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. Five of our recent Alerts may be found here, here, here, here, and here. Because of the extensive background laid out in our prior Alerts, it is not repeated here.
When we last left what looked like it could be a NeverEnding Story that started at least three presidential administrations ago, the DOL had filed a motion with the Fifth Circuit “to dismiss its appeals” in Federation of Americans for Consumer Choice, Inc. v. U.S. Department of Labor and American Council of Life Insurers v. U.S. Department of Labor. Last week, on March 12, 2025, the District Court for the Eastern District of Texas expressly approved the unopposed motion in the FACC case to vacate the Retirement Security Rule.
So there you have it. When we reported in November 2025 on the DOL’s motion to dismiss its appeals, we stated that “[t]he Never-Ending Story may well have ended.” Well, it now indeed definitively has.
But the impact of the DOL’s initiative 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, indications (including in the DOL’s Regulatory Agenda) are that the DOL may propose further revisions. However, it would not be surprising if any upcoming activity is not in furtherance of, and may even be in some ways contrary to, prior regulatory efforts.
There are now decisions to be made by financial services institutions about next steps. Will some institutions want to continue complying 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.
As one further cautionary note, we do not know for sure what will happen under future administrations. Maybe, just maybe, the NeverEnding Story will find its way to a sequel.
We at The Wagner Law Group stand ready to advise on these or any other matters arising under the fiduciary provisions of ERISA.
