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Judge in Texas Case ‘Very Hard’ on DOL Rule, Lawyer Says

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Lawyers present at the much-anticipated oral arguments that took place on Thursday in the U.S. District Court for the Northern District of Texas in the case brought by the nine plaintiffs against DOL’s rule, had differing views about which way Judge Barbara M.G. Lynn was leaning.

“I think she gave DOL a very hard time,” Erin Sweeney, counsel at Miller & Chevalier, told ThinkAdvisor on Friday, adding that Lynn, in her view, gave signs of potentially leaning to vacate DOL’s rule. Lynn “was very troubled by the fact that DOL, to reach its conclusion about annuities, relied on studies that only addressed mutual funds.”

But William Nelson, public policy counsel for the Certified Financial Planner Board of Standards, who was also in the Texas courtroom, told ThinkAdvisor that he viewed Lynn’s questioning as “balanced [with] probing questions on both sides.”

The nearly four-hour long hearing was “very broad,” Nelson said, with “both sides [making] very persuasive arguments.”

Lynn, Nelson continued, stated that “the court’s task is not to engage in second-guessing the agency’s decision making, rather the Court must determine whether the conclusions reached by the agency are justified.”

Lynn denied considering all but two of the eight amicus briefs filed in the court, allowing only the briefs filed by the Financial Planning Coalition and the American Association for Justice to be considered.

Among the groups bringing the case against DOL in the Texas case included the Securities Industry and Financial Markets Association (SIFMA), the Financial Services Institute and the U.S. Chamber of Commerce.

The groups are represented by former DOL solicitor Eugene Scalia, who’s now a partner in Gibson, Dunn & Crutcher’s Washington office and a son of deceased Supreme Court Justice Antonin Scalia.

U.S. District Judge Randolph Moss denied in his 92-page ruling, released Nov. 4, the National Association for Fixed Annuties’ request for a preliminary injunction to stay DOL’s rule while also ruling in favor of Labor on the merits in upholding its conflict of interest rule.

NAFA said a few days later that it would appeal Moss’ decision.

Judge Daniel Crabtree in the District of Kansas heard oral arguments on Sept. 23 in the second case against Labor’s rule brought by the insurer Market Synergy. He has yet to render a decision.

During the Thursday oral arguments in Texas, “Judge Lynn appeared very concerned about taking Judge Moss’ decision head on,” Sweeney said.  

“On several occasions, she asked the Chamber of Commerce whether an argument that was being made in her court was also raised in Judge Moss’ court. On each occasion, the Chamber assured her that the argument was not made before Judge Moss. This could, potentially, allow Judge Lynn to vacate the rule without appearing to directly disagree with Judge Moss’ ruling (on the grounds that Judge Moss didn’t address the issue).”

If Judge Lynn vacated the DOL’s rule “on a ground that Judge Moss did not address, and each of the respective Circuit courts (DC Circuit and 5th Circuit) upheld the rulings below, the case could be before the Supreme Court on a split in Circuits without Judge Lynn having to directly hold that Judge Moss reached an incorrect result,” Sweeney said.

Both Nelson and Sweeney said Lynn promised a decision relatively quickly, with Sweeney anticipating a ruling by year-end.  


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