George Michael Gerstein

George Michael Gerstein advises financial institutions on the fiduciary and prohibited transaction provisions of ERISA. As co-chair of the fiduciary governance group, he assists clients with tracking, and understanding, the numerous fiduciary developments at the federal and state levels, including the rules and regulations of governmental plans. He also advises clients with respect to the fiduciary duty implications of ESG investing.

Why is there investor confusion over ESG products?

A recent Ignites article discusses an Allianz survey on ESG interest among retail investors. As we have seen for a while, interest in ESG across demographics has increased, leading manufacturers to offer more ESG products. This has occurred in the place space, too. Yet, 73% of respondents report difficult in assessing the funds for one or more E, S and/or G factors. One well-known reason for this gap between interest and understanding is the still nascent methods portfolio companies have to report ESG risks, thereby inhibiting a uniform approach by the funds and managers to synthesize that data, invest accordingly and report to investors the data is incorporated. Simply, there is not perfect information yet. Frustration by asset owners will persist until there is a consensus on reporting.

The flavors of fiduciary status under ERISA

Scalia nomination update

Senator Lamar Alexander (R – TN), chair of the Health, Education, Labor and Pensions Committee, announced that there will be a final panel vote on September 24 re. Eugene Scalia’s nomination to be the next DOL Secretary.

TDFs as targets in ERISA litigation

Climate change risk disclosure and Regulation S-K

In their Joint Statement on the proposed changes to Regulation S-K, Commissioners Jackson and Lee note the following in respect of disclosure of climate change risk:

“Additionally, the proposal does not seek comment on whether to include the topic of climate risk in the Description of Business under Item 101.  Estimates of the scale of that risk vary, but what is clear is that investors of all kinds view the risk as an important factor in their decision-making process. Yet it remains tough for investors to obtain useful climate-related disclosure. One argument against mandating such disclosure is that climate risk is too difficult to quantify with acceptable accuracy. Whatever one thinks about disclosure of climate risk, research shows that we are long past the point of being unable to meaningfully measure a company’s sustainability profile.”

The Commissioners encourage commenters to provide data and analysis on whether climate change risk transparency should be addressed in a final rule.

Munis and ESG?

Ninth Circuit rules arbitration permissible in 401(k) litigation

Funds to double-check their benchmark index after Vanguard mishap?

States sue SEC over Reg BI

Why states have opted to “Go Your Own Way” on fiduciary standards re. broker-dealers and investment advisers

Over the past 2 years, the states have taken disparate approaches to filling what they perceive as a regulatory void when the DOL Fiduciary Rule was struck down by a federal court. At the outset, most states, with the exception of Nevada, took a disclosure-based approach (most notably, NY and NJ), and legislation was the preferred avenue. Now, the trend is toward heightening the standard of care (disclosure appears to be viewed skeptically) through regulation (executive/governor’s branch). Though it varies by state, there at times can be incongruity of approach taken within a state. For example, the New Jersey legislation favored disclosure, whereas Governor Murphy preferred a new standard of care. Though the New Jersey legislation is unlikely to be reintroduced next year, it highlights a risk for market participants when there is inconsistency intrastate and interstate. We are expecting to see draft bills over the coming months for the next session in a small handful of states, but will also keep a (very) close eye on if and when either or both of New Jersey and Massachusetts decide to move forward with their fiduciary duty regulations applicable to broker-dealers and investment advisers. Nevada is also likely to be moving forward with finalization on its proposed fiduciary implementing regulation.