The DCIO Leadership Summit The Legal and Political Arena for 2017 Regulation, Legislation and Litigation Concerning the Retirement Plan Industry: The Legal and Political Arena for 2017 Marcia S. Wagner, Esq. .

Topics Impacting the Retirement Plan Industry Today I. The Fiduciary Rule - What you should know and what you should be doing NOW II. Court Cases - The recent spike in retirement plan litigation III. Upcoming Legislation – Its impact on the retirement plan industry

I. THE FIDUCIARY RULE – What you should know and what you should be doing NOW

Overview of New Fiduciary Rule Broadening of Fiduciary Definition DOL’s new rule would broaden scope of advisors deemed to be IRA/plan fiduciaries Targets broker-dealers (BDs) and registered reps (RRs) earning commission-based compensation Would change IRA marketplace Would impact registered investment advisers (RIAs) Offering rollover advice Managed account programs

Fiduciary Rule and Exemptions Need for Exemptive Relief New “investment advice” definition confers fiduciary status on all types of advisors ERISA’s PT rules ban advisors from earning variable compensation Exemption required for brokers and insurance agents, including advisors to IRAs DOL has created Best Interest Class Exemption

Best Interest Contract (BIC) Exemption Scope of BIC Exemption Advisor can earn variable compensation (such as commissions) for non-discretionary advice Covered “retail” clients include: Participants IRAs (and HSAs, Archer MSAs and Coverdell) Non-ERISA Plans (e.g., Keogh, Solo Plans) ERISA Plans (with less than $50 million) Observations No relief for variable compensation arising from discretionary advice.

What Is The Best Interest Standard? Three part standard – more than “suitability standard” under FINRA’s conduct rules. The Advisor must: Use the care, skill, prudence and diligence that a prudent person who is familiar with such matters would use Taking into consideration the investment objectives, the risk tolerance and financial circumstances of the client Without regard to his compensation/interests.

Framework of BIC Exemption 4 Alternate Versions of BIC “Full Blown” BIC for IRAs and Non-ERISA Plans “Disclosure” BIC for ERISA Plans “Streamlined” BIC for Level Fee Fiduciaries “Transition” BIC for 2017 Transition Period Observations Firms could potentially rely on “Full Blown” BIC for all retirement clients as of April 10, 2017 If feasible, it may be beneficial to use less onerous BIC versions for different client types

“Full Blown” BIC: IRAs and Non-ERISA Plans Required Terms for Contract Fiduciary standard of care General disclosures for compensation and conflicts Giving specific compensation figures upon request Compliance policies mitigating conflicts Mandatory arbitration with reasonable venue is permitted (but must not limit class action rights) Other Requirements Transaction disclosures for each investment Focusing on fiduciary standards and conflicts 1-year relief if advising purchase of same product Webpage focusing on business model and conflicts

“Disclosure” BIC: ERISA Plans General Requirements mirror those for “Full Blown” BIC But no written contract is required Must give written statement of fiduciary status and general disclosures on compensation and conflicts List of Requirements Written statement and general disclosures Giving specific compensation figures upon request Webpage focusing on business model and conflicts Transaction disclosures for each investment

BIC Compliance Policies General Required for “Full Blown” BIC for Non-ERISA Plans and IRAs and “Disclosure” BIC for ERISA Plans Differential compensation paid from BD firm to rep must be based on neutral factors tied to services (like time or expertise needed to sell investment) Expectations DOL appears to be expecting BD firms to change their payout grids for reps For example, payouts to rep may vary for different investment categories, but not for similar investments in same category (such as VAs)

“Streamlined” BIC: Level Fee Fiduciary When Does a Level Fee Fiduciary Need BIC? Offering rollover advice to participants when plan sponsor is existing client, resulting in higher fees Offering rollover advice to “off the street” participants Moving from commission- to fee-based services Streamlined BIC Requirements Advisor gives written statement of fiduciary status Advisor documents (internally) reason for rollover recommendation being in client’s best interest No need for compliance policies or other disclosures

So What Should You Do Now? Depends on where you sit.

IARs vs. Registered Reps. IARs are accustomed to being ERISA fiduciaries, but they need to understand that the ERISA requirements are applicable as of 4/10/17 to their IRA clients. Real issue will be with registered reps. and commissionable sales.

