On March 10, the U.S. Department of Labor (DOL) announced that until further notice, it will not enforce certain final rules published at the tail-end of the Trump administration. Specifically, the DOL will revisit, and, in the interim, will cease to enforce, the “Financial Factors in Selecting Plan Investments” and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” rules which were published in November and December of 2020, respectively. These rules created requirements for plan fiduciaries subject to the U.S. Employee Retirement Income Security Act of 1974 (ERISA) to consider only pecuniary interests when selecting investments and exercising voting rights. Though the rules certainly cover environmental, social and/or governance (ESG)-driven investment decisions, proxy votes and the exercise of other shareholder rights, all ERISA fiduciaries, regardless of strategy, are subject to the rules. Please note that the rules have not been rescinded. Fiduciaries, therefore, may remain subject to private litigation risk for lack of compliance.
Some have expressed concern that the Financial Factors rule effectively prohibited the use of ESG factors by ERISA fiduciaries. We disagree. ERISA fiduciaries that treat one or more E, S and or/G factors as material to investment performance may continue to do so both under ERISA itself and under the Financial Factors rule, provided the fiduciary follows a prudent process and can point to some data or other evidence that forms the fiduciary’s belief that such factor is an important risk/return consideration, and as otherwise specified under the rule. ESG integration is one such example. The Financial Factors rule also largely retained the longstanding separate DOL test that had to be met in order for an ESG factor to be selected for non-investment performance reasons.
Fiduciaries wishing to proceed with ESG integration may continue to do so without undue risk, provided they follow the core principles and requirements under ERISA, as largely reflected in the Financial Factors rule. Please consider our prior analysis of the Financial Factors rule and the Proxy Voting rule.
For several presidential administrations now, there has been some back and forth about the place for environmental, social and governance (ESG) investing in retirement plans. Last year, the DOL proposed controversial regulations seeming to suppress the use of ESG investments in retirement plans; however, when final regulations came out, the DOL’s stance was softened.
Join PLANSPONSOR and retirement industry sources for a webinar in which you will learn:
- What the DOL’s latest regulations say about the use of ESG investments in retirement plans;
- How retirement plan sponsors can abide by their fiduciary duties when making investment selections based on ESG factors;
- The different ways plan sponsors can include ESG investments in retirement plans.
When: Thursday, March 18 at 2 p.m. ET
George Michael Gerstein, Fiduciary Governance Group Co-Chair, Stradley Ronon Stevens & Young, LLP
Neal Weaver, CEO and Co-Founder, Leafhouse Financial
Eraj Zaidi, Vice President, ESG Client Success at ISS ESG
Rebecca Moore, Managing Editor, PLANSPONSOR Digital, ISS Media
ESG, Proxy Voting and Engagement – Where DOL and SEC Regulation has Been and Where it May be Going
ESG investing continues to gain steam with investors and asset managers globally. US regulators, particularly the SEC and DOL, are catching up. George Michael Gerstein and Sara Crovitz will update you on the state of current DOL and SEC regulation around ESG and proxy voting/engagement and what may be coming from the regulators under new leadership.
When: February 25, 2021. 2 p.m. – 3 p.m.
Who Should Attend
All independent directors, CCOs, and professionals in the fund industry are welcome to participate.
Forum webinars are closed to the media.
George Michael Gerstein, Co-Chair, Fiduciary Governance and Environmental, Social and Governance
Sara P. Crovitz, Partner
George Michael Gerstein and Sara P. Crovitz, members of Stradley’s new environmental, social & governance group, joined host Kieran Poole of The Activist Insight Podcast to discuss recent developments out of the DOL and SEC regarding ESG. The Activist Insight Podcast, which is produced by Insightia, can be found on all major podcast platforms, including Apple Podcasts, Spotify and YouTube.