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Executive Order 14330: A Solution in Search of a Problem

"Applicable law already clarifies when a plan fiduciary can and cannot offer alternative investment choices to participants in 401(k) plans.... This suggests that the agenda pursued by at least some advocates of Executive Order 14330 is not the clarification of applicable law. Rather, these proponents seek ... to actively encourage 401(k) arrangements to offer to plan participants alternative investments, most prominently private equity.... [ERISA's] fact-based protective standards should not be attenuated to promote any industry's products, whether those products are ESG assets or alternative investments."

The Ninth Circuit's Jarvis Opinion: A Correct Application of Retrenched ERISA Preemption

"Jarvis is well-reasoned and will be followed by other courts if there are ERISA-preemption challenges to any of the many state-sponsored private sector retirement savings programs modeled on CalSavers.... Jarvis reflects the retrenchment of ERISA preemption and the realignment of the U.S. Supreme Court's ERISA preemption case law to implement that retrenchment." [Howard Jarvis Taxpayers Ass'n v. California Secure Choice Ret. Savings Program, No. 20-15591 (9th Cir. May 6, 2021)]

Retirement in the Land of Lincoln: The Illinois Secure Choice Savings Program Act

"Illinois has now become the first state to complete legislative enactment of a state-mandated, state-operated retirement system for private employers.... That, as a matter of law, the Illinois private sector retirement arrangement qualifies under the Code and ERISA does not mean that this arrangement is sound as a matter of policy. The choices made by Illinois' legislators are noteworthy because they represent the choices of the first state to authorize a state-operated, state-mandated private sector retirement program. Those choices are thus an important contribution to a critical national debate, but will not end that debate."

Brief Amicus Curiae to the Fifth Circuit Challenging 'Tie-Breaker' Rule in DOL's ESG Regulation

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)]

The Continuing Battle Over Economically Targeted Investments

18 pages. "As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. [ERISA] requires plan trustees to invest 'solely' to provide participants' retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment ownership without altering market-based allocations of capital."

Gobeille v. Liberty Mutual: An Opportunity to Correct the Problems of ERISA Preemption

"Specifically, the Court should acknowledge the tension between Shaw v. Delta Air Lines, Inc. and the Court's subsequent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. by reconsidering the statute afresh. As part of such reconsideration, the Court should construe ERISA Section 514(a) as creating a presumption for preemption.... Finally, the Court should jettison the notion that traditional areas of state law as defined by the Court are immune from ERISA's more expansive than usual preemption and should instead acknowledge what the statute says: Per Sections 514(b)(2)(A) and 514(b)(4), the areas immunized from ERISA's more stringent preemption are -- and are only -- state banking, securities, insurance, and criminal laws." [Gobeille v. Liberty Mutual Ins. Co., No. 12-4881 (2d Cir. Feb. 4, 2014; No. 14-181 cert. pet. filed Aug. 13, 2014)]

Offering Alternative Investments to 401(k) Participants

"Whether any category of alternative investments ought to be considered for the menus offered to 401(k) participants is a fact-intensive question.... These determinations may change over time with new factual circumstances, e.g., greater acceptance of a particular asset class by investors ... the emergence of robust markets which provide more experience with particular investment categories."

CalSavers and ERISA Redux: The District Court's Second Opinion

"Taken together, the district court's [two] opinions about CalSavers provide a roadmap of the ERISA status, not just of CalSavers, but also of other states' similar retirement security programs.... [T]he district court decisions exemplify ERISA's relatively limited preemptive effect in the wake of the Supreme Court's decision in Gobeille v. Liberty Mutual Ins. Co. This restricted interpretation of ERISA preemption contrasts with the broader understanding which the Supreme Court first embraced." [Howard Jarvis Taxpayers Ass'n v. The California SECURE Choice Retirement Savings Program (CalSavers), No. 18-1584 (E.D. Cal. Mar. 10, 2020; on appeal to 9th Cir.)]

ERISA Preemption After Gobeille V. Liberty Mutual: Completing the Retrenchment of Shaw

"In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court's literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc....The Court reached this conclusion in a way which indicates that, going forward, Traveler's more restrained approach to ERISA preemption exclusively prevails. This is particularly significant for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as for state taxes as they apply to the investment trusts of ERISA-regulated retirement plans."

The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means

"An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee's spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer's plan does not provide a menu of choices which frames the employees' decisions."