UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

THE NATIONAL ASSOCIATION FOR 

FIXED ANNUITIES,

Plaintiff,

v.

THOMAS E. PEREZ, Secretary of the United 

States Department of Labor, et al.,

Defendants.

 Civil Action No. 16-1035 (RDM)

MEMORANDUM OPINION

Plaintiff the National Association for Fixed Annuities (“NAFA”) brings this action under 

the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Regulatory 

Flexibility Act (“RFA”), 5 U.S.C. § 604 et seq., challenging three final rules promulgated by the 

Department of Labor on April 8, 2016. Taken together, the three rules substantially modify the 

regulation of conflicts of interest in the market for retirement investment advice under the 

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the 

Internal Revenue Code (“Code”), 26 U.S.C. §§ 408, 4975. NAFA focuses its challenge on how 

the new rules will affect the market for the fixed annuities that its members sell.

Both ERISA and the Code define a “fiduciary” to include, among others, those who 

“render[] investment advice for a fee or other compensation, direct or indirect, with respect to 

any moneys or other property of such plan, or [who] ha[ve] any authority or responsibility to do 

so.” 29 U.S.C. § 1002(21)(A) (ERISA); 26 U.S.C. § 4975(e)(3) (Code). Qualifying as a 

“fiduciary,” in turn, triggers the “prohibited transaction” rules under both ERISA and the Code, 

which then prohibit conflicted transactions unless a statutory or regulatory exemption applies. 
2

See 29 U.S.C. § 1106 (ERISA); 26 U.S.C. § 4975(c) (Code). Significantly, under the prohibited 

transaction rules, fiduciary advisers to ERISA employee benefit plans and individual retirement 

accounts (“IRAs”) may not receive compensation—including commissions—that varies based 

on the fiduciary’s investment advice. See Best Interest Contract Exemption, 81 Fed. Reg. 

21,002, 21,075–76 (Apr. 8, 2016). Because insurance companies that sell fixed annuities

typically compensate their employees and agents through the payment of commissions, see Dkt. 

5-3 at 6 (Marion decl. ¶ 24), they would be unable to operate (at least as currently structured) if 

treated as fiduciaries and not granted an exemption from the prohibited transaction rules. 

Prior to the promulgation of the new rules, most NAFA members were able to avoid this 

difficulty because the governing regulations defined a “fiduciary,” in relevant part, as someone 

who renders investment advice “on a regular basis,” 29 C.F.R. § 2510.3-21 (2015) (ERISA 

regulation); 26 C.F.R. § 54.4975-9 (2015) (Code regulation), and fixed annuities are typically

acquired in a single transaction, see Definition of the Term “Fiduciary”; Conflict of Interest 

Rule—Retirement Investment Advice, 81 Fed. Reg. 20,946, 20,955 (Apr. 8, 2016). Moreover, in 

those cases in which advice regarding the sale of a fixed annuity might have otherwise fallen 

within the prohibited transaction rules, the relevant transactions were exempted under Prohibited 

Transaction Exemption 84-24 (“PTE 84-24”), subject to certain conditions. See 1984 

Amendment to PTE 84-24, 49 Fed. Reg. 13,208, 13,211 (Apr. 3, 1984). The three challenged 

rules, however, change this arrangement in significant respects. 

The first new rule—Definition of the Term “Fiduciary”; Conflict of Interest Rule—

Retirement Investment Advice, 81 Fed. Reg. 20,946 (Apr. 8, 2016) (“Final Fiduciary 

Definition”)—modifies the definition of “fiduciary” by, among other things, dropping the 

condition that the relevant investment advice be provided on a “regular basis.” The second new 
3

rule—Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24 

for Certain Transactions Involving Insurance Agents and Brokers, Pension Consultants, 

Insurance Companies, and Investment Company Principal Underwriters, 81 Fed. Reg. 21,147 

(Apr. 8, 2016) (“Final PTE 84-24”)—removes variable and fixed indexed annuities (but not 

fixed rate annuities) from PTE 84-24. And, recognizing the sweeping consequences of the first 

two rules, the third new rule—the Best Interest Contract (“BIC”) Exemption, 81 Fed. Reg. 

21,002 (Apr. 8, 2016) (“Final BIC Exemption”)—creates a new exemption for variable and fixed 

indexed annuities (among other products) that permits financial institutions and advisers to 

receive compensation—including commissions—based on their provision of investment advice. 

In order to qualify for the BIC Exemption, however, financial institutions and advisers 

must abide by certain conditions: First, advisers to employee benefit plans and IRAs must abide 

by the Department’s newly adopted “Impartial Conduct Standards,” and “[f]inancial 

[i]nstitutions must adopt policies and procedures designed to ensure that their individual 

[a]dvisers adhere to” these standards. Final BIC Exemption, 81 Fed. Reg. at 21,076. The 

Impartial Conduct Standards, in turn, require that financial institutions and advisers “provide 

investment advice that is, at the time of the recommendation, in the [b]est [i]nterest of the 

[r]etirement [i]nvestor.” Id. at 21,077. As explained in the rule, this means that qualifying

financial institutions and advisers are subject to the same duties of loyalty and prudence

applicable under title I of ERISA, even with respect to advice regarding IRAs and other plans 

that are not subject to title I (and thus not otherwise subject to the duties of prudence and 

loyalty). Id. In addition, financial institutions and advisers must ensure that they will not 

“receive, directly or indirectly, compensation for their services that is in excess of reasonable 

compensation within the meaning of” 29 U.S.C. § 1108(b)(2) (ERISA) and 26 U.S.C. 
4

§ 4975(d)(2) (Code). Id. (emphasis added). And, finally, the Impartial Conduct Standards 

require that financial institutions and advisers ensure that “[s]tatements by the [f]inancial 

[i]nstitutions and [their] [a]dvisers . . . about the recommended transaction, fees, and

compensation, [m]aterial [c]onflicts of [i]nterest, and any other matters relevant to a [r]etirement 

[i]nvestor’s investment decisions, will not be materially misleading at the time they are made.” 

Id. 

Second, financial institutions seeking to rely on the BIC Exemption must also 

affirmatively represent in writing that they and their advisers are fiduciaries under ERISA and 

the Code and must warrant, among other things, that they have written policies in place 

“designed to ensure that [their] [a]dvisers adhere to the Impartial Conduct Standards.” Id. 

Third, with respect to IRAs and other plans that are not subject to title I of ERISA, 

financial institutions seeking to rely on the BIC Exemption must go a step further and “agree that 

they and their [a]dvisers will adhere to the exemption’s standards in a written contract that is 

enforceable by the [r]etirement [i]nvestors.” Id. at 21,076. The contract, moreover, may not 

include a provision “disclaiming or otherwise limiting liability,” waiving the “right to bring or 

participate in a class action,” or agreeing “to arbitrate or mediate individual claims in venues that 

are distant or that otherwise unreasonably limit the ability of the [r]etirement [i]nvestors to assert 

the claims safeguarded by” the BIC Exemption. Id. at 21,078.

NAFA challenges the new rules on numerous grounds. It argues that the new definition

of “fiduciary”—and, in particular, the Department’s decision to drop the “on a regular basis” 

condition—fails at Chevron steps one and two. See Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837 (1984). It contends that the Department acted beyond its authority in 

extending ERISA fiduciary duties to IRAs and other plans that are not subject to title I of 
5

ERISA. It contends that the BIC Exemption impermissibly creates a private cause of action and 

that the condition contained in the BIC Exemption limiting compensation to a “reasonable” level 

is void for vagueness. It argues that Department’s decision to move fixed indexed annuities from 

PTE 84-24 to the BIC Exemption was arbitrary and capricious. And finally, it maintains that the 

Department’s regulatory flexibility analysis was inadequate. 

Based on these arguments, and its further contention that the new rules will have 

catastrophic consequences for the fixed indexed annuities industry, NAFA seeks both a 

preliminary injunction and summary judgment. The Department opposes both motions and has 

cross-moved for summary judgment. For the reasons explained below, the Court will deny 

NAFA’s motions for a preliminary injunction and summary judgment and will grant the 

Department’s cross-motion for summary judgment.

I. BACKGROUND

A. Annuities

Although the three rules that NAFA challenges apply to various segments of the market

for retirement investments, NAFA understandably focuses its challenge on how the rules affect 

its members. Those members include insurance companies, independent marketing 

organizations, and insurance agents involved in the sale of fixed annuities. Dkt. 5-2 at 2–3

(Anderson decl. ¶ 2). Annuities fall into three general categories: variable annuities, fixed 

indexed annuities, and fixed rate annuities. See Regulatory Impact Analysis 40, AR 356. 

A “variable annuity” is “[a]n annuity that makes payments in varying amounts depending 

on the success of the underlying investment strategy.” Annuity, BLACK’S LAW DICTIONARY

(10th ed. 2014). For purposes of the Securities Act of 1933, a variable annuity is both an 

insurance product and a security. See SEC v. Variable Annuity Life Ins. Co. of Am., 359 U.S. 65, 
6

69–71 (1959). Because the “underlying assets are held in separate accounts . . . with a variety of 

underlying investment options such as mutual funds,” the customer has the opportunity to benefit 

from “the realization of market returns.” Regulatory Impact Analysis 40, AR 356. But, future 

income payments are “not guaranteed,” and the customer “make[s] or lose[s] money depending 

on the performance of the chosen investment options and the contract value.” Id.

A “fixed rate annuity,” in contrast, offers “a guaranteed level of return that will always 

provide a guaranteed and predictable level of income.” Dkt. 5-2 at 3 (Anderson decl. ¶ 6). The 

annuity contract “may provide a guaranteed interest rate for the life of the annuity[,] or [it] may 

allow the insurance company to reset the interest rate periodically but no more than once every 

twelve months, protecting the annuity owner against loss due to investment or market risk.” Id. 

Finally, a “fixed indexed annuity” bears attributes of both a variable annuity and a fixed 

rate annuity. See Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 168 (D.C. Cir. 2010). Its 

rate of return is based on “an external market index, such as the S&P 500,” but it also comes 

“with a guaranty that the rate will never fall below zero.” Dkt. 5-2 at 4 (Anderson decl. ¶ 7). 

Although fixed indexed annuities do “not directly participate in any security investment,” id., “as 

[with] securities, there is a variability in the potential return that results in a [greater] risk to the 

purchaser” than posed by fixed rate annuities, Am. Equity Inv., 613 F.3d at 174. Fixed indexed 

annuities, accordingly, “give [the customer] more risk (but more potential return) than a fixed 

[rate] annuity but less risk (and less potential return) than a variable annuity.” Final BIC 

Exemption, 81 Fed. Reg. at 21,017 (internal citation and quotation marks omitted). 

NAFA represents entities involved in sales of both fixed rate annuities and fixed indexed 

annuities. As explained further below, the three challenged rules have significant implications 

for the sale of these products—and, in particular, for fixed indexed annuities—for three reasons. 
7

First, both fixed rate and fixed indexed annuities “are often purchased as a funding vehicle for

[IRAs].” Dkt. 5-3 at 4 (Marrion decl. ¶ 17). Purchases made in IRAs, in turn, receive significant 

tax benefits, see 26 U.S.C. § 408, and, more importantly, IRAs constitute “plans” for purposes of 

title II of ERISA. Second, “almost all annuities today are sold based on commission 

compensation.” Dkt. 5-3 at 6 (Marrion decl. ¶ 24). This is significant because payment or 

receipt of a commission may trigger the prohibited transaction rules. Third, the new regulations 

subject fixed indexed annuities—but not fixed rate annuities—to certain more stringent 

regulatory requirements. These additional requirements are discussed at length below.

B. Statutory and Regulatory Background

1. The Employment Retirement Income Security Act of 1974

When parties and courts refer to ERISA, more often than not, they mean title I of the Act. 

That is the portion of the law that regulates retirement plans established or maintained by 

employers, unions, or both. It contains detailed reporting and disclosure requirements, rules 

relating to vesting and funding, fiduciary responsibility requirements, various enforcement rules,

a private cause of action, and a broad preemption rule. 29 U.S.C. § 1021 et seq. Title II, in 

contrast, principally addresses the requirements that plans must fulfill in order to qualify for 

certain tax advantages, see 26 U.S.C. § 4975, and it receives relatively less attention in the case 

law and commentary.1 It does not include many of the detailed requirements found in title I of 

the Act. Like title I, however, title II does include a prohibited transaction rule and, for purpose 

of that provision, it contains a definition of “fiduciary” that parallels the definition found in title 

 

1

 Title III of ERISA addresses certain jurisdictional issues and the coordination of enforcement 

activities between the Department and the IRS. See Pub. L. No. 93-406 §§ 3001–3043, 88 Stat. 

995–1003. Title IV creates an insurance program for defined benefit pension plans, which is

administered by the Pension Benefit Guaranty Corporation. See 29 U.S.C. § 1301 et seq.; Davis 

v. Pension Ben. Guar. Corp., 734 F.3d 1161, 1164 (D.C. Cir. 2013).
8

I. See 26 U.S.C. § 4975(e)(3). In one important respect, moreover, title II sweeps more broadly 

than title I: In addition to covering plans established and maintained by employers, title II 

applies to IRAs and other plans not subject to title I. Compare 26 U.S.C. § 4975(e)(1)(C) with 

29 U.S.C. § 1003(a). 

Because this case turns, in part, on the overlap and interplay between titles I and II, the

Court will briefly describe the relevant provisions of both titles of the Act.

a. Title I of ERISA

Title I of ERISA applies to “any employee benefit plan if it is established or maintained” 

by an employer, by an employee organization, or by both.2 29 U.S.C. § 1003(a). One of the 

principal ways title I protects the assets of employee benefit plans is by imposing “fiduciary” 

obligations on individuals who perform certain functions on behalf of a plan. Of particular 

relevance here, a person is a “fiduciary” with respect to a plan if “he renders investment advice 

for a fee or other compensation, direct or indirect, with respect to any moneys or other property 

of such plan, or has any authority or responsibility to do so.” Id. § 1002(21)(A).

A fiduciary of an ERISA employee benefit plan must “discharge his duties with respect 

to [the] plan solely in the interest of the participants and beneficiaries . . . for the exclusive 

purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying 

reasonable expenses of administering the plan.” Id. § 1104(a)(1). And, a fiduciary must also act 

“with the care, skill, prudence, and diligence under the circumstances then prevailing that a 

 

2 An “employee benefit plan” means an employee welfare benefit plan, an employee pension 

benefit plan, or a plan which is both a welfare and a pension benefit plan. 29 U.S.C. § 1002(3). 

An employee welfare benefit plan, in turn, is a “plan, fund, or program” that provides medical 

care, unemployment and disability benefits, as well as certain other specified categories of 

benefit. Id. § 1002(1). An employee pension benefit plan, in contrast, provides retirement 

income to its participants. Id. § 1002(2).
9

prudent man acting in a like capacity and familiar with such matters would use in the conduct of 

an enterprise of like character and with like aims,” including by “diversifying the investments of 

the plan so as to minimize the risk of large losses.” Id. § 1104(a)(1)(B)–(C). These twin duties 

are referred to as the duties of loyalty and prudence. See DeFelice v. U.S. Airways, Inc., 497 

F.3d 410, 418–19 (4th Cir. 2007). A fiduciary who violates these duties is “personally liable” for 

any losses to the plan stemming from such a breach, and he may also be “subject to such other 

equitable or remedial relief as the court may deem appropriate.” 29 U.S.C. § 1109(a). Title I 

creates a private cause of action permitting plan participants and beneficiaries to enforce this 

right, to recover lost benefits, and to enforce the terms of the plan, and it also empowers the 

Secretary of Labor to bring suit “for appropriate relief” or “to collect any civil penalty” for 

violations of certain provisions of the Act. Id. § 1132(a). While creating these federal causes of 

action, title I also forecloses other remedies by preempting a broad range of state law claims “as 

they . . . relate to any employee benefit plan.” Id. § 1144(a) (emphasis added).

Title I also “supplements the fiduciary’s general duty of loyalty to the plan’s beneficiaries 

. . . by categorially barring certain transactions deemed ‘likely to injure the pension plan.’” 

Harris Trust Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 241–42 (2000) (citation 

omitted); see also Lockheed Corp. v. Spink, 517 U.S. 882, 888 (1996). Under this “prohibited 

transaction” rule, a fiduciary may not “deal with the assets of the plan in his own interest or for 

his own account,” may not “in his individual or in any other capacity act in any transaction 

involving the plan on behalf of a party (or represent a party) whose interests are adverse to the 

interests of the plan or the interests of its participants or beneficiaries,” and may not “receive any 

consideration for his own personal account from any party dealing with such plan in connection 

with a transaction involving the assets of the plan.” 29 U.S.C. § 1106(b). In addition, a fiduciary 
10

may not cause a plan to engage in certain transactions with a “party in interest”—a category 

which includes the fiduciary himself, the employer sponsoring the plan, and persons providing 

services to the plan. Id. § 1002(14); § 1106(a). The “prohibited transaction” rule, however, is 

subject to certain statutory exceptions, see id. § 1108(b), and, more importantly for present 

purposes, the statute authorizes the Secretary of Labor to grant additional exemptions—either 

“conditional[ly] or unconditional[ly]”—provided that the exemption is “administratively 

feasible,” “in the interests of the plan and of its participants and beneficiaries,” and “protective of 

the rights of participants and beneficiaries of such plan,” id. § 1108(a).

b. Title II of ERISA

Rather than directly regulate the administration of covered plans, title II of ERISA 

establishes rules for the tax treatment of employee pension plans, IRAs, and certain other plans 

not subject to title I. Title II is broader in scope than title I. Unlike title I, it applies to IRAs and 

other plans that are not established or maintained by the beneficiary’s employer or union. 26 

U.S.C. § 4975(e)(1). But title II lacks much of the detailed regulation found in title I. Most 

notably, it does not subject fiduciaries of IRAs and other non-title I plans to the fiduciary duties 

of loyalty and prudence. See generally id. § 4975. 

Title II does, however, contain the same definition of “fiduciary” found in title I. 

Compare 26 U.S.C. § 4975(e)(3) with 29 U.S.C. § 1002(21). Thus, as under title I, “any person 

who . . . renders investment advice for a fee or other compensation, direct or indirect, with

respect to any moneys or other property of [a covered] plan,” is a fiduciary. 26 U.S.C. 

§ 4975(e)(3)(B). And it contains a prohibited transaction rule that, in relevant respects, parallels 

that found in title I. Id. § 4975(c). Like the title I prohibited transaction rule, moreover, the title 

II version of the rule both recognizes certain statutory exceptions, see id. § 4975(d), and
11

authorizes the Secretary of Labor to grant exemptions—with or without conditions—if “the 

exemption is . . . administratively feasible, . . . in the interest of the plan and its participants and 

beneficiaries, and . . . protective of the rights of participants and beneficiaries of the plan,” id.

§ 4975(c)(2).3

Those who fail to comply with title II’s prohibited transaction rule are subject to an 

excise tax imposed “on each prohibited transaction.” Id. § 4975(a). Under that rule, “any 

disqualified person who participate[d] in the prohibited transaction”—“other than a fiduciary 

acting only as such”—is subject to the tax. Id. Initial violations are taxable at a rate “equal to 15 

percent of the amount involved with respect to the prohibited transaction for each year,” id., but, 

if “the transaction is not corrected within the taxable period,” the tax increases to a rate of “100 

percent of the amount involved,” id. § 4975(b). Title II does not, however, create a private cause 

of action and, correspondingly, does not preempt state law causes of action relating to IRAs and 

other plans not subject to title I.

2. The 1975 Definition of “Fiduciary” and PTE 84-24

The Secretary of Labor first issued regulations defining when a person “renders 

investment advice” so as to fall within ERISA’s definition of “fiduciary” in 1975. That 

regulation set out a five-part test, under which a person was deemed to “render investment 

advice” only if he: (1) “renders advice to the plan as to the value of securities or other property, 

or makes recommendation[s] as to the advisability of investing in, purchasing, or selling 

 

3 As originally enacted, ERISA provided the Secretary of the Treasury (in consultation with the 

Secretary of Labor) exemption authority with respect to title II. See 26 U.S.C. § 4975(c)(2); 29 

U.S.C. § 1203. In 1978, however, President Carter issued a reorganization plan, subsequently 

ratified by Congress in 1984, giving “statutory authority for fiduciary obligations” and 

responsibility for “overseeing fiduciary conduct” to the Secretary of Labor. See Message of the 

President, Apr. 10, 1978, 29 U.S.C. § 1001 note; see also 5 U.S.C. App’x 1, § 102. 
12

securities or other property,” and he does so (2) “on a regular basis” (3) “pursuant to a mutual 

agreement, arrangement, or understanding, written or otherwise, between such person and the 

plan or a fiduciary with respect to the plan,” (4) that the advice given “will serve as a primary 

basis for investment decisions with respect to plan assets,” and (5) that the advice will be 

“individualized . . . based on the particular needs of the plan.” 29 C.F.R. § 2510.3-21(c)(1) 

(2015).4

Prior to the present rulemaking, this rule governed application of the prohibited 

transaction rules found in both title I and title II of ERISA. With respect to title I, the prohibited 

transaction rule applies to a “fiduciary,” 29 U.S.C. § 1106, and a “fiduciary” is defined to include 

a person who “renders investment advice for a fee,” 29 U.S.C. § 1002(21)(A). Because the 

governing regulation provided that a person “renders investment advice” only if the advice is 

provided “on a regular basis,” 29 C.F.R. § 2510.3-21(c)(1) (2015), occasional or intermittent 

advice was not sufficient to trigger application of the prohibited transaction rule. The same 

conclusion followed, although from a slightly different path, for purposes of title II. There, the 

prohibited transaction rule applies to “disqualified person[s],” 26 U.S.C. § 4975(c), which are

then defined to include “fiduciar[ies],” id. at § 4975(e)(2), which are defined to include those 

who “render[] investment advice for a fee,” id. at § 4975(e)(3). And because a person was 

deemed to “render[] ‘investment advice’” only if the advice was provided “on a regular basis,” 

26 C.F.R. § 54.4975-9(c)(1)(ii), occasional and intermittent advice was, once again, excluded.

 

4

 The 1975 regulation predated the 1978 reorganization plan giving all rulemaking authority 

over fiduciary status under ERISA to the Secretary of Labor. The Secretary of the Treasury 

issued a materially identical regulation interpreting title II’s definition of fiduciary. See Pension 

Excise Taxes, 40 Fed. Reg. 50,840 (Oct. 31, 1975). 
13

PTE 84-24 provides the other significant regulatory backdrop to the Department’s most 

recent actions. Originally adopted in 1977 (as PTE 77-9) and “amended several times over the 

years,” PTE 84-24 created a limited exemption to the prohibited transaction rules in order to 

permit “certain parties to receive commissions when plans and IRAs purchased recommended 

insurance and annuity contracts and investment company securities,” such as “mutual fund 

shares.” Final PTE 84-24, 81 Fed. Reg. at 21,148. The exemption applied to, among other 

things, “[t]he receipt, directly or indirectly, by an insurance agent or broker or a pension 

consultant of a sales commission from an insurance company in connection with the purchase, 

with plan assets[,] of an insurance or annuity contract.” 1984 Amendment to PTE 84-24, 49 Fed. 

