Securities Regulation Daily Court won’t block DOL fiduciary rule pending appeal
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Thursday, December 15, 2016

Court won’t block DOL fiduciary rule pending appeal

By Anne Sherry, J.D.

The D.C. Circuit denied a request to enjoin the Department of Labor fiduciary rule. The National Association for Fixed Annuities has so far unsuccessfully challenged the rule; it is appealing its latest setback to the appeals court. That court found, however, that NAFA "has not satisfied the stringent requirements for an injunction pending appeal" (National Association for Fixed Annuities v. Perez, December 15, 2016, per curiam).

NAFA challenged the DOL’s authority to redefine "investment advice" and "fiduciary" under ERISA and the Internal Revenue Code and to include fixed indexed annuities under the best interest contract exemption. According to NAFA, the rule creates a private right of action, which only Congress can do. Moreover, Congress determined that fixed annuities should be regulated by the states, not the federal securities laws.

NAFA sought an injunction that would block the rule from taking effect as scheduled on April 10, 2017. The district court denied this request, holding that the rule was entitled to deference under Chevron. A few weeks later, the court denied NAFA’s renewed motion for preliminary injunction on an expedited basis. NAFA filed notice of appeal to the D.C. Circuit on November 14.

The case is No. 16-5345.

Attorneys: Jacob A. Kramer (Bryan Cave LLP) for National Association for Fixed Annuities. Emily Sue Newton, U.S. Department of Justice, for Thomas E. Perez.

Companies: National Association for Fixed Annuities

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