BarbriSFCourseDetails

Course Details

This CLE webinar will provide ERISA counsel an in-depth overview of the Department of Labor's (DOL) reversal of current ERISA-related policies and guidance with respect to ESG investing, proxy voting, cryptocurrency, and private equity investing. The panel will discuss the rules, fiduciary issues, and transaction risks associated with such investments and activities, ERISA compliance, exposure for fiduciaries, and best practices for ERISA counsel, plan sponsors, and fiduciaries.


Faculty

Description

On May 28, 2025, the DOL announced its plans to rescind its 2022 ESG rule (and presumably the portion of that rule that addresses proxy voting activities on behalf of ERISA plans) and rescinded its 2022 guidance cautioning plan fiduciaries to exercise “extreme care” when permitting cryptocurrency and other digital asset investments in 401(k) retirement plans. We also expect an Executive Order encouraging investments in alternative assets classes, such as private equity. While the change in policies presents opportunities, related changes to benefit plans must be managed carefully in light of ERISA’s requirements and the possibility of related litigation. 

 

In 2022, the DOL issued guidance regarding the inclusion of cryptocurrency investment options in 401(k) plans, with stark warnings regarding (1) the fiduciary duty of prudence and personal liability; (2) security risks; (3) recordkeeping and custody; (4) valuation challenges; and (5) liquidity and diversification concerns. However, in light of the recent withdrawal of such guidance, plan sponsors and fiduciaries must grapple with ERISA rules and monitor carefully retirement plan investments to minimize risks and potential claims. In addition, rules governing consideration of ESG factors in investment decisions are in flux, with the DOL stating that they will engage in new rule-making with no indication of the extent to which the forthcoming regulation will depart from prior guidance. The DOL previously issued guidance on 401(k) plans investing in alternative assets classes and we expect the current Administration to promote such investments.

 

Listen as our panel discusses the impact of the DOL’s withdrawal of the ESG rule and cryptocurrency guidance and what is expected with regard to investing in alternative assets classes. 

 

Outline

I. Status of the ESG and proxy voting rule

II. DOL withdrawal of prior guidance on digital asset investments

III. Navigating challenges for cryptocurrency investments

IV. Current and expected DOL guidance on 401(k) investments in alternative asset classes

V. Best practices for ERISA counsel, fund managers, and advisers

Benefits

The panel will discuss these and other key issues:

·      How does the DOL's withdrawal and potential replacement of the ESG and proxy voting rule impact retirement plan investing?

·      What are the critical issues for fiduciaries when considering offering digital assets as plan investments in light of DOL's policy reversal regarding these investments?

·      What are the ERISA compliance rules applicable to plan investments in cryptocurrency?

·      What are the inherent risks in investing in cryptocurrency?

·      Why would fiduciaries of 401(k) plans want to offer exposure to alternative asset classes?

·      What are the obligations and potential liability for fiduciaries?

·      What methods can be implemented to minimize the fiduciary risks of plan investments?