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Most Read Contributor in United States, September 2018
Forty House Democrats urged DOL Office of Regulations and
Interpretations ("ORI") Employee Benefits Security
Administration Acting Secretary Edward Hugler to reconsider the
DOL's proposed delay of the fiduciary rule, as mandated by
President Donald J. Trump in a February 3, 2017 Memorandum (see
previous coverage).
In their letter to Mr. Hugler, the lawmakers stated that the DOL
"promulgated the fiduciary rule after conducting a thorough,
thoughtful and transparent multi-year process." They
emphasized the extensive preparation and immediate need for the
final rule:
"[T]he final fiduciary rule is the product of more than six
years of research, consideration of more than 300,000 comments,
four days of hearings, and hundreds of meetings. It is unacceptable
that now – roughly a month before implementation of the final
rule is scheduled to begin – the DOL is carelessly proposing
to delay it. . . . We believe it is imperative the final rule be
implemented on schedule and without delay."
The letter cited industry support for the fiduciary rule, and
asserted that "nine in ten Americans reportedly agree with the
DOL's rule." In addition, the Democrats argued that
the "retirement savings landscape has changed dramatically
since the rule was last meaningfully updated in 1975," and
that the DOL "provided appropriate relief that mitigates
industry concerns and compliance costs." Moreover, "three
separate lawsuits" found not only that the DOL "has the
statutory duty to promulgate the rule under the
Employee Retirement Income Security Act . . . but that its rule
is a reasonable, workable solution that protects America's
retirement savers."
Commentary
One can take issue with any number of the assertions made in
this letter, but the most obviously questionable assertion is that
the financial industry supports the rule. It is true that those
firms that believe that the rule benefits them may support it, but
if it were true that the industry generally supported the rule,
then there would not be three lawsuits and the rule would not have
been delayed. Likewise, that a court found that DOL had authority
to adopt the rule is actually quite different from asserting that
the court could find that the DOL had a duty to adopt the rule.
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The Situation: In what may indicate a sea change in terms of who the Department of Justice ("DOJ") is willing to pursue in False Claims Act cases, a private equity firm has been named as a co-defendant in a False Claims Act complaint, along with one of its portfolio companies.
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