George Michael Gerstein to present on ERISA at NSCP National Conference

Fiduciary Governance Group Co-Chair George Michael Gerstein will be a panelist at the upcoming National Society of Compliance Professionals’ (NSCP) National Conference in Baltimore. His panel, ERISA: Now and Into the Future, will cover a wide range of key topics, including a litigation update, rollovers and ESG, among others. The conference takes place on October 21-23, with additional registration information available.

Evolving 401(k) litigation

An ESG Framework for ERISA Fiduciaries

To access the materials, click here.

Ticktock on potential new DOL guidance re. proxy voting

In just a few days, the Department of Labor will be set to satisfy its obligations under the President’s April Executive Order by “complet[ing] a review of existing Department of Labor guidance on the fiduciary responsibilities for proxy voting to determine whether any such guidance should be rescinded, replaced, or modified to ensure consistency with current law and policies that promote long-term growth and maximize return on ERISA plan assets.” In an op-ed I wrote for Pensions & Investments, I put the EO into context and highlighted some possible paths the DOL could take. As we await any guidance, I would like to highlight this point that I made several months ago:

“…it is possible the DOL could adhere to the executive order by issuing new guidance that raises the perceived costs of proxy voting and other forms of shareholder engagement and/or demands a more rigorous analysis on the part of fiduciaries that such engagement is “clearly connected to” shareholder value. Any new test could not be so onerous as to make divestment preferable to engagement, as that would seem to undermine the executive order’s very purpose.”

We will, of course, conduct a full analysis of new DOL guidance, which we will post to this blog.

The flavors of fiduciary status under ERISA

TDFs as targets in ERISA litigation

Ninth Circuit rules arbitration permissible in 401(k) litigation

One step closer to 401(k) digital disclosures

As CITs gain momentum with ERISA plans, challenges remain

A wider net in 401(k) litigation

A recent article in InvestmentNews highlighted recent 401(k) litigation brought against small plans. While this type of litigation was traditionally brought against fiduciaries of large plans, plaintiffs’ firms have begun to target plans as small as $9 million. These suits are typically settled, rather than decided on the merits, but the risk of litigation has instilled fear and sensitivity in plan sponsors. One of the best defenses is a prudent process.