DOL, Thrivent Ask Judge to Keep Fiduciary Rule Case Open

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By Carmen Castro-Pagan

The Labor Department and Thrivent Financial for Lutherans don’t want a federal judge in Minnesota to close a case that narrowly challenged an Obama-era rule that would require investment advisers to put the interests of retirement savers above their own.

The parties agreed that despite an appeals court decision that struck down the fiduciary rule in its entirety, its related litigation hasn’t been finally resolved, according to a joint status report filed July 3 in the U.S. District Court for the District of Minnesota.

Thrivent’s lawsuit against the DOL has been on hold, or “stayed,” since last year when the nonprofit entity got a court order that barred the DOL from enforcing the rule’s anti-arbitration provision against it.

The parties’ latest request to continue the stay comes less than two weeks after the U.S. Court of Appeals for the Fifth Circuit issued its mandate of the March 15 opinion that vacated the rule. In the mandate, the Fifth Circuit ordered the DOL to pay the appeal costs of the industry groups that challenged the rule, which include the U.S. Chamber of Commerce.

After the DOL decided not to seek further review of the Fifth Circuit decision, three states and AARP tried to intervene in the case to defend the rule. The Fifth Circuit denied the attempts.

Last week, Judge Barbara M.G. Lynn—the judge in Texas whose ruling upholding the fiduciary rule was reversed by the Fifth Circuit decision—issued an order asking “any party seeking further relief in this action” to notify the court of that intent by July 12. In her order, Lynn didn’t clarify the meaning of “further relief.”

The time hasn’t yet run for the potential intervenors, whose motions were denied in May, to seek further review of that denial, the DOL and Thrivent said. The parties anticipate filing another report on Sept. 4.

Cozen O’Connor and Greene Espel PLLP represent Thrivent. The Department of Justice’s Federal Programs Branch Civil Division represents the DOL.

The case is Thrivent Fin. for Lutherans v. Acosta, D. Minn., No. 0:16-cv-03289-SRN-DTS, joint status report 7/2/18.

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