These Judges Will Decide The DOL Fiduciary Rule

By John Hilton

One reason I am glad the blogs have returned to InsuranceNewsNet is the freedom it gives us to write about interesting, nontraditional topics, and to approach a familiar topics from different ways.

After all, I’ve written about the Department of Labor’s fiduciary rule a gazillion times. At this point, we’re in a holding pattern until district courts in the District of Columbia, Texas and Kansas hold hearings.

All three lawsuits seek a preliminary injunction. While not a total win, an injunction would at least delay the rule into the next administration. Injunctions are tough to win, but not impossible.

The U.S. Supreme Court revisited the requirements for obtaining a preliminary injunction in the 2008 case Winter v. NRDC, Inc. The court changed one requirement just slightly:

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

Injunction proceedings are a judge-only affair. A judge hears the case and then issues a ruling, which can be appealed.

So the three judges are the key to opposition hopes for success. All three are interesting legal minds.

Judge Randolph D. Moss

A Yale Law School grad, Judge Moss will hear the National Association for Fixed Annuities vs. Labor Department lawsuit Aug. 25 in District of Columbia District Court.

Moss recently worked side by side with David W. Ogden, attorney for plaintiffs in a separate lawsuit against the DOL, when they served as co-chairs of the Government and Regulatory Litigation Practice Group at Wilmer Cutler Pickering Hale and Dorr, a Washington law firm.

That working relationship ended after President Barack Obama nominated Moss to the bench in April 2014.

Ogden is representing the American Council of Life Insurers (ACLI) and the National Association of Insurance and Financial Advisors (NAIFA). Those groups are part of the consolidated lawsuit against the DOL in Texas.

Moss served several different capacities in the President Bill Clinton administration. From 1996 to 2001, he worked at the U.S. Department of Justice, Office of Legal Counsel, in a number of capacities. He served as deputy assistant attorney general, from 1996 to 1998, acting assistant attorney general, from 1998 to 2000, and as assistant attorney general, from 2000 to 2001.

Judge Daniel D. Crabtree

After graduating from Ottawa University and the University of Kansas School of Law, Crabtree practiced law somewhat anonymously for more than 30 years.

On Aug. 1, 2013, Obama nominated Crabtree to fill the judge vacancy for the U.S. District Court for the District of Kansas. He was confirmed by Congress in early 2014 and found controversy before the year was out.

In November 2014, Crabtree issued a preliminary injunction barring the state of Kansas from enforcing its ban on same-sex marriages.

Crabtree will hear the Market Synergy vs. Department of Labor lawsuit scheduled for Sept. 21.

Judge Barbara M. Lynn

Lynn’s career is full of firsts. Prior to joining the bench, she was the first female associate (1976-82) and first female partner (1983-99) at the high-powered Dallas firm Carrington Coleman.

On March 25, 1999, Lynn was nominated by Clinton to a seat on the U.S. District Court for the Northern District of Texas. Earlier this year, she became the first female chief judge of the Northern District.

Plaintiffs in the Northern District lawsuit include the U.S. Chamber of Commerce, the Indexed Annuity Leadership Council, the American Council of Life Insurers and the National Association of Insurance and Financial Advisors.

Lynn will hear the case Nov. 17.

InsuranceNewsNet Senior Editor John Hilton has covered business and other beats in more than 20 years of daily journalism. John may be reached at [email protected].