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June 02, 2023

ESG Investing and Litigation Risk after Thole

Colin M. Downes

The use of environmental, social and governance (or “ESG”) analysis in pension investing is controversial. It has been the subject of intense political interest (at least by the lights of the usually sleepy world of retirement plan regulatory policymaking). The Department of Labor has promulgated dueling ESG rules under successive presidential administrations. And as of this writing, a motion is pending in the Northern District of Texas on behalf of 25 states to preliminarily enjoin the Biden administration’s more ESG-solicitous rule. Yet from the perspective of plan fiduciaries evaluating whether to use ESG factors to guide investment, a more practical consideration than partisan back and forth has been concern that such investments might unleash a rash of fiduciary breach litigation from the private plaintiffs’ bar.

But for defined benefit plans, other legal developments in the last few years have largely mooted that prospect. In 2020, the Supreme Court issued a decision in Thole v. U.S. Bank, 140 S. Ct. 165 (2020), substantially narrowing standing for suits by participants in such plans on a 5-4 party line vote carried by the conservative majority. In that case, participants sued plan fiduciaries alleging that those fiduciaries had mismanaged the assets of their plan. The defendants argued that the participants lacked Article III standing, because they had no injury-in-fact: the defined benefit plan would be required to pay participants the same benefits regardless of how well or how poorly its investments performed. The plaintiffs invoked both traditional principles of the common law of trusts (which informed ERISA and which permit breach of fiduciary duty suits against trustees even in the absence of a loss to a trust beneficiary) and their statutory right to assert the claims of the plan itself under ERISA §§ 502(a)(2) and (3).

The Court sided with the defendants. It held that the interests of participants in defined benefit plans were not analogous to trusts and that Congress’s delegation of statutory enforcement authority to participants could not itself give rise to a concrete injury. The plaintiffs “received all of their vested pension benefits so far, and they are legally entitled to receive the same monthly payments for the rest of their lives. Winning or losing this suit would not change the plaintiffs’ monthly pension benefits.” And so barring a suggestion “the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits,” the plaintiffs lacked standing.

A recent, non-ERISA case illustrates how these principles applied to a circumstance analogous to the ESG case. Texas statute prohibits the state’s public pension systems from investing in companies that boycott the state of Israel or otherwise engage in the “BDS movement”—a Palestinian-led social movement promoting the use of boycotts, divestment, and sanctions against Israel. See Tex. Gov’t Code § 808.051. Haseeb Abdullah, a participant in two Texas public pension plans, sued alleging constitutional claims under the Freedom of Speech Clause, the Establishment Clause, and the Due Process Clause. Abdullah v. Paxton, 65 F.4th 204 (5th Cir. 2023). But the court never reached the (perhaps dubious) merits of these claims, instead holding that Abdullah lacked standing to pursue his claims. The participant plaintiff’s theory was in part that the Texas divestment statute required the retirement systems to make investment decisions based on the state’s policy dictates “rather than pure free market considerations.” And, citing Thole, the Fifth Circuit explained that the payments under “defined-benefit plans—by their very nature—do not fluctuate based on the value of the overall fund,” and thus the only way Abdullah could establish standing was if “the Systems [would] not be able to pay out his benefits at all when he reaches retirement.” The court found the prospect that divesting from companies that boycotted Israel would bankrupt the Texas pension system too speculative. And so it affirmed dismissal.

A hypothetical ERISA action by a private plaintiff challenging a defined benefit plan’s ESG-driven investment would face a similar fate. The theory of such a case would be that investments taking into account ESG factors are imprudent, because they incorporate non-pecuniary factors rather than, as the Fifth Circuit put it, “pure free market considerations.” In Abdullah the non-pecuniary factor allegedly driving imprudent investment decisions was support of the state of Israel, but substituting opposition to sweatshops or support for decarbonization wouldn’t change the legal analysis. To even pass the pleading stage under the rule of Thole, plaintiffs would need to plausibly allege that the challenged ESG investment practices imperiled the solvency of the entire plan and thus their benefits. Except in the most unusual circumstances, participant plaintiffs are unlikely to meet that high bar. 

Defined contribution plans are, of course, a different story. Plan sponsors who want to offer ESG funds as investment options in their 401(k) plans will need to carefully monitor the prudence of such investments, just as they would any other—as the Supreme Court articulated in Tibble v. Edison Int’l, 575 U.S. 523 (2015), and recently reaffirmed in Hughes v. Nw. Univ., 142 S. Ct. 737 (2022). And even if private plaintiffs lack standing to bring claims against the fiduciaries of defined benefit plans, the Secretary of Labor undoubtedly still has constitutional standing to enforce ERISA on behalf of the federal government. But as the United States observed in its amicus brief in Thole, “given limited resources, the Secretary of Labor cannot monitor every plan in the country.” Post-Thole the litigation risk picture for defined benefit plans that want to incorporate ESG analysis into investing decisions is thus markedly different. Perhaps paradoxically, the Court’s conservative majority reduced the risk faced by plans pursuing investment aims opposed by their partisan allies. Now, the remaining litigation risk consists almost exclusively of regulatory risk from an under-resourced federal agency. Fiduciaries of such plans will need to keep their finger to the wind of political fortune: the sustainability of investment objectives taking into account, say, environmental sustainability may depend on who sits in the White House. But they need not be troubled (as some commentators have been) by visions of a plaintiff’s bar taking to a new theory of fiduciary breach with the gusto of a dog attacking a fresh chew toy. 

Colin M. Downes

Partner, Barton & Downes, LLP

Colin M. Downes is a partner at Barton & Downes LLP in Washington, D.C., with experience litigating a wide range of employee benefits cases in federal and state trial and appellate courts across the country

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