Reg. at 13,211. The exemption, however, came with a number of conditions, including a 

requirement that the transaction be “on terms at least as favorable to the plan as an arm’s-length 

transaction with an unrelated party” and that “[t]he combined total of all fees, commissions and 

other consideration received by the insurance agent or broker, pension consultant, insurance 

company, or investment company principal underwriter . . . not [be] in excess of ‘reasonable 

compensation’ within the contemplation of” 29 U.S.C. §§ 1108(b)(2) & (c)(2) (ERISA), and 26 

U.S.C. §§ 4975(d)(2) & (d)(10) (Code). Id. PTE 84-24 did not distinguish between variable and 

fixed annuities.

Accordingly, prior to the present rulemaking, it was permissible for insurance companies 

to compensate their employees and agents on a commission basis for sales of variable and fixed 

annuity products held in ERISA employee benefit plans and IRAs, as long as either (1) the

relevant investment advice was not provided “on a regular basis,” or (2) the terms of the 

transaction were at least as favorable as those offered in arm’s-length transactions and the 

relevant fees and commissions were reasonable.
14

3. The Current Rulemaking

a. The 2010 Proposed Rule

The current rulemaking process began six years ago, when the Department first proposed 

to amend the 1975 regulation. See 2010 Proposed Fiduciary Definition, 75 Fed. Reg. 65,263 

(Oct. 22, 2010). At that time, the Department explained that it proposed to amend “a thirty-five 

year old rule that may inappropriately limit the types of investment advice relationships that give 

rise to fiduciary duties on the part of the investment advisor.” Id. at 65,263–64. In proposing the 

amendments, the Department raised both legal and policy concerns about the existing rule. As a 

legal matter, the Department asserted that the 1975 regulation had “significantly narrow[ed] the 

plain language of” the statutory definition of a “fiduciary.” Id. at 65,264. And, as a policy 

matter, it stressed that significant changes had occurred “in both the financial industry and the 

expectations of plan officials and participants who receive investment advice.” Id. In particular, 

according to the Department, “the retirement plan community ha[d] changed significantly, with a

shift from defined benefit . . . plans to defined contribution . . . plans,” while, at the same time, 

“the types and complexity of investment products and services available to plans [had] 

increased.” 5 Id. at 65,265. This concern was borne out, moreover, by “recent Department 

enforcement initiatives,” which, according to the Department, had brought to light “a variety of 

circumstances, outside those described in the [1975] regulation, under which plan fiduciaries 

 

5

In a “defined benefit” plan, the member is “generally entitled to a fixed periodic payment from 

an unsegregated pool of assets,” and “[t]he employer funding the plan typically bears the entire 

investment risk and must cover any underfunding.” Hughes Aircraft v. Johnson, 525 U.S. 432, 

433 (1999). In a “defined contribution” plan, in contrast, the member “is entitled to whatever 

assets are dedicated to his individual account,” id., and the member rather than the plan sponsor 

bears the investment risk. 
15

seek out impartial assistance and expertise of persons such as consultants, advisers and 

appraisers,” who have “a considerable impact on plan investments.” Id.

To address these concerns, the Department proposed to amend its definition of “rendering 

investment advice for a fee” to include a broader range of activities, while also listing certain 

activities that would not result in fiduciary status. Most significantly, the proposal would have 

dropped the “on a regular basis” limitation. Id. at 65,267. The proposed amendments would 

have applied to both title I and title II fiduciaries, and thus would have covered advisers to IRAs 

as well as to ERISA-covered plans. Id. at 65,266. The proposal did not, however, include any 

new prohibited transaction exemptions under either title. See id. at 65,263–64. 

In response to the 2010 proposal, the Department “received over 300 comment letters,” 

held a public hearing “at which 38 speakers testified,” and then received an additional 60 

comment letters. Final Fiduciary Definition, 81 Fed. Reg. at 20,957. “A number of commenters 

urged the Department to undertake additional analysis of the expected costs and benefits 

particularly with regard to the 2010 [p]roposal’s coverage of IRAs.” Id. In light of these 

concerns and “the significance of the rulemaking to the retirement plan service provider industry, 

plan sponsors and participants, beneficiaries and IRA owners, the Department decided to take 

more time for review and issue a new proposed regulation for comment.” Id. Accordingly, on 

September 19, 2011, the Department announced that it intended to withdraw the 2010 proposal 

and would propose a new rule defining “fiduciary” at a later date. Id.

b. The 2015 Proposed Rules

On April 20, 2015, the Department issued a new proposal, which substantially revised

both the 1975 regulation and the proposed prohibited transaction exemptions. As the 

Department explained, the 1975 regulation “significantly narrowed the breadth of the statutory 
16

definition of fiduciary investment advice by creating a five-part test,” which included the “on a 

regular basis” limitation. 2015 Proposed Fiduciary Definition, 80 Fed. Reg. 21,928, 21,928

(Apr. 20, 2015). That test, however, was created “prior to the existence of participant-directed 

401(k) plans, widespread investments in IRAs, and the now commonplace rollover of plan assets 

from fiduciary-protected plans to IRAs.” Id. As the Department further explained, in the current 

market for retirement advice, unlike in 1975, “[i]ndividuals, rather than large employers and 

professional money managers, have become increasingly responsible for managing retirement 

assets as IRAs and participant-directed plans, such as 401(k) plans, have supplanted defined 

benefit pensions.” Id. at 21,932. “At the same time,” moreover, “the variety and complexity of 

financial products have increased, widening the information gap between advisers and their 

clients,” adding to the risk that “small retail investors” will obtain “lower returns to their 

retirement savings” based on input they receive from advisers with conflicts of interest. Id. 

Finally, the Department stressed that, “[a]s baby boomers retire, they are increasingly moving 

money from ERISA-covered plans, where their employer has both the incentive and the fiduciary 

duty to facilitate sound investment choices, to IRAs where good and bad investment choices are 

myriad and advice that is conflicted is commonplace.” Id. According to the Department, 

“rollovers” of this type “will total more than $2 trillion over the next 5 years.” Id.

In light of these changes in the marketplace for retirement advice, the Department 

proposed that it discard the five-part test, including the “on a regular basis” requirement, in favor 

of a new standard. Among other concerns, the Department focused on the fact that, as 

employees reach retirement age, they will rollover trillions of dollars into IRAs, and those 

“rollovers” will involve “one-time” transactions that will not satisfy the “on a regular basis” 

prong of the five-part test. Id. at 21,951. The decision about how to invest these “rollovers,”
17

moreover, “will be the most important financial decision that many consumers make in their 

lifetime.” Id. Under the proposed test, a person would “render[] investment advice” by, among 

other things, providing investment recommendations to an employee benefit plan or an IRA 

owner while acting pursuant to an agreement or understanding that “the advice is individualized 

to, or specifically directed to, the recipient for consideration in making investment or 

management decisions regarding plan assets.” Id. at 21,929. 

At the same time, however, “[t]he Department . . . sought to preserve beneficial business 

models for delivery of investment advice by separately proposing new exemptions from the

prohibited transaction rules that would broadly permit firms to continue common fee and 

compensation practices, so long as they are willing to adhere to basic standards aimed at 

ensuring that their advice is in the best interest of their customers.” Id. at 21,929. Thus, in two 

additional proposals announced the same day as the new definition of “fiduciary,” the 

Department proposed amendments to PTE 84-24 and proposed a new exemption, the Best 

Interest Contract Exemption, for those who do not qualify for PTE 84-24.6

Prior to the 2015 proposal, PTE 84-24 provided a broad exemption for the receipt of sales 

commissions by insurance agents and brokers “in connection with the purchase, with plan 

assets[,] of an insurance or annuity contract.” 1984 Amendment to PTE 84-24, 49 Fed. Reg. at 

 

6 The 2015 proposal also included a number of specific carve-outs from its definition of 

fiduciary advice because the Department concluded that the proposal “standing alone . . . could 

sweep in some relationships that are not appropriately regarded as fiduciary in nature and that the 

Department does not believe Congress intended to cover as fiduciary relationships.” 2015 

Proposed Fiduciary Definition, 80 Fed. Reg. at 21,929. Specific carve-outs in the proposal 

related to, among other things, recommendations made to a “large plan investor with financial 

expertise”; offers or recommendations to enter into a swap or security-based swap regulated by 

the SEC; recommendations made by an employee of the plan sponsor, provided the employee 

received no fee for the advice other than her normal compensation; and information constituting 

“investment education” or “retirement education.” Id. at 21,936.
18

13,211. Under the proposed amendments, however, PTE 84-24 would no longer cover 

transactions involving annuities that are regulated as securities—that is, variable annuities. The 

exemption would remain available, though, for annuities that are not regulated as securities—that 

is, fixed rate and fixed indexed annuities. 2015 Proposed PTE 84-24, 80 Fed. Reg. 22,010, 

22,012 (Apr. 20, 2015). But, in making this proposal, the Department specifically requested 

comment on whether “the proposal to revoke relief for securities transactions involving IRAs 

(i.e., annuities that are securities and mutual funds) but leave in place relief for IRA transactions 

involving insurance and annuity contracts that are not securities strikes the appropriate balance 

and is protective of the interests of the IRAs.” Id. at 22,015.

The Department also proposed to make substantive changes to PTE 84-24. Most 

importantly, the proposal provided that, in order to qualify for the exemption, insurance and 

annuity agents must adhere to new “Impartial Conduct Standards.” Id. at 22,018. Under those 

standards, the insurance agent and insurance company would be required to act “in the best 

interest of the plan[] [or] IRA” and to ensure that statements about investment fees, material 

conflicts of interest, and other matters directly relevant to the investment decision are not

misleading. Id. The Department further proposed that an insurance agent or insurance company

would be deemed to “act[] in the ‘[b]est [i]nterest’ of the plan or IRA” when “the fiduciary acts 

with the care, skill, prudence, and diligence under the circumstances then prevailing that a 

prudent person would exercise based on the investment objectives, risk tolerance, financial 

circumstances and needs of the [p]lan or IRA, without regard to the financial or other interests of 

the fiduciary, any affiliate or other party.” Id. at 22,020. These conditions parallel the duties of 

prudence and loyalty found in title I of ERISA. See 29 U.S.C. § 1104(a)(1). Although this 

proposal was thus of little import to ERISA employee benefit plans, which were already subject 
19

to those duties, it constituted a substantial change for IRAs and other plans not subject to title I, 

which were not otherwise subject to the duties of prudence and loyalty. See generally 26 U.S.C. 

§ 4975.

The Department also proposed to create a new exemption for fiduciaries who do not 

qualify for PTE 84-24. This exemption—the Best Interest Contract Exemption or BIC 

Exemption—“was developed to promote the provision of investment advice that is in the best 

interest of retail investors such as plan participants and beneficiaries, IRA owners, and small 

plans.” 2015 Proposed BIC Exemption, 80 Fed. Reg. 21,960, 21,961 (Apr. 20, 2015). Although 

the prohibited transaction rules would otherwise preclude insurance companies and other 

financial institutions from compensating fiduciaries based on commissions or other financial 

incentives that could affect the substance of their investment advice, the Department proposed 

“[t]o facilitate continued provision of advice to such retail investors . . . under conditions 

designed to safeguard the interests of investors” by “allow[ing] certain advice fiduciaries . . . to 

receive these . . . forms of compensation that, in the absence of an exemption, would not be 

permitted under ERISA and the Code.” Id. Rather than adopt “highly prescriptive transactionspecific exemptions,” the Department proposed to take “a standards-based approach that [would] 

broadly permit firms to continue to rely on common fee practices, as long as they are willing to 

adhere to basic standards aimed at ensuring that their advice is in the best interest of their 

customers.” Id.

Under the BIC Exemption, the Department proposed that advisers and financial 

institutions would be permitted to receive compensation that varies based on their investment 

recommendations, as well as compensation from third parties in connection with their advice, if 

they satisfied certain conditions. Like the proposed amendments to PTE 84-24, the proposed 
20

BIC Exemption provided that qualified fiduciaries must abide by certain Impartial Conduct 

Standards. Id. at 21,962. But, unlike PTE 84-24, the proposed BIC Exemption added the 

requirement that “[a]dviser[s] and [f]inancial [i]nstitution[s] enter into a written contract with the 

[r]etirement [i]nvestor prior to recommending that the plan, participant or beneficiary account, or 

IRA, purchase, sell or hold an [a]sset.” Id. at 21,969. As proposed, the contract would include 

an affirmative representation that the adviser and financial institution “are fiduciaries under 

ERISA or the Code, or both”; a promise to comply with the Impartial Conduct Standards 

(including the duties of loyalty and prudence, the obligation not to sell products yielding the 

advisor or financial institution more than “reasonable compensation” for their services, and the 

ban on misleading statements); various warranties; and certain disclosures. Id. at 21,984–85. 

The proposed BIC Exemption also prohibited financial institutions from including several terms 

in the contracts, including exculpatory or liability-limiting provisions, class-action waivers, and

mandatory class-action arbitration provisions. Id. at 21,973.

In the Department’s view, this contract would “create[] a mechanism by which” investors 

“can be alerted to” the obligations of the advisers and financial institutions and provide “a basis 

upon which” the corresponding “rights c[ould] be enforced.” Id. at 21,969. Failure to comply 

with the Impartial Conduct Standards,” accordingly, could result in both an action to enforce the 

written contract and a “loss of the [tax] exemption.” Id. Finally, the Department emphasized 

that the conditions reflected in the proposed exemption—of which the written contract was the 

“cornerstone”—were “necessary for the Secretary to find that the exemption is administratively 

feasible, in the interest of plans . . . and IRA owners[,] and protective of the rights of the 

participants and beneficiaries of such plans and IRA owners,” id., as it was required to find in 

order to exercise its exemption authority under 29 U.S.C. § 1108(a) and 26 U.S.C. § 4975(c)(2).
21

As to all three proposed rules, the Department initially provided a seventy-five-day 

comment period, which it subsequently extended for an additional two weeks. 2015 Proposed 

Fiduciary Definition, 81 Fed. Reg. at 20,958. It also held a four-day public hearing in August 

2015, made the transcript available online, and then provided a further opportunity for public 

comment on the proposed regulation, the proposed exemptions, and the hearing. Id. The 

Department received over three thousand individual comment letters, and thirty petitions with 

over three hundred thousand signatories relating to the proposal. Regulatory Impact Analysis 7, 

AR 323.

c. The Final Rule

On April 8, 2016, the Department published the final rules. Final Fiduciary Definition, 

81 Fed. Reg. 20,946 (Apr. 8, 2016); Final BIC Exemption, 81 Fed. Reg. 21,002 (Apr. 8, 2016);

Final PTE 84-24, 81 Fed. Reg. 21,147 (Apr. 8, 2016). Although the final rules include certain 

modifications to the 2015 proposals, the Department remained convinced that developments in 

the retirement investment advice market since 1975 required substantial changes in the 

governing regulations, and, in particular, abandonment of the “on a regular basis” limitation on 

the definition of a “fiduciary.” As the Department once again emphasized, since 1975 

“individuals, rather than large employers and professional money managers, have become 

increasingly responsible for managing retirement assets as IRAs and participant-directed 

plans . . . have supplanted defined benefit pensions.” Final Fiduciary Definition, 81 Fed. Reg. at

20,954. In 1975, for example, “private-sector defined-benefit pensions—mostly large, 

professionally managed funds—covered over 27 million active participants and held assets 

totaling almost $186 billion,” as compared to “just 11 million active participants in individual 

account defined contribution plans with assets of just $74 billion,” most of which were 
22

professionally managed. Id. At that time, the 401(k) did not yet exist, and IRAs had been

authorized for the first time just the year before, when ERISA was enacted. Id. By 2013, 

however, the number of active participants in defined benefit plans had decreased by almost half, 

to just over 15 million, and the number of “individual account-based defined contribution plans” 

had grown by a factor of seven, to nearly 77 million active participants. Id. And, by 2015, 

“more than 40 million households owned IRAs.” Id. This shift away from large, institutional 

investors to “small retail investors,” moreover, was accompanied by an increase in the “variety 

and complexity of financial products,” and by the surge in retirements of baby boomers, whom

the Department projects will rollover almost $2.4 trillion “from ERISA-covered plans” to IRAs 

over the next five years. Id. at 20,954–55.

In that context, and after considering the comments it received in response to the 2015 

proposed rules, the Department reaffirmed its conclusion that the requirement that investment 

advice be given on a “regular basis” under the 1975 rule no longer fits the needs of the modern 

marketplace. Id. at 20,955. The Department stressed that advice on rollovers can have a 

profound effect on a retirement investor’s finances, yet this type of advice is rarely, if ever, 

provided on a “regular basis.” Id. More generally, it expressed concern that under the 1975 

regulations “advisers can steer customers”—and, in particular, small retail investors—“to 

investments based on their own self-interest (e.g., products that generate higher fees for the 

adviser even if there are identical lower-fee products available), give imprudent advice, and 

engage in transactions that would be otherwise prohibited by ERISA and the Code.” Id.

In addition to these policy concerns, the Department also suggested that the 1975 

regulation did not reflect the best construction of the statutory language in ERISA and the Code, 

id. at 20,948, and, in particular, that the five-part test “narrowed the scope of the statutory 
23

definition of fiduciary investment advice,” id. at 20,954. The Department, accordingly, replaced 

the five-part test with a new definition of investment advice. Under the new definition, “a person 

shall be deemed to be rendering investment advice for a fee or other compensation,” if:

(1) Such person provides to a plan, plan fiduciary, plan participant or 

beneficiary, IRA, or IRA owner the following types of advice for a fee or 

other compensation, direct or indirect:

(i) A recommendation as to the advisability of acquiring, holding, 

disposing of, or exchanging, securities or other investment property, 

or a recommendation as to how securities or other investment 

property should be invested after the securities or other investment 

property are rolled over, transferred, or distributed from the plan or 

IRA;

(ii) A recommendation as to the management of securities or other 

investment property, including, among other things, 

recommendations on investment policies or strategies, portfolio 

composition, . . . or recommendations with respect to rollovers, 

transfers, or distributions from a plan or IRA, including whether, in 

what amount, in what form, and to what destination such a rollover, 

transfer, or distribution should be made; and

(2) With respect to the investment advice described in paragraph (a)(1) of this 

section, the recommendation is made either directly or indirectly (e.g., 

through or together with any affiliate) by a person who:

(i) Represents or acknowledges that it is acting as a fiduciary within the 

meaning of the Act or the Code;

(ii) Renders the advice pursuant to a written or verbal agreement, 

arrangement, or understanding that the advice is based on the 

particular investment needs of the advice recipient; or

(iii) Directs the advice to a specific advice recipient or recipients

regarding the advisability of a particular investment or management 

decision with respect to securities or other investment property of 

the plan or IRA.
24

29 C.F.R. § 2510.3-21(a) (emphases added). The final rule then defines a “recommendation” as 

“a communication that, based on its content, context, and presentation, would reasonably be 

viewed as a suggestion that the advice recipient engage in or refrain from taking a particular 

course of action.” Id. § 2510.3-21(b)(1). Thus, under the new definition, a person who 

recommends or suggests that an individual purchase an annuity to hold in an IRA would, at least 

in most cases, be engaged in “rendering investment advice.”7 And, if that individual was paid on 

a commission basis, she would likely be engaged in rendering the type of investment advice “for 

a fee” that would trigger the prohibited transaction rules. See Final BIC Exemption, 81 Fed. Reg. 

at 21,002.

