Court Rebuffs Efforts to Appeal Decision Vacating Fiduciary Rule

The Fifth Circuit Court of Appeals today blocked third-party efforts to appeal its March ruling that vacated the Department of Labor’s fiduciary rule in its entirety. A group of state attorneys general and AARP had filed petitions to be granted standing to appeal the decision. DOL declined to appeal the ruling by the April 30 deadline, making it highly unlikely that the Fifth Circuit ruling will now be overturned.

The rule, which was finalized under the Obama administration, had greatly expanded the definition of “fiduciary” under the Employee Retirement Income Security Act and the Internal Revenue Code. The rule required banks and other financial institutions to reassess whether and how they will continue to market and sell their retirement products and services to employee benefit plans and to individual retirement accounts.

However, the Fifth Circuit panel found that the rule’s new definition of fiduciary conflicts with ERISA. It also ruled that DOL did not meet the “reasonableness” tests required under so-called Chevron deference, under which courts may defer to reasonable agency interpretations of statutes, and under the Administrative Procedures Act, which governs agency rulemaking. With the DOL rule now dead, the Securities and Exchange Commission has commenced its own rulemaking on standards for broker-dealers and investment advisers, and ABA is following that process closely. For more information, contact ABA’s Tim Keehan.