Federal Court Decision Again Denies Fiduciary Rule Injunction
The National Association for Fixed Annuities has failed
again to win an injunction in a DOL fiduciary rule challenge that was previously
defeated in a federal district court and is now pending on appeal.
The U.S. Circuit Court of Appeals for the District of
Columbia has flatly denied to grant an emergency preliminary injunction prior
to its hearing of an appeal by the National Association for Fixed Annuities (NAFA),
which is seeking to bar the implementation of the Department of Labor (DOL)
conflict of interest rule via the federal courts.
The U.S. District Court for the District of Columbia has already
rejected the claims of the anti-fiduciary rule lawsuit
filed by NAFA, which had asked the court for “declaratory, injunctive, and
other appropriate relief” that would have halted the implementation of the DOL
rulemaking.
The underlying suit seeks relief under the Regulatory
Flexibility Act (RFA), suggesting the DOL conflict of interest rule, with
its sweeping advice reforms, moves far too
quickly to install overly broad restrictions to currently accepted business
practices. “Specifically, in promulgating the Rule and the Exemptions, the
Department exceeded the authority granted to it by Congress under ERISA, the
Code, and Reorganization Plan No. 4 of 1978,” the suit contends. “In addition,
the Rule and the Exemptions are arbitrary and capricious, not in accordance
with law, impermissibly vague, and otherwise promulgated in violation of
federal law.”
NAFA’s arguments did not succeed before the district court,
and now it appears the challenge may do no better before the appeals court.
This week the appeals court essentially rebuked NAFA’s request for an emergency
injunction to halt the rulemaking from taking effect next April. The denial
comprises just a few short sentences, in fact, suggesting NAFA has no claim to an injunction.
“Upon consideration of the emergency motion for an
injunction pending appeal, the opposition thereto, and the reply, it is ordered
that the emergency motion for an injunction pending appeal be denied,” the
appellate judges write. “The appellant has not satisfied the stringent
requirements for an injunction pending appeal. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20
(2008); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2016).”
It remains to be seen whether the NAFA appeal will do any
better during the actual trail, but the initial denial of preliminary
injunction shows it will not be an easy task. A variety of arguments were leveled
before the district court, but clearly they did not prevail, given that the
D.C. District Court opposed NAFA’s dual requests for preliminary injunction and
summary judgment. Instead, the court actually granted the DOL’s cross-motion
for summary judgment, which argued naturally that all of the tenets of the
rulemaking fit squarely within the DOL’s existing authority.
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When most retirement plan advisers want to catch up on
industry trends, they go to a conference or webinar; but where do the speakers,
leaders in the field, get their information?They may belong to a study group.
More or less formal adviser study groups have been around
for years. A current group was inspired by one of the founders’ fathers, who,
himself, belonged to a study group in the 1970s and ’80s. The appeal of the
best groups is the same now as then: Top-tier managing partners can meet and
share ideas, best practices and challenges at a level impossible in other
settings.
Sources disagree, though, on how common the groups are, and
the phenomenon is hard to track. “Under
the radar” is how two describe the groups. To share valued information requires
trust, mutual respect and comfort with other members, so new admissions are few.
Still there is much to be learned from the experience of these
groups and best practices they name. Firms might ultimately even want to start
their own.
The blueprint for the group begun by Daniel Bryant and Jim
O’Shaunessey, owners of Sheraton Road, with several other LPL (then NRP) firms,
could be a model for professional study groups in general.
The partners decided to host a two-day retreat, inviting about
20 other “leaders in the institutional investing consultant space, to come and just
talk about best practices where we could all learn from each other. These were people
we trust and respect immensely,” Bryant says. “There was no judging, no
competitive or professional jealousy.”
The fact that all were at different stages of growth and had
different ambitions was irrelevant, Bryant says. Even if a firm was smaller,
such as Channel Financial, and was “growing out a different animal” than
Sheridan Road, each had things they could teach each other. This is still true
eight years later.
