The DOL, the IRS and the Chevron Reversal

The Supreme Court’s Chevron reversal creates uncertainty for plan advisers and sponsors.

The Supreme Court ruled Friday in Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce et al. that the so-called Chevron Doctrine would no longer apply to cases involving rulemakings of the federal bureaucracy, heralding what could be widespread changes to how trillions of dollars in qualified retirement plans are regulated and managed.

The Chevron Doctrine, established in the Supreme Court’s 1984 ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., required federal courts to be deferential to federal agencies’ interpretations of unclear statutes. Based on Loper Bright, courts are now required to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

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The qualified retirement plan sector, including advisers, plan sponsors and providers, relies in large part on regulatory frameworks and protocols shaped by government bodies, including the Department of Labor and the IRS. Loper Bright could make such guidance less durable due to court challenges, as well as lobbyists and litigators seeking to influence regulations, according to experts.

Julie K. Stapel, a partner with Morgan Lewis & Bockius LLP, says the Loper Bright ruling “will make it easier for courts to overturn DOL and IRS interpretations. This may present challenges to employers sponsoring employee benefit plans, because it will likely decrease the predictability and consistency of interpretations of ERISA and the Internal Revenue Code.”

Stapel adds that “predictability is key because plan-related changes often take a long time to implement, and frequent changes in interpretations can be time-consuming and costly to employers. Frequently changing positions can also discourage plan changes and innovations.”

One major regulation that may be affected by the ruling is the Retirement Security Rule, according to Brian Graff, the CEO of the American Retirement Association. That rule, which seeks to heighten the fiduciary standards of retirement saving advice, is already facing multiple court challenges led by insurers and financial firms.

Industry lobbyist Graff expects the plaintiffs will “probably modify their complaints to reflect the Supreme Court decision,” and the decision could make it more likely for an appellate court to vacate the rule, especially if courts hearing the challenges were already leaning in that direction.

Graff’s own ARA has supported the rule as a way to increase fiduciary obligations for advisers working with small businesses on their retirement plan investment decisions.

In the big picture, Stapel believes changes for many areas of regulatory law could be “profound.” That said, “the DOL has not been terribly successful in being deferred to by federal courts even with the Chevron Doctrine, especially as reflected in the litigation history of the Fiduciary Rule,” she notes, so the difference may not be as dramatic for DOL rulemaking.

Stapel says agencies will still be able to regulate and interpret beyond the literal meaning of the text, since statutes cannot be written to contain every detail, but “what Loper Bright changes is what courts do with that interpretation. Courts can consider agency interpretations but, under the [Supreme] Court’s opinion, may not defer to them.”

The DOL declined to comment on the ruling.

FSI, SIFMA Join Insurance Industry Lawsuit Against Retirement Security Rule

Brokers and asset managers have also opposed the rule, alongside the life insurance industry.

The Securities Industry and Financial Markets Association and the Financial Services Institute joined a lawsuit against the Department of Labor’s Retirement Security Rule on Friday, broadening the range of firms seeking to beat back the new rule beyond just insurers—who would be hit by rules around annuity sales in particular.

The complaint was initially brought by the American Council of Life Insurers in U.S. District Court for the Northern District of Texas on May 24, following a separate complaint challenging the rule filed in U.S. District Court for the Eastern District of Texas on May 2 by the Federation of Americans for Consumer Choice, an insurance industry group.

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The Retirement Security Rule, finalized in April and taking effect in part in September, would apply fiduciary requirements on a broader range of investment recommendations to include one-time transactions, such as rollovers, annuity sales and investment menu design sales.

Before SIFMA and FSI joined, legal challenges had been led by the insurance industry, which has consistently opposed the rule since it was first proposed. SIFMA is an interest group that represents broker/dealers, investment banks and asset managers; FSI represents independent financial services firms.

The brief filed by SIFMA and FSI, using logic similar to that of the prior suits, argues that the rule is unlawful and should be vacated. The organizations say that it “is materially indistinguishable from the 2016 Rule,” a reference to a previous attempt by the DOL to regulate one-time advice, one which was finalized in 2016 and vacated by the U.S. 5th Circuit Court of Appeals in 2018.

The DOL, in a responsive brief in the same case filed on June 14, argues that the new rule is distinct from the 2016 version because it focuses on the character of the relationship between the professional and the investor instead of capturing any communication and because it lacks provisions requiring certain contractual terms.

The SIFMA and FSI brief continues: “If the 2024 Rule goes into effect, recommendations by a broker-dealer or other financial professional regarding assets in a retirement account, including sales recommendations, will once again be considered ‘fiduciary’ advice even in the absence of an ongoing, mutually recognized advice relationship,” which the groups argue is required by the 5th Circuit opinion. The brief argues that a relationship must be ongoing and continuous in order to entail “trust and confidence,” a key phrase used by the 5th Circuit as encompassing the common-law understanding of fiduciary.

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