DOL Offers Up Flurry of ERISA Briefs After Leadership Change

The Labor Department’s benefits regulator is leaning into the use of amicus briefs under new leadership to drive home its fiduciary-friendly position in Employee Retirement Income Security Act cases.

The Employee Benefits Security Administration filed four friend-of-the-court briefs in circuit courts alone in January, putting it on track to outpace the number the agency has filed in recent years.

Assistant Secretary of Labor for Employee Benefits Security Dan Aronowitz, who took office in September pledged during the confirmation process to end “regulation by litigation.” Attorneys and former DOL officials said the use of amicus briefs, which have staked out pro-fiduciary positions, is one way the department is carrying out that agenda.

“This is one of the tools they do have within their control to try and weigh in, and even if a court isn’t required to agree with the agency or defer to the agency, it’s at least the agency explaining to the court during this administration that this is our position,” said Lisa Gomez, head of EBSA during the Biden administration.

The department has submitted briefs in recent months in support of HP Inc., JPMorgan Chase & Co., Siemens Corp., and Honeywell International Inc. in 401(k) forfeiture cases. It has also weighed in on a pension risk transfer appeal involving Lockheed Martin Corp.

The US solicitor general, joined by Labor Department attorneys, in December urged the US Supreme Court to hear pending ERISA cases and rule in favor of the defendant employers in cases against Parker-Hannifin Corp. and Home Depot Inc.

Following the department’s reversal in position on the Home Depot case from the Biden administration, the employees dropped their lawsuit just before the Supreme Court was set to decide whether to take it up.

Aronowitz applauded that move at the time, calling it a “victory for common sense” and a sign DOL was committed to “defending ERISA as Congress intended.”

The four amicus briefs filed in appeals courts in January alone matches the number filed in ERISA cases for the entire year in 2024 and 2022, according to a Bloomberg Law docket search. The DOL is on track to easily outpace the seven briefs it put out in 2016, the most it filed annually in ERISA cases over the past ten years, the search showed.

Jeff Hahn, a partner at Stris & Maher LLP who previously litigated ERISA cases at DOL, said amicus briefs must be approved by the solicitor of labor and the US solicitor general. Briefs typically originate either through requests from outside the department, or internally from the solicitor of labor’s office based on cases that may be important, he said.

EBSA may be consulted to provide input on relevant issues, Hahn said, but the agency has not historically “been a driver of amicus briefs.”

Novel Issues

The department’s new focus on protecting fiduciaries from surging litigation comes at a time when courts may be more willing to buck longstanding agency stances, said Ada W. Dolph, a partner with Seyfarth Shaw LLP in Chicago.

The Supreme Court’s 2024 opinion in Loper Bright Enterprises v. Raimondo, which overturned the decades-old Chevron doctrine of deferring to agencies’ interpretations of unclear laws, could give the DOL an opening to stake out new positions, she said.

“There’s almost more room for a judge or a court to not be as concerned about a historical interpretation from an agency,” Dolph said. “Obviously they may not follow the new interpretation, but it’s opened the window to questioning historic interpretations of statutes by agencies and to adopting other views, which could include the views advanced in these briefs.”

Some of the department’s recent briefs address novel issues that federal appeals courts haven’t yet considered, including the proper handling of 401(k) forfeitures and the permissibility of certain pension risk transfer transactions, Dolph said.

“It’s the very first time these courts have seen these issues,” Dolph said. “The courts are looking for advice and more of a sense of what they should be doing in these cases.”

Approach Draws Criticism

The department’s recent efforts have drawn pushback from former high-ranking DOL officials who served under Democratic presidents. In January, Phyllis Borzi and Ali Khawar filed an amicus brief disputing the Trump administration’s arguments in favor of Lockheed Martin.

Borzi, who headed EBSA during the Obama administration, and Khawar, who served as its acting assistant secretary under President Joe Biden, described the department’s pro-Lockheed brief as proof of an ongoing effort to “limit the scope of ERISA’s private right of action.”

“If successful, that effort would return workers and retirees to the pre-ERISA regime, where meaningful remedies were largely unavailable and fiduciary misconduct often went unredressed,” Borzi and Khawar said in their brief.

Aronowitz used amicus filings prior to his confirmation as head of EBSA to weigh in on ERISA cases as president of Encore Fiduciary, an insurance underwriter for employee benefit plans.

The company filed an amicus brief in the 2024 Cunningham v. Cornell Supreme Court case, arguing for courts to clamp down on “abusive” ERISA suits. The company made a similar argument in an amicus brief in the 2020 Hughes v. Northwestern Supreme Court case.

Hahn said the department’s increased use of amicus briefs so far under Aronowitz is a sign of things to come.

“I think the current leadership of the department and EBSA definitely has a particular perspective on where ERISA has gone in recent years and where it would like it to go,” Hahn said. “I fully expect the department to remain an active amicus participant going forward.”