By Andrew Oringer
In prior Alerts, we have chronicled in some detail recent developments relating to the so-called Amended Fiduciary Rule under the Employee Retirement Income Security Act of 1974 (“ERISA”) and its later incarnation, the Retirement Security Rule. Four of our recent Alerts may be found here, here, here and here.
Because of the background contained in our prior Alerts, we will not attempt in this Alert to repeat the comprehensive background. When we last left what looked like it could be a Never-Ending Story that started at least three presidential administrations ago, (i) the DOL lost two cases involving the Retirement Security Rule in Texas at the district-court level, Americans for Consumer Choice, Inc. v. U.S. Department of Labor and American Council of Life Insurers v. U.S. Department of Labor, (ii) the Biden-era DOL appealed the cases to the Fifth Circuit, and (iii) the DOL under Trump II asked the Fifth Circuit if it could have more time to consider whether to continue those appeals.
We now have the answer to whether the DOL wishes to continue the appeals. Yesterday, November 24, 2025, the DOL filed a motion with the Fifth Circuit “to dismiss its appeals” in the Consumer Choice and ACLI cases. The motion expressly stated that the appellees in Consumer Choice “do not oppose this motion” and that the appellees and intervenors-appellees in ACLI “consent to this motion”.
So there you have it. The Never-Ending Story may well have ended. But its impact may live on. As examples, the “best interest” regulation of the Securities and Exchange Commission draws significantly from the now-defunct Amended Fiduciary Rule; various states have pursued and may continue to pursue best-interest initiatives regarding the conduct of financial-services organizations; and the market for investment services may have shifted in some quarters to a more fiduciary-based model, which is a trend that may continue here and there even in the absence of the Retirement Security Rule. In addition, we do not know for sure whether the DOL will attempt to tweak the existing 1975 fiduciary rule or what will happen under future administrations.
So now there are decisions to be made by financial-services institutions about next steps. Will some institutions want to continue with compliance with the conditions of whatever is left of Prohibited Transaction Class Exemption 2020-02, whether out of concern about fiduciary status or an affirmative willingness to act as a fiduciary? And, for those institutions that do not believe they are fiduciaries and do not wish to be fiduciaries, maybe, just maybe, it will finally be time to consider whether to dismantle the compliance procedures they have laboriously constructed, if they have not already started that consideration.
We at The Wagner Law Group stand ready to advise on these or any other matters arising under the fiduciary provisions of ERISA.
