S. at 113. It did not matter that the claim sounded in breach of contract under state law; what mattered was that Congress did not contemplate that a private claim would be available to enforce federal law. See, e.g., Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 66-67 (3d Cir. 2008) (allowing a private suit under state common law would "circumvent the absence of a private right of action under" the Federal Insurance Contributions Act); MM&S Fin., Inc. v. NASD, Inc., 364 F.3d 908, 910-11 (8th Cir. 2004). DOL cannot use the BIC to do an "impermissible end run around" the lack of a private right of action under ERISA and the Code. See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). Indeed, nothing would remain of Sandoval if an agency could so easily circumvent its rule by compelling regulated entities to enter contracts that give rise to private suits. 16 See Astra, 563 U.S. at 118. 16 The district court tried to distinguish Astra by observing that investors suing under the BIC "would not bring suit under any statutory provision." ROA.9911. But that makes the problem worse, not better; DOL imposed duties that Congress purposely omitted and created a private enforcement mechanism that Congress never intended. AM[ HICAN PVERSIGHT 56 DOL-17-0281-H-000115 Case: 17-10238 B. Document: 00513977124 Page: 78 Date Filed: 05/02/2017 The BIC Exemption's Enforcement Provisions reasonable, Arbitrary, and Capricious. Even if the Department's Are Un- tactic of creating private claims through contract liability distinguished this case from Sandoval (and it does not), the BIC Exemption would nonetheless be arbitrary and capricious under the AP A and unreasonable under step two of Chevron. Congress created a framework of requirements and penalties for IRAs; the Rule creates new enforcement mechanisms that deviate dramatically and improperly from the Code. Congress authorized the IRS to enforce the prohibited-transaction provisions of the Code by imposing excise taxes and conducting audits. 26 U.S.C. ? 4975(a), (f)(S)(E). The BIC Exemption creates an entirely new mechanism for enforcing those provisions by authorizing private law- suits. DOL's creation of additional remedies under the Code ignores the "elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979). "The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Sand- AMERICAN PVERSIGHT 57 DOL-17-0281-H-000116 Case: 17-10238 Document: 00513977124 Page: 79 Date Filed: 05/02/2017 oval, 532 U.S. at 290. In particular, "where Congress has otherwise enacted a comprehensive legislative scheme[,] including an integrated system of procedures for enforcement, there is a strong presumption that Congress deliberately did not create a private cause of action." Tax Ana- lysts v. IRS, 214 F.3d 179, 186 (D.C: Cir. 2000) (quotation marks omitted). The district court concluded that the BIC Exemption is reasonable because Congress authorized DOL to create conditional exemptions and certain other federal rules require written contracts. contract requirements ROA.9910. These were never tested in litigation, and therefore are not meaningful precedent. More significantly, those requirements are not remotely similar to the BIC: None was designed for the specific purpose of facilitating private suits to enforce federal standards. None pre- scribed the forum in which claims could be brought or mandated class action exposure. And none of those other rules creates liability for obligations that are outside the agency's authority to impose. But all of these features are the very purpose and effect of the BIC Exemption. * * * This Court should vacate the provisions of the BIC Exemption that authorize private lawsuits to enforce the BIC's requirements. AM[ HICAN PVERSIGHT Given the 58 DOL-17-0281-H-000117 Case: 17-10238 Document: 00513977124 Page: 80 Date Filed: 05/02/2017 "critical," "central" role that private enforcement played in DOL's decision to adopt the BIC Exemption, ROA.397, 398, 410, 418, vacatur of the private right of action requires vacatur of the entire rulemaking. 5 U.S.C. ? 706; MD I DC I DE Broadcasters Ass'n, 253 F.3d at 734-36. IV. The Rule's Ban Of Class Waivers In Arbitration Agreements Violates The Federal Arbitration Act And Is Arbitrary And Capricious. The Federal Arbitration Act ("FAA") establishes a "liberal federal policy favoring arbitration agreements," Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and provides that any arbitration agreement in a commercial contract "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract," 9 U.S.C. ? 2. The Supreme Court has held that "the FAA prohibits States from conditioning the enforceability on the availability of class-wide arbi- of certain arbitration agreements tration procedures." AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336 (2011). This Court, in turn, has held that the FAA prohibits a State from conditioning the enforceability of an arbitration absence of a forum selection provision. agreement on the OPE Int'l LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, 44 7 (5th Cir. 2001) (per curiam). And, AM~ HICA\J PVERSIGHT 59 DOL-17-0281-H-000118 Case: 17-10238 Document: 00513977124 Page: 81 Date Filed: 05/02/2017 this Court's precedent confirms that the FAA will not permit a federal agency to do what a State may not. See D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 359-60 (5th Cir. 2013) (NLRB may not prohibit employer from entering employment arbitration agreements that waive class-wide arbi- tration).17 DOL has violated these principles by attempting terms of arbitration to dictate the agreements through the BIC Exemption. actions involving transaction-based For trans- (rather than fee-based) compensa- tion, DOL conditions the exemption's availability not just on account holders' being able to pursue class claims, but on their being able to pursue class claims "in court." ROA.456 . Thus, the BIC Exemption does not merely ban class waivers, it also dictates the forum in which class actions must be filed. This limitation prohibits financial and insurance professionals and institutions from accessing the arbitral forum for the very types of claims that expose them to the greatest risk and costs. 17 The Supreme Court has granted certiorari on this question. See Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 (Jan. 13, 2017) (No. 16-307). AM~ HICA\J PVERSIGHT 60 DOL-17-0281-H-000119 Case: 17-10238 Document: 00513977124 The Department arbitration Date Filed: 05/02/2017 Page: 82 may impose this restriction on the availability of only if the FAA was "overridden by a contrary congressional command." CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012) (citation omitted). But neither ERISA nor the Code contains such a command. See Kramer v. Smith Barney, 80 F.3d 1080, 1084 (5th Cir. 1996) {"Congress did not intend to exempt statutory ERISA claims from the dictates of the [FAA]."). DO L's prohibition on class waivers plainly runs afoul of the FAA. In nonetheless upholding this prohibition, the district court ac- cepted DOL's contention that restricting BIC arbitrations ble because use of the BIC Exemption is voluntary. was permissi- ROA.9951-53; see also ROA.421. But in fact, financial and insurance professionals and institutions have no genuine choice regarding whether to use the exemptions. To have a "voluntary" choice, affected persons must have a genuine opportunity of "not yielding." NFIB v. Sebelius, 132 S. Ct. 2566, 2603 (2012). A choic;e is not genuine if the pressure to accept one option over the other is "so coercive as to pass the point at which 'pressure turns into compulsion."' AM~RICA\J PVERSIGHT South Dakota v. Dole, 483 U.S. 203, 211 (1987) (citation 61 DOL-17-0281-H-000120 Case: 17-10238 omitted). Document: 00513977124 Page: 83 Date Filed: 05/02/2017 Here, DOL has concluded that the transaction-based sation model that necessitates compen- an exemption is the only permissible model for many accounts. See supra 14-15, 51. Thus, for large segments of the industry, the so-called choice is to either "comply with [the BIC] Exemption" or "curtail" their services. ROA. 7959. That is no choice at all. Even if the BIC Exemption could charitably be characterized powerfully deterring-rather than outright banning-class as waivers, it would still offend the FAA. "The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined pro- cedures tailored to the type of dispute." Concepcion, 563 U.S. at 344. By interfering with this discretion, the rules impermissibly fundamental "interfere ? with attributes of arbitration," id. at 344, obstruct the F AA's "de- sign[] to promote arbitration," "structure their arbitration id. at 345, and impair parties' ability to agreements as they see fit," Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989). Put differently, DOL may no more condition the BIC Exemption on surrendering arbitration AM[ HICAN PVERSIGHT the right to arbitration than a State may require forgoing to participate in a state licensing program or receive another 62 DOL-17-0281-H-000121 Case: 17-10238 regulatory benefit. Document: 00513977124 Page: 84 Date Filed: 05/02/2017 Its improper prohibition on class-action waivers re- quires vacatur of the Rule as a whole. 5 U.S.C. ? 706; MD/DC/DE Broadcasters Ass'n, 253 F.3d at 734-36. CONCLUSION For all of these reasons, the Court should reverse the judgment of the district court; hold that the Fiduciary Rule and its related prohibitedtransaction exemptions are arbitrary, capricious, unreasonable, and con- . trary to law; and direct the entry of a judgment in favor of Plaintiffs that vacates the Rule in its entirety and enjoins DOL from enforcing, implementing, or giving effect to the Rule in any manner. AM~ HICA\J PVERSIGHT 63 DOL-17-0281-H-000122 Case: 17-10238 Document: 00513977124 Page: 85 Date Filed: 05/02/2017 May 2, 2017 Respectfully submitted, Russell H. Falconer GIBSON, DUNN & CRUTCHERLLP 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 (214) 698-3100 /s/ Eugene Scalia Eugene Scalia Jason J. Mendro Paul Blankenstein GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Counsel for Plaintiffs Chamber of Commerce of the United States of America, Financial Services Institute, Inc., Financial Services Roundtable, Greater Irving-Las Colinas Chamber of Commerce, Humble Area Chamber of Commerce doing business as Lake Houston Area Chamber of Commerce, Insured Retirement Institute, Lubbock Chamber of Commerce, Securiti _es Industry and Financial Markets Association, and Texas Association of Business (continued on next page) AM~ HICA\J PVERSIGHT 64 DOL-17-0281-H-000123 Case: 17-10238 Document: 00513977124 Page: 86 Date Filed: 05/02/2017 Steven P. Lehotsky Janet Galeria Kevin Richard Foster Felicia Smith U.S. CHAMBER LITIGATION CENTER FINANCIAL SERVICES ROUNDTABLE 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 600 13th Street, N.W. Suite 400 Washington, D.C. 20005 (202) 289-4322 Counsel for Plaintiff Chamber of Commerce of the United States of America Counsel for Plaintiff Financial Services Roundtable David T. Bellaire Robin Traxler Kevin Carroll Ira D. Hammerman FINANCIAL SERVICES INSTITUTE, INC. SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 607 14th Street, N.W. Suite 750 Washington, D.C. 20005 (888) 373-1840 1101 New York Avenue, N.W. 8th Floor Washington, D.C. 20005 (202) 962-7300 Counsel for Plaintiff Financial Services Institute, Inc. Counsel for Plaintiff Securities Industry and Financial Markets Association J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, D. C. 20005 (202) 469-3000 Counsel for Plaintiff Insured Retirement Institute AM[ HICAN PVERSIGHT 65 DOL-17-0281-H-000124 Case: 17-10238 Document: 00513977124 Page: 87 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of May, 2017, an electronic copy of the foregoing brief was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and service will be accomplished on all parties by the appellate CM/ECF system. Isl Eugene Scalia Eugene Scalia GIBSON, DUNN & CRUTCHERLLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business AM~ HICA\J PVERSIGHT 66 DOL-17-0281-H-000125 Case: 17'-10238 Document: 00513977124 Page: 88 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE I hereby certify that on this 2nd day of May, 2017, the foregoing brief was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit through the Court's CM/ECF document filing system, https://ecf.ca5.uscourts.gov. I further certify that: (1) this reply com- plies with the type-volume limit of Fed. R. App. P. 27(d)(2)(C) because, excluding any part of the document exempted by Fed. R. App. P. 27(a)(2)(B), this brief contains 11,969 words; (2) this reply complies with the typeface requirements requirements of Fed. R. App. P. 32(a)(5) and the type-style of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 with New Century Schoolbook Linotype 14-point for text and 14-point for footnotes; (3) any required privacy redactions have been made pursuant to this Court's Rule 25.2.13; (4) the electronic submission is an exact copy of the paper document pursuant to this Court's Rule 25.2.1; and (5) the document has been scanned with the most recent version of Microsoft Forefront Endpoint Protection and is free of viruses. AM[ HICAN PVERSIGHT 67 DOL-17-0281-H-000126 Case: 17-10238 May 2, 2017 Document: 00513977124 Page: 89 Date Filed: 05/02/2017 /s/ Eugene Scalia Eugene Scalia Attorney of Record for Chamber of Commerce of the United States of America; Financial Services Institute, Inc.; Financial Services Roundtable; Greater Irving-Las Colinas Chamber of Commerce; Humble Area Chamber of Commerce, doing business as Lake Houston Chamber of Commerce; Insured Retirement Institute; Lubbock Chamber of Commerce; Securities Industry and Financial Markets Association; and Texas Association of Business AMEHICAN PVERSIGHT 68 DOL-17-0281-H-000127 DOL-17-0281-H-000128 Case: 17-10238 Document: 00513977154 Page: 1 Date Filed: 05/02/2017 No. 17 ..10238 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. BUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appel lees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. BUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appel lees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. BUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. On Appeal from the United States District Court for the Northern District Dallas Division, Nos. 3:16-cv-1476, 3:16-cv-1530, 3:16-cv-1537 of Texas, BRIEF FOR ACLI AND NAIFA APPELLANTS AM[ HI( ,AN PVER~ ~~ COUNSEL LISTED ON INSIDE COVER DOL-17-0281-H-000129 iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii.iii Case: 17-10238 Document: 00513977154 ANDREA J. ROBINSON WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 MICHAEL A. Y ANOF THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor- Plaza of the Americas Dallas, TX 75201 Page: 2 Date Filed: 05/02/2017 DAVID W. OGDEN Counsel of Record KELLY P. DUNBAR ARI HOLTZBLA TT KEVIN M. LAMB WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 Counsel for American Council of Life Insurers, National Association of Insurance and Financial Advisors, National Association of Insurance and Financial Advisors-Texas, National Association of Insurance and Financial AdvisorsAmarillo, National Association of Insurance and Financial Advisors-Dallas, National Association of Insurance and Financial Advisors-Fort Worth, National Association of Insurance and Financial Advisor-Great Southwest, and National Association of Insurance and Financial Advisors-Wichita Falls May 2, 2017 AM[ HICAN pVERSIG T DOL-17-0281-H-000130 Case: 17-10238 Document: 0051397715'4 Page: 3 Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, P laintijfs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appel lees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEAL TH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. BUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. .AM[ HICAN PVERSIGHT - 1- DOL-17-0281-H-000131 Case: 17-10238 Document: 00513977154 Page: 4 Date Filed: 05/02/2017 The undersigned counsel of record certifies the following listed persons and entities as described in the fourth sentence of Local Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Appellants the American Council of Life Insurers, the National Association of Insurance and Financial Advisors, the National Association of Insurance and Financial Advisors-Texas , the National Association of Insurance and Financial Advisors-Amarillo , the National Association of Insurance and Financial AdvisorsDallas, the National Association of Insurance and Financial Advisors-Fort Worth, the National Association of Insurance and Financial Advisors-Great Southwest, and the National Association of Insurance and Financial Advisors-Wichita Falls are all nonprofit associations or organizations that have no parent corporation, and no publicly held corporation owns 10 percent or more of their respective stock. A. Plain tiffs-Appellants 1. 2. 3. 4. 5. 6. 7. 8. 9. American Council of Life Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors-Texas National Association of Insurance and Financial Advisors-Amarillo National Association of Insurance and Financial Advisors-Dallas National Association of Insurance and Financial Advisors-Fort Worth National Association of Insurance and Financial Advisors-Great Southwest National Association of Insurance and Financial Advisors-Wichita Falls Others who are not participants in this matter but may be financially interested in its outcome include financial services providers, insurance companies, and retirement savers AM~ HICA\J PVERSIGHT - 11 - DOL-17-0281-H-000132 Case: 17-10238 B. Document: 00513977154 Page: 5 Date Filed: 05/02/2017 Current and Former Attorneys for Plaintiffs-Appellants David W. Ogden Kelly P. Dunbar Jessica P. Leinwand Ari Holtzblatt Kevin M. Lamb WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Andrea J. Robinson WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Michael A. Y anof THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor - Plaza of the Americas Dallas, TX 75201 C. Co-Plaintiffs-Appellants 10. 11. 12. 13. 14. Chamber of Commerce of the United States of America Financial Services Institute, Inc. Financial Services Roundtable Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business American Equity Investment Life Insurance Company Indexed Annuity Leadership Council Life Insurance Company of the Southwest Lubbock Chamber of Commerce Midland National Life Insurance Company North American Company for Life and Health Insurance 15. 16. 17. 18. 19. ? 20. 21. 22. 23. 24. AM~RICA\J PVERSIGHT - 111 - DOL-17-0281-H-000133 Case: 17-10238 D. Document: 00513977154 Page: 6 Date Filed: 05/02/2017 Attorneys for Co-Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Steven P. Lehotsky Janet Galeria U.S. CHAMBER LITIGATION CENTER 1615 H Street, N.W. Washington, DC 20062 David T. Bellaire Robin Traxler FINANCIAL SERVICES INSTITUTE, INC. 607 14th Street, N.W., Suite 750 Washington, DC 20005 Kevin Carroll Ira D. Hammerman SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 1101 New York Avenue, N.W. Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON, DUNN & CRUTCHER LLP 2100 McKinney A venue, Suite 1100 Dallas, TX 75201 Kevin Richard Foster Felicia Smith FINANCIAL SERVICES ROUNDTABLE 600 13th Street, N.W., Suite 400 Washington, DC 20005 J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, DC 20005 Joseph P. Guerra Peter D. Keisler Eric D. McArthur SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Yvette Ostolaza SIDLEY AUSTIN LLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 E. Defendants-Appellees 25. 26. United States Department ofLabor Edward C. Bugler, Acting Secretary, U.S. Department of Labor AM[ HICAN PVERSIGHT - IV - DOL-17-0281-H-000134 Case: 17-10238 F. Document: 00513977154 Page: 7 Date Filed: 05/02/2017 Attorneys for Defendants-Appellees Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen M. Patricia Smith Elizabeth Hopkins U.S. DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 200 Constitution Avenue, N.W., Suite N-2119 Washington, DC 20210 Michael Shih Michael S. Raab U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, APPELLATE SECTION 950 Pennsylvania Avenue, N.W., Suite 7268 Washington, DC 20 530 Galen N. Thorp Emily Newton Joyce R. Branda Benjamin C. Mizer John R. Parker Judry L. Subar U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue , N.W., Room 6140 Washington, DC 20001 G. Amici in the District Court 27. 28. 29. 30. 31. 32. 3 3. 34. 35. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce AM~ HICA\J PVERSIGHT -vDOL-17-0281-H-000135 Case: 17-10238 H. Document: 00513977154 Page: 8 Date Filed: 05/02/2017 Attorneys for Amici in the District Court Mary Ellen Signorille AARP Foundation Litigation 601 E St., N.W. Washington, DC 20049 Brent M. Rosenthal ROSENTHAL WEINER LLP 12221 Merit Drive, Suite 1640 Dallas, TX 75251 Bernard A. Guerrini 6500 Greenville Avenue, Suite 320 Dallas, TX 75206 Julie Alyssa Murray PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, DC 20009 Martin Woodward STANLEYLAWGROUP 6116 North Central Expressway, Suite 1500 Dallas, TX 75206 Braden W. Sparks. BRADEN W. SPARKS PC 12222 Merit Drive, Suite 800 Dallas, TX 75251 Deepak Gupta Matthew W. H. Wessler GUPTA WESSLER PLLC 1735 20th Street, N.W. Washington, D.C. 2009 Dennis M. Kelleher BETTER MARKETS INC. 1825 K. Street, N.W., Suite 1080 Washington, DC 20006 Theodore Carl Anderson, III Alexandra Treadgold KILGORE & KILGORE PLLC 3109 Carlisle Street, Suite 200 Dallas, TX 75204 Brandan S. Maher STRIS & MAHER LLP 1920 Abrams Parkway, Suite 430 Dallas, TX 75124 Doug D. Geyser STRIS & MAHER LLP 6688 North Central Expressway, Suite 1650 Dallas, TX 75206 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road, Suite 650 Dallas, TX 75254 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER & KIRK PLLC 1523 New Hampshire Ave NW Washington, DC 20036 AM[ HICAN PVERSIGHT Charles Flores BECK REDDEN LLP 1221 McKinney Street, Suite 4500 Houston, TX 77010 -vDOL-17-0281-H-000136 Case: 17-10238 Document: 00513977154 Page: 9 Date Filed: 05/02/2017 /s/ David W. Ogden DAVID W. OGDEN WILMER CUTLER PICKERING HALE ANDDORRLLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 May 2, 2017 AM[ HICAN PVERSIGHT - VI - DOL-17-0281-H-000137 Case: 17-10238 Document: 00513977154 Page: 10 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT Appellants respectfully submit that their statutory and constitutional challenges to the Fiduciary Rule promulgated by the U.S. Department of Labor are sufficiently important to warrant oral argument. AM[ HICAN PVERSIGHT - Vll - DOL-17-0281-H-000138 Case: 17-10238 Document: 00513977154 Page: 11 Date Filed: 05/02/2017 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ........................................................ .i STATEMENT REGARDING ORAL ARGUMENT ............................................ vii TABLE OF AUTHORITIES ..................................................................................... x INTRODUCTION JURISDICTIONAL ..................................................................................................... STATEMENT .......................................................................... 1 3 STATEMENT OF ISSUES ON APPEAL ..................................... ........................... 3 STATEMENT OF THE CASE .................................................................................. 4 The Significant Role Of Annuities In The Retirement Savings Marketplace ............................................................................. 4 Existing Practices Ensure Consumers Have Access To Annuities And Information About Annuities ........................................ 6 Existing Federal And State Regulation Provides Robust Protection To Consumers ...................................................................... 7 D. The Rule ................................................................................................ 9 E. Procedural History ............................................................................... 11 SUMMARY OF THE ARGUMENT ...................................................................... 11 STANDARD OF REVIEW ..................................................................................... 13 ARGUMENT ........................................................................................................... 14 A. B. C. I. As APPLIEDTo THE RULEVIOLATESTHE FIRSTA1V1ENDMENT SPEECHOF APPELLANTS'MEMBERS................................ 14 THE C0J\,11\1ERCIAL A. AM~RICA \J PVERSIGHT The Rule Is Subject To Heightened First Amendment Review ................................................................................................. - Vlll - 14 DOL-17-0281-H-000139 Case: 17-10238 Document: 00513977154 Page: 12 Date Filed: 05/02/2017 1. The Rule imposes heavy burdens on non-fiduciary sales speech in a content-discriminatory manner ..................... 15 2. The district court erred by effectively applying no First Amendment review to the Rule ........................................ 20 a. The professional speech doctrine does not shield the Rule from First Amendment review .............................................................................. II. 20 b. The Rule is not targeted at misleading speech ............................................................................. 25 c. The First Amendment claim was not waived ..................28 B. The Rule Fails First Amendment Scrutiny .......................................... 32 C. ERISA Should Be Construed To Avoid These Serious Constitutional Problems ...................................................................... 36 THERULE'S TREATMENT OF VARIABLE AND FIXED-INDEXED ANNUITIES VIOLATES THEAPA ..................................................................... 38 A. DOL Unreasonably Failed To Account For The Rule's Effects On Consumer Access To Variable And FixedIndexed Annuities ................................................................................ 38 B. DOL Unreasonably Disregarded Existing Annuity Regulation ........................................................................................... 44 CONCLUSION ........................................................................................................ 50 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE AM[ HICAN PVERSIGHT - IX- DOL-17-0281-H-000140 Case: 17-10238 Document: 00513977154 Page: 13 Date Filed: 05/02/2017 TABLE OF AUTHORITIES CASES Page(s) 44 Liquormart, Inc . v. Rhode Island, 517 U.S. 484 (1996) ............................... 18, 19 Air Transportation Ass 'n of America v. FAA, 169 F.3d 1 (D.C. Cir. 1999) ............................................................................................. 49 Allstate Insurance . Co. v. Abbott, 495 F.3d 151 (5th Cir. 2007) ............................. 27 American Equity Investment Life Insurance Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2010) ................................................................ .44, 49 Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) ............................ 32 Armstrongv. Exceptional Child Center, Inc ., 135 S. Ct. 1378 (2015) .................... 29 Bailey v. Morales, 190 F.3d 320 (5th Cir. 1999) ..................................................... 13 BCCAAppeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003) ................................... 31 Bigelow v. Virginia, 421 U.S. 809 (1975) ............................................................... 23 Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014) ................................ 34 Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) .............................. .48 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) ............................................... 18, 27, 32, 33 Citizen Action Fund v. City of Morgan City; 154 F .3d 211 (5th Cir. 1998) ............................................................................................... 28 Citizens United v. FEC, 558 U.S. 310 (2010) .......................................................... 28 Clark v. Martinez, 543 U.S. 371 (2005) .................................................................. 37 Competitive Enterprise Institute v. National Highway Traffic Safety Admination, 956 F.2d 321 (D.C. Cir. 1992) .................. .......................... 38, 43 Darden v. Peters, 488 F.3d 277 (4th Cir. 2007) ...................................................... 13 AM~ HICA\J PVERSIGHT -xDOL-17-0281-H-000141 Case: 17-10238 Document: 00513977154 Page: 14 Date Filed: 05/02/2017 Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592 (5th Cir. 2007) ..................................................... .......................................... 31 Delta Foundation, Inc. v. United States, 303 F.3d 551 (5th Cir. 2002) .................. 30 Desoto General Hospital v. Heckler, 766 F.2d 182 (5th Cir. 1985) ...................... .48 Edenfieldv. Fane, 507 U.S. 761 (1993) .......................................... 18, 21, 24, 27, 35 Expression Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) ........................ 21 Gibson v. Texas Department of Insurance-Divison of Workers' Compensation, 700 F.3d 227 (5th Cir. 2012) .................................... 21, 27, 28 GulfRestorationNetworkv. Salazar, 683 F.3d 158 (5th Cir. 2012) ....................... 31 Hersh v. United States ex rel. Mukasey, 553 F.3d 743 (5th Cir. 2008) ................... 36 In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982) ........................................ 36 In re R. M J, 455 U.S. 191 (1982) .................................................................... 27, 28 INSv. St. Cyr, 533 U.S. 289 (2001) ................................................................... 36, 37 King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) ............................... 25 Lebrun v. National Railroad Transportation Corp., 513 U.S. 374 (1995) ............................................................................................................. 36 Linmark Associates, Inc. v. Willingboro Township, 431 U.S. 85 (1977) ................ 18 Lowe v. SEC, 472 U.S. 181 (1985) .................................................................... 21, 23 Mathews v. Eldridge, 424 U.S. 319 (19776) ........................................................... 31 Michigan v. EPA, 135 S. Ct. 2699 (2015) ......................................................... 38, 44 Minnesota Citizens Concerned for Life v. FEC,Ll 13 F.3d 129 (8th Cir. 1997) .............................................................................................................. 29 Motor Vehicle Manufacturers Ass 'n of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) ................ 38, 44 National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006) ............................................................................................. 50 AMEHICAN PVERSIGHT - Xl - DOL-17-0281-H-000142 Case: 17-10238 Document: 00513977154 Page: 15 Date Filed: 05/02/2017 National Institute of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) ............................................................................................... 25 Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ................................................... 32 Owner-Operator Independent Drivers Ass 'n v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007) ................................. .49 Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004) ................................................... 19 Porter v. Califano, 592 F.2d 770 (5th Cir. 1979) .................................................... 13 Reedv. Town of Gilbert, 135 S. Ct. 2218 (2015) ........................................ 15, 17, 18 Resolute Forest Products, Inc. v. Department of Agriculture, 187 F. Supp. 3d 100 (D.D.C. 2016) .............................................................. .48 Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016) ........................................ 22, 24 Sims v. Apfel, 530 U.S. 103 (2000) .......................................................................... 30 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ................................................................................ passim Texas v. EPA, 690 F.3d 670 (5th Cir. 2012) ...................................................... 13, 44 United States v. District of Columbia, 897 F.2d 1152 (D.C. Cir. 1990) ................ 29 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .......................................................... l 8, 34 Weaver v. United States Information Agency, 87 F.3d 1429 (D.C. Cir. 1996) ..................................................... ........................................ 29 Wold Communications, Inc. v. FCC, 735 F.2d 1465 (D.C. Cir. 1984) .................. .41 Wollschlaeger v. Governor of Florida, 848 F.3d 1293 (11th Cir. 2017) ................ 25 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) ................................................................................. 18, 34 AM[ HICAN PVERSIGHT - Xll - DOL-17-0281-H-000143 Case: 17-10238 Document: 00513977154 Page: 16 . Date Filed: 05/02/2017 STATUTES AND RULES 5 U.S.C. ? 706 .............................................................................................. 13, 28, 29 15 U.S.C. ? 77f ???????????????????????oo.o?????????????????????????????????????????????????????????????????????????????????? ..... 8 ? 77g ????????????????????????????????????????????????????????????????????????????????????????????????????????????????8 ? 77h ................................................................................................................ 8 ? 77j ................................................................................... .............................. 8 ? 78j ????????????????????????????????????????????????? ???????????????????????????????????? ?......................... 26 26 U.S.C. ? 4975 ...................................................................................................... 37 28 U.S.C. ? 1291 ??????????????????????????????????????????????? ???????????????????????????????????????????????????????????????3 ? 1331 ??????????????????????????????????????????????????????????????????????????????????? ???????????????????????????3 ? 2201 ?????????????????????????????????????????????? ??????????????????????????????????????????????????????????????14 ?2202 .............................................................................. .............................. 14 29 U.S.C. ? 1002 ...................................................................................................... 37 42 U.S.C. ? 7607 ...................................................................................................... 31 Fed. R. App. P. 4 ........................................ ................................................................ 3 REGULATIONS AND ADMINISTRATIVE MATERIALS 17 C.F .R. ? 240.1 0b-5 ..................................................................... .........................26 29 C.F.R. ? 2510.3-21 ................................................................................... 15, 16, 20 Definition of the Term "Fiduciary," 40 Fed. Reg. 50,842 (Oct. 31, 1975) ............................................................. 37 Financial Industry Regulatory Authority Regulatory Notice 11-02 (eff. Oct. 7, 2011) .............................................. .4 5 Regulatory Notice 07-53 (eff. May 5, 2008) .............................................. .46 Rule 2111 ......................................... .................................................... 8, 45, 46 Rule 2210-2 ..................................... ................................................................ 8 Rule 2330 ............................................................................................. 8, 46, 47 AM~RICA\J PVERSIGHT - Xlll - DOL-17-0281-H-000144 Case: 17-10238 Document: 00513977154 Page: 17 Date Filed: 05/02/2017 National Association of Insurance Commissioners, Model Suitability Rule ........................................................................... 8, 9, 47 Model Unfair Trade Practices Act. ................................................................ 26 OTHER AUTHORITIES Brien, Michael J. & Constantijn W.A. Panis, Annuities in the Context of Defined Contribution Plans (Nov. 2011 ), available at https://www.dol.gov/sites/default/files/ebsa/researchers/analysis /retirement/Deloitte2011.pdf ..................................................................... 6, 3 9 Heinrich, Pam, State Roundup: State of the States-2015 Year in Review, NAPA Annuity Outlook Magazine (Feb. 10, 2016), http://annuityoutlookmagazine.com/2016/02/state-roundup/ ....................... .46 Iacurci, Greg, Department of Labor's fiduciary rule blamed for insurers' massive hit on variable annuity sales, InvestmentNews (Mar. 28, 2017), http:/ /www.investmentnews.com/article/20170328/FREE/1703 29922/department-of-labors-fiduciary-rule-blamed-for-insurersmassive-hit ..................................................................................................... Smolla, Rodney A., Smolla & Nimmer on Freedom of Speech ? 20:37.40 (2017) ..................................................................................... 41 24, 25 Schoeff, Mark, Perez calls out variable annuities in argument for DOLfiduciary rule, InvestmentNews (June 24, 2015), http:/ /www.investmentnews.com/article/20150624/FREE/1506 299 5 8/perez-calls-out-variable-annuities-in-argumentfor-dolfiduciary-rule .......................... ....................................................................... AM[ HICAN PVERSIGHT 42 - XIV - DOL-17-0281-H-000145 Case: 17-10238 Document: 00513977154 Page: 18 Date Filed: 05/02/2017 INTRODUCTION Appellants are national and Texas-based associations that represent member life insurance companies, insurance agents, and brokers who issue, market, and sell insurance products, including annuities, to American retirement savers. 1 This suit challenges an attempt by the Department of Labor ("DOL") to upend and transform the way that annuities have been explained, marketed, and sold to consumers for decades. Through a complex of provisions, collectively called the "Fiduciary Rule" or "Rule," DOL has attempted a radical intervention in the retirement savings marketplace that imposes unprecedented burdens on traditional sales speech involving retirement products. Not only does the Rule constrict the flow of truthful information, but it also biases consumer choices by burdening speech about some products more than others-in both ?cases, harming the very retirement savers DOL purports to be protecting. The Rule is deeply flawed and unlawful for many reasons. Appellants focus here on legal defects particularly relevant to annuities. First of all, the Rule violates the First Amendment rights of Appellants' members to communicate truthful commercial information to consumers about the annuities those members 1 Appellants here-collectively, "Appellants" or "the ACLI and NAIF A Appellants"-comprise the American Council of Life Insurers ("ACLI"), the National Association of Insurance and Financial Advisors ("NAIFA"), NAIFATexas, NAIFA-Amarillo, NAIFA-Dallas, NAIFA-Fort Worth, NAIFA-Great Southwest, and NAIF A-Wichita Falls. AM~RICA\J PVERSIGHT 1 DOL-17-0281-H-000146 Case: 17-10238 Document: 00513977154 Page: 19 Date Filed: 05/02/2017 issue, market, and sell. The Rule imposes new and significant "fiduciary" burdens on garden-variety sales conversations and in doing so draws speaker-, listener-, and content-based distinctions-? all of which are designed to manipulate the sales information and recommendations consumers receive to influence consumers to select products favored by DOL. The Rule is thus subject to, and fails, the heightened judicial scrutiny required by Supreme Court precedent as well as the intermediate scrutiny applied to commercial speech regulation. The Rule's discriminatory treatment of annuities also fails the most basic requirements of reasoned decisionmaking under the Administrative Procedure Act ("AP A"). Annuities play a critical role in today's retirement marketplace-a role that the Rule will substantially impede by placing heavier burdens on recommendations and sales of some types of annuities compared to others. Remarkably, despite the obvious impact that the Rule will have on retirement savers' choice of annuities, DOL wholly failed to consider the significant consumer benefits of the products the Rule threatens to drive from the marketplace, and therefore failed to assess the injury to consumers that the Rule will inflict. Furthermore, in imposing for the first time sweeping fiduciary obligations on insurance agents and brokers selling annuities, DOL failed to adequately consider the comprehensive and recently strengthened regulatory regimes that already protect consumers from the harms posited by the Rule. DOL's assessment of those AM[ HICAN PVERSIGHT 2 DOL-17-0281-H-000147 Case: 17-10238 Document: 00513977154 Page: 20 Date Filed: 05/02/2017 existing regimes was superficial and illogical and thus contrary to the requirements of reasoned decisionmaking. For those reasons and others, this Court should grant Appellants equitable relief from enforcement of the Rule, vacate the Rule under the AP A, or both. JURISDICTIONAL STATEMENT The district court had jurisdiction pursuant to 28 U.S.C. ? 1331. This Court has jurisdiction pursuant to 28 U.S.C. ? 1291. The district court issued its Memorandum Opinion and Order on February 8, 2017, ROA.9873-9953, entering final judgment on February 9, 2017, ROA.9954. Appellants filed their Notice of Appeal on February 28, 2017. ROA.9959-9961. This appeal is timely under Federal Rule of Appellate Procedure 4(a)(l). STATEMENT OF ISSUES ON APPEAL In addition to the issues raised by the Chamber Appellants and IALC Appellants-which the ACLI and NAIF A Appellants join in and incorporate by , reference here-the following issues are presented onappeal: (1) Whether the Rule violates the First Amendment as applied to Appellants' members by imposing onerous fiduciary obligations on the commercial speech of insurance agents and others; AM~ HICA\J PVERSIGHT 3 DOL-17-0281-H-000148 Case: 17-10238 (2) Document: 00513977154 Page: 21 Date Filed: 05/02/2017 Whether the Rule is arbitrary and capricious under the AP A because DOL admittedly failed to consider the harm to consumers from decreased access to variable and fixed-indexed annuities under the Rule; and (3) Whether the Rule is arbitrary and capricious under the APA because DOL unreasonably failed to consider whether existing, and recently strengthened, regulations already provide sufficient protection to retirement savers. STATEMENT OF THE CASE This appeal challenges a collection of related final rules promulgated by DOL, referred to collectively as the "Fiduciary Rule" or "Rule." ROA.322-1019. The statement of this brief focuses on the Rule's unlawful impact on those who buy, sell, and issue annuity products. A. The Significant Role Of Annuities In The Retirement Savings Marketplace Retirees today must balance numerous retirement objectives. They must save enough to provide for a potentially long life after retirement. They must protect their assets from the effects of inflation. And they must protect those assets against weak markets and declining asset values. The annuity products that Appellants' members issue, market, and sell provide unique opportunities for retirement savers and retirees to balance those sometimes competing retirement risks and objectives. An annuity is a contract between an insurance company and an individual. Subject to the terms of the AM[ HICAN PVERSIGHT 4 DOL-17-0281-H-000149 Case: 17-10238 Document: 00513977154 Page: 22 Date Filed: 05/02/2017 contract, the individual invests a lump sum or series of payments, in exchange for periodic payments over either a set period of time or the individual's lifetime. An annuity can protect a retirement saver who lives a long life by providing a stream of guaranteed income payments for life. Retirement savers can further choose annuities with features that guard against inflation, investment-asset decline, or both. Various annuity products allow retirement savers to prioritize these objectives differently. For example, a "fixed-rate annuity" prioritizes protection against investment risk by setting a declared interest rate that does not vary whether the market rises or falls. A "fixed-indexed annuity," by contrast, balances investment and inflation risk by tying rates, in part, to a market index, such as the S&P 500, while guaranteeing that rates will never fall below a specified minimum. And a "variable annuity" unlocks the full potential of investment market growth and thus maximizes protection against inflation risk by basing payments on a portfolio of assets selected by the retirement saver. Which type of annuity best meets the needs of a particular consumer depends upon, among other things, the consumer's financial situation, objectives, risk tolerance, and other investments. Because they address the needs of retirees, annuities are enormously popular. Consumer satisfaction with annuities reflects the critical role they play in today's retirement marketplace in providing guaranteed lifetime income (in an era AM[ HICAN PVERSIGHT 5 DOL-17-0281-H-000150 Case: 17-10238 Document: 00513977154 Page: 23 Date Filed: 05/02/2017 with fewer and fewer pensions). For example, an earlier DOL-commissioned study "found that beneficiaries of lifelong guaranteed income"-through annuity or pension-"were an more satisfied in retirement and suffered from fewer depressions symptoms than those without such income." Brien & Panis, Annuities in the Context of Defined Contribution Plans I (Nov. 2011). The "boost in wellbeing became stronger" the longer a person was retired-a finding "consistent with the notion that ... recipients of lifelong-guaranteed income ... are less concerned with outliving their resources." Id. Numerous other studies in the administrative record-largely DOL-also ignored by demonstrated the singular value of annuities to retirement savers. E.g., ROA.7337, 7339, 7668-7669, 7811-7813. B. Existing Practices Ensure Consumers Have Access To Annuities And Information About Annuities Retirement investors often learn about annuities tailored to their particular objectives and circumstances the same way they learn about other productsthrough conversations with salespeople. For fixed annuities, that salesperson is most often an insurance agent; for variable annuities, it is a registered broker. Agents and brokers may be affiliated with an insurer and devote substantially all their sales efforts to that insurer's proprietary products. Or they may be independent and sell a range of products issued by different insurers. Many independent agents-and AM~ HICA\J PVERSIGHT especially those who sell fixed-indexed annuities-work 6 DOL-17-0281-H-000151 Case: 17-10238 Document: 00513977154 Page: 24 Date Filed: 05/02/2017 with third-party independent marketing organizations, from which they obtain sales support, product recommendations, and training. Insurers pay agents and brokers sales commissions to compensate them for the time and effort needed to sell annuities. ROA.7337. Other compensation models, like annual fees based on a percentage of assets, are a poor fit for sales of annuities because most of agents' and brokers' efforts occur up front. ROA.73837384. An annuity, once purchased, is typically held for a long period without the need for added services from the salesperson. Fee-based accounts also typically require savers to maintain a minimum balance between $100,000 and $250,000an amount that places such accounts out of reach for most Americans. ROA.85208521. And because savers often hold annuities for a long time without needing ongoing assistance, switching to annual fees would increase costs for many with no corresponding benefit. ROA.7358-7359, 7714-7715, 8561-8562. C. Existing Federal And State Regulation Provides Robust Protection To Consumers Comprehensive regulations govern annuities. ROA.7380-7381, 7388-7657. Designed to protect consumers, these regulations have the same stated goals DOL articulated in promulgating the Rule. As insurance products, all annuities are subject to state insurance laws administered by state insurance regulators . In addition, the Securities and Exchange Commission ("SEC") and the Financial Industry Regulatory Authority ("FINRA") regulate the sale of variable annuities. AM[ HICAN PVERSIGHT 7 DOL-17-0281-H-000152 Case: 17-10238 Document: 00513977154 Page: 25 Date Filed: 05/02/2017 This regulatory oversight is designed to ensure that consumers receive truthful information about investment options and suitable retirement recommendations and to punish sellers who fall short. Regulators at both the state and national levels have strengthened these regulations in recent years, as described further below. Anyone who sells variable annuities must register as a broker-dealer with FINRA and comply with, among other rules, both general suitability rules governing the sale of all securities (FINRA Rule 2111) and specific, more stringent requirements targeted at the sale of variable annuities (FINRA Rule 2330). Variable annuities must be registered with the SEC, 15 U.S.C. ?? 77f-h; customers must receive a prospectus filed with the SEC describing the annuity's features, id. ? 77j; and variable annuity advertising must comply with FINRA Rule 2210-2. Comprehensive state regulations also govern annuities. The National Association of Insurance Commissioners ("NAIC") has crafted a Model Suitability Rule for annuities that has been adopted in some form by 48 States and the District of Columbia. The recently strengthened 2010 Model Rule requires agent training in annuity products, supervision and oversight by the insurance company, and enforcement by state regulators. NAIC Model Suitability Rule? 6(A). It also prohibits an insurance agent from recommending an annuity until the agent has thoroughly informed the consumer of the annuity's features and benefits, and has determined that there are reasonable grounds to believe the annuity is suitable for AM[ HICAN PVERSIGHT 8 DOL-17-0281-H-000153 Case: 17-10238 Document: 00513977154 Page: 26 Date Filed: 05/02/2017 the consumer in light of, among other things, what the consumer has disclosed about his or her age, annual income, financial experience and objectives, investment time horizon, existing assets and investments, liquidity needs, liquid net worth, risk tolerance, and tax status. Id. ?? 5(1), 6(A). D. The Rule In April 2016, DOL promulgated the Rule, imposing new and burdensome rules on top of these existing regulatory programs. ROA.322-1019. As explained by the Chamber Appellants, Chamber Br. 11-21, the Rule classifies mere salespersons as "fiduciaries" under ERISA-a sweeping expansion of that category that prohibits traditional sales practices and modes of compensation-and creates a new exemption from the new prohibitions called the Best Interest Contract Exemption ("BICE"). The Rule's unprecedented definition of "fiduciary" encompasses brokers and insurance agents recommending the purchase of annuities for IRAs, thereby prohibiting receipt of commissions on those sales. The BICE, in turn, purports to permit brokers and agents to continue to receive commissions so long as the insurer executes a novel contract imposing a vast array of onerous conditions that are enforceable through class-action litigation. DOL' s new regime breaks sharply with past DOL regulations and federal law in many ways. As relevant here, the Rule would abandon a longstanding distinction between fiduciary investment advisers and non-fiduciary salespersons. AM~ HICA\J PVERSIGHT 9 DOL-17-0281-H-000154 Case: 17-10238 Document: 00513977154 Page: 27 Date Filed: 05/02/2017 For more than 7 5 years, advisers hired to provide impartial investment advice have been required to comply with fiduciary obligations Congress imposed in the Investment Advisers Act of 1940. If an agent or broker was selling advice and not products, the agent or broker was a fiduciary. But agents and brokers who sell products, and whose advice is "solely incidental" to sales activity, have been subject instead to salesperson-specific regulations, including prohibitions against false or misleading speech and, more recently, suitability requirements. For the four decades prior to the rulemaking, DOL's considered statutory interpretation honored this distinction by limiting fiduciary status to relationships with characteristics emblematic of a traditional fiduciary relationship, that is, one with special hallmarks of trust and confidence. The Rule departs radically from that approach and subjects every ordinary sales conversation about covered retirement products to "the highest legal standards of trust and loyalty," ROA.358, even when the sales relationship lacks any "hallmarks of a trust relationship," ROA.366. Moreover, the Rule discriminates among salespeople and sales pitches depending on the type of annuity being marketed or sold. Until now, DOL has treated all annuities the same way, permitting them to be sold under an exemption referred to as "PTE 84-24." The Rule, however, discriminates based on the content of the sales pitch, retaining the "streamlined" PTE 84-24 for products like fixed-rate annuities that DOL wishes to "promote" for consumers, but requiring AM[ HICAN PVERSIGHT 10 DOL-17-0281-H-000155 Case: 17-10238 Document: 00513977154 Page: 28 Date Filed: 05/02/2017 that variable and fixed-indexed annuities be sold under the "more stringent" BICE. ROA.553-554, 556. The Rule thus sharply tilts the playing field to help annuity products favored by DOL and to hurt those annuity products DOL disfavored. E. Procedural History After DOL issued the Rule, Appellants filed suit in the Northern District of Texas, ROA.10333-10437, and their suit was consolidated with suits filed separately by the Chamber Appellants and IALC Appellants in the same court, ROA.10564-10565. The parties cross-moved for summary judgment. Crediting DOL's litigation positions across the board, the district court granted summary judgment to DOL. ROA.9873-9954. This appeal followed. SUMMARY OF THE ARGUMENT I. The Rule must be declared unconstitutional as applied to Appellants' members because it violates the First Amendment rights of insurers, insurance agents, and brokers to engage in truthful sales speech with consumers about annuities. The Rule is a textbook example of content-based regulation of commercial speech. It is triggered by and targeted at sales speech-conversations involving "recommendations" to buy a retirement product. It imposes discriminatory burdens depending on the speaker, listener, and subject matter involved. And it is justified based on content: DOL's desire to prevent consumers from being persuaded by sales speech with which it disagrees. The Rule is AM~RICA\J PVERSIGHT 11 DOL-17-0281-H-000156 Case: 17-10238 Document: 00513977154 Page: 29 Date Filed: 05/02/2017 therefore unconstitutional unless it survives "heightened judicial scrutiny." Sorrell v. IMS Health Inc., 564 U.S. 552, 565-566 (2011). DOL cannot justify the Rule under traditional intermediate-let "heightened"-judicial alone scrutiny. DOL's assumption that commercial information tainted by financial interest is harmful is at war with the First Amendment. Any legitimate concerns identified by DOL could be achieved in numerous, less burdensome ways, including through simple and prominent disclosures or by directly regulating certain products and unreasonable compensation. And-like other paternalistic measures struck down because they burden truthful commercial speech-the Rule will harm, not help, consumers by decreasing access to truthful information about retirement products. At a minimum, the canon of constitutional avoidance requires this Court to construe ERISA to avoid these serious First Amendment concerns. II. Apart from the Rule's constitutional defects, the Rule must be vacated under the AP A because it is arbitrary and capricious. By its own admission, DOL failed to consider an important disadvantage of the Rule: the harm to consumers from decreased access to variable and fixed-indexed annuities. The administrative record-which the district court summarily ignored--overwhelmingly established that the Rule would seriously impede consumer access to such annuities by requiring them to be sold under the onerous BICE rather than the more streamlined AM[ HICAN PVERSIGHT 12 DOL-17-0281-H-000157 Case: 17-10238 Document: 00513977154 Page: 30 Date Filed: 05/02/2017 PTE 84-24. Reasoned decisionmaking required DOL to account for the consumer benefits of those products and to justify the loss of those benefits. In addition, DOL unreasonably disregarded the extensive, and recently strengthened, regulatory framework that already protects consumers with respect to annuities. DOL purported to show regulatory failure based on stale and inapposite data-data that predated significant regulatory reforms in and after 2010 and that measured only mutual fund performance, not annuities. Such analytic incoherence was arbitrary and capricious and requires vacatur of the Rule. 2 STANDARD OF REVIEW An agency rule that is "arbitrary and capricious," "contrary to constitutional right," or "in excess of statutory ... authority" must be vacated. 