Texas Judge Rejects Most Support Briefs in DOL Fiduciary Litigation

Just two out of an increasingly large pile of amicus briefs filed in relation to litigation seeking to halt the new DOL fiduciary rule will be considered—both of them ostensibly pro-DOL in their argumentation.

The judge presiding over industry challenges filed against the Department of Labor (DOL) fiduciary rule will only consider “friend of the court” or “amicus” briefs filed by the Financial Planning Coalition (FPC) and the American Association for Justice (AAJ).

In a short declaration explaining her decision, District Judge Barbara M.G. Lynn notes these briefs, unlike those that will not be considered, actually contain novel arguments compared with those presented by the plaintiffs and defendants. Her decision regarding the FPC brief in particular also highlights the fact that the FPC has a unique perspective to weigh in, since it is “the only filing party representative of financial professionals in the United States already operating under a fiduciary standard.”

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“The court has discretion to consider amicus briefing where the proffered information is timely and useful or otherwise necessary to the administration of justice,” Judge Lynn writes. “In this case, both sides are represented by sophisticated counsel, and the court has granted generous page allocations for briefing. The court determines that Financial Planning Coalition’s motion should be granted because its proposed brief provides a unique perspective. The coalition is the lone amicus representative of financial professionals in the United States already operating under a fiduciary standard, and is therefore able to provide a practical perspective different from that of the parties. Further, Coalition’s brief does not repeat arguments made by either party.”

The FPC brief, it’s safe to say, is staunchly pro-DOL and pro-fiduciary. The brief centers around three critical points of argument. First, the coalition argues, investors currently suffer from a lack of complete, truthful disclosures, and this is having a measurable negative effect on retirement outcomes. Second, “empirical research and the coalition’s own practical experience confirm that middle income investors will retain ready access to professional financial advice under a fiduciary standard of conduct.” And finally, based on CFP professionals’ experience under internal standards similar to those required by the Best Interest Contract Exemption, the coalition argues the rule provides “a workable solution to allow for advisers to receive transaction-based compensation while providing advice that is in the best interests of the client.”

Judge Lynn goes on to explain that American Association for Justice’s motion should also be granted full consideration, “because AAJ’s brief focuses on a narrow legal issue related to the Federal Arbitration Act and does not repeat arguments made by other parties.”

While this brief is certainly more narrowly focused than others, it can also be considered favorable to the DOL’s arguments, with AAJ suggesting the fiduciary rule’s class-action provision “is a valid exercise of the department’s authority that does not conflict with the Federal Arbitration Act.”

“DOL acted well within its statutory authority when it conditioned an exemption on the availability of class actions,” AAJ states. Further, according to AAJ’s analysis, the rule is “fully consistent with the Federal Arbitration Act … The rule does not preclude the enforcement of any arbitration agreements … and covers only those who choose to invoke an exemption … The rule can—and therefore must—be harmonized with the Federal Arbitration Act’s policies.”

Judge Lynn concludes that “no amici will be able to present oral argument at the hearing set for November 17, 2016.” The full text of her decision is here.

DC Plan Participants Need to Know Fundamentals to Feel More Secure

Participants 'unsure' about their retirement prospects admit they need knowledge about investing and haven't calculated how much they need to retire, and they are less engaged in their DC plans.

Only about half (52%) of individuals participating in defined contribution (DC) retirement savings plans believe they are “on track” for retirement,  but BlackRock says retirement confidence is within reach for many more.

BlackRock’s DC Pulse Survey of 1,003 DC plan participants found 28% reported feeling “unsure” about whether they are on track for retirement.  The survey revealed people “unsure” about their retirement prospects are much more likely than those “on track” to admit that “I don’t know as much as I should about investing for my retirement” (66% vs. 38%, respectively) and “I don’t know how much money I need to save in order to fund the retirement I want” (68% vs. 32%, respectively).

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“Unsure” participants also are less likely to be taking proactive steps to improve their knowledge. For example, just 11% of those “unsure” have calculated the amount of money to set aside now for retirement (compared with 35% of those “on track”). Similarly, just one-quarter of “unsure” individuals have developed a good sense of how to generate ongoing retirement income from their savings (vs. 68% of people “on track”).

According to BlackRock’s analysis, the link between a basic understanding of key retirement planning principles and retirement confidence holds true for people at all income levels—suggesting that such confidence is not simply a function of greater financial resources.

“Unfortunately, many individuals who consider themselves ‘off track’ face financial realities requiring support beyond their DC plan,” says Anne Ackerley, head of BlackRock’s U.S. & Canada Defined Contribution Group. “But the good news is that people who are unsure about their retirement standing may be able to build their confidence with relative ease by working in the near term to close critical knowledge and saving gaps.”

NEXT: Lack of DC plan engagement

The survey also found that across the board, “unsure” individuals are less likely than “on track” participants to engage with their DC plan. Those “unsure” were less likely than those “on track” to say they take full advantage of retirement savings guidance provided by their employer (43% vs. 67%, respectively) and also less likely to have increased their contribution in the past 12 months (35% vs. 47%). They also reported less engagement in evaluating their investment options (25% vs. 38%) and were less likely to report that they evaluate their investment options at least quarterly (29% vs. 50%).

Significantly more women said they are “unsure” about their retirement than said they felt “off track” (33% vs. 21%, respectively). Women’s general sense of unease about retirement also translates into lower levels of confidence and retirement preparedness: They were less likely than men to report feeling confident about being able to retire by the age they want to, handle unexpected costs in retirement and enjoy the lifestyle they want.

Women who are “unsure” about their retirement acknowledged that they could be taking greater advantage of retirement tools and resources already at their disposal, particularly those available in their DC plan. “Unsure” women were more likely than “unsure” men to agree that they don’t spend the time they should to understand their employer’s retirement plan (55% vs. 41%, respectively) and don’t feel that they are doing as much as they should with their plan (57% vs. 42%).

But women generally also put a very high value on their workplace plan. They were significantly more likely than men to say that their plan will be extremely or very important to ensuring a secure retirement (74% vs. 66%) and that it will be their biggest source of retirement income (58% vs. 51%).

“Our survey shows that plan engagement is a key vehicle for boosting retirement confidence—and that’s a critical message for plan participants and sponsors alike,” says Ackerley. “Individuals need to take greater advantage of the tools already available to them through their plan. And plan sponsors can feel confident that adding more and better tools for their DC participants is a worthy effort—because a robust, participant-focused DC plan really does have the power to make a difference.”

More information from the survey is here.

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