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FACC v. DOL Supplemental Brief

The Proposed Rule proves an important point, i.e., the DOL’s goal has remained unchanged over the past 15 years of rulemaking. While the DOL will likely insist that the Proposed Rule is different from the New Interpretation because the DOL is repealing the five-part test, that is an immaterial distinction. In fact, the Proposed Rule confirms, as Plaintiffs have correctly pointed out all along, the DOL does not respect the Fifth Circuit’s decision and will do everything in its power to circumvent Congress’s definition of an investment advice fiduciary in ERISA. The Magistrate Judge largely embraced a benign explanation of the problems Plaintiffs identified in the New Interpretation. The Court should not put on blinders to similarly indulge the DOL’s fanciful reading of ERISA and the five-part test. What the DOL proposed explicitly in the 2016 Fiduciary Rule was struck down by the Fifth Circuit, and a similar fate surely awaits its latest Proposed Rule if adopted. In the meantime, the Court should vacate the New Interpretation in its entirety.  

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