5 U.S.C. ? 706(2)(A)-(C). Agency action is arbitrary and capricious if the agency failed to "examine[] the relevant data," to consider '" relevant factors,"' or to "articulate[] a 'satisfactory explanation for its action."' Texas v. EPA, 690 F.3d 670, 677 (5th Cir. 2012). "[J]udicial review of a claim that the agency's action violated (a party's] constitutional rights is conducted de novo." Darden v. Peters, 488 F.3d 277, 284 (4th Cir. 2007); see Porter v. Califano, 592 F.2d 770, 780 & n.15 (5th Cir. 1979). This Court's review of the district court's First Amendment analysis is also "de novo." Bailey v. Morales, 190 F.3d 320, 322 (5th Cir. 1999). 2 Appellants incorporate by reference all the arguments made in the briefs filed separately today by the Chamber Appellants and IALC Appellants. AM~RICA\J PVERSIGHT 13 DOL-17-0281-H-000158 Case: 17-10238 Document: 00513977154 Page: 31 Date Filed: 05/02/2017 ARGUMENT I. THE RULE VIOLATES THE FIRST AMENDMENT As APPLIED To THE COMMERCIAL SPEECH OF APPELLANTS' MEMBERS The Rule imposes significant content-based and discriminatory burdens on the commercial speech of Appellants' members-insurers, insurance agents, and brokers who market and sell annuities to American retirement savers-in an unconstitutional effort to influence the purchasing decisions of consumers. Under the Supreme Court's commercial speech jurisprudence-including the Court's seminal decision in Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011)-the Rule is subject to, but fails, the "heightened judicial scrutiny" that the First Amendment demands be applied to such regulations of commercial speech. Appellants are therefore entitled to declaratory and injunctive relief protecting the rights of their members to engage in truthful, non-misleading commercial speech in aid of the marketing and sale of annuities. 28 U.S.C. ?? 2201-2202. A. The Rule Is Subject To Heightened First Amendment Review In Sorrell, the Supreme Court held that "[s]peech in aid of pharmaceutical marketing ... is a form of expression protected by the Free Speech Clause of the First amendment." 564 U.S. at 557. The Court also held that "heightened judicial scrutiny" applies to government regulations that "impose a specific, content-based burden on [such] protected expression" because, the Court explained, laws that impose "content-based burdens must satisfy the same rigorous scrutiny as ... AM[ HICAN PVERSIGHT 14 DOL-17-0281-H-000159 Case: 17-10238 Document: 00513977154 Date Filed: 05/02/2017 Page: 32 content-based bans." Id. at 565-566 (internal quotation marks omitted). Sorrella decision DOL did not discuss in its briefing before the district court and a decision that the district court wrongly brushed aside-governs the analysis here and compels application of "heightened judicial scrutiny" to the Rule. 1. The Rule imposes heavy burdens on non-fiduciary sales speech in a content-discriminatory manner Sorrell demands application of "heightened scrutiny" to the Rule. Like the speech restriction struck down in Sorrell, the Rule "[ o]n its face" burdens truthful commercial speech "based in large part on the content of [that] speech." 564 U.S. at 563-564. Regulation "is content based if [it] applies ... because of the topic discussed" or "de fin[ es] regulated speech by particular subject matter [or] ... by its function or purpose." Reedv. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). The Rule is plainly content-based: It regulates a particular subject matter of speechwhat it calls "recommendation[ s]," broadly defined to encompass any "suggestion" to buy a retirement product. 29 C.F.R. ? 2510.3-21(b)(l). Speech with that content triggers fiduciary status and is subjected to new regulatory burdens. Id. ? 2510.3-21(a). Indeed, the Rule, in its own words, applies to "a communication ... based on its content." Id. ? 2510.3-2l(b)(l). Equally significant, as in Sorrell, the Rule adopts myriad exemptions and distinctions that are "designed ... to target" "disfavored speech by disfavored speakers." 564 U.S. at 564-565. Within the category of sales "recommendations" AM~ HICA\J PVERSIGHT 15 DOL-17-0281-H-000160 Case: 17-10238 Document: 00513977154 Page: 33 Date Filed: 05/02/2017 subject to DOL's expansive definition of "fiduciary," the Rule draws discriminatory lines based on the identity of the speaker, the listener, and the retirement products being discussed. For example, while subjecting human insurance agents and brokers to the BICE, DOL declined to apply the BICE fully to so-called "robo-advi[ sers ]"-those who make recommendations generated by "software-based models or applications." ROA.435. DOL intentionally drew that line to avoid "adversely affect[ing]" the market for robo-advice-making clear its preference for the speech of some speakers over others. ROA.435. Moreover, the Rule's "seller's carve out" draws listener-based distinctions based on DOL's judgment about which listeners are sophisticated enough to distinguish between sales speech and fiduciary advice. The Rule accordingly subjects sales speech directed at "retail investors and small plan providers," ROA.357, to fiduciary obligations, but includes a "seller's carve-out" for speech to specified representatives of large benefit plans, ROA.356. The Rule thus permits agents and brokers to engage in traditional commercial speech with a class of listeners DOL deemed "capable of evaluating investment risks independently," 29 C.F.R. ? 2510.3-21(c)(l)(ii)-ajudgment DOL made based on "proxies" for "financial sophistication" that have little to do with a listener's ability to distinguish a sales presentation from disinterested fiduciary advice, ROA.358. AM[ HICAN PVERSIGHT 16 DOL-17-0281-H-000161 Case: 17-10238 Document: 00513977154 Page: 34 Date Filed: 05/02/2017 Furthermore, the Rule discriminates against particular "message[ s]"-those about variable and fixed-indexed annuities-reflecting DOL's hostility toward suggestions to customers to purchase those products. See, e.g., Sorrell, 564 U.S. at 572 (striking down law intended to foster sale of generics and to disfavor sale of branded pharmaceuticals). For instance, agents and brokers "recommending" the purchase of a fixed-rate annuity need only comply with a "streamlined" regulatory regime (PTE 84-24), while they must satisfy a much more "stringent" regulatory regime (the BICE) when they "recommend[]" variable and fixed-indexed annuities to consumers. ROA.394. The BICE imposes even more stringent "conditions" when a seller discusses an insurer's "proprietary" annuities from a menu limited "in whole or in part" to such products, based on DOL's distrust of proprietary product sales. ROA.429. Sorrell makes clear that the First Amendment does not tolerate these sorts of content-discriminations. Distinctions like those drawn by the Rule-that target communications by specific speakers to specific listeners about specific subject matters-are "paradigmatic" content discrimination subject to strong presumptions of invalidity. Reed, 135 S. Ct. at 2223. Such regulatory favoritism is anathema to the First Amendment. Just as "[t]here are divergent views regarding" the advantages of the generic pharmaceuticals whose sale the State favored over the brand-name ones it frowned upon in Sorrell, 564 U.S. at 578, reasonable differences of opinion surely AM[ HICAN PVERSIGHT 17 DOL-17-0281-H-000162 Case: 17-10238 Document: 00513977154 Page: 35 Date Filed: 05/02/2017 exist about the relative merits of variable, fixed-indexed, and fixed-rate annuities for consumers. "Under the Constitution," however, "resolution of that debate must result from free and uninhibited speech," not from government efforts "to tilt public debate in a preferred direction," id. at 578-579, and listeners must be trusted to make their own choices based on accurate commercial information, as the Supreme Court has long held. 3 Finally, the Rule is a content-based restriction because it cannot be '"justified without reference to the content of the regulated speech."' Sorrell, 5 64 U.S. at 566; Reed, 135 S. Ct. at 2227. As in Sorrell, the Rule seeks to prevent annuity sellers from persuading consumers to make purchasing decisions that "'conflict with [DOL's] goals."' 564 U.S. at 580. DOL's stated concern about the "dangers" of "conflicted advice" is simply a concern that consumers will be persuaded by expression with which DOL disagrees. ROA.326. Dissatisfied with consumers' choices on a level playing field, DOL attempts to change those choices by differential regulation of commercial speech, heaping heavy burdens on speech about products it deems unsatisfactory for consumers. DOL knew that its decision 3 E.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (plurality); Edenfield v. Fane, 507 U.S. 761, 767 (1993); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 644-647 (1985); Central Hudson Gas & Elec. Corp. v. Pubic Serv. Comm 'n of NY., 447 U.S. 557, 561-562 (1980); Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 96-97 (1977); Virginia State Ed. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 769-770 (1976). AM[ HICAN PVERSIGHT 18 DOL-17-0281-H-000163 Case: 17-10238 Document: 00513977154 Page: 36 Date Filed: 05/02/2017 to place variable and fixed-indexed annuities in the BICE as opposed to PTE 84-24 would create "regulatory incentives" for agents and brokers to stop discussing and recommending the disfavored products to consumers. ROA.395, 558-559. That is textbook content discrimination. Indeed, it is not materially different from the example given in Sorrell of the government "seek[ing] to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles." 564 U.S. at 577-578; see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring in part and in the judgment) (speech restrictions are per se illegitimate when "government's asserted interest is to keep legal users of a product ... ignorant in order to manipulate their choices in the marketplace"). That the Rule heaps burdens on speech about some products (variable and fixed-indexed annuities) through the BICE-including liability under the BICE-while massive permitting speech about other products (fixed-rate annuities) under the more "streamlined" PTE 84-24, ROA.556, requires searching scrutiny under the First Amendment. See Pitt News v. Pappert, 379 F.3d 96, 111112 (3d Cir. 2004) (Alita, J.) ("threat to the First Amendment arises from the imposition of financial burdens that may have the effect of influencing or suppressing speech"). AM[ HICAN PVERSIGHT 19 DOL-17-0281-H-000164 Case: 17-10238 2. Document: 00513977154 Page: 37 Date Filed: 05/02/2017 The district court erred by effectively applying no First Amendment review to the Rule For those reasons, the Rule must withstand "heightened judicial scrutiny." Sorrell, 564 U.S. at 565. As explained below in Part I.B, the Rule fails First Amendment review. The district court, however, did not subject the Rule to any First Amendment scrutiny. Its reasons for doing so are unconvincing and conflict with binding Supreme Court and Fifth Circuit precedent. a. The professional speech doctrine does not shield the Rule from First Amendment review On the merits, the district court declined to subject the Rule to any First Amendment scrutiny because, in its view, under the so-called "professional speech doctrine," the Rule "regulate[ s] professional conduct, not commercial speech." ROA.9946. That is decidedly wrong for four reasons. First, the Rule plainly regulates "speech," not "conduct." In fact, the Rule by its terms is targeted at and triggered by commercial speech-a protected category of expression under the First Amendment. Under the Rule, the threshold determination of fiduciary status is pegged to "communication[ s]" in which a speaker has a financial interest and that "would reasonably be viewed as a suggestion" to buy a product. 29 C.F.R. ? 2510.3-2l(b)(l). For example, a statement by an insurance agent that "I think you would like this annuity and you should consider buying it" triggers fiduciary regulation. But AM[ HICAN PVERSIGHT 20 DOL-17-0281-H-000165 Case: 17-10238 Document: 00513977154 Page: 38 Date Filed: 05/02/2017 that type of speech "propos[ing] a commercial transaction" is the very definition of commercial speech. Edenfield v. Fane, 507 U.S. 761, 767 (1993); see Gibson v. Texas Dep't of Ins.-Div. of Workers' Comp., 700 F.3d 227,235 (5th Cir. 2012). By imposing regulatory burdens on the exercise of commercial speech rights, the Rule regulates speech purposefully and directly-not "incidental[ly]." ROA.9945; see Sorrell, 564 U.S. at 567 (restriction had "more than an incidental burden" where, "on its face and in practical operation," it was triggered by "the content of the speech and the identity of the speaker"); cf Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017) ("regulating the communication of prices ... regulates speech," not "conduct"). Second, the professional speech doctrine-which majority of the Supreme Court-is has never commanded a inapplicable because the Rule, in design and effect, sweeps far more broadly than regulating speech within existing fiduciary relationships. The professional speech doctrine traces to Justice White's concurrence in Lowe v. SEC, 472 U.S. 181 (1985), a case involving the SEC's authority to regulate investment advisers under the Investment Advisers Actadvisers who by definition are offering fiduciary advice for a fee. In that context, Justice White opined that the government may regulate the conduct of true fiduciaries subject to less stringent First Amendment review. Id. at 228-229 AM~RICA\J PVERSIGHT 21 DOL-17-0281-H-000166 Case: 17-10238 Document: 00513977154 Page: 39 Date Filed: 05/02/2017 As this Court recently cautioned, however, "application" of the professional speech doctrine-"[ a]ssuming it is valid"-"should be limited." Serafine v. Branaman, 810 F.3d 354, 359 (5th Cir. 2016). The limiting principle this Court identified in Serafine is that the doctrine applies, if at all, only within the narrow context of an existing fiduciary relationship, for example, between a doctor and patient or a lawyer and a client; "[o]utside" such "fiduciary relationship[s] ... speech is granted ordinary First Amendment protection." Id. at 360 (emphasis added). The narrow professional speech doctrine cannot rescue the Rule here because the Rule does not regulate existing fiduciary expression or speech within existing fiduciary relationships. Instead, it imposes fiduciary obligations in the context of sales relationships based solely on ordinary sales speech. Far from denying that fatal flaw, DOL trumpets, in its own words, that the Rule "sweeps broadly," ROA.324, rendering an ordinary seller of retirement products "subject to the highest legal standards of trust and loyalty," ROA.358, when the seller makes everyday sales recommendations. Indeed, DOL has disclaimed the need to show that the recommendations it now deems fiduciary occur within existing "relationships of trust and confidence"; in DOL's view, it may "artificially create[]" such relationships, and thereby restrict sales speech, subject to no First Amendment constraints at all. ROA.4986. AMERICAN PVERSIGHT 22 DOL-17-0281-H-000167 Case: 17-10238 Document: 00513977154 Page: 40 Date Filed: 05/02/2017 On that view, nothing limits government's power to deem speech "professional" and exempt itself from the Constitution, and nothing in the case law remotely countenances such a claim. To the contrary, the government "'cannot foreclose the exercise of constitutional rights by mere labels.'" Bigelow v. Virginia, 421 U.S. 809, 826 (1975). It follows that the Constitution does not permit the government to evade First Amendment protections by labeling nonfiduciary commercial speech "fiduciary." Were it otherwise, the government could regulate all manner of commercial speech with little or no First Amendment review simply by declaring that such speech is now "fiduciary" or "professional." Justice White rejected just that approach in Lowe: Surely it cannot be said ... that if Congress were to declare editorial writers fiduciaries for their readers and establish a licensing scheme under which 'unqualified' writers were forbidden to publish, this Court would be powerless to hold that the legislation violated the First Amendment. 472 U.S. at 231. In holding otherwise, the district court assumed that an exemption in the Rule for "'general marketing materials"' adequately protects sales speech implicated by the Rule. ROA.9946. But to the extent the court viewed commercial speech protections applicable only to mass advertising or generalized marketing, it was certainly wrong. As the Supreme Court has held, "it is clear" that in-person sales conversations-like AM~ HICA\J PVERSIGHT those Appellants' members engage in with 23 DOL-17-0281-H-000168 Case: 17-10238 Document: 00513977154 Page: 41 retirement savers day in and day out across the nation-are Date Filed: 05/02/2017 "commercial expression to which the protections of the First Amendment apply." Edenfield, 507 U.S. at 765. Sorrell-which involved individualized sales presentations promoting pharmaceutical products-stands for the same proposition. 564 U.S. at 557-558 (describing the in-person sales practice of "detailing"). Third, the district court improperly broadened the professional speech doctrine in another way, by applying it to a regulation unconnected to "a valid licensing scheme." Serafine, 810 F.3d at 360. As Serafine and other decisions make clear, the doctrine is anchored in, if anything, the government's "power to establish standards for licensing practitioners and regulating the practice of the professions." Id. at 359 (internal quotation marks omitted); 2 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech? 20:37.40 (2017) (professional speech "may be regulated as an incident to" authority "to license ... professions"). DOL itself has acknowledged that limitation. ROA.5041 (doctrine is "most often" applied to "schemes" "involv[ing] the licensing of professionals"). DOL, however, neither licenses agents or brokers nor regulates those professions-other regulators (the SEC, FINRA, and state insurance departments) do. See ROA.668676. The Rule thus fails the threshold requirement that a professional speech regulation be "incidental[] to a valid licensing scheme." Serafine, 810 F .3d at 360. AM[ HICAN PVERSIGHT 24 DOL-17-0281-H-000169 Document: 00513977154 Case: 17-10238 Page: 42 Date Filed: 05/02/2017 No other court of which Appellants are aware has applied the professional speech doctrine absent a close connection to an otherwise valid licensing scheme. Fourth, even if the professional speech doctrine applied , it demands at least intermediate scrutiny , as multiple courts have recognized. See Wallschlaeger v. Governor of Fla., 848 F.3d 1293, 1310 (11th Cir. 2017) (en bane); National Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 840 (9th Cir. 2016), petition filed, No. 16-1140 (U.S. Mar. 20, 2017); King v. Governor of NJ , 767 F.3d 216, 237 (3d Cir. 2014) ; cf Smolla & Nimmer on Freedom of Speech? 20:37.40 (courts have developed "a form of intermediate scrutiny review" for professional speech regulation). The district court thus erred in subjecting the Rule to no First Amendment review. b. The Rule is not targeted at misleading speech The district court also wrongly credited DOL's alternative argument that any commercial speech "regulate[ d]" by the Rule is "misleading." ROA.9949. The Rule is not aimed at fraudulent or misleading speech, but rather burdens speech whether it is accurate or not if the speaker has "conflicts of interest" and therefore provides what DOL calls "conflicted advice." ROA.326, 963. Existing federal securities laws, SEC regulations, and state insurance laws already prohibit false and misleading statements in this setting, and as DOL effectively recognizes, another prohibition on false or misleading expression in this area would add AM~ HICA\J PVERSIGHT 25 DOL-17-0281-H-000170 Case: 17-10238 Document: 00513977154 Page: 43 Date Filed: 05/02/2017 nothing. 4 The Rule applies to all "suggestions" to buy annuities or other products if the speaker is selling the products and thus has an interest in the transactionwhether the information provided is true or false. DOL has made clear that neither the imposition of fiduciary status under the Rule nor liability for violations of ERISA "require[ s] proof of fraud or misrepresentation, and full disclosure is no defense." ROA.405. It is simply wrong, then, to say that the Rule burdens only false or misleading expression; it is specifically designed to burden all information, including entirely truthful non-misleading information, in the belief that truthful commercial information provided by interested salespeople (even those who fully disclose their interest) may persuade consumers to make investment choices that DOL deems are not in their "best interest." ROA.326-327, 772-773, 780. The Supreme Court has long made clear that such paternalism cannot support regulation of speech. In Sorrell, for example, Vermont argued that marketing to doctors would "lead to prescription decisions not in the best interest of patients." 564 U.S. at 557. The Court rejected that position: "Those who seek to censor or burden free expression often assert that disfavored speech has adverse 4 E.g., 15 U.S.C. ? 78j (prohibiting manipulative and deceptive practices that violate SEC rules); 17 C.F .R. ? 240.1 0b-5 (prohibiting fraudulent and deceptive practices and untrue statements or omission of material facts in connection with sale of securities); NAIC Model Unfair Trade Practices Act ? 4 (defining prohibited "unfair trade practice" applicable to insurer to include false or misleading statement in "sales presentation[ s]"). AM[ HICAN PVERSIGHT 26 DOL-17-0281-H-000171 Case: 17-10238 effects "-that Document: 00513977154 Page: 44 Date Filed: 05/02/2017 is why "' [t ]he First Amendment directs [courts] to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good."' Id. at 577. Were the district court correct that sales speech may be regulated as "misleading" whenever a seller has a financial stake in a recommended purchase, that would vitiate First Amendment protection for vast swaths of commercial speech. That is obviously not the law. All sellers (and buyers) have financial interests in commercial transactions, but that does not take commercial speech outside the protections of the First Amendment. To the contrary , "a great deal of vital expression" "results from an economic motive." Sorrell, 564 U.S. at 567; see Edenfield, 507 U.S. at 766; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557,562 (1980);Allstatl?Ins . Co. v. Abbott , 495 F.3d 151,167 & n.63 (5th Cir. 2007). The district court's alternative holding is misplaced for another reason: While the government may ban commercial speech that is "misleading," ROA.9950, "potential" to mislead is not enough, In re R. M J, 455 U.S. 191,203 (1982); Gibson, 700 F.3d at 235-236. To justify banning a "form or method" of speech, DOL must demonstrate that the speech is "inherently likely to deceive" or "has in fact been deceptive," and that it cannot be presented in a non-deceptive AM~ HICA\J PVERSIGHT 27 DOL-17-0281-H-000172 Case: 17-10238 Document: 00513977154 Page: 45 Date Filed: 05/02/2017 way, R.MJ, 455 U.S. at 202-203; Gibson, 700 F.3d at 236-none of which DOL established here. 5 c. The First Amendment claim was not waived Although the district court reached the merits of Appellants' First Amendment claim (as discussed), it separately held that the claim was waived. ROA.9940-9944. That conclusion is twice flawed. First, the court ignored the nature of the First Amendment claim. Although Appellants brought AP A claims seeking vacatur of the Rule (a retrospective, across-the-board remedy), the First Amendment claim was brought as a preenforcement challenge to prospective application of the Rule to Appellants' members. ROA.10334, 10429, 10436. That distinction is fundamental, because typical AP A doctrines such as exhaustion and waiver do not limit the broad 5 The district court wrongly characterized this claim as "facial." ROA.99449945. "[T]he distinction between facial and as-applied challenges" goes to the scope of relief. Citizens Unitedv. FEC, 558 U.S. 310,331 (2010). Here, the complaint-which the district court did not discuss-requests "declaratory and related injunctive relief from enforcement of the regulation as applied to the commercial speech regarding annuity products by [Appellants'] members." ROA. I 0436. That is a classic as-applied challenge. See Citizen Action Fund v. City of Morgan City, 154 F.3d 211, 217 (5th Cir. 1998), opinion withdrawn on denial of reh 'g, 172 F.3d 923 (5th Cir. 1999). That Appellants also seek vacatur as an alternative remedy, 5 U.S.C. ? 706(2), does not transform their "as applied" claim into a "facial" one. See ROA.10334-10335, 10341-10342, 10429, 10436. AM[ HICAN PVERSIGHT 28 DOL-17-0281-H-000173 Case: 17-10238 Document: 00513977154 Page: 46 Date Filed: 05/02/2017 availability of "simple pre-enforcement attack[ s] on ... regulation[ s] ... restricting speech." Weaver v. US. Info. Agency, 87 F.3d 1429, 1434 (D.C. Cir. 1996).6 Waiver sensibly has no place in this context. For example, if an agency today announced imminent enforcement against a company for violating a rule promulgated decades ago, no one would suppose that the company could be barred from raising a First Amendment defense-whether it had participated in the rulemaking at all. Similarly, as long as its claim is ripe and other threshold criteria for suit are met, the company could seek declaratory and injunctive relief against prospective enforcement of the regulation. See, e.g., Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir. 1997) (pre-enforcement challenge under First Amendment to prospective application of regulation against plaintiff). A contrary approach would give executive agencies carte blanche to enforce unconstitutional speech restrictions whenever such First Amendment concerns were not raised during a rulemaking. That cannot be the law. 6 Appellants' First Amendment claim does not depend upon the APA's cause of action because federal courts, without a statutory cause of action, may restrain federal officials from "unconstitutional actions." Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). To be sure, Appellants also sued and sought vacatur under the AP A in the alternative, 5 U.S.C. ? 706(2)(B), but "resort to the AP A as a basis for judicial review, and as a component of the ... remedy, [is] unnecessary" because the Constitution provides sufficient basis to enjoin application of the Rule to Appellants' members. United States v. District of Columbia, 897 F.2d 1152, 1158 (D.C. Cir. 1990) (Ginsburg, R.B., J.). AM[ HICAN PVERSIGHT 29 DOL-17-0281-H-000174 Case: 17-10238 Document: 00513977154 Page: 47 Date Filed: 05/02/2017 Second, even if Appellants' First Amendment claim were wrongly conceived of as arising only under the AP A, waiver would still be inappropriate. The Supreme Court in a plurality opinion in Sims v. Apfel, 530 U.S. 103, 107-108 (2000), held that "requirements of administrative issue exhaustion are largely creatures of statute" or agency "regulation." Where issue exhaustion is not required by statute or regulation, the doctrine is prudential-with its application turning on "the degree to which" the "administrative proceeding" resembles "normal adversarial litigation." Id. at 109. This Court has embraced Sims, holding that trial-like features of an HHS appeals board hearing-two adverse parties with counsel and rights to cross-examines witnesses, present argument, submit posthearing briefing, and develop a record for appeal-supported issue exhaustion. Delta Found., Inc. v. United States, 303 F.3d 551, 561-562 (5th Cir. 2002). Under Sims and Delta Foundation, however, there is absolutely no basis for holding that Appellants' First Amendment claim is waived. Neither ERISA nor DOL regulations impose any issue exhaustion requirement, a point DOL has never contested. And because the relevant administrative process-an and-comment rulemaking-bears informal notice- slight, if any, resemblance to "normal adversarial litigation," application of a judicially created waiver bar to Appellants' claim is AM~ HICA\J PVERSIGHT 30 DOL-17-0281-H-000175 Case: 17-10238 Document: 00513977154 Page: 48 Date Filed: 05/02/2017 wholly unjustified. 7 Prudential, judicially created waiver rules are especially inapt here. Waiver must be applied sparingly, if at all, when constitutional rights are at stake. As the Supreme Court has explained, "failure to have raised [a] constitutional claim" before an agency is ordinarily "not" a bar to asserting such a claim in court. Mathews v. Eldridge, 424 U.S. 319, 329 n.10 (1976). Courts have recognized a similar exception for constitutional claims in the related context of administrative exhaustion. E.g., Gulf Restoration Network v. Salazar, 683 F.3d 158, 176 (5th Cir. 2012); Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007). If the failure to participate at all in an administrative process may be excused where constitutional rights are at issue, it follows a fortiori that not having raised a specific constitutional objection where a party did exhaust its remedies should be subject to at least the same exception. 8 7 The single Fifth Circuit case cited by the district court-BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003)-is not to the contrary. The Court there applied waiver in the context of an EPA rulemaking, where, unlike here, exhaustion is statutorily required. See 42 U.S.C. ? 7607( d)(7)(B) ("Only an objection to a rule ... which was raised ... during the period for public comment ... may be raised during judicial review."). 8 Strict application of waiver does not make sense here, moreover, because Appellants did raise the substance of their claim during the rulemaking. ACLI explained, for example, that the Rule inappropriately "interfer[es ]" with "practices that are clearly recognized as the sales and marketing of products and services." ROA.7343. ACLI also argued-echoing its First Amendment claim-that by erasing "the line between traditional marketing and fiduciary investment advice," AM[ HICAN PVERSIGHT 31 DOL-17-0281-H-000176 Case: 17-10238 B. Document: 00513977154 Page: 49 Date Filed: 05/02/2017 The Rule Fails First Amendment Scrutiny Because the? Rule imposes content-discriminatory burdens on truthful, nonmisleading sales speech, it is subject to "heightened judicial scrutiny." Sorrell, 564 U.S. at 557. As in Sorrell, however, because the "outcome is the same" whether intermediate scrutiny or a heightened inquiry is applied, this Court need not resolve the precise standard of review. Id. at 571. Under traditional commercial-speech analysis, "it is [DOL's] burden to justify its content-based law as consistent with the First Amendment," id. at 571-572-which would require showing that the Rule "directly advances" a "substantial" government interest and "is not more extensive than is necessary to serve that interest," Central Hudson, 447 U.S. at 566. It is clear, however, that DOL cannot carry its burden. First, although DOL has a legitimate interest in protecting retirement savers, its assumptions that commercial information tainted by financial interest is harmful and that consumers would be better off not hearing sales speech about certain "the [R]ule will have a chilling effect on all types of marketing activity," ROA.7339, depriving individuals of critical "information," ROA.7344. AP Awaiver principles are based on an "analogy" to appellate rules, 530 U.S. at 108, and those rules do "not demand the incantation of particular words" to preserve a claim-only that "the lower court be fairly put on notice as to the substance of the issue." Nelson v. Adams USA Inc., 529 U.S. 460, 469 (2000). That standard was satisfied here because ACLI alerted DOL to the substance of its objections; in fact, DOL expressly identified and rejected the position of "commenters" that insurers and others have a "right ... to market their products" free from onerous fiduciary regulation. ROA.358; see Appalachian Power Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998). AM[ HICAN PVERSIGHT 32 DOL-17-0281-H-000177 Case: 17-10238 Document: 00513977154 Page: 50 Gate Filed: 05/02/2017 products are at war with the First Amendment. The core of commercial speech protections is that "[a] 'consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue,"' Sorrell, 564 U.S. at 566-an apt proposition where retirement options are at issue. For that reason, "the First Amendment presumes that some accurate information is better than no information at all." Central Hudson, 447 U.S. at 562. The Rule rests on unconstitutional contrary assumptions. DOL's disparagement of consumers' capacity to process truthful information pervades the rulemaking. For example, in rejecting clear and simple disclosures as an alternative, DOL explained "that even if disclosure about conflicts could be made simple and clear, it could be ineffective-or even harmful." ROA.327. The Rule treats sales speech as inherently "danger[ ous ]" because it deems consumers as lacking any "financial expertise," being "bewildered" by retirement options, and "hav[ing] no idea how advisers are compensated for selling them products" and "little understanding of ... conflicts of interest." ROA.325-326. Reliance on such propositions to keep consumers in ignorance of accurate commercial information invalidates the Rule at the outset. See supra note 2 ( collecting authorities). Even ifDOL's assumptions regarding consumers' ability {o process information, to understand disclosures, and to make retirement decisions had been reasonable and supported by record evidence-they AM~RICA\J PVERSIGHT were not-they are foreclosed 33 DOL-17-0281-H-000178 Case: 17-10238 Document: 00513977154 Page: 51 Date Filed: 05/02/2017 , by the First Amendment, which "assume[s] that [truthful] information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976). "The choice 'between the dangers of suppressing information, and the dangers of its misuse if it is freely available' is one that 'the First Amendment makes for us." ' Sorrell, 564 U.S. at 578. DOL was not free to choose differently. Second, the Rule is not narrowly tailored. Any legitimate concerns identified by DOL could have been addressed in ways that do not unduly burden speech. For example, to dispel confusion about when someone is acting as a salesperson rather than a fiduciary adviser, DOL could have mandated clear disclosures. E.g. , Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985). Likewise , with respect to purportedly harmful products or unreasonable compensation , Congress could have regulated these directly, or DOL could have undertaken to educate consumers itself. E.g., Burwell v. Hobby Lobby Stores , Inc., 134 S. Ct. 2751, 2759 (2014). DOL rejected these more tailored approaches, opting broadly to regulate commercial speech, based on a view the Supreme Court has long foreclosed-that consumers cannot be trusted to make sense of truthful commercial speech. AM~ HICA\J PVERSIGHT 34 DOL-17-0281-H-000179 Case: 17-10238 Document: 00513977154 Page: 52 Date Filed: 05/02/2017 Third, the Rule will harm, not help, retirement savers by decreasing access to timely, cost-effective retirement information. To survive intermediate scrutiny, DOL must prove not only that "the harms it recites are real" but that the Rule will "alleviate" them "in a direct and material way." Edenfield, 507 U.S. at 767, 770771. The administrative record showed the opposite. The record confirmed that the non-fiduciary sales conversations are low-cost means by which many consumers obtain useful information about retirement products. See, e.g., ROA.9505, 9519. In particular, evidence showed that consumers need truthful information and expert assistance to help them understand annuities and to make decisions about those products. ROA.7337, 7669-7670, 8635. As the Supreme Court recognized in Edenfield, "direct and spontaneous communication between buyer and seller" has "considerable value" for both: The seller's "strong financial incentive to educate the market and stimulate demand for his product" results in "more personal interchange," which "enables a potential buyer" "to explore in detail the way in which a particular product ... compares to its alternatives in the market." 507 U.S. at 766. The "benefits" of such speech are especially "significant" in the case of products like annuities whose features can be tailored to a buyer's individual needs. Id.; see ROA.7337, 7379. The record was equally clear that, as basic economics would predict, the Rule's imposition of fiduciary obligations-with AM~RICA\J PVERSIGHT 35 the resulting regulatory burdens DOL-17-0281-H-000180 Case: 17-10238 and litigation risks-will Document: 00513977154 Page: 53 Date Filed: 05/02/2017 impede consumers' access to commercial information by raising the cost of providing such information. For example, increased compliance costs associated with fiduciary obligations, as well as the threat of class-action litigation under the BICE, will drive some agents and brokers out of the market, lowering supply and increasing the price of investment information for retirement savers. E.g., ROA.7376, 8519. The Rule thus not only fails to advance DOL's stated interests but it vitiates consumers' First Amendment "right to receive information" that will help them make important life decisions. In re Express- News Corp., 695 F.2d 807, 809 & n.2 (5th Cir. 1982). C. ERISA Should Be Construed To Avoid These Serious Constitutional Problems At a minimum, the serious constitutional concerns raised by the Rule should bear heavily on this Court's statutory analysis. Under the canon of constitutional avoidance, courts are "obligated to construe the statute to avoid" constitutional concerns where an alternative interpretation that would avoid those concerns is "'fairly possible."' INS v. St. Cyr, 533 U.S. 289, 299-300 (2001 ); Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 753-754 (5th Cir. 2008). 9 9 Even if Appellants had waived the constitutional claim-they have notthis Court should nonetheless address First Amendment issues with the Rule under the avoidance canon to resolve the statutory question that is plainly before this Court. See Lebrun v. National Railroad Trans. Corp., 513 U.S. 374, 379 (1995) (parties may raise "new arguments" in support of "consistent" position). AM~RICA\J PVERSIGHT 36 DOL-17-0281-H-000181 Case: 17-10238 Document: 00513977154 Page: 54 Date Filed: 05/02/2017 This is a cut-and-dry constitutional avoidance case. The statutory text defines a "fiduciary" to include those who "renders investment advice for a fee or other compensation, direct or indirect." 29 U.S.C. ? 1002(21)(A)(ii); 26 U.S.C. ? 4975(e)(3)(B). Even if the Rule permissibly interpreted that text (it does not), at the least, the Rule pushes the outer limits of the definition, construing it "broadly" to impose "fiduciary" status based on even traditional sales speech, ROA.324, and thereby directly implicating commercial speech rights. "[A]n alternative interpretation of the statute," however, "is 'fairly possible,"' St. Cyr, 533 U.S. at 300-as explained by the Chamber Appellants and IALC Appellants, see Chamber Br. Part I; IALC Br. Part I. Indeed, DOL's prior construction of the statute governed the retirement market for more than four decades. Under that construction, speech does not give rise to fiduciary status unless, among other things, advice was rendered on a regular basis and was based on a mutual understanding that the advice would be individualized and serve as the primary basis for investment decisions. See Definition of the Term "Fiduciary," 40 Fed. Reg. 50,842, 50,843 (Oct. 31, 1975). Unlike the Rule, which invites "serious constitutional doubts," Clarkv. Martinez, 543 U.S. 371, 381-382 (2005), DOL's prior interpretation avoids these First Amendment concerns. AM[ HICAN PVERSIGHT 37 DOL-17-0281-H-000182 Case: 17-10238 II. Document: 00513977154 Page: 55 Date Filed: 05/02/2017 THE RULE'S TREATMENT OF VARIABLE AND FIXED-INDEXED ANNUITIES VIOLATES THE AP A The Rule is also unlawful because DOL failed adequately to justify, consistent with requirements of reasoned decisionmaking, its regulatory treatment of annuities issued, marketed, and sold by Appellants' members. A. DOL Unreasonably Failed To Account For The Rule's Effects On Consumer Access To Variable And Fixed-Indexed Annuities The Rule should be vacated under the AP A because DOL wholly failed to consider a significant disadvantage of the Rule-namely, the harm to consumers from decreased access to variable and fixed-indexed annuities. "[R]easonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions." Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). An agency thus must ''face the trade-offl: s ]" caused by its decisions and explain why "the trade-off' it selected "was worth it." Competitive Enter . Inst. v. National Highway Traffic Safety Admin., 956 F.2d 321, 323-324 (D.C. Cir. 1992). Otherwise, an agency has not fulfilled its duty to consider "important aspect[ s] of the problem"-among the most fundamental obligations of non-arbitrary decisionmaking. Motor Vehicle Mfrs. Ass'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, DOL conceded that it did not assess as a "separate consideration" the disadvantages of decreased access to variable and A~LH CAf\ PVERSIGHT 38 DOL-17-0281-H-000183 Case: 17-10238 Document: 00513977154 Page: 56 Date Filed: 05/02/2017 fixed-indexed annuities created by the Rule. ROA.5012. That omission renders the Rule arbitrary and capricious. The administrative record demonstrated the enormous benefits that variable and fixed-indexed annuities provide retirement consumers. ROA.7350, 7379, 7756-7757, 8187, 8562-8563; see supra, pp. 4-6. Commenters stressed, for example, that annuities are the sole source of guaranteed lifetime income during retirement, ROA.7337, 7668, an important benefit in a marketplace in which consumers are living longer but without pensions. As noted earlier, a DOLcommissioned study confirmed the importance of ensuring access to annuitiesfinding that that "beneficiaries of lifelong guaranteed income ... were more satisfied in retirement and suffered from fewer depression symptoms than those without." Brien & Panis 1. Other commenters explained why a range of annuity choices was important to consumers to help balance longevity, inflation, and investment risks. See ROA.7813. And others explained how variable annuities, in particular, provide insurance protections, while allowing consumer to benefit from capital market growth. ROA.7350, 7756-7757, 8187, 8562-8563. The record also demonstrated that the Rule would seriously interfere with consumer access to annuities, skewing the marketplace. In particular, insurers have long paid sales commissions to compensate agents and brokers for the significant effort involved in learning about, marketing, and selling annuities. AM[ HICAN PVERSIGHT 39 DOL-17-0281-H-000184 Case: 17-10238 Document: 00513977154 Page: 57 Date Filed: 05/02/2017 ROA.768. But under the Rule, to continue to qualify for commissions, variable and fixed-indexed annuities would need to be sold under the "more stringent" BICE, while fixed-rate annuities can be sold under the "streamlined" PTE 84-24. ROA.553-554, 556; see supra, pp. 10-11. By exposing those who sell variable and fixed-indexed annuities to the burdens and risks of the BICE, the Rule, as DOL acknowledged, creates substantial "incentives" for those sellers to recommend fixed-rate annuities over variable and fixed-indexed annuities, ROA.395, 558-559, and thereby decreases consumer access to those products. The resulting shift in the annuity market will reflect not consumers' best interests, but the differing regulatory burdens DOL imposed on speech about those annuities. The substantive standards imposed by the BICE and PTE 84-24 are identical, but only the BICE embeds "reasonable compensation" and "best interest" standards in contracts that will be enforced through breach-of-contract litigation in state and federal courts, exposing issuers and sellers to "class litigation, and liability and associated reputational risk." ROA.323. Making matters worse, DOL has thus far taken the position that each State (indeed, each jury) will be free to render different interpretations of those open-ended contract terms. A national insurer operating under the BICE thus faces the near-impossible task not only of predicting the hindsight judgment of courts and juries, but also of having to do so without being able to assume that a practice upheld in one AM[ HICAN PVERSIGHT 40 DOL-17-0281-H-000185 Case: 17-10238 Document: 00513977154 Page: 58 Date Filed: 05/02/2017 jurisdiction will pass muster in another. Insurers, agents, and brokers can avoid those substantial risks by decreasing or stopping the issuance, marketing, and promotion of variable and fixed-indexed annuities, in favor fixed-rate annuities. These harmful effects are not merely theoretical. "Subsequent events have borne out" commenters' prediction that the Rule would depress the market for variable annuities. Wold Commc'ns, Inc. v. FCC, 735 F.2d 1465, 1478 n.29 (D.C. Cir. 1984) (Ginsburg, R.B., J.). Remarkably, variable annuity sales dropped by more than $28 billion in 2016 compared to the prior year, and according to industry observers, the Rule "played a huge role" in that "significant drop." Iacurci, Department of Labor's fiduciary rule blamed for insurers' massive hit on variable annuity sales, InvestmentNews (Mar. 28, 2017). Although DOL promulgated a Rule that it knew or should have known would decrease consumer access to variable and fixed-indexed annuities, it failed entirely to consider the harms to consumers that would result. The district court summarily brushed aside DOL's failure, stating in a footnote that it was "unpersuaded that the new rules reduce consumer access to FIAs or variable annuities." ROA.9936. But the court offered no justification whatsoever for this conclusion, which flatly contradicts the administrative record, as explained above. Equally important, the court's statement cannot be squared with the structure of the Rule or DOL' s own position. In the rulemaking, DOL was clear that it AM[ HICAN PVERSIGHT 41 DOL-17-0281-H-000186 Case: 17-10238 Document: 00513977154 Page: 59 Date Filed: 05/02/2017 "intended and expected" the Rule "to move markets toward" what DOL believed would be "a more optimal mix of ... financial products." ROA.945. And DOL laid bare its intention to influence consumer decisions in the "annuity market" in particular-predicting that the Rule would create "better matches between consumers and the annuity product." ROA.805; see also ROA.948 (anticipating market gains in "consumer-friendly insurance products"). Public statements made contemporaneously with the rulemaking made clear, moreover, which annuity products DOL disfavored: in a speech, DOL opined that "[ v ]ariable annuities are not the answer for so many people," and predicted that the Rule would steer consumers towards "simple investments" that it believed would better "serve[]" "[t]heir needs." Schoeff, Perez calls out variable annuities in argument for DOL fiduciary rule, Investment News (June 24, 2015). Indeed, DOL acknowledged throughout the rulemaking that subjecting a product to the BICE, rather than PTE 84-24, would depress the market for that product-not because of anything intrinsic to the product but because of the disparate burdens the Rule created. DOL explained that placing fixed-rate annuities in "PTE 84-24 will promote access to the[m]," ROA.553 (emphasis added). It also predicted that moving fixed-indexed annuities from PTE 84-24 (as DOL had proposed) to the BICE was necessary to "avoid[] creating a regulatory incentive to preferentially recommend indexed annuities" over variable annuities AM[ HICAN PVERSIGHT 42 DOL-17-0281-H-000187 Case: 17-10238 Document: 00513977154 Page: 60 Date Filed: 05/02/2017 and mutual funds (which DOL had always proposed to regulate under the BICE). ROA.395, 558-559 (emphasis added). And DOL declined to subject robo-advisers fully to the BICE to avoid "adversely affect[ing] the incentives currently shaping the market for robo-advice." ROA.435 (emphasis added). All of that unambiguously demonstrates that DOL knew that regulating variable and fixed-indexed annuities under the BICE while placing fixed-rate annuities in PTE 84-24 would decrease access to variable and fixed-indexed annuities. "When the government regulates in a way that" interferes with consumer "access" to beneficial products, "it owes them reasonable candor," so that "affected citizens at least know that the government has faced up to the meaning of its choice." Competitive Enter. Inst., 956 F.2d at 327. That is particularly so here, where the Rule promotes some products (fixed-rate annuities) that serve one retirement objective (protection against investment risk) at the expense of others (variable and fixed-indexed annuities) that better serve a different objective (protection against inflation risk). Cf id. at 323-324 (invalidating rule because agency failed to ''face the trade-off' between promoting more fuel-efficient small cars at the expense of safer large cars). "Reasonable candor" would have meant accounting openly for the consumer benefits of the products that the Rule will drive from the market, and explaining why DOL nonetheless thought that the Rule's tradeoffs were worthwhile. DOL's failure to AM~RICA\J PVERSIGHT 43 DOL-17-0281-H-000188 Case: 17-10238 Document: 00513977154 Page: 61 Date Filed: 05/02/2017 consider this "important aspect of the problem" renders the Rule unlawful. State Farm, 463 U.S. at 43; see Michigan, 135 S. Ct. at 2707. B. DOL Unreasonably Disregarded Existing Annuity Regulation Independently, DOL breached the requirements of reasoned decisionmaking by failing to provide a reasonable explanation why it deemed insufficient the extensive, and recently strengthened, regulatory framework that governs annuity sales and protects consumers. DOL dismissed existing regulations based principally on nirie quantitative studies, but, remarkably, those studies examined the wrong time period (before recent enhancements to state and federal regulations) and the wrong products (mutual funds, not annuities). Such arbitrary decisionmaking fell well short ofDOL's obligations to consider all "'relevant factors,"' to articulate a "rational connection between the facts found and the choice made," Texas, 690 F.3d at 677, and "to determine whether, under the existing regime, sufficient protections ... exist[]," American Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179 (D.C. Cir. 2010). The administrative record established that the buying and selling of annuities is subject to comprehensive state, federal, and FINRA regulations and rules that ensure that brokers and agents provide consumers with suitable recommendations. ROA.6412-6414, 7380-7381, 7388-7657, 8529; see supra, pp. 7-9. To make the case that this existing regulatory framework was inadequate and that a new and AM~ HICA\J PVERSIGHT 44 DOL-17-0281-H-000189 Case: 17-10238 Document: 00513977154 Page: 62 Date Filed: 05/02/2017 burdensome layer of regulation was needed, DOL relied principally on nine quantitative studies. ROA.795- 796 (studies were "most relevant" evidence DOL examined). According to DOL, these studies demonstrated that, "notwithstanding existing [regulatory] protections, there is convincing evidence that advice conflicts are inflicting losses on IRA investors." ROA.747-748, 795-796. Two fundamental flaws, however, rendered DOL's heavy reliance on these studies irrational. First, the studies could not possibly demonstrate the inadequacy of current regulations because they examine data gathered before recent enhancements to the regulations took effect. Seven of the studies use data from 2005 or earlier; two use data ending in 2007 and 2009, respectively. ROA.796-797. Between 2010 and 2012, however, both FINRA and state insurance regulators implemented more stringent regulation of the sale of annuities-a body of regulations and rules the studies could not possibly have analyzed. In 2012, FINRA adopted FINRA Rule 2111, which enhanced requirements govern the sale of securities generally, including both mutual funds and variable annuities. Rule 2111 "strengthen[ ed], streamline[ d], and clarifl)ed]" existing consumer protections by codifying and defining the three core suitability obligations: customer-specific, reasonable-basis, and quantitative suitability. FINRA Regulatory Notice 11-02, at 1 (2011). It "expanded [the] list of explicit types of information that firms ... must attempt to gather and analyze as part of a suitability analysis." Id. at 3. And for the first time AM~ HICA\J PVERSIGHT 45 DOL-17-0281-H-000190 Case : 17-10238 Document: 00513977154 Page: 63 Date Filed : 05/02/2017 the Rule extended suitability regulation to investment strategies involving securities, such as recommendations to hold securities. Id. A new, comprehensive layer of annuity-specific regulations similarly took effect only after the period examined by DOL's nine studies. Not until 2010 did FINRA finish implementing FINRA Rule 2330, which "provide(s] more comprehensive and targeted protection to investors regarding deferred variable annuities." FINRA Regulatory Notice 07-53, at 1 (2007). In 2010, the NAIC also promulgated a strengthened model suitability rule, which has since been adopted by 37 states and the District of Columbia. See Heinrich, State Roundup : State of the States-2015 Year in Review, NAFA Annuity Outlook Magazine (Feb. 10, 2016). Record evidence demonstrated that this new rule has produced significant marketplace effects. E.g., ROA.9242. The outdated studies DOL used could not possibly have measured the efficacy of these newly strengthened regulations. Second, DOL's studies focused almost exclusively on mutual funds, not insurance products such as variable and fixed-indexed annuities. ROA .796-797. Annuities and mutual funds, however, are subject to different regulatory regimesa fact that the district court ignored in blessing DOL' s reliance on mutual fund studies. See ROA.9924. While both mutual funds and variable annuities must comply with generally applicable suitability standards set by FINRA Rule 2111, variable annuities are also governed by a customized and comprehensive AM~ HICA\J PVERSIGHT 46 DOL-17-0281-H-000191 Case: 17-10238 Document: 00513977154 Page: 64 Date Filed: 05/02/2017 regulatory framework that was enhanced in 2010 specifically to account for annuities' unique features-FINRA Rule 2330. That rule requires brokers to have a reasonable basis to conclude that a customer would benefit from the annuity's distinct characteristics, such as tax-deferred growth, annuitization, or a death or living benefit. Member firms must develop written supervisory policies and procedures and create compliance training programs to ensure that those who effect and review covered deferred variable annuity sales understand their material features. And a registered principal must approve each deferred variable annuity sale-a heightened supervisory requirement that does not apply to mutual funds. The recently strengthened 2010 version of the NAIC Model Suitability Rule creates similar protections for variable and fixed-index annuities. An agent must have reasonable grounds to believe the "consumer would benefit from certain [annuity] features," and from "[t]he particular annuity as a whole." NAIC Model Suitability Rule ? 6(A)(2)-(3). And issuers must not only develop and implement product-specific compliance training but establish processes for reviewing each recommendation to ensure there is a reasonable basis to believe it is suitable-a requirement akin to FINRA's principal review obligation. Id. ?? 