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Brief Amicus Curiae to the Fifth Circuit Challenging 'Tie-Breaker' Rule in DOL's ESG Regulation
Prof. Edward A. Zelinsky via SSRN 
[Opinion] Feb. 6, 2024 26 pages. "DOL's tie-breaking rule violates ERISA's duty of loyalty under ERISA Section 404(a)(1)(A). ERISA's duty of loyalty requires ERISA-regulated trustees to invest plan resources for the 'exclusive purpose of. .. providing' economic benefits to plan participants and their beneficiaries, 'solely in the interest of the participants and beneficiaries.' The tie-breaking rule violates this stringent statutory duty of loyalty because it permits plan trustees investing plan resources to consider 'collateral benefits,' i.e., the welfare of third parties or social goals. But ERISA's plain text does not permit this result. The words 'solely' and 'exclusive purpose' in Section 404(a)(1)(A) do not mean 'collateral benefits.' " [Utah v. Walsh, No. 23-0016 (N.D. Tex. Sep. 21, 2023; on appeal to 5th Cir. as Utah v. Su, No. 23-11097)] MORE >> |
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