The Department also promulgated the final version of the revised PTE 84-24. The most 

important change from the version of the exemption proposed in 2015, at least for purposes of 

this case, was that the final exemption applies only to “fixed rate annuity contracts,” a term 

defined in the exemption to encompass annuities whose “benefits do not vary, in part on in 

whole, based on the investment experience of a separate account or accounts maintained by the 

insurer or the investment experience of an index or investment model.” Final PTE 84-24, 81 

Fed. Reg. at 21,176–77. The term specifically excludes “variable annuit[ies],” “indexed 

annuit[ies],” and other “similar annuit[ies].” Id. at 21,177. 

The Department justified its decision to reserve PTE 84-24 for fixed rate annuity 

contracts, and to exclude variable and fixed indexed annuities, on the ground that fixed rate 

 

7 As NAFA stresses, the Department again noted that its new definition “could sweep in some 

relationships that are not properly regarded as fiduciary in nature and that the Department does 

not believe Congress intended to cover as fiduciary relationships.” Final Fiduciary Definition,

81 Fed. Reg. at 20,948. The final rule thus included carve-outs for transactions with certain plan 

fiduciaries who are licensed financial professionals, swap transactions, and certain advice 

provided by plan-sponsor employees. Id. 
25

annuity contracts “provide payments that are . . . predictable” and have “lifetime income 

guarantees and terms that are more understandable to consumers.” Id. at 21,152. Other kinds of 

annuities, including fixed indexed annuities, are substantially more complicated, and “are 

susceptible to abuse.” Final BIC Exemption, 81 Fed. Reg. at 21,018. Investors in fixed indexed

and variable annuities, the Department found, “would equally benefit . . . from the protections of 

[the BIC Exemption], including the conditions that clearly establish the enforceable standards of 

fiduciary conduct and fair dealing.” Id.

Finally, the Department also promulgated a final, and slightly modified, version of the 

Best Interest Contract Exemption. Most significantly, although the 2015 proposed BIC 

Exemption required that both title I and title II advisers and financial institutions enter into 

written contracts with their customers, the final rule distinguished between plans subject to title I 

and IRAs and other plans not subject to title I. As a number of commenters explained, a written 

contract would have served little purpose with respect to title I plans and fiduciaries because title 

I already provides a private cause of action for those who violate, among other provisions, the 

prohibited transaction rule. Id. at 21,021–22. Given the sweeping preemption provisions 

contained in title I, moreover, it was far from clear that retirement investors would be able to 

pursue state law claims for breach of contract relating to advice provided to title I plans. Id. at 

21,022. The Department agreed that, with respect to title I plans, it was sufficient to require that 

advisers and financial institutions acknowledge their fiduciary status and comply with the BIC 

Exemption requirements as a condition of the exemption. Id. The final rule, therefore,

“eliminates the contract requirement altogether in the ERISA context,” id. at 21,008, and 

requires that title I plans merely adhere to the substantive conditions specified in the exemption,

id. at 21,021.
26

Thus, to qualify for the exemption, the financial institution must:

[1] Acknowledge fiduciary status with respect to investment advice to the 

Retirement Investor

[2] Adhere to Impartial Conduct Standards requiring [financial institutions and 

their advisors] to:

[a] Give advice that is in the Retirement Investor’s Best Interest (i.e.,

prudent advice that is based on the investment objectives, risk 

tolerance, financial circumstances, and needs of the Retirement 

Investor, without regard to financial or other interests of the Adviser, 

Financial Institution, or their Affiliates, Related Entities or other 

parties);

[b] Charge no more than reasonable compensation; and

[c] Make no misleading statements about investment transactions, 

compensation, and conflicts of interest;

[3] Implement policies and procedures reasonably and prudently designed to 

prevent violations [by its advisers] of the Impartial Conduct Standards;

[4] Refrain from giving or using incentives for Advisers to act contrary to the 

customer’s best interest; and

[5] Fairly disclose the fees, compensation, and Material Conflicts of Interest, 

associated with their recommendations.

Id. at 21,007. For investment advice to IRAs and other non-title I plans, the exemption further

requires that the financial institution enter into “an enforceable written contract” with the 

customer that includes the first four requirements listed above. Id. at 21,022. That contract, 

moreover, may not include “[e]xculpatory provisions disclaiming or limiting liability,” 

provisions waiving or qualifying the right to bring or to participate in class action or other 

representative lawsuits, or liquidated damages provisions. Id. at 21,078. It may, however,

include a knowing waiver of punitive damages, waiver of the right to rescission of recommended 

transactions, and reasonable agreements to arbitrate individual claims. Id. Those waivers are 

allowed “to the extent . . . permissible under applicable state or federal law.” Id.
27

In summary, the final rules together permit otherwise prohibited compensation

arrangements—such as commissions to an agent based on the retirement investor’s investment 

decisions—provided that the financial institution acknowledges its fiduciary status under ERISA 

and/or the Code; adheres to the Impartial Conduct Standards and ensures that its advisers do so

as well; adopts policies and procedures to avoid material conflicts of interest and barring the use 

of sales quotas and incentives that are intended to or likely to cause advisers to make 

recommendations that are not in the best interest of the retirement investors; and makes certain 

disclosures. The final rule also requires that financial institutions that engage in otherwiseprohibited transactions with non-title I plans enter into a written contract with plan owners. And, 

the final rule includes a more in-depth discussion of the “reasonable compensation” requirement 

than was contained in the proposed rule. Id. at 21,029. Overall, the BIC Exemption is premised 

on the Department’s view that, “[w]hen [a]dvisers choose to give advice to retail [r]etirement 

[i]nvestors pursuant to a conflicted compensation structure, they must protect their customers 

from the dangers posed by conflicts of interest.” Id. at 21,007.

C. Procedural Background

Although all three final rules were promulgated on April 8, 2016, the Department 

provided a window for financial institutions and advisers to come into compliance. Three dates 

are relevant. First, the rules became “effective”—i.e., locked in—on June 7, 2016.8 Final 

 

8

 The regulation’s “effective date” may have been delayed until June 22, 2016, pursuant to 5 

U.S.C. § 801(a)(3)(B). That section provides that, if Congress passes a joint resolution 

disapproving of an agency’s “major rule,” and if the President vetoes that resolution, the rule’s 

“effective date” becomes the earliest of (1) the date on which either chamber of Congress failed

to override the veto, or (2) thirty session days after Congress received the President’s veto and 

objections. But see INS v. Chadha, 462 U.S. 919, 955–58 (1983). Here, Congress did pass such 

a joint resolution, see H.J. Res. 88, 144th Cong. (2016), which the President then vetoed. The 

House received the President’s veto on June 8, 2016, see 162 Cong. Rec. H3537–38 (daily ed. 

June 8, 2016), and failed to override it on June 22, 2016, see 162 Cong. Rec. H4125–26 (daily 
28

Fiduciary Definition, 81 Fed. Reg. at 20,992–93. The Department hoped that this early effective 

date would “provide certainty” to market participants by assuring them that “the rule[s] [are] 

final and not subject to further amendment or modification without additional public notice and 

comment.” Id. at 20,993. But, to allow sufficient time for the regulated entities to make 

necessary changes, the Department provided that the final rules would not become applicable 

until April 10, 2017. Id. In addition, the Department further delayed the full applicability of 

PTE 84-24 and the BIC Exemption until January 1, 2018. See Final BIC Exemption, 81 Fed. 

Reg. at 21,009; see also Regulatory Impact Analysis 292, AR 608. Between April 10, 2017 and 

January 1, 2018, financial institutions and advisors can obtain relief from the prohibited 

transaction provisions of ERISA and the Code by complying with a set of “transitional” 

conditions, which are somewhat less onerous than the PTE 84-24 and BIC Exemption. Final 

BIC Exemption, 81 Fed. Reg. at 21,069–71, 21,084–85; AR 608. Thus, the regulations NAFA 

challenges do not come into full effect until January 1, 2018.

NAFA filed this action on June 2, 2016, and, at the same time, filed a motion for a 

preliminary injunction. Dkts. 1 & 5. After an early status conference, the Court ordered that 

NAFA’s motion be treated as a motion for a preliminary injunction and for summary judgment,

and the Court set a briefing schedule for those motions and the Department’s cross-motion for 

summary judgment. On August 25, 2016, the Court held oral argument. Since then, the parties 

have filed various supplemental authorities. Dkts. 42–44. All told, the parties have filed briefs 

 

ed. June 22, 2016). As NAFA agrees, however, this process did not affect the dates on which the 

rules are set to become applicable, which remain April 10, 2017, and January 1, 2018. Dkt. 31 at 

28.
29

in excess of 300 pages, see Dkts. 30–32 & 34, along with various exhibits and declarations, and 

excerpts from the administrative record in excess of 2,100 pages, see Dkt. 33.9 

Because the Court concludes that the case can be resolved on the parties’ competing 

motions for summary judgment, as explained below, the Court need not address NAFA’s 

separate motion for a preliminary injunction.

II. ANALYSIS

NAFA challenges the new rules on multiple grounds. First, it challenges the 

Department’s decision to replace the five-part test set forth in the 1975 regulation with a new 

definition of “fiduciary,” and, in particular, the Department’s decision to discard the “on a 

regular basis” limitation. Second, it challenges the Department’s decision to require that 

financial institutions and advisers who are providing advice regarding investments held in IRAs 

and other non-title I plans comply with the duties of loyalty and prudence in order to qualify for 

the BIC Exemption and PTE 84-24. Third, it challenges the written contract requirement 

contained in the BIC Exemption on the theory that it impermissibly creates a private cause of 

action. Fourth, it challenges the BIC Exemption (but not PTE 84-24) on the ground that the 

“reasonable compensation” condition is void for vagueness. Fifth, it challenges the 

Department’s decision to move fixed indexed annuities from PTE 84-24 to the BIC Exemption

as arbitrary and capricious. Sixth, and finally, it challenges the rules on the ground that the 

Department’s regulatory impact analysis was inadequate. 

The Court will address each challenge in turn.

 

9

 The Court also granted leave for three amici to file briefs. See Dkts. 36, 38, & 39. All three 

briefs were filed in support of the Department.
30

A. Revised Definition of “Rendering Investment Advice”

NAFA first argues that the Department’s interpretation of the phrase “renders investment 

advice” exceeds its authority under the statute. This argument implicates the familiar two-step 

framework established in Chevron, USA, Inc., v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984). Under the first step, the Court must determine whether “the intent of Congress 

is clear,” and, if “Congress has spoken to the precise question at issue,” the Court must give 

effect to Congress’s clear intent. Id. at 842–43. Under the second step, the Court must defer to 

the agency’s interpretation of ambiguous statutory language if it is “based on a permissible 

construction of the statute.” Id. at 843. NAFA argues that the regulation fails at both steps.

1. Chevron Step One

At the first step, the Court must employ the “traditional tools of statutory construction” to 

determine whether Congress has “unambiguously foreclosed the agency’s statutory 

interpretation.” Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659 (D.C. Cir. 2011)

(citation omitted). Congress can foreclose an agency’s interpretation “either by prescribing a 

precise course of conduct other than the one chosen by the agency, or by granting the agency a 

range of interpretive discretion that the agency has clearly exceeded.” Id. Because step one of

the Chevron framework turns on congressional intent, the Court does not afford the agency any 

“special deference” at this stage. Id. at 660.

The Chevron step one inquiry necessarily begins with the statutory text. See S. Cal. 

Edison Co. v. FERC, 195 F.3d 17, 22–23 (D.C. Cir. 1999). Here, both title I of ERISA and the 

Code define the pivotal term “fiduciary” in nearly identical terms: A person is a “fiduciary” of a 

plan for purposes of ERISA and the prohibited transaction provision of the Code if “(i) he

exercises any discretionary authority or discretionary control respecting management of [the] 
31

plan or exercises any authority or control respecting management or disposition of its assets, (ii) 

he renders investment advice for a fee or other compensation, direct or indirect, with respect to 

any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) 

he has any discretionary authority or discretionary responsibility in the administration of [the] 

plan.” 29 U.S.C. § 1002(21)(A) (emphasis added); 26 U.S.C. § 4975(e)(3) (emphasis added). 

For present purposes, only the first half of the second prong of the statutory definition is in 

dispute; the dispute is limited to whether the Department’s definition of the phrase “renders 

investment advice” with respect to moneys or other property of a plan or IRA passes muster.

As NAFA stresses, for over thirty years the Department used its five-part test to 

determine whether a person “renders investment advice” to a plan or IRA, and, critically, that 

test limited the reach of ERISA and the Code’s prohibited transaction rules to those who render 

advice “on a regular basis.” 29 C.F.R. § 2510.3-21(c)(1) (2015). The rule that NAFA now 

challenges, in contrast, abandons the five-part test and the “on a regular basis” limitation in favor 

of a definition that encompasses, among other activity, “[a] recommendation as to the 

advisability of acquiring . . . investment property” that is rendered “pursuant to [an] . . . 

understanding that the advice is based on the particular investment needs of the advice 

recipient.” 29 C.F.R. § 2510.3-21(a) (2016). A “recommendation,” in turn, includes a 

“communication that . . . would reasonably be viewed as a suggestion that the advice recipient 

engage in or refrain from taking a particular course of action.” Id. § 2510.3-21(b)(1).

Nothing in the statutory text forecloses the Department’s current interpretation. The 

statute does not define the phrase “investment advice,” and ERISA expressly authorizes the 

Secretary to adopt regulations defining “technical and trade terms used” in the statute. 29 U.S.C. 

§ 1135. As a matter of ordinary usage, moreover, there can be no serious dispute that someone 
32

who provides “[a] recommendation as to the advisability of acquiring, holding, disposing of, or 

exchanging, securities or other investment property,” 29 C.F.R. 2510.3-21(a), is providing 

“investment advice.” The dictionary defines “advice” as a “recommendation regarding a 

decision or course of conduct.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 32 (1993). 

And it defines “investment” as “an expenditure of money for income or profit or to purchase 

something of intrinsic value.” Id. 1190. The Department’s interpretation of “investment advice” 

all but replicates those definitions. Indeed, if anything, it is the five-part test—and not the 

current rule—that is difficult to reconcile with the statutory text. Nothing in the phrase “renders 

investment advice” suggests that the statute applies only to advice provided “on a regular basis.” 

NAFA objects that “Congress intended ERISA fiduciary duties to apply only to those 

who participate in ongoing management of a plan or its assets.” Dkt. 31 at 42. As it explains, 

although the phrase “‘rendering investment advice’ occupies its own prong in the statutory 

definition of fiduciary, in context it is clear that [fiduciary] refers to individuals vested with 

responsibilities to manage and control the plan.” Id. at 42–43. The fact that the other two prongs 

of the statutory definition of “fiduciary” describe those involved in managing a plan, see 29 

U.S.C. § 1002(21)(A)(i); 26 U.S.C. § 4975(e)(3)(A), or administering a plan, see 29 U.S.C. 

§ 1002(21)(A)(iii); 26 U.S.C. § 4975(e)(3)(C), however, suggests just the opposite conclusion: 

Because the other prongs of the statutory definition already address “the ongoing management of 

an ERISA plan,” Dkt. 31 at 42, NAFA’s reading of the “investment advice” prong would strip

that prong of independent meaning, see, e.g., United States v. Menasche, 348 U.S. 528, 538–39 

(1955) (“It is our duty to give effect, if possible, to every clause and word of a statute.” (citation 

and internal quotation marks omitted)). And, even if it were possible to assign some meaning to 

the second prong under NAFA’s construction, its argument still ignores the fact that Congress 
33

expressly addressed the “management” and “administration” of ERISA plans and IRAs in the 

first and third prongs of the definition, but conspicuously omitted any such reference in the 

second prong. NAFA asks that the Court not only read such a limitation into the second prong, 

but to hold that the statutory text unambiguously addresses this “precise question” and forecloses 

the Department’s interpretation. That argument is more than the statutory text can bear.

In its reply brief, NAFA disavows the argument that ongoing involvement in plan 

management is a necessary condition of fiduciary status under the statute. See Dkt. 32 at 24–25. 

Instead, it posits that only persons “who [are] hired to help plan managers with investment duties 

and not persons who just [sell] a product” can qualify as fiduciaries under the statute. Id. at 25.

But it again points to no textual support for that interpretation. As a matter of ordinary usage, a 

person can provide investment advice without being hired to help managers with investment 

duties, and the statute does not limit itself to those “employed to render investment advice.” 

More fundamentally, NAFA’s suggestion that its members are merely engaged in the sale of “a 

product”—no different than a grocer or brick-and-mortar retailer—ignores the fact that the 

challenged rule applies only if the financial institution or adviser makes “[a] recommendation as 

to the advisability of acquiring, holding, disposing of, or exchanging” the “investment property.” 

29 C.F.R. § 2510.3-21(a)(1). The Department has concluded, moreover, that fixed indexed 

annuities are “complex products” demanding “sound advice that is untainted by the conflicts of 

interest posed by [a]dvisers’ incentives to secure” sales. Final BIC Exemption, 81 Fed. Reg. at 

21,018. And NAFA’s own declarations leave little doubt that those engaged in the annuities 

business do not simply dispense products but, rather, provide individualized investment advice. 

See Dkt. 5-4 at 6 (Engels decl. ¶ 18) (“I know to diversify my clients’ assets and teach them 

about risks, fees, ‘safe’ versus ‘risky’ money, and probate and non-probate issues.”); Dkt. 5-5 at 
34

9 (James decl. ¶ 28) (“All of our clients rely on [us] . . . to help them navigate the financial 

market, answer all of their questions, and benefit from affiliates.”); Dkt. 5-7 at 3 (Rafferty decl. ¶ 

8) (“We meet individually with our clients, and, after discussing our client’s financial goals and 

needs, . . . we research the annuity market and recommend the best guaranteed fixed annuity plan 

available to meet each client’s objectives.”); Dkt. 5-8 at 4 (Foguth decl. ¶ 15) (“[We] meet with 

our existing clients on an ongoing basis to provide them with information they need, such as 

discussing the required minimum distributions that clients must withdraw from their IRAs each 

year.”).

Beyond the statutory text, NAFA argues that the Department’s new definition of 

“fiduciary” fails at Chevron step one for three additional reasons. But, as with NAFA’s textual 

argument, none of these arguments shows that Congress “unambiguously foreclosed the 

agency’s statutory interpretation.” Vill. of Barrington, Ill., 636 F.3d at 659 (citation omitted). 

First, NAFA contends that the Department’s new interpretation is inconsistent with the 

common law of fiduciary standards that Congress “built [up]on” in enacting ERISA. Dkt. 31 at 

43. Under those common law standards, NAFA continues, a “fiduciary” is “[s]omeone who is 

required to act for the benefit of another person on all matters within the scope of their 

relationship,” or “[s]omeone who must exercise a high standard of care in managing another’s 

money or property.” Id. at 44 (quoting Fiduciary, BLACK’S LAW DICTIONARY (10th ed. 2014)). 

It is not someone who “merely . . . sell[s] insurance products,” or who does not engage in the 

type of “ongoing transactional relationships” that plan managers and administrators typify. Id. at 

44–45.

NAFA is correct that the courts have, at times, looked to the common law of trusts in

interpreting ERISA. The Supreme Court has thus “recognize[d] that the[] fiduciary duties [found 
35

in ERISA] draw much of their content from the common law of trusts,” which “governed most 

benefit plans before ERISA’s enactment.” Varity Corp. v. Howe, 516 U.S. 489, 496 (1996). But 

the Court has “also recognize[d] . . . that trust law does not tell the entire story” and that 

“ERISA’s standards and procedural protections partly reflect a congressional determination that 

the common law of trust did not offer completely satisfactory protection.” Id. at 497. As a 

result, “trust law . . . offer[s] only a starting point, after which courts must go on to ask whether, 

or to what effect, the language of the statute, its structure, or its purposes require department 

from common-law trust requirements.” Id.

One area in which Congress departed from the common law of trusts was the definition 

of “fiduciary.” ERISA does not define “fiduciary” “in terms of formal trusteeship, but in 

functional terms of control and authority over the plan, . . . thus expanding the universe of 

persons subject to fiduciary duties . . . .” Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993) 

(second emphasis added). The relevant question is not how to understand an imprecise reference 

to a duty also recognized under the common law, but whether the detailed definition of 

“fiduciary” that Congress included in the statute should be given meaning. That is, should the 

phrase “renders investment advice” be construed to include those who make recommendations to 

plans and IRAs about how best to invest their assets? Or should the statutory text be narrowed, 

as NAFA urges, to add the condition that an investment adviser serves in a role akin to that of a 

plan manager or administrator? As the Supreme Court has held, in cases in which the text of 

ERISA goes beyond the common law, and where the purpose of the statute does not compel a 

different result, the text controls. See Varity Corp., 516 U.S. at 496–97.

Moreover, even if the meaning of the “renders investment advice” prong of the statutory 

definition of “fiduciary” was informed by the common law, NAFA has failed to demonstrate that 
36

the Department’s interpretation is at odds with the common law. NAFA cites two cases for the 

proposition that insurance agents who “merely . . . sell[] insurance products” are not fiduciaries 

under the common law. Dkt. 31 at 44–45. The first case, from an intermediate appellate court in 

Ohio, dealt with the sale of automobile and renters insurance. See Slovak v. Adams, 753 N.E.2d 

910, 912 (Ohio Ct. App. 2001). The second case, from an intermediate appellate court in 

Mississippi, dealt with the sale of commercial property insurance. See Langston v. Bigelow, 820 

So. 2d 752, 754 (Miss. Ct. App. 2002). The market for those products may not require the 

consumer to “repose[] special confidence and reliance” in the agent, to borrow a definition of 

“fiduciary” from NAFA’s brief. Dkt. 31 at 44 (quoting THE WOLTERS KLUWER BOUVIER LAW 

DICTIONARY). But, here, the Department found that “[i]n the retail IRA marketplace, growing 

consumer demand for personalized advice . . . has pushed brokers to offer comprehensive 

guidance services rather than just transactional support.” Final Fiduciary Definition, 81 Fed. 

