The Trump administration has taken a hands-off approach to commenting on major retirement plan issues being challenged in courts, a sharp contrast to the approach taken by the Obama administration.
During the nearly two years of the Trump administration, the Department of Labor has filed no amicus briefs in court contests over broad plan management, product choices, fees and other defined contribution practices, according to the DOL's website. Spokesman Mike Trupo said the department declined to comment.
The Obama DOL filed dozens of friend-of-the court briefs in these ERISA cases, including some signature U.S. Supreme Court rulings governing the role of plan fiduciaries.
"It makes me sad that they are not moving forward from a consumer point of view," said Phyllis Borzi, who served as assistant secretary of labor for the Employee Benefits Security Administration from July 2009 to January 2017. "I thought the process would continue."
Ms. Borzi said her office used amicus briefs to outline the department's thinking about issues that were broader than the facts of specific cases being decided by federal appeals courts and the Supreme Court. Filing amicus briefs served to "clarify the ambiguities in the statute and move statutory interpretation forward," she added.
Among the most prominent ERISA cases during the Obama era were Tibble et al. vs. Edison International et al. and Fifth Third Bancorp et al. vs. Dudenhoeffer et al. In both instances, the Supreme Court requested the DOL's opinion, and in both cases, the DOL supported claims by plan participants.
The Supreme Court ruled unanimously for the participants in both cases. In Tibble, the court said sponsors have a "continuing duty to monitor trust investments and remove imprudent ones." In the Fifth Third Bancorp case, the court threw out the "presumption of prudence" defense that many sponsors had used successfully to defeat stock-drop challenges.
"Regardless of the administration, amicus briefs are a way to explain their viewpoint," said David Levine, partner in the Groom Law Group, Washington, referring to the DOL. "Different administrations take different approaches."
Amicus briefs "are helpful to the market," added Andrew Oringer, a New York-based partner at Dechert LLP and co-chairman of its ERISA and executive compensation group. "They set forth analyses and have the effect of staking out what the DOL was thinking without going the regulatory route."