A DOL Proxy Vote Against ESG? – New ERISA Proposal May Limit Plans’ Exercise of Shareholder Rights

Dechert LLP

The U.S. Department of Labor (the “DOL”) on August 31, 2020 proposed a regulation (the “Proposed Proxy Regulation”) that would apply to how fiduciaries under the Employee Retirement Income Security Act of 1974 (“ERISA”) should consider decisions with respect to the voting of proxies and other exercises of shareholder rights associated with investments made by plans that are subject to ERISA (“Plans”). The Proposed Proxy Regulation comes on the heels of a separate proxy-related initiative (the “2019 SEC Guidance”) of the Securities and Exchange Commission (the “SEC”) and a proposed DOL regulation under the prudence and loyalty rules relating to environmental, social and governance (“ESG”) factors (the “Proposed ESG Regulation”). The Proposed Proxy Regulation can in some ways be viewed as complementing and bolstering some of the key policy objectives of the SEC’s initiative and the Proposed ESG Regulation. We generally discussed ESG considerations in the ERISA context in a prior May 15, 2020 OnPoint, and discussed the Proposed ESG Regulation in a prior June 30, 2020 OnPoint...

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