6(F), 7. DOL's outsized reliance on its nine studies to demonstrate regulatory failure was thus doubly irrational, as those studies could have spoken only to a defunct regulatory framework that once governed different retirement products. DOL's AM[ HICAN PVERSIGHT 47 DOL-17-0281-H-000192 Case: 17-10238 Document: 00513977154 Page: 65 Date Filed: 05/02/2017 failure to "ma[ke] a reasonable effort to ensure that appropriate data was relied upon" renders the Rule "arbitrary and capricious." Resolute Forest Prods., Inc. v. USDA, 187 F. Supp. 3d 100, 123 (D.D.C. 2016); see also Desoto Gen. Hosp. v. Heckler, 766 F.2d 182, 185-186 (5th Cir. 1985) (reliance on study that does not support agency's conclusions is arbitrary and capricious); Business Roundtable v. SEC, 647 F.3d 1144, 1151 (D.C. Cir. 2011) (similar). None of the district court's reasons for excusing these defects withstands scrutiny. The court affirmed DOL's reliance on stale data on the grounds that DOL conducted a new analysis after the comment period closed using mutual fund data from 1980 to 2015 (ROA.803, 967-968), and that it "reviewed data from 2008 through 2014 submitted by commenters." ROA.9925. But the commentersupplied data actually cast doubt on DOL' s studies, ROA.800-801 , 7375, 85008507; DOL "reviewed" those data in an attempt to justify disregarding them, not to explain why the data confirmed the studies, ROA.801-803. And DOL's own analysis does not plug the hole left by the nine studies: Rather than isolate and study the period following adoption of the new annuity regulations, DOL diluted data from those years by mixing them with two decades of data from earlier years-making it impossible to tell whether mutual fund underperformance was attributable to products recommended before the new rules took effect. ROA.967- AM~ HICA\J PVERSIGHT 48 DOL-17-0281-H-000193 Case: 17-10238 Document: 00513977154 Page: 66 Date Filed: 05/02/2017 968. And DOL repeated one of the errors that plague its other studies, focusing once again on mutual-fund performance, rather than annuities. ROA.967-968. Even setting aside these substantive analytic flaws, DOL "commit[ ted] serious procedural error" in supplementing the record with such a significant study-the only quantitative analysis relied on by DOL in the entire rulemaking that examined data after 2009-without providing the public an opportunity to comment on that analysis. Owner-Operator lndep. Drivers Ass 'n v. Federal Motor Carrier Safety Admin., 494 F.3d 188, 199 (D.C. Cir. 2007). "[C]ritical factual material that is used to support [an] agency's position," like DOL's last-minute analysis, "must ... be[] made public in the proceeding and exposed to refutation." Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 7 (D.C. Cir. 1999). Finally, the district court asserted DOL had no obligation even to "consider whether existing regulation was sufficient" and that DOL would have "satisfied the APA even without the [nine] studies." ROA.9921, 9923. It is doubtful whether it would ever be non-arbitrary for an agency to impose massive regulatory burdens without first determining that extant regulations had failed to achieve the agency's objectives. But that is beside the point here, because DOL "must defend its analysis before the court upon the basis it employed in adopting that analysis." American Equity, 613 F .3d at 177. And here DOL did justify the Rule based on claims that existing regulations were inadequate and it did rely principally on the AM[ HICAN PVERSIGHT 49 DOL-17-0281-H-000194 Case : 17-10238 Document: 00513977154 Page: 67 Date Filed: 05/02/2017 nine studies in trying to substantiate that claim. ROA.764, 795-796, 807. It therefore had an obligation to conduct that analysis in a reasonable manner: "Professing that an order ameliorates a real industry problem but" citing no reliable "evidence demonstrating that there is in fact an industry problem is not reasoned decisionmaking." National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 843 (D.C. Cir. 2006). The Rule is therefore unlawful and must be vacated. 10 CONCLUSION For these reasons, the district court's judgment should be reversed and remanded with instructions to direct vacatur of the Rule, to award appropriate declaratory and injunctive relief to Appellants, or both. The hodgepodge of additional evidence the district court cited does nothing to backstop DOL's nine studies. According to the court, DOL "considered" two bulletins in which the SEC and FINRA "express[ ed] concern" that existing regulations "did not provide adequate protections." ROA.9925. But that is not what the bulletins say-or even what DOL claimed they say. See ROA.756, 777, 921. Rather, the bulletins simply educate consumers about the various features of fixed-indexed annuities-an example of the existing regulatory regime working, not evidence of its inadequacy. The district court also credited DOL for "consider[ing] studies" of (i) the property/casualty insurance market and (ii) life insurance sales in India. ROA.9924; see also ROA.759, 785-786. But "no property/casualty insurance products are subject to suitability rules." ROA.4200. And a central finding of the India study is that agents often recommended "unsuitable products." ROA.785-786 (emphasis added). Neither study therefore sheds any light on the efficacy of the robust suitability regime that governs annuities in the United States. 10 AMERICA\J PVERSIGHT 50 DOL-17-0281-H-000195 Case: 17-10238 Document: 00513977154 Page: 68 Date Filed: 05/02/2017 Respectfully submitted, /s/ David W. Ogden ANDREA J. ROBINSON WILMER CUTLER PICKERING HALE AND DORR LLP DAVID W. OGDEN Counsel of Record KELLY P. DUNBAR ARI HOLTZBLA TT KEVIN M. LAMB WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 MICHAEL A. YANOF THOMPSON COE COUSINS & IRONS, LLP 700 North Pearl Street 25th Floor - Plaza of the Americas Dallas, TX 75201 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 Counsel for American Council of Life Insurers, National Association of Insurance and Financial Advisors, National Association of Insurance and Financial Advisors-Texas, National Association of Insurance and Financial AdvisorsAmarillo, National Association of Insurance and Financial Advisors-Dallas, National Association of Insurance and Financial Advisors-Fort Worth, National Association of Insurance and Financial Advisor-Great Southwest, and National Association of Insurance and Financial Advisors-Wichita Falls May 2, 2017 AM[ HICAN PVERSIGHT 51 DOL-17-0281-H-000196 Case: 17-10238 Document: 00513977154 Page: 69 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(i). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(f), the brief contains 11,439 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(a)(7)(B) , the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. /s/ David W. Ogden DAVID W. OGD EN May 2, 2017 AM~RICA\J PVERSIGHT DOL-17-0281-H-000197 Case: 17-10238 Document: 00513977154 Page: 70 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of May, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM!ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system. /s/ David W. Ogden DAVID W. OGDEN AM[ HICAN PVERSIGHT DOL-17-0281-H-000198 Case: 17-10238 Document: 00513977166 Page: 1 Date Filed: 05/02/2017 No. 17-10238 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDTABLE; GREATER IRVING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, -------------- Defendants-Appel lees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-WICHITA FALLS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appel lees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. BUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, -------------- Defendants-Appel lees. 0 n Appeal from the United Dallas States District Court for the Northern District Division, Nos. 3:16-cv-1476, -1530, -1537 of Texas, OPENING BRIEF OF IALC PLAINTIFFS-APPELLANTS COUNSEL LISTED ON INSIDE COVER AM[ HICAN PVERSIGHT DOL-17-0281-H-000199 Case: 17-10238 Document: 00513977166 Page: 2 Date Filed: 05/02/2017 JOSEPH R. GUERRA Counsel of Record PETER D. KEISLER ERIC D. McARTHUR JENNIFER J. CLARK SIDLEY AUSTINLLP 1501 K Street, NW Washington, DC 20005 (202) 736-S0ot> Counsel for Indexed Annuity Leadership Council,? Life Insurance Company of the Southwest,? American Equity Investment Life Insurance Company; Midland National Life Insurance Company,? North American Company for Life and Health Insurance May 2, 2017 AM[ HICAN PVERSIGHT DOL-17-0281-H-000200 Case: 17-10238 Document: 00513977166 Page: 3 Date Filed: 05/02/2017 CERTIFICATE OF INTERESTED PERSONS No. 17-10238 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERlCA; FINANCIAL SERVICES INSTITUTE, INCORPORATED; FINANCIAL SERVICES ROUNDT ABLE; GREATER IR YING-LAS COLINAS CHAMBER OF COMMERCE; HUMBLE AREA CHAMBER OF COMMERCE, doing business as Lake Houston Chamber of Commerce; INSURED RETIREMENT INSTITUTE; LUBBOCK CHAMBER OF COMMERCE; SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION; TEXAS ASSOCIATION OF BUSINESS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, -------------- Defendants-Appel lees. AMERICAN COUNCIL OF LIFE INSURERS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-TEXAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-AMARILLO; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-DALLAS; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-FORT WORTH; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS-GREAT SOUTHWEST; NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS- WI CHITA FALLS, Plaintiffs-Appellants, V. UNITED STATES DEPARTMENT OF LABOR; EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees. INDEXED ANNUITY LEADERSHIP COUNCIL; LIFE INSURANCE COMPANY OF THE SOUTHWEST; AMERlCAN EQUITY INVESTMENT LIFE INSURANCE COMPANY; MIDLAND NATIONAL LIFE INSURANCE COMPANY; NORTH AMERlCAN COMPANY FOR LIFE AND HEAL TH INSURANCE, Plaintiffs-Appellants, V. EDWARD C. HUGLER, ACTING SECRETARY, U.S. DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Defendants-Appel lees. A~LH CAf\ PVERSIGHT DOL-17-0281-H-000201 Case: 17-10238 Document: 00513977166 Page: 4 Date Filed: 05/02/2017 The. undersigned counsel of record certifies the following listed persons and entities as described in the fourth sentence of Local Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Plaintiff-Appellant the Indexed Annuity Leadership Council has no parent corporation and no publicly held corporation owns 10% or more of its stock. The parent company of Plaintiff-Appellant Life Insurance Company of the Southwest is National Life Insurance Company. No publicly held corporation owns 10% or more of the stock of Life Insurance Company of the Southwest. Plaintiff-Appellant American Equity Investment Life Insurance Company is wholly owned by its parent company, American Equity Life Holding Company. Plaintiff-Appellant Midland National Life Insurance Company ("Midland") 1s wholly owned by Sammons Financial Group, Inc. ("Sammons Financial"); Sammons Financial is wholly owned by Consolidated Investment Services, Inc. ("Consolidated"); and Consolidated is wholly owned by Sammons Enterprises, Inc. ("Sammons Enterprises"). Midland owns Solberg Reinsurance Company, MNL Reinsurance Company and Midland National Services Corporation, LLC. Midland is also otherwise related by common ownership to Sammons Retirement Solutions, Inc. and Sammons Securities, Inc. (which owns Sammons Financial Network, LLC). AM[ HICAN PVERSIGHT 11 DOL-17-0281-H-000202 Case: 17-10238 Document: 00513977166 Page : 5 Date Filed: 05/02/2017 Plaintiff-Appellant North American Company for Life and Health Insurance (''North American") is wholly owned by Sammons Financial Group, Inc. ("Sammons Financial"); Sammons Financial is wholly owned by Consolidated Investment Services, Inc. ("Consolidated"); and Consolidated is wholly owned by Sammons Enterprises, Inc. ("Sammons Enterprises"). North American is also otherwise related by common ownership to Sammons Retirement Solutions, Inc. and Sammons Securities, Inc. (which owns Sammons Financial Network, LLC). A. Plaintiffs-Appellants 1. 2. 3. 4. 5. 6. Indexed Annuity Leadership Council Life Insurance Company of the Southwest American Equity Investment Life Insurance Company Midland National Life Insurance Company North American Company for Life and Health Insurance Others who are not participants in this matter but may be financially interested in its outcome include financial services providers, insurance companies, and retirement savers. B. Current and Former Attorneys for Plaintiffs-Appellants Yvette Ostolaza SIDLEYAUSTINLLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 Joseph P. Guerra Peter D. Keisler Eric D. McArthur Jennifer J. Clark Benjamin Beaton SIDLEYAUSTINLLP 1501 K Street, N.W. Washington, DC 2000 5 C. Co-Plaintiffs-Appellants 7. 8. Chamber of Commerce of the United States of America Financial Services Institute , Inc. AMERICA\J PVERSIGHT 111 DOL-17-0281-H-000203 Case: 17-10238 9. 10. 11. Document: 00513977166 Page: 6 Date Filed: 05/02/2017 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Financial Services Roundtable Greater Irving-Las Colinas Chamber of Commerce Humble Area Chamber of Commerce d/b/a Lake Houston Area Chamber of Commerce Insured Retirement Institute Lubbock Chamber of Commerce Securities Industry and Financial Markets Association Texas Association of Business American Council ofLife Insurers National Association of Insurance and Financial Advisors National Association of Insurance and Financial Advisors-Texas National Association of Insurance and Financial Advisors-Amarillo National Association of Insurance and Financial Advisors-Dallas National Association of Insurance and Financial Advisors-Fort Worth National Association of Insurance and Financial Advisors-Great Southwest National Association of Insurance and Financial Advisors-Wichita Falls D. Attorneys for Co-Plaintiffs-Appellants Eugene Scalia Jason J. Mendro Paul Blankenstein Rachel Mondl GIBSON,DUNN& CRUTCHERLLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Kevin Carro 11 Ira D. Hammerman SECURITIES INDUSTRYAND FINANCIAL MARKETSASSOCIATION 1101 New York Avenue, N.W. Washington, D.C. 20005 James C. Ho Russell H. Falconer GIBSON,DUNN& CRUTCHERLLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201 Steven P. Lehotsky Janet Galeria U.S. CHAMBERLITIGATIONCENTER 1615 H Street, N.W. Washington, DC 20062 Kevin Richard Foster Felicia Smith FINANCIALSERVICESROUNDTABLE 600 13th Street, N.W., Suite 400 Washington, DC 20005 David T. Bellaire Robin Traxler FINANCIALSERVICESINSTITUTE,INC. 607 14th Street, N.W., Suite 750 Washington, DC 20005 AM[ HICAN PVERSIGHT IV DOL-17-0281-H-000204 Case: 17-10238 Document: 00513977166 Page: 7 Date Filed: 05/02/2017 Andrea J. Robinson WILMERCUTLERPICKERING HALE ANDDORRLLP 60 State Street Boston, MA 02109 J. Lee Covington II INSURED RETIREMENT INSTITUTE 1100 Vermont Avenue, N.W. Washington, DC 20005 David W. Ogden Kelly P. Dunbar Jessica P. Leinwand Ari Holtzblatt Kevin M. Lamb WILMERCUTLERPICKERING HALE ANDDORRLLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Michael A. Y anof THOMPSON COECOUSINS& IRONS, LLP 700 North Pearl Street 25th Floor - Plaza of the Americas Dallas, TX 75201 E. Defendants-Appellees 24. 25. United States Department of Labor Edward C. Bugler, Acting Secretary, U.S. Department of Labor F. Attorneys for Defendants-Appellees Nicholas C. Geale G. William Scott Edward D. Sieger Thomas Tso Megan Hansen M. Patricia Smith Elizabeth Hopkins U.S. DEPARTMENT OF LABOR OFFICEOF THESOLICITOR 200 Constitution Avenue, N.W., Suite N-2119 Washington, DC 20210 AM[ HICAN PVERSIGHT Michael Shih Michael S. Raab U.S. DEPARTMENT OF JUSTICE CIVILDIVISION,APPELLATE SECTION 950 Pennsylvania Avenue, N.W., Suite 7268 Washington, DC 20530 V DOL-17-0281-H-000205 Case: 17-10238 Document: 00513977166 Page: 8 Date Filed: 05/02/2017 Galen N. Thorp Emily Newton Joyce R. Branda Benjamin C. Mizer John R. Parker Judry L. Subar U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W., Room 6140 Washington, DC 20001 G. Amici in the District Court 26. 27. 28. 29. 30. 31. 32. 3 3. 34. AARP AARP Foundation American Association for Justice Financial Planning Coalition Public Citizen Inc. Better Markets Inc. Consumer Federation of America Public Investors Arbitration Bar Association National Black Chamber of Commerce H. Attorneys for Amici in the District Court Mary Ellen Signorille Martin Woodward AARP FOUNDATION LITIGATION STANLEY LAW GROUP 601 E St., N.W. Washington, DC 20049 6116 North Central Expressway, Suite 1500 Dallas, TX 75206 Bernard A. Guerrini 6500 Greenville Avenue, Suite 320 Dallas, TX 75206 Deepak Gupta Matthew W. H. Wessler GUPTA WESSLER PLLC 1735 20th Street, N.W. Washington, D.C. 2009 AM[ HICAN PVERSIGHT Vl DOL-17-0281-H-000206 Case: 17-10238 Document: 00513977166 Page : 9 Date Filed: 05/02/2017 Brandan S. Maher STRIS& MAHERLLP 1920 Abrams Parkway, Suite 430 Dallas , TX 7 5124 Doug D. Geyser STRIS& MAHERLLP 6688 North Central Expressway, Suite 1650 Dallas, TX 75206 Braden W. Sparks. BRADENW. SPARKSPC 12222 Merit Drive, Suite 800 Dallas, TX 75251 Brian W. Barnes David H. Thompson Peter A. Patterson COOPER& KIRK PLLC 1523 New Hampshire Ave NW Washington , DC 20036 Theodore Carl Anderson, III Alexandra Treadgold KILGORE& KILGOREPLLC 3109 Carlisle Street, Suite 200 Dallas, TX 75204 Richard Aaron Lewins LEWINSLAW 7920 Belt Line Road, Suite 650 Dallas, TX 75254 Dennis M. Kelleher BETTERMARKETSINC. 1825 K. Street, N. W. , Suite 1080 Washington, DC 20006 Brent M. Rosenthal ROSENTHALWEINERLLP 12221 Merit Drive, Suite 1640 Dallas, TX 75251 Charles Flores BECKREDDENLLP 1221 McKinney Street, Suite 4500 Houston, TX 77010 Julie Alyssa Murray N GROUP PUBLICCITIZENLITIGATIO 1600 20th Street, N.W . Washington, DC 20009 /s/ Joseph R. Guerra JOSEPHR. GUERRA SIDLEYAUSTINLLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 May 2, 2017 AM~ HICA\J PVERSIGHT Vll DOL-17-0281-H-000207 Case: 17-10238 Document: 00513977166 Page: 10 Date Filed: 05/02/2017 STATEMENT REGARDING ORAL ARGUMENT Plaintiffs-appellants respectfully submit that their challenges to the fiduciary rule and related exemptions promulgated by the Department of Labor are sufficiently important to warrant oral argument. AM[ HICAN PVERSIGHT Vlll DOL-17-0281-H-000208 Case: 17-10238 Document: 00513977166 Page: 11 Date Filed: 05/02/2017 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ........................................................ .i STATEMENT REGARDING ORAL ARGUMENT ........................................... viii TABLE OF AUTHORITIES .................................................................................... xi INTRODUCTION ..................................................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 3 STATEMENT OF ISSUES ....................................................................................... 4 STATEMENT OF THE CASE .................................................................................. 5 A. Fixed Indexed Annuities ....................................................................... 5 B. States' Regulation Of FIA Sales ........................................................... 6 C. The Previously Limited Regulation Of FIA Sales Under ERISA ........ 9 D. DOL's Rulemaking ............................................................................. 11 E. Proceedings Below .............................................................................. 13 SlJMMARY OF ARGUMENT ............................................................................... 14 STANDARD OF REVIEW ..................................................................................... 18 ARGUMENT ........................................................................................................... 19 I. DOL'S NEW DEFINITION OF A "FIDUCIARY" IS INVALID ............... 19 A. AM~ HICA\J PVERSIGHT DOL's New Definition Of A "Fiduciary" Is Inconsistent With The Plain And Unambiguous Meaning OfERISA ............................. 19 1. Settled rules of statutory construction demonstrate that ERISA imposes fiduciary status only on persons who render investment advice in a relationship of trust and confidence ................................................................................. 20 2. The district court's reasons for accepting DOL's new definition are mistaken .............................................................. 26 IX' DOL-17-0281-H-000209 Case: 17-10238 B. II. Document: 00513977166 Page: 12 Date Filed: 05/02/2017 DOL's Interpretation Is Unreasonable ................................................ 31 DOL'S TREATMENT OF FIXED INDEXED ANNUITIES WAS ARBITRARY AND CAPRICIOUS .............................................................. 35 A. DOL Was Required To Consider The Sufficiency Of Existing Regulation ........................................................................................... 36 B. DOL Failed To Give A Rational Explanation For Finding That Existing Regulation Is Insufficient To Protect FIA Buyers ................ 3 8 C. DOL Failed To Support Its Claim That FIA Sales Are Inflicting Consumer Harms Despite Existing Regulation ................................. .44 D. At The Very Least, The Revocation Of The 84-24 Exemption For FIAs Should Be Set Aside ............................................................ 51 CONCLUSION ........................................................................................................ 52 CERTIFICATE OF SERVICE ................................................................................ 53 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS .......... 54 AMERICAN PVERSIGHT X DOL-17-0281-H-000210 Case: 17-10238 Document: 00513977166 Page: 13 Date Filed: 05/02/2017 TABLE OF AUTHORITIES Page Cases 10 Ring Precision , Inc . v. Jones , 722 F.3d 711 (5th Cir. 2013) .............................................................................. 37 Am. Driver Serv., Inc. v. Truck Ins. Exch., 631 N.W.2d 140 (Neb. Ct. App. 2001) ............................................................... 22 Am. Fed 'n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc y of US., 841 F.2d 658 (5th Cir. 1988) ............................................................... ............... 25 Am. Equity Inv . Life Ins. Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2010) ............... ............................................. 8, 37, 38, 42 Associated Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016) ........................................................................ 18, 38 Burlington N & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ................................................. ............................................. 29 Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) ...................................................... .................... 51 Chavez v. Chenoweth, 553 P.2d 703 (N.M. Ct. App. 1976) ............................................... .................... 22 _ City of Arlington v. FCC, 133 S. Ct. 1863 (2013) ................................................................. ....................... 20 ConocoPhillips Co. v. EPA, 612 F.3d 822 (5th Cir. 2010) ....................................................................... .47, 48 Del. Dep 't of Nat. Res . & Envtl. Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015) ................................................................................ 36 Desoto Gen. Hosp . v. Heckler, 766 F.2d 182 (5th Cir. 1985) ............................................................................. .49 AM~ HICA\J PVERSIGHT Xl DOL-17-0281-H-000211 Case: 17-10238 Document: 00513977166 Page: 14 Date Filed: 05/02/2017 SD. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) ...................................................................... ..32, 46 Ellis v. Rycenga Homes, Inc., 484 F. Supp. 2d 694 (W.D. Mich. 2007) ............................................................ 25 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ........................................................................................ 37 Evans v. United States, 504 U.S. 255 (1992) .......................................................................... 21, 22, 27, 28 Fin. Planning Ass 'n v. SEC, 482 F.3d 481 (D.C. Cir. 2007) ...................................................................... 26, 34 Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268 (Conn. 2000) .............................................................................. 33 Kap-Pel Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49 (Mo. Ct. App. 1966) .................................................................. 21 Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) .............................................................................. 19 Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) ...................................................................................... 23, 28 Michigan v. EPA, 135 S. Ct. 2699 (2015) ........................................................................................ 33 Moses v. Mfrs. Life Ins. Co., 298 F. Supp. 321 (D.S.C. 1968), aff'd, 407 F.2d 1142 (4th Cir. 1969) ............. 22 Motor Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................. 37 Nat'! Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006) ..................................................................... passim Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) ...................................................................................... 20, 22 AM[ HICAN PVERSIGHT Xll DOL-17-0281-H-000212 Case: 17-10238 Document: 00513977166 Page: 15 Date Filed: 05/02/2017 Neder v. United States, 527 U.S. 1 (1999) .................................................................................... 21, 22, 23 NLRB v. Amax Coal Co., 453 U.S. 322 (1981) ...................................................................................... 20, 22 Pitts v. Jackson Nat'! Life Ins. Co., 574 S.E.2d 502 (S.C. Ct. App. 2002) ................................................................. 22 Rishel v. Pac. Mut. Life Ins. Co. of Cal., 78 F.2d 881 (10th Cir. 1935) .............................................................................. 21 Russello v. United States, 464 U.S. 16 (1983) ........................................................................................ 23, 29 Stockett v. Penn Mut. Life Ins. Co., 106 A.2d 741 (R.I. 1954) .................................................................................... 21 Texas v. EPA, 690 F.3d 370 (5th Cir. 2012) .............................................................................. 19 Texas v. United States, 497 F.3d 491 (5th Cir. 2007) ........................................................................ 31, 34 Varity Corp. v. Howe, 516 U.S. 489 (1996) ...................................................................................... 20, 28 Statutes and Regulations Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) ........................................................... 8, 34 5 U.S.C. ? 706 .......................................................................................................... 31 15 U.S.C. ? 1011 ...................................................................................................... 34 26 U.S.C. ? 4975 ...................................................................................................... 10? 29 U.S.C. ? 1002(2l)(A) .............................................................................. 10, 23, 24 29 U.S.C. ? 1104(a) .... :............................................................................................ 10 29 U.S.C. ? 1106 ...................................................................................................... 10 Xlll AM~ HICA\J PVERSIGHT - DOL-17-0281-H-000213 Case: 17-10238 Document: 00513977166 Page: 16 Date Filed: 05/02/2017 40 Fed. Reg. 50840 (Oct. 31, 1975) ................................................................... 10, 25 74 Fed. Reg. 3138 (Jan. 16, 2009) ....................................................................... 8, 34 Legislative History S. Rep. No. 93-127 (1973) ....................................................................................... 24 H.R. Rep. No. 93-533 (1973) ................................................................................... 24 120 Cong. Rec. 3977 (1974) .................................................................................... 25 Other Authorities G. Bogert, Confidential Relations and Unenforcible Express Trusts, 13 Cornell L.Q. 237 (1928) .................................................................... 21, 32, 33 Certified Fin. Planner Bd. of Standards, APCO Insight, Senior Financial Exploitation Study (Aug. 2012), http://www.cfp.net/ docs/news-events---supportingdocuments/ senior-americans- financial-exploitationsurvey.pdf?sfvrsn=0 ............................................................................................ 50 Richard Evans & Rudiger Fahlenbrach, Institutional Investors and Mutual Fund Governance: Evidence from Retail-Institutional Fund Twins, in The Review of Financial Studies (2012) ............................................ .46 D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice (forthcoming) ................................................... .49 D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice, in Research Handbook on the . Economics of Insurance Law (Edward Elgar Pub. 2015) ................................... 39 AM~ HICA\J VERSIGHT XIV DOL-17-0281-H-000214 Case: 17-10238 Document: 00513977166 Page : 17 Date Filed : 05/02/2017 INTRODUCTION Appellants are the Indexed Annuity Leadership Council (IALC), an association of insurance companies that offer fixed indexed annuities (FIAs ), and several of the association's members. Appellants brought this action to challenge new rules issued by the Department of Labor (DOL) that dramatically-and unlawful- ly-alter the longstanding regulatory treatment of sales of these products under the Employee Retirement Income Security Act of 1974 (BRISA). Long before BRISA was enacted, it was well recognized that, absent special circumstances, insurance products are sold in arm's-length transactions, and that recommendations incidental to such sales are not "fiduciary" in nature. This is because the defining characteristic of a "fiduciary" relationship-special confidence-does trust and not arise in ordinary, one-time sales of insurance. These legal principles explain why, shortly after BRISA was enacted, DOL interpreted the statute's definition of a "fiduciary" to require the attributes of a confidential relationship, and to exclude persons who provide incidental advice in non-confidential sales transactions. They also explain why DOL maintained this standard for over four decades, across six presidential administrations of both parties. Yet, at the government's urging, the district court concluded that the term "fiduciary" in BRISA is properly read to transform an arm's-length sale of an annuity into fiduciary conduct. Indeed, the government persuaded the district court AMERICA\J PVERSIGHT 1 DOL-17-0281-H-000215 Case: 17-10238 Document: 00513977166 Page: 18 Date Filed: 05/02/2017 that DOL's own 41-year-old contrary interpretation was "difficult ... to reconcile with" ERISA. ROA.9895. These conclusions are plainly mistaken . Because Congress incorporated the term "fiduciary" into ERISA (and the parallel provisions of the Internal Revenue Code), courts must presume that Congress intended to incorporate the term's well-established common-law meaning unless the statute dictates otherwise. Nothing in ERISA requires jettisoning the fundamental common-law requirement of a special relationship of trust and confidence. To the contrary, the language Congress used elsewhere in the statute to depart from other common-law requirements confirms that Congress retained this defining characteristic of a fiduciary. Thus, the plain meaning of ERISA precludes DOL's new and radically broader definition . Even if ERISA's fiduciary definition was ambiguous- and it is not-DOL 's new interpretation is still unreasonable . As DOL itself conceded, Congress did not intend to regulate advice offered outside relationships of trust and confidence, yet the agency chose to capture recommendations incidental to non-confidential onetime sales of insurance products. Moreover , Congress has forsworn federal regulation of advice incidental to sales of other financial products, and it has prohibited federal regulation of the very products at issue here-FIAs-when they are sold in compliance with recently enhanced state "suitability" rules. An interpretation that flouts Congress's intent in ERISA and two other laws is not entitled to deference. AM~ HICA\J PVERSIGHT 2 DOL-17-0281-H-000216 Case: 17-10238 Document: 00513977166 Page: 19 Date Filed: 05/02/2017 In addition to adopting a legally invalid interpretation of ERISA, DOL acted arbitrarily and capriciously in subjecting sales of FIAs to stringent new federal regulation. Because sales of these products are subject to newly enhanced state suitability rules, DOL was obligated to provide a reasoned explanation for why this state regulation is inadequate. DOL identified a theoretical "gap" between its new "best interest" standard and the state-law requirement to recommend only FIAs that are suitable for a purchaser. But DOL nowhere explained why it is reasonable to believe that this regulatory "gap" has any real-world significance. And it failed to offer any relevant evidence of actual consumer harms from FIA sales subject to enhanced state regulation. To the contrary, DOL repeatedly relied on harms caused by sales of unsuitable FIAs (the very harms addressed by the enhanced state regulations) and evidence drawn from studies of mutual funds, rather than FIAs. As appellants explain in detail below, the district court's decision upholding DOL's new rules should be reversed, and those rules should be set aside as unlawful. JURISDICTIONAL STATEMENT The IALC plaintiffs filed this suit in the Northern District of Texas on June 8, 2016. The district court had jurisdiction to review DOL's final agency actions under 28 U.S.C. ? 1331 and 5 U.S.C. ? 704. AM[ HICAN PVERSIGHT 3 DOL-17-0281-H-000217 Case: 17-10238 Document: 00513977166 Page: 20 Date Filed: 05/02/2017 The district court entered its final judgment on February 9, 2017, ROA.9954, and the IALC plaintiffs filed a timely notice of appeal on February 28, 2017, ROA.9962. This Court has jurisdiction pursuant to 28 U.S.C. ? 1291. STATEMENT OF ISSUES 1. Whether DOL's new fiduciary rule, which treats recommendations inci- dental to the one-time sale of insurance products as fiduciary in nature, is invalid because it rests on an interpretation of the term "fiduciary" in ERJSA and parallel provisions of the Internal Revenue Code that is inconsistent with the statutes' plain meaning and/or is unreasonable. 2. Whether, in subjecting sales of FIAs to fiduciary regulation, revoking a longstanding prohibited transaction exemption (the "84-24 exemption") for commission-based sales of insurance products, and moving FIAs into the new and more onerous "Best Interest Contract" exemption, DOL acted arbitrarily and capriciously because it failed to (a) offer a reasoned explanation for why newly enhanced state regulations governing FIA sales are insufficient to protect consumers, (b) offer evidence that FIA sales subject to the new state regulations are actually harming consumers, and (c) explain why the enhancements it adopted for the 84-24 exemption do not adequately protect consumers who purchase FIAs. AM[ HICAN PVERSIGHT 4 DOL-17-0281-H-000218 Case: 17-10238 Document: 00513977166 Page: 21 Date Filed: 05/02/2017 STATEMENT OF THE CASE A. Fixed Indexed Annuities Annuities are insurance contracts that protect against the risk of outliving retirement savings. In exchange for principal contributed by an individual, the insurance company makes payments to the individual, either immediately or on a deferred basis, such as at retirement. Fixed annuities, including FIAs, are a type of deferred annuity that shields the purchaser from loss of principal due to "investment risk." ROA.8596. In contrast to variable annuities, the insurer bears the market risk for a fixed annuity, and interest credited to the contract is guaranteed. See ROA.8596, 9232, 579-81. Premiums paid by the owner are not placed in a separate account or invested in a specific product or market, but are supported by the insurer's general account. See ROA.8596, 9232. With a traditional fixed annuity, earnings accrue at an interest rate that may be guaranteed for a term of years or periodically declared by the insurer. See ROA.8596. With an FIA, the interest rate is tied to an established market index, such as the S&P 500. Although the indexed formulas are typically capped at acertain upper level, they also set a floor such that only the positive change of a market index is used to calculate the interest rate credit. As a result, the credit can never be less than zero and the owner will not lose any principal if the index declines. Fixed AMERICA!\. PVERSIGHT 5 DOL-17-0281-H-000219 Case: 17-10238 Document: 00513977166 Page: 22 Date Filed: 05/02/2017 annuities thus provide an affordable and low-risk option for individuals seeking guaranteed income in retirement. Because fixed annuities are intended primarily to provide guaranteed income in retirement, contract owners pay a surrender charge if they choose to cash-in the contract early. See ROA.8596. Though surrender charges and periods vary among insurers and products, insurers may charge no more than is permitted under state insurance standards. ROA.579. FIAs are sold through a variety of channels, including by banks, brokerdealers, independent agents, and captive agents of insurers. ROA.8597, 8609, 8536. Agents are generally compensated through commissions, which are paid by the insurance company and not deducted from the buyer's principal. This commission-based compensation system reflects a fundamental feature of sales of such annuities: An FIA is a one-time "buy and hold" product. ROA.8535. There is no ongoing provision of investment advice or management of the consumer's funds. FIA sales thus stand in contrast to a fee-for-advice arrangement, in which a consumer pays an advisor a fee to manage his or her money on an ongoing basis. See id. B. States' Regulation Of FIA Sales States have developed "a robust set of consumer protection[ s]" to ensure that those selling annuities act in a manner that protects the interests of retirement savers. ROA.8529; see also ROA.8598. One important component of this framework AM[ HICAN PVERSIGHT 6 DOL-17-0281-H-000220 Case: 17-10238 Document: 00513977166 Page: 23 Date Filed : 05/02/2017 is the model "suitability" regulation developed by the National Association of Insurance Commissioners (NAIC). ROA.8538. The NAIC enhanced the suitability model in 2010, imposing more? extensive suitability standards on the sale of fixed annuities, including FIAs, to ensure that consumers' needs and financial objectives are appropriately addressed. ROA.8538-39. As of September 2015, 35 states plus the District of Columbia had adopted the model suitability rule. ROA.679. FIAs can only be sold by state-licensed insurance agents, who must complete an annuity-specific training course, as well as training about each specific product they sell. ROA.8534-35; NAIC Suitability In Annuity Transactions Model Regulation ?? 6(F)(l)(b)-(c), 7(A) (ROA.6034, 6036). Each type of FIA must be approved by each state in which it is sold. ROA.8533. An agent may not recommend even state-approved FIAs unless the agent has "reasonable grounds for believing that the recommendation is suitable for the consumer." ROA.6032 ? 6(A). To make a suitability determination, the agent must evaluate a host of factors, including the consumer's age, income, intended use of the annuity, assets and liquid net worth, financial needs and experience, financial time horizon, liquidity needs, risk tolerance, and tax status. ROA.6032-33 ?? 5(1), 6(A). An agent must also have a reasonable basis to believe that the "consumer would benefit from certain features of the annuity, such as tax-deferred growth, annuitization or death or living benefit," ROA.6033 ? 6(A)(2), and must ensure the consumer has received a AMEHICA\J PVERSIGHT 7 DOL-17-0281-H-000221 Case: 17-10238 Document: 00513977166 Page: 24 Date Filed: 05/02/2017 reasonable explanation of the FIA, including the surrender period, early surrender charges, any other fees or charges, and limitations on interest credited, id. ? 6(A)(l). The insurance company must then review and approve the transaction as suitable. Id. ? 6(C). State insurance commissioners have broad powers to ensure that insurers do not engage in unfair trade practices. See ROA.8529. As the NAIC explained, "[ s]uch authority allows state regulators to identify market issues and take the appropriate regulatory action swiftly and effectively," and "states have a strong record of protecting consumers, especially seniors, from inappropriate sales practices or unsuitable products." Id. Congress has recognized the effectiveness of these state protections. In 2009, the Securities and Exchange Commission (SEC) proposed a rule that would have treated many FIAs as securities subject to registration and federal supervision. 74 Fed. Reg. 3138 (Jan. 16, 2009). The proposed rule was invalidated, however, because the SEC "fail[ed] to determine whether, under the existing [statelaw] regime, sufficient protections existed to enable investors to make informed investment decisions and sellers to make suitable recommendations to investors." Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179 (D.C. Cir. 2010). Shortly thereafter, Congress adopted the Harkin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, ? 989J, 124 AM[ HICAN PVERSIGHT 8 DOL-17-0281-H-000222 Case: 17-10238 Document: 00513977166 Page: 25 Date Filed: 05/02/2017 Stat. 1376, 1949-50 (2010). The Harkin Amendment provides that FIAs sold in states that have adopted the latest NAIC model suitability regulation, or by companies following the latest NAIC model regulation, shall be treated as exempt securities not subject to federal regulation. Today, versions of the NAIC regulations have been adopted by most states, and insurance companies selling FIAs generally apply suitability standards at least as stringent as the model regulations even if domiciled in states that have not adopted them, in order to benefit from the Harkin Amendment exemption. ROA.8537. Thus, virtually all FIA sales are as a legal or practical matter subject to requirements that are at least as stringent as the NAIC model regulations. ROA.8598, 8537. C. The Previously Limited Regulation Of FIA Sales Under ERISA Prior to the adoption of DOL's new rules, sales of fixed annuities, including FIAs, were generally not subject to regulation under ERISA's fiduciary standards. Under ERISA and parallel provisions of the Code, a person is a "fiduciary" only "to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) 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, or (iii) he has AM[ HICAN PVERSIGHT 9 DOL-17-0281-H-000223 Case: 17-10238 Document: 00513977166 Page: 26 Date Filed: 05/02/2017 any discretionary authority or discretionary responsibility in the administration of such plan." 29 U.S.C. ? 1002(21)(A); 26 U.S.C. ? 4975(e)(3). Among other things, ERJSA requires fiduciaries of an ERJSA plan to act prudently and "solely in the interest of the participants and beneficiaries," 29 U.S.C. ? 1104( a), and it prohibits certain transactions absent an exemption, id. ? 1106. Under the Code, fiduciaries of individual retirement accounts (IRAs) and plans not covered by ERJSA are also subject to prohibited transaction rules. 26 U.S.C. ? 4975. Shortly after ERJSA was enacted, DOL confirmed that sellers of fixed annuities are ordinarily not fiduciaries. Under regulations DOL issued in 1975, persons lacking discretionary authority or control with respect to the investment of plan assets did not "rende[ r] investment advice for a fee"-and ies-unless, thus were not fiduciar- among other things, they made investment recommendations "on a regular basis" "pursuant to a mutual. agreement, arrangement or understanding" that the advice "will serve as a primary basis for investment decisions with respect to plan assets," and that the advice will be "individualized ... based on the particular needs of the plan." 40 Fed. Reg. 50840, 50841 (Oct. 31, 1975). Advice incidental to the sale of an insurance product thus did not generally qualify as fiduciary investment advice triggering the prohibited transaction rules. Even a person who meets the definition of a fiduciary may engage in prohibited transactions if an exemption applies. Prohibited Transaction Exemption 84-24, AM[ HICAN PVERSIGHT 10 DOL-17-0281-H-000224 Case: 17-10238 Document: 00513977166 Page: 27 Date Filed: 05/02/2017 originally promulgated in 1977, long permitted insurance agents and brokers who otherwise satisfied the regulatory test for fiduciary status "to effect the purchase of the insurance or annuity contracts for the plans or IRAs and receive a commission on the sale." ROA. I 108. D. DOL's Rulemaking In the rule at issue in this proceeding, DOL abandoned its more than 40year-old recognition that sales of fixed annuities do not ordinarily involve fiduciary conduct. DOL dramatically expanded the definition of fiduciary investment advice to sweep in "recommendations" specifically directed to a recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or IRA, even if not provided on a regular basis as part of an ongoing advisory relationship. ROA.324. Under DOL's new rule, recommendations made in a one-time annuity sale render a sales agent a fiduciary. In proposing this expanded definition, DOL recognized that it would sweep in communications that "Congress did not intend to cover as fiduciary 'investment advice' and that parties would not ordinarily view as communications characterized by a relationship of trust or impartiality." ROA. I 033. DOL accordingly proposed to adopt specified "carve-outs," including one for "incidental advice provided in connection with an arm's length sale" of a financial product. Id. Neither the AM~ HICA\J PVERSIGHT 11 DOL-17-0281-H-000225 Case: 17-10238 Document: 00513977166 Page: 28 Date Filed: 05/02/2017 proposed nor final rule, however, included a "carve-out" (or what DOL later described as an "exclusion") for advice incidental to the sale of annuities. DOL also amended the 84-24 exemption in order to "increase the safeguards of the exemption." ROA.549. To rely on the amended 84-24 exemption, fiduciaries must "adhere to certain 'Impartial Conduct Standards,' including acting in the best interest of the plans and IRAs when providing advice." Id. Having thus expanded the definition of "fiduciary" and enhanced the protections of the 84-24 exemption, DOL revoked relief under this exemption for sales of FIAs (but not fixed rate annuities). ROA.553-58. DOL did so based primarily on its view that FIAs are more complicated than other fixed annuities. ROA.555. Finally, for transactions falling outside the 84-24 exemption, DOL adopted a new "Best Interest Contract" (BIC) exemption. ROA.379--466. To use this exemption, advisers and the financial institutions that employ or retain them must acknowledge their fiduciary status, and commit to "Impartial Conduct Standards" that require advice in the customer's "best interest," "reasonable" compensation limits, disclosure of all "material" conflicts of interest, and (for the institution) supervisory obligations. ROA.384. For IRAs and non-ERISA plans, the financial institution must commit to these standards in an enforceable contract. ROA.385. For ERISA plans, the financial institution must acknowledge its fiduciary status and that of its advisers. Id. For both IRAs and ERISA plans, financial institutions can- AM[ HICAN PVERSIGHT 12 DOL-17-0281-H-000226 Case: 17-10238 Document: 00513977166 Page: 29 Date Filed: 05/02/2017 not disclaim liability for compensatory remedies or waive or qualify the customer's rights to bring or participate in a class action suit. ROA.397-98. E. Proceedings Below DOL published the final fiduciary rule and exemptions on April 8, 2016. ROA.322 (fiduciary definition); ROA.378 (BIC exemption); ROA.547 (amended 84-24 exemption). The IALC plaintiffs filed their complaint on June 8, 2016, and their case was consolidated before Chief Judge Barbara Lynn with two other suits raising similar challenges, one brought by the Chamber of Commerce and related plaintiffs (the Chamber plaintiffs), the other brought by the American Council of Life Insurers and related plaintiffs (the ACLI plaintiffs). Following briefing and argument on cross-motions for summary judgment, the district court entered judgment in favor of DOL. ROA.9873-953, 9954. The court concluded that ERISA's definition of a fiduciary-in particular, the second prong , which refers to those who "rende[r] investment advice for a fee"-does not unambiguously foreclose DOL's new interpretation. ROA.9888-95. The court concluded that the common law did not limit the meaning of ERISA's "investment advice" prong because Congress had departed from other common-law requirements elsewhere in the statute. ROA.9889-90. The court also asserted, without explanation, that it was not convinced that DOL's new definition "varies from the common law of trusts." ROA.9890. Finally, the court concluded that DO L's inter- AMERICA!\ PVERSIGHT 13 DOL-17-0281-H-000227 Case: 17-10238 Document: 00513977166 Page: 30 Date Filed: 05/02/2017 pretation of the "investment advice" prong was reasonable, and indeed, that the agency's 41-year-old prior interpretation was "more difficult ... to reconcile with" ERJSA. ROA.9895. The court also rejected the IALC plaintiffs' contention that DOL had acted arbitrarily and capriciously in regulating sales of FIAs as fiduciary transactions and in revoking the 84-24 exemption for such sales. ROA.9916-26. The court accepted DOL 's contention that the agency's description of state regulation, and the fact that a minority of states have not adopted the NAIC's enhanced suitability rules, sufficed to establish the need for federal regulation. ROA.9920-23. The court also accepted DOL's claim that it was reasonable to rely on studies of commission-based sales of mutual funds to demonstrate that sales of FIAs cause actual consumer harms. ROA.9923-24. In so ruling, the court did not address the IALC plaintiffs' showing that the dynamics DOL itself identified as the cause of mutual fund underperformance do not apply to FIAs. SUMMARY OF ARGUMENT I. DOL's new definition of a "fiduciary" is inconsistent with ERJSA's plain meaning. Because it used the common-law term "fiduciary," Congress is presumed to have incorporated the term's well-settled meaning unless ERJSA itself dictates otherwise. This presumption is strong. To overcome it, ERJSA's language, structure, or purpose must be incompatible with, and require a deviation from, the AMERICAN PVERSIGHT 14 DOL-17-0281-H-000228 Case: 17-10238 Document: 00513977166 Page: 31 Date Filed : 05/02/2017 common law. The fact that ERISA deviates from some common-law requirements does not demonstrate that Congress intended to jettison others. Nothing in ERISA's "investment advice" prong shows that Congress departed from the fundamental requirement that a "fiduciary" occupy a position of special trust and confidence. By contrast, when it chose to deviate from the commonlaw rule that a fiduciary be a named trustee, Congress used language incompatible with that rule-defining a fiduciary as one who exercises "any" authority or con- trol over a plan or its assets. The "investment advice" prong, however, does not reach those who render "any investment advice for a fee." Other language in the "investment advice" prong, the remainder of the statute's definition, and ERISA' s legislative history all confirm that Congress limited fiduciary status under this prong to investment advice rendered in a relationship of trust and confidence. Even if the statute was ambiguous-and it is not-DOL's new definition is unreasonable because it is inconsistent with congressional intent in several related but distinct ways. First, DOL recognized that Congress did not intend to burden activities that do not implicate relationships of trust and confidence, and DOL had no basis for concluding that sales of annuities involve such relationships. Treating recommendations incidental to such sales as fiduciary conduct is thus inconsistent with Congress's intent in ERISA itself. Second, in the Investment Advisers Act, Congress imposed fiduciary duties on investment advisers, but not when they pro- AM~ HICA\J PVERSIGHT 15 DOL-17-0281-H-000229 Case: 17-10238 Document: 00513977166 Page: 32 Date Filed: 05/02/2017 vide advice solely incidental to their business as brokers or dealers. This statute reflects Congress's broad understanding that recommendations made in traditional sales relationships should not be treated as fiduciary in nature. Third, Congress prohibited federal regulation of FIAs themselves when they are sold in compliance with the NAIC suitability rules. An interpretation that flouts Congress"s intent in three separate laws is plainly unreasonable, and not entitled to deference. II. Independently, the rules-or, exemption-must at a minimum, the revocation of the 84-24 be set aside as arbitrary and capricious as applied to FIAs. As numerous commenters demonstrated, FIA sales are already subject to extensive consumer protections under state law, including recently enhanced suitability standards. DOL failed to provide a reasonable explanation for why these existing regulations are insufficient to protect consumers. And it failed to support its claim that FIA sales are inflicting excessive losses on consumers notwithstanding existing regulation. DOL identified a perceived "gap" between its best-interest standard and state suitability standards, but it never explained why this theoretical gap can be expected to have any real-world consequences or how it renders suitability standards insufficient to protect consumers. To the contrary, in explaining the purported need for additional regulation, DOL repeatedly-and irrationally-cited the con- cern that agents might recommend unsuitable products. AM[ HICAN PVERSIGHT 16 DOL-17-0281-H-000230 Case: 17-10238 Document: 00513977166 Page: 33 Date Filed: 05/02/2017 The other explanations DOL offered are.equally incoherent. It faulted state regulation for not being uniform, but failed to explain why national uniformity is needed, failed to address the evidence that virtually all FIA sales comply with the NAIC model suitability rules to avoid federal securities regulation, and failed to recognize that an interest in national uniformity does not support the adoption of a national best-interest standard as opposed to a national suitability standard. And DOL relied heavily on purported concerns expressed by securities regulators, while ignoring Congress's conclusion in the Harkin Amendment that those concerns are properly addressed by compliance with the NAIC suitability rules. In any event, regardless of any theoretical concerns, DOL's treatment of FIAs was arbitrary and capricious because it staked the rules in part on the empirical claim that existing regulation has failed to prevent consumer harms, but failed to present any relevant evidence to back up that claim. DOL 's principal evidence of purported consumer harms consisted of studies involving mutual funds, not FIAs. But the factors that DOL identified as leading to underperformance in the mutual fund context-excessive management-do trading, timing errors, underinvestment in fund not apply to FIAs. And none of the insurance-specific evidence DOL cited, much of which concerns other products in other countries that are not subject to suitability standards and/or predates the recent enhancements to the suit- AMER CAf\ PVERSIGHT 17 DOL-17-0281-H-000231 Case: 17-10238 Document: 00513977166 Page: 34 Date Filed: 05/02/2017 ability rules, shows that FIA sales are inflicting consumer losses despite existing regulation. Finally, in revoking the 84-24 exemption for FIAs, DOL failed to explain why the enhanced protections of that exemption-including a best-interest stand- ard-are insufficient, coupled with state suitability rules, to protect consumers. 1 STANDARD OF REVIEW This Court "review[s] de nova a district court's grant of summary judgment, 'applying the same standard as the district court."' Associated Builders & Contractors of Tex., Inc. v. NLRB, 826 F.3d 215,219 (5th Cir. 2016). In "anaylyz[ing] an agency's interpretation of its authorizing statute," this Court uses "the two-step procedure set forth in Chevron, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)," asking first "whether Congress has directly spoken to the precise question at issue." Associated Builders & Contractors, 826 F .3d at 219. If Congress has, the Court "must give effect to the unambiguously expressed intent of Congress." Id. "If it has not, [this Court] defers to the agency's reasonable interpretations of the statute." Id. In determining whether agency action is arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence within the meaning of the Ad- 1 The IALC plaintiffs incorporate by reference the briefs and all arguments therein filed today by the Chamber and ACLI plaintiffs-appellants. AM[ HICAN PVERSIGHT 18 DOL-17-0281-H-000232 Case: 17-10238 Document: 00513977166 Page: 35 Date Filed: 05/02/2017 ministrative Procedure Act (APA), this Court "look[s] to whether the [agency] examined the relevant data," considered "the relevant factors," and _"articulated a 'satisfactory explanation for its action including a rational connection between the facts found and the choice made."' Texas v. EPA, 690 F.3d 670, 676-77 (5th Cir. 2012) (quoting Motor Vehicle Mfrs. Ass 'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This Court "must disregard any post hoc rationalizations of the [agency's] action and evaluate it solely on the basis of the agency's stated rationale at the time of its decision." Luminant Generation Co. v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). "An important corollary is that where [the agency] has relied on multiple rationales ... , and ... at least one of the rationales is deficient, [the Court] will ordinarily vacate the [rule] unless [it is] certain that [the agency] would have adopted it even absent the flawed rationale." Nat'! Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir. 2006). ARGUMENT I. DOL'S NEW DEFINITION OF A "FIDUCIARY" IS INVALID. A. DOL's New Definition Of A "Fiduciary" Is Inconsistent With The Plain And Unambiguous Meaning Of ERISA. Under the common law, a fiduciary is one who occupies a position of trust and confidence with respect to another. Settled rules of statutory interpretation demonstrate that Congress did not jettison this defining characteristic when it used the term "fiduciary" in ERISA. AMERICA\J PVERSIGHT 19 DOL-17-0281-H-000233 Case: 17-10238 1. Document: 00513977166 Page: 36 Date Filed: 05/02/2017 Settled rules of statutory construction demonstrate that ERISA imposes fiduciary status only on persons who render investment advice in a relationship of trust and confidence. When an agency interprets a statute it administers, a reviewing court must address a threshold question. "[A]pplying the ordinary tools of statutory construction, the court must determine 'whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."' City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) (emphasis added) (quoting Chevron, 467 U.S. at 842--43). Here, an "ordinary tool of statutory construction" resolves this case. Because BRISA uses the word "fiduciary," a term with a "settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress mean[t] to incorporate the established meaning." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,322 (1992) (emphases added) (applying principle to another definition in BRISA); see also Varity Corp. v. Howe, 516 U.S. 489, 502 ( 1996) (citing Darden in construing terms "fiduciary" and "administration" in BRISA). This presumption is strong. Where Congress used trust-law "terms long established in the courts of chancery," the Court held that those terms must be given their traditional meaning "unless Congress has unequivocally expressed an intent to the contrary." NLRB v. Amax Coal Co., 453 U.S. 322,330 (1981). AM[ HICAN PVERSIGHT 20 DOL-17-0281-H-000234 Case: 17-10238 Document: 00513977166 Page: 37 Date Filed: 05/02/2017 Nor does the presumption disappear simply because a statute departs from the common law in certain respects. To the contrary, even when Congress departs from some elements of the common law, it is presumed to retain other commonlaw requirements. See Neder v. United States, 527 U.S. 1, 24-25 (1999) (elimination of common-law elements of reliance and damage in fraud statutes did not demonstrate that Congress also eliminated materiality element); Evans v. United States, 504 U.S. 255, 263-64 (1992) (adoption of "much broader" definition of persons who could engage in "extortion" was not a "direction" to expand the common-law definition of the underlying misconduct). These principles are dispositive here. Long before ERISA was enacted, the term "fiduciary" had a settled common-law meaning. It required a special relationship of trust and confidence-"an extraordinary reliance which causes [another] to drop his guard, abandon formalities, and deal with another in intimacy." G. Bogert, Confidential Relations and Unenforcible Express Trusts, 13 Cornell L. Q. 237, 245 (1928) (ROA.4168). Such a confidential relationship, moreover, had to "be pre- existing." Id. Courts have thus long recognized that, absent unusual circumstances, a fiduciary relationship does not arise out of one-time sales of insurance products.2 2 Rishel v. Pac. Mut. Life Ins. Co. of Cal., 78 F.2d 881, 886 (10th Cir. 1935) ("[t]he law does not cast upon insurance companies the affirmative burden cast upon trustees who deal with the property of their cestuis"); Stockett v. Penn Mut. Life Ins. Co., 106 A.2d 741, 7 44 (R.I. 1954) ("Ordinarily an insurance company stands in no fiduciary relationship to a legally competent applicant for an annuity"); Kap-Pel AM[ HICAN PVERSIGHT 21 DOL-17-0281-H-000235 Case: 17-10238 Document: 00513977166 Page: 38 Date Filed: 05/02/2017 Accordingly, courts must presume that a fiduciary relationship under ERISA is one of trust and confidence, unless something in the statute constitutes a "contrary direction," Evans, 504 U.S. at 264, that "dictates" jettisoning this defining characteristic, Darden, 503 U.S. at 322 (emphasis added). In both its rulemaking and its briefs below, the agency focused on the fact that a person can be a fiduciary if "he renders investment advice for a fee." ROA.330, 366, 4973-75, 4978-81. But nothing in this phrase is fundamentally "incompatible with," Neder, 527 U.S. at 25-and thus reflects an "unequivo- cal[] ... intent" to abandon, Amax Coal, 453 U.S. at 330-the common law's re- quirement of trust and confidence. This prong is thus properly construed to treat as a fiduciary only one who "renders investment advice for a fee" in a relationship of trust and confidence. Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49, 58 (Mo. Ct. App. 1966) (in an insurance transaction, "two contracting parties are dealing with each other at arms' length" and no fiduciary relationship is established); Moses v. Mfrs. Life Ins. Co., 298 F. Supp. 321, 323 (D.S.C. 1968) affd, 407 F.2d 1142 (4th Cir. 1969) ("claim of fiduciary relationship ... cannot rest upon the mere relationship of insurer and insured"); Chavez v. Chenoweth, 553 P.2d 703, 710 (N.M. Ct. App. 1976) ("Something more than the fact of the insurance relationship is required before a fiduciary relationship results"); Am. Driver Serv., Inc. v. Truck Ins. Exch., 631 N.W.2d 140, 148 (Neb. Ct. App. 2001) ("the contractual nature of an insurance policy, ... does not give rise to a presumption of a fiduciary relationship," even where the insurer has "superior knowledge or bargaining power"); Pitts v. Jackson Nat'! Life Ins. Co., 574 S.E.2d 502, 508 (S.C. Ct. App. 2002) ("[T]he cases clearly establish the sale of insurance is an arm's length commercial transaction, which does not give rise to a fiduciary relationship"). AM[ HICAN PVERSIGHT 22 DOL-17-0281-H-000236 Case: 17-10238 Document: 00513977166 Page: 39 Date Filed: 05/02/2017 Any conceivable doubt is eliminated by comparing the language of ERISA's "investment advice" prong with the language Congress used elsewhere to depart from other common-law requirements. The common law conferred fiduciary status only on named trustees. Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993). In ERISA, however, Congress adopted a "functional" definition that includes a person who "exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets," 29 U.S.C. ? 1002(21)(A)(i) (emphases added). A functional definition that encompasses those who exercise "any" control or authority over a plan or its assets is inescapably "incompatible with," Neder, 527 3 U.S. at 25, and thus departs from, the common law's named trustee limitation. Critically, however, the "investment advice" prong does not encompass a person who "renders any investment advice for a fee." Indeed, the fact that Congress used the word "any" five separate times in the definition of a fiduciary, but did not use it to modify "renders investment advice," makes clear that this choice was intentional. See Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in an3 Although language encompassing any "control and authority" is inconsistent with the common law's formal trusteeship requirement, that language is not inconsistent with the central aspect of a fiduciary relationship: persons who are afforded broad powers to control a plan or to manage and dispose of its assets are those in whom others repose special trust and confidence. AM~ HICA\J PVERSIGHT 23 DOL-17-0281-H-000237 Case: 17-10238 Document: 00513977166 Page: 40 Date Filed: 05/02/2017 other section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."). This choice thus reflects a conscious decision not to sweep in all persons who render any investment advice, including advice incidental to the one-time sale of insurance products. Further confirmation, if any were needed, can be found in the second half of the "investment advice" prong, which makes a person a fiduciary if he or she "has any authority or responsibility to" render investment advice. 29 U.S.C. ? 1002(21 )(A)(i). An advisor in an ongoing relationship of trust and confidence would possess "authority" or "responsibility" to render investment advice. Because the second half of the "investment advice" prong clearly retains the common-law requirement of a relationship of trust and confidence, there is no basis to conclude that the first half of the same prong "dictates" a departure from that requirement. Finally, the legislative history confirms that Congress retained this defining characteristic of a fiduciary even as it altered other aspects of the common law. Just before explaining how ERISA's fiduciary definition included any person "who exercises any power of control, management or disposition with respect to monies or other property of an employee benefit fund, or who has authority or responsibility to do so," the Senate Report reiterated that a "fiduciary is one who occupies a position of confidence or trust." S. Rep. No. 93-127, at 28-29 (1973) (emphasis added); see also H.R. Rep. No. 93-533, at 11 (1973) (same). Similarly, Representa- AM[ HICAN PVERSIGHT 24 DOL-17-0281-H-000238 Case: 17-10238 Document: 00513977166 Page: 41 Date Filed: 05/02/2017 tive Perkins provided material in the nature of a committee report explaining that "[a] fiduciary is one who occupies a position of confidence o[r] trust," and that the definition dispensed with "any requirement of a written or other formal acknowl- edgement of fiduciary status." 120 Cong. Rec. 3977, 3982-83 (1974) (Rep. Perkins) (emphases added). Dispensing with formal acknowledgement of fiduciary status is far different than dispensing with the central characteristic of a fiduciary relationship. The foregoing explains why, for 41 years, DOL regulations established that a person who provided investment advice was a fiduciary "only if' the person had "discretionary authority or control ... with respect to purchasing or selling securities or other property," or rendered advice "on a regular basis," "pursuant to a mutual agreement, arrangement or understanding" that the advice would be "individualized" and would "serve as a primary basis for investment decisions with respect 4 to plan assets." 40 Fed. Reg. at 50843. These requirements reflect a relationship of trust and confidence-and properly exclude one-time, arm's-length sales. See Am. 4 In light of the foregoing language, the district court's statement that DOL previously interpreted the "investment advice" prong "to include commissions for advice incidental to sales transactions," ROA.9892 (emphasis added), is incorrect. Nor do the cases the district court cited, id., show otherwise. These cases simply applied the regulation and recognized that "each element set forth in the regulation must be satisfied." Ellis v. Rycenga Homes, Inc., 484 F. Supp. 2d 694, 707 (W.D. Mich. 2007) (describing the rulings in Farm King Supply, Inc. v. Edward D. Jones & Co., 884 F.2d 288 (7th Cir. 1989), and Thomas, Head & Greisen Emps. Tr. v. Buster, 24 F.3d 1114 (9th Cir. 1994)). AM~ HICA\J PVERSIGHT 25 DOL-17-0281-H-000239 Case: 17-10238 Document: 00513977166 Page: 42 Date Filed: 05/02/2017 Fed'n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc 'y of US., 841 F.2d 658, 664 (5th Cir. 1988) (holding that, under DOL's prior regulation, "[s]imply urging the purchase of its products d[id] not make an insurance company an ERISA fiduciary with respect to those products"); cf Fin. Planning Ass'n v. SEC, 482 F.3d481, 491 (D.C. Cir. 2007) (agency's consistent inter- pretation over the course of decades reflected statute's "clear" meaning). In short, the "investment advice" prong of ERISA's "fiduciary" definition has a plain and unambiguous meaning that forecloses DOL's new interpretation. 2. The district court's reasons for accepting DOL's new definition are mistaken. In sustaining DOL's novel interpretation, the district court deemed it significant that ERISA does not "expressly define 'investment advice,'" but it does authorize DOL to promulgate regulations "to 'define [the] accounting, technical and trade terms used in [ERISA]'" and to generally "carry out" the statute. ROA.9888. The term "fiduciary " however is not an "accounting " "technical " or "trade" ' ' ' ' term. It is a common-law term with a well-established meaning. And DOL's authority to issue regulations to "carry out" ERISA or to construe its "technical" terms is no basis for concluding that Congress stripped the term "fiduciary" of its central meaning, thereby empowering the agency to regulate arm's-length commercial relations lacking trust and confidence. DOL's interpretive authority only comes into play if the statute is ambiguous; it is not a basis for finding ambiguity. AM[ HICAN PVERSIGHT 26 DOL-17-0281-H-000240 Case: 17-10238 Document: 00513977166 Page: 43 Date Filed : 05/02/2017 The district court also deemed it significant that Congress expressly departed from trust law by defining . "fiduciary" not "in terms of formal trusteeship, but in functional terms of control and authority over the plan ... thus expanding the universe of persons subject to fiduciary duties." ROA.9889 (omission in original) (quoting Mertens, 508 U.S. at 262, 264). But, as noted earlier, a statute's departure from one aspect of the common law does not jettison all aspects of the common law. Just as a statutory expansion of who can engage in extortion was not a "direction" to expand the common-law definition of extortion itself, Evans, 504 U.S. at 263- 64, Congress's decision to depart from the trust-law requirement of formal trusteeship is not a direction to dispense with the central requirement of a relationship of trust and confidence. Moreover, as noted above, the language that compels a departure from the common law in the "control and authority" prong of the fiduciary definition is conspicuously absent from the "investment advice" prong. Relying on snippets of language in the Supreme Court's Varity decision, the district court appeared to assume that Darden's presumption concerning incorporated common-law terms does not apply to ERISA. The district court noted that "trust law does not tell the entire story ... [and] will offer only a starting point" because, when Congress "enacted ERISA, it made a 'determination that the common law of trusts did not offer completely satisfactory protection."' ROA.9889 (alterations and omission in original) (quoting Varity, 516 U.S. at 496-97); see also id. AM~ HICA\J PVERSIGHT 27 DOL-17-0281-H-000241 Case: 17-10238 Document: 00513977166 Page: 44 Date Filed: 05/02/2017 ("the analogy between BRISA fiduciary and common law trustee becomes problematic") (alterations omitted) (quoting Pegram v. Hedrich, 530 U.S. 211, 225 (2000)). In Varity itself, however, the Court cited Darden and, eschewing reliance on dictionaries, "look[ ed] to the common law" to determine the scope of fiduciary activity under BRISA. See 516 U.S. at 502. Indeed, in the very sentence where it noted that the common law provides only a "starting point," the Supreme Court went on to say that a court must consider whether ERISA's text, structure, or purpose "require departing from common-law trust requirements." Id. at 497 ( emphasis added). This is the same inquiry required under the presumption recognized in Darden, Neder, Evans, and Amax Coal. This inquiry into whether BRISA "re- quires," "dictates," or "directs" a departure from the common law-not invoca- tions of BRISA's general "remedial purpose," ROA.9895, 9896 n.69--determines the statute's meaning. See Mertens, 508 U.S. at 262 (stressing that BRISA is "an enormously complex and detailed statute that resolved innumerable disputes between powerful competing interests-not all in favor of potential plaintiffs"). And, as shown above, that inquiry demonstrates that the "investment advice" prong does 5 not jettison the common law's trust and confidence requirement. 5 In the district court, DOL argued that the Darden presumption does not apply where the statute defines the incorporated common-law term. ROA.5640-41. But in Evans, Congress expressly defined the term "extortion," yet the Court interpreted this defined term based on the presumption that Congress incorporated its common-law meaning. See 504 U.S. at 263-66. AM~RICA\J PVERSIGHT 28 DOL-17-0281-H-000242 ? Case: 17-10238 Document: 00513977166 Page: 45 Date Filed: 05/02/2017 The district court also deemed it important that the Investment Advisers Act (IAA) defines "investment adviser" in a way that "specifically excludes 'any broker or dealer whose performance of such services is solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor,"' yet ERISA contains no comparable exclusion. ROA.9890 (quoting 15 U.S.C. ? 80b-2(a)(l l)(c)). Noting that different statutory wording is presumed to be intentional, the district court concluded that Congress's failure to limit ERISA's definition of a "fiduciary" "to that in the IAA" shows that "ERISA does not unambiguously foreclose the DOL's new interpretation." ROA.9891. This reasoning is doubly flawed. First, the '"disparate inclusion or exclusion"' principle the court cited, id., applies to different wording in the same statute. The district court quoted Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 63 (2006), for this proposition. But Burlington Northern quoted Russello, which as noted earlier, refers to the situation in which Congress "includes particular language in one section of a statute but omits it in another section of the same Act." 464 U.S. at 23 ( emphasis added). And in Burlington Northern itself, the Court applied this principle to two sections of Title VII. See 548 U.S. at 61-63. Second, textual differences between ERISA and the IAA preclude the negative inference the district court attempted to draw from its comparison of the two laws. In the IAA, Congress did not define "investment advisers" as "fiduciaries." AM~ HICA\J PVERSIGHT 29 DOL-17-0281-H-000243 Case: 17-10238 Document: 00513977166 Page: 46 Date Filed: 05/02/2017 For that very reason, Congress needed to clarify that those who provide merely incidental advice are excluded from the definition of "investment advisers." That clarification would not have been necessary if Congress had defined investment advisers as "fiduciaries"; the use of that term would have dictated that investment advisers must have relationships of trust and confidence, and merely providing advice incidental to a sale is insufficient. By contrast, Congress used the commonlaw term "fiduciary" in ERISA, thereby incorporating the well-recognized limitations on its common-law meaning: fiduciary-status arises only out of a relationship of trust and confidence. Congress thus had no need to reiterate that limitation in an exclusion to the definition of "investment advice." Finally, the district court asserted that it did not believe that DOL's rule varies from the common law. ROA.9890. DOL itself, however, did not contest the IALC plaintiffs' showing that the common law required a relationship of trust and confidence, nor did DOL attempt to show that the rule includes this requirement. To the contrary, it insisted that the rule was an appropriate departure from the common law. See ROA.4987 ("DOL need not assess common law 'factors' to 'determin[ e]' whether a person who renders investment advice would be a fiduciary under the common law, ... given Congress's express adoption of a standard that applies fiduciary status more broadly than the common law"); ROA.4975-77 AM[ HICAN PVERSIGHT 30 DOL-17-0281-H-000244 Case: 17-10238 Document: 00513977166 Page : 47 Date Filed: 05/02/2017 (DOL "need not have confined its interpretation of fiduciary 'investment advice' to those relationships recognized as fiduciary under the common law"). In short, the district court's decision should be reversed and DOL's new definition of "fiduciary" should be set aside as "contrary to law." 5 U.S.C. ? 706. B. DOL's Interpretation Is Unreasonable. Even if ordinary principles of statutory construction do not foreclose DOL's interpretation-and they do-that interpretation is still invalid. Under Chevron's second step, an agency's interpretation of an ambiguous statute is unreasonable if it is inconsistent with congressional intent. Texas v. United States, 497 F.3d 491, 506, 509 (5th Cir. 2007). DOL's interpretation is unreasonable because it conflicts with Congress's intent in BRISA itself, and in two other statutes. DOL acknowledged that its new definition "could sweep in some relationships that are not appropriately regarded as fiduciary in nature and that the Department does not believe Congress intended to cover as fiduciary relationships." ROA.324 (emphasis added); see also ROA.324-25, 1021, 1033. The reason these relationships were "not appropriately regarded as fiduciary," DOL explained, was because they do not involve trust and confidence. Thus, DOL adopted exclusions AMEHICAN PVERSIGHT 31 DOL-17-0281-H-000245 Case: 17-10238 Document: 00513977166 Page: 48 Date Filed: 05/02/2017 from its new definition to "avoi[ d] burdening activities that do not implicate relationships of trust." ROA.325 (emphasis added). See also ROA.356, 359. 6 DOL had no basis for concluding that one-time annuity sales involve "relationships of trust." It stressed that (1) retirement products are complex, (2) retirement savers are confused by the products and unable to distinguish good advice from bad, (3) older savers are particularly vulnerable, (4) retirement decisions are important, and ( 5) sellers of retirement products have superior expertise and knowledge. See ROA.332, 356-57, 640-41, 645, 743, 745-47,754, 756, 760, 77277. None of these conclusions, however, demonstrates that the relationship between sellers and purchasers of annuities involves special trust and confidence. In fact, special knowledge, or "dominance," "is not a relevant factor in determining the existence of a confidential relation." Bogert, supra, at 247 (ROA.4170); see also id. at 246 (ROA.4169) ("that A is ignorant and inexperienced, and B educated 6 Government counsel's revisionist claim that "most" of the exclusions reflect decisions that the transactions did "not present the same ills that ERISA was enacted to remedy," ROA.4987 n.40, cannot be credited in light of DO L's clear statements that the exclusions were necessary because the transactions did not involve relationships of trust and confidence, see S.D. ex rel. Dickson v. Hood, 391 F .3d 5 81, 601 (5th Cir. 2004) (agency decision "must be upheld on the rationale set forth by the agency itself') (citing, inter alia, SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943)). Nor did DOL exclude certain transactions because they do not involve "recommendations." ROA.9896 n.70. DOL explained that the excluded transactions involve "recommendations" but, because there is no relationship of trust, "neither party expects that recommendations will necessarily be based on the buyer's best interests." ROA.356. AMERICAN PVERSIGHT 32 DOL-17-0281-H-000246 Case: 17-10238 Document: 00513977166 Page: 49 Date Filed: 05/02/2017 and skilled in affairs, does not tend to prove that A and B are in a confidential relation"); Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268, 1280 (Conn. 2000) ("[ s]uperior skill and knowledge alone do not create a fiduciary duty among parties involved in a business transaction"). Instead, "[ s]uch superiority is an effect or consequence of the confidential relation." Bogert, supra, at 247 (ROA.4170) (emphasis added). Thus, DOL acknowledged that Congress did not intend to burden activities that do not involve relationships of trust and confidence, yet DOL swept in onetime purchases of annuities that do not involve such relationships. This inconsistency alone renders DOL's interpretation unreasonable. "Chevron allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not." Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015). The interpretive gerrymander at issue here, moreover, is particularly unreasonable, because DOL chose to regulate a kind of recommendation (one incidental to a one-time sale) in a particular industry (insurance) about a particular product (FIAs) all of which Congress has elsewhere chosen not to regulate. As noted, in the IAA, Congress imposed fiduciary duties on "investment advisers," but explicitly excluded brokers who make recommendations that are "'merely incidental to bro- AM~ HICA\J PVERSIGHT 33 DOL-17-0281-H-000247 Case: 17-10238 Document: 00513977166 Page: 50 Date Filed: 05/02/2017 kerage transactions for which they receive only brokerage commissions."' Fin. Planning Ass'n, 482 F.3d at 485 (quoting S. Rep. No. 76-1775 (1940)). These are the same kinds of recommendations DOL chose to regulate here. Similarly, Congress has refrained for decades from regulating the business of insurance, leaving regulation of this industry to the states. See 15 U.S.C. ? 1011. And when the SEC decided to regulate FIAs-based on many of the same consid- erations that motivated DOL here, see 74 Fed. Reg. 3138 (Jan. 16, 2009)Congress prohibited such regulation for FIAs that are either sold in states that have adopted the latest NAIC model suitability rules or are sold by companies that comply with those rules. See Pub. L. No. 111-203, ? 989J, 124 Stat. 1376, 1949-50 (2010). Thus, even assuming DOL has discretion to attach fiduciary duties to recommendations offered in some, but not all, arm's-length commercial transactions, it is "an unreasonable interpretation of Congress's intent," Texas, 497 F .3d at 509, to attach fiduciary duties to precisely the kind of incidental sales recommendations that Congress has explicitly excluded from fiduciary treatment elsewhere, in connection with the sale of a product that Congress exempted from federal securities regulation precisely because it believes state regulation of that product is sufficient to protect consumers. See id. at 504 (noting that "later enacted statutory provisions AM[ HICAN PVERSIGHT 34 DOL-17-0281-H-000248 Case: 17-10238 Document: 00513977166 Page: 51 Date Filed: 05/02/2017 may be relevant to determine congressional intent" in the Chevron inquiry) (emphasis omitted). II. DOL'S TREATMENT OF FIXED INDEXED ANNUITIES WAS ARBITRARY AND CAPRICIOUS. Even if ERISA's "investment advice" prong lacked a clear meaning and DOL had discretion to regulate incidental sales recommendations, the agency acted arbitrarily and capriciously in subjecting FIA sales to fiduciary regulation, revoking the 84-24 exemption, and moving FIA sales into the BIC exemption. In so doing, DOL claimed that existing regulation has "proven inadequate to prevent adviser conflicts from inflicting excessive losses on investors." ROA.733. But DOL simply identified various factors that theoretically could lead agents to act on their incentives and sell inappropriate products to vulnerable customers. These are the very problems the NAIC suitability rules address, and DOL failed to provide a reasoned explanation for why this existing scheme of regulation is inadequate. DOL also staked its treatment of FIAs on a claimed record of abuse. None of the "evidence" it cited, however , shows that FIAs are actually "inflicting excessive losses on investors." ROA.733. And "[p]rofessing that [a rule] ameliorates a real industry problem but then citing no evidence demonstrating that there is in fact an industry problem is not reasoned decision-making." Nat '! Fuel, 468 F.3d at 843-44. A~LH CAf\ PVERSIGHT 35 DOL-17-0281-H-000249 Case: 17-10238 A. Document: 00513977166 Page: 52 Date Filed: 05/02/2017 DOL Was Required To Consider The Sufficiency Of Existing Regulation. As discussed above, and as numerous commenters showed, the sale of annuities, including FIAs, is governed by a comprehensive set of state insurance laws that protect consumers. See supra pp. 6-9; ROA.8596-98, 8544-42, 9224-26, 8631-33, 7822-24. These regulations are designed to ensure that insurance agents are adequately trained and supervised, that they recommend only annuities that are suitable in light of the custo~mer's circumstances, and that the annuity's terms and risks are reasonably disclosed and explained. See ROA.6030-38 (NAIC Suitability Model Regulation); ROA.4212-25 (NAIC Annuity Disclosure Model Regulation). As the NAIC's comment letter explained, states have "implement[ed] a robust set of consumer protection and education standards for annuity and insurance transactions," they have "extensive enforcement authority," and they "have a strong record of protecting consumers, especially seniors, from inappropriate sales practices or unsuitable products." ROA.8529. Despite this extensive commentary, the district court ruled that DOL was not even required to consider the sufficiency of existing regulation. ROA.9921 & n.139 ("whether existing regulation was sufficient ... is not the standard DOL must meet"). That ruling violates basic principles of administrative law. Under the AP A, agencies must respond to "relevant and significant" comments. Del. Dep 't of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 15 (D.C. Cir. 2015). And "[m]any com- AM[ HICAN PVERSIGHT 36 DOL-17-0281-H-000250 Case: 17-10238 Document: 00513977166 Page: 53 Date Filed: 05/02/2017 menters took the position that existing regulation of these products is sufficient." ROA.558. In addition, the APA required DOL to "consider [each] important aspect of the problem," State Farm, 463 U.S. at 43~ and there is no question that the adequacy of existing regulation is an "important aspect of the problem" when an agency promulgates a rule that radically alters a 40-year-old regulatory scheme that has engendered "decades of industry reliance," Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016); see 10 Ring Precision, Inc. v. Jones, 722 F .3d 711, 724 (5th Cir. 2013) ("an agency must consider and explain its rejection of reasonably obvious alternatives") (alteration omitted). The D.C. Circuit's decision in American Equity illustrates these principles. The court there invalidated the SEC's attempt to regulate FIAs under the securities laws because the agency had failed to address existing state regulation. 613 F.3d at 176-78. Here, the district court disregarded American Equity because the statute at issue there required the SEC to consider the effect of its rules on "efficiency, competition, and capital formation," id. at 177, and "no similar statutory requirement" applies here, ROA.9921. But that is of no moment. It was the APA and its requirement of reasoned decisionmaking, not the statutory factors at issue in American Equity, that obligated the SEC to consider the sufficiency of existing regula- tion. See 613 F.3d at 178-79 (holding that the SEC's analysis was arbitrary and capricious under the AP A). By the same logic, DOL cannot rationally determine AMEHICAN PVERSIGHT 37 DOL-17-0281-H-000251 Case: 17-10238 Document: 00513977166 Page: 54 Date Filed: 05/02/2017 whether federal regulation is needed to address the potential problems caused by conflicts of interest unless it first considers whether existing laws already prevent those problems. 7 B. DOL Failed To Give A Rational Explanation For Finding That Existing Regulation Is Insufficient To Protect FIA Buyers. Citing various sections of DO L's Regulatory Impact Analysis (RIA), the district court concluded that DOL "assessed existing ... insurance regulation" and "found the protections prior to the current rulemaking insufficient to protect investors." ROA.9921 & n.139. At most, however, the record shows that DOL de- scribed existing regulation and asserted that it is insufficient. Under the AP A, that is not enough. DOL was obligated to give a "reasonable explanation" for concluding that existing regulation is insufficient to address the risk of conflicted advice in connection with FIA sales. Associated Builders, 826 F.3d at 219-20. It failed to do so. The district court erred at the outset of its analysis by wrongly asserting that "DOL found ... that existing protections do not 'limit or mitigate potentially harmful adviser conflicts."' ROA.9922 (quoting ROA.747). DOL made no such finding. Nor could it have rationally done so for FIAs. 7 Even if DOL was not required to consider the sufficiency of existing regulation, having claimed to have done so, it cannot now defend the rules on the ground that such an analysis was unnecessary. See Am. Equity, 613 F.3d at 177. AM[ HICAN PVERSIGHT 38 DOL-17-0281-H-000252 Case: 17-10238 Document: 00513977166 Page: 55 Date Filed: 05/02/2017 Contrary to the district court's truncated quotation, the quoted sentence of the RIA states only that "[ e ]xisting protections do not always limit or mitigate potentially harmful adviser conflicts as robustly" as DOL's new rules. ROA.747 (emphases added). Indeed, DOL elsewhere cited with approval a Treasury Department report that "urge[ d] that states adopt the Model Suitability Regulation." ROA.679. That exhortation is necessarily premised on the understanding that the regulation provides meaningful consumer protections. 8 DOL's assertion that existing protections are not "always" as "robust[]" as its new rules, ROA. 74 7, rests on its observation that the suitability standard is "less exacting than the fiduciary duty to act in a customer's best interest," ROA.748. But 9 that truism does not explain why state suitability standards are insufficient. DOL stated that existing suitability rules "leave some room for advisers to subordinate their customer's interest to their own" and "to favor one suitable product over oth- DOL also quoted a draft article's assertion that '"neither market forces nor legal or regulatory rules substantially constrain insurance agents' capacity to advance their own interests by providing biased advice." ROA.792. But the published version of this article omits this statement and says that suitability rules "can help to meaningfully mitigate the risk of incompetent or self-interested advice." D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice, in Research Handbook on the Economics of Insurance Law 60 (Edward Elgar Pub. 2015) (emphasis added) (ROA.4521, 4545). 8 Likewise, DOL's determination that its "new rules would work with and complement state insurance regulations," ROA.9923, says nothing about why addition~ al federal regulation is needed in the first place. 9 AMLHICAN PVERSIGHT 39 DOL-17-0281-H-000253 Case: 17-10238 Document: 00513977166 Page: 56 Date Filed: 05/02/2017 ers that would better serve their customers' interests." ROA.733, 768. But DOL did not explain how likely it is that higher commissions will attach to suitable but less beneficial products, or why it is reasonable to assume that the magnitude of any difference between two suitable products is so significant that the resulting consumer harm warrants federal regulation. Instead, the concrete explanations of consumer harms that DOL provided for commission-based sales of annuities involved sales of unsuitable products. DOL asserted that conflicts of interest "can result in unsuitable sales of annuity products to investors," ROA.805 (emphasis added), and it cited a study of life insurance sales in India that found that agents often recommended "unsuitable products," ROA. 785-86 (emphasis added), a comment highlighting sales to "senior citizens for whom [FIAs] are clearly unsuitable," ROA.555 (emphasis added), and complaints about sales ofFIAs that were "not right for customers," ROA.769. 10 Similarly, in its brief below, DOL stressed how surrender charges can cause a loss of principal if an FIA is cancelled early, then described how a customer who has few liquid assets and needs immediate access to them could be persuaded to buy an illiquid annuity with large surrender charges. ROA.5029. But this is precisely the 10 DOL also claimed that conflicts "may have led consumers to purchase annuities that were not in their best interest." ROA.805 (emphasis added). That, of course, is speculation, and it is belied by DOL's failure to marshal concrete evidence of actual harm. See infra? II.C. AMf HICAN PVERSIGHT 40 DOL-17-0281-H-000254 Case: 17-10238 Document: 00513977166 Page: 57 Date Filed: 05/02/2017 kind of sale that suitability rules are designed to prevent. The risk that sales of unsuitable products will harm consumers does not rationally support the conclusion that suitability regulation is inadequate and that a stricter standard is needed. Nor is that conclusion supported by the assertion that "state standards are not uniform (nor uniformly administered) across all states." ROA.748. DOL never explained why uniformity is necessary to protect FIA buyers. The mere fact that "state insurance laws and their enforcement vary," ROA.9922, does not mean that any state's regulation is inadequate, and DOL did not explain how any variance in state laws or their enforcement could or would harm FIA buyers. Moreover, neither the district court nor DOL offered a meaningful response to the showing made by IALC and other commenters that virtually all FIA sellers follow the NAIC suitability rules to avoid being regulated as securities. ROA.8398, 8537. This omission is telling, because DOL acknowledged that even FIA sellers operating in the minority of states that have not adopted the NAIC suitability rules have incentives under the Harkin Amendment to comply with the rules to avoid regulation under the securities laws, ROA.922, and that "most indexed annuities are not registered with the SEC," ROA.558-which confirms that issuers are 11 choosing to comply with the NAIC standards on a national basis. The district court cited no authority for its assertion that "sellers of FIAs need not satisfy the SEC' s safe harbor" because "the SEC is not currently regulating FIAs." ROA.9925 n.156. DOL itself recognized that indexed annuities that "fall 11 A~f R CAI\ PVERSIGHT 41 DOL-17-0281-H-000255 Case: 17-10238 Document: 00513977166 Page: 58 Date Filed: 05/02/2017 In any event, an asserted interest in national uniformity cannot rationally support the imposition of a best-interest standard. If greater uniformity was needed, DOL could simply have required compliance with the NAIC suitability rules. Like the SEC's asserted interest in clarifying the "uncertain legal status" of FIAs in American Equity, DOL's asserted interest in uniformity cannot "justify the adop- tion of a particular rule" because "[w ]hatever rule [DOL] chose to adopt could equally be said to make" the law more uniform. 613 F.3d at 177-78. Nor do the "concem[s]" expressed by other regulators, ROA.9925, support the conclusion that existing suitability regulations are inadequate to protect FIA buyers. For example, DOL cited an SEC investor bulletin and a FINRA investor alert addressing FIAs. ROA.777, 921. But neither document expressed any "concern" about harmful sales practices, cited any evidence of such practices, or suggested that suitability regulations are insufficient to prevent such practices. DOL also cited a comment by the North American Securities Administrators Association submitted as part of an SEC rulemaking in 2008. ROA.555. But, as noted above, the abuse that comment alleged concerned sales to "senior citizens for whom [FIAs] are clearly unsuitable," id. (emphasis added)-a concern that was directly addressed by the later-adopted suitability rules. outside the Harkin Amendment"-and thus do not come within its safe harbor for "exempt securities"-generally are "registered with the SEC." ROA.679 n.110. AMERICAN PVERSIGHT 42 DOL-17-0281-H-000256 Case: 17-10238 Document: 00513977166 Page: 59 Date Filed: 05/02/2017 Indeed, it is remarkable that DOL placed so much weight on "concerns" raised by securities regulators, while all but ignoring Congress's resolution of those very concerns in the Harkin Amendment. Contrary to the district court's view, plaintiffs did not "argue that the Harkin Amendment ... prevents the DOL from regulating FIAs." ROA.9925 n.156. Rather, plaintiffs' point was that DOL never explained why it rejected Congress's recent determination in a closely related context-indeed, in response to the same concerns by the same regulators that DOL relied upon as a basis for regulating FIAs-that additional regulation of FIAs is unnecessary if they are sold in compliance with the NAIC suitability rules. That point stands unrebutted. Particularly given DOL's e~tensive reliance on concerns expressed by securities regulators, it had an obligation to give meaningful consideration and weight to Congress's determination, embodied in recent legislation, that state suitability rules are sufficient to address those concerns. Equally misplaced is the district court's reliance on the fact that DOL "considered comments" asserting that consumers "lac[k] sufficient protections" and "need greater protections when investing in indexed annuities precisely because such products are not regulated as securities." ROA.9922-23. Unadorned assertions from unidentified sources cannot satisfy DOL's obligation to provide a rational explanation for its action. The mere fact that a commenter expressed a view AM~ HICA\J PVERSIGHT 43 DOL-17-0281-H-000257 Case: 17-10238 Document: 00513977166 Page: 60 Date Filed: 05/02/2017 does not make that view a reasoned basis for agency action; otherwise an agency could support any result simply by pointing to a commenter who advocated it. In sum, DOL failed to grapple seriously with the adequacy of state suitability regulations or to give a reasoned explanation for finding that these existingand recently enhanced-regulations C. are insufficient to protect FIA buyers. DOL Failed To Support Its Claim That FIA Sales Are Inflicting Consumer Harms Despite Existing Regulation. Even if DOL had articulated a coherent theoretical basis for believing that existing regulation is insufficient, the rules' treatment of FIAs would still be invalid because DOL also premised the rules on its claim that, "notwithstanding existing protections, there is convincing evidence that advice conflicts are inflicting losses on IRA investors." ROA.747-48 (emphasis added); see also ROA.733. DOL failed, however, to identify relevant evidence that sales of FIAs are inflicting losses on consumers despite existing regulation. Because DOL's evidence-based claim about consumer harms is a central pillar of the rules, and because the "claimed record evidence does not support" DOL's claim that FIAs are harming consumers, the rules are invalid as applied to FIAs, regardless of any "theoretical threat" posed by conflicts of interest. Nat'! Fuel, 468 F.3d at 839 ("where [an agency] has relied on multiple rationales ... , and we conclude that at least one of the rationales is deficient, we will ordinarily vacate the order unless we are certain that [the agency] would have adopted it even absent the flawed rationale."). AM[ HICAN PVERSIGHT 44 DOL-17-0281-H-000258 Case: 17-10238 Document: 00513977166 Page: 59 Date Filed: 05/02/2017 Indeed, it is remarkable that DOL placed so much weight on "concerns" raised by securities regulators, while all but ignoring Congress's resolution of those very concerns in the Harkin Amendment. Contrary to the district court's view, plaintiffs did not "argue that the Harkin Amendment ... prevents the DOL from regulating FIAs." ROA.9925 n.156. Rather, plaintiffs' point was that DOL never explained why it rejected Congress's recent determination in a closely related context-indeed, in response to the same concerns by the same regulators that DOL relied upon as a basis for regulating FIAs-that additional regulation of FIAs is unnecessary if they are sold in compliance with the NAIC suitability rules. That point stands unrebutted. Particularly given DOL's e~tensive reliance on concerns expressed by securities regulators, it had an obligation to give meaningful consideration and weight to Congress's determination, embodied in recent legislation, that state suitability rules are sufficient to address those concerns. Equally misplaced is the district court's reliance on the fact that DOL "considered comments" asserting that consumers "lac[k] sufficient protections" and "need greater protections when investing in indexed annuities precisely because such products are not regulated as securities." ROA.9922-23. Unadorned assertions from unidentified sources cannot satisfy DOL's obligation to provide a rational explanation for its action. The mere fact that a commenter expressed a view AM[ HICAN PVERSIGHT 43 DOL-17-0281-H-000259 Case: 17-10238 Document: 00513977166 Page: 60 Date Filed: 05/02/2017 does not make that view a reasoned basis for agency action; otherwise an agency could support any result simply by pointing to a commenter who advocated it. In sum, DOL failed to grapple seriously with the adequacy of state suitability regulations or to give a reasoned explanation for finding that these existingand recently enhanced-regulations C. are insufficient to protect FIA buyers. DOL Failed To Support Its Claim That FIA Sales Are Inflicting Consumer Harms Despite Existing Regulation. Even if DOL had articulated a coherent theoretical basis for believing that existing regulation is insufficient, the rules' treatment of FIAs would still be invalid because DOL also premised the rules on its claim that, "notwithstanding existing protections, there is convincing evidence that advice conflicts are inflicting losses on IRA investors." ROA.747-48 (emphasis added); see also ROA.733. DOL failed, however, to identify relevant evidence that sales of FIAs are inflicting losses on consumers despite existing regulation. Because DOL's evidence-based claim about consumer harms is a central pillar of the rules, and because the "claimed record evidence does not support" DOL's claim that FIAs are harming consumers, the rules are invalid as applied to FIAs, regardless of any "theoretical threat" posed by conflicts of interest. Nat'/ Fuel, 468 F.3d at 839 ("where [an agency] has relied on multiple rationales ... , and we conclude that at least one of the rationales is deficient, we will ordinarily vacate the order unless we are certain that [the agency] would have adopted it even absent the flawed rationale."). AM~ HICA\J PVERSIGHT 44 DOL-17-0281-H-000260 Case: 17-10238 Document: 00513977166 Page: 61 Date Filed: 05/02/2017 DOL claimed that a "wide body of economic evidence supports [its] finding that the impact of . . . conflicts of interest on retirement investment outcomes is large and negative." ROA.326; see also ROA.555 (asserting that "conflicts of interest in the marketplace for retail investments result in billions of dollars of underperformance to investors saving for retirement"); ROA.641, 747-48, 765-67, 786-92, 795-803. But this claim-the harms-is centerpiece of DOL's purported showing of based on analyses of mutual funds, not FIAs. ROA.795-803. Even set- ting aside the defects in its analysis of mutual funds, DOL's extrapolation from mutual funds to FIAs is irrational because the reasons why conflicted advice purportedly harms mutual fund investors do not apply to FIAs. DOL claimed that conflicted advice "inflict[ s] . . . losses . . . by prompting IRA investors to trade more frequently, which will increase transaction costs and multiply opportunities for chasing returns and committing timing errors." ROA.795; see also ROA.790. But FIAs cannot cause such losses because they are "buy and hold" products that do not involve trading. Similarly, DOL asserted that conflicts cause underperformance for actively managed mutual funds, ROA.788, 812, and tied this underperformance to "a mutual fund company[' s] ... tradeoff between incentivizing its brokers ... and investing sufficient resources in fund management," ROA.810; see ROA.788 & n.350. But FIAs are not actively managed (interest is tied to an index) and thus this concern does not apply to FIAs either. AM~ HICA\J PVERSIGHT 45 DOL-17-0281-H-000261 Case: 17-10238 Document: 00513977166 Page: 62 Date Filed: 05/02/2017 These differences completely belie DOL's claim that "insurance products also are likely to be subject to underperformance due to conflicts." ROA.795. Indeed, the only evidence DOL cited for this critical proposition was an article that does not even discuss FIAs. See Richard Evans & Rudiger Fahlenbrach, Institu- tional Investors and Mutual Fund Governance: Evidence from Retail-Institutional Fund Twins, The Review of Financial Studies 25, no. 12 (2012). In nevertheless concluding that DOL properly relied on mutual fund studies, the district court strung together a series of citations from the RIA to support the theory that, because both FIAs and mutual funds are sold through conflict-creating commissions, and because both are subject to suitability and disclosure requirements, evidence that mutual funds cause injury justifies the same conclusion for FIAs. ROA.9924. But this theory cannot be found on the pages the court cited. DOL itself explained at length why it believed commission-based sales of mutual funds led to underperformance-and, as just shown, none of these factors apply to FIAs. DOL also ex- plicitly said that the basis for extrapolating from mutual fund studies was the Evans & Fahlenbrach study-which, as just noted, says nothing whatsoever about FIAs. "It is elementary that if an agency's decision is to be sustained in the courts on any rationale under which the agency's factual or legal determinations are entitled to deference, it must be upheld on the rationale set forth by the agency itself," Hood, 391 F.3d at 601-not AM[ HICAN PVERSIGHT theories advanced by agency counsel or a reviewing court. 46 DOL-17-0281-H-000262 Case: 17-10238 Document: 00513977166 Page: 63 Date Filed: 05/02/2017 Nor is there any merit to the district court's contention that "DOL reasonr,bly extrapolated from mutual fund studies" because "annuity data is not readily and widely available." ROA.9924. DOL staked its regulation of annuities in part on the claim that "adviser conflicts [are] inflicting excessive losses on investors," ROA.733, and argued below that it had "collected, examined, and relied on a wide body of evidence, both empirical and qualitative, to conclude that conflicted advice about mutual funds, annuities, and other retirement investments inflicts significant harm on retirement investors," ROA.5001. It cannot now defend the rules by asserting there is insufficient data to determine whether adviser conflicts are inflicting excessive losses on annuity buyers. Because the record does not support that claim, the rules must be set aside as arbitrary and capricious. See Nat'! Fuel, 468 F.3d at 844 (where agency relied in part on claimed evidence of abuse, "explaining away the absence of such evidence merely underscores the need to vacate"). The cases the district court cited are inapposite. ROA.9924-25 ( citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 219 (2009); ConocoPhillips Co. v. EPA, 612 F.3d 822, 841-42 (5th Cir. 2010)). It is one thing to say that an agency must make do with available information when performing a statutorily mandated analysis (like the environmental impact analysis in ConocoPhillips) or that an agency need not marshal empirical evidence that is unobtainable to support propositions that are obvious (like the harmful effect of expletives on minors in Fox). It AMERICAN PVERSIGHT 47 DOL-17-0281-H-000263 Case: 17-10238 Document: 00513977166 Page: 64 Date Filed: 05/02/2017 is another thing entirely to say that an agency may stake the asserted need for additional regulation on the claim that real-world harms exist, rely on evidence that does not support that claim, and then defend the rules on the ground that the evidence needed to support the claim is unobtainable. "Professing that a [rule] ameliorates a real industry problem but then citing no evidence demonstrating that there is in fact an industry problem is not reasoned decisionmaking." Nat'l Fuel, 468 F.3d at 843-44. Moreover, this is not a situation where relevant evidence is "impossible" to obtain. ConocoPhillips, 612 F.3d at 841. As the government acknowledged below, ROA.5025 n.83, commenters produced data showing the low rate of consumer complaints about fixed annuity products, ROA.8541-42, 8631, 9242, 9224. Moreover, if FIA sales were causing significant consumer harms, it should be readily apparent. In fact, DOL noted that "state-based market condition examinations ... revealed unsupervised sales of annuities that were not appropriate for the consumer's profile," which led to adoption of the new NAIC rules. ROA.678. If evidence of harmful FIA sales was possible in the past, DOL should have been able to demonstrate that such sales remain harmful despite the NAIC rules. Yet it failed to do so. Instead, apart from its misplaced reliance on mutual fund studies, DOL relied on a grab-bag of irrelevant and outdated studies. For example, DOL cited stud- AM[ HICAN PVERSIGHT 48 DOL-17-0281-H-000264 Case: 17-10238 Document: 00513977166 Page: 65 Date Filed: 05/02/2017 ies regarding contingent commissions in "the commercial property-casualty insurance market." ROA.759. But "no property/casualty insurance products are subject to suitability rules." D. Schwarcz & P. Siegelman, Insurance Agents in the 21st Century: The Problem of Biased Advice 20 (forthcoming) (ROA.6087). Similarly, DOL cited studies of the annuity and life insurance markets in Chile, Germany, and India. ROA.784-86. But studies in other countries "are not necessarily applicable to the U.S. market, where competitive and regulatory structures may be quite different." Schwarcz & Siegelman, supra, at 10 (ROA.6077). For example, the study of life insurance sales in India found that agents often recommended "un- suitable products," ROA.785-86 (emphasis added). Because annuity sales in the U.S. are subject to robust suitability rules, studies of products not subject to such rules do not support DOL's claim of harms and "abuse." See Desoto Gen. Hosp. v. Heckler, 766 F.2d 182, 185-86 (5th Cir. 1985) (rule arbitrary and capricious because agency relied on study that did not support agency's conclusions). Indeed, as noted, one of the very studies on which DOL itself relied acknowledged that "suitability rules can help to _meaningfully mitigate the risk of incompetent and selfinterested advice," Schwarcz & Siegelman, supra, at 19 (ROA.6086). 12 12 Although this article suggests that "the problem of biased advice by insurance agents is likely to be significant," ROA.6073, it focuses on other insurance products, contains no evidence of FIA abuses, and, as noted, recognizes the general efficacy of suitability rules. AM~ HICA\J PVERSIGHT 49 DOL-17-0281-H-000265 Case: 17-10238 Document: 00513977166 Page: 66 Date Filed: 05/02/2017 DOL also cited "surveys conducted among life insurance professionals in 1990, 1995 and 2003," ROA.784-85, and a study by the Financial Planning Coalition, in which approximately 42% of respondents reported "financial exploitation that involved equity-indexed or variable annuities," ROA.769. The surveys, however, clearly predate the significant steps the states have taken in the wake of the NAIC's 2010 enhancements to its suitability rules. And this same problem infects the Financial Planning Coalition's 2012 study: planners were asked if they knew an older person who had been "subject[ ed]" to various sales practice issueswithout any time limit-and 74% identified "unsuitable products" from a list of practices. 