Reg. at 20,949. NAFA’s own declarations, as noted above, support that characterization.

Second, NAFA argues that the Investment Advisers Act of 1940, ch. 686, 54 Stat. 847, 15 

U.S.C. § 80b et seq., informed Congress’s use of the phrase “renders investment advice for a fee 

or other compensation” in ERISA and the Code. See Dkt. 31 at 45–46. The Investment Advisers 

Act defines an “investment adviser” as “any person who, for compensation, engages in the 

business of advising others, either directly or through publications or writings, as to the value of 

securities or as to the advisability of investing in, purchasing, or selling securities.” 15 U.S.C. 

§ 80b-2(a)(11). The definition goes on to list a number of exclusions, including an exclusion for 

“any broker or dealer whose performance of such services is solely incidental to the conduct of 

his business as a broker or dealer and who receives no compensation therefor.” Id. From this, 

NAFA argues that the distinction in the Investment Advisers Act between “investment advisers 
37

compensated for rendering advisory services” and “salespersons compensated only for their 

sales” was “known to Congress in 1974 when it incorporated those very concepts into ERISA.” 

Dkt. 31 at 46.

The first question, of course, is not what Congress intended “when it incorporated those 

very concepts into ERISA,” but, rather, whether it did so. Again, NAFA has failed to 

demonstrate that Congress unambiguously foreclosed the Department’s interpretation of the 

phrase “renders investment advice.” 29 U.S.C. § 1002(21)(A). As the D.C. Circuit has 

explained, the distinction between advisers and brokers contained in the Investment Advisers Act 

was created when Congress “define[d] ‘investment adviser’ broadly” and then “create[d] . . . a 

precise exemption for broker-dealers.” Fin. Planning Ass’n v. SEC, 482 F.3d 481, 489 (D.C. Cir. 

2007). In defining a “fiduciary” in ERISA and the Code, however, Congress followed a very 

different path: In the second prong of the definition, Congress swept in any person who “renders 

investment advice for a fee or other compensation, direct or indirect, with respect to any moneys 

or other property of” the ERISA plan or IRA. 29 U.S.C. § 1002(21)(A); 26 U.S.C. 

§ 4975(e)(3)(B). Unlike the Investment Advisers Act, ERISA and the Code do not exempt those 

who provide investment advice that “is solely incidental to the conduct of [their] business.” 

Thus, to the extent Congress had the Investment Advisers Act in mind as a model when it 

enacted the statutory definition of “fiduciary,” it is telling that it did not include the exemption 

that NAFA would have the Court read into ERISA and the Code. As a result, if anything, the 

definition of “investment adviser” contained in the Investment Advisers Act counsels against

construing the definition of “fiduciary” to exclude those who recommend particular investments 

while seeking to make a sale.
38

Finally, NAFA argues that Congress implicitly ratified the five-part test for “render[ing] 

investment advice” when it reenacted the Code in 1986 and when it amended relevant portions of 

the Code and ERISA in 2006. Dkt. 31 at 47–51. In the Tax Reform Act of 1986, Pub. L. No.

99-514, 100 Stat. 2085, Congress reenacted the entire internal revenue code, including title II of 

ERISA, but did not alter the five-part test. And, similarly, when Congress enacted the Pension 

Protection Act of 2006, Pub. L. No. 109-280, 120 Stat. 780, it included provisions dealing with 

the excise tax on prohibited transactions in title II and added a new definition of “fiduciary 

adviser” for purposes of certain exemptions from the prohibited transaction rules in titles I and II. 

See 29 U.S.C. § 1108(g)(11)(A) (2006); 26 U.S.C. § 4975(f)(8)(J)(i)(2006). Yet, again, 

Congress did not alter the five-part test. Of these amendments, the one that is most relevant to 

the issues presented here created a new statutory exemption from the prohibited transaction rules 

for those who render investment advice for a fee, but only if any fees received by the adviser, 

including commissions, “do not vary depending on the basis of any investment option selected.” 

29 U.S.C. § 1108(g)(2)(A)(i) 

NAFA does not press a traditional ratification argument, which would merely posit that 

congressional acquiescence in an administrative interpretation provides some evidence that the 

administrative interpretation is a permissible one. See, e.g., Solid Waste Agency of N. Cook Cty. 

v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169–70 (2001). Instead, it takes the doctrine a 

significant step further, arguing that Congress’s failure to disavow the five-part test had the 

effect of enshrining that test in the statute, thereby precluding the Department from ever 

discarding or revising the test that it adopted in 1975. The Court is unpersuaded.

As an initial matter, it is far from clear that even the traditional ratification argument 

would prevail in this context. “Congress cannot by its silence ratify an administrative 
39

interpretation that is contrary to the plain meaning of the Act,” Ashton v. Pierce, 716 F.2d 56, 63 

(D.C. Cir. 1983), or otherwise alter the plain meaning of a statute, see U.S. Ass’n of Reptile 

Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 155 (D.D.C. 2015). And, as explained above, there 

is considerable tension between the five-part test—and, in particular, the “on a regular basis”

requirement—and the statutory text. But even if the 1975 construction of the statute was a 

permissible one, there is a vast difference between accepting an existing interpretation of a 

statute and treating that interpretation as the only permissible one. NAFA’s efforts to support the 

latter approach prove too much: If taken to its logical extreme, it would suggest that every pre1986 Treasury Department regulation interpreting the Internal Revenue Code was forever frozen 

in place when Congress reenacted the Code in 1986. That is not the law. The D.C. Circuit

observed almost two decades ago that it has “consistently required express congressional 

approval of an administrative interpretation if it is to be viewed as statutorily mandated,” AFLCIO v. Brock, 835 F.2d 912, 915 (D.C. Cir. 1987) (emphasis added), and, unsurprisingly, NAFA 

has failed to identify any more recent authority breaking with this “consistent” practice. As the 

Court of Appeals explained, the ratification doctrine “does not mean that a regulation 

interpreting a provision . . . becomes frozen . . . merely by reenactment of that provision, so that 

administrative interpretation cannot be changed prospectively through exercise of appropriate 

rulemaking powers.” Id. at 916 (quoting Helvering v. Wilshire Oil Co., 308 U.S. 90, 100–01 

(1939)). Here, there is no “affirmative indication” that Congress “wish[ed] the [prior] 

interpretation to remain in place,” id., or that it intended, in effect, to withdraw its delegation of 

authority to the Secretary to issue regulations defining the term “fiduciary” for purposes of 

ERISA and the prohibited transaction provision of the Code, 29 U.S.C. § 1135; 29 U.S.C. § 1001

note. Absent such evidence, NAFA’s ratification argument must fail.
40

2. Chevron Step Two

At Chevron step two, the Court “defer[s] to the agency’s permissible interpretation, but 

only if the agency has offered a reasoned explanation for why it chose that interpretation.” Vill.

of Barrington, 636 F.3d at 660. Analysis at this step is analogous to the “arbitrary or capricious” 

standard under the Administrative Procedure Act. See Judulang v. Holder, 132 S. Ct. 476, 483 

n.7 (2011).

The Department’s interpretation of “renders investment advice” is reasonable, and it is 

reasonably explained. As noted above, the new interpretation better comports with the text of 

the statute than the rule that NAFA embraces. And it also fits comfortably with the purpose of 

ERISA. ERISA was enacted with “broadly protective purposes,” and it “commodiously imposed 

fiduciary standards on persons whose actions affect the amount of benefits retirement plan 

participants will receive.” John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 

86, 96 (1993). Given changes in the retirement investment advice market since 1975, the 

Department reasonably concluded that limiting fiduciary status to those who render investment 

advice to a plan or IRA “on a regular basis” risked leaving retirement investors inadequately 

protected—particularly when one-time transactions like rollovers will involve trillions of dollars 

over the next five years and can be among the most significant financial decisions investors will 

ever make. See Final Fiduciary Definition, 81 Fed. Reg. at 20,954–55. 

NAFA points to two ways in which, it claims, the Department’s new definition is 

unreasonable at Chevron step two: 

First, NAFA argues that the Department has failed to provide a reasoned basis for 

discarding the five-part test because its analysis has focused on changes in the market for 

retirement investment advice and not on “deficiencies in the five-part test.” Dkt. 31 at 51. That 
41

assertion is only partially correct. It is true that the focus of the Department’s analysis was on 

changes in the marketplace—but it is incorrect that the Department failed to identify 

“deficiencies in the five part test.” The Department observed that the five-part test “significantly 

narrowed the breadth of the statutory definition” of a “fiduciary,” Final Fiduciary Definition, 81 

Fed. Reg. at 20,946, and that “[t]he narrowness of the 1975 regulation allows advisers . . . to play 

a central role in shaping plan and IRA investments, without ensuring the accountability that 

Congress intended for persons having such influence and responsibility,” id. at 20,955. 

Furthermore, the Department determined that the new test “better reflects the broad scope of the 

statutory text and its purposes.” Id. at 20,946; see also id. at 20,948 (noting that the new 

definition “better comports with the statutory language”). But, even putting these considerations

aside, NAFA’s contention that market changes alone are insufficient to justify a change in the 

definition of “fiduciary” is unconvincing. 

In support of this contention, NAFA relies on the D.C. Circuit’s decision in Goldstein v. 

SEC, 451 F.3d 873 (D.C. Cir. 2006). There, the Court of Appeals considered a modification to 

the SEC’s regulations defining a “client” for purposes of the Investment Advisers Act’s “private 

adviser exemption” from registration, 15 U.S.C. § 80b-3(b)(3) (2006). Goldstein, 451 F.3d at 

874. Pursuant to that provision, an investment adviser with fewer than fifteen “clients” was

exempt from the registration requirement. Id. Previously, the SEC had construed the exemption 

to treat a limited partnership as a single “client.” Id. Because hedge funds are typically 

organized as limited partnerships, with each investor serving as a limited partner, this 

interpretation had the effect of exempting most hedge fund managers from the registration 

requirement—regardless of the number of individual investors in a hedge fund, each hedge fund 

counted as only a single “client.” See id. at 876. Under the revised rule, however, the SEC 
42

required that each limited partner in a hedge fund be counted as a client, which had the effect of 

requiring that most hedge fund managers register under the Act. Id. at 877.

At Chevron step one, the Court of Appeals held that the revised rule came “close to 

violating the plain language of the statute” and that the SEC’s interpretation was, “[a]t best[,] . . . 

counterintuitive.” Id. at 881. At Chevron step two, however, the rule crossed the line. Much of 

the Court’s analysis turns on the lack of a reasonable “fit” between the statutory text and the 

purpose of the rule. Id. But, as NAFA stresses, the Court of Appeals also rejected the SEC’s 

contention that evidence of market changes, including “a rise in the amount of hedge fund assets, 

indications that more pension funds and other institutions were investing in hedge funds, and an 

increase in fraud actions involving hedge funds,” was sufficient to justify the amendment absent 

evidence that the relationship between the advisers and investors had also changed. Id. at 882. 

The SEC’s reliance on these changes in the marketplace, in the Court’s view, did not explain 

why the SEC believed that the each limited partner in a hedge fund should be treated as a 

separate client. That is, “without any evidence that the role of fund advisers with respect to 

investors had undergone a transformation, there [was] a disconnect between the factors the 

[SEC] cited and the rule it promulgated.” Id.

Here, in contrast, the Department’s interpretation of the phrase “renders investment 

advice” does not, as NAFA argues, “distort statutory meaning simply to achieve [a] regulatory 

end[].” Dkt. 31 at 53. It is not “counterintuitive.” And it is not disconnected from the factors 

the Department cites in support of the new definition. To the contrary, the Department explained 

at length how the relationship between advisers and investors has changed. It found that the

increased complexity and variety of financial products in the marketplace has sown “confusion,” 

“increase[d] the potential for very costly mistakes,” left retail investors more dependent on 
43

expert advice, and exposed plan participants and IRA owners to unknown conflicts of interest. 

See, e.g., Final Fiduciary Definition, 81 Fed. Reg. at 20,949. In particular:

Retail investors now confront myriad choices of how and where to invest, many of 

which did not exist or were uncommon in 1975. These include, for example, 

market-tracking, passively managed and so-called ‘‘target-date’’ mutual funds; 

exchange traded funds (ETFs) (which may be leveraged to multiply market 

exposure); hedge funds; private equity funds; real estate investment trusts (both 

traded and nontraded); various structured debt instruments; insurance products that

offer menus of direct or formulaic market exposures and guarantees from which 

consumers can choose; and an extensive array of derivatives and other alternative 

investments. These choices vary widely with respect to return potential, risk 

characteristics, liquidity, degree of diversification, contractual guarantees and/or 

restrictions, degree of transparency, regulatory oversight, and available consumer 

protections.

Id. In short, both the statutory fit and the Department’s detailed explanation for its 

decision readily distinguish this case from Goldstein.

Moreover, to the extent NAFA suggests that Goldstein—or any other precedent—

requires a heightened justification for agencies to depart from long-established

interpretations, that contention was rejected by the Supreme Court in FCC v. Fox 

Television Stations, Inc., 556 U.S. 502 (2009). As the Supreme Court explained, there is 

“no basis in the Administrative Procedure Act” or in Supreme Court precedent “for a 

requirement that all agency change be subjected to more searching review.” Id. at 514. 

Certainly, the APA “mentions no such heightened standard,” and the Supreme Court’s 

decision in Motor Vehicle Manufacturers Ass’n of U.S., Inc. v. State Farm Mutual 

Automobile Insurance Co., 463 U.S. 29 (1983), “neither held nor implied that every 

agency action representing a policy change must be justified by reasons more substantial 

than those required to adopt a policy in the first instance.” Fox, 556 U.S. at 514. All that 

the APA requires is that the Department’s current interpretation comport with the text 
44

and purpose of ERISA and the Code and that it has offered a reasoned explanation for its 

decision. As explained above, this standard is satisfied on the facts of this case.

Second, NAFA argues that the Department’s acknowledgement that its broad definition 

of “rendering investment advice” may have swept in some “relationships that are not 

appropriately regarded as fiduciary in nature and that the Department does not believe Congress 

intended to cover as fiduciary relationships,” Final Fiduciary Definition, 81 Fed. Reg. at 20,948,

puts it on the wrong side of the D.C. Circuit’s decision in Hearth, Patio & Barbecue Ass’n v. 

Department of Energy, 706 F.3d 499 (D.C. Cir. 2013). In that case, the Department of Energy 

issued a regulation interpreting the statutory phrase “[d]irect heating equipment” to include 

“purely decorative fireplaces” designed to emit as little heat as possible. Id. at 503. Not 

surprisingly, the Court of Appeals held that the definition failed at Chevron step one. Id. at 507. 

The Department of Energy and dissent, however, argued that the Department did not actually 

treat decorative fireplaces as direct heating equipment because, after including them in the 

regulatory definition, it exempted them from the relevant energy conservation standards. Id. at 

507; see also id. at 510–12 (Randolph, J., dissenting). The majority “strongly disagree[d].” Id.

at 507 (majority opinion). It its view, there was a fundamental difference between treating a 

product as beyond an agency’s authority to regulate and treating it as within that authority, but 

exempted from the relevant regulation. Id. at 508. Under the latter approach, the specter of 

regulation remains, despite the reprieve of an exemption, and the agency can “at any time 

manipulate the safe harbor criterion to compel different or broader compliance.” Id.

According to NAFA, this is what the Department has done here. Dkt. 31 at 55. The 

Court is, again, unpersuaded. NAFA is correct that the commentary accompanying the final rule 

acknowledged that the rule’s “broad” definition of “investment advice” “could sweep in some 
45

relationships that are not appropriately regarded as fiduciary in nature and that the Department 

does not believe Congress intended to cover as fiduciary relationships.” Id. at 40–41 (quoting 

Final Fiduciary Definition, 81 Fed. Reg. at 20,948). NAFA’s argument, however, loses its force 

with the very next sentence of the commentary, which explains that this potential overbreadth 

relates solely to activities unrelated to the sale of annuities. Final Fiduciary Definition, 81 Fed. 

Reg. at 20,948. NAFA does not dispute this, and, indeed, it candidly acknowledges that the 

Department’s reference to overbreadth “is directed at activities and relationships other than fixed 

annuities and insurance agents.” Dkt. 31 at 41 n.9. Thus, even if NAFA were correct that an 

agency may not define a term and provide exceptions or carve-outs to better tailor its definition 

to congressional intent, but see Decker v. Nw. Envt’l Def. Ctr., 133 S. Ct. 1326, 1338 (2013) 

(upholding agency construction of “Industrial Stormwater Rule” that “exempts discharges of 

channeled stormwater runoff from logging roads from [an agency] permitting scheme”), it has no 

standing to complain about whatever overbreadth that might affect the interests of others. Here, 

unlike in Hearth, Patio, NAFA cannot complain that it or any of its members live under a sword 

of Damocles because the Department might someday revoke or modify the scope of the relevant

exemption; unlike in Hearth, Patio, the asserted overbreadth and corresponding exemption have

no bearing on the plaintiff or its members. 

B. Imposition of Fiduciary Duties as a Condition of PTE 84-24 and the BIC Exemption

NAFA also challenges the Department’s decision to require that fiduciaries who advise 

IRAs agree to be bound by the duties of loyalty and prudence as a condition of PTE 84-24 and 

the BIC Exemption. This argument focuses on the Department’s authority to impose such duties 

as a condition of its exemption power, rather than on its particular choice of enforcement scheme 

for those duties, which NAFA challenges in a separate argument. Title I of ERISA subjects 
46

fiduciaries to the duties of “loyalty” and “prudence.” See Ctr. States, Se. & Sw. Areas Pension 

Fund v. Ctr. Transp., Inc., 472 U.S. 559, 570 (1985). Under the former duty, the trustee must act 

“solely in the interest of the participants and beneficiaries” of the plan, while under the latter, the 

trustee must act “with the care, skill, prudence, and diligence under the circumstances then 

prevailing that a prudent man acting in a like capacity and familiar with such matter would use in 

the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a). These 

provisions, however, apply only to title I employee benefit plans. Id. § 1003(a). They do not 

apply to IRAs or other non-title I plans. See generally 26 U.S.C. § 4975.

The prohibited transaction rules, in contrast, apply with only minor variations both to 

employee benefit plans (under title I) and to IRAs (under title II). Compare 26 U.S.C. § 4975(c) 

with 29 U.S.C. § 1106. Those rules “supplement[] the fiduciary’s general duty of loyalty to the 

plan’s beneficiaries . . . by . . . barring certain transactions deemed ‘likely to injure the pension 

plan.’” Harris Tr. & Sav. Bank, 530 U.S. at 241–42. But the statute also authorizes the 

Department to “grant a conditional or unconditional exemption of any disqualified person or 

transaction” if it concludes that the exemption is “administratively feasible,” “in the interest of

the plan and its participants and beneficiaries,” and “protective of the rights of [plan] participants 

and beneficiaries.” 29 U.S.C. § 1108(a); 26 U.S.C. § 4975(c)(2). Here, as explained above, the 

Department granted exemptions for otherwise prohibited transactions in PTE 84-24 and the BIC 

Exemption, but conditioned those exemptions on, among other things, a requirement that the 

fiduciary “act with the care, skill, prudence, and diligence [of] a prudent person acting in a like 

capacity,” and “without regard to the financial or other interests of the [a]dviser . . . or any . . . 

other party,” see Final BIC Exemption, 81 Fed. Reg. at 21,077; Final PTE 84-24, 81 Fed. Reg. at 

21,176. That is, in order to take advantage of the BIC Exemption, the fiduciary must satisfy the 
47

same duties of “prudence” and “loyalty” that title I imposes. For those rendering advice to title I 

plans, this makes little difference because they are already subject to those duties. For those 

advising IRAs and other non-title I plans, however, this condition adds substantial new duties. 

NAFA argues that the Department exceeded its statutory authority by extending fiduciary duties

found only in title I to those who advise IRAs and other non-title I plans. Dkt. 31 at 41–46. 

