Law360: Marc Lieberman, Mark Lasee, Ken Witt Examine ESG StrategiesNews | September 10, 2020
Kutak Rock partners Marc Lieberman, Mark Lasee and Ken Witt recently authored an article, “Gov’t Retirement Plans Should Approach ESG Cautiously” for Law360. The article examines the employment of environmental, social and governance, or ESG, strategies by investment funds that are gaining in popularity.
Historically, the U.S. Department of Labor (DOL) has been hostile to ESG strategies, emphasizing that fiduciaries of Employee Retirement Income Security Act (ERISA) plans are prohibited from making investment decisions on the basis of any factor other than the economic interest of their plan. Plans sponsored by local and state governments are exempt from ERISA's fiduciary requirements and DOL scrutiny, so it is an open question whether the fiduciaries of such plans can implement ESG investment strategies. This article suggests that while the sponsor of a government plan cannot compel the fiduciaries of its plan to offer or make ESG investments, the fiduciaries can elect to do so if certain conditions are satisfied.
As a member of the Firm’s National Institutional Investments Group, Mr. Lasee provides institutional clients insightful representation concerning their investments in private markets.
An experienced corporate and securities attorney, Mr. Witt represents institutional clients, as well as energy and technology companies in institutional investments, public securities work, mergers and acquisitions and financing transactions.