13 It cannot be that evidence of harms that occurred before the new suitability rules went into effect is valid evidence that the new rules are inadequate. Finally, DOL asserted that various "media reports and lawsuits ... demonstrate the clear need for regulatory action in the annuity market." ROA.769. But none of the cited media reports contains any evidence that existing suitability regulations have failed to prevent harms to FIA buyers. And allegations in class action lawsuits-not court judgments-are not evidence of anything. In short, none of DOL's "evidence" supports its claim that FIA sales are inflicting losses on consumers notwithstanding existing regulation. Indeed, that DOL 13 See Certified Fin. Planner Bd. of Standards, APCO Insight, Senior Financial Exploitation Study (Aug. 2012), http://www.cfp.net/docs/news-events---supportingdocuments/senior-americans-financial-exploitation-survey.pdf?sfvrsn=O. AM[ HICAN PVERSIGHT 50 DOL-17-0281-H-000266 Case: 17-10238 Document: 00513977166 Page: 67 Date Filed: 05/02/2017 felt compelled to rely on studies so out-of-date and far afield, and on assertions so irrelevant or unsubstantiated, underscores the lack of evidence of real-world harms from commission-based FIA sales. Because DOL "staked its rationale in part on a record of abuse, but that record is non-existent," Nat '! Fuel, 468 F.3d at 843, DOL's treatment ofFIAs was arbitrary and capricious. D. At The Very Least, The Revocation Of The 84-24 Exemption For FIAs Should Be Set Aside. For the reasons set forth in the foregoing sections, all of the rules should be set aside as applied to FIA.s. At a minimum, however, the revocation of the 84-24 exemption for FIAs should be set aside. The basis for subjecting FIA.s to the BIC exemption is even weaker than the basis for subjecting them to fiduciary regulation in the first place, because the BIC exemption's requirements are layered on top of not only existing suitability regulations, but also the newly enhanced protections of the 84-24 exemption, under which annuity sales are subject to DOL's best-interest standard as well as state suitability standards. Supra pp. 6-9, 12. Having relied, in part, on the gap between a suitability and best-interest test to justify new federal regulation of FIA.s, DOL was obligated to explain why the new best-interest standard in the 84-24 exemption is also inadequate to protect FIA buyers from conflicts of interest. DOL's bare assertion that the BIC exemption's conditions "are necessary," ROA.559, is nothing more than the agency's unexplained "ipse dixit," Bus. Roundtable v. SEC, 647 A~LH CAf\ PVERSIGHT 51 DOL-17-0281-H-000267 Case: 17-10238 Document: 00513977166 Page: 68 Date Filed: 05/02/2017 F.3d 1144, 1155 (D.C. Cir. 2011). Accordingly, to the extent FIAs are to remain subject to fiduciary regulation at all, they should be restored to the 84-24 exemption. CONCLUSION For all of the foregoing reasons, the rules should be set aside in their entirety because they rest on an interpretation of ERJSA that is inconsistent with the statute's plain meaning , properly construed, and/or is unreasonable. Alternatively, the rules' application to FIAs, or at a minimum, the revocation of exemption 84-24 for FIAs, should be set aside as arbitrary and capricious. May 2, 2017 Respectfully submitted, /s/ Joseph R. Guerra R. GUERRA Counsel of Record PETER D. KEISLER ERIC D. McARTHUR JENNIFER J. CLARK SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736-8000 JOSEPH Counsel for Indexed Annuity Leadership Council; Life Insurance Company of the Southwest ,? American Equity Investment Life Insurance Company; Midland National Life Insurance Company; North American Company for Life and Health Insurance AMf HICAN PVERSIGHT 52 DOL-17-0281-H-000268 Case: 17-10238 Document: 00513977166 Page: 69 Date Filed: 05/02/2017 CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of May, 2017, an electronic copy of the foregoing brief was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and that service will be accomplished by the appellate CM/ECF system. Isl Joseph R. Guerra JOSEPH R. GUERRA AM[ HICAN PVERSIGHT 53 DOL-17-0281-H-000269 Case: 17-10238 Document: 00513977166 Page: 70 Date Filed: 05/02/2017 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE?REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS This document complies with the type-volume limitation of FED.R. APP. P. 32(a)(7)(B) because, excluding the parts of the document exempted by FED.R. APP. P. 32(?) and Fifth Circuit Rule 32.2, this document contains 12,241 words. This document complies with the typeface requirements of FED. R. APP.P. 32(a)(5) and the type-style requirements of FED.R. APP. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14 point Times New Roman font. /s/ Joseph R. Guerra Dated: May 2, 2017 JOSEPH R. GUERRA AM[ HICAN PVERSIGHT 54 DOL-17-0281-H-000270 From: To: Subject: Date: Hauser.Timothy@dol.gov Swirsky, Stephanie - ASP RE: Delay II_PTEs_8_8_17_ncg+tim _lpm_red (3) Wednesday,August 09, 2017 12:46:14 PM Thanks! From: Swirsky. Stephanie - ASP Sent: 8/9/2017 11:30 AM To: Canary. Joe - EBSA Cc:Turner. Jeffrey - ESSA;Khawar Ali - EBSA;Meh rens Nathan P - ASP; Peters Pamela - ASP; ; Cosby. Chris - EBS.,'\;Scott William Piacentini. Joseph???EBSi\;Hall Lyssa - EBSA;Lloyd,Karen???EBS1\ SOL; Craig. Jcimes- SOL; Hauser Timothy - EBSA; Hansen. Megan D - SOL Subject: RE: Delay II_PTEs_8_8_17_ncg+tim _lpm_red (3) AM~ HICA\J PVERSIGHT DOL-17-0281-H-000271 Batts, Gwendolyn - EBSA Subject: Location: Meeting with Morningstar, Inc Secretary's Office Start: End: Show Time As: Tue 9/5/2017 1:30 PM Tue 9/5/2017 2:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Acosta , Alexander - OSEC Time: 1:30pm - 2:00pm Location: Secretary's Office Subject: Meeting with Morningstar , Inc Topic/Issue: Fiduciary Attire: Business . Staff: Nick/others from EBSA TBD Notes/Background: Attendees: o Kunal Kapoor, Chief Executive Officer o Anna Nordseth, Relationship Manager, Global Business Development o Aron Szapiro, Director of Policy Research POC: Aron Szapiro cell, (b) (6) Advance Staff: DoL Photographer: 835698 .pd f AMLHICA\J PVERSIGHT 1 DOL-17-0281-H-000272 Barrett, Gloria o EXECSEC From: Sent: To: Cc: Subject: Aron Szapiro (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Monday, July 17, 2017 9:49 AM palmer.wayne@dol.gov; Executive Secretariat Trooper Sanders; .A.nnaNordseth Meeting On Fiduciary Rule RFI Dear Mr. Parmer: I am vvriting on behalf of Morningstar, Inc to request a meeting with the Secretary and our CEO, Kunal Kapoor, to discuss the recen t RFIon the liFiducfary Rule" and ways the department can help advance innovations supporting Americans' retirement security. Morningstar, Inc. is a leading provider of independe nt investment research, and our mission is to create products that help investors reach their financial goals. Because we offer an extensive line of products for individual investors, professional financial advisors, and institutional clients, we have a broad view on the rule and its possibfe effect on the financial advice retirernent investors will receive. in particu lar, we believe based on our three decades analyzing mutual funds and explaining thern to ordinary investors, we have expertlse on how to define new clean share classes if the department were to use them as part of a new streaml ined exempt ion. Like the department, we also believe there is great promise for clean shares, but we caution that defi ning these share dasses too broadly could undermine their effectiveness at heiping investors attain access to unconflict ed advice. Additionally , as the Department mention ed in the RFI,the regulated commu nity has been developing new technology to help financial institutions satisfy the supervisory requi rements of the rule. We believe technology and innovation can help with an extremely important part of the rule: ensuring that rollovers are in investors' best interests. However, some additional actions by the Department could better unleash financial technology innovators to improve outcomes for ? investors and reduce the costs of cornpliance with the rule. We look forward to a meeting vvith DOL leadership. Best, ,\ron Szapiro Sz(jpiro Director of PolicyResearch fv'i(Jrningst ar) Inc. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) AMLHICA\J PVERSIGHT DOL-17-0281-H-000273 From: To: Subject: Date: (b) (6)(b) (6)(b) (6) FW: COi hearing - Judge Hammers DOL on Fiduciary Rule"s BICE Tuesday, August 01, 2017 6:21:10 PM From: Bloom Teresa ???EBSA Sent: 8/1/2017 6:06 PM To: WM=~.w.w-'-"'""J..J.Ct--.b~_,, Khawar Ali - EBSA;Canary, Joe - ESSA;Hall. Lyssa- EBSA;Scott William :...S.QL ; Hansen. MeganD - SOL;zzEBSA-f\JO-OPR-FIDl JCIARY Subject: Fw: COi hearing -Judge Hammers DOLon Fiduciary Rule's BICE AMERICAN PVERSIGHT DOL-17-0281-H-000274 From: To: Cc: Subject: Hauser.Timothy - EBSA Cosby, Chris? EBSA; Franks, Kathleen ? ASP; Piacentini.Joseph? EBSA;Khawar, Ali o ESSA;Turner, Amy? EBSA; James - EBSA;Walters. Janet - EBSA;Capolongo.Mabel - EJ;?B; Campagna, Trupo. Michael - OPA; Butl!sQ!?.r. Rose, Michelle ? OSEC;Barron, Williamo EBSA; Bradford, Jessicao EBSA;Scott William - SOL; Lou ? E..!a$A; Bracken.Jean - EBSA;Bach, Suzanne? EBSA:Lloyd. Karen - ESSA;McCue,Chelseao EBSA; Schumacher. Elizallfilh o ESSA; Rivers.Amber ? ESSA;Connor. Mark o EBSA; Roskey.Joanne - SOL; Waits. Jennifer B - OCIA; Marchand.Becki . EBSA Turner. Jeffrey - EBSA;Canary.Joe - EBSA; Sascus.Carrol - ASP; Decressin,Ania - EBSA; Linares. Elva E - EBSA; Craig James. SOL;Borzi Phyllis - EBSA;NormanJane. ESSA; Mares.Judith- EBSA Reg. Update Your meeting was found to be out of date and has been automaticall y updated. Sent by Microsoft Exchange Server AM~ HICA\J PVERSIGHT DOL-17-0281-H-000275 Batts, Gwendolyn - EBSA Subject: Location: FW: COI Hypos & Questions Dial-in below Start: End: Show Time As: Thu 7/27/2017 2:30 PM Thu 7/27/2017 4:00 PM Tentative Recurrence: (none) Meeting Status: Not yet responded Organizer: Hansen, Megan D - SOL -----Original Appointment----From: Hansen,Megan D - SOL Sent: Wednesday,July 26, 2017 3:49 PM To: Hansen,Megan D - SOL; Shih, Michael(CIV); Khawar, Ali - ESSA;Tso, Thomas - SOL Subject: COI Hypos & Questions When: Thursday, July 27, 2017 2:30 PM-4:00 PM (UTC-05:00) EasternTime (US & Canada). Where: Dial-in below Dial-in information: (b) (6) I've blocked out 90 minutes for this - we do not need to take the full time obviously, just so long as it's being useful. A\111HICAN PVERSIGHT 1 DOL-17-0281-H-000276 To: Cc: Gea!e, Nicholas C. - SOL Hauser, Timothy - EBSA Subject: FW: Meeting On Fiduciary Rule RFI Date: Thursday, July 20, 2017 5:51:50 PM (b) (5) (b) (5) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Anna Nordseth (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Thursday, July 2 I , I To: Hauser, Timothy - EBSA;Piacentini, Joseph - EBSA;Canary, Joe - EBSA;Zimmerman, Elaine - EBSA Cc: Aron Szapiro Subject: RE: Meeting On Fiduciary Rule RFI :.i o o :,; Tim, Joe, Joe, and Elaine, I wanted to follow up on Aron's note below and see if you all could help. As Aron explained, our CEO would like to set up a meet ing with Mr . Palmer to discuss the recent RFI on the Fiduciary Rule . I know that we continued to engage on our thoughts around here while I was out on maternity leave, and given Morningstar's commitment to the individual investor, I strongly believe that our insights could help improve investing outcomes while reducing the costs of compl iance . Could you help us route this internally, help or guidance you can offer . or point me in the right direction? I appreciate any Thanks in advance, Anna (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) From: Aron Szapiro Sent: Monday, July 17, 2017 9:49 AM (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Anna Nordseth (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Subject: Meeting On Fiduciary Rule RFI Dear Mr . Palmer: I am writing on behalf of Morning star, Inc to request a meeting with the Secretary and our CEO, Kunal Kapoor , to discuss the recent RFI on the " Fiduciary Rule" and ways the department can help advance innovations supporting Americans' retirement security. Morningstar , Inc. is a leading provider of independent investment research, and our mission is to create product s that help investor s reach their financial goals. Because we offer an exten sive line of product s for individual investors , profes sional financial advisor s, and institutional clients, we have a broad view on the rule and it s possible effect on the finan cial advice retirement investors will receive. AMI HICAN PVERSIGHT DOL-17-0281-H-000277 In particular , we believe based on our three decades analyzing mutual funds and explaining them to ordinary investor s, we have expertise on how to define new clean share classes if the department were to use them as part of a new streamlined exemption. Like the department, we also believe there is great promise for clean shares, but we caution that defining these share classes too broadly could undermine their effectiveness at helping investors attain access to unconflicted advice. Additionally, as the Department mentioned in the RFI,the regulated community has been developing new technology to help finan cial institutions satisfy the supervisory requirements of the rule . We believe technology and innovation can help with an extremely important part of the rule: ensuring that rollover s are in investor s' best interests . However, some additional actions by the Department could better unleash financial technology innovators to improve outcomes for investors and reduce the costs of compliance with the rule. We look forward to a meeting with DOL leadership . Best, Aron Szapiro Aron Szapiro Director of Policy Research Morningstar, Inc. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) AfvilHICA\J PVERSIGHT DOL-17-0281-H-000278 From: To: Subject: Date: Hauser, Timotlw - ESSA Anna Nordseth Read: RE: Meeting On Fiduciary Rule RFI Friday, August 04, 2017 5:22:30 AM Your message To: Hauser, Timothy - EBSA; Piacentini, Joseph - EBSA; Canary, Joe - EBSA; Zimmerman, Elaine - EBSA Cc: Aron Szapiro Subject: RE: Meeting On Fiduciary Rule RF! Sent: 7/20/2017 3:49 PM was read on 7/20/2017 5:06 PM. AMERICAN PVERSIGHT DOL-17-0281-H-000279 From: To: Subject: Date: Hauser.Timothy@dol.gov Hall, Lyssa- EBSA; Lloyd, Karen - EBSA;Canary,Joe - EBSA; Piacentini, Joseph - EBSA;Khawar, Ali - EBSA FW: COi ResponseMarkup Saturday, July 15, 2017 12:13:59 PM From: Tso. Thomas ? SOI Sent: 7/15/2017 10:54 AM To: Harthill Susan - SOL; Hansen. Megan D - SOL;Scott William - SOL Cc: Craig, James - SOL; Khawar AH - EBS.I\;Geale, Nicholas C. - SOL;Sieger. Edward - SOL; Hauser. Timothy - EBSA Subject: Re: COi Response Markup AM~ HICA\J PVERSIGHT DOL-17-0281-H-000280 From: To: Cc: Subject: Hauser, Timothy - ESSA Canary, Joe - ESSA;Hall, Lyssa- EBSA;Piacentini, Joseph - ESSA;Scott, William - SOL; Khawar, Ali - ESSA; Hll.Qsen..11f 3/4 fil.n LSOl,; BLoorn,Jrn:esa_EBSA Cosby, Chris - ESSA;Beckmann,Allan - ESSA;BuvniskL Brian - EBSA;Sutlkofor. James - ESSA;Decressin,Ania ESSA;Um, Younqok ?? ESSA;Halliday, Susan - EBSA;Grillo-?Chope,Luisa - SOL; Lloyd, Karen - EBSA;Zarenko, - ESSA;Beadle, NicholasD - SOL; Craia, James - SOL; KristenJBSA; Ci;lrnQaollil.,_LQu - ESSA;1/1/ong,__f[p.d Hopkins, Elizabeth - SOL; Gatesman,Valerie - EBSA;Turner, Jeffrey - ESSA;Henderson, Richard L - ESSA;Kress, Marjorie - ESSA;Goodman, Elizabeth- EBSA;Mares, Judith - ESSA Biweekly Meeting on Conflict of Interest Reg ------------------------------------- ............ . , ...o. c.,,c, ..... , ..o. . ,d.,0, .,, o .,.----- Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000281 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa- EBSA;Piacentini,Joseph - EBSA;Scott, William - SOL; Khawar, Ali ? EBSA; Hansen Meoan D - SOL; Bloom, Teresa - E~SA Cosbv,Chris - EBSA;Beckmann,Alian - EBSA;Buyniski, Brian - EBSA;Butikofer, James - EBSA;Decressin, Anja ? EBSA;Um, Younook - EBSA;Halliday, Susan ? EBSA;Grillo-Chope,Luisa ? SOL; Lloyd, Karen ?? EBSA;Zarenko, )iristen - EBSA; Carnlli!9l@.Jn_Ll ...:.Ii2.;i8;)Nong, Fred - !;BSA;fleadle Nicholas D - SOL; Craio, James - SOL; Hopkins, Elizabeth - SOL; Gatesman,Valerie - EBSA;Turner, Jeffrey - EBSA;Henderson, Richard L - EBSA;Kress, Mariorie - EBSA;Goodman, Elizabeth- EBSA;Mares, Judith ? EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000282 From: To: Cc: Subject: Hauser, Timothy - ESSA Canary, Joe - ESSA;Hall, Lyssa - EBSA;Piacentini,Joseph - EBSA; Scott. William - SOL; Khawar, Ali - EBSA; Han:,f;;[!,J" l~~SOJ; Bloom, Teresa - EBSA Cosbv, Chris - EBSA;Beckmann, Allan - ESSA;Buyniski. Brian - EBSA;Butikofer, James - EBSA;Decressin,Anja EBSA;Lim, Younook - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - SOL; Lloyd, Karen - EBSA;Zarenko, Kristen - ESSA;Carnpaona, LoJJ..~; Wong. Fred - EBSA;Beadle, Nicholas D - SO[.; Qaig, James - SOL; Hopkins, Elizabeth - SOL; Gatesman, Valerie - ESSA;Turner, Jeffrey - ESSA;Henderson, Richard L - EBSA;Kress, Marjorie - ESSA;Goodman, Elizabeth - EBSA; Mares,Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000283 From: To: Cc: Subject: Hauser, Timothy - ESSA Canary, Joe - ESSA;Hall, Lyssa - EBSA;Piacentini,Joseph - EBSA;Scott, William - SOL; Khawar, Ali - ESSA; Hansen, Megan D - SOL; Bloom Tere~i1_!;'_'2.~ Cosbv, Chris - EBSA;Beckmann, Allan - EBSA;SuyniskL Brian - EBSA;Butikofer, James - EBSA;Decressin,Anja EBSA;Um, Younaok - ESSA;Hallidav, Susan- EBSA;Grillo-Chope, Luisa - SOL; Uoyd, Karen - ESSA;Zarenko, Kristen - EBSA;Carnpaana,Lau - EBSA;Wong, fm.11- EBSA;fifadle, Nicholas.J2.-SOL; Craia, James - SOL; Hopkins, Elizabeth - SOL; Gatesman,Valerie - ESSA;Turner, Jeffrey - ESSA;Henderson, Richard L - ESSA;Kress, Mariorie - ESSA;Goodman, Eiizabeth- EBSA;Mares, Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000284 From: To: Cc: Subject: Hauser. Timothy - EBSA , Hali. Lyssa- EBSA;Piacentini,Joseph - ESSA; Khawar. Ali - EBSA; Hansen. Megan D - SOL; Canay. Joe - EBSA; Bloom. Teresa - E~~ Cosbv. Chris - EBSA; Beckmann, Allan - EBSA; Buyniski. Brian - EBSA;Butikofer. James - EBSA;Decressin. Ania EBSA;Halliday, Susan ? EBSA;Grillo-Chope,Luisa ? SOL; Lloyd. Karen ? EBSA;Zarenko. Kristen ?? EBSA; Wong. - EBSA; Elizabeth o SQl.; f:;atesman.Valerie - ESSA;Turne1:,_J~,ffrey Fred - EBSA;Craig James - SOL;)i9.Rkio.,s. Henderson. Richard L - EBSA;Kress, Maoorie - EBSA;Goodman. Elizabeth - ESSA; Mares. Judith - EBSA; !d.m.c Youngok . EBSA;Campaana. Lou . EBSA; Beadle. NicholasD - SOL Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000285 To: Hansen, Megan D - SOL Subject: RE: COI l)pdate (Chamber v DOL, Fifth Circuit) Thursday, July 13, 2017 9:06:07 AM Date: (b) (5) (b) (5) (b) (5) From: Hansen, Megan D - SOL Sent: Wednesday,July 12, 2017 8:32 PM To: Scott, William - SOL; Tso, Thomas - SOL; Sieger, Edward - SOL; Harthill, Susan - SOL; Hauser, Timothy - EBSA;Craig, James - SOL; Khawar, Ali - EBSA Cc: Geale, NicholasC. - SOL Subject: COI Update (Chamber v DOL, Fifth Circuit) All, (b) (5) AMERICAN PVERSIGHT DOL-17-0281-H-000286 (b) (5) Thanks (as always}, Megan Megan Hansen U.S. Department of Labor, Office of the Solicitor Plan Benefits Security Division, Attorney for F{egulations Phone:(b) (6) E-mail:(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) a 1sprivilegedand exempt from disclosureunder applicablelaw. Do not share or copv without consulting the Office of the Solicitor. if you think you hove received this messoge in error, please notify the sender immediately. AMERICAN PVERSIGHT DOL-17-0281-H-000287 From: To: Cc: Subject: Hauser Timothy - ESSA Canary, Joe - EBSA;Hall, Lyssa- EBSA;Piacentini, Joseph - EBSA;Khawar, Ali - ESSA; Hansen, Megan D - SOL; - EBSA Bloom, Ter.e;;_i;l Cosby, Cl1ris- EBSA;Beckmann.Al!an - EBSA;Buyniski. Brian - EBSA;Butikofer, James - EBSA; Decressin.Anja Karen - EBSA;Zarenko, - EBSA; Grillo-Chope,Luisa - SOL; l,.ioyd, EBSA;Lim,Younaok - EBSA;Halliday,Susan Wong. Freel- EBSA; Beadle.NicholasD - SOL; Craig, .fil!.ng,s- SOL; &isten - EBSA.:Campagna,Lou - EB..$.b; Hopkins, Elizabeth- SOL; Gatesman,Valerie - EBSA; Turner. Jeffrey - EBSA;Henderson. RichardL - EBSA;Kress, Mares, Judith - EBSA Marjorie - ESSA; Goodman. Elizabeth? EBSA; Biweekly Meeting on Conflict of Interest Reg ?------ ---?~---- ----~ ----- ..--- -~- Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM~ HICA\J PVERSIGHT DOL-17-0281-H-000288 From: To: Cc: Subject: Microsoft Outlook on behalf of Hauser, Timothv - ESSA Hauser. Timothy - EBSA;Canary, Joe - EBSA;Hali, Lyssa- EBSA;Piacentini, Joseph - EBSA;Scott, William - SOL; Khawar Ali - EBSA;Hansen, Megan D - SOL; filoom, Te~l;l.56 Mares, Judith - EBSA;Cosby, Chris - EBSA;Beckmann,Allan - EBSA;Buyniski, Brian - EBSA;Butikofer, James EBSA;Decressin,Anja - EBSA;Lim, Youngok - ESSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - SOL; Lloyd, Karen - EBSA;Zarenko Kristen - EBSA;Cam.lliillllil.,_bQ!L.?1~SP,; Wong Fred - EBSA;Beadle, Nicholas D -_5.QL; Craig, James - SOL; Hopkins, Elizabeth - SOL; Gatesman,Valerie - EBSA;Turner, Jeffrey - EBSA;Henderson, Richard L - EBSA;Kress, Marjorie - EBSA;Goodman, Elizabeth- EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Updated meeting details: Location Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000289 From: To: Subject: Hauser, Timothy - EBSA Piacentini.Joseoh - EBSA;Khawar, Ali - EBSA OPRCheck-in on CO! Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000290 From: To: Subject: Hauser, Timothy - ESSA PiacentinLJoseph - ESSA;Khawar, Ali - EBSA OPRCheck-in on COI Your meeting was follild to be out of date and has been automaticallyupdated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000291 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini, Joseph - ESSA;Khawar, Ali - EBSA;Hall. Lyssa - EBSA;Hansen, Megan D - SOL; Bloom Teresa - EBSA Cosbv, Chris - EBSA;Beckmann.Allan - EBSA;Buyniski. Brian - EBSA;Butikofer. James - EBSA;Decressin.Anja EBSA;Um, Younaok - EBSA;Hallidav, Susan - EBSA;Grillo-Chope,Luisa - SOL; Lioyd, Karen - EBSA;Zarenko, Kristen - ESSA;Wong Fred - EBSA;Craig James - SOL; Hopkins Elizabeth - SOL; Gatesman.Valerie - ESSA; Turner, Jeffrey - ESSA;Henderson,Richard L - EBSA;Kress. Marjorie - ESSA;Goodman, Elizabeth- ESSA; Campagna. Lou - EBSA; Beadle. Nicholas D - SOL; Mares, Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000292 From: To: Cc: Subject: Hauser. Timothy - ESSA Cana1y,Joe - ESSA;Hal!. Lyssa- EBSA;Piacentini. Joseph- ESSA; Khawar. Ali - EBSA;Hansen, Megan O - SOL; fllDom Teresa - ESSA Cosby. Cl1ris- EBSA; Beckmann.Allan - EBSA;BlJYniskiBrian - EBSA;Butikofer. James - EBSA; Decr?essin.Anja ; Grillo-Chope. Luisa - SOL; Lloyd. Karen - EBSA; Zarenko, EBSA; Lim, Younqok - EBSA;Halliday. Susan- EBSA ; Campagna Lou - EBSA;Wong. Freel- EBSA; li~,ille, Nicholas D - SOL;Craig. James - SOL; !Sri.51:(l,Q_;_i;_B...$?\ Hopkins. Elizabeth- SOL;Gatesman. Valerie - ESSA; Turner. Jeffrey - EBSA;Henderson.Richard L - EBSA;Kress. Mares.Judith - EBSA Marjorie - EBSA; Goodman, E!izabeth- EBSA; Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000293 From: To: Cc: Subject: Hauser. Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa- EBSA; Piacentini,Joseph- EBSA; Khawar. Ali - EBSA;Hansen,Megan D - SOL; Bloom. Teresa - EBSA Cosbv, Chris - EBSA; Beckmann, Allan - EBSA; Buvniski, Brian - EBSA;Butikofer James - EBSA; Decressin, Anja EBSA; Lim, Youngok - EBSA;Halliday. Susan - EBSA;Grillo-Chope, Luisa - SOL; Lloyd. Karen - EBSA; Zarenko, Kristen - EBSA;Camoagna.Lou - E!;l.~; Wong Fred - ~;Ji~; Beadle. NicholasD - SOL; Craig lames - SOL; Hopkins, Elizabeth- SOL; Gatesman,Valerie - EBSA;Turner. Jeffrey - EBSA;Henderson,Richard L - EBSA; Kress, Marjorie - EBSA;Goodman. Elizabeth- EBSA;Mares.Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been autom atically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000294 From: To: Cc: Subject: Hauser,Timothy - EBSA Canary, Joe - EBSA; Hall, Lyssa- EBSA;Piacentini,Joseph - ESSA;Scott, William - SOL; Khawar, Ali - EBSA; SQ1; Bloom Teresa - EBSA Hansen, Mega1J..Q.:_ Cosby, Chris - ESSA; Beckmann. Allan - EBSA; Buyniski. Brian - EBSA;Sutikofer. James- ESSA; Decressin.Anja ; Lim, Youngok - EBSA;Halliday, Susan- EBSA; Grillo-Chope,Luisa - SOL; Lloyd,Karen - EBSA; Zarenko, ~ Kristen - EBSA; Campaona, Lou - EB~':8;Wong, Fred - EBSA; Beadle, Nicholas D - ~\.,; Craig James- SOL; Hopkins, Elizabeth - SOL; Gatesman,Valerie - EBSA;Turner, Jeffrey - EBSA;Henderson, Richard L - EBSA; Kress, Marjorie - EBSA; Goodman, Elizabeth- EBSA; Mares,Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automa tically updated. Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000295 From: To: Cc: Subject: Hauser. Timothy - EBSA Canaiy. Joe - EBSA; Piacentini.Joseph - EBSA; Scott. William - SOL; Khawar. Ali - EBSA; Hall. Lyssa - EBSA; Hansen Megan D - SOL; Bloom Teresa - EBSA Cosby. Chris - EBSA; Beckmann. Allan - EBSA;Buyniski. Brian - EBSA;Butikofer Jarnes- EBSA;Decressin. Ania EBSA;I im. Youngok - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - SOL; Lloyd. Karen - EBSA: Zarenko, WongFred - EBSA;CraigJames - SOL; Hopkins. !;lizabeth - SOL; i:;atesrnan.Valerie - EBSA; Kristen - f;B...$A; Turner. Jeffrev - EBSA; Henderson.Richard L - EBSA;Kress,Marjorie - EBSA; Goodman. Elizabeth- EBSA; Campagna.Lou - EBSA; Beadle.Nicholas D - SOL; Mares. Judith - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatic ally updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000296 From: To: Cc: Subject: Hauser.Timotily - EBSA William - SOL; Khawar. Ali - EBSA; Hall. Lyssa- EBSA; Canary, Joe - EBSA; Piacentini,Joseph - EBSA; Scott. D - SOL; Bloom. Teresa - Ell..SA Hans~:n,1:'.L@(R) Cosby, Cilris - EBSA; Beckmann, Allan - EBSA;Buyniski. Brian - EBSA;Butikofer, James - EBSA; Decressin, Anja - EBSA; Grillo-Chope, Luisa - SOL; Lloyd, Karen - EBSA; Zarenko, Lim, Younaok - EBSA;Haliidav. Susan ~; Valerie - EBSA; Kristen - EBSA; Wong Fred - !;llS.8;Craig. James- SOL; Hopkins, Elizabeth- SOL; f?.il..t~smao, Turner. Jeffrey - EBSA; Henderson, Richard L - EBSA;Kress. Marjorie - EBSA;Goodman. Elizabeth- EBSA; Campagna.Lou - EBSA;Beadle. NicholasD - SOL Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000297 From: To: Cc: Subject: Hauser.Timothy - EBSA Canary, Joe - EBSA; Hall, Lyssa- EBSA;Piacentini,Joseph- EBSA;Scott, William - SOL; Khawar, Ali - EBSA; !i?.Dfil~DMegan D - SOL; Bloom, Teresa - EBSA Cosby, Chris - EBSA; Beckmann.Alian - EBSA;BuyniskLBrian - EBSA;Butikofer, James - EBSA; Decressin.Anja EBSA;Urn,Youngok - EBSA;Hallidav. Susan- EBSA; Grillo-Chope,Luisa - SOL; Lloyd. Karen - EBSA;Zarenko, Kristen - EBSA;~4flll)agna Lou - EBSA;Wong Fred - EBSA; Beadle,Ni\:holas D - SOL; Craia, lames - SO~; Hopkins, Elizabeth - SOL; Gatesman, Valerie - EBSA; Turner. Jeffrey - EBSA;Henderson,Richard L - EBSA;Kress, Marjorie - EBSA; Goodman, Elizabeth - EBSA Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automaticall y updated. Sent by Microsoft Exchange Serve r AM~RICAN PVERSIGHT DOL-17-0281-H-000298 From: To: Cc: Subject: Hauser, Timotlly - ESSA Canary, Joe - ESSA;Hall, Lyssa- EBSA;Piacentini,Joseph - ESSA;Scott. William - SOL; Khawar, Ali - EBSA; )7anse.oMr.a.'?.i!..:J;.('l.$8 Cosby, Chris - EBSA;Beckmann,Allan - EBSA;Buyniski, Brian - EBSA;Butikofer, James - EBSA;Decressin,Ania EBSA;Lim, Younook - EBSA;Hallidav, Susan - EBSA;Grillo-Chope,Luisa - SOL; Uoyd, Karen - EBSA;Zarenko, Kristen - ESSA;Wong Fred - EBSA;Cioaiq,James - SOL; Hopkins, Elizabeth - SOL; Gatesman,Valerie - EBSA; Turner, Jeffrey - EBSA;Henderson,Richard L - EBSA;Kress. Marjorie - EBSA;Goodman, Elizabeth - EBSA; Campagna, Lou - EBSA;Beadle, NicholasD - SOL; Mares,Judith - EBSA Subject: Biweekly Meeting on Conflict of Interest Reg From: To: Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000306 From: To: Hauser, Timottw - EBSA Subject: OPRCheck-in on COi Piacentini Jose h - EBSA (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Your meeting was fom1d to be ont of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000307 From: To: Subject: Hauser, Timothy - EBSA (b) Piacentini Jose h - EBSA OPRCheck-in on COi (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server A\111HICAN PVERSIGHT DOL-17-0281-H-000308 From: To: Subject: Hauser, Timothy - EBSA Campagna, Lou - EBSA; Canary, Joe - EBSA 408 b2 COI issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000309 From: To: Subject: Hauser, Timothy - EBSA Campagna, Lou - EBSA;Canary, Joe - EBSA 408 b2 CO! issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000310 From: To: Subject: Hauser. Timothy - ESSA Campagna. Lou - EBSA; Canary, Joe - EBSA 408 b2 COi issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000311 From: To: Subject: Hauser.Timothy - EBSA Campagna, Lou - EBSA; Canary, Joe - EBSA 408 b2 COi issue- Groom Your meeting was found to be out of date and has been automatically updated . Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000312 From: To: Subject: Hauser, Timothy - ESSA Campagna, Lou - EBSA;Canary, Joe - EBSA 408 b2 COI issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000313 From: To: Subject: Hauser, Timothy - EBSA Campagna, Lou - EBSA;Canary, Joe - EBSA 408 b2 COI issue- Groom Your meeting was fow1dto be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000314 From: To: Subject: Hauser, Timothy - ESSA Campagna, Lou - EBSA;Canary, Joe - EBSA 408 b2 COI issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000315 From: To: Subject: Hauser?, Timothy - EBSA Campagna,Lou - EBSA; Canary, Joe - EBSA 408 b2 CO! issue- Groom Your meeting was fonnd to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000316 From: To: Subject: Hauser, Timothy - EBSA Campagna, Lou - EBSA; Canary, Joe - EBSA 408 b2 COI issue- Groom Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000317 From: To: Cc: Subject: Hauser. Timothy - ESSA Canary. Joe- EBSA; Hall. Lyssa- EBSA; Piacentini,Joseph - ESSA;Scott. William - SOL; Khawar, Ali - EBSA Lou - ESSA Lloyd.Karen- ESSA; Turner, Jeffrey - EBSA;Campagna. Fiduciary Rule Your meeting was fow,d to be out of date and has been automatically upd ated. Sent by Microsoft Exchange Serve r AM~RICAN PVERSIGHT DOL-17-0281-H-000318 From: To: Cc: Subject: Hauser, Timothy - ESSA Canary, Joe - ESSA;Hal!, Lyssa- EBSA;Piacentini,Joseph - ESSA;Scott, William - SOL; Khawar, A!i - EBSA L!ovd Karen - ESSA;Turner, Jeffrey - EBSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000319 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Hal!, Lyssa- EBSA;Piacentini,Joseph - EBSA; Scott, William - SOL; Khawar, Ali - EBSA Lloyd, Karen - EBSA;Turner, Jeffrey - EBSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000320 Hauser, Timothy - ESSA From: To: Canarv,Joe - EBSA;Hall, Lyssa - EBSA;Piacentini,Joseph - ESSA; Scott William - SOL; Khawar, Ali - EBSA Cc: Subject: ]JQvQ,_!5aren - EBSA;Turner, Jeffrey - EBSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000321 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa- EBSA;Piacentini,Joseph - EBSA;Scott, William - SOL; Khawar, Ali - EBSA Llovd, Karen - EBSA;Turner, .Jeffrey- EBSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000322 From: To: Cc: Subject: Hauser. Timothy - EBSA Canary. Joe- EBSA; Hall, Lyssa- EBSA;Piacentini. Joseph- ESSA; Scott. William - SOL;Khawar, Ali - ESSA Lloyd. Karen - ESSA; Turner, Jeffrey - l;l;i58 Fiduciary Rule Your meeting was found to be out of date and has been automatic ally updated. Sent by Microsoft Exchange Serve r AM~RICAN PVERSIGHT DOL-17-0281-H-000323 From: To: Cc: Subject: =- --=,, Hauser. Timothy - EBSA Cana1y,Joe - EBSA; Hall, Lyssa- EBSA;Piacentini,Joseph - EBSA;Scott. William - SOL; Khawar, Ali - EBSA Llo.Y!,j,Karen - EBSA; Turner Jeffrey - EBSA Fiduciary Rule , ,,~,,,,,,,_,,,,,...-,,~,~o>ao>>== o.,~ ?? ?r,= ..?o-- ---- -o--- -- ----- - ------ --- ----- YOUfmeeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM~ HICA\J PVERSIGHT DOL-17-0281-H-000324 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa- EBSA;PiacentinLJoseph - EBSA;Scott, William - SOL; Khawar, Ali - ESSA Llovd, Karen - ESSA;Turner, .Jeffrey- EBSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000325 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA; Hali, Lyssa - ESSA;Piacentini, Joseph - EBSA;Scott, William - SOL; Khawar, Ali - ESSA Llovd, Karen - EBSA;Turner, Jeffrey - ESSA Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000326 Hauser. Timothy - EBSA Cana1y,Joe - EBSA; Hali, Lyssa - EBSA; Piacentini. Joseph - EBSA; Scott. William - SOL; Khawar, Aii - EBSA Karen - EBSA; Turner. Jeffrey - ESSA !JQl&.. Fiduciary Rule From: To: Cc: Subject: ~=- -- -o"'o'oo=o"'="- ''"'"""""'" "'- ==- -- - ,,,,m,,,,_,,,s_, ,,.,m,w,,,,, ,c,,_,,, , .. ,,,,,,fa .. >= -- =om!f: d hi C;;'.J!T\~Ct AMLHICA\J PVERSIGHT DOL-17-0281-H-000345 From: To: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Subject: Good Morning, The Address is: 200 ConstitutionAve. NW WashingtonDC, 20210 FPB N-5677 Mr. Hauser will host this meeting in the Francis Perkins Building, Room N-5677. To access the building, please use the visitor's entranceat C St and 3rd St NW. When you check in with the guards, have them call MelindaEdozie at extensio-(b) (6) will come down to escort you up to the room. Please be sure to arrive at least IO minutes early in case there is a wait at the security desk. Thanks, Melinda Edozie (b) (6) (b) (6) That sow,ds great, Melindao? here's who I recommend be in attendancefor the call: Tim Hauser Scott Albert (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) If you send out the invite I assume there will be a conference line to dial into, correct? Derren Derren Burrell, CDFM, AIF(R) Chief OperatingOfficer ITAG Resources,LLC . . ille,TN37919 (b) (6)(b) (6)(b) (6)(b) (6) - p gr www.tagresources.com Notice: This electronic mail transmissionis for the use of the nan1edindividualor entity to wltich it is directed and may contain informationthat is privilegedor confidential.It is not to be transmitted to or received by anyoneother than the named addressee (or a person authorizedto deliver it to the named addressee).It is not to be copied or forwarded to any unauthorizedpersons. If you have received this electronic mail transmission in error, delete it from your From: Derren Burrell [mailto: HYPERLINK"(b) (6)(b) (6)(b) Sent: Wednesday,May 31, 2017 6:52PM To: McDaniel,Keshia? OSEC Cc: Troy Tisue Subject: Meetingrequest with Sec Acosta regarding COi Rule (6)(b) (6)(b) (6)(b) (6) Keshia, Thank you for discussiontoday on the best path forward in getting an audiencewith the Secretaryto discuss the Conflict of Interest (COi) Rule and a potential enhancementprogram to the rule as it stands to day. TAG Resourcesis a third party administrator (TPA) out of Knoxville,TN, and as such does not subscribeto one particular view on the efficacy of the rule in its current form, we simply desire to increase the retirement opportunitiesfor Americans. Our TPA has been instrumentalin the past in obtainingclarification/passagefrom various DoL/Congressionalactions on certain retirement initiatives(e.g., Open MEP, 5500 Relief for Prototype Plan, etc). Our staffis very experiencedin working within DC avenues to help the administrationmeet its goals. Per your direction, here's the details: What: Meeting request with the Secretary of Labor to discuss mitigationstrategies and enhancementsto the COi rule Attendees: Troy Tisue, PresidentTAG Resources Derren Burrell, COO, TAG Resources Bob Toth, ERISA Attorney Scott Albert, DOL/EBSA Bottom-lineBenefits: Increase opportunities for the retirement industry by utilizing outsourcedexpert fiduciaries (i.e., 3(16) Plan Administratorand 3(38) lnvestmentsManager) to allow different certification requirementsto facilitate the selling of retirement plans. This will address the concernsof the insuranceindustrywhile still meetingthe intent of the COi. Also to leverage existing policies Fonnat/Date: Would prefer in-personanytime after June 16. Able to do teleconferencecall if necessary. BackgroundDetails: AMI HICAN PVERSIGHT DOL-17-0281-H-000346 Point is to encourage coverage in the best interest of the participant;not exclude the advisor population that does not have a significant retirement business o Recommendation: Rely on industry experts who perfom1fiduciary services and thus assume liability: this should shift the fiduciary requirement from the advisor Put forth the idea that utilization of a product with built-in fiduciary protection (i.e., Full 3(16) Plan Administrator and 3(38) InvestmentManager in the Prototype Model) allows the "expert advice" that would permit an advisor to utilize the BIC exemption clause o May have to modify BlC, but this was occurring anyway To encourage further streamline/increase coverage, also add to the COI rule an amendmentallowing 5500 relief to the Prototype Plan Hopefullythis is enough infom1ation,but I'm happy to provide funher info should you have any questions. v/r, Derren Derren Burrell, CDFM, A!F(R) Chief Operating Officer I TAG Resources, LLC it 201 Knoxville TN 37919 6322 Deane Hill Dri fax 1 HYPERLINK "tel:(865)%20670-0227"865.670.0227 oooooooooooo HYPERLINK' HYPERLINK' Notice: This electronic mail transmission is for the use of the named individual or entity to which it is directed and may contain informationthat is privilegedor confidential. It is not to be transmitted to or received by anyone other than the named addressee (or a person authorized to deliver it to the named addressee). It is not to be copied or forwarded to any unauthorizedpersons. If you have received this electronic mail transmission in error, delete it from your system without copying or forwarding it, and notify the sender of the error by replying via email or calling TAG Resources, LLC at HYPERLINK"tel:+18656701844"865-670-I 844, so that our address record can be corrected. _Circular_230_ 6_-_2014.pdf'Click here IRS Circular 230 disclosure: HYPERLlNK "https://www.irs.gov/pub/irs-utl/Revised AMERICAN PVERSIGHT DOL-17-0281-H-000347 From: To: Subject: Date: Hauser, Timothy - ESSA Edozie, Melinda U - ESSA FW: Meeting request with SecAcosta regarding COi Rule Tuesday, June 13, 2017 9:00:00 AM Could you also see if you could set up a meeting with fv1r. Burrell for Friday? Thanks . From: Derren Burrell (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Tuesday, June 13, 2017 8:47 AM To: McDaniel, Keshia - OSEC; Hauser, Timothy - EBSA Cc: Bob Toth Subject: Re: Meeting request with Sec Acosta regarding COi Rule Appreciate the Secretary's consideration, Keshia, next time! Tim, Bob Toth speaks very highly of you, and he and TAG would love to connect with you on the below issues dealing with both the COI and our 5500 relief initiative. Would you be available this Friday, June 16 to go over the initiatives at a high level? Recommend Scott Albert be on the call as well since he was instrumental in bringing these initiatives to the forefront. I'll also be at the NAPA DC Fly-In, so we can potentially discuss it further in person at that time. Looking forward to hearing from you. v/r, Derren r:m:r:Mr Chief Operating Officer I TAG Resources, LLC 6322 Deane Hill Drive, Suite 201, Knoxville, TN 37919 (b) office I 865.670.0227 fax - (6)(b) (6) urces.c;orn -g ~-- (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On Fri, Jun 9, 2017 at 12:22 PM, McDaniel, Keshia - OSEC (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) wrote: Hello Derren, Secretary Acosta will not be able to meet with your organization due to scheduling constraints. However, we have forwarded your request to Deputy Assistant Secretary of Program Operations Tim Hauser ofEBSA. I have included him on this email in order to introduce you. AMLHICA\J PVERSIGHT DOL-17-0281-H-000348 The Secretary thanks you for your request. We appreciate your understanding. Respectfully, Keshia McDaniel & Advance, Office of the Secretary (b) (6)(b) (6)(b) (6)(b) (6) (E)---- (b) (6) 1!'1 1,,!1~o,,,,fflT!'~~!m, ons 1 utioTr'~~fflffl1~ DC 2021o (b) (6)(b) (6)(b) (6)(b) (6) From: Derren Burrell [mailto I o " Sent: Wednesday,June 07, I To: McDaniel,Keshia- OSEC Subject: Fwd: Meeting request with Sec Acosta regarding COI Rule Keisha, Makingsure you got this -- I never receivedconfirmation -- did we make the cut? Derren r? :;:i, :(1i 1 o 1::t t](,' :r~: !JJ> 1:p: r}ll . Chief Operating Officer I TAG Resources,LLC 6322 Deane Hill Drive, Suite 201, Knoxville,TN 37919 (b) (6)(b) (6)(b) (6) I 865.670.0227 fax www.tagresources.com \,)i.\V?).?,?ht e\-;ct:ur,i-:: 1n?i!trtn.::,r:':!i:f;i,>nf(H hf u;,:.(o) (/ )1(-)n;:-ir,11::,d ,nc:!_vidu:-ii u (-ni!tyto 'Nl'!!(-i >; t:-1n;;r,1!lt!)r :i ;;r !'\?)C(o\;1:(-;(.\ U;'::',)n1:i (h;~r ti1an t!1,)?n(-n:;~r:i ::-;dd:"( ?/o,)'.'.?hJ ? r.i;m;on r.fntn!it.i:W(o 1n,'.1= !i.!1J!ir.:;;U ,.r:,u1i'=h!'d U'it,~+i,.:U?i;;1:r: (\:;:f!t1,-;!':;o1::-,/,~:/1n ,,: = .,,,,;, ,,n,,?)o! ,.., c:)H:,,g Ti\(,F,,.,,.0,,u;c-):; :.U.d 865-670-184-4 t,,,?.n "'" ,)d!',)1i', ,..,u,od C'.?!o, ---------- Forwarded mess a e ---------From: Derren Burrell (b) (6)(b) (6)(b) (6)(b) (6) Date: Fri, Jun 2, 2017 at 12:52 AM Subject: Re: Meeting request with (b) (6)(b) (6)(b) (6)(b) (6) To: "McDaniel , Kesh ia - OSEC" le Per your request, Keshia,here you go. Most of this was N/A, it's a quick working t11E!eting -- relatively straightforward. lll H:,;iJY'!']' (~iii~p (1:::;(I,j:,[~;;:?~;i~.,,;, Chief Operating Officer I TAG Resources,LLC . I Drive, Suite 201, Knoxville,TN 37919 (b) (6)(b) (6) ffice I 865.670.02 27 fax . ces.com AMERICAN PVERSIGHT DOL-17-0281-H-000349 On Thu, Jun 1, 2017 at 8:30 AM, McDaniel, Keshia - OSEC wrote: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Hello Derren, Thank you for contacting Secretary Acosta's scheduling office. We are currently reviewing his calendar and will be back in touch with you shortly. Please fill out the attached form so we may consider your request and send it to the email address specified on the form. Thank you! (b) (6) (b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) From: Derren Burrell [mailto: Sent: Wednesday,May 31, 2017 6:52 PM To: McDaniel,Keshia- OSEC Cc: Troy Tisue Subject: Meeting request with Sec Acosta regarding CO! Rule Keshia, Thank you for discussion today on the best path forward in getting an audience , with the Secretary to discuss the Conflict of Interest (COI) Rule and a potential enhancement program to the rule as it stands to day. TAG Resources is a third party administrator (TPA) out of Knoxville, TN, and as such does not subscribe to one particular view on the efficacy of the rule in its current form, we simply desire to increase the retirement opportunities for Americans. Our TPA has been instrumental in the past in obtaining clarification/passage from various DoL/Congressional actions on certain retirement initiatives (e.g., Open MEP, 5500 Relief for Prototype Plan, etc). Our staff is very experienced in working within DC avenues to help the administration meet its goals. Per your direction, here's the details: AMERICAN pVERSIGHT DOL-17-0281-H-000350 What: Meeting request with the Secretary of Labor to discuss mitigation strategies and enhancements to the COI rule Attendees: Troy Tisue, President TAG Resources Derren Burrell, COO, TAG Resources Bob Toth, ERISA Attorney Scott Albert, DOL/EBSA Bottom-line Benefits: Increase opportunities for the retirement industry by utilizing outsourced expert fiduciaries (i.e., 3(16) Plan Administrator and 3(38) Investments Manager) to allow different certification requirements to facilitate the selling of retirement plans. This will address the concerns of the insurance industry while still meeting the intent of the COL Also to leverage existing policies Format/Date: Would prefer in-person anytime after June 16. Able to do , teleconference call if necessary. Background Details: o Point is to encourage coverage in the best interest of the participant; not exclude the advisor population that does not have a significant retirement business o Recommendation: Rely on industry experts who perform fiduciary services and thus assume liability: this should shift the fiduciary requirement from the advisor o Put forth the idea that utilization of a product with built-in fiduciary protection (i.e., Full 3(16) Plan Administrator and 3(38) Investment Manager in the Prototype Model) allows the "expert advice" that would permit an advisor to utilize the BIC exemption clause o May have to modify BIC, but this was occurring anyway o To encourage further streamline/increase coverage , also add to the COi rule an amendment allowing 5500 relief to the Prototype Plan Hopefully this is enough information, but I'm happy to provide further info should you have any questions. ? v/r, Derren Chief Operating Officer I TAG Resources, LLC 6322 Deane Hill Drive, Suite 201, Knoxville, TN 37919 (b) (6)(b) (6) ffice I 865.670.0227 fax lllllllll!t resources.com , www. AMLHICA\J PVERSIGHT DOL-17-0281-H-000351 DOL-17-0281-H-000352 Hauser, Timothy - EBSA Hauser, Timothy - ESSA FW: Meeting Request for Secretary Acosta Friday, June 09, 2017 5:10:42 PM From: To: Subject: Date: From: Ha11ser Timothy ???EBSA Sent: 6/9/2017 5:06 PM To: McDani el. Keshia - OSEC Subject: RE: Meeting Request for Secretary Acosta Thanks. I must have missed the email to Mr. Burrell. I'll send him a note inviting him to meet with me. I've got all I need. Enjoy your weekend. From: McDan iel, Keshia - OSEC Sent: 6/9/2017 4:46 PM To: Hauser, Timothy - EBSA Subject: RE: Meeting Request for Secretary Acosta H i Tim, l wen t back and trip le checked the contact information for each invitat ion and the emails that I sent. J do not see where I made an erro r. Ivlr. Ro driguez had bee n in consta nt commun ication ,vith me about his inv itation . He wo rks w ith Mr. Larry Gon zalez , wh o is the contact on the SlMS invitation. I liste d the info rma tion I have below. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) 831834 - (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) 83 l682- (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) 831888- (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Let me know if you have somet hing different . Thank yo u, Kesh ia From: Hauser, Timothy - EBSA Sent: Friday, June 09, 2017 3:57 PM To: McDaniel, Keshia - OSEC Subject: RE: Meeting Request for Secretary Acosta Keshia, I think you may have accidenta lly sent two emails to M r. McCormick and missed sending an email to the third person. Would you mind sending an email out to the person we missed, and l'il take it from there. (b) (6)(b) (6)(b) (6) AMERICAN PVERSIGHT DOL-17-0281-H-000353 Cc: Hauser, Timothy - EBSA; Edozie, Melinda U - EBSA Subject: RE: Meeting Request for Secretary Acosta Dear Mr. IVlcCormick, I'd be happy to meet with you to discuss the impact of the fiduc iary advice ruie on fixed index products. I'd appreciate it if you could send some dates and times that work for you to Melinda and we w ill set something up. Edozie (b) (6)(b) (6)(b) (6)(b) (6) Tim Hauser From: McDaniel, Keshia - OSEC Sent: Friday, June 09, 2017 12:24 PM To: Cc: Hauser, Timothy - EBSA Subject: Meeting Request for Secretary Acosta Dear Mr. McCormick , Secretary Acosta will not be able to meet with your organization due to scheduling constraints. However , we have forwarded your request to Deputy Assistant Secretary of Program Operations Tim Hauser of EBSA. I have included him on this email in order to introduce you. The Secretary thanks you for your request. We appreciate your understanding. Respectfully, Keshia McDaniel (b) (6) AMLHICA\J PVERSIGHT (b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-H-000354 From: To: Hauser.Timothy@dol.gov Hauser, Timothy - EBSA Subject: FW: Meeting Request for Secretary Acosta Friday, June 09, 2017 5:10:41 PM Date: From: Hauser. Timoth,:L:_fBSA Sent: 6/9/2017 5:06 PM To: McDaniei l==o?o-ooo=moCC -- =ooo"-o""oo o?""'?'"?????o~ oo-om-o-o=o~>'o o~oo?o?o"??o??oo"" Your meeting was found to be out of date and has been automati cally updated. Sent by Microsoft Exchange Serve r AMEHICA\J PVERSIGHT DOL-17-0281-H-000389 From: To: Subject: Hauser, Timothy - EBSA Hall, Lyssa - ESSA;Lloyd, Karen - ESSA COI Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000390 From: To: Subject: AM[ HICAN PVERSIGHT Lloyd, Karen - EBSA Hauser, Timothy - EBSA Accepted: COI DOL-17-0281-H-000391 From: To: Hauser. Timothy - ESSA - EBSA; Lloyd. Karen - EBSA Hall, Lyssa Subject: COi Your meeting was found to be out of date and has been automatically updated. Seut by Microsoft Exchange Server AME=hlCAN PVERSIGHT DOL-17-0281-H-000392 From: To: Hauser. Timothy - ESSA Hall. Lyssa- EBSA;Lloyd. Karen - EBSA Subject: COi AM~RICA\J PVERSIGHT DOL-17-0281-H-000393 From: To: Hauser, Timothy - EBSA Hall, Lyssa - EBSA;Lloyd, Karen - EBSA Subject: COi AM[ HICAN PVERSIGHT DOL-17-0281-H-000394 From: To: Hauser, Timothy - EBSA Hall, Lyssa - EBSA;Lloyd, Karen - ESSA Subject: CO! Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000395 From: To: Subject: AM~RICAN PVERSIGHT Lloyd, Karen - EBSA Timothy - EBSA Hauser. Accepted: COI DOL-17-0281-H-000396 From: To: Hauser, Timotl1y - EBSA - EBSA;Lloyd, Karen - EBSA Hall, Lyssa Subject: COI Your meeting was found to be out of date and has been automaticall y updated. Sent by Microsoft Exchan ge Server AM~RICAN PVERSIGHT DOL-17-0281-H-000397 From: To: Hauser, Timothy - EBSA Hall, Lyssa - EBSA;Lloyd. Karen - EBSA Subject: CO! Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AM[ HICAN PVERSIGHT DOL-17-0281-H-000398 From: To: Subject: AM~RICAN PVERSIGHT Hall. Lyssa - EBSA Timothy - EBSA Hauser. Accepted: COI DOL-17-0281-H-000399 From: To: Hauser, Timothy - EBSA Hall, Lyssa - ESSA;Lloyd, Karen - EBSA Subject: COI Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000400 From: To: Hauser. Timotlw - ESSA - EBSA; Lloyd, Karen - EBSA Hall, Lyssa Subject: COi Your meeting was found to be out of date and has been automaticall y updated. Sent by Microsoft Exchange Server AM~RICAN PVERSIGHT DOL-17-0281-H-000401 From: To: Hauser. Timothy - ESSA Hall, Lyssa - EBSA; Lloyd, Karen - EBSA Subject : COI Your meeting was found to be out of date and has been autom atically updated. Sent by Microsoft Exchange Serve r AMERICAN PVERSIGHT DOL-17-0281-H-000402 From: To: Subject: Date: Hauser, Timothy - ESSA Geale, Nichoias C. - SOL RE: RF! Sunday, June 04, 2017 12:19:57 PM (b) (6) (b) (6)(b) (6)(b) (6) Sent: 6/4/2017 12:14 PM To: Hauser, Timo thv - EBSA Subject: RFI Are you available for a chat on the revisions? AMLHICA\J PVERSIGHT DOL-17-0281-H-000403 Hauser.Timothy@dol.gov Geale, NicholasC. - SOL From: To: Subject: RE: RFI Date: Sunday,June 04, 2017 12:19:55 PM (b) (6) From: C3eale Nicholas C - SOL Sent: 6/4/2017 12:14 PM To: Hauser, Timothy - ESS.4 Subject: RFI A\111HICAN PVERSIGHT DOL-17-0281-H-000404 From: To: Hauser, Timothy - ESSA Scott, William - SOL; Hansen, Megan D - SOL Subject: RE: RF! Draft 6-2-17 530pm Date: Saturday, June 03, 2017 10:19:26 PM Well, hopefully we are at least done for tonight. Thank you both. From: Scott William - SOL Sent: 6/3/2017 10: 17 PM To: Hauser. Timothv - EBSA; Hansen. Megan D - SOL Subject: RE: RFI Draft 6-2-17 530pm This is surely not the last! From: Hauser,Timothy- EBSA Sent: Saturday,June03, 2017 10:16 PM To: Scott,William- SOL;Hansen,MeganD - SOL Subject: RE: RF! Draft 6-2-17 530pm Than ks. ? Another Saturday night with the fiduciary rule . How many more more , Lord? From: Scott William ..SOL Sent: 6/3/201710 :11 PM To: HansenMeP,an D ??SOL.; Hauser Timothy?? EBSA ; Craig,James - SOL Cc: Khawar. Ali - EBSA Subject: RE: RFIDraft 6-2-17 530pm I'm sending th is to Nick From: Hansen,MeganD - SOL Sent: Saturday,June03, 2017 10:07 PM To: Hauser,Timothy- EBSA;Scott,William- SOL Cc: Khawar,Ali - EBSA;Craig,James- SOL Subject: Re: RF! Draft 6-2-17 530pm (b) (5) Than ks, Megan Megan Hansen U.S. Department of Labor, Office of the Solicitor (b) (6) AMERICAN PVERSIGHT DOL-17-0281-H-000405 (b) (6)(b) (6)(b) (6)(b) (6) Email (b) (6)(b) (6)(b) (6)(b) (6) thot is privileged ond shore or copy without consulting the Office of the Solicitor. please exernptfrorn disciosure under opplicob/e fcnv. Do not think vou have received this rnessage in error, the sender irnrnediateiv, From: Hauser, Timothy- EBSA Sent: Saturday, June 3, 2017 9:56:18 PM To: Hansen, Megan D - SOL; Scott, William - SOL Cc: Khawar, Ali - EBSA; Craig, James - SOL; Hauser, Timothy- EBSA Subject: Re: RFI Draft 6-2-17 530pm (b) (5) (b) (5) Thanks. From: Hansen, Megan D - SOL Sent: Saturday, June 3, 2017 9 :14 PM To: Scott, William - SOL; Hauser, Timothy - EBSA Cc: Khawar, Ali - EBSA; Craig, James - SOL Subject: Re: RFI Draft 6-2-17 530pm (b) (5) (b) (5) (b) (5) AMERICAN PVERSIGHT DOL-17-0281-H-000406 (b) (6) Happy to discuss Thanks, Megan Megan Hansen US Departrnent of Labor, Office of the Solicitor Plan Benefits Security Division, Jl-ttorney for P.egulations Phone:(b) (6) Email :(b) (6)(b) (6)(b) (6)(b) (6) This messoge may contciin in ormat1on t wt is privileged and exempt from disclosure under opp!icable low. Do not shore or copy without consulting the Office of the Solicitor. if you think vou have received this message in error, please notify the sender immediately. From: Scott, William - SOL Sent: Saturday, June 3, 2017 8:10:46 PM To: Hauser, Timothy - EBSA Cc:Khawar, Ali - EBSA; Hansen, Megan D - SOL; Craig,James - SOL Subject: RE: RF!Draft 6-2-17 530pm Trying to coordinate our responses to Nick . Here is what I noticed after first 1?ead: (b) (5) (b) (5) I'm sure Megan will have comments. From: Geale,NicholasC. - SOL Sent: Saturday,June 03, 2017 6:42 PM To: Hauser,Timothy- EBSA Cc: Scott, William - SOL; Harthill, Susan- SOL; Khawar, Ali - EBSA Subject: RE: RFI Draft 6-2-17 530pm Thanks everyone. These looked very good. (b) (5) AMERICAN PVERSIGHT DOL-17-0281-H-000407 (b) (5) (b) (5) (b) (5) From: Hauser,Timothy- EBSA Sent: Friday,June 02, 2017 5:51 PM To: Geale,NicholasC. - SOL Cc: Hauser,Timothy- EBSA;Scott,William- SOL;Harthill,Susan- SOL;Khawar,Ali - EBSA Subject: RF! Draft 6-2-17 530pm Nick, here's the draft RFI reflecting input from all the relevant offices. I think this is clearance-ready. Tim This message may contain information that is privileged and exempt from disclosure under applicable law. Do not share or copy without consulting the Employee Benefits Security Administration. If you think you received this e- mail in error, please notify the sender immediately. AMERICAN PVERSIGHT DOL-17-0281-H-000408 From: To: (b) (6)(b) (6) (b) (6)(b) (6)(b) (6) (b) (6)(b) (6) (b) (6)(b) (6)(b) (6) Subject: Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMLHICA\J PVERSIGHT DOL-17-0281-H-000409 From: To: Subject: Hauser, Timothy - EBSA (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) T g ~o(o o I o -, o - Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000410 From: To: Subject: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Meeting with FINRA on RFI and related matters Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000411 From: To: Subject: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Meeting with FINRA on RF! and related matters Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server AMERICAN PVERSIGHT DOL-17-0281-H-000412 From: To: Subject: A\111HICAN PVERSIGHT (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Meeting with FINRA on RFI and related matters DOL-17-0281-H-000413 From: To: Subject: Date: Hauser. Timothy - EBSA Colby. Robert RE: Meeting on RFI and fiduciary matters Friday, June 02, 2017 5:36:00 PM Great. Thanks. See you next week. (b) (6)(b) (6)(b) (6)(b) (6) From: Colby, Robert Sent: Friday, June 02, 2017 5:22 PM To: Hauser, Timothy - EBSA Cc: Goelzer, Angela; Savage, Joseph P. Subject: RE: Meeting on RF! and fiduciary matters Sure . Bob Robert Colby (b) (6)(b) (6)(b) (6) FINRA (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Hauser, Timothy - EBSA Sent: Friday, June 02, 2017 5:14 PM To: Colby, Robert Subject: [EXTERNAL] RE: Meeting on RF! and fiduciary matters That works. Can you come to our place? From: Colby. Robert Sent: 6/2/2017 4:16 PM To: Hauser. Timothy - EBSA Subject: RE: Meeting on RFI and fiduciary matters Tim, we could meet early on Wednesday afternoon after 1:30. Bob (6)(b) (6)(b) (6)(b) (6) Robert Colby FINRA 202. 728.8484 (b) (b) (6)(b) (6)(b) (6)(b) (6) From: Hauser, Timothy - EBSA (b) (6)(b) (6)(b) (6)(b) (6) Date: Friday, Jun 0 (b) (6)(b) (6)(b) (6) To: Colby, Robert Subject: [EXTE Does any time next Wednesday afternoon work for you and your crew? My calendar looks flexible. Confidentiality Notice:: This email, including attachments, may include non-public , proprietary, confidential or legally privileged information. If you are not an intended recipient or an authorized agent of an intended recipient , you are hereby notified that any dissemination, distribution or copying of the information contained in or transmitted with this e-mail is unauthorized and strictly prohibited. If you have received this email in error, please notify the sender by replying to this message and permanently delete this e-mail, its attachments, and any copies of it immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any other person. Thank you. AMERICA\J PVERSIGHT DOL-17-0281-H-000414 From: To: Subject: Date: Hauser, Timothy - EBSA Colby, Robert RE: Meeting on RFI and fiduciary matters Friday, June 02, 2017 5:13:34 PM That works . Can you come to our place? From: Colby , Robert Sent: 6/2/2017 4 :16 PM To: Hauser, Timothy - EBS.I\ Subject: RE: Meeting on RFI and fiduciary matters Tim, we could meet early on Wednesday afternoon after 1:30. Bob (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) Does any time next Wednesday afternoon work for you and your crew? My calendar look s flexible. Confidentiality Notice:: This email, including attachments, may include non-public , proprietary , confidential or legally privileged information. If you are not an intended recipient or an authorized agent of an intended recipient, you are hereby notified that any dissemination, distribution or copying of the information contained in or transmitted with this e-mail is unauthorized and strictly prohibited. If you have received this email in error, please notify the sender by replying to this message and permanently delete this e-mail, its attachments, and any copies of it immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any other person. Thank you. AMLHICA\J PVERSIGHT DOL-17-0281-H-000415 From: To: H user Timot Colb Robert (b) (6)(b) (6)(b) (6) Subject: Date: Does any time next Wednesday afternoon work for you and your crew? My calendar looks flexible . AMERICA\J PVERSIGHT DOL-17-0281-H-000416 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Hall, Lyssa- EBSA;Piacentini,Joseph - EBSA;Taylor, William - SOL; EBSA,Departed - EBSA; Khawar, Ali - EBSA;Hansen, Megan D - SOL; Bloom, Teresa - !;!3..5.