DENIED: 5th Circuit Dismisses AARP, State Intervention in Fiduciary Fight

By Nevin Adams • May 03, 2018 • 0 Comments

With Twitter-length brevity, the 5th Circuit has dispensed with attempts by AARP and three states to step into the fight over the future of the DOL’s fiduciary rule.  

The 5th Circuit invalidated the rule on March 15, holding that the Department of Labor lacked authority to promulgate it, reasoning that the rule’s interpretation of investment advice fiduciary was overreaching and in conflict with ERISA.

But even before the April 30 deadline for the Labor Department to appeal the court’s decision came and went, on April 26 AARP decided to step in. The same day three states – California, New York and Oregon – filed two separate motions: one to intervene in the 5th Circuit's March 15 decision that vacated the fiduciary rule “in toto,” the other to obtain an “en banc” review of that 2-1 decision by the entire court.

However, the 5th Circuit’s May 2 decision, signed by Chief Judge Stewart and Circuit Judges Jones and Clement, said simply: “IT IS ORDERED that the opposed motion of the States of California, New York, and Oregon, for leave to intervene is DENIED. IT IS FURTHER ORDERED that the opposed motion of AARP, for leave to intervene is DENIED.”

Of course, the Labor Department can still ask the Supreme Court to review the ruling, and that deadline – 90 days from the issuance of the 5th Circuit’s decision – has not yet passed.

Stay tuned.