Does DOL Fiduciary Rule Create a New Right to Sue?

As far as the fate of the lawsuits, Fleckner is reluctant to handicap the at-issue rule's ultimate fate.

"I don't think anyone knows where the courts are going to come down," said Fleckner in an interview with BenefitsPro.com.

"I can imagine both circumstances — the courts striking down the rule or sustaining it," he added. "The DOL wasn't surprised by the legal challenges. They've given a lot of thought in advance of the litigation as to how they would defend this rule — that's part of the reason they took five years to draft a final rule they thought would have the best chance of standing up in court."

Notwithstanding the impossibility of predicting how different courts will rule on the myriad claims made by myriad plaintiffs, Fleckner is certain of one aspect of the allegations.

"The DOL has created a new private right of action," said Fleckner, who led Goodwin's successful defense of an excessive fee claim against John Hancock in the 3rd Circuit Court of Appeals in 2014, and was a signatory to an amicus brief filed with the Supreme Court on behalf of the Securities Industry Financial Markets Association in Tibble v. Edison.

Fleckner, who disclosed no legal relationship with any of the parties in the cases against the Labor Department, says two aspects of the rule's Best Interest Contract Exemption create what in his opinion is a new private right of action.

Under existing securities laws, investors have the right to, and do sue IRA providers under state law.

But prior to the finalization of the at-issue rule, those providers were allowed to issue contracts to investors that waived their right to bring class action claims.

With the Best Interest Contract Exemption, providers can no longer include a contractual waiver releasing investors from the right to bring class actions.

That seemingly simple provision is a game changer, says Fleckner.

"DOL absolutely is intending to rely on private litigation to enforce the new rule," he said. "They wanted to craft an enforceable regulation, and they want the prospect of class actions to be a meaningful check. The agency is resource constrained. They can't enforce everything on their own."

Beyond prohibiting waivers on class actions, Fleckner says the core design of the Best Interest Contract Exemption, which requires all providers of financial advice and investment products to acknowledge themselves as fiduciaries, also constitutes the creation of a new private right of action.

Under existing securities law, investment providers have been able to successfully defend their actions, often in arbitration hearings, on the grounds that they were not legally required to act as fiduciaries, but were rather beholden only to a suitability standard.

"The DOL has created an enhanced standard, and will make it harder for providers to defend claims," he said.

Not a new private right of action

Professor Jill Fisch, a securities law expert and co-director of the Institute for Law and Economics at the University of Pennsylvania Law School, disagrees with Fleckner on the question of whether or not the Labor Department has created a new private right of action — mostly.

The Bes Interest Contract Exemption "does not rise to the level of creating a new private right of action," said Fisch. "But it does change the nature of existing contracts. And that raises some legitimate concerns."

Fisch says that when Congress wrote the Employee Retirement Income Security Act, which she described as a "fairly decent statute" relative to other securities laws, lawmakers were restrictive in creating litigation rights.

"Congress didn't create a whole lot of private enforcement," in ERISA, she said. "What the DOL has done does look like a backdoor attempt to create an enforcement mechanism that is the equivalent to a private right of action. The courts are going to have to decide whether that amounts to the creation of a new right."

Both Fleckner and Fisch say they think existing case law provides some indication on how courts may come down on the at-issue rule. But even on that benchmark their interpretations vary — evidence, perhaps, of the depth and complexity of the legal questions raised with the finalization of the Labor Department's new fiduciary standard.

"As a general statement, courts approach cases like this with the instinct that the DOL was within its authority crafting this rule," thinks Fleckner. "But there certainly are compelling arguments on the other side."

That said, the District of Columbia appellate circuit, where the National Association for Fixed Annuities case is being heard, has been "critical of administrative agency overreach through aggressive rule making" in a number of decisions, notes Fisch.

Moreover, the U.S. Supreme Court's general attitude towards questions of private enforcement has been deferential to the laws already on the books, added Fisch.

"Generally, the Supreme Court has ruled that where Congress limited private enforcement, they did so for good reason," she explained. Courts can be expected to look closely at a rule that attempts to change that balance, predicted Fisch.

— Related on ThinkAdvisor:

• DOL Overstepped Its Authority With Fiduciary Rule, US Chamber Tells Judge
• Don't Waste the 'Summer of DOL' as Fiduciary Compliance Clock Ticks