~ Cosbv, Chris - EBSA;Bergstresser, Keith - EBSA;Beckmann,Allan - EBSA;Buyniski, Brian - EBSA;Butikofer, James - EBSA;Decressin,Anja - EBSA;Um, Youngok - EBSA;Halliday, Susan - EBSA;Grillo-Chope, Luisa - EBSA; Lloyd Karen - El},~; Z.11renko, Kristen - EBSA;Wong, Fred - EBSA;Craia James - SOL,; Hopkins, Eliz.iJ.lleth - SOL,; Mares, Judith - EBSA;Gatesman,Valerie - EBSA;Turner, Jeffrey - EBSA;Henderson, Richard L - EBSA;Kress, Marjorie - EBSA;Goodman, Eiizabeth - EBSA; Campaana,Lou - EBSA;Beadle, NicholasD - SOL Biweekly Meeting on Conflict of Interest Reg Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server A\111HICAN PVERSIGHT DOL-17-0281-H-000417 From: To: Subject: Date: Attachments: Hauser. Timothy - EBSA Eric Droblyen RE: DOL Fiduciary Rule Thursday, June 01, 2017 8:51:00 AM image002.png image003.png imaoe004.pnq imaoe00S.pnq Will you be in D.C. in the near future? If so1 give me son,e dates and I'd be happy to set something up. If not, would you prefer to talk on the phone? From: Eric Droblyen (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Thursday,June 01, 2017 8:07 AM To: Gardner,Janelle A - OSEC Cc: McDaniel,Keshia- OSEC;Hauser,Timothy - EBSA Subject: RE: DOL FiduciaryRule Hi Janelle, Thanks for update. I'd be grateful for the chance to speak to Tim. As a small business 401{k) recordkeeper, we have a lot of data I can contribute to the Fiduciary Rule discussion - as opposed to rhetoric. Nice to virtually meet you, Tim. Looking forward to speaking. Eric C. Droblyen, ERPA,CPC,QPA EmployeeFiduciary,LLC 11300 4th St North, Suit e 180 Saint Pet ersbu rg, FL 3371 6 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) America's low cost , most efficie nt 401 (k) /1,fake sure to check out our blog, -"---'?" '""'"''-?'???-'?'-''?"'" '"""''-,..o iVe comment on news 1111dissues in the retirement plan indust1y- with 11distinct point <>fPiew. 1i?ue 10 our name, we advocate low costs,full disclosure and l'a!uefor money .1pent. ?-? ?_ ia:_ ~ .l~ i ..-M ;?.. . ,_ .~-,,; :~ v 1~1=?~ ie:e~ FH!>U 'CIA,RY This message contain s confidentia l information and is ?intended only for th e specified recipients. If you are not one of the specified recipients, you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or erro r-fr ee as information could be intercepted, corrupted , lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of thi s message, which arise as a result of e-mai l transmis sion. If verification is required please request a hard-copy version. All e-mail sent to or from this address will be received or otherwise recorded by our corporate e-mail system and is subject to archival, monitoring and/or review, by and/or disclosure to, someone other than the recipient. AMI HICAN PVERSIGHT DOL-17-0281-H-000418 Please cons1de1~ the environrnent before printing this err1anrnessage, (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Wednesday, To: EricDroblyen (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) >; Hauser, Timothy - EBSA (b) (6)(b) (6)(b) (6)(b) (6) Subject: RE: DOL Fiduciary Rule Good evening Mr. DroblyenUnfortunately the Secretary is unable to meet and the meetings you mention below took place earlier this week with staff. Tim Hauser- cc'd here- is happy to meet with you and your firm. Tim will contact you directly to set something-up. Thank you! (b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Eric Droblyen Sent: Tuesday, May 30, 2017 11:50 AM To: Palmer, Wayne D - OSEC; McDaniel, Keshia - OSEC Subject: DOL Fiduciary Rule Wayne/Keshia, I am the president and CEO of Employee Fiduciary - a low-cost 401{k) plan provider. My firm serves over 3,000 small business plans nationwide, representing 70,000 participants and $3B in assets. I understand that Secretary Acosta is in the process of meeting with both supporters and critics of the Fiduciary Rule. I would welcome the chance to participate in these meetings . Employee Fiduciary works with hundreds of financial advisors nationwide - 100% of which are ERISA fiduciaries today . I fully support the Fiduciary Rule because fiduciary-grade advisors lower 401{k) plan fees and expenses. And I can prove it! Earlier this year, we completed a study of 401{k) fi na ncia I advisor fees - http ://blog.employePlid ucia ry.com /blog/fee-study-of-;i 25 401k fin anc:ia!? advisors . We found plans that used a fiduciary-grade advisor lowered the "all-in" fees and investment expenses of small business 401(k) plans (with assets less than $1M) by more than 1% annually on average . I also think an underreported A\/11HICAN PVERSIGHT virtue of the Fiduciary Rule is its benefit to small business 401{k) plan DOL-17-0281-H-000419 sponsors. Under a suitability standard, non-fiduciary advisors can recommend over-priced investments over less costly alternatives. That obligates a 401(k) plan sponsor- who is always a 401{k) plan fiduciary- to independently evaluate their advice for fee reasonableness and conflicts of interest. If they don't, they risk personal liability - while their financial advisor faces no consequences. I think that's a raw deal for small businesses! I explain this concept in emp[.Qycf:saocLQpposed by:the??!J.schamber ofcommerce In short, I am confident the Fiduciary Rule will lower 401{k) plan fees and expenses while reducing small business fiduciary liability- making the rule both a pro-investor and pro-bu siness reform . I would very much appreciate the chance to elaborate on my point s with the Secretary. Please let me know if a meeting is possible. I appre ciate your time and consideration . Regards, Eric C. Drob lyen, rnPA, CPC, QPA EmployeeFiduciary, LLC li300 4th St North, Suite 180 Saint Petersburg, FL 33716 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Make sure to check out our blog.~! We comment 01111ewsand issues in the retiremem plan industry?-- witli a distinct point Alison Cooke Mintzer Editor-in-Chief , PLANSPONSOR & PLANADVISER Strategic Insight 1055 Washington Blvd ., Suite 400, Stamford, CT 06901 !'A o ,. , NY 10022 ,i; .... o ..... ~.. .. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) We cilanged our name. Asset Internat ional is now Strategic lnsiaht. CJ.Q, GlobalCustodian,PLANSPONSOR , PLANADV!SER andTheTradeare StrategicInsightbusinesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name. Asset International is no,,v Strateaic lnsicht. QQ, GlobalCustodian,PLANSPONSOR, PLANADVISER and TheTrade are StrategicInsightbusinesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We ci1anged our nam e. Asse t Internationalis no-w S1rateaic insia !1i. QQ, GlobalCustodian,PLANSPONSOR, PLANADVISER andTheTradeare StrategicInsightbusinesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing , copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. QQ, GlobalCustodian,PLANSPONSOR, PLANADVISER andTheTradeare StrategicInsightbusinesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law . If you received this message in error, please notify us immediately by return email , delete this message from your system , and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. AMr::RICAN PVERSIGHT DOL-17-0281-H-000431 From: To: Cc: Subject: Date: Importance: Hauser, Timothy - EBSA Sadler, Rob - SOL Hauser, Timothy - EBSA RE: Invitation to Speak at the PLANSPONSOR National Conferencein June Tuesday, June 06, 2017 10:55:00 AM High f{ob, I think this might have gotten lost in the shuffle. Am I good to go? From: Hauser, Timothy - EBSA Sent: Wednesday, May 31, 2017 4:43 PM To: Sadler, Rob - SOL Cc: Hauser, Timothy - EBSA Subject: RE: Invitation to Speak at the PLANSPONSORNational Conference in June Rob, am I good to go on this event too? From: Hauser, Timothy - EBSA Sent: Wednesday, May 31, 2017 9:01 AM To: Sadler, Rob - SOL Cc: Hauser, Timothy - EBSA Subject: FW: Invitation to Speak at the PLANSPONSORNational Conference in June Rob, the Secretary's office passed along the request below to speak at this D.C. event, sponsored by Plan Sponsor (a magazine/website that serves the plan sponsor and retirement services industry). I'm happy to speak at the event, and Nick has signed off on it, but I wanted to make sure it didn't raise any issues with you. No doubt, I'd end up having to talk about the fiduciary ru le, pending regulatory projects, and possibly current enforcement issues . (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Alison Cooke Mintzer (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Friday, May 26, 2017 To: Trupo, Michael - OPA Cc: Carol Popkins Subject: RE: I nvitation to Speak at the PLANSPONSORNational Conference in June Importance: High Hello Mr. Trupo , Thank you for taking the time out of you r busy schedule to read this emai l. My name is Alison Cooke Mintzer , and I am the Editor-in-Chief of PLANSPONSOR and PLANADVISER (magazines and websites) , which are business-to-business publications foc used on the employersponsored retirement plan industry-spec ifically for those running such plans. Each year we hold our PLANSPONSOR National Conference (PSNC) for our readers of both publicat ions . Our audience at this event runs close to 450 attendees . Those 450 people are a mix of plan sponsors (approx .. 275) , advisers to employer-sponsored retirement plans (125) and the event sponsors (retirement plan recordkeepers and investment managers) . You can find more informat ion about the event on our conference webs ite : AMERICAN PVERSIGHT DOL-17-0281-H-000432 http://www. plansponsor .com/event/psnc2017 /. This year's event is being held in Washington, DC June 7 through 9. I would like to extend an invitation for someone from the DOL or ESSA to speak at our upcoming event. We have been privileged enough to have EBSA Secretaries speak to our group in the past and they are always of great interest. Our audience from across the retirement plan industry pays close attention to the developments and regulatory activity at the Department of Labor, and would relish the opportunity to learn what is going on first-hand. I appreciate any consideration you can give to coming and speaking to our audience. For any more information, please feel free to contact me or Carol Popkins from our conferences and events department, copied here. Thank you for your consideration . Kind regards, Alison Cooke Mintzer Alison Cooke Mintzer Editor-in-Chief , PLANSPONSOR & PLANADVISER Strategic Insight 1055 Washin gton 11 o o '! oo "' Blvd.,Suite 400 , Stamford , CT 06901 st oo (b) (6)(b) (6)(b) (6)(b) (6) Ir.!o. t rk, NY 10022 strategi c-i com We changed our name. AssetInternationalis nowStraJegic Insight. Q!Q,GlobalCustodian,PLANSPONSOR , PLANADVIS.E..R andTheTradeare StrategicInsightbusinesses. This email message is meant only for the intended recipient , is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system , and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name. Asset International is now Slrategk,!lliii.gbj; . C.IQ, GlobalCustodian,PLANSPONSOR, PLANAPYISER andThe Tradeare StrategicInsightbusinesses. This email message is meant only for the intended recipient, is confidential , and may be privileged by law. If you received this message in error , please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise , this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name. Asset International is now Str?ateaic lnsioht C.IQ, GlobalCustodian.PLANSPONSOR. PLANAPVISER andTheTradeare StrategicInsight businesses . This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise , this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. AMERICAN PVERSIGHT DOL-17-0281-H-000433 We changed our name. Asset International is no,v Strategic lnsiahi. .cJ..Q,Global Custodian , PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient, is confidential , and may be privileged by law. If you received this message in error , please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise , this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. AMERICAN PVERSIGHT DOL-17-0281-H-000434 From: To: Cc: Subject: Edozie. Melinda U - EBSAon behalf of Hauser Timothy - EBSA Canary, Joe - EBSA;Hall. Lyssa- EBSA;Piacentini, Joseph - EBSA;Scott William - SOL; Khawar. Ali "~SA; Hansen. Megan D - SOL; Bloom. Teresa - EBSA Cosby. Chris - EBSA;Beckmann.Allan - EBSA;Buyniski Brian - EBSA;Butikofer. James - EBSA;Decressin.Anja EBSA;Lim Youngok - EBSA;Halliday. Susan - EBSA;Grillo-Chope,Luisa - SOL; Lloyd. Karen - EBSA;Zarenko, Kristen - EBSA;Campagna,Lou - EBSA;Wong. Fred - EBSA;Beadle. Nicholas D - SOL; Craig James - SOL; Hopkins. Elizabeth - SOL; Gatesman.Valerie - EBSA;Turner, Jeffrey - EBSA;Henderson. Richard L - EBSA;Kress. Manorie - EBSA;Goodman. Elizabeth - EBSA Biweekly Meeting on Conflict of Interest Reg This is a standing bi-weekly meeting to discuss current issues on the conflict of interest regulation. Please be prepared to discuss the assignments from our last meeting, as well as any new issues. Please also include interested members of your staff The Conference Number below has been updated to what is actually used. (b) (6) AMLHICA\J PVERSIGHT DOL-17-0281-H-000435 From: To: Cc: Subject: Hauser, Timothy - EBSA Khawar, Ali - EBSA Canary, Joe - EBSA;Hall. Lyssa - EBSA;Piacentini, Joseph - EBSA;Scott, William - SOL; EBSA Jeffrey Turner, EBSA; Lloyd, Karen Fiduciary Rule at 4:30? Please invite Joe Canary, Lyssa Hall, Joe Piacentini, Could you calendar this meeting on the fiduciary rule with the Raben Group for June 21 Bill Scott, and anyone they care to bring. From: Francella Chinchilla [mailto:fchinchilla@rabengroup.com] Sent Wednesday, June 14, 2017 6:05 PM To: Hauser, Timothy- EBSA Cc: Estuardo Rodriguez Subject: Re : Meeting Request for Secretary Acosta Hi Tim, Let's do June 21st at 4:30pm. In attendance will be: Board Chair Pamela Sandy Pre sident Shannon Pike Preside nt-elect Frank Pare Executive Director Lauren Schadle Director of Advocacy Karen Nystrom and )%20631-2892"(202) 631-2892) Estuardo Rodriguez , Raben Group (he is the PoC and his cell is HYPERLINK "tel :(202 Thank yout Please send along any instruction s we may need for entry. Francella FRANCELLA CHINC HILLA ! DIRECTOR I THE RABEN GROUP 1341 GSTNW 5THFLOOR I WASHINGTONDC20005 I HYPERLINK "https:// twitter.com/frenchica"@FRENCHICA On Wed, Jun 14, 2017 at 5:55 PM , Hau ser, Timothy - EB SA < HYPERLINK "mailt 21st at 4 :30 looks a little easier for me , but I can make either time work. Just let me (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) > wrote: Tim From: Francella Chinchilla [mailto: HYPERLINK' Sent Wednesday, June 14, 2017 5:43 PM To : Hauser, Timothy - EBSA Cc : Estuardo Rodriguez Subject Re: Meeting Request for Secretary Acosta (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Hi Tim, We could also do the 21st at 4 :30pm. Francella FRANCELLA CHINCHILLA! DIRECTOR 1341GSTNW HYPERLINK' I THE RAB EN GROUP I HYPERLINK "tel:(202)%20466-8585"202 466 8585 MAIN IHYPERLINK (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On Wed , Jun 14, 2017 at 5:25 PM, Estuardo Rodriguez< HYPERL on the 20th? Apologies for my delay, we have been looking at the schedules. Would 12:30 p.m work ote: Es > wrote On Fri, Jun 9, 2017 at 4:04 PM, Hauser, Timothy - EBSA < HYPERLINK for 9:00 a.m. Would that work tor you! I! not, and y~u'd I'd be happy to meet with you on the 20th, but I'm afraid the morning is booked up except still like to meet , I'd be happy to look at other dates (or late afternoon on the 20th) . Tim From: McDaniel, Keshia - OSEC Sent: Friday, June To : HYPERLIN.K (b) (6)(b) (6)(b) (6)(b) Cc: Hauser, Timothy Subject Meeting Request for Secretary Acosta (6)(b) (6)(b) (6)(b) (6) Hello Eduardo , your organization due to scheduling constraints. However, we Per our phone conversation this afternoon, Secretary Acosta will not be able to meet with Hauser ofEBSA. 1 have included him on this email in order to have forwarded your request to Deputy Assistant Secretary of Program Operation s Tim AMf HICAN PVERSIGHT DOL-17-0281-H-000436 introduce you. The Secretary thanks you for your request. We appreciate your understanding. Respectfully, Keshia McDaniel Special Assistant, Scheduling & Advance, Office of the Secretary 0 " " ' HYPERLINK "tel:(202)%20295-7144"202.295.7144 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) ESTUARDO V. RODRIGUEZ JR. I PRINCIPAL I THE RABEN GROUP 1341 G Street HYPERLINK" HYPERLINK' HYPERLINK" (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) "http://www .rabengroup .com/"WWW.RABENGROUP .COM HYPERLINK "https://twitter.corn/TheRabenGroup" j (E) HYPERLINK MAIN I (6)(b) (6)(b) (6) HYPERLINK "https://twitter.corn/TheRabenGroup" A\111HICAN PVERSIGHT DOL-17-0281-H-000437 From: To: Cc: Subject: Date: Attachments: Mulligan, Stacey A. (OFR) Peters. Pamela- ASP; Edwards Michelle- OASAMHRC;Swirsky. Stephanie - ASP Hall, Lyssa- EBSA Requestfor Information Regardingthe Fiduciary Rule and ProhibitedTransaction Exemptions[RIN 1210-AB82]-. EDITSFORREVIEW Friday,June 30, 2017 1:35:46 PM 2017-14101 1204566.docx Hello, Attached is a copy of the above document with edits for review and approval. If you have questions or concerns, please contact me. Regar ds, St?,,ce3/A-.Mvtlli1Mi Writer-Editor Scheduling Unit Office of the Federal Register National Archives and Records Administration 800 N. Capito/ St. NW Suite 700 Washington, DC 2000 I Office (Genera/) : 202 .741 .6060 (b) (6) AMLHICA\J PVERSIGHT DOL-17-0281-H-000438 Exemption 5 - 13 pages withheld DOL-17-0281-H-000439 Derren Burrell Britt McAfee; Troy Tisue; Albert, Scott - EBSA; Canary, Joe - EBSA; Edozie. Melinda U - EBSA; Hall. Lyssa - EBSA; Hauser. Timothy - EBSA; Lloyd, Karen - EBSA; Bob Toth Re: Readaheads for tomorrow"s meeting on the COI Thursday, June 15, 2017 4:43:25 PM Enhancement of the Dol COI Rule.pdf From: To: Subject: Date: Attachments: Re-sending, appears like some of you did not receive it. Derr en Burrel!, CDFM, Alf(R) Chief Operating Officer I TAG Resources, LLC 6322 Deane Hill Drive, Suite 201, Knoxville, TN 37919 (b) (6)(b) (6) office I 865.670.0227 fax www.tagresources.com lo is for the use of the namedindlvidualor entityto which!i is Notice:Thise!ectronicmail transmission direcie1jand maycontaininformationthatis privileged or confidential.it not to be transmittedlO or d receivedby anyoneotherthanthenamedaddressee(or a personauthorizedto deliverit to the il~1111e addressee).it is not to be copiedor forwardedto any unauthol'izedpersons_!fyou havereceivedthis it. and copyingor for-uarding electronic mailtransmissionIn error,deleteit fromyoursystem?without so Resources,~LCat 865-670-1844; notifythe senderof theenorby replyingvia email or calling_TAG that our address:-ecordcan becorrected re: Clickhere iRS Circu!2r 230disclosu (b) (6)(b) (6)(b) (6)(b) (6) On Thu, Jun 15, 2017 at 4:32 PM, Derren Burrell (b) (6)(b) (6)(b) (6)(b) (6) Thank you for the opportunity to discuss the COI ru e an to the rule. > wrote: enhancements Attached are the slides that will use as the basis for the discussion. We look forward to the dialogue. Let me know if you have any questions. v/r, Derren .. Derren Burre!! 1 CDFM1 AI F(R) Chief Operating Officer I TAG Resources, LLC ill Drive, Suite 201, Knoxville, TN 37919 (b) (6)(b) (6) office I 865,670.0227 fax www.tagresources.com . - - is for the use of the namedindividualor entityto whichii is mailtransmission Notice:Thiselec1ronic directedandmaycontain infonnationthatis privilegedor confidentiai. it is notto be transmittedto or receivedby anyoneotherthanlhe namedaddressee (or a personauthorizedto deliverit to the named d to any unauthorizedpersons.If you havereceivedthis addressee).It is notto be copiedor forwarde e!ectronic mailtransmissionin error.deleteit fromyoursystem withoutcopyingor forwardingit, and , so notifythe senderof the errorby replyingvia emailor calling Tfa.GResources,LLCat 865-670-1844 thatour addressrecordcanbe corrected. IP-SCircular230disclosure:Clickhere AMLHICA\J PVERSIGHT DOL-17-0281-H-000440 Introductions The COiandthe EvolvingMarketplace Definingthe Problem The DetailedSolution Summaryand NextSteps DOL-17-0281-H-000442 :::c -I BobToth ERISAAttorney LawOfficeof RobertJ. Toth,Jr., LLC DerrenBurrell,CDMA,AIF(R) ChiefOperatingOfficer TAG TroyTisue,AIF(R) President TAG BrittMcAfee GeneralCounsel TAG DOL-17-0281-H-000443 17-0281-H-000444 InsuranceB/D MegaWireHouse InsuranceRKFirm Pulledeveryrep off all plans Raisedminimumfee requirements Holdingcommissionson insuranceagents Set up call center Instituteda zero start-upsmandate Sendinglettersto all clients notifyingthem of needfor new solution 4,000orphanedplans Poolsof now 'orphaned' accounts DOL-17-0281-H-000445 ~~ ,C!!! ~o;c cf * cial Advisor Co Fina1?1 Today: 285,000usethis term @ I I < ?-~ el DOL-17-0281-H-000446 ~~ PostCOiimpact: 11 "<100,000FAs... Insuranceindustryjettisoned opportunitiesratherthan seekto abideby BICE. DOLMandate: Getmorepeoplein plansto retirewith dignity. Losing 1/2 of distribution channels= contraryto mandate MissionFailure?NotQuiteVet DOL-17-0281-H-000447 -17-0281-H-000448 50%of USworkersare employedby a small business employeesdon'thave 72%of small-business accessto a retirementplan* DOL-17-0281-H-000449 *Small Business Administration defines small business as <500 employees. DOL-17-0281-H-000450 Problem: COI needs to be enhanced to facilitate greater coverage. C: (JJ QJ ...... - ca o.... ::s QJ c.. >,. 0-0., QJ LL.I L... ...... >,.~ 0 ...... C: 0 ...... ?ca QJ c.O c.. a a: c.. ??E~ L.... C: E-S ~~ ...,_ o(.) ca ~ QJ L... QJ 6 U (.) ~ ~~ O Cl O o E c: Lt) QJ - LO C:::: ..C DOL-17-0281-H-000452 -17-0281-H-000453 Permit insuranceagentto recommendexpertfiduciary platform, and not be a fiduciary. The platform must: o o o o o Havesame namedfiduciaries Havesame plan administrator Provide3(21), 3(38) and 3(16) services Havesame investmentplatform Beingresponsiblefor reasonablenessof agent'scompensation DOL-17-0281-H-000454 ~~ Dayto DayWork ServiceProviderMonitoring FiduciaryRisk PlanAdministratorsshouldbe the first stop as the recognizedexpertsin offloadingworkloadfrom the employer. "non-sophisticated" l A ProfessionaPlan Administratorhasthe staff and expertiseto ensurethe service providersare fulfilling the obligationsin their service agreements. Litigationcontinuallyon the rise; protection is in the best interestof all parties Let the 3(16)andthe 3(38)assumethe risk awayfrom the non-sophisticated investorand FA Allowsthe FAto focus on participant outcomes; allows largerdistribution with more FAs Moreprotectionthan InvestmentExpert rule DOL-17-0281-H-000455 ~~ Simplicity Optimization PackagedExpertise Meetsthe Presidential Directivesrequiringa streamlinedregulatory environment.* Providescentralizedcontrol with decentralizedexecution. With 3(16)and 3(38) pre-packaged, the COiintent of placingthe best interestsof the participantrealized. Obtainscaleand efficiencies not normallyentitledto the small business DOL-17-0281-H-000456 3, 2017,82 FR9675/ Presidential for the Secretaryof Labor,February *Memorandum Regulation,January30, 2017,82 FR Controlling and Regulation Reducing on Order Executive 9339 ~~ Suedfor: 3/4 ,,,____ ,,.___ -- ?--?"""?""'~???-,-. ?- ........ V Fundstoo expensive / / ~'1/ Too manyinvestmentoptions/ too manyfunds Failureto offer lowershareclass funds Failureto removeunderperforming I / 1 I \1. / ? I I \ ,, A / / \ Annuityproductsofferedweretoo expensiveandrestrictive \,, ij.,..,,,,,,,,, .....,.,,,,.,.. / .J /~' -~----.? ___ oo ,.,,,,? ! /'' ") o" \,.,,. ' i 1 I --? , o o 3/4 ,, ,, . \\ . .. ' 3/4 / \ ..,/?.? "/' / //?,.) \/ .?? /\? "-.__/ /"- Failureto appropriatelyevaluaterevenuesharing //\ / ; ( r\? ~ Too manyrecordkeepers \ / / ,. \ . / ,,--u / ! , Failureto take advantageof 'megaplan'economiesof scale /'~\', / ,> ....,,,... / DOL-17-0281-H-000457 ame, ?ashy Suit and a? utility be/?f full of 1?51'0' realulife superhero. . 17-0281-H-000458 DOL-17-0281-H-000459 DOL-17-0281-H-000460 II fil Upl MonitorTAG i ('1!1:,Cl f. ".:i Ci rl l"'l j d d A 1 \ of adrninistrativetasks DOL-17-0281-H-000461 DOL-17-0281-H-000462 17-0281-H-000463 ~~ Modifythe COiRule Add exception whenusing3(16) and 3(38)experts IssueAdvisoryLetter Explainingthe needto increase coveragethrough pooled environments Environment ModifyRegulatory Implementpolicychanges to bringbackpooled employerplans/OpenMEP DOL-17-0281-H-000464 7400 From: To: Subject: Date: Attachments: :: " ,, 's ,. Derren Burrell Britt McAfee; Troy Tisue; Albert, Scott - EBSA; Canary, Joe - EBSA; Edozie, Melinda U - EBSA; Hall, Lyssa - EBSA; Hauser, Timothy - EBSA; Lloyd, Karen - EBSA; Bob Toth Readaheads for tomorrow"s meeting on the COI Thursday, June 15, 2017 4:34:41 PM Enhancement of the Dol COI Rule.pdf . o is " <-'( :imnismessagewas sentsecurelyusingZixCorp. " ~ , V/ l / " Thank you for the opportunity to discuss the COI rule and potential enhancements to the rule. Attached are the slides that will use as the basis for the discussion. We look forward to the dialogue. Let me know if you have any questions. v/r, Derren CDft-11,j,l\IF( ?) Der1'"en Chief Operating Officer I TAG Resources, LLC_ ill Drive, Suite 201, Knoxville, TN 37919 ~ (b) (6)(b) (6) office I 865.670.0227 fax www.tagresources.com otice::This eiectrcnicmail 1,1 directedsrid ived Jy anyone rec:~ this ha\ierecs!'.,-ed er forNardingit 2nd l fromyciursystem so smaii or cailingTAGRescurces,LLCat 865-670-1844, that our addr:;ss :-eccrdcanbecorrected IRSCircuiar 230 This message was secured by ZixCorp!R)_ AMLHIGA\J PVERSIGHT DOL-17-0281-H-000466 'sl? ~,j, m 1.J Introductions The COiand the EvolvingMarketplace Definingthe Problem The DetailedSolution Summaryand NextSteps DOL-17-0281-H-000468 ~ 'S? m::.. 'TY" BobToth ERISAAttorney Law Office of RobertJ. Toth Jr. LLC OerrenBurrell,CDMA,AIF(R) Chief OperatingOfficer TAG Troy Tisue,AIF(R) President TAG BrittMcAfee GeneralCounsel TAG . 1 1 DOL-17-0281-H-000469 ~ b< r~ m InsuranceB/D MegaWireHouse InsuranceRKFirm rep off all Pulledeve1?y plans Raisedminimurnfee requirements Holdingcommissionson insuranceagents Set up call cente,- Instituteda zero start-upsmandate Sendingletters to all clients notifyingthem of needfor new solution 4,000orphanedplans Poolsof now 'orphaned, accounts DOL-17-0281-H-000471 :::c ;A -I ?Ci _IQ) rit:I I!~ { -ii ~!,"; ~u'! !jJ ?~ '/21 ru "'o-" 1nt ii t,1 "" ffo (~ o,11,.? ti Ju ij 11:'.o.lii i- Today:285,000usethisterm Lj lit ~ 'P ..t"'""' .,,,.r7s ~ { DOL-17-0281-H-000472 D)> <~ m? Post COi Impact DOLMandate: "<100,000FAs..." Get more peoplein plans to retire with dignity. Insuranceindustryjettisoned opportunitiesrather than seekto abide by BICE. Losing 1/2 of distribution channels= contraryto mandate MissionFailure?Not Quit:eVet DOL-17-0281-H-000473 btn.~ ,? Problem: COineedsto be enhancedto facilitate greater coverage. DOL-17-0281-H-000477 ?Vania? if; fix: i 'o~ < oT1 m Permit insurance agent to recommendexpert fiduciary platform, and not be a fiduciary. The platform must: o o o o o Havesame namedfiduciaries Havesame plan administrator Provide 3(21), 3(38) and 3(16) services Havesame investment platform Being responsiblefor reasonablenessof agent's compensation DOL-17-0281-H-000480 ~ 'S? :i~~,; Dayto DayWork ServiceProviderMonitoring FiduciaryRisk PlanAdministratorsshould be the first stop as the recognizedexpertsin offloading workloadfrom the "noh-sophisticated"employer. A ProfessionalPlan Administratorhas the staff and expertise to ensurethe service providersare fulfilling the obligationsin their service agreements. Litigationcontinuallyon the rise; protection is in the best interest of all parties Let the 3(16) and the 3(38) assume the risk awayfrom the non-sophisticated investorand FA Allows the FAto focus on participant outcomes;allows largerdistribution with more FAs More protectionthan InvestmentExpert rule DOL-17-0281-H-000481 ~! m~ : :,, '~~~ o:::: Simplicity Optimization PackagedExpertise Meetsthe Presidential Directivesrequiringa streamlinedregulatory environment.* Providescentralizedcontrol with decentralizedexecution. With 3(16) and 3(38) pre-packaged, the COiintent of placingthe best interestsof the participant realized. Obtainscale and efficiencies not normallyentitledto the small business DOL-17-0281-H-000482 *Memorandumfor the Secretaryof Labor,February3, 2017, 82 FR9675 / Presidential FR ExecutiveOrderon ReducingRegulationandControllingRegulation,January30, 2017, 82 9339 /""\ Suedfor: Fundstoo expensive Too manyinvestmentoptions/ too manyfunds Failureto offer lowershareclass Failureto removeunderperformingfunds Failureto take advantageof 'megaplan'economiesof scale / // / . I I \ . \ ,/ / \, j _,/ ..___ . '\ // /- 1? .,/'?..,,, ' ' ~--?--?--------\_ Too manyrecordkeepers Failureto appropriatelyevaluaterevenuesharing Annuityproductsoffered weretoo expensiveand restrictive . / \. { / ,/ ,.__ /'?? /) /----~/ 17/I \ \ // \ \ \ ----~..."- ~-- ,,. /,/'\ \ \ ....--o-- ..~ / / ,,... I I \ / I I - (/ ,/) //....--------~~-....., / / ~ ??-....-.. . ....,A_,." - ......._....) .- =___ ..,_.,.,,.....,.... ...,........ ........ . DOL-17-0281-H-000483 flashy suit and a a real-fife superhero Hy belt full of DO. 17-0281-H-000484 inf?? \Nuuwugvaaxmw. 7 . 153$ ?km ?ve00735837838 E9le 17-0281-H-000487 23:? 3 :?azztiw ?Ls- 3kg; Eff. DOL-17-0281-H-000488 -17-0281-H-000489 ~? 'S m Modifythe COiRule Add exception whenusing3(16) and 3(38)experts IssueAdvisoryletter Explainingthe needto increase coveragethrough pooled environments ModifyRegulatoryEnvironment Implementpolicychanges to bring back pooled employerplans/OpenMEP DOL-17-0281-H-000490 . U.S. Department of Labor Office of the Solicitor Washington, D.C. 20210 DEC.&3 2018 ,i Austin R. Evers American Oversight 1030 15th Street, NW, Suite B255 Washington, DC 20005 Dear Mr. Evers: This correspondence is in further response to your Freedom of Information Act (FOIA) request dated July 21, 2017 (tracking number 836892) wherein you requested: 1. All calendar entries for any meetings pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the "Fiduciary Rule" or "Conflict oflnterest Rule," 29 C.F.R. ? 2510.3-21. For calendar entries created in Outlook or similar programs, the documents should be produced in "memo" form to include all invitees, any notes, and all attachments. Please do not limit your search to Outlook calendars--we request the production of any calendar--paper or electronic, whether on government-issued or personal device--used to track or coordinate how these individuals allocate their time on agency businesses. 2. All meeting agendas and list of attendees for any meetings held pertaining to the development, implementation, consideration, evaluation, reconsideration, or re- evaluation of the Conflict of Interest Rule. 3. All lists ofattendees for any meetings held pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest Rule. 4. Any materials distributed by DOL or provided by non-DOL attendees at any meetings attended by persons not employed by the executive branch and held pertaining to the development, implementation, consideration, evaluation, reconsideration, or re- evaluation of the Conflict of Interest Rule. 5. All e-mails reflecting requests for meetings with non-DOL parties to discuss the development, implementation, consideration, evaluation, reconsideration, or re- evaluation of the Conflict of Interest Rule. 6. Cop?es of all correspondence pertaining to the development, implementation, consideration, evaluation, reconsideration, or re-evaluation of the Conflict of Interest Rule. This includes any official correspondence to or from DOL, including correspondence to or from other federal agencies, as well as correspondence with or by any non-governmental person or entity. By email of August 31, 2017, you clarified item number 6, indicating that American Oversight would welcome the opportunity to review a log of correspondence and identify specific entries /\\lltRICAN PVERSIGHT that would be of interest to the organization. We provided you with that log along with our letter of May 1, 2018. As you know, your request has been assigned to multiple DOL agency components for processing. In accordance with our FOIA regulations published at 29 C .F.R. ? 70.20, when it is determined that records responsive to a request may be located in multiple components of the Department, the Office of Information Services (OIS), within the Office of the Solicitor, may coordinate a Departmental response. In this instance , my staff in OIS continues to work with the assigned agency components to process records deemed responsive to your request. This response contains the final release of responsive records from the Plan Benefits Security Division of the Office of the Solicitor (SOL), in accordance with the Joint Status Report (JSR) filed on July 11, 2018. Consistent with the schedule from the JSR, the referenced agency component located 3 71 pages of records for this response . We are releasing them in the following manner (note that some pages may include redactions under more than one exemption): o o o 281 pages are being released in full; and 1 page has been redacted in part pursuant to 5 U.S.C. ? 522 (b)(5) , which permits the withholding ofrecords reflecting deliberative materials such as advisory opinions and recommendations , and 90 pages have been redacted in part pursuant to 5 U.S.C. ? 522 (b)(6) , which permits the withholding of personnel, medical and similar files when disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Please note that additional responsive documents from the Employee Benefits Security Administration will be provided to you on a rolling basis . Questions regarding this response can be addressed to Sharon Hudson, SOL FOIA Coordinator, by phone at 202-693-5406 or by email at hudson.sharon@dol.gov . If you need any further assistance or would like to discuss any aspect of your request, please do not hesitate to contact the DOL FOIA Public Liaison, Thomas Hicks , at 202-693-5427 or by email at hicks.thomas@dol.gov . Alternatively, you may contact the Office of Government Information Services (OGIS) to inquire about the mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park , MD 20740-6001. You can also reach that office by email at ogis@nara.gov , by phone at 202 -741-5770, by fax at 202-741-5769, or by calling toll-free at 1877-684-6448. Although this matter is currently in litigation , you retain the right to file an administrative appeal. You may file an appeal of this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state in writing the grounds for the appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal , please include your mailing address and daytime telephone number , as /\M Re PVERSIGHT well as a copy of the initial request and copy of this letter. The envelope and appeal letter should be clearly marked "Freedom of Information Act Appeal." Any amendment to the appeal must be made in writing and received prior to a decision. The appeal should be addressed to the Solicitor of Labor, Division of Management and Administrative Legal Services , U.S . Department of Labor , 200 Constitution Avenue , N.W., Room N-2428 , Washington , D.C . 20210. Appeals may also be submitted via email at foiaappeal @dol.gov. FOIA appeals submitted to any other email address will not be accepted. Sincerely , Deputy Solicitor for Regional Enforcement Enclosures /\M RICAN PVERSIGHT Ex.{6) Amin, Stacy_c. _EOP/WHOI I 3/21/2017 1 .29. 51 PM ;.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.J From: Sent: To: ~:-I~QfZ;~~~-~~-~--=- c~!-~-~--:~-~~-~-~:-~::.:..~~]~C=..:..:..:::::::::::::::::1.~:~J.~~9_ry __ Sherk, James B. EOP/WHO j Ex.(6) ; Knight, Shahira E. EOP/WHO 10 MB r-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-p;rimfi's-oi\-.J"es"sica.-c.-EoP ! v> - Ge ale Nicholas C. - so r.-.-.-.-.-.-.-.-.-.-.-.-.-.-Ex."fsi-.-.-.-.-.-.-.-.-. '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.LL______________________________ _ ______ M_~[(9.Y __ (Q.6.$.Ql.(b) (6)(b) (6)(b) (6)(b) (6) Czajkowski, Daniel V. EOP/WHO 1 __8-_[_i9_Q : ! Subject: Location: Start: End: Recurrence: Meeting Status: Ex. (6) Ex.(6) I Campau, Anthony P. EOP/OMB '.-.-.Fiduciari.Rule .meeting-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-; Required Attendees: Optional Attendees: EEOB 208 Thu 3/23/2017 1 :00:00 PM Thu 3/23/2017 2:00:00 PM (none) Accepted Amin, Stacy C. EOP/WHO;Bremberg, Andrew P. EOP/WHO;Salvi, Mary E. EOP/WHO;Sherk, James B. EOP/WHO;Knight, Shahira E. EOP/WHO;Anderson, Jessica C. EOP/OMB;Geale, Nicholas C. SOL;Murray, Brian (OASG);Czajkowski, Daniel V. EOP/WHO;Campau, Anthony P. EOP/OMB Aguilar, Brenda L. EOP/OMB;Hansen, Megan D - SOL;Scott, William - SOL;Hauser, Timothy - EBSA Please send waves info to Daniel.V.Cz,ajkowskij EX.(6) !at least 24 homs in advance. Thank you. L--.-.-.-.-.-.-.-.-.-.-.-. A\/1 YICA\J PVERSIGHT . DOL-17-0281-I-000001 ..-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ From: Sent: To: I____ JQD~E~~MrQ~_{_1 Ex. (6) I '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.' 3/21/2017 1:29:48 PM ,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Hauser, Timothy - EBSA r-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-scott, William - SOL~ Ex.(6) i . Ex (6) ! '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-." ___ J:Jfu1~~D".JYl_~gsJ_Q_Q __ ~--?.QJ,,_l._________ o DV>;Piacentini, Joseph - EBSA L.________________________ ~~.J~) _____________________ __Jc-arney;-"Jo-,r:.-osHA-C--L----------~---.-.E.x:(si-.-.-.-=-.-.-.-. Subject: Show Time As: FW: Fiduciary Rule meeting Free Recurrence: Required Attendees: (none) Hauser, Timothy - EBSA;Scott, William - SOL;Hansen, Megan D - SOL;Piacentini, Joseph EBSA;Carney, Jon - OSHA -----Original Appointment----: j From: A_min,Stacy C. EOP/WHO [mailtoj i Sent: Fnday, March 17, 2017 4:41 PM '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.J To: Amin, Stacy C. EOP/WHO; Bremberg, Andrew P. EOP/WHO; Salvi, Mary E. EOP/WHO; Sherk, James B. EOP/WHO; Knight, Shahira E. EOP/WHO; Anderson, Jessica C. EOP/OMB; Geale, Nicholas C. - SOL; Murray, Brian (OASG); Czajkowski, Daniel V. EOP/WHO; Campau, Anthony P. EOP/OMB Subject: Fiduciary Rule meeting When: Thursday, March 23, 2017 1:00 PM-2:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: HOLD r.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.1 Ex.(6) i Please send waves info to I Ex ? ( 6) i lat least 24 hours in advance. Thank you. i.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.i A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000002 From: Sent: To: i Ex.(6) i Amin, Stacy c. EOP/WHO 3/21/2017 1 :29: 50 PM ".-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.' _'?_)~:J~)______ !-~-a._~~-~!.c._~i!l}~!-~Y - E BSA ,._t'-TD!IJ.,_.?t_a._~y__Qc.J~Q.P.Jwtl.Q.L _____________________ Ex. (6) I ~J~~tp:~~t:i~ ;~~~h .---EBs/;J.~t-.-.-.-.-.-.-.-Et~{:p5-~_~:._~_8-Q.r ga~n~~,L P. E0P7V~tK.L~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~----.-.-.-.-.-.-., r.-.-.-.-.-.-.-.-.-.-.-.- Ex. 6 .-.;Salvi, Mar E. EOP/WHO Q~---l----------------------__________ __1 Sent: To: Subject: Show Time As: 3/22/2017 10:48:21 AM Amin, Stacy C. EOP/WHO t-.-.-.-.-.-.-.-.-.-.-.-.-~-~-:(~) ___________________________ j Accepted: Fiduciary Rule meeting Free Recurrence: Required Attendees: (none) Amin, Stacy C. EOP/WHO A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000004 1.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.1 Ex.{6) i From: Scott, William-SOL! i i [-------------------.Ex-:{sj.-------o-----------l-----------------------------------------------------------Sent: To: Subject: Show Time As: 3/21/2017 1 :30:40 PM : : Amin, Stacy C. EOP/WHO ! Accepted: FW: Fiduciary RulEfTi'i"eelfi'i{f.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.' Recurrence: Required Attendees: (none) Amin, Stacy C. EOP/WHO A\/1 YICA\J PVERSIGHT i Ex.(6) Free DOL-17-0281-I-000005 From: t~-hi'i:([)-:3~~-----------------------------Ex. (6) __________________ I Sent: To: Subject: l--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. Show Time As: 3/28/2017 10 :27: 32 AM . .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-____________________________ j Brammer, J OS h J. EOP/ 0 MB l.-.-.-.-.-.-.-.-.-.--.-.-.-~-~J~} Accepted: Fwd: OMB/SIFMA meeting on DOL final rule, "Definition of the Term Fiduciary - Delay of Applicability Date" Free Recurrence: Required Attendees: (none) Brammer, Josh J. EOP/OMB I will call in. Susan Harthill (SOL) A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000006 From: [__ tied_E~~(6f ?QWl_________________________ ~~J~_)_ ____________ __j Show Time As: 3/27/2017 5:18:07 PM Brammer, Josh J. EOP/OMB Ex.(6) : Tentative: Fwd: OMB/SIFMA meeting on DOL final rule, "Definition of the Term Fiduciary - Delay of Applicability Date" Free Recurrence: Required Attendees: (none) Brammer, Josh J. EOP/OMB Sent: To: Subject: A\/1 YICA\J PVERSIGHT i DOL-17-0281-I-000007 From: !____ Sco1Ev;T6rLL_l--------------------__________ j L---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. Sent: To: Subject: Show Time As: 6/15/2017 2: 25: 45 PM ; --.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-., Ex.(6) :. Echols, Mabel E. EOP/OMB ~ L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Accepted: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Transaction Exemptions Free Recurrence: Required Attendees: (none) Echols, Mabel E. EOP/OMB A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000008 From: i:-cs)~~Jl--------------------________ l l_!lc?tt,_g Show Time As: 6/9/2017 4:55:51 PM Echols, Mabel E. EOP/OMB Ex.(6) ! Declined: FW: E.O. 12866 Meeting on Request for Information on Fiduciary Rule and Prohibited Transaction Exemptions Free Recurrence: Required Attendees: (none) Echols, Mabel E. EOP/OMB Sent: To: Subject: A\/1 YICA\J PVERSIGHT 1 DOL-17-0281-I-000009 Egbuonu, Chizoba Canary, Joe - EBSA; Rebecca Zak; Orange, Michael W.; Turner, Jeffrey - EBSA; Michael OforiKuragu; Ackmann, Rachel J.; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA; Halliday, Susan - EBSA; Hauser, Timothy - EBSA; Scott, William - SOL; Piacentini, Joseph - EBSA Miller, Joel; Dalton, Tish 5/15/2017 5:09:28 PM RE: IRA Bank Deposit Issue From: To: CC: Sent: Subject: Thanks Joe, Rebecca and Michael for getting back to us. It looks like Wednesday, May 31, 1-2pm wo rks for all of us. I will send out an invite with a dial-in number shortly. ,-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. . From: Canary, Joe - EBSA [mailtj Ex.{6) i Sent: Monday, May 15, 2017 5:02 PM . 1---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.! To: Egbuo nu, C hizo ba[~:~:~:~:~:~:~:~:~:~:~:~:=:~:~:~:~~~{sf~:~:~:~:~:~:~:~:~:~:~:=:~:~:~J Rebecca Zak Ex. {6) iorange, Michael Turner, Je!f~~y__ ~__ ?_~?~ _ {~~~~~~~~I~:Ic.L~~~~~~~~\ L____________ ~x.(~L.___________ J;A ~-~!D.?..IJ.IJ1.J3.?~b~l_~_:.L.,.,.,.,.,r--.-.-.!=-X..:( 6L_______________ _i Campagna, Lou - E BSA i_________________________ ~_x._:_(~)_ _____________ J C[?J.91 __ ~_?_':!l_~_?._:_?_Q_~_L_---r.---.-.-.!=..X...-_(!) __________________ j LioY~1__IS.?~~-Q_: __ ~_??_6I::::::::::~~;(~[;:::::::J Wong, Fred - E BSA ~1 Ex.(6) jHansen, Megan D - SOL 4______________________________ ~~-:(~l.__ __________________________ JHall, Lyssa - EBSA ..! Ex.(6) _H . <:--.-.-.-.-.-.-.-.-.-.-.-.ex-.-s"-.-.-.-.-.-.-.-.-.-.-.-.-H . '.-.-.-.-.-.-.-,-.-.-.-.--=--.-.-.-.=.-.-.-.-.-. alhday, Susan EBSA ;__ o-.-.-.-.-.-.-.-.-.-.-.-.-.".U.L.-.-.-.-.-.-.-.-.-. 1 .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. E (6) ' __. auser, Timothy EBSA I Scott, William - SOL L____________________ )_(: ________________________ _J Piacentini, Joseph - EBSA i ,._Y.Y.:.f::::::::J_~;(~i::::::::J _r-.-.-.-.-.-.-.-.-.-.-~~I~L:::::::::::::::=TK.iffcfa __ l EX.(6} ;_cc.:--r~tf iiier,--J"o-ef"r~~~~~~~~~~~~~~~~~~~~J~~-I~f ~~~~~~~~~~~~~~~~~~J D a ItO n, Ti sh 1.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-Ex.:t"sr-.-.-.-.-.-.-.-.-.-.-.-.-.-i Subject: [EXTERNAL] RE: IRA Bank Deposit Issue L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. Thank you for reaching out. If I am follo wing the email traffic, it look s like the week of May 29 is better for schedules. Labor folks can make ourselves available on Tuesda y May 30, Wednesday May 31, and Thursda y June 1. If yo u all pick among those dates the one that is best for yo u, we will make ourselves available. Alternatively, I can pick the date and time and send around a meeting invite. Let me know yo ur preference. Thanks. From: Egbuonu, Chizoba Sent: Wednesday, May 10, To: Rebecca Zak; Orange, Michael W.; Turner, Jeffrey - EBSA; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary, Joe EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA Cc: Miller, Joel; Dalton, Tish Subject: RE: IRA Bank Deposit Issue Thanks Rebecca for letting me know. From: Rebecca Zak [m?iH~ Ex.(6) ] '-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ Sent: Wednesday, May 10, 2017 10: 19 AM ,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.To: Orange, Michael W. :-.-.-.-.-.-.-.-.-.-.-.Ex~{sf.-.-.-.-.-.-.-.-.-.-.1 Egbuonu, Chizoba i Ex.(6) ! Turner, .i Ex.( 6) Ac:I;Craig, James - sg_~..S ................. ~.~~.(~).........1-.-.-.j; Lloyd, Karen - EBSA 1.========.-.-.1Wong, Fred - EBSA i .Ex.(6) .-.-.-.-.-.-.-.-.-.LHansen, Megan D - SOL ~ii=========i~;r~i:==========-t~1~,~~l)L ?~-:'.~~?~J:csr.-.-.-~~J~\oa1ton:sh {::::::::::::::~~I~ Subject: RE: IRA Bank Deposit Issue '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. All, th I am on an IT exam the week of May 15 . I am available the week of May 29 th . Thanks Michael W. Orange, CFIRS Senior Examination Specialist - Trust Pol icy ~_nd __ Program __ De'relopment Section Ex.(6) ________________ __.! Phone: !___________________ Ce 11: Ex_. {6)__________________ i l__________________ From: Egbuonu, Chizoba [_____________________________________ ~-~-J~)_ _________________________________ __j Sent: Monday, May 08, 2017 12:39 PM To: Orange, Michael W.; Turner, Jeffrey - EBSA; Rebecca Zak; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary, Joe EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA Cc: Miller, Joel; Dalton, Tish Subject: IRA Bank Deposit Issue All- since our last conference call in February, DOL has delayed the applicability of certain provisions of the fiduciary rule to June 9th . Based on our review of the rule and discussions with DOL , it appears that --------------------------------------------------------ob----------------------------------------------------------------------------- Thanks , Chiz Chizoba Egbuonu Asset Management Policy Office of the Comptroller of the Currency, U.S. Department of the Treasury Off 1cer-.-.-.--.--. - .---.---. --.-.-.-.-.-.-: Mobil~ Fax: l 400 Ex.(6) ythStreet, S.W. ! : . ..-.-Wash _in_gt on ,__ D..C ..2021_9-.-.-.-.-.-.-.-.-.-.-.-.-.-.- i L-- .-.-.-.- - . .- -- ~ E~6) , - o- o- .- .- .- .- .-.- - .-.- .-. - .-.- -. -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. i DOL-17-0281-I-000012 This message was secured by DOL-17-0281-I-000013 Canary, Joe - EBSA Egbuonu, Chizoba; Rebecca Zak; Orange, Michael W.; Turner, Jeffrey - EBSA; Michael Ofori-Kuragu; Ackmann, Rachel J.; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa - EBSA; Halliday, Susan - EBSA; Hauser, Timothy - EBSA; Scott, William - SOL; Piacentini, Joseph - EBSA Miller, Joel; Dalton, Tish 5/15/2017 5:00:47 PM RE: IRA Bank Deposit Issue From: To: CC: Sent: Subject: Thank you for reaching out. If I am follo wing the email traffic , it look s like the week of Ma y 29 is better for schedule s. Labor folk s can make oursel ves available on Tuesda y May 30, Wednesda y Ma y 31, and Thursda y June 1. If you all pick among those date s the one that is best for you, we w ill make our selves available. A lternatively, I can pick the date and time and send around a meeting invite. Let me know your preference. Thank s. From: Egbuonu, Chizoba [mailtoi Ex.{6) ! Sent: Wednesday, May 10, 20lil0:27 AM To: Rebecca Zak; Orange, Michael W.; Turner, Jeffrey - EBSA; Michael Ofori-Kuragu; Ackmann, Rachel J.; Canary, Joe - EBSA; Campagna, Lou - EBSA; Craig, James - SOL; Lloyd, Karen - EBSA; Wong, Fred - EBSA; Hansen, Megan D - SOL; Hall, Lyssa EBSA Cc: Miller, Joel; Dalton, Tish Subject: RE: IRA Bank Deposit Issue Thanks Rebecca for letting me know. From: Rebecca Zak [m.9..i.!! Ex.{6) i Sent: Wednesday, May 1'0, 2017 10: 19 AM . ,--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-., Egbuonu, Chizoba Ex.(6) j Turner, To: Orange , Michael W. r.-.-.-.-.-.-.-.-.-ix~(Gf-.-.-.-.-.-.-.-.-.1; i J e, __ f_f~~x-~ Ji __ ?_?_~~--{:~:~:~:~:~:~:~,a,a,;-~-~:(~)___ __________________ _J-.MTcfia~.1 __ Q_f9._ri~_is~r_c!9!:l __ :L~~~~----.-.-., Ex.(6) i Ackmann, R ache I 1Ciiiffi5agriii ,ToiT:-"EBSA ; Canary, Joe - EBSA .~.l\iTicna~I_Q!C!t~~-IS~!.?..9.~--~ L .________Ex. { 6) ! Ackmann, Rache I J eff _ r.~y__ :-_~J?.?6. _ J. <. i Ex.,(6} iCanary, Joe - EBSA <.i Ex.(6) r.valllpagrrct;--unr-=.-ccrvF\' DOL-17-0281-I-000014 V --.-.---------o--.----- ----_.-.---------o o------------------------------------------------. r.-.-.-.-.-.-.-.-Ex-.-.(-.-s.-).-.-.-.-.-.-.-.-.-l>; Craig , James - SO_ !::.L ________ ~_~J~)_ ____ ,______ __i;Lloyd , Karen - EBSA l o i Ex.(6) !/Y.9..'=191.__Fred - EBSA ; Craig , James - SOL r--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-1>; Lloyd, Karen - EBSA '--'.-.-.o.-.-.-.-.-.-.-.-.Ex..l.6.L.__________ , X L---.-.-.-.-.-.-.-.-.-.-.-?-----.-.-.-.-.-.-.-.-.-.-.jY'{gn_g_!.; Fred - EBSA 1-___ ,---~-~A?L ______________ l:B. 9_~~-~-~ , Megan D - SOL ;-.-.-.-.-.-.-.-.-.-.E._~,_{_?J______________________ Hall, L~_ss.1::t.: ____ __BSA.L. ________________ Ex../.6J__________________ j ,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Cc_:_j Ex.(6) nExternal) 4 Ex.(6) !; Dalton, Tish I :dnnkerb1ddle. com.-.-.-.-.-.-.! From: Campbell, Bradford P. Sent: Monday, September 25, 2017 10:26 AM To: Canary, Joe -EBSA I \vww .dnnkerbiddle. com-.-.-.-.-.! ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm ' s Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drink er Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's p .o,,.reton G>f -GBP1r ~isfi l rthanI. Epstein, and the partner responsible for the firm ' s Florham Park office is Andrew B. DOL-17-0281-I-000028 Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph . ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm ' s Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm ' s Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged . Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm ' s Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ******************* ******************* aJ h DOL-17-0281-I-000029 LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership . The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message . Thank you very much . ************************************** A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000030 From: Sent: To: (e"-~Ei:{Sj~?~H----------------------------x. (6) ________________ I 11/14/2017 10:08:52 AM Hauser, Timothy - EBSA il---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.Ex.(6) Piacentini, Joseph - EBSA . L_, ____________ !'..:<.:.~L--------.-.-.-.-.-iHall, Lyssa - EBSA (b) (6)(b) (6)(b) (6) Lloyd, Karen - EBSA i Ex.f6) i; Campagna, Lou - EBSA ; ra 19, a mes 1___________________ ~-~.-J~---.-.-.-.-.-.-.-.-i Canceled: Meeting with Tom Kmak (Fiduciary Benchmarks) and Brad Campbell on Fiduciary Rule-Recommendation of distributions and rollovers Free 1 -.-Ex-.-c.-.s-}.-.-.-.-. .-.- Subject: Show Time As: Recurrence: Required Attendees: Attachments: A\/1 YICA\J PVERSIGHT (none) Hauser, Timothy - EBSA;Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Lloyd, Karen EBSA;Campagna, Lou - EBSA;Halliday, Susan - EBSA;Scott, William - SOL;Hansen, Megan D SOL;Craig, James - SOL Re: Meeting Request; RE: Meeting Request DOL-17-0281-I-000031 Campbell, Bradford P. Canary, Joe - EBSA 10/31/20171:55:07 PM Re: Meeting Request From: To: Sent: Subject: Joe, sorry to change this request yet again, but would 11/16 work? Thanks! (And Happy Halloween!) Sent from my iPhone On Oct 12, 2017 , at 3:35 PM , Canary , Joe -EBSA 1 Ex.(6) oo-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o- !wrote: I I will check. From: Campbell, Bradford P. Sent: 10/12/2017 2:46 PM To: Canary, Joe - EBSA Subject: RE: Meeting Request I'm so sorry to do this-would 11/9 work instead? Tom thought I had said Thursda y, which did work for him, not Frida y, which doesn't. The mistake is mine. I appreciate your patience! Bradford P. Campbell Dri11kerBiddle & Reath 1500 K Street. N.W. WashingtonDC 20005 . ' 1 ! Ex.(6) ' 1 '--.www. dnnkerfoddle .com-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.' From: Canar y, Joe - EBSA [maiL_______________ Ex.(6) ________________ ! Sent: Thursda y, October 12, 2017 12:45 PM To: Campbell , Bradford P. i Ex.(6) i '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ Subject: RE: Meeting Request Brad: Tim just confirmed so I think vve have reached critical mass to reschedule for Friday , Oct. 20 at 3pm. From: Canary. Joe - EBSA Sent: Thursday, October 12, 2017 11:50 AM To: 'Campbell, Bradford P.' Subject: RE: Meeting Request Not yet. Tim has not confinned he is available . From: Campbell, Bradford P. [rnailto:: Sent: Thursday, October 12, 2017 11:47 AM To: Canary, Joe - EBSA Subject: RE: Meeting Request Ex.(6) i ' DOL-17-0281-I-000032 Can ,ve put it down as a date ? Thanks! Brad Bradford P. Campbell Dri11kerBiddle & Reath 1500 K Street, N.W. ,.-.WashingtonDC_20005 _______________________ _ Ex.(6) I I ' www .drinkerbiddle.com . From: Canarv. Joe - EBSA [mailto! Ex.(6) .,, ,. -------l--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-) i Sent: Thursda y, October 12, 2017 11:38 AM To: Camp be 11, Bradford P. f .-.-.-.-.-.-.-.-.-.-.-.-.-.-.Ex..-(sY-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.: Subject: RE: Meeting Requ~st Checking on Friday at 3pm. Schedules pretty tight othenvise. From: Campbell, Bradford P. [rnailtoi . . . Ex.(6) . . . ----,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Sent: Thursday, October 12, 2017 11:18 AM .i To: Canary, Joe - EBSA Subject: RE: Meeting Request Thanks , Joe-sorry to keep pushing be he has to make travel plans. I knO\v you guys are bus y as can be . Bradford P. Campbell Dri11kerBiddle & Reath 1500 K Street. N.W. WashingtonDC 20005 Ex.(6) I I i.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- ,vww .drinkerbiddle.com i 1.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.1 Ex.{6) From: Canar v. Joe - EBSA [mailtoi ., .' ------,,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. i Sent: Thursda v. October 12, 2017 7:57 AM <~ Ex (6) ! To: Campbe..11,~Bradford P . Cc: Hauser. Tunothv - EBSA! ? ! Subject: Re: Meetii~g Request.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.J Brad: I will check and let you know if I can put this on the calendar for Thursday or Friday of next week. From: Campbell , Bradford P. ~ Sent: Monday , October 9, 2017 2:44 PM To: Canary , Joe - EBSA Cc: Hauser , Timothy - EBSA j)vE=Rs1GRT ueS t Ex.(6) : . DOL-17-0281-I-000033 Happy Columbus Day, Joe! Just wanted to follow up and see if either of those following days would work given Tom's conflict. Thanks! Brad Sent from my iPhone On Oct 3, 2017, at 4:25 PM, Campbell, Bradford P. [_.-.-.-.-.-.-.-.-.-.-.-.-.-Ex.(6) -.-.-.-.-.-.-.-.-.-.-.-.-.] wrote: Thanks, Joe--unfortunately , Tom has a conflict. Is there any time on the following day or the day after that? Thanks! Brad Sent from my iPhone ,-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ On Oct 3, 2017 , at 6:27 PM , Canary , Joe - EBSA i.__ ___________ Ex._{6).-.-.-.-.-___! > wrote: Brad: We firmed things up here for Oct. 18 at 11am. Let me know if that works for you and Tom. From: Canary, Joe - EBSA Sent: Tuesday, October 03, 2017 2:58 PM To: 'Campbell, Bradford P.' Cc: Hauser, Timothy - EBSA Subject: RE: Meeting Request Brad: FYI. I am working on Oct. 18 at llam. Should be able to tell you shortly ifl can firm that up. r.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.1 From: Campbell, Bradford P. [mailtct_______________________ EX. ( 6) -.-.-.-.-.-.-.-.-.-.-.-.J Sent: Friday, September 29, 2017 12:21 PM To: Canary, Joe - EBSA Cc: Hauser, Timothy - EBSA Subject: RE: Meeting Request Thanks! Brad Bradford P. Campbell Dririker Biddle & Reath 1500 K Street. N.W. ,.-.-WashingtonDC 20005 -.-.-.-.-.-.-.-.-.-.-.-.-.-.. I Ex.(6) I '-.-www :dmikerb1ddle.com.-.-.-.-.-.-.-.-.-.-.-. ! From: Canary , Joe - EBSA [mailtj Ex.(6) ! Sent: Friday , September 29, 2017 12:06 PM To: s:ampbe ll, Bradfor d P. i , . a ,se , 1 10 hJPY SL_.