In recent months, eight states — Arkansas, Delaware, Kentucky, Maine, Michigan, Nebraska, North Dakota, and Ohio — have proposed or finalized rules setting forth a best interest standard for annuity producers in recommending annuities to their customers. Each state has designed its rule to follow the NAIC’s model regulation concerning suitability in annuity transactions, which requires producers to act in the consumer’s best interest without placing the producer’s financial interest ahead of the consumer’s. The rule also requires producers, prior to recommending an annuity, to disclose the scope and terms of their relationship to the consumer, how the producer is being compensated, and any material conflicts of interest. Notably, the rule does not create a fiduciary obligation or relationship with the consumer, and producers are not subject to civil liability for breaching any fiduciary standard of conduct.
Subject: Fiduciary Duty
Recent State Fiduciary Duty Developments
View a copy of the updated state chart.
Recent State Fiduciary Duty Developments
The Iowa Insurance Division has proposed a “best interest” standard for the sale of annuities in that state. The press release for the proposal indicates that it “follows efforts by the National Association of Insurance Commissioners (NAIC) to develop a model Suitability in Annuity Transactions Model Regulation” and stated that the proposal is designed to be “harmonized“ with the SEC’s Regulation Best Interest. The comment period expires on April 28, 2020, though it seems this could be extended in light of the coronavirus crisis.
State Fiduciary Duty Developments: Massachusetts Moves Ahead with Fiduciary Standard
The Massachusetts Securities Division has issued an amended version of its proposed fiduciary standard for financial advisors. The original proposal was released in mid-June.
The amendment adds definition to the standard by including a detailed list of requirements as described in Faegre Drinker’s updated state law chart. The absence of this type of description has been a major criticism of other attempts at adopting a fiduciary standard for financial advisors.
Recent State Fiduciary Duty Developments: Updates from Massachusetts, New Jersey, Illinois and the CFP Board
The issue of “best interest” continues to be a hot topic in the states and trade groups, though one state has fallen out of the running…at least for now.
The State of Massachusetts has two pending initiatives. The first is a regulation proposed by the state Securities Division requiring investment advisers to create a table of fees for their services. The comment period on the proposal ended in May, and we await further action. In a more recent development, the Division is considering a regulation that would apply a fiduciary standard on broker-dealers, investment advisers and their representatives. The proposal was released in mid-June, and the comment period ends on July 26. Under the proposal, enforcement would be vested in the Securities Division, and it would not create a private right of action.
Recent State Fiduciary Duty Developments
We have updated our State Fiduciary and Best Interest Developments chart to reflect regulatory changes in New Jersey. The New Jersey Bureau of Securities has proposed a rule that will establish a fiduciary standard for broker-dealers and clarify the standard applicable to investment advisors. The comment period on the proposal ends on June 14; we anticipate that the regulation will become effective later in 2019. (Details of the proposal may be found in the chart.) The proposal is part of New Jersey governor Murphy’s aim to provide strong consumer protections. That objective also led Gov. Murphy in the last few days to veto legislation that would have eliminated a fiduciary standard for insurance producers.
We are also delighted to announce the expansion of the Drinker Biddle Best Interest Compliance Team by the addition of a team of attorneys with experience in litigation involving retirement and health benefits, especially in defending class action lawsuits. The new members of the Team are: Kimberly A. Jones, James F. Jorden, Glenn Merten, Gregory Ossi, Waldemar J. Pflepsen, Jr. and Michael A. Valerio.
Please contact us if you have questions about state developments or other issues that affect your business.
Updated State Fiduciary and Best Interest Developments Chart
We have updated our state fiduciary/best interest developments chart. We are still waiting for finalization of the Nevada rules on the fiduciary duty for broker-dealers and investment advisors and the effective date of the New York rules on the sale of annuities and life insurance. In the meantime, though, Maryland and Massachusetts have stepped in with new developments.
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State Fiduciary and Best Interest Developments
A number of states are seeking to impose fiduciary or best interest requirements on broker-dealers, investment advisers, financial planners and/or insurance brokers and producers in their dealings with customers. While the rules vary from state to state, they are in addition to – and sometimes inconsistent with – federal requirements being considered by the SEC or by the Department of Labor for retirement investment advice. We have prepared a chart summarizing the activities in each state along with proposals of the National Association of Insurance Commissioners (NAIC), which we update periodically as needed. You may access the chart here.
Nevada Proposes Fiduciary Regulations
Nevada has released a proposed regulation to regulate broker-dealers and their advisors as fiduciaries. In 2017, the state amended its securities law to provide that broker-dealers and investment advisers owe a fiduciary duty to their customers, but the change didn’t provide details on what that meant. Instead, the legislation required that a regulation be issued to explain and implement the change. Nearly a year and a half later, a proposed regulation has been released.
The Continuing Convergence of Retail and Retirement Regulatory Oversight
Last month the SEC’s Office of Compliance Inspections and Examinations (OCIE) issued its “2019 Examination Priorities.” The release of OCIE’s 2019 Priorities this year was earlier than in years past. In retrospect, the date of issuance being the last day before the vast majority of the SEC staff was furloughed may just be coincidental, but the federal government shutdown allowed the industry more time to study OCIE’s 2019 Priorities for compliance planning for the upcoming year. Another impact of the shutdown and furloughs in an area directly related to OCIE’s first priority is that the SEC’s efforts and the timing of the finalization of the Reg BI proposals have very likely been slowed as well. The recent ending of the SEC furloughs and OCIE’s continuing prioritization of retail and retirement regulatory issues presents us with an opportune time to re-visit these important topics.
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