Skip to content

FACC Objections & Brief in Support of Objections

Importantly, vacatur of the scope recommended by the Magistrate Judge frustrates the DOL’s express purpose in adopting the New Interpretation, which set forth the DOL’s “final interpretation of when advice to roll over [Title I] Plan assets to an IRA will be considered fiduciary investment advice under Title I and the Code” (AR 1), and will significantly limit the effect of the New Interpretation. It does not, however, go far enough. Plaintiffs raised multiple other grounds on which the New Interpretation is fatally inconsistent with ERISA and the five-part test. Allowing the remainder of the New Interpretation to survive would leave in place significant and unjustified burdens on the Plaintiffs and similarly situated parties, who would still be at risk of being considered fiduciaries under ERISA or the Code where they never were before and never would be under the common law meaning of the term fiduciary. The DOL’s attempt to broaden the definition of fiduciary to encompass ordinary salespeople who only provide advice incidental to the sale of products cannot be squared with the holding of Chamber of Commerce. In concluding otherwise, the Magistrate Judge’s Recommendations regularly mischaracterize or minimize Plaintiffs’ arguments, ignore or misinterpret the language of the New Interpretation, and disregard the unequivocal holdings of the Fifth Circuit regarding Congress’ intent in using the term fiduciary in ERISA. This was plainly erroneous.

Leave a Reply