Anticipated Trends in B/D Industry Strategic Courses of Action Levelizing commissions and structuring revenue sharing as flat dollar payments More RRs migrating to advisory service model Promoting advisory programs featuring institutional mutual funds and variable annuities Modifying managed account programs to rely on BICE and/or fee levelization Support for Smaller Retirement Accounts Reducing minimums for advisory programs Relying on Computer Model Exemption (robo-advice) to earn commissions General Fee Compression

BD Firm/BIC Officer Responsibilities re: Best Interest Create reasonable payout grids and monitor compliance therewith. Monitor reps. so that they do not skew advice to highest paying products. Educate and train registered reps. re: holistic financial planning and fiduciary responsibility NOTE: It is beyond the scope of this presentation to discuss appropriate share classes and potentially winnowing down the investment line-up. 

Financial Advisors - Strategic Use of Financial Plans Consider using financial plans to ensure recommendations are in “Best Interest” of client Quality financial plans by their nature can help demonstrate prudent advice BIC compliance policies must address conflicts and variable compensation issues Requiring financial plans (before investments are recommended) can help mitigate conflicts

Product Manufacturers - Be A Thought Leader and Innovator Now Is The Time to Increase Your Footprint Consider publishing white papers Consider providing toolkits for rollovers, BICE, templates, compliance policies. Consider having a help desk. Make life for BIC officer and CCO easier, they will be overwhelmed. Consider opinion of counsel regarding best interest standards and how your product fits in. Consider assisting with education and training of broker-dealers, financial advisors (not selected based on assets with you!) regarding the new fiduciary rule.

II. COURT CASES – The recent spike in retirement plan litigation

Tibble v. Edison International Beneficiaries claimed that Edison violated its fiduciary duties when it imprudently offered six higher priced mutual funds when materially identical lower priced mutual funds were available. The Supreme Court found that a fiduciary has “a continuing duty to monitor trust investments and remove imprudent ones,” in addition to his/her duty to exercise prudence in selecting investments. Fiduciaries need to carefully monitor investment and document their findings. A gap analysis should be performed periodically to ensure that investment are properly monitored.

White v. Chevron Corporation Plaintiffs’ allegations included: selecting a money market fund as a capital preservation fund, rather than a stable value fund providing “retail” investment options rather than the lower cost “institutional versions” of the same investment options providing mutual funds, rather than other lower cost investment options such as collective trusts or separate accounts failing to put plan administrative services out for competitive bidding on a regular basis, and as a result paying excessive recordkeeping fees through revenue sharing retaining a particular fund as an investment option despite its underperformance prepared to its benchmark, peer-group, and lower cost investment alternatives failing to monitor its appointees’ performance and fiduciary process failing to ensure that the appointees had a fiduciary process in place failing to remove appointees whose performance was inadequate

Tussey v. ABB Failure to monitor recordkeeping costs and negotiate rebates Plan fiduciaries: made no effort to determine if fees were reasonable Replaced one fund with an alternative fund because decision benefitted plan sponsor, not participants

Government Audits The following government agencies routinely audit retirement plans, and plan sponsors should be prepared. DOL IRS PBGC

III. UPCOMING LEGISLATION – Its impact on the retirement plan industry

How Retirement Plans Affect the Deficit Impact of retirement plans on federal deficit DC / 401(k) $61 billion (2015) $414 billion (2015 – 2019) DB $42 billion (2015) $235 (2015 – 2019)

Affect of Limiting Contributions 2017 Plan limitations that can be reduced to limit deficit: Annual additions from all sources - $54,000 Elective deferrals - $18,000 Plan sponsor deductions – 25% participant compensation Compensation limit to determine benefits/contributions - $270,000 Limits proposed by Tax Reform Act of 2014 Freezes DC limits until 2024 $63.4 billion revenue gain over 10 years Additional $144 billion from treating half of 401(k) deferrals as Roth

General Limits on Exclusions and Deductions Proposal limiting tax deductions for plan contributions – could have legs 11.6% tax on employer & employee plan contributions For high earners only Basis adjustment for extra tax

State Proposals State-managed plans for private-sector workers Intended to expand access to retirement savings States would manage investments DOL clarifies preemption issue in regulation California Secure Choice Mandatory auto-IRA Pooled investments managed by state and guaranteed returns

The DCIO Leadership Summit The Legal and Political Arena for 2017 Regulation, Legislation and Litigation Concerning the Retirement Plan Industry: The Legal and Political Arena for 2017 Marcia S. Wagner, Esq. . A0242436