R. Alexander Acosta, President Donald Trump’s choice to replace Andrew Puzder as the nominee to head the Labor Department, will be asked to hit the ground running when he takes over leadership of the agency, assuming he is confirmed by the Senate.
How Acosta will interpret the authority of the Labor Department remains to be seen, but his first test could come in the economic and legal analysis of the fiduciary rule ordered in a recent presidential memorandum.
Acosta’s confirmation process is expected to be much smoother than that of Puzder, who withdrew his nomination less than 24 hours before his hearing before the Senate Health, Education, Labor, and Pensions committee was scheduled to begin.
A former Assistant Attorney General in the George W. Bush administration, and U.S. Attorney for the Southern District of Florida, Acosta has survived three Senate confirmation hearings for presidentially appointed positions, the first in 2002 when he was appointed to the five-member National Labor Relations Board. He previously clerked for Supreme Court Justice Samuel Alito on the U.S. Court of Appeals for the 3rd Circuit.
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That pedigree suggests Acosta will bring a considerable intellect to the Labor Department’s review of Obama-era regulations, says Lawrence Cagney, chair of the Executive Compensation & Employee Benefits Group practice at Debevoise & Plimpton.
“The previous nominee struck me as someone with zero tolerance for the fiduciary rule,” said Cagney. “He was a business person that likely had some experience with wage and hour law, but likely little exposure to fiduciary issues.”
While Acosta may not have direct experience litigating claims under the Employee Retirement Income Security Act, he would clearly bring a more nuanced view than Puzder to the review of the fiduciary rule ordered by Trump, given his depth of experience as a legal scholar and litigator, thinks Cagney.
Legal scholar and litigator
“The difference is that Acosta is a legally trained scholar, and one would have to assume a very smart guy,” he said. “It can be expected he will be much more contemplative and thoughtful in his approach to the rule than the previous nominee.”
That may prove to be good news for proponents of the rule, who don’t want to see it scrapped, and good news for opponents, who would like to see some changes.
Like a lot of ERISA legal specialists, Cagney thinks the best solution is to make the rule more workable, and not to scrap it.
“There are clear benefits to this rule, and financial institutions are not adverse to working with something that improves protections for retirement investors,” said Cagney. “But as it’s written it will invite an inordinate amount of litigation.”
Trump’s memorandum specifically instructs the Labor Department to assess the degree to which the rule will increase litigation.
As head of Debevoise & Plimpton’s benefits practice, Cagney said he’s been working with the firm’s litigation leaders to develop best practices for financial institution clients that reduce litigation risk under the rule to a tolerable level.
“It’s difficult to come up with a path that makes the litigation risk under the rule manageable,” he said. “There is a lot of room for improvement — we can have a rule that protects investors, and gives them remedies if they are abused by advisors, without inviting litigation in every circumstance.”