AARP and Attorney Generals to Challenge 5th Circuit Decision to Vacate Fiduciary Rule

As detailed in several filings today, April 26, 2018, with the 5th Circuit Court of Appeals, the AARP and attorneys general from Oregon, California, and New York have requested that they be allowed to intervene in the DOL’s fiduciary rule case. In mid-March, the 5th Circuit vacated in its entirety the DOL’s fiduciary rule, stating that the DOL had exceeded its authority under ERISA. Defendants were given until Monday, April 30, to appeal the ruling.

Because the DOL has given no sign that they intend to appeal, AARP and the attorneys general have requested that the court allow them to intervene. The motions filed by AARP and the states also request an “en banc” rehearing of the case should their requests to intervene be approved by the court. This “en banc” rehearing would involve review by the full panel of 5th Circuit judges, whereas the March ruling vacating the fiduciary rule was decided by a three judge panel.

Perhaps further complicating an already complex issue, the Securities and Exchange Commission (SEC) released their own proposed “best interest” regulations and disclosure requirements earlier this week, targeted mainly at broker-dealers. Should the DOL’s rule be upheld on appeal and the SEC’s proposed regulations put in place, the potential exists to have two unique sets of rules, greatly complicating compliance.