Andrew Oringer | The Wagner Law Group

Chambers USA Recognizes The Wagner Law Group and Attorneys Harold Ashner, Eric Keller, Andrew Oringer, Roberta Casper Watson and Stephen Wilkes

2026-06-08T14:24:59Z

Chambers USA Recognizes The Wagner Law Group and Attorneys Harold Ashner, Eric Keller, Andrew Oringer, Roberta Casper Watson and Stephen Wilkes - EIN Presswire, June 5, 2026 (PDF)

Cuts To Benefits Come With Risks For Employers, Attys Say

2026-06-04T11:49:59Z

Cuts To Benefits Come With Risks For Employers, Attys Say - Andrew Oringer, Law360, May 29, 2026 (PDF)

Department of Labor Proposes New Fiduciary Safe Harbor for Investment Selection in Defined Contribution Plans

2026-04-01T19:36:31Z

By Barry Salkin, Andrew Oringer, Stephen Wilkes and Ari Sonneberg Yesterday, March 31, 2026, the U.S. Department of Labor (the “DOL”) issued a proposed regulation (the “Proposed Regulation”) under the Employee Retirement Security Act of 1974 (“ERISA”) that would significantly clarify and meaningfully expand fiduciary discretion when selecting designated investment alternatives for participant‑directed defined contribution plans (including most 401(k) plans). The proposal responds to President Trump’s Executive Order 14330, Democratizing Access to Alternative Assets for 401(k) Investors (the “Executive Order”), and is expressly designed to reduce litigation risk while reaffirming ERISA’s long‑standing, process‑based fiduciary framework. Although prompted by concerns surrounding alternative investments, the Proposed Regulation would apply broadly to all designated investment alternatives and would arguably represent one of the most consequential shifts in ERISA fiduciary policy in decades. Comments on the proposal are due by June 1, 2026. Background and Purpose The Executive Order directed the DOL to clarify fiduciary obligations when asset allocation funds or other investments include alternative assets - such as investment vehicles that invest in private equity and credit, real estate, commodities, digital assets (such as cryptocurrency), infrastructure - and lifetime income strategies. The Executive Order specifically asked the DOL to consider “appropriately calibrated safe harbors” that would enable fiduciaries to exercise sound judgment without undue fear of litigation. The Proposed Regulation would go further than the Executive Order requested. Consistent with the DOL’s traditionally investment‑neutral approach, the Proposed Regulation does not favor or disfavor any particular asset class. Instead, it articulates a general, process‑driven standard for prudently selecting any designated investment alternative. The DOL is candid about its motivation: according to the DOL, the current ERISA litigation environment has chilled fiduciary decision‑making, discouraged innovation, and pushed plans toward defensive menu designs. The proposal is intended to realign ERISA practice with statutory text, trust‑law principles, and decades of judicial precedent. Three Foundational Principles The preamble to the Proposed Regulation identifies three principles that underpin the Proposed Regulation:

ERISA is grounded in process, not outcomes. Prudence is evaluated based on the fiduciary’s investigation and reasoning at the time of the decision - not by hindsight or subsequent performance. Indeed, many practitioners colloquially refer to the prudence standard as being one of “procedural prudence.”
ERISA affords fiduciaries broad discretion. The statute neither mandates nor prohibits specific investment types; fiduciaries may select among a wide range of reasonable options.
Courts should defer to fiduciaries who follow a prudent process. When fiduciaries act within a documented, reasonable decision‑making framework, their judgments should receive substantial judicial deference.

The third principle - judicial deference that would be implemented under the Proposed Regulation through a presumption of prudence - is likely to be the focal point of legal challenges. The DOL anticipates this risk and grounds the proposal in existing trust‑law concepts and its statutory authority under Section 505 of ERISA, which the DOL asserts supports its authority to establish fiduciary safe harbors. The Safe Harbor Framework At the core of the Proposed Regulation is a process‑based safe harbor. A fiduciary that objectively, thoroughly, and analytically evaluates relevant factors when selecting an investment is entitled to a presumption of prudence and significant judicial deference. The Proposed Regulation identifies six non‑exclusive factors that would ordinarily be central to the analysis:

Performance: Fiduciaries must consider risk‑adjusted expected returns over an appropriate time horizon, net of fees. The rule expressly rejects any requirement to select the highest‑returning option over short periods.
Fees: There is no requirement to choose the lowest‑cost investment. Fees are evaluated relative to value, services, and expected performance; and fiduciaries are not required to scour the entire marketplace. Performance‑based and incentive fees may be appropriate when justified.
Liquidity: Plans are not required to offer fully liquid investments. Fiduciaries may select investments with liquidity restrictions, including illiquid assets, when liquidity tradeoffs are reasonably balanced against potential diversification or risk‑adjusted returns, so long as participant‑ and plan‑level liquidity needs are responsibly addressed.
Valuation: Designated investment alternatives must be capable of timely and accurate valuation. For non‑public assets, the Proposed Regulation generally anticipates at least quarterly valuation using independent, conflict‑free methods consistent with a certain specified accounting standard (FASB ASC 820).
Performance Benchmarking: Each investment should be evaluated against a meaningful benchmark with comparable strategy, objectives, and risk profile. Importantly, the Proposed Regulation states that new or innovative investments are not disfavored merely because they lack long performance histories.
Complexity: Complexity alone does not render an investment imprudent. Consistently with the notion that ERISA fiduciaries must be “prudent experts” (a phrase informally used by many ERISA practitioners when referring to ERISA fiduciaries), the Proposed Regulation highlights that fiduciaries must themselves understand the investment or must prudently engage qualified professionals to assist with evaluation and oversight.

The proposal includes 20 detailed examples illustrating how fiduciaries may satisfy these factors in practice. Presumption of Prudence and Judicial Review If the safe harbor process is satisfied, the fiduciary’s judgment is presumed reasonable. The DOL envisions courts applying a deferential, abuse‑of‑discretion‑type review, with plaintiffs bearing the burden of proof. It is noted that, in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court rejected the doctrine it had previously adopted in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and dramatically generally narrowed or possibly even eliminated the extent to which the courts need to defer to agency regulations in interpreting federal statutes. Anticipating questions about judicial authority, the DOL grounded the Proposed Regulation in Section 505 of ERISA and framed the Proposed Regulation as deserving of deference established by the Supreme Court in Skidmore v. Swift & Co, a pre-Loper Bright case under which an agency’s interpretation is entitled to deference by a court in proportion to its power to persuade. Scope and Limitations The Proposed Regulation would:

Apply only to the selection of designated investment alternatives.
Not apply to brokerage windows or self‑directed brokerage accounts.
Not address menu construction (which the DOL referred to as “curation”) or ongoing monitoring (although the DOL has signaled forthcoming guidance built on the same principles).
Not alter ERISA’s duty of loyalty or the prohibited‑transaction rules.

Practical Implications If finalized as proposed and upheld by the courts, the Proposed Regulation would potentially, among other things:

Reduce litigation risk for fiduciaries that document a prudent selection process.
Encourage innovation in plan menus, particularly within professionally managed vehicles such as target-date funds and managed accounts.
Reaffirm fiduciary flexibility to consider alternative assets thoughtfully.

It should be noted that the Executive Order also called upon the Securities and Exchange Commission (the “SEC) to take action with respect to the definitions of accredited investor and qualified purchaser, but the SEC was not given a specific deadline to do so. It is possible that coordination with the SEC could be critical in addressing non-ERISA practical impediments to the use of alternative investments under participant-directed plans, and the Executive Order (which by its nature is at the presidential level), unlike certain previous DOL sub-regulatory guidance, expressly calls for inter-agency coordination in this context. Any SEC guidance would be issued separately, as would any companion guidance from the Department of the Treasury. Conclusion The Proposed Regulations represents a decisive shift back towards ERISA’s fundamental underlying principles: discretion, process, and deference. While legal challenges may well be likely, the Proposed Regulation, if finalized as proposed, would materially strengthen fiduciary confidence in making reasoned, well‑documented investment decisions and could meaningfully expand the range of prudent options available to retirement plan participants. We will continue to monitor developments and provide updates as the rulemaking progresses. If you have any questions about the Proposed Regulation, or any questions about ERISA’s fiduciary provisions, please feel free to contact us.

DOL’s Push to Curb 401(k) Suits Could Face Court Challenges

2026-04-01T13:41:32Z

DOL's Push to Curb 401(k) Suits Could Face Court Challenges - Andrew Oringer, Law360, March 31, 2026 (PDF)

A Retirement Saver Protection Rule Has Died — for the Second Time. What it Means for Investors

2026-04-01T13:34:19Z

A Retirement Saver Protection Rule Has Died — for the Second Time. What it Means for Investors - Andrew Oringer, CNBC, March 30, 2026 (PDF)

401(k) Alternative Asset Rule Proposed by Labor Department

2026-04-01T13:37:12Z

401(k) Alternative Asset Rule Proposed by Labor Department - Andrew Oringer, CNBC, March 30, 2026 (PDF)

Should You Plan to Address “Plan Assets” Questions Under ERISA?

