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Further to last week's Society Alert: "ERISA: GAO Calls for Clarity on Consideration of ESG - DOL Points to New FAB," investors and issuers alike - particularly ERISA plan fiduciaries (including in-house corporate secretaries and other governance professionals, legal counsel and others involved in their company's 401(k) plan processes), as well as companies on the receiving end of ESG investor activism - shouldn't miss the implications of, and key takeaways from, last week's Society E&S Working Group call on the DOL's recently-issued ERISA/ESG-focused Field Assistance Bulletin (FAB) (which we recently reported on here). 

The timely call (archive here) - which featured seasoned insights and analysis from Reed Smith Partner Bryan Brown, Stanford Law School W.A. Franke Professor of Law Joe Grundfest, Covington Partner Keir Gumbs, and Society Securities Law Committee Chair and National Vision VP, Asst. Gen. Counsel/Asst. Corp. Secretary Jared Brandman - addressed the FAB's implications on plan (including company 401(k) plan) fiduciaries' responsibilities as respects ESG-related investments and the associated projected impact on ESG-focused shareholder proposals and engagement.

Key takeaways from panelists include: 

• In view of the guidance, plan fiduciaries need to do more work to ensure their activities are consistent with their fiduciary obligations; ESG-focused activities should be empirically supported with a link to shareholder value rather than simply presumed to be good.
• Company 401(k) or other ERISA plan fiduciaries and their advisors should consider the exposure to fiduciary liability in the context of the new guidance, including an evaluation of their ESG investment activities and associated documentation and empirical support.
• Companies may wish to consider pushing back on shareholder ESG-related pressures, proposals and propositions that don't clearly promote shareholder value (i.e., enhanced shareholder returns), but rather simply rely on implicit assumptions that pro-ESG maneuvers will increase stock value.