In its opening brief, NAFA makes four arguments, none of which is persuasive. It first 

argues that title I of ERISA does not authorize the Department to impose fiduciary duties on 

those who advise IRAs. Id. at 55–57. That is undisputed. But, as explained above, it has no 

bearing on what the Department did here; rather, when they regulate IRA advisers, PTE 84-24 

and the BIC exemption rely on the Department’s authority under title II. Second, NAFA argues 

that title II does not impose fiduciary duties on those who advise IRAs and that “[t]he 

Department’s limited [exemption] authority does not extend beyond the ability to issue 

regulations clarifying the circumstances under which an excise tax may be imposed on . . . 

disqualified persons under Section 4975.” Id. at 58–59. But that contention ignores the plain 

language of the statute, which grants the Department authority to do far more than “clarify” the 

scope of section 4975. To the contrary, the statute grants the Department broad authority to 

adopt non-statutory exemptions and to impose conditions on any such exemptions. See 26 

U.S.C. § 4975(c)(2). Third, NAFA argues that the Department’s use of its exemption authority 

will lead to “an absurd and irrational result” because it will subject those IRA advisers who are 

paid on a commission basis (and who must, accordingly, rely on the exemption) to ERISA 

fiduciary duties, but will not extend those same duties to those who are paid an asset 

management fee (and who, accordingly, need not rely on the exemption). Id. at 59 n.22. But, far 

from irrational, that is precisely the point; in the Department’s view, those who are paid on a 
48

commission basis may be tempted to make investment recommendations that maximize their

compensation while disserving the interests of plan participants and beneficiaries. Advisers 

paid an asset management fee generally will not face this conflict. Finally, NAFA argues that 

ERISA’s “preemption provisions frown upon interference by federal agencies with state 

insurance regulation” and that the fiduciary standards incorporated in PTE 84-24 and the BIC 

Exemption would override state insurance law suitability standards. Id. at 60 n.24. That is not 

what ERISA’s preemption provisions mean. But, even if they were susceptible to NAFA’s 

construction, NAFA ignores the fact that the preemption provisions apply only to title I of 

ERISA, and thus have no bearing on the scope of the Department’s title II authority, see 29 

U.S.C. § 1144(b)(2)(A), and the fact that the Department made clear that it had no intention of 

superseding state insurance laws, see Final BIC Exemption, 81 Fed. Reg. at 21,019; Final PTE 

84-24, 81 Fed. Reg. at 21,161.

It is not until its reply brief that NAFA comes to the crux of its challenge to the extension 

of fiduciary duties to those who advise IRAs and other non-title I plans. There, NAFA argues 

that the statutory structure and legislative history of ERISA demonstrate that “Congress 

deliberately chose not to impose key ERISA duties in IRA transactions through section[] . . . 

4975 of the Code.” Dkt. 32 at 33. In NAFA’s view, “Congress drew clear distinctions between 

[t]itle I of ERISA, which imposes fiduciary duties on ERISA plan fiduciaries, and [t]itle II, 

which imposes no fiduciary duties in IRA transactions.” Id. From this premise, NAFA argues 

that ERISA implicitly precludes the Department from requiring that title II advisers adhere to the 

duties of loyalty and prudence as a condition of receiving an exemption from the title II 

prohibited transaction rule. See id. at 34–35. 
49

Although this argument comes closer to the mark, the Court is, again, unpersuaded. As 

NAFA emphasizes, its argument is premised on Chevron step one. Dkt. 32 at 38. NAFA must, 

accordingly, show that Congress “unambiguously foreclosed the agency’s statutory 

interpretation.” Vill. of Barrington, 636 F.3d at 659. In making this determination, courts 

typically “begin[] with the most traditional tool of statutory construction[:] reading the text 

itself,” Wolf Run Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 659 F.3d 1197, 

1200 (D.C. Cir. 2011) (citation, internal quotation marks, and alteration omitted), but also look to 

all of the “traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U.S. 421, 

446 (1987). Of particular relevance here, these tools include consideration of the “design of the 

statute as a whole,” Wolf Run Mining Co., 659 F.3d at 1200 (citation and internal quotation 

marks omitted), and how disputed terms fit within the “context” of “the overall statutory 

scheme,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000) (citation 

and internal quotation marks omitted). Although “the presence of a difficult question of 

statutory construction does not necessarily render that provision ambiguous,” Meredith v. Fed. 

Mine Safety & Health Review Comm’n, 177 F.3d 1042, 1053 (D.C. Cir. 1999), it is not the role 

of the courts to fill in the “interstices created by statutory silence,” Util. Air Regulatory Grp. v. 

EPA, 134 S. Ct. 2427, 2445 (2014). 

Starting with the text, Congress unambiguously granted the Department broad authority 

to adopt “conditional . . . exemption[s],” including under title II. 26 U.S.C. § 4975(c)(2). Since 

the earliest days of ERISA’s implementation, moreover, the Department (and previously the 

Secretary of the Treasury) has used this authority to impose substantive conditions governing the 

relationship between advisers and plans. See, e.g., PTE 77-9, 42 Fed. Reg. 32,395, 32,398 (June 

24, 1977) (conditioning exemption on the “transaction [being] on terms at least as favorable to 
50

the plan as an arm’s-length transaction with an unrelated party” would be). NAFA offers no 

basis to dispute this long-standing interpretation of the plain terms of ERISA and the Code. The 

relevant question, then, is not whether the Department has affirmative authority to impose 

substantive conditions on prohibited transaction exemptions, but whether anything in ERISA 

“unambiguously” precludes the Department from imposing the particular condition at issue 

here—adherence to the duties of loyalty and prudence.

Only two limitations on the Department’s exemption authority appear on the face of the 

statute: First, the Department must comply with procedures it has previously established, 26 

U.S.C. § 4975(c)(2), and, second, it must conclude that the exemption is “administratively 

feasible,” “in the interest of the plan and its participants and beneficiaries,” and “protective of the 

rights of participants and beneficiaries of the plan,” id. Neither express limitation supports 

NAFA’s argument. There is no dispute that the Department complied with the applicable 

procedures, and, at least for purposes of this argument, NAFA does not challenge the 

administrative feasibility or advantages to plan participants and beneficiaries of the fiduciaryduty condition. Instead, NAFA’s argument turns on the contention that the overall structure of 

ERISA—and, in particular, the congressional decision to impose fiduciary duties on plans under 

title I, but not title II—gives rise to an implicit limitation on the Department’s authority to 

require adherence to those same fiduciary duties as a condition of an exemption of non-title I

plans from the prohibited transaction rule. The Court cannot conclude that title II 

“unambiguously” creates such an implicit limitation. 

NAFA first relies on the expressio unius canon. As NAFA explains, when “Congress 

includes particular language in one section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally and purposely in the disparate 
51

inclusion or exclusion.” Dkt. 32 at 35 (quoting Stovic v. R.R. Ret. Bd., 826 F.3d 500, 503 (D.C. 

Cir. 2016) (citation and internal quotation marks omitted)). That argument, however, mixes 

apples and oranges. NAFA is undoubtedly correct that the duties imposed under titles I and II of 

the Act differ in fundamental respects; title I creates intricate and detailed duties, including the 

duties of prudence and loyalty, while title II is far more limited and only prohibits conflicted 

transactions for purposes of the tax laws. Compare 29 U.S.C. § 1104(a) with 26 U.S.C. 

§ 4975(c). But the question is not whether title II should be construed to impose duties that 

Congress imposed only under title I. Rather, it is whether the Department may require adherence 

to those duties as a condition of an exemption from the tax laws that apply to entities that

participate in otherwise prohibited transactions. 

With respect to that question, the fact that Congress required that all title I plans adhere to 

the duties of a fiduciary says little, if anything, about whether it intended to foreclose the 

Department from requiring adherence to those duties as a condition of granting an exemption 

from the prohibited transaction rule. Indeed, by the logic of NAFA’s argument, the Department 

would be barred from imposing any condition on a title II exemption that relies on a duty or 

obligation that Congress imposed categorically on title I plans. It would mean, for example, that 

the Department could not grant an exemption from the title II prohibited transaction rule on the 

condition that the adviser refrain from recommending transactions that benefit third parties at the 

expense of the plan participant, merely because ERISA title I—but not title II—includes a 

general duty of loyalty. Compare 26 U.S.C. § 4975(c) with 29 U.S.C. § 1104(a). It would mean 

that the Department could not condition an exemption on the disclosure of the same type of 

information that title I requires plan administrators to disclose. See 29 U.S.C. § 1021. And it 

would foreclose the Department from requiring as a condition of a title II prohibited transaction 
52

exemption that a covered financial institution not employ individuals convicted of embezzlement 

or fraud, because title I includes a similar prohibition. See 29 U.S.C. § 1111(a). In short, the 

mere fact that title I imposes certain duties or obligations on employee benefit plans does not, as 

a matter of logic or the rules of statutory interpretation, mean that Congress intended to preclude 

the Department from imposing a similar duty or obligation as a condition of granting an 

exemption under 26 U.S.C. § 4975(c)(2).

NAFA seeks to bolster its structural argument with reference to the legislative history,

but none of the passages on which NAFA relies adds to its argument. Most of that legislative 

history merely supports the undisputed premise that Congress imposed specific fiduciary duties 

on those who manage or advise title I plans, but not on those who advise IRAs and other nontitle I plans. See, e.g., 1974 U.S.C.C.A.N. at 5076–88; id. at 4649–51. With only one exception, 

none of the legislative history NAFA proffers includes any discussion of limitations on the 

Department’s discretion to grant prohibited transaction exemptions. That one exception is a 

single line in the conference report that notes that the exemptions “[are] to have no effect with 

respect to the basic fiduciary responsibility rules requiring prudent action, diversification of 

investments, actions exclusively for the benefit of participants and beneficiaries, etc.” 1974 

U.S.C.C.A.N. at 5091. All that means, however, is that the Department’s authority to grant 

exemptions from the prohibited transaction rules does not carry with it the authority to grant 

exemptions from the fiduciary duties that Congress expressly mandated under title I.

According to NAFA, the Department has done more than require adherence to the duties 

of a fiduciary as a condition of an exemption from the prohibited transaction rule. Rather, 

because “those who sell fixed annuities are ‘all’ compensated by commission,” and must thus 

rely on the BIC Exemption, the rule is, in NAFA’s view, a “mandate.” Dkt. 32 at 36, 40. The 
53

fact that those who sell annuities are currently paid on a commission basis, however, cannot alter

the meaning of a statute that Congress enacted in 1974, and NAFA points to no evidence of 

Congress’s understanding of relevant compensation practices in 1974. Nor is the predominance 

of commission-based compensation inescapably fixed for all time. Although the Court 

recognizes that it may be difficult and costly for financial institutions to move away from that

model of compensation, see Dkt. 5-3 (Marrion decl.); Dkt. 5-4 (Engels decl.); Dkt. 5-5 (James 

decl.); Dkt. 5-6 (White decl.); Dkt. 5-7 (Rafferty decl.); Dkt. 5-8 (Foguth decl.); Dkt. 5-9 (Wong 

decl.); Dkt. 5-10 (Perkins decl.), the prospect of alternative compensation methods is not

illusory. The choice may not be pleasant one, but it is real. 

Importantly, there is also a clear nexus between the risk that commission-based 

compensation will skew investment advice and the condition that advisers paid on a commission 

basis must provide advice that satisfies the duties of loyalty and prudence. As early as 1977, the 

Department concluded that commission-based compensation would trigger the prohibited 

transaction rules in the absence of an exemption. See PTE 77-9, 42 Fed. Reg. 32,395 (June 24, 

1977). And, in the most recent rulemaking, it explained how what is “presented . . . as trusted 

advice” can often be influenced, to the detriment of IRA owners, by the conflicting incentives 

that advisers have to maximize their own commissions. See, e.g., Final Fiduciary Definition, 81 

Fed. Reg. at 20,949–50. “In today’s marketplace,” commissions “give[] . . . advisers a strong 

reason, conscious or unconscious, to favor investments that provide them greater compensation 

rather than those that may be most appropriate for the [plan] participants.” Id. at 20,956. Small 

differences in investment performance, moreover, can have substantial, cumulative consequences 

for the investor’s retirement income: “An ERISA plan investor who rolls her retirement savings 

into an IRA could lose 6 to 12 and possibly as much as 23 percent of the value of her savings 
54

over 30 years of retirement by accepting advice from a conflicted financial adviser.” Id. at 

20,949 & n.8. It was against this backdrop that the Department determined that each of the 

conditions contained in the Impartial Conduct Standards, including adherence to the duties of 

loyalty and prudence, was “necessary” for it to find—as required by the statutes—that the

exemptions were in the interests of plan participants and beneficiaries and protective of their 

rights. Final BIC Exemption, 81 Fed. Reg. at 21003. That is, without the challenged conditions, 

it is far from clear that the Department would have been able to allow advisers paid on a 

commission basis to advise IRAs and other plans at all. 

Finally, although not framed as such, NAFA’s argument might be viewed in less 

formalistic terms as positing that the imposition of fiduciary duties on non-title I plans (even if 

only conditionally) is such a momentous step, with such enormous consequences, “that Congress 

could not have intended to delegate a decision of such economic and political significant to an 

agency in so cryptic a fashion.” Brown & Williamson, 529 U.S. at 160. That rule of 

construction does not apply here, however, for at least two reasons. First, the statutory authority 

upon which the Department relies is far from “cryptic.” To the contrary, it is NAFA’s argument 

that would bend or supplement the statutory text. Second, this case is a “far cry from . . . Brown 

& Williamson.” Verizon v. FCC, 740 F.3d 623, 638 (D.C. Cir. 2014). Although a step “of great 

‘economic and political significance,’” Verizon, 740 F.3d at 639, the Department’s decision to 

condition availability of the BIC Exemption on adherence to the duties of loyalty and prudence 

cannot be reasonably compared to the FDA’s decision, at issue in Brown & Williamson, to depart 

from “its representations to Congress since 1914” and to assert jurisdiction for the first time over 

an “industry constituting a significant portion of the American economy,” 529 U.S. at 159. Here, 

the Department has long exercised jurisdiction over those who provide investment advice to 
55

IRAs and other plans. It has long asserted that variable compensation gives rise to a conflict of 

interest. And it has long imposed conditions on the exercise of its exemption authority. The fact

that the conditions imposed by the current rule cover more advisers and institutions, and are 

more onerous than past conditions, does not bring this case within the orbit of Brown & 

Williamson.

C. Written Contract Requirement of the BIC Exemption

NAFA further argues that the BIC Exemption exceeds the Department’s authority in a 

second respect as well; according to NAFA, the BIC Exemption impermissibly creates a private 

cause of action. The major premises of this argument are unassailable. NAFA is correct that, 

unlike title I of ERISA, title II does not create a private right of action. See generally 26 U.S.C. 

§ 4975. And, it is correct that, as the Supreme Court held in Alexander v. Sandoval, 532 U.S.

275, 286 (2001), “private rights of action to enforce federal law must be created by Congress,”

and not by federal agencies. The problem with NAFA’s argument, however, is that the BIC 

Exemption does not create a private cause of action; it merely dictates terms that otherwiseconflicted financial institutions must include in written contracts with IRA and other non-title I

owners in order to qualify for the exemption.

According to NAFA, the distinction between creating a private right of action on the one 

hand and conditioning the grant of an exemption on an enforceable written contract on the other

amounts to nothing more than “sophistry.” Dkt. 31 at 63. It asserts that “[n]othing in Sandoval

turns on the precise nature of the private cause of action created” and that “the Department 

created a private litigation right that Congress did not authorize.” Dkt. 31 at 63–64. That, 

however, is incorrect. The Department did not create a “cause of action” or a “private litigation 

right.” Rather, any action brought to enforce the terms of the written contract would be brought 
56

under state law, and, as both parties acknowledged at oral argument, state law would ultimately 

control the enforceability of any of the required contractual terms. See, e.g., Tr. Oral Arg., Dkt. 

41 at 44 (counsel for NAFA acknowledging that “if state law says you can’t include those 

provisions, you can’t include those provisions”; state law “does trump it”); id. at 110–11 

(counsel for the Department noting that “if state law says something’s not enforceable, then the 

fact that the federal regulation required it to be included in the contract to satisfy an exemption 

wouldn’t control enforcement of the contract under state law,” and explaining that “[b]ecause . . . 

it’s a state law cause of action, state law provisions for the enforceability of contracts control”). 

Indeed, one of the grievances that NAFA raises in a separate argument is that, because the BIC 

Exemption permits financial institutions to waive punitive damages and rescission as remedies, 

Final BIC Exemption, 81 Fed. Reg. at 21,020; see also infra at 75–76, but state insurance 

regulators typically do not permit similar waivers, NAFA members may be disadvantaged vis-àvis other financial institutions. Id. at 44. As that concern highlights, although the BIC 

Exemption dictates what must be included in the contract, the cause of action and right to 

recover are dictated by state law. Federal law merely requires the inclusion of specific 

contractual terms as a condition of the prohibited transaction exemption.

The written contract condition, moreover, was adopted against the backdrop of common 

law enforcement of IRA contracts. See, e.g., Jacobs v. Mazzei, 977 N.Y.S.2d 123 (N.Y. App. 

Div. 2013); McGrogan v. First Commonwealth Bank, 74 A.3d 1063 (Pa. Super. Ct. 2013); Azbill 

v. UMB Scout Brokerage Servs., Inc., 129 S.W.3d 480 (Mo. Ct. App. 2004). As explained 

above, the rules governing title I and title II plans differ in significant respects, including with 

respect to preemption. Thus, if the written contract condition applied to title I plans, it would 

likely be preempted under 29 U.S.C. § 1144(a). That provision states that title I “shall supersede 
57

any and all State laws insofar as they may now or hereafter relate to any [nonexempt] employee 

benefit plan described in [title I].” Id. But ERISA’s preemption provisions do not apply to title 

II, see id.; 26 U.S.C. § 4975, and courts, accordingly, have permitted IRA participants and 

beneficiaries to bring state law claims for breach of contract, see, e.g., Grund v. Del. Charter 

Guar. & Tr. Co., 788 F. Supp. 2d 226, 243–44 (S.D.N.Y. 2011). In addition, as NAFA itself 

explains, “fixed annuities are insurance contracts”—the insurance company guarantees a 

“predictable income [stream] the owner cannot outlive” in return for deposits made by the 

participant or beneficiary. NAFA Comment at 3, AR 42,358 (emphases added). Accordingly, 

even prior to adoption of the BIC Exemption, financial institutions selling annuities already 

entered into contracts with their customers and, at least with respect to annuities held in IRAs, 

they were already subject to suit for breaches of those contracts. The BIC Exemption does not 

change any of this but only requires financial institutions to include a number of specific terms in 

their contracts if they want to qualify for the exemption.

As the Department emphasizes, moreover, rules requiring that regulated entities include 

particular terms in written contracts are far from novel. In implementing ERISA itself, the 

Department has previously imposed similar conditions. PTE 84-14, for example, has long 

required “Qualified Professional Asset Managers” to acknowledge that they are fiduciaries in a 

“written management agreement.” PTE 84-14, 49 Fed. Reg. 9494, 9503 (Mar. 13, 1984). And

PTE 06-16, which governs compensation to fiduciaries in securities lending transactions, 

requires that “[t]he compensation [be] reasonable and [be] paid in accordance with the terms of a

written instrument.” PTE 06-16, 71 Fed. Reg. 63,786, 63,797 (Oct. 31, 2006). Other agencies 

have done the same in implementing their governing statutes. The Department of 

Transportation, for one, requires foreign air carriers providing charter flights in the United States 
58

to include a contractual term providing that “unless the charterer files a claim . . . within 60 days 

after the cancellation of a charter trip[,] the surety [whose bond secures advance charter 

payments received by the carrier] shall be released from all liability.” 14 C.F.R. § 212.3(c). The 

FCC allows broadband licensees to establish an “out of band emissions” limit different from that 

specified by regulation, but requires that they do so “pursuant to a private contractual 

arrangement of all affected licensees and applicants.” 47 C.F.R. § 24.238(c). The Department of 

Agriculture’s Food for Progress program requires participants to “enter into a written contract 

with each provider of goods, services, or construction work,” and mandates that “[e]ach such 

contract must require the provider to maintain adequate records.” 7 C.F.R. § 1499.11(k). And 

the Department of Agriculture’s export credit guarantee program requires each exporter to enter 

into a written sales contract with the importer, with nine mandatory terms, including “quantity, 

quality specifications, [and] delivery terms.” 7 C.F.R. § 1493.20. 

NAFA seeks to distinguish these examples on the ground that they do not “dictate the 

terms of contracts” or, at least, do not do so in the same “manner” as the BIC Exemption. Dkt.

32 at 45–46 & n.14. That is incorrect. The two ERISA precedents cited above, for example, 

condition the grant of an exemption on written contracts that contain significant terms. PTE 84-

14 applies to the prohibited transaction rules under both title I and title II of ERISA, and it 

requires—even for title II purposes—that a “Qualified Professional Asset Manager” 

acknowledge “in a written . . . agreement that it is a fiduciary with respect to each” plan at issue. 

PTE 84-14, 49 Fed. Reg. at 9506. PTE 06-16, likewise, requires a “written loan agreement,” 

which must include terms “at least as favorable to the plan as an arm’s-length transaction with an 

unrelated party” and a “security interest in, title to, or the rights of a secured creditor with respect 

to the collateral.” PTE 06-16, 71 Fed. Reg. at 63,796. 
59

Even more to the point, there is no evident connection between the rationales that NAFA 

offers for distinguishing these precedents and the substance of NAFA’s argument. If requiring 

that financial institutions enter into written contracts in order to avail themselves of the BIC 

Exemption “create[s] a private cause of action” in violation of Sandoval, then the importance of 

the contractual term ought not matter. Whether significant or minor, the agency-mandated 

contractual term is potentially enforceable in a state law breach of contract action. The same is 

true, moreover, regardless of whether the relevant contractual term replicates a preexisting right 

or one introduced through the same regulation that requires the written contract. Regardless of 

the nature of the right at issue, it is the remedy that NAFA contends is unauthorized.

NAFA would also distinguish the BIC Exemption from other agency-mandated 

contractual undertakings because it “dictate[s] the terms of the litigation and damage claims that 

may be asserted in such litigation” by, for example, limiting exculpatory provisions, class-action 

waivers, and certain arbitration clauses. Dkt. 32 at 46. Those restrictions, NAFA posits, “are 

exactly the kind of detailed rules Congress might establish if it were to create a new private 

cause of action to enforce ERISA fiduciary duties with respect to IRA transactions.” Id. But 

these details do not transform state law breach of contract claims into federal causes of action. 