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. . __.-.-.-.-_-.-.-.-.-.-.-.-: 4 TBB Ex.(6) DOL-17-0281-I-000034 Subject: RE: Meeting Request Brad: Thanks for following up. We are looking for a time that works on schedules here. Will be back to you shortly. From: Campbell, Bradford P. [mailto:l Ex.(6) i Sent: Friday, September 29, 2017 12:(){fPM-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. To: Canary. Joe - EBSA Cc: Hauser, Timothy - EBSA Subject: RE: Meeting Request Hi, Joe, sorry to pester you , but I was wondering if you all had a chance to consider our meeting request for the week of October 16th? Thanks! Brad Bradford P. Campbell Dri11kerBiddle & Reath 1500 K Street. N.W. WashingtonDC 20005 I Ex.(6) I L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.\V\V\V .dri11kerbiddle.com From: Campbell , Bradford P. Sent: Monday, September 25, 2017 10:26 AM ~:== ~:~1:7r: ~:1~!~~~~J Ex.(6) Subject: Meeting Request Importance: High J Joe, I hope you are doing well! If there is any way you or your staff could meet with Tom Kmak of Fiduciary Benckmarks the week of October 16th (see attached letter with the formal invitation and more information), I think you would find his information useful in reviewing the Fiduciary Rule. He is very supportive of the Rule and its goals. Thanks! Brad Bradford P. Campbell Drinker Biddle & Reath 1500 K Street, N.W. ,.-WashingtonDC_20005.-.-.-.-.-.-.-.-.-.. I_______ Ex .(6)______ I www .dri11kerbiddle.com ************************************** DOL-17-0281-I-000035 Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph . ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm ' s Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm ' s Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged . Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm ' s Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee) , you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ******************* ******************* aJ h DOL-17-0281-I-000036 LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000037 From: [___ QeoE~:(6}!aSAL\--------------------------_____________ j Sent: To: 11/14/2017 10:08:52 AM Hauser, Timothy - EBSA 1 Ex.(6) !; Piacentini, Joseph - EBSA :-;;;~~;;;~~~;;;~::(;i~ ~~?~I~~t:;g~:~~~f~~~~~i~~~~~~~~l;~i~~~~i~n D- Subject: Show Time As: Recurrence: Required Attendees: Attachments: Canceled: Meeting with Tom Kmak (Fiduciary Benchmarks) and Brad Campbell on Fiduciary Rule-Recommendation of distributions and rollovers Free (none) Hauser, Timothy - EBSA;Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Lloyd, Karen EBSA;Campagna, Lou - EBSA;Halliday, Susan - EBSA;Scott, William - SOL;Hansen, Megan D SOL;Craig, James - SOL Fiduciary Benchmarks EBSA Meeting Request.docx; Re: Meeting Request; RE: Meeting Request ~ Fiduciary Benchmarks EBSA Meeting Request.docx Re: Meeting Request RE: Meeting Request Brad sent an email yesterday saying that Mr. Kmak had to cancel again. See last attachment. A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000038 DrinkerBidcUe. R~.'rath ~ L B clGBP d P C ; L:w . Of/ires bell (b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6) p I I o m September 25, 2017 1500 K Street N . \Xi. Suite 1100 Washington, D.C. 200 05-120 9 (b) (6)(b) (6) (b) (6)(b) (6) \V\V\V. drinkerb iddl e.com CALIJ!ORNIA DELAWA!U,: Joseph Canary Director, Office of Regulations and Interpretations Employee Benefits Security Administration U .S. Department of Labor 200 Constitution Ave., NW, Ste N-5655 Washington, DC 20210 ILLINOIS NEW JERSE Y NEW YOR K Dear Joe: PENNSYLVANIA T EXAS WASHING TON D.C. I am writing on behalf of our client, Thomas Kmak , the CEO of Fiduciary Benchmarks, to request a meeting with you during the week of October 16th to discuss issues related to the recommendation of distributions and rollovers. Tom is an ardent supporter of the goals and objectives of the Fiduciary Rule, and he and his company have developed tools to help advisers ensure they have taken into account all of the relevant factors necessary to develop a prudent fiduciary recommendation regarding rollovers and distributions . The October 27, 2016 guidance has been helpful in this regard, as has the Preamble's discussion of the Level Fee fiduciary exemption. Tom would like to discuss with you the requirements his tool is based on, demonstrating that the FAQ information requirements readily can be satisfied. As Tom and his staff developed their tool, they concluded that it should not be necessary for advisers to commonly rely on alternatives to plan information, such as dated Form 5500 information or plan-size benchmarking. In addition. Tom would like to share with the Department some of the developing practices in the marketplace that appear to deviate from the guidance and the Rule. These deviations may be an emerging source of concern for the Department as it conducts its review of the Rule. We recognize that your time is limited, but we would greatly appreciate the opportunity to meet with you during the week of October 16th. Sincerely, Bradford P. Campbell Estab!tshed1849 A\/1 YICA\J PVERSI cc: Timothy Hauser HT DOL-17-0281-I-000039 From: To: Sent: Subject: Campbell, Bradford P. Canary, Joe - EBSA 10/31/20171:55:07 PM Re: Meeting Request Joe, sorry to change this request yet again, but would 11/16 work? Thanks! (And Happy Halloween!) Sent from my iPhone On Oct 12, 2017, at 3 :35 PM, Canary, Joe - EBSA J t_________ Ex._( 6) ______ wrote: I will check. From: Campbell, Bradford P. Sent: 10/12/2017 2:46 PM To: Canary, Joe - EBSA Subject: RE: Meeting Request I'm so sorry to do this-would 11/9 work instead? Tom thought I had said Thursday, which did work for him, not Friday , which doesn't. The mistake is mine. I appreciate your patience! Bradford P. Campbell Dri11kerBiddle & Reath 1500 K Street. N.W. ,.-.-.-Washi1urton DC 20005 .-.-.-.-.-.-.-.. I_______ Ex .(6)______ I .www .dri11kerbiddle.com From: Canary, Joe - EBSA [mailto:i Ex.(6) ----,-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.Sent: Thursdav. October 12, 2017 12:45 PM To: Campbell : Bradford P . ~ Ex.(6) Subject: RE: Meeting Requ~st i : . Brad: Tim just confirmed so I think vve have reached critical mass to reschedule for Friday , Oct. 20 at 3pm. From: Canary. Joe - EBSA Sent: Thursday, October 12, 2017 11:50 AM To: 'Campbell, Bradford P.' Subject: RE: Meeting Request Not yet. Tim has not confinned he is available. From: Campbell, Bradford P. [rnailto:l Sent: Thursday, October 12, 2Cmll:47 AM To: Canary, Joe - EBSA Subject: RE: Meeting Request Ex.(6) ] DOL-17-0281-I-000040 Can ,ve put it down as a date ? Thanks! Brad Bradford P. Campbell Dri11ker Biddle & Reath 1500 K Street, N.W. ..-. WashingtonDC _20005.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. i i Ex.(6) 1 1 '-.-.www.dnnkerfo Subject: Show Time As: Recurrence: Required Attendees: Optional Attendees: Attachments: (none) Piacentini, Joseph - EBSA;Hall, Lyssa - EBSA;Lloyd, Karen - EBSA;Campagna, Lou - EBSA;Halliday, Susan - EBSA;Scott, William - SOL ;Hansen, Megan D - SOL;Craig, James - SOL;Cosby, Chris EBSA Hauser, Timothy - EBSA Fiduciary Benchmarks EBSA Meeting Request.docx ~ Fiducia ry Benchmarks EBS A Meeting Request.doc x From: Campbel I, Bradford P. [ ma ilt~----.-.-.-.-.-.-.-.-.-.-'?.~J~) ________________________ j Sent: Friday, September 29, 2017 12:21 PM To: Canary, Joe - EBSA Cc: Hauser, Timothy - EBSA Subject: RE: Meeting Request Thank s! Brad Bradford P. Campbell Drinker Biddle & Reath 1500 K Street, N.W. ,.-.-.-.-Washingt_on _DC_20005.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Ex.(6) I I L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.! WWW .drinkerbiddle.com From: Canary , Joe - EBSA [m. ?.i..!! L_______________ ~_~_'._{_~) __________________ J Sent: Friday, September 29, 2017 12:06 PM ~~== ~:::!~~i~~~~to~~:iJ y Ex.(6} o----------------------------------. ! Subject: RE: Meeting Request Brad: Thank s for follo w ing up. W e are looking for a time that w orks o n schedules here. W ill be back to yo u shortly. From: Campbell, Bradford P. [ mailto: i Sent: Friday, September 29, 2017 12:00 PM To: Canary, Joe - EBSA Cc: Hauser, Timothy - EBSA Subject: RE: Meeting Request tJ. Jo e, ~? Ex.(6) ____ ] ta l?estef you, but I was wondering if yo u all had a chance to consider ourDOL-17-0281-I-000054 meeting request for the week of October 16th? Thanks ! Brad Bradford P. Campbell Drinker Biddle & Reath 1500 K Street, N.W. Washington DC 20005 i i Ex.(6) ! ! L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.i WWW .drinkerbiddle.com From: Campbell, Bradford P. Sent: Monday, September 25, 2017 10:26 AM To: Ca nary, Joe - E BSA ; ,EBSA.L. _______________ E;_~!_(~L_ __________ ,___j;Scott, William - SOL pundee, Mark - EBSA '-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. !Confirmed :E~~~ .-.-.-.-.-.-.-.-.-___! i Subject: Location: Start: End: Recurrence: Meeting Status: Required Attendees: Optional Attendees: X. Fishbowl, N5677 Wed 3/14/2018 11 :00:00 AM Wed 3/14/2018 11 :45:00 AM (none) Accepted Rutledge, Preston - EBSA;Hauser, Timothy - EBSA;Wilson, Jeanne - EBSA;Canary, Joe EBSA;Scott, William - SOL;Dundee, Mark - EBSA Hansen, Megan D - SOL From: Cliff Andrews [mailto! _______________________ Ex.(6) .-.-.-.-.-.-.-.-.-.-___i Sent: Wednesday, February 14, 2018 2:28 PM To: Gatesman, Valerie - EBSA; Love, Monique - EBSA Subject: Secretary Rutledge Meeting Request Valerie & Monique : I am contacting you on behalf of the National Association for Fixed Annuities (NAFA) to request a meeting with Secretary Rutledge to discuss NAFA' s concerns with the fiduciary rule promulgated under the last Administration. NAFA is the premier trade association exclusively dedicated to fixed annuities. NAFA ' s membership represents every aspect of the fixed annuity marketplace covering 85% of fixed annuities sold by independent agents , advisors and brokers . NAFA' s members - in particular , the insurance carriers and independent insurance marketing organizations - are uniquely impacted by the rule as they offer insurance-only retirement products and have a specialized distribution network not present in the securities marketplace. Under the rule in its current " final" form, the fixed annuity marketplace would be split into two different compliance regimes: PTE 84-24 , which , with certain modifications , is workable for our industry , and the BICE , which is not compatible and will harm the fixed indexed annuity marketplace and the consumers it serves - primarily middle-class retirement savers. We would be grateful for the opportunity to present our concerns to Secretary Rutledge. The NAFA representatives listed below are free March 12th or 13th, but we will certainly make another date work if there is a more convenient time for Secretary Rutledge. Please let me know if you need any additional information. Thanks , Cliff Andrews !_______________ Ex. (6) _______________ i NAFA Attendees: PVERSIGHT DOL-17-0281-I-000061 Dominic Cursio, Chairman of the NAFABoard of Directors Chip Anderson , NAFA Executive Director Kevin Mechtley, Director of Government Relations and Senior Regulatory Counsel, Sammons Financial Group Andrew Payne, Vice President and General Counsel, Creative One Pam Heinrich, NAFA General Counsel Cliff Andrews, NAFA D.C. Counsel A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000062 From: .-.-.-.-.-.-.-tl9.~-S..~.~L.!l.'!.!9!~Y.-~--~l?.~~j__ i Ex.(6) ! EX? 6) : ( ! -.-.-.-.-.-.-.r.r,~r.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.o.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-o 1 Sent: To: 1/27/2017 12: 18: 35 PM ,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-Hall, Lyssa - EBSA L_ Ex.(6) !Piacentini, Canary, Joe - EBSA ..-.ci.=i"n~fr-.-.-Joe.::-1=ssA.:J"-.-.-.-.-.-.L----.Ex~fsY"-.-.-.-.-.-.-.-.-! Sn tt William - SOL l_______________ Ex._(6) .-.-.-.-.-.-.-. i H; user, ii~ot HOLD: NAFA !, hy - E BSA'r.-.-.-.-.-.-.-.-.-1::i:(sr.-.-.-.-~ '.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. EBSA Fishbowl N5677 Thu 3/15/2018 2:00:00 PM Thu 3/15/2018 2:00:00 PM Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Rutledge, Preston - EBSA;Wilson, Jeanne - EBSA;Canary, Joe - EBSA;Scott, William - SOL;Hauser, Timothy - EBSA From: Cliff Andrews [ mailto:J Ex.(6) Sent: Wednesday, February 14,2018 2:28 PM To: Gatesman, Valerie - EBSA; Love, Monique - EBSA Subject: Secretary Rutledge Meeting Request i ' Valerie & Monique: I am contacting you on behalf of the National Association for Fixed Annuities (NAFA) to request a meeting with Secretary Rutledge to discuss NAFA'sconcerns with the fiduciary rule promulgated under the last Administration. NAFA is the premier trade association exclusively dedicated to fixed annuities. NAFA's membership represents every aspect of the fixed annuity marketplace covering 85% of fixed annuities sold by independent agents, advisors and brokers. NAFA's members - in particular, the insurance carriers and independent insurance marketing organizations - are uniquely impacted by the rule as they offer insurance-only retirement products and have a specialized distribution network not present in the securities marketplace. Under the rule in its current "final" form, the fixed annuity marketplace would be split into two different compliance regimes: PTE 84-24, which, with certain modifications, is workable for our industry, and the BICE, which is not compatible and will harm the fixed indexed annuity marketplace and the consumers it serves - primarily middle-class retirement savers. We would be grateful for the opportunity to present our concerns to Secretary Rutledge. The NAFA representatives listed below are free March 12th or 13th, but we will certainly make another date work if there is a more convenient time for Secretary Rutledge. Please let me know if you need any additional information. Thanks, Cliff Andrews !______________________ Ex.(6_)__ _____________________ i NAFA Attendees: Dominic Cursio, Chairman of the NAFA Board of Directors Chip Anderson, NAFA Executive Director Kevin Mechtley , Director of Government Relations and Senior Regulatory Counsel, Sammons Financial GCO! gRSIGHT DOL-17-0281-I-000066 Andrew Payne, Vice President and General Counsel, Creative One Pam Heinrich, NAFA General Counsel Cliff Andrews, NAFA D.C. Counsel A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000067 f:~~~~!i'i :1f 6f~~L_l ______________________ ~_~J-~)_ ________ __j From: 0 !___ '-.-.-.6Tf5/20l7TT23:5TPM.-.-.-.-.-.' Sent: To: Hauser, Timothy - EBSA ~--.-.-.-.-.-.-.-.-.-.Ex:(6).-.-.-.-.-.-.-.-.-.-.l Canary, Joe - Ef3SA_d________________ l;_~:.(~} ________________ L., Hall, Lyssa - EBSA r.-..-~--~--~--~.-:..~--~--Eii6.i.~--~--~--~--~--~--~--fI~cent1ni Joseph - EBSA !.. Ex (6) i soq__________________ ~~--J~_L_ _______________ Khawar, Ali - EBS~ L--.-.-.-.-.-.-.-.-.-.-.-.~---.-.-.-.-.-.-.-.-.-.-.-.-.-i '-.-.-.-.-.' Subject: Location: Start: End: Show Time As: SF?dott'. Wi11Riam 1 ucIary u1e Fishbowl N-5677 Wed 6/21/2017 4:30:00 PM Wed 6/21/2017 5:30:00 PM Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Hauser, Timothy - EBSA;Canary, Joe - EBSA;Hall, Lyssa - EBSA;Piacentini, Joseph - EBSA;Scott, William - SOL;Khawar, Ali - EBSA Ex.(GI J Could you calendar this meeting on the fiduciary rule w ith the Raben Group for June 21 at 4:30? Please inv ite Joe Canar y , Lyss a Hall, Joe Piacentini, Bill Scott, and anyo ne the y care to bring. ! From: Francella Chinchilla [mailt Ex.(6) Sent: Wednesday, June 14, 2017 6:05 PM To: Hauser, Timothy - EBSA Cc: Estuardo Rodriguez Subject: Re: Meeting Request for Secretary Acosta Hi Tim, Let's do June 21st at 4:30pm. In attendance will be: o Board Chair Pamela Sandy o President Slimmon Pike o President-elect Frank Pare o Executive Director Lauren Schadle o Director of Advocacy Karen Nystrom o and o Estuardo Rodriguez , Raben Group (he is the PoC and lris cell is (b) (6)(b) (6)(b) (6) Thank you! Please send along any instructions we may need for entry. Francella FRANCELLA CHINC HILLAI DIRECTOR I THE RABEN GROUP ,-.-.1_3._4_1_S,_~1.:.!?YY.~-~!.~_F:\~-g~__ ?gQQ~ ----.-.-.-, (b) (6)(b) (6) L_____________ Ex.(6) _____________ :__ _________ ~)5_._(~L_ ______ ! On Wed, Jun 14, 2017 at 5:55 PM , Hauser , Timothy - EBSA ~ Ex.(6) ! wrote: ..-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. 21st at 4:30 looks a little easier for me, but I can make either time wo rk. Just let me know . Tim From: Francel la Chinchi Ila [ma i lttj __________________________ Ex.(6) .-.-.-.-.-.-.-.-.-.-.-.___i Sent: Wednesday, June 14, 2017 5:43 PM To: Hauser, Timothy - EBSA C. taardSi oe :g t!z DOL-17-0281-I-000068 Subject: Re: Meeting Requestfor Secretary Acosta Hi Tim, We could also do the 21st at 4:30pm. Francella FRANC ELLA C HINC HILLAI DIRECTO R I THE RABEN GROU P 2 (b) (6)(b) (6) L?-~ r_ l}~] -~lt~i ~r-:-~:i:~ .1Llillilllr --r:-.\-.-.-.-.-.-1 (___) , '-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. '-.-.-.-.-.-.-.-. __________ On Wed, Jun 14, 201 7 at 5 :25 PM , Estuardo Rodriguez .tcctio.ri.s, o..o a.n.4 o.P.r. oyi.d.~ ic.o.11s.is .tctjcy o.ooo ~c.ross. o. tucc()ti~tfy. o..oo .oNe~f.Xo.r~'s oooo a.rri-~n.4.111(;~1:th.a.s. .ooo..ooo .oo.. ..o. been proposed with a 60-day com1nentperiod, which wi11end on February 26, 2018. As always, j5:~s:~w~ui~ ~~1i~~~1~~ j~i~}ps~JPY -~ ~~eri~q~~;ff~ :....: .... .. .. . i~~~ur~~~ ..o.> > > << > . : o. . >o >o/o.... .... . .. ... . . .... . ... AMERICAN ,OVERSIGHT DOL-17-0281-I-000199 . From: Sent: To: :rvi~~"~i.c1l~~1:L __ i Ex. (6) r____ l 2/ 8/ 2 0 18 3 :4 2: 15 PM __ .Y.Y!l.?.9D., __ J~_c!IJ.O.~--:J;_!?._?_6.._L, ________________ Exo ( 6) .-.-.-.-.-.-.-.-.-j;__ Hc!.l,_l_?.~L._Ii_rri9Jby __ :__l;!3-?A I Subject: Location: Start: End: Show Time As: t---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-; Ex.{6) r;Scott, William - SOL L________________ ~~J~----.-.-.-.-.-.-.-.i Hall, Lyssa_ EBSA l---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Hold: Advisors Excel N5677 EBSA Fishbowl Mon 3/19/2018 1 :30:00 PM Mon 3/19/2018 2:00:00 PM Tentative Recurrence: Meeting Status: (none) Not yet responded Required Attendees: Wilson, Jeanne - EBSA;Hauser, Timothy - EBSA;Scott, William - SOL;Hall, Lyssa - EBSA HiVal here. Per Preston's request I'm booking this for his designated date and time allotment. I'll update the invite with the paper I've requested if I receive it. Purpose: To discuss the Fiduciary Rule and NY BICE was still open. We would love to schedule a meeting with Preston and his team for Advisors Excel. Present for this meeting will be David Wolfe, Advisors Excel's General Counsel, and Holly Kinnamon. A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000200 . I Ex. (6) -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- ' Canary, Joe_ EBSA ~ From: ' i r.-----------------.Ex.:.(sr.---------o-----1_ ___________________________________________ 1 o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-oI Sent: 10/3/2017 2:57:14 PM ~~~J ____________ j Piac~_n..tJDL._~.9?.~P-.O._~ __ .!;l?.?6 ____ , Canary, Joe - EBSA Year 0 5 10 15 20 5 10 15 20 Fixed S&P MAV PR S&P MAV Cap S&PAPTP PR S&PAPTP Cap 2.00% 70.00% 4.75% 38.00% 3.75% 100,000 110,408 121,899 134,587 148,595 100,000 109,186 137,956 150,628 190,317 100,000 112,924 133,933 151,242 179,379 100,000 115,735 146,284 169,301 213,990 100,000 111,440 129,120 143,891 166,719 Annualized Rate of Return 1.77% 2.46% 2.97% 3.27% 2.96% 3.88% 2.77% 2.80% 3.57% 3.27% 2.96% 3.88% 2.19% 2.59% 2.46% 2.59% 2.00% 2.00% 2.00% 2.00% Exhibit C AMERICA\J PVERSIGHT DOL-17-0281-I-000237 November 6, 2017 David R. Dorey Counsel to the Solicitor Office of the Solicitor U.S. Department of Labor 200 Constitution Ave. NW Washington, D.C. 20210 Dear Mr. Dorey: Thank you for meeting with the Indexed Annuity Leadership Council representatives on October 11th to discuss the Fiduciary Rule and the problems the Rule creates for fixed index annuities (FIAs). We thought the attached documents (Attachments A and B) may be helpful as the Department continues to examine the Fiduciary Rule and its impacts in response to the Presidential Memorandum and submitted comment letters. In addition, the following link provides basic information on fixed index annuities: https://indexedannuitiesinsights.com/whatis-a-fixed-indexed-annuity/ Should you have any question or require additional information on FIAs, please let us know. We look forward to continuing to work with the Department in developing a workable standard that best protects retirement savers. Sincerely, Jim Poolman, Executive Director AM YICA\J PVERSIGHT DOL-17-0281-I-000238 Attachment A I. Background on Fixed Index Annuities Fixed index annuities (FIAs) are insurance products that offer a pivotal tool in retirement planning . This product is built for savers, not investors . FIAs offer retirement savers the opportunity to have guaranteed income and protection from market downturns throughout their retirement years. FIAs are an important product to be included in retirement savers' financial plans because FIAs protect principal and guard against longevity risk. Currently, there are approximately $303.4 billion in active fixed index annuity policies outstanding . Unlike variable annuities, FIAs are contracts that provide protection against market loss as insurance companies, rather than policyholders , assume the risks of market downturns. As with almost any fixed annuity product, FIA policyholders are protected against losses in principal so long as they do not surrender their contracts prematurely, and any earnings credited to their policy are guaranteed and cannot be lost or reduced in future periods. FIA policyholders are also protected by state guaranty funds, which backstop FIA policies in the event that an insurance company becomes insolvent. For FIAs, earnings are credited based on a formula that references a market index or specific investment. And, insurance companies are indifferent as to which credit formula a policyholder selects for his FIA policies . This method for determining the interest credited is the only difference between fixed index and other types of fixed rate annuities. State insurance departments regulate FIAs, and they are sold only by state licensed insurance agents. Under state insurance laws, policyholders have a free-look period, which ranges from ten to thirty days depending on the applicable state law, to allow policyholders to return their policy for a full refund . Once the policy is in effect, earnings are credited based on the terms of the policy. However , policyholders initially do not have access to the full account value of their policy. If they decide to cash-out the policy prematurely , they may incur a surrender charge. Typically, policies provide for the waiver of such charges under certain circumstances , and these charges decrease over a period that generally is seven to ten years . Surrender charges are an important part of fixed index annuity contracts . These charges protect insurance companies from losses due to early terminations and allow these companies to make long-term investments, thereby allowing higher earning potential for policyholders . Consumers may add various liquidity options and riders to their FIA policy. A few examples of these options are: 1) terminal illness riders that permit penalty-free withdrawals of some or all of the policy value if the policyholder becomes terminally ill; and 2) nursing home riders that permit penalty-free withdrawals if the policyholder enters a nursing home . Policyholders can 1 AM YICA\J PVERSIGHT DOL-17-0281-I-000239 Attachment A also choose to have lifetime income benefit riders, which are an alternative to annuitizing the policy in which the income payments are lower in exchange for increased flexibility to access the account value. II. Outdated and Inaccurate Understanding of FIAs The Department has supported its position of treating FIAs differently from other fixed annuity products by citing staff concerns from the Securities and Exchange Commission , Financial Industry Regulatory Authority , and the North American Securities Administrators Association. 1 Nevertheless, these concerns are outdated and do not reflect the regulatory changes that have been adopted by state insurance regulators. For example, concerns about FIAs are largely based on the criticisms of sales practices that preceded the adoption and implementation of the NAIC ' s suitability model regulation by states. The preamble to the proposed Final Rule reiterates the SEC's statement that policyholders of FIAs could lose money. This statement is inaccurate. As mentioned above, these policyholders can never lose their principal as a result of market conditions . Of course surrender charges could be imposed if a policyholder terminates his/her FIA policy prematurely. However , this is a fee charged for an early withdrawal from the annuity contract, not a loss of principal due to market changes. Finally, these concerns and criticisms do not reflect the data on consumer complaints. The numbers of complaints on FIAs are extremely low compared to the level of complaints on products regulated by the SEC, FINRA, and the NASAA (Attachment B). III. Impacts of the Fiduciary Rule and Related PTEs on Middle-Class Americans and Small Businesses Middle-class Americans, such as teachers and engineers, tend to purchase FIAs for the security offered by a fixed income product and for the protection against longevity risk offered by lifetime income guarantees. Typical policyholders of FIA : I) are approximately 63 years old; 2) are concerned social security income alone is insufficient to satisfy their retirement needs; and 3) hold an average FIA policy of $112,000. These policyholders typically do not have enough retirement savings to pay annual fees for active investment management or to assume the risks of market unpredictability associated with more active investment strategies. The Department even acknowledged the importance of FIAs in the preamble of the Proposed Best Interest Contract Exemption for Insurance Intermediaries by stating, " [f]ixed indexed annuities, with their blend of limited financial market exposures and minimum guaranteed values , can play an important and beneficial role in retirement preparation ." 2 1 Amendment to and Partial Revocation of Prohibited Transaction Exemption 84-24 for Certain Transactions Involving Insurance Agents and Brokers, Pension Consultants, Insurance Companies , and Investment Principal Undenvriters, 81 Fed. Reg. 21153 (Apr. 8, 2016), https://www .gpo.gov/fdsys/pkg/FR-2016 -04-08/pdf/201607928.pdf. 2 Proposed Best Interest Contract Exemption for Insurance Intermediaries, 82 Fed. Reg. 7336 (Jan. 19, 2017), https://www.gpo.gov/fdsvs/pkg/FR-2017-0l-19/pdf/2017-01316.pdf. 2 AMERICA\J PVERSIGHT DOL-17-0281-I-000240 Attachment A However, the Proposed Final Rule designed a structure that undermines the FIA distribution channels, leaving many retirement savers without the option of purchasing FIAs. The majority of FIAs are sold by independent insurance agents who work through independent marketing organizations (IMOs). These IMOs and their independent agents, who typically are not licensed to sell securities products, sell FIA products offered by more than one insurance company . By offering FIA products from various insurance companies, these independent agents provide a full range of products that can best accommodate their customers ' unique retirement needs. The proposed Final Rule excluded FIAs from PTE 84-24 and permits independent insurance agents who sell FIAs on a commission basis to rely only on the Best Interest Contract Exemption (BICE), which was designed to address sale of securities products. Under the BICE, a financial institution must sign a contract with the policyholder obligating the financial institution to be a fiduciary along with the independent insurance agent who offers the financial advice. Among other specific terms and conditions, the BICE requires the financial institution to accept full liability for the recommendation made by the independent insurance agent. Because the BICE explicitly prohibits IMOs from serving as a financial institution, only the insurance company can qualify as a financial institution when an independent insurance agent sells an FIA. This scheme under the BICE is impractical as insurance companies will be reluctant to enter into such a contract with a FIA purchaser when the FIA is sold by an independent insurance agent that sells for multiple competing companies. Such contracts expose insurance companies to liability: 1) for the advice given by independent insurance agents who offer other FIA products from other insurance companies with their own pricing and contract terms ; and 2) over whom the insurance company cannot fully supervise the advice that is offered. With various factors beyond the control of the insurance companies, they cannot possibly know whether an independent agent offered the FIA product that was in fact in the best interest of the retirement saver. Thus, even when FIAs are in the best interest of retirement savers, independent insurance agents will be prevented from offering FIAs to them. As our comment letter submitted on April 17, 2017 states, the economic impact of denying retirement savers' access to FIAs is significant. In the event that these retirement savers are deprived of the option to purchase FIAs, they will likely see lower earnings credited to their fixed rate policies than they would receive if FIAs remained available to them. Conservatively assuming about half of the outstanding FIA policies ($150 billion) are purchased from independent insurance agents and that fixed rate annuity products are the only available option, retirement savers will be forfeiting at least $7.58 billion and as much as $10.9 billion in the earnings credited to their policies in the next ten years. In the next twenty years, the absence of the FIA options would cost retirement savers at least $36.5 billion and as much as $55.3 billion in lost earnings credited to their policies . The proposed Final Rule will also harm thousands of small businesses in the United States. Today, there are more than 80,000 independent insurance agents licensed to offer FIAs and at 3 AMERICA\J PVERSIGHT DOL-17-0281-I-000241 Attachment A least 115 IMOs through which FIAs are marketed. These independent insurance agents and IMOs are all small businesses. Without a workable prohibited transaction exemption for independent agents and IMOs, these small businesses will face great financial hardships. More importantly, in many rural areas of the country, independent agents and IMOs are one of the few, if not the only, source of retirement advice for retirement savers. In sum, the proposed Final Rule not only burdens small businesses in the United States, but also completely deprives many middle-class Americans from the opportunity to receive general financial advice to prepare for their retirement. 4 AMERICA\J PVERSIGHT DOL-17-0281-I-000242 Attachment B Page 7 Index Compendium Index Compendi um , Vo lum e 21, Number 10, Page 7-8 (Oct. 2017). October 2017 NASAA Action Down, Fines Up Six months after the other regulators released their complaint and enforcement data, the North American Securities Administrators Association released their 2016 results. Overall enforcement actions continued their decline posting a total of 2,017 with criminal and civil actions down 30% from five years ago; restitution to injured investors is also down to a third of what it was. One growth area for the regulators was in the area of fines and penalties that go directly to state coffers; these totaled $682 billion - a 500% increase in only five years. In addition, NASAA reported a significant increase in investigating fiduciary investment adviser firms. All in all, 3,510 securities registrations were revoked or suspended or withdrawn. 12,326 FINRA/NASAA Securities Complaints vs 106 FIA Complaints in 2016 One of several poorly explained report parts is under a section called Vulnerable Senior Investors where there is a chart titled "Tactics to Exploit Seniors" and included is a column titled annuities (37). There is no explanation for what the chart is supposed to mean. The chart includes what might be used as part of a tactic such as free lunch (15) and affinity fraud (48), but also has traditional securities (115). Unless NASAA considers every investment they permit to be sold a "tactic", my guess is what they mean is a senior complaint in these columns involved some type of securities or some type of annuity. The report should have done a much better job of breaking out why there were complaints and what the enforcement actions entailed. NASAA said there were 9,256 securities related customer complaints in 2016. This dwarfs the 3,070 complaints reported to FINRA in 2016 and makes the 106 fixed index annuity complaints look like a footnote. http://www.nasaa.org/43311/nasaa-releases-annualenforcement-report-3/ AM YICA\J PVERSIGHT DOL-17-0281-I-000243 Attachment B Page 8 Index Compendium October 2017 275 Complaints AgainsfSecurities For Every 1 FIA Complaint Now that NASAA has released their data, we have a fairly complete picture of customer complaints complied by NAIC, FINRA, NASAA and SEC(the SECtotals only reflect the top 10 complaints). The chart shows the number of complaints, with those against securities firms and advisors in shades of blue and the ones for all fixed annuities and fixed index annuities in shades of green. I realize it is rather difficult to see the fixed index annuity complaints - after all, they represent less than one half of one percent of all complaints over the last 5 years - so I show FIA complaint totals on the left of the column. Customer Complaints 100% 90% 80% o 70% 46 60%...... 50% 40% , 30% 20% 10% 2012 2013 2014 2015 j u NASAA (Sec) oFINRA (Sec) a NAIC(FIA) llNAIC(Annuity) AM RICA\J PVERSIGHT 2016 ? SEC(Sec) r DOL-17-0281-I-000244 I ooooooo ; From: oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo oooooooo ooo Ex.(6) ,.-.-.Hauser,_ Timothy -__ EBSA_i______ , iL--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.J-o-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.Ex.(6) i' . Sent: To: ' Subject: Location: Start: End: Show Time As: 611s12017. 12 :26 :_s7 PM r.-------------------------------------------------L_ !-----------------.-Ex~"isf.1 Hauser, Timothy EBSA . Ex.(6) ; , Canary, Joe EBSA _<:_J~l_ ____________ l From: Sent: To: 5/2/2017 9: 12:4 7 PM ,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-., Ye rxa, Christopher W - A SAM Exo ( 6) ---.-.-.-.-.-.-.-.-.-.l.?g9.tt_,__yyll_U_ __ ?O L 9f.D._~ Hauser, Timothy - EBSA ~ Ex.(6) Khawar , Ali - EBSA i_________________________ :.=-.-.-.-=-.-.-.-.-.iPage,Emily - OASAM DBC?1.__ ______________ r __!=_x._ o.(l!_L_ _______________ _l_~W_i_[?.~Y .JHephanie ASP .tcctio.ri.s, o..o a.n.4 o.P.r. oyi.d.~ ic.o.11s.is .tctjcy o.ooo ~c.ross. o. tucc()ti~tfy. o..oo .oNe~f.Xo.r~'s oooo a.rri-~n.4.111(;~1:th.a.s. .ooo..ooo .oo.. ..o. been proposed with a 60-day com1nentperiod, which wi11end on February 26, 2018. As always, j5:~s:~w~ui~ ~~1i~~~1~~ j~i~}ps~JPY -~ ~~eri~q~~;ff~ :....: .... .. .. . i~~~ur~~~ ..o.> > > << > . : o. . >o >o/o.... .... . .. ... . . .... . ... AMERICAN ,OVERSIGHT DOL-17-0281-I-000358 r-~1111:_~~~;::f :-~~~:"i Ex.(6) ; From: ! :______________________________ ( .-.-) -.-.-.-.-.-.-.-.-. 1-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-' 3/15/2018 10:32:21 AM Rutledge, Preston - EBSA ~ Sent: To: Ex.(6) f; Wilson, Jeanne - EBSA ~)_(J~L. _______________ Lsoii.-.-.-.-.-.-J;i.l~~x:.(6).-.-.-.-.-.~LtJa_lse r' Timothy - Ess4 _____________________ __jScott' William Subject: Location: Start: End: Show Time As: Ca neeled:-?Tom.McDo naId-.-.-.-.-.-.-' Recurrence: Meeting Status: (none) Accepted Required Attendees: Rutledge, Preston - EBSA;Wilson, Jeanne - EBSA;Hauser, Timothy - EBSA;Scott, William - SOL Preston's Office Mon 3/26/2018 4:00:00 PM Mon 3/26/2018 4:30:00 PM Free Subject: Canceled: Tom McDonald Location: Preston's Office Start: 3/26/2018 3:00 PM End: 3/26/2018 3:30 PM Show Time As: Free Recurrence: (none) Organizer: Rutledge, Preston - EBSA Required Attendees: Rutledge, Preston - EBSA; Wilson, Jeanne - EBSA; Hauser, Timothy - EBSA; Scott, William- SOL Staffing this per Preston and Tim's request. -----Original Message----..---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ From: McDonald, Tom [mailtd Ex.(6) : Sent: Wednesday, March 14, L2018 5:14 PM To: Gatesman, Valerie - EBSA Subject: Follow Up Hi Val, That's correct. I would like to include them in my meeting with the Assistant Secretary Rutledge. It will be a small group. We haven't previously met with the Assistant Secretary. And I look forward to meeting you on March 26. Best Tom J > On Mar 14, 2018, at 5:03 PM, Gatesman, Valerie - EBSA 1.__ __________________ Ex.(6) __________________ wrote: > > Thank you. > DOL-17-0281-I-000359 Rule on February 7th. At that time they met with several senior EBSA staff. > It was nice to speak with you just now. Thanks for your assistance. As I mentioned, the following 2 individuals will join me for the meeting with Assistant Secretary Rutledge on Monday March 26 at 4 to 4:30 pm. 1. Dwight Carter CEO Financial Security Associates Raleigh, NC 2. Eric Marhoun Executive VP Fidelity & Guaranty Life Ins Des Moines, Iowa As I mentioned to A/S Rutledge on March 1, I want to discuss the Fiduciary Rule and fixed annuity products. I would appreciate you clearing all three of us into the DOL. Best Tom i From: McDonald,Tom [mailj Ex.(6) Sent: Tuesday, March 06, 2018 11:27 AM To: Gatesman, Valerie - EBSA Cc: Scindian, Vilma Subject: Request for 30 Minute Meeting with A/S Rutledge Thanks, Val. Terrific. That time work for me. Please thank the Assistant Secretary. See you then. Best Tom Sent from my iPhone On Mar 6, 2018, at 11:08 AM, Gatesman, Valerie - EBSA i Ex.(6) } wrote: l---.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- Good Morning Assistant Secretary Rutledge has asked me to reserve for your meeting 4:00 - 4:30 pm on Monday, March 26th. Does that day and time work for you? Val Valerie A. Gatesman Special Assistant Office of the Assistant Secretary Employee Benefits Security Administration !_________________ Ex.(6)_________________ i PVERSIGHT DOL-17-0281-I-000360 From: McDonaId, Tom [ mai 1td, ______________________ Ex o(6)___________________ ___] Sent: Monday, March 05, 2018 10:54 AM To: Gatesman, Valerie - EBSA Cc: Love, Monique - EBSA;Scindian, Vilma Subject: Request for 30 Minute Meeting with A/S Rutledge Hi Valerie, It was nice to speak with you just now. As I said, I'm following up re a conversation I had with the Assistant Secretary on March 1 following the Induction Ceremony of former President Reagan. I asked Preston if I could meet with him re the Fiduciary Rule and he said fine. The meeting would be with me and the Assistant Secretary. Vilma is my assistant. I look forward to receiving a call from you this afternoon. Many thanks! Best, Ambassador Tom McDonald Tom McDonald Partner Washington Square 1050 Connecticut Ave , N.W. Washington , DC 20036-5304 I Suite Ex.(6) 1100 ! 'ba i This ema il is intended only for the use of the party to w hic h it is addressed and may contain informat ion that is privileged, confidential, or protected by law. ~ you are not the intended recip ient you are hereby notified that any dit.se mination. copy ing or distr ibution of this emai l or its content& is strictly prohibited. If you have received this message in error, please notify us immedia tely by replying to the message and deleting it from your compute r. Any tax advice in this ema il is for informat ion purposes only. T he content of this ema il is limited to the matters specifically addressed herein and may not contain a full desc ription of all relevant facts or a comp lete analysis of all relevant issu es or authorities. Internet communica tions are not ass ured to be secure or clear of inacc uracies as information co uld be intercepted , corrupted, lost. destroyed. arrive late or incomp lete. or contain viruses. T herefore, we do not accep t respons ibility for any errors or omissions that are present in thit. email, or any attach m ent, that have arise n as a result of e-mai l tra A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000361 r--~.,;1,~9_,,_~~:(il~~~~-L ___ 1 Ex. (6) i From: i I .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.r-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-...........,i,.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Sent: To: 2/16/2018 10:48:50 AM !3_~1~_<:!_9_~ ..:'L. .--.-.-.-.-.-.-.-.-. Ex.( 6) ________________ , .-.:_Hauser ,__ Timothy - .EBS~ 2--~~-~?.!.~_n.__~--~!3-?~ __ 1 6 ik:tsf"-.-.-.-.-.-.-!Yr:i~t/:i~i~~ l__EBSAT?-.-.-.-~~~( L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- _E:it ~ Ex.{6) i Canary, Joe - L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-o Subject: Location: Start: End: Show Time As: Canceled: HOLD: NAFA EBSA Fishbowl N5677 Thu 3/15/2018 2:00:00 PM Thu 3/15/2018 2:00:00 PM Free Recurrence: Meeting Status: (none) Accepted Required Attendees: Rutledge, Preston - EBSA;Hauser, Timothy - EBSA;Wilson, Jeanne - EBSA;Canary, Joe EBSA;Scott, William - SOL Ex.(6) From: Cliff Andrews [mailto ! i Sent: Wednesday,February'.14,-2018-2:28 .PM-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-' To: Gatesman,Valerie - EBSA;Love, Monique- EBSA Subject: Secretary Rutledge Meeting Request Valerie & Monique: I am contacting you on behalf of the National Association for Fixed Annuities (NAFA) to request a meeting with Secretary Rutledge to discuss NAFA'sconcerns with the fiduciary rule promulgated under the last Administration. NAFA is the premier trade association exclusively dedicated to fixed annuities. NAFA's membership represents every aspect of the fixed annuity marketplace covering 85% of fixed annuities sold by independent agents, advisors and brokers. NAFA's members - in particular, the insurance carriers and independent insurance marketing organizations - are uniquely impacted by the rule as they offer insurance-only retirement products and have a specialized distribution network not present in the securities marketplace. Under the rule in its current "final" form, the fixed annuity marketplace would be split into two different compliance regimes: PTE 84-24, which, with certain modifications, is workable for our industry, and the BICE, which is not compatible and will harm the fixed indexed annuity marketplace and the consumers it serves - primarily middle-class retirement savers. We would be grateful for the opportunity to present our concerns to Secretary Rutledge. The NAFA representatives listed below are free March 12th or 13th, but we will certainly make another date work if there is a more convenient time for Secretary Rutledge. Please let me know if you need any additional information. Thanks, Cliff Andrews l________________________ Ex._(6) .-.-.-.-.-.-.-.-.-.-.-.-j NAFA Attendees: Dominic Cursio, Chairman of the NAFA Board of Directors Chip Anderson, NAFA Executive Director Kevin Mechtley , Director of Government Relations and Senior Regulatory Counsel, Sammons Financial GCO! gRSIGHT DOL-17-0281-I-000362 Andrew Payne, Vice President and General Counsel, Creative One Pam Heinrich, NAFA General Counsel Cliff Andrews, NAFA D.C. Counsel A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000363 ..-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. G_~t_~?~E~~(6>~!,$A,L_i Ex. (6) From: ~ I__ L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- - .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- ) 3/5/2018 8:53:21 AM Sent: To: 9-Q~~-~-f :--~-~~~-~-~'._.!.~~~!~Y..-~~~~~J-1. Hall___ L__ s~:(~kssA. J_____ __[_Y'{iJ1i:(si?~ Ega~:r . Subject: Show Time As: Recurrence: Required Attendees: Optional Attendees: Attachments: Ex.(6) , , Y .-----o-------------------'-., Y, Joe - EBSA l.-.-.-.-.-.-.-.-.r--.~~J~L----.-.~----.-.-] .scott, William - so L L-.-.-.-.-.-.-.-.-.-~-~:(~)___ _________________ J Canceled: CONFIRMED: for IALC on Fixed Indexed Annuities and the Fiduciary Rule Free (none) Hauser, Timothy - EBSA;Wilson, Jeanne - EBSA;Hall, Lyssa - EBSA;Canary, Joe - EBSA;Scott, William- SOL Lloyd, Karen - EBSA 02172017 IALC Comment Letter.pdf; 04172017 IALC Comment Letter.pdf; 08072017 IALC Comment Letter.pdf ; 09152017 IALC Comment Letter.pdf; Exhibit C.PDF; Follow-up letter to DOL after Oct. 11, 2017 Meeting.pdf Exhibit C.PDF 09152017 IALC Comment Letter.pdf Follow-up letter to DOL after Oct. 11, 2017 Meeting.pdf 08072017 IALC Comment Letter.pdf 04172017 IALC Comment Letter.pdf 02172017 IALC Comment Letter.pdf Planned Attendees: Ron Grensteiner , President -American Equity Investment Life Insurance Company Renee Montz , General Counsel -American Equity Investment Life Insurance Company Grant Kvalheim, Chief Executive Officer and President - Athene USA Erik Askelsen , Senior Vice President and General Counsel - Athene USA Robert DeChellis , Senior Vice President, Chief Strategist and Head of Allianz Exchange Kristine Lord-Krahn, Vice President and Deputy General Counsel: Distribution , Government Relations , Privacy and AM L- Allianz Life Insurance Company of North America Mehran Assasi , Chairman , Chief Executive Officer , and President - National Life Group Greg Woodworth , Senior Vice President and General Counsel - National Life Group Rob Tekolste , President - Sammons Annuity Group Brian Hansen , Senior Vice President and General Counsel - Sammons Financial Group David Franasiak, Principal-Williams & Jensen , PLLC David Starr Principal - Williams & Jensen , PLLC or Leah Kim, Associate - Williams & Jensen, PLLC DOL-17-0281-I-000364 Ji , ~ ool a ExecwtilJe Director, Indexed Annuity Leadership Council ! I Dear Assistant Secretary Rutledge: We represent the Indexed Annuity Leadership Council (IALC), a consortium of life insurance companies that offer fixed indexed annuities (FIAs). Today there are more than $300 billion in FIAs outstanding. CEOs and General Counsels of some of the IALC member companies would like to meet with you to discuss how the fiduciary rule impacts the distribution channels for FIAs. They can be in Washington on March 5th or March 6th. The IALC has recently met with David Dorey, and in the past with Tim Houser and others in EBSA. IALC has also filed numerous comment letters regarding the fiduciary rule; I have attached two of these letters as well as their letter to David Dorey following-up our October 11th, 2017 meeting with him. We appreciate DOL's efforts to delay the applicability date for removing FIAs from PTE 84-24, but are concerned that the particular challenges facing FIAs may not be widely known in the Department and would be grateful for the opportunity to walk through these concerns with you. Thank you, David E. Franasiak Principal Williams fr Jensen PLLC 701 8th Street NW, Suite 500 Washington, DC 20001 ! I ' Ex.(6) I L--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.. ll)iscla imer Thi s message, an d any atta chment s to it , are f rom W ill iams & Jense n, PLLC and are int end ed only f or t he add ressee . In f orm ati on cont aim; d herei n is conf ident ial , privileged and exempt f rom disclosure pursuant t o app l icable f ederal or sta t e law. I f th e rPad,;r of t his mess ag e is not t he int ended reci pient , you a re not if ied t hat any use , disseminat ion, dist ribut ion, copying or communi cat ion of t hi s mess ag e is st rict ly prohi bit ed. If you have receive d t his mess age i n error, please notif y th e se nd er imm edi at ely by return emai l and d,;it ,t GBP; t h,, m,;ss ag e and any atta chm ent s . Th ank yo u A\/1 YICA\J PVERSIGHT DOL-17-0281-I-000365 From: Sent: To: Subject: Show Time As: 1---~C~'~;tt~-f ~~-\---------------------________ ! Recurrence: Required Attendees: A\/1 YICA\J PVERSIGHT 2/9/2018 5: 10: 16 PM ;-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-Rutledge, Preston - EBSA il--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~ Ex.(6) ! Accepted: CONFIRMED: for IALC on Fixed Indexed Annuities and the Fiduciary Rule Free (none) Rutledge, Preston - EBSA DOL-17-0281-I-000366 ; From: Scott, William - SOL I Sent: To: Subject: Show Time As: Ex. (6) Al ison Cooke Mintzer Editor-in-Chief, PLANSPONSOR & PLANADVISER Strategic Insight 1055 Washington Blvd., Suite 400, Stamford, CT 06901 (b) (6)(b) (6)(b) (6)(b) (6) York, NY 10022 We changed our name. Asse t International is now Strategic Insight. PLANSPONSOR , PLANADVISER and QlQ, Global Cus.1o,Qian, The Trade are Strategic Insight businesses . This email message is meant only for the intended recipient , is confidential , and DOL-17-0281-J-000008 may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. Vve changed our narne. Asset International is infilgm . nmv~ .cJ.Q, Global Custodian, PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name. Asset lnternationa: is nmv ~- .cJ.Q, Global Custodian, PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. \/Ve changed our name. ,A,sset \nternafonal Is now~.cJ.Q, Global Custodian, PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our narne. Asset International is novv Strategic Insight CIO, Global Custodian, PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. DOL-17-0281-J-000009 From: To: Cc: Subject: Date: Hauser,Timothy - EBSA Sadler, Rob - SOL Hauser,Timothy - EBSA RE: Invitation to Speakat the PLANSPONSOR National Conferencein June Wednesday, May 31, 2017 4:42:00 PM Rob, am I good to go on this event too? From: Hauser, Timothy - EBSA Sent: Wednesday, May 31, 2017 9:01 AM To: Sadler, Rob - SOL Cc: Hauser, Timothy - EBSA Subject: FW: Invitation to Speak at the PLANSPONSORNational Conference in June (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Alison Cooke Mintzer (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Friday, May 26, 2017 To: Trupo, Michael - OPA Cc: Carol Popkins Subject: RE: Invitation to Speak at the PLANSPONSORNational Conference in June Importance: High Hello Mr. Trupo, Thank you for taking the time out of your busy schedule to read this email. My name is Alison Cooke Mintzer, and I am the Editor-in-Chief of PLANSPONSOR and PLANADVISER (magazines and websites) , which are business -to-business publications focused on the employersponsored retirement plan industry-spec ifically for those running such plans. Each year we hold our PLANSPONSOR National Conference (PSNC) for our readers of both publications . Our audience at this event runs close to 450 attendees . Those 450 people are a mix of plan sponsors (approx .. 275) , advisers to employer-sponsored retirement plans (125) and the event sponsors (retirement plan recordkeepers and investment managers) . You can find more information about the event on our conference website : http://www .plan sponsor.com/event/psnc2017 / . This year's event is being held in Washington, DC June 7 through 9. I would like to extend an invitation for someone from the DOL or EBSA to speak at our upcoming event. We have been privileged enough to have EBSA Secretaries speak to our group in the past and they are always of great interest. Our audience from across the retirement plan industry pays close attention to the developments and regulatory activity at the Department of Labor , and would relish the opportunity to learn what is going on first-hand . DOL-17-0281-J-000010 I appreciate any consideration you can give to coming and speaking to our audience. For any more information, please feel free to contact me or Carol Popkins from our conferences and events department, copied here. Thank you for your consideration. Kind regards, Alison Cooke Mintzer Alison Cooke Mintzer Editor-in-Chi ef, PLANSPONSOR & PLANADV ISER Strategic Insight 1055 Washington Blvd., Suite 400, Stamford, CT 06901 ,. ii:-. !. -. oo ! , NY 10022 t oo (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) We changed our name. Asset Internationa l is now Strateaic Insight andThe Tradeare StrategicInsightbusinesses. PLANADVISER QQ, GlobalCustodian,PLANSPONSOR, This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed cur name . Asset Internatio nal is now Straleo ic lnsiahi. . andThe Tradeare StrategicInsightbusinesses , PLANADVISER .Q.[Q,GlobalCustodian,PLANSPONSOR This email message is meant only for the intended recipient , is confidential , and may be privileged by law. If you received this message in error, please notify us immediately by return email , delete this message from your system , and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name . Asset.International is now S1rateaic lnsiaill. andThe Tradeare StrategicInsightbusinesses. PLANADVISER 00, GlobalCustodian,PLANSPONSOR, This email message is meant only for the intended recipient , is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name . Asset International is now Strnteo ic lnsiaht . andThe Tradeare StrategicInsightbusinesses. PLANADVISER .Q.[Q,GlobalCustodian,PLANSPONSOR, This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. DOL-17-0281-J-000011 From: To: Cc: Subject: Date: Hauser,Timothy - EBSA Sadler, Rob - SOL Hauser,Timothy - EBSA National Conferencein June FW: Invitation to Speakat the PLANSPONSOR Wednesday, May 31, 2017 9:01:00 AM (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) From: Alison Cooke Mintzer (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Ii _.. o Sent: Friday, May 26, 2017 To: Trupo, Michael - OPA Cc: Carol Popkins Subject: RE: Invitation to Speak at the PLANSPONSORNational Conference in June Importance: High Hello Mr. Trupo , Thank you for taking the time out of your busy schedule to read this email. My name is Alison Cooke Mintzer, and I am the Editor-in-Chief of PLANSPONSOR and PLANADVISER (magazines and websites), which are business-to-business publications focused on the employersponsored retirement plan industry-specifically for those running such plans . Each year we hold our PLAN SPONSOR National Conference (PSNC) for our readers of both publications . Our audience at this event runs close to 450 attendees . Those 450 people are a mix of plan sponsors (approx .. 