A three-judge panel of the 5th Circuit Court of Appeals has struck down the Department of Labor’s (DOL) fiduciary rule, agreeing with the plaintiffs that the DOL overstepped its statutory boundaries. The original proposed rules had included appraisers in the definition of fiduciary, but that was changed, first to carve out ESOP appraisals and then to remove all appraisals from the final rule. But the appraiser-as-fiduciary issue was not completely put to rest—there was to be separate future rule-making on the issue of appraisals and fairness opinions in the context of investment advice subject to the fiduciary requirements.

Really over? The DOL could request that all of the judges in the appeals court hear the case, rather than the three-judge panel, lawyers say. Also, the Supreme Court could eventually weigh in because at least one decision in another circuit court conflicts with the most recent case.