The judge overseeing the lawsuit filed by nine plaintiffs in Texas against the DOL’s fiduciary rule denied an emergency request by the groups to stop the rule from taking effect while they take their case to the U.S. Court of Appeals for the Fifth Circuit.
Judge Barbara M.G. Lynn ruled that the plaintiffs – which include the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association and the Financial Services Institute – failed to satisfy the requirements for an injunction pending appeal.
The decision came two days before Alexander Acosta is scheduled for his verification hearing to become secretary of Labor.
Lynn said that the court considers four factors in determining whether to grant an injunction pending appeal: the likelihood that the moving party will ultimately prevail on the merits of the appeal; the extent to which the moving party would be irreparably harmed by denial; the potential harm to opposing parties if the injunction is issued; and the public interest.
The court, Lynn argued, “has already found plaintiffs’ position on the merits unpersuasive, two other district courts have reached the same conclusion in similar cases, and neither court has enjoined enforcement of the rules.”
Plaintiffs, Lynn said, “have not presented any arguments that would cause the court to question its decision or persuade it that the Fifth Circuit is likely to reach a contrary conclusion.”
The argument that plaintiffs would “suffer irreparable harm without an injunction because they will face unrecoverable compliance costs due to the impending effective date of the statute” also did not hold water, she said.
“Plaintiffs indicate they have incurred compliance costs before and throughout this litigation, and that the industry has already done much preparing to comply,” Lynn wrote in her ruling.
“Compliance costs already incurred cannot constitute the irreparable harm Plaintiffs must show because the standard is inherently prospective.”
Indeed, Lynn opined that plaintiffs’ “own statements suggest the circumstances of the new rules make injunctive relief unnecessary,” noting statements made by SIFMA Associate General Counsel Lisa Bleier that the industry “will not incur certain compliance costs until the rules actually become applicable. Her declaration also states industry members have not committed to whether they will use BICE [the Best Interest Contract Exemption] or stop using the commission-based compensation model altogether, and that many firms have not made other irreversible compliance decisions.”
In short, Lynn wrote, “it appears that the industry is waiting to see if the rules will become applicable, and if they do, the industry apparently will take the requisite actions.”
Plaintiffs also failed to prove that the public interest favors granting an injunction, Lynn wrote.
“Throughout the rulemaking process and this litigation, the parties, the industry and commenters disputed whether the rules are in the public interest,” she said.
“The premise of the DOL’s rules are that those who provide investment advice to ERISA and IRA plans have conflicts of interest, and absent further protection, the public will be harmed. During the rulemaking, the DOL concluded that consumers needed protections from conflicted advice with respect to fixed indexed and variable annuities due to their complexity and risk.”
The court, Lynn stated, “found that the DOL acted reasonably in so concluding.”