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.

Asset managers expressing more concern over climate change risk

How the states are trying to revive the DOL fiduciary rule

Wealth Management Magazine just ran a story on how the states are attempting to revive the DOL Fiduciary Rule in their own image. As part of my interview, I say: “To me, there’s no question that the Department of Labor fiduciary rule is a bit of the ideal paradigm in terms of governance (for these states).” This is true, but the DOL rule appears to also be a litmus test for some of the states in evaluating Regulation Best Interest (Reg BI) and their own rules. As some states try to channel the DOL Fiduciary Rule, Jay Clayton and Alex Acosta are, by all, accounts, coordinating on a June unveiling of the SEC Standards of Conduct package with a  proposed DOL exemption and some guidance (i.e., not a new rule on when one becomes an investment advice fiduciary under section 3(21) of ERISA) to follow.

Alleged cross-selling to plan participants questioned

Do hedge fund strategies lend themselves to ESG?

Putting the Trump Executive Order on ESG Into Perspective for ERISA Fiduciaries

Much was made of the President’s April 10th Executive Order that directed the Secretary of Labor Alex Acosta to re-examine the DOL’s guidance on proxy voting. The Executive Order was focused on energy production, so a reasonable inference is that the DOL could tighten the screws on how ERISA fiduciaries engage in proxy voting and other forms of shareholder engagement when taking into account ESG risks. Our initial description and analysis of the Executive Order can be found here. Today, Pensions & Investments published an op-ed of mine, which seeks to put the Executive Order into context for ERISA fiduciaries, particularly those who are taking ESG factors into account when they vote proxies on behalf of plans. I note, for instance, that adding a more rigorous test for including ESG factors into proxy voting decisions “could not be so onerous as to make divestment preferable to engagement, as that would seem to undermine the executive order’s very purpose.”

Another Reprise: Look for DOL guidance late summer/fall that complements a final SEC standards of conduct rulemaking package, particularly Reg BI

Newly-Added Members of the Fiduciary Governance Group

Peter Hong

Peter Hong uses his many years of service at the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) to guide clients through the various regulatory requirements involved in the offer of financial services and products. His practice includes the registration and regulation of investment advisers, broker-dealers, commodity trading advisors, commodity pool operators, and introducing brokers under federal and state laws, as well as the formation and ongoing compliance obligations of registered and private investment companies.

Peter’s practice includes providing advice regarding routine and complex matters pertaining to regulations of federal and state securities and commodities regulatory authorities and self-regulatory organizations such as the Financial Industry Regulatory Authority (FINRA) and the National Futures Association (NFA). He routinely uses his substantial experience in marketing and advertising regulations to assist investment advisers and broker-dealers in the creation of compliant websites, presentations and advertisements.

Chris Zimmerman

Christopher J. Zimmerman focuses his practice on assisting investment companies, investment advisers and boards on various federal and state securities law matters. Among other things, he advises investment companies and investment advisers with respect to their organization, registration and regulation. Specifically, Chris’ practice includes assisting clients with registration and regulation of new and existing funds, board-related issues, fund restructurings, securities lending issues, soft dollars by investment advisers and the use of derivatives by investment companies.

Jennifer Gniady

Jennifer Gniady helps nonprofit organizations of all sizes navigate complex legal issues while remaining true to their charitable missions. Her practice combines experience with both tax exemption issues and corporate matters. She works with clients to respond to existing threats and legal issues, while counseling practices to strengthen the organization in the long term. Her clients include charities, religious organizations, associations, schools and arts organizations. Her practice includes forming nonprofit organizations, advising on corporate governance and bylaws, analyzing lobbying and fundraising practices, responding to inquiries from IRS, state, and local charitable regulators and managing litigation.

Tara Walsh

Tara Walsh concentrates her practice in the areas of estate, tax and business planning, as well as estate and trust administration. She represents and advises high-net-worth individuals, owners of closely held businesses, individual and corporate fiduciaries, and nonprofit/charitable entities. Her practice involves designing and implementing a wide range of estate plans; handling all aspects of estate and trust administrations; advising clients on estate, gift and generation-skipping transfer tax issues; counseling clients in planned charitable giving; advising clients on issues related to life insurance and retirement plans; counseling beneficiaries and fiduciaries in Orphans’ Court matters; and forming nonprofit organizations.

Patrick Green

Patrick Green focuses his practice on counseling investment companies and investment advisers on regulatory, compliance and transactional issues. He advises investment management clients in all aspects of legal representation, including drafting and reviewing registration statements, proxy solicitation materials, and other regulatory filings; researching various securities and corporate law issues; and preparing board materials.

Reprise: Is a final Reg BI “imminent”?

Report: Reg BI likely coming out this month

The benefits of shareholder engagement can be captured, but will they be near-term enough to address DOL concerns?

According to the Wall Street Journal, “there are signs that companies are becoming more responsive to investor demands before annual meetings, especially as consumers engage more on environmental and social topics.” As an example of this development, the article points to the recent decision by Mondelez International Inc. to have all of its Oreo cookie wrappers recyclable by 2025. Though the Mondelez decision is the fruits of many years of discussions, the article acknowledges that “[i]t is difficult to measure the effect of closed-door conversations between shareholders and companies.” This is the tension: even with company boards showing greater receptivity to engagement, how does one gauge measurable outcomes of these meetings? This conundrum will probably surface with likely new guidance from the Department of Labor on proxy voting and shareholder engagement this year. One should expect the guidance will call for a greater articulation of the costs spent on these activities, as well as some indicator that any such engagement is in the best interests of the retirement plan investor in light of those costs.