Keywords
ERISA, pecuniary language, tiebreaker rule, department of labor, DOL, Major Questions Doctrine, Administrative authority, SEC, ESG, investing, Employee Retirement Income Security Act of 1974, 401(k), notice of proposed rulemaking, social responsible investment factors, duty of loyalty, shareholder rights, administrative fees, plan diversification
Abstract
The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two in 2020 and one in 2022—through notice of proposed rulemaking (“NPRM”) procedures that purport to address whether ESG factors may be considered by ERISA plan fiduciaries when managing plan assets. ERISA’s fiduciary duties have historically been viewed as narrowing the scope of considerations a plan’s fiduciary may incorporate into his decision-making process, but the DOL’s 2022 regulation expanded the pool of factors to include non-pecuniary considerations in both making investment decisions and exercising shareholder rights. The 2022 Rule also expanded the application of the tiebreaker rule.
Ultimately, while moral, social, or political merits of businesses weighing ESG factors are a matter of significant interest, this Note argues that the consideration of ESG and socially responsible investment (“SRI”) factors, for its non-pecuniary benefits to ERISA plan participants or its collateral benefits to third parties, is inconsistent with ERISA’s duty of loyalty—the sole interest and exclusive benefits rules—and duty of prudence. Such policy change risks sacrificing plan diversification and incurring additional administrative fees for plan participants. This Note further evaluates the merits of a major questions doctrine challenge to the DOL’s creation of the 1994 tiebreaker rule and incorporation of non-pecuniary factors into the plan fiduciary’s decision-making process.
Recommended Citation
Brandon Chesner, Note, Another Major Question: The Department of Labor Should Retire the Tiebreaker Rule and Reemploy Pecuniary Language in ERISA, 29 Fordham J. Corp. & Fin. L. 635 (2024).
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