In this article, co-authors Tess Gee and Nicholas Wamsley* provide an overview of the lawsuits filed by various industry group plaintiffs seeking to challenge the Department of Labor's (DOL's) final conflict of interest regulation and related exemptions (Fiduciary Rule) and a synopsis of the positions advocated by both sides. "DOL's jurisdiction to issue the Fiduciary Rule bears the brunt of the plaintiffs' attacks, with the complaints accusing DOL of defining 'fiduciary' in the new investment advice regulation in a manner contrary to ERISA and congressional intent," Gee and Wamsley explain. The arguments center on the question of whether DOL's interpretation of "investment advice" is entitled to judicial deference and whether the agency has overstepped its authority in seeking to regulate IRAs through the BIC Exemption, underestimated the cost of compliance, and infringed upon the financial industry's freedom of speech. Since publication of the article, the first court to rule on the dispute, the District Court for the District of Columbia, issued an opinion in DOL's favor and upheld the Fiduciary Rule in all respects. Two other courts have yet to decide the issue. As Gee and Wamsley write, "Regardless of how the lower courts rule, given the gravity of the impact on the financial services industry and DOL's deep commitment to the rule, these issues will almost certainly be decided by the Supreme Court."

*Former Miller & Chevalier attorney