Over that time, they have explored such topics as how to
grow a practice; how to attract and retain great employees; how to leverage
technology; customer relationship management (CRM), billing, basic practice management
and business oversight; as well as deliverables to a client. What does the
client need? What are the tools and things you provide the client? How do you
manage a committee from a fiduciary standpoint? These are all crucial points of
discussion, Bryant says.
NEXT: Bring something
‘innovative, new, untested’
The group as a whole has evolved considerably, too—not size-wise
but in the scope of resources it offers members. The executive committee meets
monthly by phone to debate themes and speakers for group-wide events. These culminate
in an annual 2-day conference, where industry experts, always including a top
ERISA [Employee Retirement Income Security Act] attorney, give legislative and
economic updates and talk about trends. The number of vendors is limited.
Any who come must bring “something innovative, new,
something they haven’t tested yet. We’re looking for their top intellectual
resources to bring to that room,” says committee member Jason Chepenik,
managing partner of Chepenik Financial, and also a founder. Additionally, each
member is expected to present an idea to the group. “We all show up with our
best stuff, because we want to test it against each other,” he says.
Chepenik calls the annual conference “the most rewarding, impactful
thing to my business. I can attend any [event], but I can get far more golden
nuggets from six or seven people standing up and talking for 15 to 20 minutes.
There’s nothing in it for them; they’re not trying to sell me anything—they’re
just talking about an idea that worked for them.”
One idea Chepenik himself shared particularly resonated with
one of the members, Channel Financial’s Jim McDonald. That was a charity race
Chepenik had just established in Orlando, Florida, the 4.01k Run for Financial Fitness.
“He’d had some pretty good success with it,” McDonald recalls. “He said, ‘If
you guys want to take up this idea, I’ll be happy to share it. Let me know, and
we’ll set up a franchise agreement to keep the brand, if we’re going to do it
nationally.’” McDonald did so.
Channel figuratively ran with the idea, in the process
building up its referral base in its hometown of Minneapolis and the community
good will. “It was a huge success,” McDonald says. All profits from the race,
held last spring, benefited Junior Achievement of the Upper Midwest.
“It was a lot of work setting it up for the first time, but,
with Jason sharing the idea and providing us with a template, we were able to
do it and do it successfully,” McDonald says. “[In 2017,] we expect to double
or triple what we did last spring.” Chepenik, in turn, benefits from Channel’s
success, as Minneapolis becomes one of eight cities nationally where the race
will be run next April 1.
NEXT: Sharing your
best with competitors
Bouncing your best potential strategy off what amounts to
competitors seems counterintuitive, but “we really don’t care that we’re
sharing some of our secret sauce,” Bryant observes. “That’s the only way a
study group works, is if the guys respect one another and aren’t trying to do
an end around.”
“Net givers” is the term Chepenik uses. “You have to be
willing to give more than you get back.”
While size and business models may vary in their group, the
people “are definitely creative, definitely entrepreneurial, and they want to
do the right thing for their clients—they really care,” Bryant says.
The Revere Coalition, another study group, was actually
formed to promote best practices, although its purpose now is to help its members. These like-minded retirement plan advisers—mostly
registered investment advisers (RIAs)—are fee-only and must have “a business
model free from broker/dealer [B/D] affiliation and product conflicts,” says
Michael Francis, owner of Francis Investment Council LLC.
Francis was skeptical when asked to join, about eight years
ago. He had belonged to study groups before—the type begun by large financial
services employers such as the one he then worked for—groups “dominated by wholesalers”
and employer product pitches. “It’s not an effective use of time,” he says. Still,
he knew he would benefit if the group was good. “There are many different hats
you wear when you run a company like mine,” he says. “It’s easy to get
distracted, either just serving your customers or managing your firm, hiring
and firing and profitability, and you lose sight of the industry trends and
best practices.”
He was pleased to find a peer group with whom he had
“significant similarities” and could hash out common challenges. “All are
trying to do what’s best for the client, trying to compete with the big
brokerage firms, the big insurance companies, the big mutual fund companies,
and trying to figure out ways to do what we do better,” he says.
