401(k) rollover advice rule is at risk. Here's what retirement savers need to know

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Acting Labor Secretary Julie Su testifies before the Senate Appropriations Committee on May 9, 2024. Chip Somodevilla | Getty Images News | Getty Images 'Almost a certainty' courts will overturn However, the fiduciary rule's survival is in doubt following recent court actions, attorneys said. Two federal district courts in Texas issued a national "stay" of the regulation, in separate rulings in July. That effectively indefinitely delays the rule's Sept. 23 start date while the courts conduct a more detailed review of the lawsuits, which were filed by several insurance industry groups. "It is almost a certainty that both courts will overturn" the DOL regulation, said Fred Reish, a retirement law expert and partner at Faegre Drinker Biddle & Reath. watch now One of the courts hinted at that outcome. "The Rule is almost certainly unlawful for a broad class of investment professionals in the industry — not just Plaintiffs," according to a July 26 order by the U.S. District Court for the Northern District of Texas, in the lawsuit American Council of Life Insurers v. United States Department of Labor. The other case is Federation of Americans for Consumer Choice v. Department of Labor. The rule will "create a level playing field" for all trusted investment professionals, according to a Labor Department spokesperson. "The insurance industry can continue to advise investors and sell annuities, without giving advice that is imprudent, disloyal, or tainted by misrepresentations or overcharges," the spokesperson said. The agency referred questions about an appeal to the Department of Justice, which didn't immediately respond to a request for comment. Current retirement rollover advice rules stay in effect In the meantime, the current status quo remains in effect, attorneys said. Current rules let brokers give investment advice that earns them a higher commission but isn't in savers' best interests, the Labor Department said during the rulemaking process. Insurance products like annuities are a chief concern, attorneys said. The fiduciary rule is part of the Biden administration's broader crackdown on "junk fees" shouldered by U.S. consumers across the financial ecosystem. Meanwhile, industry groups say the court decisions are justified. "The stay of the effective date provides consumers with a needed reprieve from these devastating consequences as the court considers the substantial legal issues we have raised regarding this ill-advised rule," according to a joint statement from ACLI, the National Association of Insurance and Financial Advisors, NAIFA-Texas, NAIFA-Dallas, NAIFA-Fort Worth, NAIFA-POET, Finseca, Insured Retirement Institute and the National Association for Fixed Annuities.