"DOL Fiduciary Rule Challengers Leave Nothing To Chance"Law360
Erin Sweeney commented on a recently filed lawsuit challenging the U.S. Department of Labor's (DOL's) final fiduciary rule. The lawsuit, filed by the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association and six other national and local industry groups, challenges the rule's imposition of a fiduciary duty on financial professionals who advise retirement account savers, arguing that the DOL overstepped its authority and the rule will harm retirement savers. One notable aspect of the suit is the choice of venue, Sweeney said, adding that "I believe that it is absolutely very thoughtful and very purposeful to have filed in the Northern District of Texas." While Texas courts, and the Fifth Circuit, have a ready reputation as conservative courts perhaps more willing to scrutinize government agency rulemaking, the Northern District offers a particular benefit, Sweeney said. For one, it granted an injunction against another DOL rulemaking, expanding the definition of "spouse" under the Family and Medical Leave Act to include same-sex spouses, in March 2015. "That is exactly why the Chamber of Commerce picked the Northern District of Texas, because they liked that decision. That's the path that they are trying to follow."
The absence of certain organizations from the lawsuit may indicate more to come. Conspicuously absent from the complaint was the American Council of Life Insurers (ACLI), which has voiced opposition to the rule, Sweeney noted. "A lot of people thought ACLI was going to be first out of the box on this," Sweeney said, suggesting the organization could be hanging back to file its own lawsuit in another district, a strategy that had some success in challenging the Affordable Care Act.