The states may decide whether and how to enforce these provisions, as NAFA acknowledged at 

oral argument. Tr. Oral Arg., Dkt. 41 at 44. Financial institutions, moreover, may rely on the

BIC Exemption even if their contracts require arbitration of all non-class-action claims, thus 

reducing the prospect that even the state courts will need to enforce agreements. All that the 

exemption requires is that financial institutions that opt to take advantage of it include the 

relevant terms in their contracts with IRA and other non-title I plan owners. 
60

This is not to say that the authority of an agency to mandate that regulated parties include 

particular terms in their contracts is without limit. One might reasonably ask, for example, 

whether the Department of Justice could have responded to Sandoval by requiring that grant 

recipients enter into contracts guaranteeing third parties that they will abide by the Department of 

Justice’s disparate impact rule. See Sandoval, 532 U.S. at 278; Astra USA, Inc. v. Santa Clara 

County, 563 U.S. at 119 n.4. But that would not be a Sandoval challenge, and it is not the 

challenge that NAFA has brought.10 Accordingly, all that the Court needs to address for present 

 

10 In response to a question from the Court at oral argument, NAFA submitted three additional 

cases that it claims bear on the question “whether an agency . . . exceed[s] its authority . . . by 

imposing contractual obligations . . . knowing that the enforcement will then come through state 

contract suits.” Dkt. 44 at 1 (quoting Tr. Oral Arg., Dkt. 41 at 87). None of those cases supports 

the Sandoval argument that NAFA made in its briefs, which is all that is properly before the 

Court. 

In the first case, Astra USA, Inc. v. Santa Clara County, 563 U.S. 110 (2011), the Supreme Court 

held that permitting medical facilities to bring suit as third-party beneficiaries of pharmaceutical 

pricing agreements (“PPAs”) between the federal government and drug manufacturers was 

“incompatible with the statutory regime.” Id. at 113. Although the Court observed that 

permitting such third-party suits would, in effect, circumvent Congress’s decision not to create 

“a private right to enforce the statutory ceiling price obligations,” it did so because the statute 

required that the government enter into the PPAs, 42 U.S.C. § 256b(a)(1), and the PPAs “simply 

incorporate[d] [the relevant] statutory obligations,” 563 U.S. at 119 & n.4. Under those unique 

circumstances, which are not present here, a third-party beneficiary suit was, “in essence[,] a suit 

to enforce the statute itself.” Id. at 119. The Court, moreover, did not premise its decision on 

this factor alone, but engaged in a broader statutory analysis of whether Congress would have 

intended to permit third-party actions to enforce the PPAs, and thereby the statute. Nothing in 

Astra USA suggests that Sandoval or its progeny can be read, standing alone, to preclude 

agencies from conditioning the grant of a regulatory exemption on the execution of written 

agreements that are enforceable under state law. Indeed, the Supreme Court expressly declined 

to reach the closer—but still inapposite—question “[w]hether a contracting agency may 

authorize third-party suits to enforce a Government contact.” Id. at 119 n.4.

The second and third cases, Umland v. PLANCO Financial Services, Inc., 542 F.3d 59 (3d Cir. 

2008), and MM&S Financial, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 364 F.3d 908 (8th Cir. 

2004), likewise, add no support to NAFA’s Sandoval argument. Umland merely held that 

implying “FICA’s provisions into every employment contract . . . would contradict Congress’s 

decision not to include . . . a private right of action.” 542 F.3d at 67. And MM&S Financial

merely held that a claim for breach of contract against the NASD for failing to follow its own 
61

purposes is the question whether the Department has run afoul of Sandoval and the principle that 

only Congress may create federal causes of action. For the reasons explained above, the answer 

to that question is “no.”

D. Reasonable Compensation Requirement and Due Process

Next, NAFA argues that the “reasonable compensation” condition of the BIC Exemption 

is void for vagueness under the Due Process Clause of the Constitution. Dkt. 31 at 65–67; Dkt. 

32 at 65–70. Under that condition, a financial institution must agree in writing that “[t]he 

recommended transaction will not cause [it], [the] [a]dviser or their [a]ffiliates or [r]elated 

[e]ntites to receive, directly or indirectly, compensation for their services that is in excess of 

reasonable compensation within the meaning of [29 U.S.C. § 1108(b)(2)] and [26 U.S.C. 

§] 4975(d)(2).” Final BIC Exemption, 81 Fed. Reg. at 21,077 (emphasis added). A similar 

provision appeared in the version of the BIC Exemption proposed in 2015, but without the crossreferences to ERISA and the Code. 2015 Proposed BIC Exemption, 80 Fed. Reg. at 21,984. As 

the Department explained, the change was made “[i]n response to comments,” and the condition 

“was clarified to adopt the well-established reasonable compensation standard, as set out in” the 

cited sections of ERISA and the Code “and the regulations thereunder.” Final BIC Exemption,

81 Fed. Reg. at 21,030. The commentary further explained:

The reasonableness of the fees depends on the particular facts and circumstances at 

the time of the recommendation. Several factors inform whether compensation is 

reasonable, including, inter alia, the market pricing of service(s) provided and the 

underlying asset(s), the scope of monitoring, and the complexity of the product. No 

single factor is dispositive in determining whether compensation is reasonable; the 

essential question is whether the charges are reasonable in relation to what the 

 

rules was barred by a provision of the Securities Exchange Act of 1934, which grants “exclusive 

jurisdiction to federal courts to hear all claims for breach of duties created under the Exchange 

Act.” 364 F.3d at 911–12. Again, nothing in either decision suggests that a federal agency lacks 

authority to condition a regulatory exemption on execution of a written contract enforceable 

under state law.
62

investor receives. Consistent with the Department’s prior interpretations of this 

standard, the Department confirms that an [a]dviser and [f]inancial [i]nstitution do 

not have to recommend the transaction that is the lowest cost or that generates the 

lowest fees without regard to other relevant factors. In this regard, the Department 

declines to specifically reference FINRA’s standard in the exemption, but rather 

relies on ERISA’s own longstanding reasonable compensation formulation.

Id. According to NAFA, the rule’s lack of “meaningful guidance on what is considered 

reasonable . . . violates fundamental tenets of constitutionally required fair notice, rendering [the 

condition] void for vagueness.” Dkt. 31 at 65.

As an initial matter, the Court notes that NAFA brings a facial challenge to the 

“reasonable compensation” condition. Until recently, that would have likely required that NAFA 

demonstrate that the condition is “impermissibly vague in all of its applications.” Vill. of 

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). In Johnson v. 

United States, 135 S. Ct. 2552, 2561 (2015), however, the Supreme Court held that the clarity of 

some applications will not save an otherwise vague rule from facial challenge. The “supposed 

requirement of vagueness in all applications,” according to the Court, “is not a requirement at all, 

but a tautology: If . . . a statute [is] vague, it is vague in all its applications.” Id. (emphasis 

added). Earlier this year, in a case similar to this one, the D.C. Circuit declined to “decide the 

full implications of Johnson,” concluding that the rule challenged in that case “satisfie[d] due 

process requirements even” without applying the “elevated bar for facial challenges.” U.S.

Telecom Ass’n v. FCC, 825 F.3d 674, 735–36 (D.C. Cir. 2016). The Court will take the same 

approach here.

A law is void for vagueness if it fails to provide a “person of ordinary intelligence a 

reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. 

City of Rockford, 408 U.S. 104, 108 (1972). “[P]erfect clarity and precise guidance,” however,

“have never been required.” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). “The 
63

degree of vagueness tolerable in a given statutory [or regulatory] provision,” moreover, “varies 

based on ‘the nature of the enactment.’” U.S. Telecom Ass’n, 825 F.3d at 736 (quoting Hoffman 

Estates, 455 U.S. at 498). Rules that “threaten[] to inhibit the exercise of constitutionally 

protected rights” or that include criminal penalties are subject to “a more stringent vagueness 

test.” Hoffman Estates, 455 U.S. at 499. “[E]conomic regulation,” in contrast, “is subject to a 

less strict . . . test because its subject matter is often more narrow,” “because businesses . . . can 

be expected to consult relevant [rules] in advance of action,” and because “the consequences of 

imprecision are qualitatively less severe.” Id. at 498–99. As a result, economic regulations “will 

be found to satisfy due process so long as they are sufficiently specific that a reasonably prudent 

person, familiar with the conditions the regulations are meant to address and the objectives the 

regulations are meant to achieve, would have fair warning of what the regulations require.” 

Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 

362 (D.C. Cir. 1997). 

The BIC Exemption’s “reasonable compensation” condition satisfies this standard. To 

start, the regulatory purpose is clear: Recall that the need for the BIC Exemption in the first 

place was triggered by the Department’s conclusion that compensation that varies based on 

investment advice—including commissions—creates a conflict of interest between the 

investment adviser and the IRA participant or beneficiary. Final BIC Exemption, 81 Fed. Reg. at 

21,076–77. As a condition of waiving this conflict, the BIC Exemption requires that financial 

institutions and advisors “adhere to conditions designed to mitigate the harmful impact of 

conflicts of interest.” Id. at 21,002 (emphasis added). The “reasonable compensation” 

requirement is one of these conditions. The Department, accordingly, “has articulated ‘the 

objectives the [condition] is meant to achieve.’” U.S. Telecom. Ass’n, 825 F.3d at 736.
64

Read in context, moreover, the phrase “reasonable compensation” is sufficiently clear to 

provide financial institutions with “fair warning of what the regulations require.” Freeman 

United Coal Mining Co., 108 F.3d at 362. Taking the phrase one step at a time, the adjective 

“reasonable” is, of course, ubiquitous in the law. Indeed, the very constitutional test that NAFA 

invokes asks whether the challenged term provides a “person of ordinary intelligence a 

reasonable opportunity to know what is prohibited,” Grayned, 408 U.S. at 108 (emphasis 

added), or whether “a reasonably prudent person” would have fair notice of what is required, 

Freeman United Coal Mining Co., 108 F.3d at 362 (emphasis added). It is thus unsurprising that 

the case law is replete with decisions rejecting vagueness challenges, like that raised here, to the 

words “reasonable,” “reasonably,” and “unreasonably.” See, e.g., Am. Coal Co. v. Fed. Mine 

Safety & Health Review Comm’n, 796 F.3d 18, 28 (D.C. Cir. 2015) (interpretation of mine safety 

regulation to cover material that “reasonably” might ignite not unconstitutionally vague); U.S.

Telecom Ass’n, 825 F.3d at 734–739 (regulation prohibiting conduct that “unreasonably 

interfere[s] with or unreasonably disadvantage[s]” consumer internet access not 

unconstitutionally vague); Air Transp. Ass’n of Am., Inc. v. U.S. Dep’t of Transp., 613 F.3d 206, 

218–19 (D.C. Cir. 2010) (use of term “reasonable” in regulation did not violate statutory 

obligation to provide “standards or guidelines” to regulated airports); U.S. v. Krumrei, 258 F.3d 

535, 538 (6th Cir. 2001) (“[A] statute is not void for vagueness merely because it uses the word 

‘reasonable’ or ‘unreasonable.’”) (quoting United States v. Hsu, 40 F. Supp. 2d 623, 628 (E.D. 

Pa. 1999)); Groome Res. Ltd., LLC v. Parish of Jefferson, 234 F.3d 192, 217 (5th Cir. 2000) 

(“reasonable accommodations” requirement not unconstitutionally vague); Karlin v. Foust, 188 

F.3d 446, 468 (7th Cir. 1999) (“reasonable medical judgment” provision in a statute not 

unconstitutionally vague); Bristol-Myers Co. v. FTC, 738 F.2d 554, 560 (2d Cir. 1984) (order 
65

requiring regulated entity to cease making claims without a “reasonable basis” not 

unconstitutionally vague).

More specifically, the concept of “reasonable compensation” is a common one that 

appears throughout the U.S. Code. See, e.g., 42 U.S.C. § 4018(b)(1)(B) (authorizing the 

Administrator of the National Flood Insurance Program to pay “reasonable compensation . . . for 

selling and servicing flood insurance coverage”); 49 U.S.C. § 44308(c)(2) (authorizing the 

Secretary of Transportation to pay “reasonable compensation to an underwriting agent for 

servicing insurance the agent writes for the Secretary”); 11 U.S.C. § 330(a)(1)(A) (authorizing 

“reasonable compensation” for bankruptcy trustees); 26 U.S.C. § 280G(b)(4) (prohibition on 

deductions for “golden parachutes” not applicable to “reasonable compensation”); 48 U.S.C. 

§ 2176(a)(1) (authorizing “reasonable compensation” for professional services rendered to the 

Financial Oversight and Management Board for Puerto Rico); 42 U.S.C. § 1395xx(a)(2)(B) 

(authorizing “reasonable compensation” for medical services under Medicare); 49 U.S.C. 

§ 24308(a)(2)(B) (allowing the Surface Transportation Board to determine “reasonable 

compensation” for use by Amtrak of rail carrier or regional transportation authority services and 

facilities); 43 U.S.C. § 1752(g) (requiring “reasonable compensation” for cancellation of grazing 

permit on federal lands); 36 U.S.C. § 130507(c) (allowing “reasonable compensation” for an 

officer of Little League Baseball, Inc., a federally chartered corporation). Indeed, that phrase 

appears in well over a hundred provisions of the U.S. Code.

It also appears repeatedly in ERISA—and has done so since ERISA was enacted over 

forty years ago. See Pub. L. No. 93-406, § 408 (enacting 29 U.S.C. § 1108(b)(2)); id. at title II, 

§ 2003(a) (enacting 26 U.S.C. § 4975(d)(2)). Drawing on that history, the BIC Exemption 

expressly provides that the phrase “reasonable compensation,” as used in the exemption, has the 
66

same meaning as the identical phrase long-contained in 29 U.S.C. § 1108(b)(2) and 26 U.S.C. 

§ 4975(d)(2). That cross-referenced language, in turn, is further defined in regulations, which 

have also existed for decades. See 29 C.F.R. § 2550.408c-2 (ERISA regulation); 26 C.F.R. 

§ 54.4975-6 (Code regulation). Under those regulations—and, by incorporation, under the BIC 

Exemption—“whether compensation is ‘reasonable’ . . . depends on the particular facts and 

circumstances of each case.” 26 C.F.R. § 54.4975-6(e). But certain extremes mark the 

boundaries. Thus, for example, compensation that is in excess of the amount that someone 

“would ordinarily be paid for like services by like enterprises under like circumstances” is 

categorically excessive. 26 C.F.R. § 1.162-7; see also 29 C.F.R. § 2550.408c-2(b)(5) 

(incorporating 26 C.F.R. § 1.162-7); 26 C.F.R. § 54.4975-6(e)(6) (same). Lesser compensation 

may also be excessive, but the regulations make clear that the relevant inquiry must focus on the 

time of contracting, and must not consider the question in light of subsequent events. Id. And

the regulations make clear that certain payments, such as “reimbursement of direct expenses,” 

should not be included in the measure of compensation. 

This guidance is, admittedly, imprecise. But that is as much a product of the endeavor as 

the standard; assessing whether a fiduciary is charging more than the relevant services demand is 

an inherently imprecise undertaking. A more precise standard would, in all likelihood, either 

preclude legitimate payments or invite evasion. “A regulation,” however, “is not impermissibly 

vague because it is ‘marked by flexibility and reasonable breadth, rather than meticulous 

specificity.’” U.S. Telecom Ass’n, 825 F.3d at 737 (citation omitted). Nor does due process 

require that agencies “open[] large loopholes allowing conduct which should be regulated to 

escape regulation.” Freeman United Coal Mining Co., 108 F.3d at 362 (internal quotation mark 

omitted). This is particularly so in cases like this one, in which the relevant statutory language 
67

has been subject to “common law” development. See, e.g., In re Iron Workers Local 25 Pension 

Fund, 811 F. Supp. 2d 1295, 1320–22 (E.D. Mich. 2011) (after bench trial, finding that 

compensation for “legal . . . services” was not “more than reasonable”; court considered 

reasonableness of fee at the outset and compared compensation to amounts “ordinarily . . . paid 

for like services by like enterprises under like circumstances”); Chao v. Current Dev. Corp., No. 

03-cv-1792, 2007 WL 2746596, at *2–3 (N.D. Ill. Sep. 14, 2007) (finding that defendants failed 

to show that hourly rate for services as trustee was reasonable); Guardsmark, Inc. v. BlueCross 

& Blue Shield, 169 F. Supp. 2d 794, 803 (W.D. Tenn. 2003) (denying motion to dismiss claim 

that fiduciary overcharged for administrative and “run-out” fees).

Finally, NAFA’s argument is particularly misplaced in the unique context of ERISA. As 

NAFA recognizes in framing a separate argument, see Dkt. 31 at 43–44; Dkt. 32 at 24, although 

“trust law [may] not tell the entire story,” the ERISA “fiduciary duties draw much of their 

content from the common law of trusts.” Varity Corp. v. Howe, 516 U.S. 489, 496 (1996). That 

common law includes requirements of “reasonable compensation” for trustees, which provides 

further guidance. See, e.g., Unif. Trust Code § 708(a) (Unif. Law Comm’n 2000) (“[A] trustee is 

entitled to compensation that is reasonable under the circumstances.”); Restatement (Third) of 

Trusts § 38(1) (2003) (“A trustee is entitled to reasonable compensation out of the trust estate for 

services as trustee . . . .”). NAFA does not challenge the sufficiency of this common law

guidance, but objects that it is typically framed in terms of what a trustee is affirmatively entitled 

to, rather than in terms of limiting trustee compensation. Dkt. 32 at 68–69. That is a distinction 

without a difference; the clarity of the phrase “reasonable compensation” is unaffected by 

whether trustees—like those at common law—are entitled to “reasonable compensation,” or 
68

whether fiduciaries—like those involved here—are not entitled to more than “reasonable 

compensation.”

According to NAFA, the lack of clarity regarding the meaning of “reasonable 

compensation” is not merely the product of imprecise language, but also a product of conflicting 

statements contained in the Department’s commentary. See Dkt. 31 at 66; Dkt. 32 at 69–70. It 

points, in particular, to two purportedly conflicting statements found in the commentary: first,

that “ultimately, the ‘reasonable compensation’ standard is a market based standard”; and 

second, that the Department “is unwilling to condone all ‘customary’ compensation 

arrangements and declines to adopt a standard that turns on whether the agreement is 

‘customary.’” Dkt. 31 at 66 (quoting Final BIC Exemption, 81 Fed. Reg. at 21,031). What is 

“market based,” however, is not the same thing as what is “customary.” A price or payment is 

“market based” if it is a product of competition; it is “customary” if it occurs with some 

frequency. Accordingly, there is nothing contradictory about embracing “market-based 

standards” while declining to create a safe harbor for all “customary” compensation. By 

declining to exempt all “customary” compensation, the Department merely recognized the risk 

that such an exemption would “open[] [a] loophole[] allowing conduct which should be 

regulated to escape regulation.” Freeman United Coal Mining Co., 108 F.3d at 362. 

NAFA also argues that the “extreme” “consequences of being wrong about ‘reasonable 

compensation’” counsel in favor of requiring greater certainty. Dkt. 32 at 74. Although much of 

NAFA’s vagueness argument centers on the risk associated with leaving the determination of 

whether certain compensation is “reasonable” to private litigation brought under BIC Exemption 

contracts, for this argument NAFA switches gears and focuses on the government’s enforcement 

authority. In private contract litigation, it is unclear what remedy a retirement plan would have 
69

against an insurance company that pays its own agent too large a commission. But, as NAFA 

notes, in a government enforcement action, an insurance company would run the risk that an 

adverse finding could render “every single transaction it has entered into” a “prohibited 

transaction,” triggering potentially massive excise tax liability under 26 U.S.C. § 4975. Dkt. 32 

at 74. That concern, however, is not merely speculative—it is at odds with almost forty years of 

history. Since 1977, PTE 84-24 and its predecessor exemption, PTE 77-9, have permitted 

insurance companies to pay agents engaged in sales to ERISA plans and IRAs on a commission 

basis, provided that any “commissions and other consideration received” are “reasonable,” PTE 

77-9, 42 Fed. Reg. at 32,398, or “not in excess of ‘reasonable compensation,’” 1984 Amendment 

to PTE 84-24, 49 Fed. Reg. at 13,211. Yet, despite this long-standing rule, NAFA fails to 

identify a single instance in which an insurance company was caught by surprise and required to 

pay a large excise tax.

Finally, NAFA relies on three D.C. Circuit decisions that it claims mark the outer limits 

of permissible regulatory vagueness. In U.S. Telecom Ass’n v. FCC, the Court upheld a 

regulation prohibiting broadband service providers from “unreasonably interfer[ing] with or 

unreasonably disadvantag[ing]” open internet competition. 825 F.3d at 734–36. As NAFA 

correctly observes, the agency in that case acted prospectively rather than retrospectively, it set 

forth seven factors that would guide its application of the rule and provided a description of how 

it would interpret and apply each factor, and it provided a mechanism for regulated entities to 

seek advisory opinions on the rule’s operations. U.S. Telecom, 825 F.3d at 736–38. But NAFA 

incorrectly characterizes the U.S. Telecom case as a “relatively close call.” Dkt. 32 at 71–72. To 

the contrary, the Court emphasized that “any ambiguity in [the rule] is . . . a far cry from the kind 

of vagueness this court [has] considered problematic” enough to invalidate a regulation. 825 
70

F.3d at 737 (citing Timpinaro v. SEC, 2 F.3d 453 (D.C. Cir. 1993)). Thus, even if the reasonable 

compensation condition at issue here were less certain than the rule at issue in U.S. Telecom, 

little would follow from that premise.

