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New DOL Guidance on Retirement Plans: Private Equity, Amendments to Investment Duties for ESG Investments


Dec. 15, 2020
1:00 p.m. - 2:30 p.m. EST

Key Issues for Private Equity Investments in Defined Contribution Plans and DOL's Crackdown on ESG Investing

A live 90-minute premium CLE webinar with interactive Q&A

This CLE webinar will provide guidance to ERISA counsel on the recently issued DOL Information Letter and proposed regulations.

The DOL has recently issued guidance and proposed regulations that would significantly impact retirement plan investments. The guidance and proposals address the selection of investment options with private equity components, the consideration of environmental, social, and corporate governance (ESG) factors when investing plan assets and the exercise of proxy voting and other shareholder rights associated with stock held by pension plans. ERISA fiduciaries and their counsel will need to develop an in-depth understanding of the new guidance and proposals in order to take appropriate steps to avoid unintended liability and potential claims.

In an Information Letter dated June 3, 2020, the DOL concluded that a fiduciary of an individual account plan may, consistent with ERISA requirements, offer as an investment option under the plan a professionally managed asset allocation fund with a private equity component. However, due to the greater complexity and limited transparency and liquidity of private equity investments, including a private equity component in an investment option can increase the potential liability for fiduciaries, who have a legal duty to select prudent investment options. ERISA also requires fiduciaries to monitor designated investment alternatives under the plan. Fiduciaries are liable for any losses resulting from the failure to prudently monitor these investments.

On June 30, 2020, the DOL published in the Federal Register proposed regulations addressing the application of certain ERISA fiduciary duties to pension plan investments selected because of ESG or similar factors. The regulations would clarify that a fiduciary, when selecting plan investments, may not subordinate the interests of plan participants and beneficiaries in their retirement income to non-pecuniary goals. In addition, the regulations would require fiduciaries to document their investment process when choosing ESG investments over competing investments that are economically equivalent. The DOL has also increased enforcement activity focused on ESG investments.

On September 4, 2020, the DOL published in the Federal Register proposed regulations addressing the application of certain ERISA fiduciary duties to the exercise of proxy voting and other shareholder rights associated with stock held as a pension plan investment. The regulations would clarify that a fiduciary, when exercising shareholder rights, may only consider factors that will affect the economic value of the plan’s investment, and would generally prohibit the exercise of proxy voting rights on matters that are not expected to affect the value of a plan’s investment. The regulations would also require the maintenance of records on proxy voting activities and other exercises of shareholder rights.

Listen as our panel discusses recent DOL guidance for private equity in retirement plans, amendments to the definition of "investment duties" and its impact on ESG investing, and fiduciary liability, as well as offer strategies and best practices for ERISA counsel and plan sponsors.


  • Recent DOL Information Letter on private equity
  • ESG investments
  • Fiduciary duties and primary considerations
  • Notice and disclosure
  • Best practices for plan sponsors and administrators

The panel will review these and other key issues:

  • What is the likely impact of the DOL Information Letter on private equity in individual account plans?
  • What are the implications of the DOL's proposed rules on ESG investments and proxy voting?
  • What are the key considerations for plan fiduciaries?
  • What are the key considerations for sponsors of private equity and ESG funds?
  • What are the key considerations for proxy advisory firms?


  • Jeffrey A. Lieberman, Counsel, Skadden Arps Slate Meagher & Flom
  • David C. Olstein, Partner, Stroock & Stroock & Lavan
  • Eric Requenez, Partner, Stroock & Stroock & Lavan

More Information, How to Register

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