275), advisers to employer-sponsored retirement plans (125) and the event sponsors (retirement plan recordkeepers and investment managers). You can find more information about the event on our conference website : http://www.plansponsor.com/event!psnc2017 /. This year's event is being held in Washington , DC June 7 through 9. I would like to extend an invitation for someone from the DOL or EBSA to speak at our upcoming event. We have been privileged enough to have EBSA Secretaries speak to our group in the past and they are always of great interest. Our audience from across the retirement plan industry pays close attention to the developments and regulatory activity at the Department of Labor, and would relish the opportunity to learn what is going on first-hand . I appreciate any consideration you can give to coming and speaking to our audience . For any more information, please feel free to contact me or Carol Popkins from our conferences and events department, copied here . Thank you for your consideration. Kind regards , Alison Cooke Mintzer DOL-17-0281-J-000012 Alison Cooke Mintzer Editor- in-Chief , PLANSPONSOR & PLANADV ISER Strat egic Insight 1055 Was hington Blvd., Suite 400, Stamford, CT 06901 , NY 10022 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) We changed our name. 1\sset International is now Strateg ic Insight. QQ, Global Custodian, PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses. This email message is meant only for the intended recipient , is confidential, and may be privileged by law. If you received this message in error, please notify us immediately by return email, delete this message from your system , and refrain from reviewing , copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name . Asset International is now Strateg ic lnsiaht. QQ , Global Custodian. PLANSPONSOR, PLANADVISER and The Trade are Strategic Insight businesses . This email message is meant only for the intended recipient, is confidential, and may be privileged by law. If you received this message in error , please notify us immediately by return email, delete this message from your system , and refrain from reviewing , copying or sharing it. Unless expressly stated otherwise , this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. We changed our name . Asset International is now Strategic lnsiah t QQ, Global Custodian , PLANSPONSOR , PLANADVISER and The Trade are Strategic Insight businesses . This email message is meant only for the intended recipient, is confidential , and may be privileged by law. If you received this message in error , please notify us immediately by return email , delete this message from your system, and refrain from reviewing, copying or sharing it. Unless expressly stated otherwise, this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. \;Ve changed our name. Asset International is now Strateaic lnsiaht. QQ , ~C!lstodian, PLANSPONSOR, PLANADVISER and The~ are .Strategic lnsigb! businesses. This email message is meant only for the intended recipient, is confidential , and may be privileged by law. If you received this message in error , please notify us immediately by return email , delete this message from your system, and refrain from reviewing , copying or sharing it. Unless expressly stated otherwise , this message is not intended to constitute an electronic signature giving rise to a binding legal agreement. DOL-17-0281-J-000013 From: To: Cc: Subject: Date: Attachments: Hauser, Timothy- EBSA Geale.Nicholas C. - SOL Hauser. Timothy - EBSA FW: FiduciaryMeetings Tuesday,May 30, 2017 10:24:00AM FiduciaryRSVPs.xlsx Just making sure that you're up to date. The meetings are in N4437A and B. From: Lineberger,Timothy L - OSEC Sent: Tuesday, May 30, 2017 9:33 AM To: Robins, Douglas- ASAM;Canary,Joe - EBSA;Conway, Molly E - OSEC Cc: Yerxa, ChristopherW - ASAM; Newkirk, Janet - OSEC;Hauser,Timothy - EBSA;Walters, Janet EBSA;Gatesman,Valerie - EBSA;Jackson, Kevin - OSEC Subject: RE: FiduciaryMeetings Last update (I hope) --Tim Tim Lineberger Department of Labor (b) (6) From: Lineberger,Timothy L - OSEC Sent: Tuesday, May 30, 2017 6:36 AM To: Robins,Douglas-ASAM; canary, Joe - EBSA;Conway, Molly E - OSEC Cc: Yerxa, ChristopherW - ASAM; Newkirk, Janet - OSEC;Hauser,Timothy - EBSA;Walters, Janet EBSA;Gatesman,Valerie - EBSA;Jackson, Kevin - OSEC Subject: RE: FiduciaryMeetings Another update. Sorry! --Tim Tim Lineberger Department of Labor (b) (6) From: Robins, Douglas- ASAM Sent: Monday, May 29, 2017 4:54 PM To: Lineberger,Timothy L - OSEC;canary, Joe - EBSA;Conway, Molly E - OSEC Cc: Yerxa, ChristopherW - ASAM; Newkirk, Janet - OSEC;Hauser,Timothy - EBSA;Walters, Janet EBSA;Gatesman,Valerie - EBSA;Jackson, Kevin - OSEC Subject: Re: FiduciaryMeetings Thank you. We have forwarded the updated RSVPlist to the Security Center. DOL-17-0281-J-000014 Doug (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Douglas Robins (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On: 29 May 2017 15:55, "Lineberger, Timothy L - OSEC"(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) rote: Updated RSVPlist attached. -- Tim Tim Lineberger Department of Labor (b) (6) From: Lineberger,Timothy L - OSEC Sent: Friday,May 26, 2017 5:49 PM To: Canary,Joe - EBSA;Conway,MollyE - OSEC Cc: Robins,Douglas- ASAM;Yerxa, ChristopherW - ASAM;Newkirk,Janet - OSEC;Hauser,TimothyEBSA;Walters, Janet - EBSA;Gatesman,Valerie- EBSA;Jackson,Kevin- OSEC Subject: RE: FiduciaryMeetings Here is the current RSVPlist. -- Tim Tim Lineberger Department of Labor (b) (6) From: Canary,Joe - EBSA Sent: Friday,May 26, 2017 5:47 PM To: Conway,MollyE - OSEC Cc: Robins,Douglas- ASAM;Yerxa, ChristopherW - ASAM;Newkirk,Janet - OSEC;Hauser,Timothy EBSA;Walters, Janet - EBSA;Gatesman,Valerie- EBSA;Jackson,Kevin- OSEC;Lineberger,Timothy L OSEC Subject: RE: FiduciaryMeetings Molly: We ended up with N4437 A & B (conference room space near the north side elevators on the 4th floor). We asked that the space be set up for 40 or so as a "squared circle.' ' Basically a big rectangle of long tables facing each other with an empty area in the center. It should still be OK if the nurnber goes a little over 40, We also asked for several wireless microphones to help make sure everyone can hear. We wi ll be checking Tuesday morn ing to make sure the rooms are being properly set up. So, we should be set as far as the conference room if that is what you decide to use. Finally, we sent a list of attendees to DOL security to help streamline the building entrance process. We based the list on the spreadsheets of the people you planned to invite . We understand DOL-17-0281-J-000015 the sp1.eadsheets do not necessarily capture eve ryone who may come for the meetings, but DOL Security requires the lists in advance so Tuesday morning would be too late. Even if people come who are not on t he list, giving DOL secur ity a heads up about this type of meeting helps . Let me know if we can do anything else to help out Tuesday morning. Thanks. From: Jackson,Kevin- OSEC Sent: Friday,May 26, 2017 5:12 PM To: Conway,MollyE - OSEC Cc: Robins,Douglas- ASAM;Yerxa, ChristopherW - ASAM;Newkirk,Janet - OSEC;Canary,Joe - EBSA Subject: RE: Fiduciary Meetings Okay. Just let us know if we can support you in any way. From: Conway, Molly E - OSEC Sent: Friday, May 26, 2017 5: 11 PM (b) (6)(b) (6)(b) (6)(b) (6) To: Jackson, Kevin - OSEC Cc: Robins, Douglas - ASAM (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Canary, Joe - EBSA Subject: RE: Fiduciary Meetings Adding Joe Canary. He said they have a room reserved on the sth floor that can hold 40 people. I think that's probably what we will want to use , we're at just under 40 for the biggest meeting . I'm not sure of the room number though. From: Jackson, Kevin - OSEC Sent: Friday, May 26, 2017 5:09 PM To: Conway, Molly E - OSEC Cc: Robins, Douglas - ASAM; Yerxa, Christopher W - ASAM; Newkirk, Janet - OSEC Subject: RE: Fiduciary Meetings Hello Mol!y, Will you want to have this meeting in the Secretary's conference room or some other room within OSEC? If so, I can have rny staff work with you to coordinate your guests and support you in checking them in . 1 w ill not be in on Tuesday; however, Janet and our staff will be available. Please let me know how we can support you in this effo1.t. Thanks, lL2""'-'--'-'-'-~s.LW'----"~= Subject: !Cl/Joint Pension/Pension Operations Advisory Committee Me eting (June 6, 2017) Tim, The Investment Company Institute {ICI) is holding its Joint Pension/Pension Operations Advisory Committ ee Meeting on Tuesday, June 6th and, in light of the new FAQs and impending June 9th applicability date of the rule, we are hoping you or Joe will agree to participate . As in the past, the meeting runs from 10am to 3pm. As you know, attendees at the meeting generally include representatives from a broad spectrum of mutual fund companies and-gi ven their current efforts at implementing the rule-would welcome your participation. Let me know. Thanks, Dave David M . Abbey Deputy General Counsel .....Retirement Pol;cy Investment Company Institute 1401 H Street NW Washington DC 20 005 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000032 From: (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) To: Subject: Date: RE: !CI/Joint Pension/PensionOperationsAdvisory Committee Meeting (June 6, 2017) Wednesday,May 24, 2017 2:21:15 PM Great . Should be fun . From: Canary. Joe - EBSA Sent: 5/24/2017 7:34 PM To: Hauser. Timothy - EBS/\ Subject: RE: !Cl/Joint Pension/Pension Operations Advisory Committee Meeting {June 6, 2017) DOL-17-0281-J-000033 From: To: Cc: Subject: Date: Attachments : Hauser Timothy - EBSA Canary Joe- EBSA Hauser,Timothv- ESSA RE: FiduciaryRule Meetings/ListeningSessions Wednesday, May 24, 2017 1:23:01 PM irnaneOQ.t..png Ok. Your recommenda t ions make sense to me. (b) (5) -..--... ........-.- -..-.o...-...------- From: Canary Joe - EBS/1. Sent: 5/24/2017 3:58 PM : Uovd. Karen - EBSA: ro,by Chris.. E.BSA.; Scott To: Hauser. Timothy.. EBSA; Piacentni Joseph - EBSA:Hall. Lyssa... EBSA WHliam - SOL:Hansen. Mei;,an D - SOL Cc:Carnoa,rna Lou - EBSA;Turner. Jeffrey- EBSA;Wong Fred - EBSA; Halliday Susan - EBSA;Gi-i!ic-Chooe Luisa - SOL; Kre-;sMarior!e- EBS.t, - "R5E:i; GoodmanEH>abeth Subject: FIN: Fiduciary Rule Meetings/Listening Sessions (b) (5) From: Geale, NicholasC. - SOL Sent: Wednesday, May 24, 2017 9: 11 AM To: Canary,Joe - EBSA Subject: Fwd: Fiduciary Rule Meeting From: "Lineberger , Timothy L - OSEC" (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Subject: Fiduciary Rule Meeting Date: 24 May 2017 08:42 To: Thank you for your request to meet regarding the Department of Labor's fiduciary rule and related exemptions. Next Tuesday , May 30, Department staff will hold a listening session to hear your individual views, and those of other stakeholder groups that asked to meet, regarding the Secretary' s announcement in the op-ed Monday and the FAQs and enforcement policy found below. Iftime pe1mits, Department staff may also be able to take a few questions. We will also memorialize attendance and the conversation. We are not seeking any type of group advice or recommendations. The meeting will take place at the U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC, on Tuesday, May 30, 2017, at 11 :00am. Please note that this meeting is off-the-record and not for press purposes. This invitation is non-transferrable. Because of limited space, there is a restriction to two persons per organization. If you plan to attend, please RSVP to this email no later than 5:00pm, Friday, May 26, with the full names of all attendees for security purposes. Please plan to arrive at least 10 minutes early to allow time to clear security. DOL-17-0281-J-000034 Labor Department News Brief U.S. Department of Labor I May 22, 2017 New fiduciary rule guidance from US Labor Department W ASIDNGTON - Fiduciary rule guidance for financial advisors, retirement plan sponsors, and individual workers and retirees has been published on the U.S. Labor Department 's website. This information comes in advance of the rule 's June 9 applicability date . Read Frequentlv Asked Ouesfams. Read the Employee Benefits Security Administration ' s enforcement policv . Read Secretarv Alexander Acosta's op-ed discus sing the rule and other regulatory issues (also see attached). ### Media Contacts : (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000035 From: To: Cc: Subject: Date: Hauser.Timothy@dol.gov canary. Joe - EBSA Hausernmothy- EBSA RE: FiduciaryRuleMeetings/ListeningSessions Wednesday,May 24, 2017 1:22:59 PM (b) (5) Ok. Your recommendations make senseto me. From: Canary.Joe - EBSA Sent: 5/24/2017 3:58 PM ~ Hail.Lyssa- EBSA;Lloyd.Karen - EBSA; To: Hauser.Timothy- EBSA;Piacentini.Joseph- EBSA; Chris- EBSA;Scott. William - SOL;Hansen.Megan D - SOL Grillo-. Wong.Fred.. ESSA;Halliday,Susan.-EBSA; Turner. Jeffrey-EBSA; Lou- EBSA; Cc:Campagna. Kress.Mariorie - EBSA Chope. Luisa- SOL;Goodman.Elizabeth- EBSA; Subject:FW: Fiduciary Rule Meetings/Listening Sessions DOL-17-0281-J-000037 Cc: Hauser. Timothy- EBSA on behalfof Canary.Joe- EBSA Khawar. Ali - EBSA (Khawar.Ali@dol.gov): Piacentini. Joseph- EBSA; Hall.Lyssa- EBSA; Lloyd,Karen- EBSA; !&mpagna.Lou- EBSA: Turner.Jeffrey- EBSA; CosbyChris- EBSA; Scott.William- SOL;Craig.James- SOL; Grillo-Chope. Luisa- SOL;Lim.Youngok MeganD - SOL;Wilker. Susan- EBSA; Susan- EBSA;Hansen. Halliday. ;:.fBSA;Syyjft.Nicole- EBSA; Hesse,Erin- EBSA; Wong,Fred- EBSA Hauser, Timothy- EBSA Subject: FW: Prep Meetingfor ListeningSessionson Tuesday From: To: -----OriginalAppointment--From: Canary,Joe - EBSA Sent: Friday, May 26, 2017 4:56 PM To: Canary, Joe - EBSA; Piacentini, Joseph- EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Campagna, Lou - EBSA; Turner, Jeffrey - EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Craig, James - SOL; Halliday, Susan - EBSA; Hansen, Megan D - SOL; Wilker, Susan - EBSA; GrilloChope, Luisa - SOL; Lim, Youngok - EBSA; Swift, Nicole - EBSA; Hesse, Erin - EBSA; Wong, Fred - EBSA Cc: Hauser, Timothy - EBSA Subject:Prep Meeting for Listening Sessions on Tuesday When: Tuesday,May 30, 2017 9:30 AM-10:00 AM (UTC-05:00)Eastern Time (US & Canada). Where: Fishbowl From: Canary,Joe - EBSA Sent Friday, May 26, 2017 1:14PM To: Piacentini,Joseph - EBSA; Hall, Lyssa - EBSA; Lloyd, Karen - EBSA; Campagna,Lou - EBSA; Turner, Jeffrey - EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Craig, James - SOL; Halliday, Susan - EBSA; Hansen, Megan D - SOL; Wilker, Susan - EBSA; Grillo-Chope,Luisa - SOL; Lim, Youngok- EBSA; Swift, Nicole - EBSA; Hesse, Erin - EBSA; Wong, Fred - EBSA Cc: Hauser, Timothy - EBSA Subject: RE: ListeningMeeting on Tuesday Thanks to everyone for being willing to help out. Below is a list of available staff for the meetings: Fred Wong -- AM and PM Megan Hansen -- AM and PM Susan Wilker--AM and PM YoungokLirn--AM and PM Luisa Grillo Chope .c AM Erin Hesse -- AM Nicole Swift - AM Molly Conway said 6 to 8 was OK for the AM meeting, but "maybe only 1 or 2" for the PM. I think 3 for the PM should be OK ifwe are to do a (b) (5) 11 AM Meeting: Luisa Grillo-Chope Megan Hansen Erin Hesse YoungokLim Nicole Swift Susan Wilker Fred Wong 3 PM Meeting: Megan Hansen YoungokLim Susan Wilker Please plan on getting together in the Fishbowl at 9:30am on Tuesday. Tim will be back from the 9:15 huddle and we can deal with any last minute issues. Thanks again. From: Canary, Joe - EBSA Sent Friday, May 26, 2017 11:42AM To: Piacentini,Joseph- EBSA; Hall, Lyssa- EBSA; Lloyd, Karen - EBSA; Campagna,Lou- EBSA; Turner, Jeffrey - EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Craig, James - SOL; Halliday, Susan - EBSA Cc: Hauser, Timothy - EBSA Subject:RE: ListeningMeeting on Tuesday Here is a draft of an opening statement for Nick. If you have comments, I would appreciatethem ASAP. Thanks. From: Canary,Joe - EBSA Sent Friday, May 26, 2017 7: 15 AM To: Piacentini,Joseph- EBSA; Hall, Lyssa- EBSA; Lloyd, Karen- EBSA; Campagna,Lou - EBSA; Turner, Jeffrey -EBSA; Cosby, Chris - EBSA; Scott, William - SOL; Craig, James - SOL Cc: Hauser, Timothy - EBSA Subject:Fw: ListeningMeeting on Tuesday DOL-17-0281-J-000038 (b) (5) As for the list for security, we shouldjust use the list that they gave us of invitees. Based on the below, I don't expect they will have a firm list of actual attendeesuntil Tuesday (or if sooner sometimeover the weekend). We can use the prior list to put Security on notice, and substitutea new list on Tuesdaymorning. Thanks. From: Conway,Molly E - OSEC Sent: Thursday,May 25, 2017 10:23PM To: Canary, Joe - EBSA Cc: Lineberger,Timothy L - OSEC; Geale, Nicholas C. - SOL Subject:ListeningMeeting on Tuesday (b) (5) DOL-17-0281-J-000039 From: To: Subject: Hauser Timothy - ESSA Canary, Joe - EBSA Accepted: Prep Meeting for Listening Sessionson Tuesday DOL-17-0281-J-000040 Hauser, Timothy - EBSA Khawar, Ali - EBSA From: To: Subject: RE: Listening Meeting on Tuesday Monday, May 29, 2017 9:09:55 PM Date: NOT RESPONSIV E Lets talk in the morning From: Khawar. Ali - ESSA Sent: 5/29/2017 7:51 PM To: Hauser. Timothy- EBS,Li, Subject: RE: Listening Meeting on Tuesday NOT RESPONSIVE. NOT RESPONSIVE ou're free tonigh NOT RESPONSIVE and available on (b) (6) From: Hauser. Timothy - EBSA Sent: 5/29/2017 4 :31 AM To: lph- EBSA;Hali. Lyssa- EBSA;Lloyd, Karen - EBSA;Campagna, Lou-. EBSA;I..i.J.rnfil. Jeffrey- EBSA;Cosby. Chris - EBSA;Scott. William - SOL;Craig, James - SOL; Halliday. Susan - EBSA Cc: Hauser, Timothy - EBSA Subject: RE:Listening Meeting on Tuesday Here is a draft of an opening statement for Nick. If you have comments, I would appreciate them ASAP. Thanks. From: Canary,Joe- EBSA Sent: Friday,May 26, 2017 7:15 AM Joseph- EBSA;Hall, Lyssa- EBSA;Lloyd,Karen- EBSA;Campagna,Lou- EBSA;Turner, To: Piacentini, Jeffrey- EBSA;Cosby,Chris- EBSA;Scott,William- SOL;Craig,James- SOL Cc: Hauser,Timothy - EBSA Subject: Fw: Listening Meeting on Tuesday Although they told me yesterday evening that Exec. Sec. would staff the meeting rather than EBSA,appears Exec. Sec. was not willing to do the memos memorializing the meetings, so it is still us. See responses below. I think the reason for a smaller number of EBSAstaff in the afternoon is because the consumer group meeting involves a smaller number of invitees. I will be circulating this AM a draft of opening remarks. It will be very bland and there will not be much time to review because they want to see a draft as soon as possible. As for the list for security, we should just use the list that they gave us of invitees. Based on the below, I don't expect they will have a firm list of actual attendees until Tuesday (or if sooner sometime over the weekend). We can use the prior list to put Security on notice, and substitute a new list on Tuesday morning. Thanks. From: Conway, Molly E - OSEC Sent: Thursday, May 25, 2017 10:23 PM To: Canary, Joe - EBSA Cc: Lineberger, Timothy L - OSEC;Geale, Nicholas C. - SOL Subject: Listening Meeting on Tuesday DOL-17-0281-J-000078 DOL-17-0281-J-000079 DOL-17-0281-J-000080 From: To: Subject: Date: Hauser, Timothy - EBSA Canary, Joe - EBSA RE:Messagefrom Unknown sender (2024293009) Wednesday, May 24, 2017 4:35:37 PM (b) (5) From: Canary, Joe- EBSA Sent: 5/24/2017 9:10 PM To: Geale. Nicholas C.- SOL Cc: Hauser. Timothy - EBSA (b) (6)(b) (6) Subject: FW: Message from Unknown sende (b) (6)(b) (6) Nick: The attached is a voicemail from Melanie Nussdorf (lawyer with Steptoe and Johnson). We deal with her all the time on ERISAissues and she represents firms in the broke1. industry. about the listening session invite that went to SIFMA. She called How do you want to handle"? You may already have heard directly from SIFMA (b) (5) ( (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) b (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) )(6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) ((6) 6 ) DOL-17-0281-J-000081 From: To: Cc: Subject: Date: Hauser Ti mothy - EBSA Campbell. Bradford P. Hauser, Timothy- EBSA;Canar1,Joe - EBS.A RE: EdwardJones Meeting Wednesday, May 24, 2017 1:18:52 PM I could meet with I'd love to talk with them, NOT RESPONSIVE them next week (Wednesday, Thursday, or Friday), however. Or, if you would like to meet in my absence, you could reach out to Joe Canary. From: Campbell. Bradford P Sent: 5/24/2017 4:58 PM To: Hauser. Tirnothv - EBSA Subject: Edward Jones Meeting Tim, how are you? I hope things are going well--there certainly is no shortage of activity! I am writing to follow up on your invitation to have Edward Jones come in and discuss its compliance decisions with you. The new guidance puts some of their decisions in a new light, and they would really appreciate your views. Of course, with June 9th around the corner, they are hopeful that you can meet with them very soon. If there is any time that would work for you this Friday, they would be happy to make themselves available and travel from St Louis. Attendees would include Chris LEWIS, their general counsel. If that can't work, is there any other time in the very near future we could try? I apologize for the short notice, but I hope you can accommodate our request! Thanks, Brad Sent from my iPhone ************************************** Drinker Biddle & Reath LLP is a Delaware limited liability partnership. The partner responsible for the firm's Princeton office is Jonathan I. Epstein, and the partner responsible for the firm's Florham Park office is Andrew B. Joseph. ************************************** This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender at Drinker Biddle & Reath LLP by reply e-mail and delete the message. Thank you very much. ************************************** DOL-17-0281-J-000082 From: To: Cc: Subject: Date: --- (b) (6)(b) (6)(b) (6)(b) (6) Joe- ESSA Hauser, Timothy - ESSA:Canary, RE: Edward Jones Meeting Wednesday, May 24, 2017 1:18:50 PM I could meet with I'd love to talk with them , NOT RESPONSIVE them next week (Wednesday, Thursday , or Friday), however. Or, if you would like to meet in my absence, you could reach out to Joe Canary. From: Campbell, Bradford P. Sent: 5/24/2017 4:58 PM To: Hauser. Timothy - EBSA Subject: Ed.ward Jones Meeting DOL-17-0281-J-000083 From: To: Subject: Date: Hauser,Timothy - EBSA Canary, Joe - EBSA FW: !CI/Joint Pension/PensionOperationsAdvisory Committee Meeting (June 6, 2017) Wednesday,May 24, 2017 1:10:01 PM You can let Dave know I'll plan to attend . Do you want to come too? From: /\bbev. David Sent: 5/23/2017 4:41 PM To: "-'-'i-"-""""'--'--"-'J,,j="'--'-+-------'~"-' Subject: ICl/Joint Pension/Pension Operati ons Advisory Committee Meeting (June 6, 2017) Tim, The Investment Company Institute (ICI) is holding it s Joint Pension/Pension Operations Advisory Committee Meeting on Tuesday, June 6th and, in light of the new FAQsand impending June 9th applicability date of the rule, we are hoping you or Joe will agree to participate . As in the past, the meeting runs from 10am to 3pm. As you know, attendee s at the meeting generally include represent ative s from a broad spectrum of mutual fund compani es and-given their current efforts at implementing the rule-would welc ome your participation. Let me know. Thanks, Dave David M. Abbey Retirement Policy Deputy (aeneral Counsei ----- Investment Con,pany :nsnute 1401 H Street \JW (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000084 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: To: Subject: Date: Canary, Joe - EBSA FW: !CI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Wednesday, May 24, 2017 1:09:59 PM You can let Dave know I'll plan to attend. Do you want to come too? From: ,l\bbey. David Sent: 5/23/2017 4:41 PM To: Hauser. Timothy - EBSA Subject: ICI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) DOL-17-0281-J-000085 From: To: Cc: Subject: Hauser Timothy - EBSA Cosbv, Chris - EBSA;Franks, Kathleen- ASP; Piacentini,Joseph - ESSA;Khawar, Ali - EBSA;Turner, Amy - EBSA; Trupo Michael - OPA; Butikofer, James- EBSA;Walters. Janet - ESSA;Capolongo Mabel - ESSA;Campagna, Lou - EBSA;Rose Michelle - OSEC;Barron William - ESSA;Bradford, Jessica- ESSA;Scott William - SOL; Bracken,Jean - EBSA;Bach, Suzanne- EBSA;Llovd, Karen - ESSA;McCue,Chelsea- EBSA;Schumacher, Elizabeth- EBSA;Rivers Amber - EBSA;Connor Mark - ESSA;Roskey Joanne - SOL; Waits Jennifer B - OCIA; fvlarchand,Becki - EBSA Turner Jeffrey - ESSA;Canary,Joe - EBSA;Bascus,Carrol - ASP; Decressin,Ania - EBSA;Linares, Elva E - EBSA; Craig, James- SOL; Borzi Phyllis- ESSA;Norman Jane- ESSA;Mares Judith - ESSA Reg. Update Your meeting was found to be out of date and has been automatically updated. 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(5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) DOL-17-0281-J-000094 Hauser , Timothy - EBSA From: To: Subject: Date: Geale, Nicholas C. - SOL RE: !CI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:30:07 AM Thanks. That will be a challenge, but we have folks working on it and we will do our best. I hope the rollout went well. It appeared to from here . From: Geale,f\Jicholasc: - sm Sent: 5/23/2017 5:17 PM To: Hau:;;er TimotlJ..Y.__:j;ElS-6 Subject: RE:ICl/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) From: Hauser, Timothy - EBSA Sent: Tuesday, May 23, 2017 11:12 AM To: Geale, Nicholas C. - SOL Subject: FW: !CI/Joint Pension/PensionOperations Advisory Committee Meeting (June 6, 2017) Should we plan on part icipating? From: /\bbev. f}avid Sent: 5/23/2017 4:41 PM To: flaus~r, Timothy - EBSA Subject: ICl/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tim, The Investment Company Institute (ICI) is holding its Joint Pension/Pension Operations Advisory Committee Meeting on Tuesday, June 6th and, in light of the new FAQs and impending June 9th applicability date of the rule, we are hoping you or Joe will agree to participate . As in the past, the meeting runs from 10am to 3pm . As you know , attendees at the meeting generally include representatives from a broad spectrum of mutual fund companies and-given at implementing the rule-would their current efforts welcome your participation . Let me know. Thanks, Dave David M . Abbey Deputy General Counsel - Retirement Pol!cy Investment Cornpany institute 1401 H Street NW (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000095 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000096 From: To: Subject: Date: (b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6) ea e. 1c10 as . RE: !CI/Joint Pension/PensionOperationsAdvisory Committee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:30:05 AM Thanks. That will be a challenge, but we have folks working on it and we will do our best. I hope the rollout went well. It appeared to from here . From: Geale. Nicholas C. - SOL Sent: 5/23/2017 5:17 PM To: Hauser Timothy... EBSA Subject: RE: ICI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) DOL-17-0281-J-000097 Hauser,Timothy - EBSA Geale, NicholasC. - SOL FW: !CI/Joint Pension/PensionOperationsAdvisoryCommittee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:12:09 AM From: To: Subject: Date: .---"-'' ----------------------. . Should we plan on participating? --- . ,,,, . , , ,, ___ ,,,,,,,., _, .. ________ _____________ _ From: """""""".;:....=~ Sent: 5/23/2017 4:41 PM To: .!.,!,!sC0,,,l,~_.Ll,! ~= oJd.!.,-,,,,,,,,,b,,b!Cs!,L,O Subject: ICl/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tim, The Investment Company Institute (ICI) is holding its Joint Pension/Pension Operations Advisory Committee Meeting on Tuesday, June 6th and, in light of the new FAQs and impending June 9th applicability date of the rule, we are hoping you or Joe will agree to participate . As in the past, the meeting runs from 10am to 3pm . As you know, attendees at the meeting generally include representatives from a broad spectrum of mutual fund companies and-given at implementing the rule-would their current efforts welcome your participation . Let me know. Thanks, Dave David M, /\bbey Depu ty Gene r a: Counsel..... Retirerrent Polley Investment Compan y ,nsttute l LOl H Street NW (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000098 (b) (6)(b) (6)(b) (6)(b) (6) From: To: Subject: Date: FW: !CI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:12:08 AM Should we plan on participating? From: Abbey. David Sent : 5/23/2017 4:41 PM To: Hauser. Timothy- EBS.l\, Subject: !Cl/ Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) DOL-17-0281-J-000099 From: To: Subject: Date: Hauser. Timothy - ESSA Nicholas Geale FW: !Cl/Joint Pension/PensionOperationsAdvisory Committee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:10:38 AM Should we plan on participating? From: Abbey, David Sent: 5/23/2017 4 :41 PM To: -'--'-"""-"-~-LLl~<.hL!.:t--.b.bcd.!:2 Subject: ICl/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tim, The Investment Company Institute {IC!) is holding its Joint Pension/Pension Operations Advisory Committee Meeting on Tuesday, June 6th and, in light of the new FAQs and impending June 9th applicability date of the rule, we are hoping you or Joe will agree to participate. As in the past, the meeting runs from 10am to 3pm. As you know, attendees at the meeting generally include representatives from a broad spectrum of mutual fund companies and-given at implementing the rule-would their current efforts welcome your participation. Let me know. Thanks, Dave David M. Abbey Deputy Genera: Counsel----- Reti rernerit Policy Investment Company ,nst:tute 1401 H Street \J\N Washington DC 20005 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000100 From: To: Subject: Date: (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) 1c o as ea e FW: !CI/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) Tuesday, May 23, 2017 11:10:37 AM Should we plan on participating? From: Abbey, David Sent: 5/23/2017 4:41 PM To: Hauser, Timothy - EBSA Subject: ICl/Joint Pension/Pension Operations Advisory Committee Meeting (June 6, 2017) DOL-17-0281-J-000101 From: To: Cc: Subject : Date: Hauser. Timothy - EBSA canary. Joe - EBSA carnpagna. Lou - EBSA; Turner. Jeffrey - EBSA; Halliday, Susan - EBSA; Scott. William - SOL; Hansen. Megan D SQ!,,; Piacentini.Joseph - EBSA; Lloyd, Karen - EBSA; Hall. Lyssa- EBSA; Hauser. Timothy - ESSA RE: Draft DOL Fiduciarytemp non enforcement policy and FAQs Friday, May 19, 2017 3:58:00 PM Based on a quick review, it looks good to me. From: Canary, Joe - EBSA Sent: Friday, May 19, 2017 3:57 PM To: Hauser, Timothy - EBSA Cc: Campagna, Lou - EBSA; Turner, Jeffrey - EBSA; Halliday, Susan - EBSA; Scott, William - SOL; Hansen, Megan D - SOL; Piacentini, Joseph - EBSA; Lloyd, Karen - EBSA; Hall, Lyssa - EBSA Subject: FW: Draft DOL Fiduciary temp non enforcement policy and FAQs (b) (5) (b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) 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(5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) DOL-17-0281-J-000104 From: To: Cc: Subject: Date: Hauser, Timothy - EBSA Turner, Amv - EBSA;Scott, William - SOL; Geale, Nicholas C. - SOL HarthilL Susan - SOL; Craia, James - SOL; Benson, Susanna- SOL RE: PD: Non-enforcement letter Friday, May 19, 2017 11:10:00 AM But /\my can more than handle EBSA'send of this if you need a different time . From: Hauser, Timothy - EBSA Sent: Friday, May 19, 2017 11:08 AM To: Turner, Amy - EBSA; Scott, William - SOL; Geale, Nicholas C. - SOL Cc: Harthill, Susan - SOL; Craig, James - SOL; Benson, Susanna - SOL Subject: RE: PD: Non-enforcement letter I can't do 12:30, but 1:30 or later could work. From: Turner, Amy - EBSA Sent: Friday, May 19, 2017 11:04 AM To: Scott, William - SOL; Geale, Nicholas C. - SOL Cc: Harthill, Susan - SOL; Hauser, Timothy - EBSA; Craig, James - SOL; Benson, Susanna - SOL Subject: RE: PD: Non-enforcement letter I can make myself available anytime until 3:30 . From: Scott, William - SOL Sent: Friday, May 19, 2017 11:03 AM To: Geale, Nicholas C. - SOL; Turner, Amy - EBSA Cc: Harthill, Susan - SOL; Hauser, Timothy - EBSA; Craig, James - SOL; Benson, Susanna - SOL Subject: RE: PD: Non-enforcement letter Yes, I can do 12:30 From: Geale, Nicholas C. - SOL Sent: Friday, May 19, 2017 10:58 AM To: Scott, William - SOL; Turner, Amy - EBSA Cc: Harthill , Susan - SOL; Hauser, Timothy - EBSA; Craig, James - SOL; Benson, Susanna - SOL Subject: FW: PD: Non-enforcement letter HHS finally got around to reviewing our letter and came back with this at 10pm last night (which I missed until now somehow). Can we set up a meeting to discuss? From: Bylund, Jeremy (OASG) [mailto:Jererny.Bylund@usdoj.gov ] Sent: Thursday, May 18, 2017 9:42 PM To: Conway, Molly E - OSEC; Mehrens, Nathan P - OSEC; Geale, Nicholas C. - SOL Subject: RE: PD: Non-enforcement letter (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) DOL-17-0281-J-000105 (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) DOL-17-0281-J-000106 From: To: Cc: Subject: Date: Hauser,Timotl1y - EBSA Turner, Amv - EBSA; Scott, William - SOL;Geale, NicholasC. - SOL Harthill, Susan- SOL; Craia James- SOL; Benson,Susanna- SOL RE: PD: Non-enforcementletter Friday, May 19, 2017 11:08:00 AM I can't do 12:30 1 but 1:30 0t. later could work. From: Turner, Amy - EBSA Sent: Friday, May 19, 2017 11:04 AM To: Scott, William - SOL; Geale, NicholasC. - SOL Cc: Harthill, Susan- SOL; Hauser,Timothy - EBSA;Craig, James - SOL; Benson, Susanna- SOL Subject: RE: PD: Non-enforcement letter I can make myself available anytime until 3:30. From: Scott, William - SOL Sent: Friday, May 19, 2017 11:03 AM To: Geale, NicholasC. - SOL; Turner, Amy - EBSA Cc: Harthill, Susan- SOL; Hauser,Timothy - EBSA;Craig, James - SOL; Benson, Susanna- SOL Subject: RE: PD: Non-enforcement letter Yes, I can do 12:30 From: Geale, NicholasC. - SOL Sent: Friday, May 19, 2017 10:58 AM To: Scott, William - SOL;Turner, Amy - EBSA Cc: Harthill, Susan- SOL; Hauser,Timothy - EBSA;Craig, James - SOL; Benson, Susanna- SOL Subject: FW: PD: Non-enforcement letter HHSfinal ly got around to reviewing our letter and came back with this at 10pm last night (wh ich I missed unti l now somehow). Can we set up a meeting to discuss? (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Bylund, Jeremy (OASG)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Thursday, May 18, 2017 To: Conway, Molly E - OSEC;Mehrens, Nathan P - OSEC;Geale, NicholasC. - SOL Subject: RE: PD: Non-enforcement letter (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) (b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5)(b) (5) DOL-17-0281-J-000107 From: To: Cc: Subject: Date: Hauser. Timothy - EBSA Gerstein. George Conway. Molly E - OSEC; Hauser. Timothy - EBSA RE: Roundtable for Consultants& Investors - Institutional Investor Conference- Oct. 4-6 Friday, May 19, 2017 11:03:00 AM Thanks for the invitation. Do you know if there is a 501(c)(3) cosponsor? If so, that generally makes the clearance process easier. How many people are you expecting to attend? (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Gerstein, George (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) : I o :i: Sent: Thursday, May 18, I To: Hauser, Timothy - EBSA Cc: Conway, Molly E - OSEC; Gerstein, George Subject: Roundtable for Consultants & Investors - Institutional Investor Conference - Oct. 4-6 Hi Tim, Molly Conway (copied) provided me your contact information. By way of introduction, I recently joined Stradley Ronan as Counsel. I focus on Title I of ERISA and advise a broad spectrum of clients. I previously worked at Groom. While I have not yet met you, I have heard great things, so I hope we can meet at some point. I've been tasked with putting together a couple of panels for the Roundtable for Consultants & Investors as part of an upcoming InstitutionalInvestorconference (http://www.iiconferences.com/roundtable-for-consultants-and-institutional-investors/). One panel will be on, you guessed it, the DOL Fiduciary Rule. The audience will consist of plan fiduciaries, investment advisers and consultants. The panel members are likely to be in-house lawyers at large financial institutions, and myself. The event takes place Oct. 4-6 in Chicago. The organizer has indicated that the DOL Fiduciary Rule panel will likely be on Oct. 5. I should also add that the organizer told me that former members of the DOL, including Phyllis, have spoken at prior conferences. The organizer told me they could provide the necessary protocol letter. I am happy to provide any additional information. It would be great to have you! Thanks, again, for your time and consideration. George bio I vcard I email I Illiill I website George Michael Gerstein Y n (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) STR.AI)LEY .o.o. .c .~R i... o. ,,, .. .N .1..0.~.N, -=z. ~M --= .. , , .. , . ,.... . J. ...,, . This e-mail is from the law firm of Stradley Ronon Stevens & Young, LLP, and may contain information that is confidential or privileged. If you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please notify the sender and delete the e-mail and attachments. Thank you. DOL-17-0281-J-000108 DOL-17-0281-J-000109 From: To: Cc: Subject: Date: Hauser,Timothy- EBSA Geale,Nicholasc.- SOL Hauser Timothy- EBSA RE:Nextweek Friday,May 19, 2017 10:40:00AM Tense as can be about leaving the office. If you'd like me to give you and Molly that additional fiduciary briefing today let me know. (b) (5) From: Geale,NicholasC. - SOL Sent: Friday,May 19, 2017 10:30 AM To: Hauser,Timothy- EBSA Subject: RE: Nextweek Have a great time. Joe is a pro. I have no concerns. From: Hauser,Timothy - EBSA Sent: Friday, May 19, 2017 10:26 AM To: Geale, NicholasC. - SOL Subject: Next week NOT RESPONSIVE Canary will be minding the store while I'm gone. - NOT RESPON Joe SIVE DOL-17-0281-J-000110 From: To: Cc: Subject: Hauser Timothy - EBSA Cosbv, Chris - EBSA;Franks, Kathleen - ASP; Piacentini.Joseph - EBSA;Khawar, Ali - ESSA;Turner, Amy - EBSA; Trupo Michael - OPA; Butikofer James - EBSA;Walters. Janet - ESSA;Capolongo Mabel - ESSA;Campagna, Lou - EBSA;Rose Michelle - OSEC;Barron, William - ESSA;Bradford, Jessica- ESSA;Scott. William - SOL; Bracken, Jean - EBSA;Bach, Suzanne- ESSA;Lloyd, Karen - ESSA;McCue,Chelsea- EBSA;Schumacher, Elizabeth - EBSA;Rivers Amber - ESSA;Connor Mark - ESSA;Raskey Joanne - SOL; Waits Jennifer B - OCIA; Marchand, Becki - EBSA Turner, Jeffrev - EBSA;Canary,Joe - ESSA;Bascus,Carrol - ASP; Decressin,Ania - EBSA;Linares, Elva E - EBSA; Craig James - SOL; B0rzi, Phyllis - ESSA;Norman Jane - ESSA;Mares Judith - ESSA Reg.Update Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000111 From: To: Subject: Date: Hauser , Timothy - EBSA Conway , Molly E - OSEC RE: Department of Labor Thursday, May 18, 2017 6:16:00 PM Email! From: Conway, Molly E - OSEC Sent: Thursday, May 18, 2017 6:08 PM To: Hauser, Timothy - EBSA Subject: RE: Department of Labor Do you want him to have your e-mail or send it snail mail? From: Hauser, Timothy - EBSA Sent: Thursday, May 18, 2017 5:57 PM To: Conway, Molly E - OSEC Cc: Hauser, Timothy - EBSA Subject: RE: Department of Labor If he could send me a formal invitation with an indication on whether there's a 501(c)(3) cosponsor, I can take it frorn there . From: Conway, Molly E - OSEC Sent: Thursday, May 18, 2017 5:26 PM To: Hauser, Timothy - EBSA Subject: FW: Department of Labor Hey Tim - How would you like for me to respond? Is there someone in your shop with whom I can put this guy in contact ? .(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Gerstein, Georg (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) o :. ~ Sent: Thursday, May 1 : , I To: Conway, Molly E - OSEC Cc: Gerstein, George Subject: RE: Department of Labor Hi Molly, Sure, if you think any of the career staff would be interested, that would be great. As a reminder, I am helping put together a couple of panels for an InstitutionalInvestor conference in Chicago, Oct. 4-6 (http://www.iicon ferences.com/roundtable-for -consultantsand-i nstitut ional-investors /). One of the panels is on the Fiduciary Rule. I'd love to have someone from DOL on the fiduciary panel. Those attending the panel discussions are members of the asset management community, particularly the managers and consultants (though they are representatives of plans, too). I am certainly happy to answer any questions that any one may have on the conference. Thanks so much! DOL-17-0281-J-000112 George bio I vcard I email I .!lliill I website (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) 1250 Connecticut Avenue, . ., Washington, DC 20036-2652 This e-mail is from the law firm of Stradley Ronon Stevens & Young, LLP, and may contain informat ion that is confidentia l or priv ileged. If you are not the intended recipient, do not read, copy or distr ibute the e-mail or any attachments. Instead, please notify the sender and delete the e-mail and attachments. Thank you. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Conway, Molly E - OSEC Sent: Thursday, May 18, 2017 3: To: Gerstein, George Subject: RE: Department of Labor Hi George: Thanks for following up . We do not yet have political leader ship in EBSA. Happy to forward to career staff , but not sure if you w ere looking for political staff. Thanks, Molly .(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Gerstein, Georg (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) ; ' ., ; Sent: Thursday, May 1 : , I To: Conway, Molly E - OSEC Subject: RE: Department of Labor Hi Molly, Per your prior email, just checking in whether you may be willing to speak on a panel re. the Fiduciary Rule now that the Secretary has been confirmed. If not, would you know of anyone who might have an interest? Thanks so much, George bio I vcard I email I .!lliill I website George Michael Gerstein Stradle Ronon Stevens & Youn (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) STRAI)LEY R .;: 1/4 fl I. o.. (")Ni. l",JN. ~it - .,.. G'-,,; .. - _.. ,,,.+ ,.I., DOL-17-0281-J-000113 This e-mail is from the law firm of Stradley Ronon Stevens & Young, LLP, and may contain information that is confidential or privileged. If you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please notify the sender and delete the e-mail and attachments. Thank you. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Conway, Molly E - OSE Sent: Monday, April 10, 2017 1:40 PM ' To: Gerstein, George Subject: RE: Department of Labor Thanks , George. Unfortuna te ly, at this point I'm not able to accept any spe aking req ue sts. Perhaps check back in once the Secretar y is confirmed and permanent staffing positions have been i dentified. Thank you for your understanding! Molly (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) . . . From: Gerstein, Georg (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Monday, April 10, To: Conway, Molly E - OSEC Subject: RE: Department of Labor Thanks, Molly. I completely understand. By the way, I am putting together a couple of panels for a conference in October in Chicago - one on the Fiduciary Rule and the other on Environmental, Social and Governance (ESG) investing from a fiduciary standpoint (e.g., adherence to fiduciary duties and principles). Would you have any interest in participating on one of these panels? I would be happy to send you additional information, provide color, etc. Thanks, George bio I vcard I email I IllilQ I website George Michael Gerstein Stradle Ronon Stevens & Youn (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) STRi\Dl EY o.... 11 .~I;:..Ro. .... , N .-.. .. ' l..... .('), N oo. i~;..f~ This e-mail is from the law firm of Stradley Ronon Stevens & Young, LLP, and may contain informat ion that is confidential or privileged. If you are not the intended recipient do not read, copy or distribute the e-mail or any attachments . Instead, please notify the sender and delete the e-mail and attachments. Thank you. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Conway, Molly E - OSEC Sent: Tuesday, April 04, 2017 2:18 PM To: Gerstein, George Subject: Department of Labor Mr . Gerstein: DOL-17-0281-J-000114 I hope you are well. Bob Bozzuto passed your message to me regarding the fiduciary rule. Rulemaking procedures require that communications with interested parties during the comment period follow certain formalities, including memorializing communications for the record. In order to protect the integrity of that process and to ensure that rule making staff consider input from across the spectrum of interested parties, I am happy to direct you to the following link where you can submit a formal comment: https: /lvvvvvvxegu]ations.gov /document?D=EBSA-2010-0050-3491 Thank you for your understanding. Best, Molly Molly Elizabeth Conway Department of Labor DOL-17-0281-J-000115 To: Subject: Date: Conway, Molly E - OSEC RE: Department of Labor Thursday, May 18, 2017 5:30:10 PM I' ll take cai-e of it From: Conway, Molly E - OSEC Sent: Thursday, May 18, 2017 5:26 PM To: Hauser, Timothy - EBSA Subject: FW: Department of Labor Hey Tim - How would you like for me to respond? Is there someone in your shop with whom I can put th is guy in cont act? (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Gerstein, George(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Thursday, May 18, To: Conway, Molly E - OSEC Cc: Gerstein, George Subject: RE: Department of Labor Hi Molly, Sure, if you think any of the career staff would be interested, that would be great. As a reminder, I am helping put together a couple of panels for an InstitutionalInvestor conference in Chicago, Oct. 4-6 (http://www.iiconferences.com/roundtab!e-for-consultantsand-institutionaHnvestors/) . One of the panels is on the Fiduciary Rule. I'd love to have someone from DOL on the fiduciary panel. Those attending the panel discussions are members of the asset management community, particularly the managers and consultants (though they are representatives of plans, too). I am certainly happy to answer any questions that any one may have on the conference. Thanks so much! George bio I vcard I email I m Pension & Benefits Daily: r,ewsArch!ve > 2017 > .M.il_y> 05/17i2017 > IQQ. News > Broker-Dealers: Fiduciary Rule Is Industry's Future, FINRA Chairman Says Broker-Dealers Fiduciary Rule Is Industry's Future, FINRA Chairman Says Snapshot o Firms should act in clients' 'best interest ' regardless of DOL fiduciary rule controversy, FINRA chief says o John Brennan hopes SECwill write its own fiduciary rule By Antoinette Gartrell Brokerage firms should continue to act in their clients' best interest, regardless of whether the Department of Labor's fiduciary rule survives, FINRA Chairman Jack Brennan said May 16. "It's going to be the way business is done," he said at the Financial Industry Regulatory DOL-17-0281-J-000133 Authority's annual conference in Washington. "Whether it happens June 10, [2017] or June 10, 2022," it's only a matter of time before it happens, Brennan said. The rule, originally slated to go into effect April 10, aims to reduce the allegedly conflicted investment advice given to retirement savers, by requiring financial advisers to act in the best interest of their clients, disclose any conflicts of interests and tell clients about any associated fees and commissions. The implementation date of the regulation was delayed until June 9 while the rule is under a review by the agency initiated by President Donald Trump. Purpose Served The controversy surrounding the rule "put the best interest terminology into the industry and into the press," Brennan said. "The consumer now knows the best interest concept," so firms should ensure that they uphold the standard, whether it's required by DOL or not, Brennan said. No matter the outcome ofthe DOL rule, "it served its purpose," Brennan said. He also said he hopes the Securities and Exchange Commission will adopt its own rule holding broker-dealers to a fiduciary standard as authorized by the Dodd-Frank Act. However, that isn't likely to happen anytime soon given the Trump administration's pledge to roll back the statute. "Seeing what the industry did with the prospect of the rule shows that it can be done and the adviser can still have a very good income and the firms can still do well and it's just a mindset change recognizing that there's transition that has to occur," Brennan said. Despite FINRA'ssupport for the regulation, numerous Industry trade associations have challenged the DOL rule outright. Groups including the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association have argued that the fiduciary rule is "contrary to law," overly burdensome, oversteps the department's authority and disproportionately harms small businesses and individual savers. They also contend that allowing some portions of the rule to take effect June 9 ignores Trump's directive. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) tory: Antoinette Gartrell in Washington at (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000134 65) DOL-17-0281-J-000135 From: To: Cc: Subject: Hauser Timothy - ESSA Cosbv,Chris - EBSA;Franks, Kathleen- ASP; Piacentini.Joseph - EBSA;Khawar Ali - EBSA;Turner, Amy - EBSA; Trupo Michael - OPA; Butikofer, James- EBSA;Walters. Janet - EBSA;Canolonqo Mabel - EBSA;Campagna Lou - EBSA;Rose Michelle - OSEC;Barron William - EBSA;Bradford Jessica- EBSA;Scott, William - SOL; Bracken,Jean - EBSA;Bach, Suzanne- EBSA;Lloyd, Karen - EBSA;Mccue, Chelsea- EBSA;Schumacher, Elizabeth- EBSA;Rivers Amber - EBSA;Connor Mark - EBSA;Roskey Joanne - SOL; Waits, Jennifer B - OCIA; Marchand.Becki - ESSA Turner.,Jeffrev - EBSA;Canary, Joe - EBSA;Bascus.Carrol - ASP; Decressin,Anja - EBSA;Linares,Elva E - EBSA; Craig, James- SOL; Borzi Phyllis- EBSA;Norman Jane- EBSA;Mares Judith - EBSA Reg.Update Yourmeetingwas foundto be out of date and has been automaticallyupdated. Sent by MicrosoftExchangeServer DOL-17-0281-J-000136 From: To: Hauser, Timothy - EBSA Subject: Date: RE: HOLDMeeting(T. Hauser& R. Derbyshire) Tuesday, May 16, 2017 7:59:00 PM Derbyshire. Ralph *o.-- -----------------------------~---. Nothing to share just yet. I might ask Joe Canary and Karen Lloyd to join us. I look forward to seeing you too. I hope you don 't mind if some of the thoughts are pretty preliminary! -----OriginalAppointment-(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Derbyshire,Ralph (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Tuesday,May 16, To: Hauser,Timothy- EBSA Subject: FW: HOLDMeeting (T. Hauser& R. Derbyshire) When: Thursday,May 18, 2017 1:00 PM-2:00 PM (UTC-05:00) EasternTime (US & Canada). Where: 200 ConstitutionAve, NW, Ste N-5677 Tim, I scheduled this time because at our last meeting you indicated you had some thoughts on potential approaches to rule modifications that you wanted to discuss. Is there anything in particular- that you can share in advance of the meeting? Also, it looks like you and I are the only attendees which I think is great. But if you do intend to include other staff members, please let me know . Thanks, and I look forward to seeing you on Thursday . Ralph RalphC. Derbyshire Senior Vice President and Deputy General Counsel Fidelity Investments 245 SummerStreet Boston , M.A 02109 (b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6) DOL-17-0281-J-000137 (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) -----Original Appointment----From: Smith, Sharon M. (Legal) On Behalf Of Derbyshire, Ralph :. o ., ~ Sent: Friday, May 05, I (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) To: Derbyshire, Ralph (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Subject: HOLD Meeti When: Thursday, May 18, 2017 1:00 PM-2:00 PM (UTC-05:00) Eastern Time (US & Canada). Where: 200 Constitution Ave, NW, Ste N-5677 . .. - .. . Sharon Smith f\s~~imantto f-1aipriDert>yshire, Doug KE.1t1t, Kr.!::MEi D'Ak/a, Tcm Pr-c>V~X~t &, KEY1rn Lynn Legal Ucpar'lrnontJF>\Vi Fide!ity investments cfLCEUR'.. 24f.1Summ;~3:r Street VI!\, (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) c::ontaJ;; confidential tJorrna tfon ttu-:t is fntonUed soiefv for the aiientfon thereof rnust not he dlschse::i , copied, 6istributed or feta!ned i)/ any DOL-17-0281-J-000138 From: To: Subject: Hauser Timothy - EBSA Derbyshire,Ralph Accepted: FW: HOLD Meeting (T. Hauser& R. Derbyshire) DOL-17-0281-J-000139 From: To: Cc: Subject: Hauser Timothy - EBSA Canary,Joe - ESSA;Piacentini, Joseph - ESSA;Lloyd, Karen - EBSA;Cosby. Chris - EBSA;Campagna, Lou - EBSA Turner Jeffrev - EBSA Brian Graff -- Fiduciary Rule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000140 From: To: Subject: Hall, Lyssa - ESSA Hauser. Timothy - EBSA Declined: Brian Graff -- Fiduciary Rule DOL-17-0281-J-000141 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Lloyd, Karen - ESSA;Cosby Chris - EBSA;Hall. Lyssa- EBSA; Campagna Lou - EBSA Turner Jeffrey - EBSA BrianGraff -- FiduciaryRule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000142 From: To: Subject: PiacentinLJoseph - EBSA Hauser. Timothy - EBSA Accepted: Brian Graff -- Fiduciary Rule DOL-17-0281-J-000143 From: To: Cc: Subject: Hauser, Timothy - EBSA Canary, Joe - EBSA;Piacentini, Joseph - EBSA;Lloyd, Karen - ESSA;Cosby. Chris - EBSA;Hall. Lyssa - EBSA; Campagna Lou - EBSA Turner, Jeffrey - ESSA BrianGraff -- FiduciaryRule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000144 From: To: Subject: Canary Joe - ESSA Hauser, Timothy - EBSA Accepted:BrianGraff-- FiduciaryRule DOL-17-0281-J-000145 From: To: Cc: Subject: Hauser Timothy - EBSA Canaiy, Joe - EBSA; Piacentini, Joseph - EBSA;Lloyd, Karen - ESSA;Cosby, Chris - ESSA;Hall, Lyssa - EBSA; Campagna Lou - EBSA Turner Jeffrey - EBSA BrianGraff -- FiduciaryRule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000146 From: To: Subject: Lloyd, Karen - EBSA Hauser,Timothy - EBSA Accepted: Brian Graff -- Fiduciary Rule DOL-17-0281-J-000147 From: To: Subject: Lloyd, Karen - EBSA Hauser, Timothy - EBSA Accepted: Brian Graff -- Fiduciary Rule DOL-17-0281-J-000148 Hauser, Timothy - EBSA Brian Graff RE: Names and Firms for DOL Meeting Tuesday, May 16, 2017 4:06:00 PM From: To: Subject: Date: Will do. Thanks. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Brian Graff (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) . . Sent: Tuesday, M . To: Hauser, Timothy - EBSA Subject: Re: Names and Firms for DOL Meeting . . . Thanks for the heads up Tim. Let's go ahead and push things back to 11:30. Brian Brian Graff Chief Executive Officer American Retirement Association (b) (6)(b) (6)(b) (6)(b) (6) On May 16, 2017, at 10:17 AM, Hauser, Timothy - EBSA (b) (6)(b) (6)(b) (6)(b) (6) wrote: Brian, we will have a full complement of people here to meet you, but I may not be .-. able to make it untii 11:30 . You can start without me or we can move it to 11:30 whatever you'd Iike. Tim (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Brian Graff (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) t o . Sent: Thursday, M y Io , I To: Hauser, Timothy - EBSA Cc: Edozie, Melinda U - EBSA; Sean Huff Subject: Re: Names and Firms for DOL Meeting So let's go ahead and grab May 18th (not December:)) at 11 am. Thanks for being flexible. Brian Brian Graff Chief Executive Officer American Retirement Association (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On May 4, 2017, at 12:08 PM, Brian Graff (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) wrote: Sorry I meant may. Checking on the 18th now. Brian Brian Graff Chief Executive Officer American Retirement Association 4, 2017, at 10:55 AM, Hauser, Timothy-EBSA wrote: (b) (6)(b) (6)(b) (6)(b) (6) DOL-17-0281-J-000149 December? How about May 18 or 19? I have a slight preference for the 18th if that works for you. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) From: Brian Graff Sent: Thursday, ay , To: Hauser, Timothy - EBSA Cc: Edozie, Melinda U - EBSA;Sean Huff Subject: Re: Namesand Firms for DOL Meeting Tim in light of the apparent severe weather coming into town there is some concern about people being able to get into town . Do you think it would be possible to reschedule? Perhaps December 18 or 19? If so let me know as soon as possible so I can let the attendees know. Thanks, Brian Brian Graff Chief Executive Officer American Retirement Association ?.:. o ! I o~~ (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) ' rian Graff wrote : Great. Have a good weekend. Brian Brian Graff Chief Executive Officer American Retirement Association On Apr 28, 2017, at 1:24 PM, Hauser, (b) (6)(b) (6)(b) (6)(b) (6) wrote: Yes. (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Sent: Friday, April 28, 2017 1:22 PM To: Hauser,Timothy - EBSA; Edozie, Melinda U - EBSA Cc: Sean Huff Subject: Re: Namesand Firms for DOL Meeting Tim I had not heard back from you or your assistant. Are we still on for next Friday . Thanks , Brian Brian Graff DOL-17-0281-J-000150 Chief Executive Officer American Retirement Association On Apr 27, 2017, at 11:44 AM, (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) Tim, lam resending this to include your assistant. Please let me know if you have any questions. Thanks and again look forward to seeing you next week. Brian Brian Graff I Chief Executive Officer American Retirement Association 4245 N. Fairfax Dr., Suite 750 Arlington , Virginia (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) (b) (6)(b) (6)(b) (6)(b) (6)(b) (6)(b) (6) On Apr 26, 2017 , at 3:04 PM, Brian Graff wrote: Tim please see below the list DOL-17-0281-J-000151 of attendees for the meeting on May 5th at 11 am. Look forward to seeing you. Brian o Brian Graff, American Retirement Association o David Levine, Groom Law Group o Doug Fisher, American Retirement Association o Craig Hoffman, American Retirement Association o Mark Quinn, Cetera Financial Group o Kevin Crain, Bank of DOL-17-0281-J-000152 America Merrill 0 Ralph Fidelity Investments DOL-17-0281-J-000153 From: To: Cc: Subject: Hauser Timothy - EBSA Canaiy, Joe - EBSA;Piacentini, Joseph - EBSA;Lloyd, Karen - ESSA;Cosby. Chris - EBSA;Hall. Lyssa- EBSA; Qlrnpaqna Lou - EBSA Turner Jeffrey - ESSA BrianGraff -- FiduciaryRule Your meeting was found to be out of date and has been automatically updated. Sent by Microsoft Exchange Server DOL-17-0281-J-000154 From: To: Hauser. Timothy - EBSA Canary, Joe - EBSA;Piacentini. Joseph - EBSA;Lloyd, Karen - EBSA;Cosby. Chris - EBSA;Hall. Lyssa- EBSA; C.ampaqna,\,.OU- EBSA Turner. Jeffrey - EBSA Brian Graff -- Fiduciary Rule Cc: Subject: Tim please see below the list of attendees for the meeting on May 18th at 11 am. Look forward to seeing you. Brian Brian Graff, American Retirement Association David Levine, Groom Law Group Doug Fisher, American Retirement Association Craig Hoffman, American Retirement Association Mark Quinn, Cetera Financial Group Kevin Crain, Bank of America Merrill Lynch Ralph Derbyshire, Fidelity Investments Could you put this on my calendar and invite the usual CO! attendees? Thanks. -----Original Me (b) (6)(b) (6)(b) From: Brian Gra Sent: Thursday, ' ' ' .. ,: To: Hauser, Timothy - EBSA Cc Sean Huff; Craig Hoffman Subject: Re: Potential meeting dates (6)(b) (6) . Tim the group consensus is that May 5th at 11 an1is the preferred date and time. Thanks and very much look forward to the discussion. Brian Brian Graff Chief Executive Officer American Retirement Association > On Apr 10, 2017, at 1:55 PM, Hauser, Timothy - EBSA < HYPERLTNK"mailto:Hauser.Timothy@dol.gov"Hauser.Timothy@dol.gov> wrote: > > How about 4/26 at 2 or 5/5 at 11? > > -----Original Mes (b) (6)(b) (6)(b) (6)(b) (6)(b) (6) > From: Brian Graf i . . . > Sent: Thursday, A > To: Hauser, Timothy - EBSA > Cc: Sean Huff > Subject: Potential meeting dates > > Tim, so far the following firms want to participate in a meeting regarding the issues we have previously discussed by phone: . .. . > > Cetera > Fidelity > Merrill Lynch > Morgan Stanley > Raymond James > > Good group. Before working on dates with them I wanted to make sure that you didn't have any current conflicts on the following dates (and certainly let me know of you have any preferences). > >A pril 18, 19,2 6or27 > May 2, 3, or 4 > > Thanks, and look forward to beginning this conversation. Brian > > > > Brian Graff > Chief Executive Officer > American Retirement Association > DOL-17-0281-J-000155