The D.C. Circuit’s decisions in KPMG, LLP v. SEC, 289 F.3d 109 (D.C. Cir. 2002), and 

United States ex rel. Purcell v. MWI Corp., 807 F.3d 281 (D.C. Cir. 2015), are no more helpful

to NAFA’s position. In KPMG, the Court held that KPMG lacked fair notice of the SEC’s

interpretation of an accounting rule that precluded public accountants from receiving “contingent 

fee[s]” from their audit clients. 289 F.3d at 126. But the Court’s conclusion that KPMG lacked 

“fair notice” that a “success fee” or “royalty arrangement would be deemed a prohibited 

contingent fee,” id. at 116, says nothing about whether the “reasonable compensation” condition 

is sufficiently clear. And in Purcell, the Court of Appeals merely held that the defendant lacked 

fair notice of the government’s interpretation of an undefined term in a letter of credit—“regular 

commission”—and thus could not have “knowingly” violated that interpretation of the letter of 

credit for purposes of the False Claims Act. Purcell, 807 F.3d at 287, 289. That, again, says 

nothing about the constitutionality of the “reasonable compensation” standard.

There will undoubtedly be cases in which reasonable minds may differ on whether a large 

commission rises to the level of “unreasonable compensation.” That, however, is not the 

standard for striking down a regulation as unconstitutionally vague. NAFA and its financial 

institution members are sophisticated entities that will be required merely to apply a phrase that 

is common in trust law; that has existed in ERISA since it was enacted; that has existed in PTE 

84-24 and its predecessor since 1977; that is (at least partially) explicated in regulations; and that 

has been discussed and applied in the case law. Under these circumstances “a reasonably 

prudent person, familiar with the conditions the [BIC Exemption is] meant to address and the 
71

objectives the [exemption and conditions] are meant to achieve, would have fair warning of what 

the regulations require.” Freeman United Coal Mining Co., 108 F.3d at 362. 

E. Placement of Fixed Indexed Annuities in the BIC Exemption

NAFA raises five challenges to the Department’s decision to require that fixed indexed

annuities proceed under the BIC Exemption rather than under PTE 84-24. Those challenges all 

assert that the Department’s treatment of fixed indexed annuities was “arbitrary and capricious” 

within the meaning of the APA. 5 U.S.C. § 706(2)(A). The scope of judicial review under that 

standard is narrow. See State Farm, 463 U.S. at 43; see also, e.g., Jicarilla Apache Nation v. 

U.S. Dep’t of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010). The Court must satisfy itself that 

the agency has “examine[d] the relevant data and [has] articulate[d] a satisfactory explanation for 

its action including a rational connection between the facts found and the choice made.” State 

Farm, 463 U.S. at 43 (citation and internal quotation marks omitted). It must assess whether

“the agency has relied on factors which Congress has not intended it to consider”; whether the 

agency “entirely failed to consider an important aspect of the problem”; and whether the agency

“offered an explanation for its decision that runs counter to the evidence before the agency[] or is 

so implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.” Id. In conducting this analysis, the Court must not, however, substitute its judgment 

for that of the agency. Rather, the critical question for the Court is whether the agency has 

provided the “minimal level of analysis” necessary to ensure that “its ‘path may reasonably be 

discerned.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting 

Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). 

With these principles in mind, the Court will consider each of NAFA’s five “arbitrary 

and capricious” challenges.
72

1. Treatment of Fixed Income Annuities as “Securities”

NAFA first argues that the Department’s decision to treat fixed indexed annuities “as 

securities” was “arbitrary and capricious because [that decision] conflicts with another federal 

statute,” namely the Harkin Amendment to the Dodd-Frank Act, Pub. L. No. 111-203, Title 9, 

subtitle 1, § 989J. Dkt. 31 at 68–69. In framing this argument, NAFA starts with how the 

Department characterized its 2015 notice of proposed rulemaking. In the notice of proposed 

rulemaking, the Department proposed to subject only “variable annuity contracts and other 

annuity contracts that are securities under federal securities laws” to the BIC Exemption, while 

leaving fixed indexed annuities and other “annuity contracts that are not securities” to regulation 

under PTE 84-24. 2015 Proposed PTE 84-24, 80 Fed. Reg. at 22,014–15 (emphases added). In 

the final rule, in contrast, the Department decided to subject both variable annuities and fixed 

indexed annuities to the BIC Exemption. Final PTE 84-24, 81 Fed. Reg. at 21,152–53. From 

this, NAFA infers that the Department decided to treat fixed indexed annuities as “securities” in 

the final rule. Dkt. 31 at 68–69. Finally, it argues that this treatment of fixed indexed annuities 

as “securities” conflicts with the Harkin Amendment, which requires the SEC to treat certain 

annuities contracts, “the value of which does not vary according to the performance of a separate 

account,” as “exempt” from the federal securities laws. Harkin Amendment, Pub. L. No. 111-

203, Title 9, subtitle 1, § 989J.

The logic of this argument fails on at least two levels. First, the fact that the notice of 

proposed rulemaking assigned only those annuities that are treated as “securities” to the BIC 

Exemption does not mean that, when the Department subsequently assigned fixed indexed 

annuities to the BIC Exemption, it necessarily treated those annuities as “securities.” To the 

contrary, the Department simply decided that—notwithstanding the fact that fixed indexed 
73

annuities are not treated as “securities” for purposes of the federal securities laws—the “risks and 

complexities of these investments” warranted the more “protective conditions” contained in the 

BIC Exemption. Final BIC Exemption, 81 Fed. Reg. at 21,018. Second, the Harkin Amendment 

speaks only to the treatment of certain annuities for purposes of the federal securities laws. 

Neither ERISA nor the Code, however, is a securities law, and neither the BIC Exemption nor 

PTE 84-24 purports to regulate annuities as “securities.” Accordingly, there is no tension 

between the Harkin Amendment and the final BIC Exemption. Nor can the Department be 

faulted for failing to “offer [an] explanation as to why it effectively classified” fixed indexed 

annuities “as securities for purposes of” the BIC Exemption. Dkt. 31 at 69. It did not, in fact, 

treat fixed income annuities as “securities,” and thus no explanation was necessary.

2. Notice and Opportunity to Comment

NAFA further argues that it was denied a reasonable opportunity to comment on the 

Department’s final decisions to shift fixed indexed annuities from treatment under PTE 84-24 to 

the BIC Exemption, Dkt. 31 at 71–72, and to permit financial institutions to include waivers of 

punitive damages and rescission in their contracts with IRA owners, Dkt. 31 at 78–79. The 

Court disagrees. 

The APA requires that a notice of proposed rulemaking “provide sufficient factual detail 

and rationale for the rule to permit interested parties to comment meaningfully.” U.S. Telecom 

Ass’n, 825 F.3d at 700 (internal quotation marks and citation omitted). “The final rule, however, 

‘need not be the one proposed in the’” notice of proposed rulemaking. Id. (citation and quotation 

marks omitted). Rather, it is enough that the final rule constitute a “logical outgrowth” of the 

notice. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). This standard is met 

if the notice of proposed rulemaking “expressly ask[s] for comments on a particular issue or 
74

otherwise ma[kes] clear that the agency [is] contemplating a particular change.” U.S. Telecom 

Ass’n, 825 F.3d at 700 (quotation marks and citation omitted; alterations in original). Ultimately, 

however, the test is simply “one of fair notice.” Long Island Care at Home, 551 U.S. at 174. 

The Department’s notice of proposed rulemaking meets this test.

First, with respect to the Department’s decision to move fixed indexed annuities to the 

BIC Exemption, the 2015 notices of proposed rulemaking for both the amendments to PTE 84-

24 and the creation of the BIC Exemption explicitly sought comment on the appropriate 

placement of annuities. Thus, in both notices, the Department explained that it was proposing 

that it subject annuities that are “securities”—that is, variable annuities—to the “uniquely 

protective” provisions of the BIC Exemption, while subjecting annuities that are not securities—

including fixed indexed annuities—to PTE 84-24. 2015 Proposed BIC Exemption, 80 Fed. Reg. 

at 21,975; see also 2015 Proposed PTE 84-24, 80 Fed. Reg. at 22,015. The Department then 

“request[ed] comment on this approach,” and, “[i]n particular,” on

whether we have drawn the correct lines between insurance and annuity products 

that are securities and those that are not, in terms of our decision to continue to 

allow IRA transactions involving non-security insurance and annuity contracts to 

occur under the conditions of PTE 84-24 while requiring IRA transactions 

involving securities to occur under the conditions of this proposed Best Interest 

Contract Exemption.

2015 Proposed BIC Exemption, 80 Fed. Reg. at 21,975; see also 2015 Proposed PTE 84-24, 80 

Fed. Reg. at 22,015 (requesting comment “on whether the proposal to revoke relief for securities 

transactions involving IRAs . . . but leave in place relief for IRA transactions involving . . . annuity 

contracts that are not securities strikes the appropriate balance and is protective of the interests of 

the IRAs”).

NAFA reads these requests for comment as providing “no inkling whatsoever that [the 

Department] was considering moving [fixed indexed annuities] from PTE 84-24 to the BIC 
75

[Exemption].” Dkt. 31 at 71. That reading is not tenable. The Department expressly requested 

comment on its decision to “continue to allow IRA transactions involving” fixed indexed 

annuities “to occur under the conditions of PTE 84-24,” while requiring that similar transactions 

involving variable annuities occur under the conditions contained in the proposed BIC 

Exemption. 2015 Proposed BIC Exemption, 80 Fed. Reg. at 21,975. That is, it asked whether 

fixed indexed annuities should be grouped under PTE 84-24 or not. And, if there were any doubt 

on this, it would be put to rest by the fact that NAFA, along with other industry groups, provided 

comments on that very issue. See AR 42,359 (Because “fixed annuities have no downside 

market risk and provide state-mandated guarantees to the consumer, . . . NAFA agrees the 

Department has appropriately categorized fixed annuities as covered transaction[s] eligible for an 

exemption under PTE-84-24.”); AR 47,030–41 (NAFA submits that “the Department’s inclusion 

of all non-security fixed annuity products under PTE 84-24 was correct in the proposed rule and 

should remain that way under the final rule”); AR 41,633–38 (comment of Allianz Life Ins. Co. 

of N. Am.); AR 42,430–31 (comment of Guardian Life Ins. Co.); AR 42,540–41 (comment of 

Indexed Annuity Leadership Council); AR 47,074–78 (further comment of Indexed Annuity 

Leadership Council). Indeed, NAFA prefaced its comments by acknowledging that the notice of 

proposed rulemaking posed the question “whether the line between insurance and annuity 

products that are securities and those that are not has been correctly drawn,” AR 42,357, and 

then cited the page of the notice that expressly “request[ed] comment on this approach,” id.

(citing 2015 Proposed BIC Exemption, 80 Fed. Reg. at 21,975).

Second, the Department’s decision to permit financial institutions to include contractual 

terms waiving claims for punitive damages and rescission constituted a logical outgrowth of the 

BIC Exemption in the notice of proposed rulemaking. In the 2015 notice, the Department 
76

proposed a provision prohibiting “[e]xculpatory provisions disclaiming or otherwise limiting 

liability.” 2015 Proposed BIC Exemption, 80 Fed. Reg. at 21,985. As NAFA acknowledges, the 

securities industry responded by submitting comments on July 15 and 17, 2015, in which it 

requested that the Department clarify that this prohibition would not extend to waivers of 

punitive damages and rescission. See Dkt. 31 at 78 n.32. Those comments were available for 

review online and at the Department of Labor, see 2015 Proposed BIC Exemption, 80 Fed. Reg. 

at 21,960, and NAFA had ample opportunity to object. The initial comment period was open 

until July 21, 2015, followed by four days of public hearings in August 2015, and a further 

comment period extending until September 24, 2015. See Final BIC Exemption, 81 Fed. Reg. at

21,007. In fact, NAFA submitted supplemental comments addressing other issues on September 

24, 2015. AR 47,030–41. Thus, based on both the notices of proposed rulemaking and public 

comments that were subsequently submitted, NAFA was on “fair notice” that the meaning and 

scope of the proposed bar on “exculpatory provisions” was subject to further refinement. See 

Long Island Care at Home, 551 U.S. at 174

3. Reasoned Explanation

Relatedly, NAFA contends that the Department failed to provide a reasoned explanation 

for its decision to move the treatment of fixed indexed annuities from PTE 84-24 to the BIC 

Exemption. Dkt. 31 at 72–73. As NAFA observes, in the notice of proposed rulemaking for the 

PTE 84-24 amendments, the Department explained that it was “not certain that the conditions of 

the” BIC Exemption relating to required disclosures were “readily applicable” to fixed indexed 

annuities “or that the distribution methods and channels” for fixed indexed annuities “would fit 

within the exemption’s framework.” Proposed PTE 84-24, 80 Fed. Reg. 22,015. According to 

NAFA, having “raised [these] important questions in the” notice of proposed rulemaking, the 
77

Department “provided no analysis about those very concerns when it placed” fixed indexed 

annuities in the BIC Exemption “at the last minute.” Dkt. 31 at 73. That contention is not 

supported by the administrative record.

As an initial matter, the administrative record provides a detailed explanation for the 

Department’s conclusion that fixed indexed annuities should be subject to the more rigorous 

conditions contained in the BIC Exemption. The commentary observes that both the SEC and 

FINRA cautioned that fixed indexed annuities are complex products that pose greater risks than 

fixed annuities. See Final BIC Exemption, 81 Fed. Reg. at 21,017–18. In the words of the SEC 

staff, “[y]ou can lose money buying an indexed annuity,” and, in the words of FINRA, indexed 

annuities are “anything but easy to understand,” id. at 21,017. “Given the risks and complexities 

of these investments, the Department . . . determined that indexed annuities are appropriately 

subject to the same protective conditions of the [BIC Exemption] that apply to variable 

annuities.” Id. at 20,018. As the Department explained:

These are complex products requiring careful consideration of their terms and risks. 

Assessing the prudence of a particular indexed annuity requires an understanding, 

inter alia, of surrender terms and charges; interest rate caps; the particular market

index or indexes to which the annuity is linked; the scope of any downside risk; 

associated administrative and other charges; the insurer’s authority to revise terms 

and charges over the life of the investment; the specific methodology used to 

compute the index-linked interest rate; and any optional benefits that may be 

offered, such as living benefits and death benefits. In operation, the index-linked 

interest rate can be affected by participation rates; spread, margin or asset fees; 

interest rate caps; the particular method for determining the change in the relevant

index over the annuity’s period (annual, high water mark, or point-to-point); and

the method for calculating interest earned during the annuity’s term (e.g., simple or 

compounded interest). Investors can all too easily overestimate the value of these 

contracts, misunderstand the linkage between the contract value and the index

performance, underestimate the costs of the contract, and overestimate the scope of 

their protection from downside risk (or wrongly believe they have no risk of loss). 

As a result, [r]etirement [i]nvestors are acutely dependent on sound advice that is 

untainted by the conflicts of interest posed by [a]dvisers’ incentives to secure the 

annuity purchase, which can be quite substantial. Both categories of annuities, 

variable and indexed annuities, are susceptible to abuse, and [r]etirement 
78

[i]nvestors would equally benefit in both cases from the protections of this 

exemption, including the conditions that clearly establish the enforceable standards 

of fiduciary conduct and fair dealing as applicable to [a]dvisers and [f]inancial 

[i]nstitutions.

Id. 

The Department further concluded that subjecting fixed indexed annuities to the 

conditions contained in the BIC Exemption, as opposed to PTE 84-24, would cost the industry an 

additional amount between “$34.0 million and $37.8 million over ten years,” of which “$14.1 

million [would be incurred] during the first year.” Regulatory Impact Analysis at 285–86, AR 

601–02. The Department also considered the risks posed by annuities, as compared to other 

insurance products and explained that “[i]f anything, the potential harm from conflicts of interest 

would be larger in the annuity market because purchasers of annuities are often older individuals 

who are less sophisticated in financial matters than the purchasers of commercial propertycasualty insurance.” Regulatory Impact Analysis 122, AR 438. NAFA is thus incorrect that “the 

commentary is devoid of any specifics to support” the conclusion regarding the complexity and 

risks associated with fixed indexed annuities, and incorrect that the Department failed to address 

how inclusion of fixed indexed annuities would affect the industry. Dkt. 31 at 72. 

NAFA is also incorrect that the Department ignored the concerns regarding disclosures 

and distribution methods raised in the notice of proposed rulemaking. To the contrary, as the 

commentary notes, “the final exemption [was] revised so that the conditions identified by 

commenters are less burdensome and more readily complied with by,” among others, 

“distributors of insurance products.” Final BIC Exemption, 81 Fed. Reg. at 21,018. The 

Department, for example, “revised the pre-transaction disclosure [condition] so that it [no longer] 

require[s] a projection of the total cost of the recommended investment, which commenters 

indicated would be difficult to provide in the insurance context.” Id. The Department also made 
79

adjustments to the “reasonable compensation” condition and provided additional guidance to 

address concerns raised by “the insurance industry regarding the application of the standard to 

insurance transactions.” Id. And, more generally, it explained that it “crafted the [BIC 

Exemption] so that it will work with, and compliment, state insurance regulations.” Id. at 

21,019. Some commenters did ask “about marketing or distribution affiliates and intermediaries 

that would not meet the definition of [f]inancial [i]nstitution” for purposes of the BIC 

Exemption, and “[o]ne commenter specifically requested that the definition . . . be revised to 

include all entities within an insurance group that arrange for the marketing of financial 

products.” Id. at 21,047. The Department declined to adopt this recommendation, noting that 

the operative definition relied on “well-established regulatory conditions and oversight.” Id. It 

did, however, revise the final rule to allow insurance marketing organizations—or “IMOs”—and 

others to petition for an individual exemption by showing, among other things, that they have the 

“ability to effectively supervise individual [a]dvisers’ compliance with the terms of th[e] 

exemption.” Id. The Court, accordingly, concludes that the Department adequately addressed 

the questions that it itself posed in the notice of proposed rulemaking. 

4. Workability and Rationality

In a series of arguments, NAFA further contends that subjecting fixed indexed annuities 

to the BIC Exemptions is unworkable and irrational. 

First, NAFA argues that the BIC Exemption cannot sensibly apply to sales of IRAs by 

independent insurance agents, who are not subject to the control of the insurance companies who 

will be required to execute the BIC Exemption contracts. To qualify for the BIC Exemption, an 

insurance company engaged in the sale of fixed indexed annuities to IRAs must enter a contract 

with the IRA owner stating that “it and its [a]dviser(s) act as fiduciaries”; agreeing that “it and its 
80

[a]dvisers will adhere to the” Impartial Conduct Standards; and warranting that it “has adopted 

and will comply with anti-conflict policies and procedures reasonably and prudently designed to 

ensure that [its] [a]dvisers adhere to the Impartial Conduct standards.” Final BIC Exemption, 81 

Fed. Reg. at 21,020, 21,025. According to NAFA, “roughly 60% of all” fixed indexed annuity 

sales are made by independent agents, and, in those cases, it is “impossible” for insurance 

companies to comply with the BIC Exemption requirements. Dkt. 31 at 75. To support this 

contention, NAFA relies on the declaration of Jack Marrion, the association’s director of 

research. Id. Marrion explains:

The average independent insurance agent who sells fixed annuities represents 

multiple insurance carriers. The BIC [E]xemption unrealistically requires the 

insurer to police all of the agents’ activities, including presentation of competitors’ 

products, and compensation paid to the agent by competitors, to ensure that the 

“best interests” of the consumer are being met, without regard to the “financial or 

other interests” of the agent or all the other insurers represented by that agent. This 

is simply not possible. Because independent agents almost always sell for more 

than one carrier, there is no practical way to establish a set commission across all 

sales. The end result will be many insurers exiting the independent agent channel, 

creating enormous compliance costs for insurers, and reducing the number of 

independent agents.

Dkt. 5-3 at 8 (Marrion decl. ¶ 30). 

The initial problem with this argument is that the Marrion declaration is not part of the 

administrative record, and NAFA fails to identify where in the record it (or any other 

commenter) raised these concerns. NAFA and others were given ample opportunity to comment 

and the comments submitted to the Court as part of the administrative record reflect a handful of 

concerns—but not this one—regarding the workability of assigning fixed indexed annuities to 

the BIC Exemption, rather than PTE 84-24.11 AR 42,376 & n.15. As a general rule, a party 

 

11 See, e.g., AR 39,749, 39,756 (Comment of the Am. Council of Life Insurers) (July 21, 2015) 

(asserting generally that the BIC Exemption “is incompatible with standard business practices in 

the financial service industry” and describing the “broad spectrum of distribution channels” for 
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“seeking judicial review of agency action [must] raise [its] issues before the agency during the 

administrative process in order to preserve those issues for judicial review.” Advocates for 

Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1148 (D.C. Cir. 