To deal with the day-to-day, members often consult with each
other by email. “‘I’m looking for a fund company that does this specific kind
of fund—anybody have an idea?’” Francis says. And at semi-annual two-plus-day meetings,
like with the other study group, they hear industry updates, and the latest on
trends and technology from outside experts and their own members.
NEXT: Remarks of gold
Members even may find gold—as Chepenik says—in an offhand
remark. About five years ago, Francis recalls, “we were talking about our firms’
profitability, how do we serve clients more effectively, more efficiently? One
of the guys said, ‘You know, we’re experimenting with getting rid of paper
reports.’”
On questioning how, Francis heard enough about iPad
technology to go back and ask his tech specialists whether that might work for
his firm. At the time, he was distributing about eight copies of a report, at
$50 to $75 each, every time he attended a committee meeting. “We were going through
hundreds of those things every quarter,” he says.
About 20 iPads have since transformed that report delivery
model—also winning him extra points with many clients, who liked the idea and
have adopted it, too. “This put us in a good light, as well: ‘These guys are on
the cutting edge—they know what’s going on,’” he says.
While these are specific ideas, the study groups yield
broader benefits, too. Bryant credits talking with his study group peers and
the knowledge he’s gained for “having a clearer vision of where the industry is
and where it’s going than [most]. We have a very good handle on where we think
our clients’ needs will be in three and four years than where they are today.
So we’re trying to obviously provide the services our clients will need in 2018
and 2019,” he says. “Go where the puck is going, not where the puck is.”
McDonald points to the present “move for aggregation” among
smaller, independent shops like his and the advantages a study group such as
his can provide. His study group brings together “a lot of brain power, [as]
most of the folks came from larger corporations.” Membership in the group
allows independents to build and keep their autonomy but still have the
advantages that larger organizations have because the group is willing to share
these ideas,” he says.
NEXT: So how dopeople join?
To join a study group such as those discussed here requires
fairly intensive vetting. Typically, a friend or acquaintance is recommended by
a current member. In the Revere Coalition, that person then gets discussed, and
must be approved, by all, says Don Stone, director DC [defined contribution] strategy
and product development, and senior consultant, for Plan Sponsor Advisors LLC,
who was invited to join “four-plus years” ago. Members look into reputation and
business practices, maybe consulting outside sources, and if they turn up
issues, the process ends there. Every member has veto power, which may be
applied against direct competitors, he says.
Once approved, the person attends a meeting where both sides
asses the fit. At this point, if he is not invited back, the reason is
personality, Stone says.
Even when candidates were deemed a good fit and have been
members for a while, undercurrents of competition can be at work.
Stone acknowledges the necessity for candidness, “but there
are still things you are not going to talk about, things you’re not going to
reveal,” he says. “The hard part is figuring out how to get up close to that
line to be really helpful to the others—and hopefully they’ll do the same for
you—without crossing it and giving information you don’t want [a potential
competitor] to have. The [problem] is people draw the line in different places.”
He points to a couple of members of his group who are less
forthcoming than the rest. “It gets frustrating,” he says. “You have to really
push them, and then they’ll maybe tell you something worth knowing. But most in
the group are very forthcoming.”
Not all groups work out. Stone helped start one in 2005.
After a few meetings and phone calls, it drifted apart. He cites business
distractions as a cause. Maybe more so: “There was not enough affinity among
the members to hold it together.” Commitment is necessary.
When all the right variables are in play—including “fun,”
which all sources mentioned—e.g., “We’ve taken over this cabin [for our annual
meeting], and it’s a lot of fun”—the result can be “awesome,” Chepenik says.
For that reason, he and the other owners began inviting some
of their second-tier staff to the meetings so they could get acquainted,
Chepenik says. “If you can find a peer across another firm, or if one of my
analysts can reach out to somebody in Minnesota or Chicago and say, ‘How are you
doing this?’ that too is special.”