Reporting Emerges that Many DOL Fiduciary Rule Comments Could Be Fake

The Wall Street Journal published an analysis this week suggesting “at least five governmental agencies have received fake comments challenging the agencies' rules,” including the Department of Labor; the DOL is so far declining additional comment.

Wall Street Journal reporter James Grimaldi is publicly suggesting that his paper has conducted an analysis clearly showing at least five governmental agencies have received fake comments speaking negatively of the agencies’ rulemaking.

Talking with a variety of mainstream news outlets, the Journal reporter says the Department of Labor (DOL) was among the targets—and he says there is evidence that the DOL fiduciary rulemaking has been a “direct target of trolls.” Overall, the Journal found that 40% of the thousands of individuals surveyed by its reporters said they did not write the comments attributed to them on the Labor Department’s public website.

At this early juncture, the Department of Labor declined to offer a specific response to PLANADVISER, but an agency spokesperson said that could change as more information comes to light. It goes without saying, if the Journal’s reporting turns out to be true, this is clearly a dramatic development in the long-running saga that has been the DOL fiduciary rule expansion. So far, the reporting seems to suggest that the fraudulent comments were submitted mainly with stolen or outright fake identities of individuals, rather than, say, the financial service providers that are the focus of this publication. Still, individuals play a key role in the public commentary process tied to federal agency rulemaking; the right to offer public commentary of this nature is traditionally viewed as a vital part of the democratic process, alongside the right to vote and serve on a jury.  

The Journal suggests its survey data shows the fraudulent comments submitted in the case of the DOL fiduciary rule were mostly negative in character—arguing the rulemaking should be halted and reversed. Speaking Wednesday on the NPR program All Things Considered, Grimaldi characterized the fraudulent comments on the fiduciary rule as “mainly get out of my back yard grumpy old man type stuff.” As Grimaldi noted, simple logic suggests the huge volume of comments submitted to DOL on the fiduciary rule means there is a massive amount of dishonest commentary that has had to be reviewed and considered by regulators, very likely slowing and potentially confusing their work.  

Key questions yet to be answered obviously include the following: How will the DOL go about investigating the possibility that so many comments submitted by individuals, and potentially even on behalf of small businesses and large companies, were fraudulently filed? Will this news in any way impact the future of the fiduciary rule expansion? The DOL spokesperson declined to say whether the investigation of this matter will be an internal affair, or whether it could more likely fall to a federal law enforcement agency.  

Under law, the Department of Labor actively removes fraudulent comments that are brought to its attention. There are criminal penalties for the submission of fraudulent statements or representations to the federal government. Individuals who believe a comment has been fraudulently attributed to them are welcome to call 1-800-347-3756 or visit https://www.oig.dol.govhotlinecontact.htm.