2005). This rule follows from the nature of judicial review of agency action: “[T]he courts are 

not authorized to second-guess agency rulemaking decisions,” and, instead, play the limited role 

of evaluating “whether the agency’s decision is arbitrary and capricious for want of reasoned 

decisionmaking.” Id. at 1150. Concerns raised in a declaration filed after the rulemaking was

completed fall outside the administrative record and, in the usual course, have no bearing on 

whether the agency’s decision—made without the benefit of the declaration—was arbitrary and 

capricious.12

Yet, even if the Court were to reach this issue, NAFA’s argument is unconvincing. As 

the Department explains in its reply brief, the BIC Exemption does not require that “an insurer 

supervising an agent . . . supervise the sale of other companies’ products”; it need “ensure only 

that recommendations and sales concern its own products meet the standards.” Dkt. 30 at 44. 

This contention, moreover, finds support in the commentary accompanying the final rule. There, 

 

annuity products, but nowhere arguing that insurance companies are unable to police their 

independent agents); id. at 40,619, 40,623 (Comment of the Comm. of Annuity Insurers) (July 

21, 2015) (arguing that the BIC Exemption “is not workable” in part because of the difficulty in 

determining “the reasonableness of one’s own compensation,” but again, not addressing 

insurance companies’ ability to police agents); id. at 47,077 (Comment of the Index Annuity 

Leadership Council) (Sep. 24, 2015) (arguing that “extending a fiduciary duty to an insurance 

company for the advice offered to a particular consumer by an independent is simply not 

feasible” because “the insurance company does not have the detailed knowledge of the particular 

consumer to act as a co-fiduciary”) (emphasis removed). 

12

 For similar reasons, the Department can hardly be faulted for failing to address comments that 

were not raised. See, e.g., Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) (“It 

is well established that issues not raised in comments before the agency are waived and [courts] 

will not consider them.”); Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 874 (D.C. Cir. 

2002).
82

the Department explained that the Impartial Conduct Standards do “not impose an unattainable 

obligation on [a]dvisers and [f]inancial [i]nstitutions to somehow identify the single ‘best’ 

investment for the [r]etirement [i]nvestor out of all the investments in the national or 

international marketplace, assuming such advice were even possible.” Final BIC Exemption, 81 

Fed. Reg. at 21,029. It further explained that the requirement that financial institutions adopt 

“anti-conflict policies and procedures” was left intentionally imprecise to leave sufficient 

“flexibility” for “[f]inancial [i]nstitutions to develop policies and procedures that are effective for 

their particular business models, while prudently ensuring compliance with their and their 

[a]dvisers’ fiduciary obligations and the Impartial Conduct Standards.” Id. at 21,034 (emphasis 

added). And the BIC Exemption itself requires only that the financial institution adopt “policies 

and procedures reasonably and prudently designed to ensure that its [a]dvisers adhere to the 

Impartial Conduct Standards.” Id. at 21,077 (emphasis added). The requirement that the 

financial institution act reasonably does not demand the impossible.

Second, NAFA argues that the BIC Exemption cannot sensibly be applied to annuities, 

because annuities are insurance contracts, and changes made to insurance contracts “ordinarily 

require prior approval from the insurance department in each state where the annuity is sold.” 

Dkt. 31 at 77. This troubles NAFA because the BIC Exemption permits financial institutions to 

include contractual terms waiving claims for punitive damages or rescission. See Final BIC 

Exemption, 81 Fed. Reg. at 21,020. As NAFA explains, this absence of regulation may cause it 

competitive injury because state insurance regulators are unlikely to permit insurance companies 

to include these provisions, thus providing a competitive advantage to the securities industry, 

which will be able to take advantage of the contractual provisions the BIC exemption allows. 

Dkt. 31 at 77–79. The Court has already rejected NAFA’s procedural argument that it was 
83

denied fair notice and an opportunity to comment on this clarification of the scope of the 

proposed rule. See supra at 75–76. Beyond that, the Court is also unpersuaded that the 

exceptions for punitive damages and rescission waivers are irrational. See State Farm, 463 U.S. 

at 52. To the extent any disparity in treatment exists, it is a product of state law, and the 

Department reasonably concluded that the BIC Exemption conditions should not preempt state 

law.

Third, NAFA posits that “it will be impossible for independent agents and insurers to 

comply with the” BIC Exception “without becoming investment advisers under [the federal] 

securities laws.” Dkt. 31 at 80. According to NAFA, this dilemma arises from the condition that 

advisers comply with the duties of loyalty and prudence; the notion that these duties create an 

obligation to recommend any and all preferable retirement investments, which may include 

securities; and the legal requirement that those who provide advice regarding the purchase of

securities register under the Investment Advisors Act of 1940, 54 Stat. 847, 15 U.S.C. § 80b et 

seq., or “comparable state laws.” Dkt. 31 at 81. In support, NAFA relies on the Marrion 

declaration, which asserts that “insurance agents who are not currently dually licensed under 

securities laws will be forced to register as investment advisers in order to provide the kind of 

investment advice required under the BIC [E]xemption,” Dkt. 5-3 at 16 (Marrion decl. ¶ 55), and 

a “Securities Bulletin” from the State of Iowa, which provides guidance regarding the advice that 

an insurance-only agent may provide without obtaining an investment adviser or securities agent 

license under Iowa law.13

Although observing that the “Securities Bulletin” is not part of the administrative record, 

 

13

 See Susan E. Voss, Insurance Commissioner of Iowa, Securities Bulletin 11-S-1 (June 24, 

2011), available at http://www.iid.state.ia.us/sites/default/files/commissioners_bulletins/2011/06/

24/bulletin_11_s_1_re_securities_licensed_persons_jun_13615.pdf.
84

the Department does not object to the Court’s consideration of it “as a matter of judicial notice.” 

Dkt. 30 at 46 & n.47. Moreover, although NAFA did not raise this argument in comments 

responding to the notice of proposed rulemaking, at least one commenter briefly raised the issue. 

See Comment of The Committee of Annuity Insurers, AR 40,622–23. The Court will, 

accordingly, consider NAFA’s argument on the merits.

NAFA’s concern is based on a false premise: Nothing in the BIC Exemption—or PTE 

84-24— requires that insurance-only agents provide IRAs or other plans with advice regarding 

the purchase of securities. To the contrary, the final rule expressly disclaims any requirement 

that a fiduciary “somehow identify the single ‘best’ investment for the retirement investor out of 

all the investments in the national or international marketplace, assuming such advice were even 

possible.” Final BIC Exemption, 81 Fed. Reg. at 21,029. The fiduciary’s obligation is “to give 

advice that adheres to professional standards of prudence, and to put the [r]etirement [i]nvestor’s 

financial interests in the driver’s seat, rather than the competing interests of the [a]dviser or other 

parties.” Id. It would hardly be prudent, however, to provide advice in violation of federal or 

state laws, or outside the scope of the adviser’s acknowledged area of expertise. Nor can the rule 

reasonably be construed to require advisers to violate federal or state law. Any doubt on this was 

put to rest by the Department’s representation to the Court at oral argument that the duty of 

prudence does not, in the Department’s view, require insurance-only agents to do so; to the 

contrary, “[p]rudence would actually forbid them from recommending things outside their 

expertise.” Tr. of Oral Arg., Dkt. 41 at 109.

Finally, NAFA’s reliance on American Equity Investment Life Insurance Co. v. SEC, 613 

F.3d 166 (D.C. Cir. 2009), is misplaced. In that case, the D.C. Circuit considered an SEC rule 

that had the effect of subjecting fixed indexed annuities, as opposed to traditional fixed annuities, 
85

to regulation as securities under the Securities Act of 1933. Although the Court of Appeals 

struck down the regulation for failing adequately to consider the “efficiency, competition, and 

capital formation effects” of the regulation, as required by the securities laws, it held that the rule

satisfied both steps of the Chevron analysis. 613 F.3d at 176. As the Court explained, a fixed 

indexed annuity is a “hybrid financial product that combines some of the benefits of fixed 

annuities with the added earning potential of a security.” Id. at 168. Fixed indexed annuities

thus “appeal to the purchaser not on the usual insurance basis of stability and security but on the 

prospect of ‘growth’ through sound investment management,” and, as with securities, “there is a 

variability in the potential return that results in a risk to the purchaser.” Id. at 174. Because 

fixed indexed annuities, accordingly, “involve considerations of investment not present in the 

conventional contract of insurance,” the Court of Appeals held that the SEC’s conclusion that 

fixed indexed annuities should not be treated as annuity contracts exempt from the 1933 Act 

“was reasonable.” Id. For similar reasons, the same conclusion follows here: It was not 

unreasonable for the Department to conclude that fixed indexed annuities are more appropriately 

subject to the exemption conditions applicable to variable annuities than to the less demanding 

conditions applicable to fixed rate annuities.

5. Cost/Benefit Analysis

NAFA also argues that the Department failed to consider the marginal costs and marginal 

benefits of regulating fixed indexed annuities through the BIC Exemption, rather than through 

PTE 84-24. NAFA is incorrect on both counts. First, the Department did, in fact, calculate the 

additional cost that the fixed indexed annuities industry would likely incur by complying with 

the BIC Exemption conditions, as opposed to the conditions contained in PTE 84-24. Regulatory 

Impact Analysis 285–86, AR 601–02. Second, it also assessed the marginal benefits, concluding 
86

that the BIC Exemption provides greater protection than PTE 84-24 and that the complexity and 

risks posed by fixed indexed annuities warranted that greater protection. Final BIC Exemption,

81 Fed. Reg. at 21,017–18. As the Department explained, both variable and indexed annuities 

“are susceptible to abuse, and [r]etirement [i]nvestors would equally benefit in both cases from 

the protections of this exemption, including the conditions that clearly establish the enforceable 

standards of fiduciary conduct and fair dealing as applied to [a]dvisers and [f]inancial 

[i]nstitutions.” Id. at 21,018.

Although NAFA is correct that ERISA regulations must be “necessary or appropriate,”

29 U.S.C. § 1135, which demands “at least some attention to cost,” Michigan v. EPA, 135 S. Ct. 

2699, 2707 (2015), this does not mean that the agency must “conduct a formal cost-benefit 

analysis in which each advantage and disadvantage is assigned a monetary value,” id. at 2711; 

see also Vill. of Barrington, 636 F.3d at 670–71 (APA’s arbitrary and capricious standard, 

standing alone, does not “require[] an agency to engage in cost-benefit analysis.”) Here, the 

Department actually quantified the marginal cost of compliance and concluded that the benefits 

of including fixed indexed annuities in the BIC Exemption justify that cost. Nothing more is 

required under ERISA or the APA.

NAFA’s alternative argument fares no better. Relying on Executive Order 12,866, 58 

Fed. Reg. 51,735 (Sept. 30, 1993), NAFA asserts that the Department failed to “assess both the 

costs and the benefits of the intended regulation” and to “propose or adopt a regulation only upon 

a reasoned determination that the benefits of the intended regulation justify its costs.” Dkt. 32 at 

63. That contention, however, ignores other language in the Executive Order that expressly 

disclaims any intention to “create any right or benefit, substantive or procedural, enforceable at 

law or equity by a party against the United States.” 58 Fed. Reg. at 51,735.
87

* * *

Apart from each of the specific arguments addressed above, a common theme underlies 

much of NAFA’s brief: The conditions required to qualify for the BIC Exemption make 

commission-based compensation sufficiently unattractive that insurance companies may decline 

to take advantage of the exemption. According to NAFA, this would mean that insurance 

companies would need to restructure their distribution systems at enormous cost; it would mean

that independent agents would suffer as insurance companies opt to sell annuities through 

captive agents or other mechanisms; and it would mean that the rules would cause substantial 

market inefficiency. But those concerns were not lost on the Department, which concluded that 

the risk that retirement investors would suffer significant losses due to conflicted investment 

advice raised even greater concerns. The Department recognized, for example, that some 

businesses “may need to undertake major changes to adviser incentive structures and loyalties, 

and/or lose market shares to businesses more prepared or willing to align adviser and investor 

interests and honor fiduciary norms.” Regulatory Impact Analysis 309, AR 625. It also 

concluded, however, that retirement investors “could lose 6 to 12 and as much as 23 percent of 

the value of” their savings “by accepting conflicted advice.” Final Fiduciary Definition, 81 Fed. 

Reg. at 21,949. Moreover, in light of the United Kingdom’s experience with similar reforms, the 

Department determined that it is unlikely that most advisers will leave the market, and that 

consumer access to investment advice would not be adversely affected by any departures from 

the market. See AR 393–94. This is not an easy balance to strike. The only question for the 

Court, however, is whether the Department’s decision was a reasonable one. It is not the role of 

the Court to substitute its judgment for that of the Department regarding matters of policy and 
88

not law. See, e.g., Judulang, 132 S. Ct. at 483; Brand X, 545 U.S. at 1003; State Farm, 463 U.S. 

at 43. Applying this standard, the Court concludes that the Department acted lawfully.

F. Regulatory Flexibility Act

Finally, NAFA challenges the rule under the Regulatory Flexibility Act (“RFA”), 

codified in relevant part at 5 U.S.C. § 604. See Dkt. 31 at 86–87. The RFA “obliges federal 

agencies to assess the impact of their regulations on small businesses.” U.S. Cellular Corp. v. 

FCC, 254 F.3d 78, 88 (D.C. Cir. 2001). In particular, it requires agencies to accompany each 

final rule with a “final regulatory flexibility analysis.” 5 U.S.C. § 604. This analysis may be 

performed “in conjunction with or as part of” any other regulatory analysis—for example, a final 

Regulatory Impact Analysis (“RIA”). Id. § 605(a). The analysis must also address certain 

subject matter areas prescribed by § 604. In this case, NAFA contends that the Department’s 

analysis violated § 604 by failing to include: 

(2) a statement of the significant issues raised by the public comments in response 

to the initial regulatory flexibility analysis, [and] a statement of the assessment of 

the agency of such issues . . . ;

(5) a description of the projected reporting, recordkeeping and other compliance 

requirements of the rule, including an estimate of the classes of small entities which 

would be subject to the requirement . . . ; [and]

(6) a description of the steps the agency has taken to minimize the significant 

economic impact on small entities . . . , including a statement of the factual, policy, 

and legal reasons for selecting the alternative adopted in the final rule . . . .

§ 604(a); see Dkt. 31 at 86 (identifying these portions of § 604(a) as the basis for the challenge). 

The requirements of § 604, however, are “[p]urely procedural.” U.S. Cellular Corp., 254 

F.3d at 88. Although the RFA “directs agencies to state, summarize, and describe” their 

findings, it does not “in and of itself” impose “substantive constraint[s] on agency 

decisionmaking.” Nat’l Tel. Co-op. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009). The only 
89

question upon judicial review, therefore, is whether the agency’s analysis “addressed all of the 

legally mandated subject areas.” Id.; see also, e.g., N.C. Fisheries Ass’n, Inc. v. Gutierrez, 518 

F. Supp. 2d 62, 95 (D.D.C. 2007) (“[A] court reviewing a[n] RFA-based challenge does not 

evaluate whether the agency got the required analysis right, but instead examines whether the 

agency has followed the procedural steps laid out in the statute.”). To survive judicial review, an 

agency need only put forth a “reasonable, good-faith effort” to comply with the Act. U.S. 

Cellular Corp., 254 F.3d at 88. 

Here, the Department made at least a “reasonable, good-faith effort” to address the three 

subject areas described above, as can be seen in the Department’s 382-page final Regulatory 

Impact Analysis. 

First, the RIA satisfies the relevant portions of § 604(a)(2). It contains a “statement of 

the significant issues” raised by small businesses in public comments in response to the initial 

RIA. 5 U.S.C. § 604(a)(2). It identifies three such issues: the advisability of the “education 

carve-out,” the “seller’s carve-out,” and the “best-interest contract.” See Regulatory Impact 

Analysis 256, AR 572. In addition, the RIA describes the Department’s “assessment” of these 

issues, including the Department’s analysis of and responses to public comments. See 5 U.S.C. 

§ 604(a)(2). Just some examples include RIA section 2.9.1 (pp. 59–65, AR 375–81) (assessing 

comments regarding the “education” and “seller’s” carve-outs); RIA section 2.9.2.1 (pp. 68–72, 

AR 384–88) (describing the best-interest contract); and RIA sections 7.4–7.10, 7.12 (pp. 268–86, 

288–90, AR 584–602, 604–06) (assessing proposed alternatives to the final BIC exemption and 

explaining why the Department declined to adopt them). Although only some of this analysis 

appears under the RIA’s “Regulatory Flexibility Act” heading, that fact is immaterial. See 5 

U.S.C. § 605(a). What matters is that the Department published the analysis at all—not whether 
90

the analysis appeared in any “particular mode of presentation.” Nat’l Ass’n of Mortg. Brokers v. 

Bd. of Govs., 773 F. Supp. 2d 151, 178 (D.D.C. 2011).

NAFA’s argument to the contrary is unpersuasive. Its opening brief provides no 

argument at all as to why the RIA is insufficient to satisfy § 604(a)(2). See Dkt. 31 at 86. It then 

clarifies in its reply brief that it believes the Department violated § 604(a)(2) by “fail[ing] to 

provide any reasoned basis for its decision to subject [fixed indexed annuities] to the [bestinterest contract] (rather than PTE 84-24).” Dkt. 32 at 76. That is not correct. The Department 

expressly considered NAFA’s proposed alternative in section 7.10 of the RIA, which is labeled 

“Allowing Fixed-Indexed Annuities to be Covered under PTE 84-24.” See Regulatory Impact 

Analysis 282–86, AR 598–602. That section details the comments the Department received 

regarding that decision, and explains how the agency changed the final rule in response. See id. 

Although NAFA may disagree with the substance of the Department’s analysis, that argument is 

not cognizable under the “purely procedural” RFA. Nat’l Tel. Co-op. Ass’n, 563 F.3d at 540.

Second, the RIA satisfies the relevant portions of § 604(a)(5). It provides an extensive 

“description of the projected reporting, recordkeeping and other compliance requirements of the

rule.” 5 U.S.C. § 604(a)(5). Section 5 of the RIA describes the “compliance cost[s] associated 

with the final rule and exemptions” in detail for many types of affected entities, including 

insurance agents. See Regulatory Impact Analysis 206–52, AR 522–68. Section 6.5 summarizes 

those findings. See id. at 257–60, AR 573–76. In addition, the RIA includes “an estimate of the 

classes of small entities which will be subject to the requirement.” 5 U.S.C. § 604(a)(5). Section 

5.2 catalogues the types of all firms the Department believed would be affected, see Regulatory 

Impact Analysis 211–18, AR 527–34, and section 6.2 revisits that analysis for the specific 
91

purpose of estimating which of those firms are “small entities” under the Act, id. at 254–56, AR 

570–72. 

NAFA’s objection appears to be that, while the RIA does describe compliance 

requirements for “insurance agents” in general, it never describes the compliance requirements 

for the subset of those agents that sell fixed indexed annuities. See Dkt. 31 at 72. That is 

incorrect. The Department sets forth the compliance requirements applicable to NAFA’s 

members in section 6.5. See Regulatory Impact Analysis 257, AR 573–75. And the Department 

did in fact consider the compliance costs specific to fixed indexed annuity sellers. See id. at 285, 

AR 601 (“The Department estimates that providing relief for fixed-index annuities under PTE 

84-24 instead of under the [BIC Exemption] would have reduced compliance costs by between 

$34.0 million and $37.8 million over ten years.”). More importantly, NAFA cites no authority 

requiring that the RFA analysis describe compliance costs at all, let alone costs for such a 

granular subset of affected entities. See Dkt. 31 at 72; see also Dkt. 32 at 86. Indeed, the statute 

requires only a “description of the projected . . . compliance requirements of the rule” and “an 

estimate of the classes of small entities which will be affected.” 5 U.S.C. § 604(a)(5) (emphasis

added). The Department has made a good-faith effort to provide both. 

Finally, the RIA satisfies the relevant portions of § 604(a)(6). It describes “the steps the 

agency has taken to minimize the significant impact on small entities.” 5 U.S.C. § 604(a)(6). 

For example, part of RIA section 5.3.1 identifies the changes made to the final rule intended to 

reduce the cost of compliance. See Regulatory Impact Analysis 224–31, AR 540–47. And 

section 7 of the RIA describes at length the “factual, policy, and legal reasons for selecting the 

alternative adopted in the final rule,” 5 U.S.C. § 604(a)(6), including analysis of fifteen proposed 

regulatory alternatives and the Department’s reasons for rejecting them, see Regulatory Impact 
92

Analysis 262–98, AR 578–614. One of those regulatory alternatives considered was the 

possibility of regulating fixed indexed annuity sellers under PTE 84-24 rather than the BIC

Exemption, see Regulatory Impact Analysis 282–86, AR 598–602, which NAFA calls “the most 

significant change” to the BIC Exemption, Dkt. 32 at 76. 

At bottom, NAFA’s arguments conflate the RFA with substantive arbitrary-andcapricious analysis. They are different. See Nat’l Tel. Co-op. Ass’n, 563 F.3d at 540. And an 

RFA challenge requires “more than a redressing of [a plaintiff’s] earlier Chevron and APA 

claims.” Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir. 2000). Whether or not 

NAFA agrees with the Department’s analysis, there is little question that NAFA put forth at least 

a “reasonable, good-faith effort” to perform it. “The RFA requires no more.” Id.

CONCLUSION

For the reasons discussed above, the Court will deny NAFA’s motions for a preliminary 

injunction and for summary judgment and will grant the Department’s cross-motion for summary 

judgment. A separate order will issue.

 /s/ Randolph D. Moss 

 RANDOLPH D. MOSS 

 United States District Judge 

Date: November 4, 2016