While it may have been simply a formality once the U.S. Department of Labor (DOL) advised the Court of Appeals for the Fifth Circuit that it was withdrawing its appeal of two Texas District Court decisions that, taken together, had invalidated the Retirement Security Rule (formerly often referred to as the amended fiduciary rule) under the Employee Retirement Income Security Act of 1974 (ERISA), considerable attention was paid to the recent action by the two District Courts in officially implementing the orders, including a recent client alert by The Wagner Law Group on the subject. One of the issues with respect to which advisors and other practitioners and interested parties have speculated is the action, if any, that the DOL will take later this year when (according to its regulatory agenda) it is scheduled to address the issue; but, until that time, the short-term issue of the immediate effect of those District Court decisions has been addressed by the DOL in guidance issued last week, on March 18, 2026.
In that guidance, the DOL republished Prohibited Transaction Exemption 2020-02 in its original unamended form as well as the five-part test for defining investment advice fiduciary that has been in effect for decades. In a somewhat surprising move, the DOL, in an attempt to eliminate any ambiguity as to precisely what was being invalidated, also withdrew in its entirety the 2020 preamble to the amended fiduciary rule (even though the courts had thus far only invalidated a portion of it), which contained expansive and controversial interpretations of the five-part test. These DOL actions may also provide the Trump Administration with a clean slate on which to address what it now wants the fiduciary rule to say. The DOL treated each of these actions as ministerial in nature (and there was thus no notice-and-comment period under the Administrative Procedure Act).
This publication by the DOL may well not be its final guidance with respect to investment-advice fiduciaries (as noted, the DOL’s regulatory agenda indicates that further changes are upcoming). The Wagner Law Group stands ready to keep you advised of future guidance by the DOL on this important issue and to answer any questions you may have regarding ERISA’s fiduciary provisions or any other aspect of ERISA.
Barry Salkin concentrates his practice in ERISA and employee benefits law. He has significant expertise drafting, amending and negotiating various ERISA and employee benefit plans, including defined benefit pension plans, profit sharing plans, 401(k) plans, as well as qualified and non-qualified deferred compensation programs.