2026-03-27T15:48:50Z

A recent judicial decision from the U.S. Court of Appeals for the Second Circuit, decided yesterday, March 26, 2026, shows the importance of the “plan assets” analysis under the Employee Retirement Income Security Act of 1974 (“ERISA”). If an employee benefit plan’s acquisition of an equity interest (as determined for these purposes) in an entity causes the entity’s assets to be “plan assets,” then those with discretionary authority or control over the entity or who provide investment advice to the entity may be fiduciaries, with responsibilities and potential liability under ERISA. Powell v. Ocwen Financial Corporation, a case emanating from the sub-prime crisis circa 2010, is on detailed facts in the context of what are known as securitization transactions (and, more specifically, securitization transactions under the so-called “underwriter exemptions”), so the case might not have direct applicability for the general market. Nonetheless, Ocwen (which, for people who care about such things, is Newco spelled backwards) presents a cautionary tale for those who wonder whether the courts will ever be ready, as a practical matter, to delve into the intricacies of the Department of Labor regulation that defines when an entity’s assets are considered plan assets (the “Regulation”). The court embarked on a learned exploration of the application of the Regulation to distinctions between debt and equity that even addressed the nuances surrounding notes as compared with trust certificates. And the court also addressed, even if preliminarily, not only the plan-assets question but also the question of whether, in the face of plan assets, a service provider might have fiduciary authority. The case now goes back to the district court for further exploration. A possible object lesson here is that the fundamental plan-assets analysis, however arcane, may really matter. When one considers the risks surrounding unresolved or otherwise close questions, there may be an understandable tendency to wonder whether there have been actual circumstances in which a technical ERISA analysis has had genuine practical implications. While sometimes the answer may appear to be “no,” perhaps the better response may now be “not yet.” We at The Wagner Law Group stand ready to advise on plan-assets inquiries or any other matters arising under the fiduciary provisions of ERISA. [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2022/12/andrew-oringer.png[/author_image] [author_info]Andrew Oringer heads the firm’s New York office and serves as its General Counsel. His expertise extends to a broad array of issues relating to ERISA and executive compensation. He advises clients regarding their pension and welfare plans and arrangements, benefits-related tax matters and fiduciary issues arising in connection with the investment of plan assets, and has extensive experience with executive compensation representing employers as well as individual executives.[/author_info] [/author]

How Retirement Fiduciaries Can Help Health Plan Fiduciaries

2026-04-01T13:15:55Z

How Retirement Fiduciaries Can Help Health Plan Fiduciaries - Andrew Oringer, planadviser, March 27, 2026 (PDF)

Appeals Court Ruling Upends Path for ERISA Class Actions

2026-03-19T14:52:58Z

Appeals Court Ruling Upends Path for ERISA Class Actions - Andrew Oringer, PLANSPONSOR, March 17, 2026 (PDF)

Dead Yet! – The NeverEnding Story of the Amended Fiduciary Rule Has Ended . . . for Now

2026-03-16T16:16:17Z

by Andrew Oringer In prior Alerts, we have chronicled in some detail recent developments relating to the so-called Amended Fiduciary Rule under the Employee Retirement Income Security Act of 1974 ("ERISA") and its later incarnation, the Retirement Security Rule. Five of our recent Alerts may be found here, here, here, here, and here. Because of the extensive background laid out in our prior Alerts, it is not repeated here. When we last left what looked like it could be a NeverEnding Story that started at least three presidential administrations ago, the DOL had filed a motion with the Fifth Circuit "to dismiss its appeals" in Federation of Americans for Consumer Choice, Inc. v. U.S. Department of Labor and American Council of Life Insurers v. U.S. Department of Labor. Last week, on March 12, 2025, the District Court for the Eastern District of Texas expressly approved the unopposed motion in the FACC case to vacate the Retirement Security Rule. So there you have it. When we reported in November 2025 on the DOL's motion to dismiss its appeals, we stated that "[t]he Never-Ending Story may well have ended." Well, it now indeed definitively has. But the impact of the DOL's initiative may live on. As examples, the "best interest" regulation of the Securities and Exchange Commission draws significantly from the now-defunct Amended Fiduciary Rule; various states have pursued and may continue to pursue best-interest initiatives regarding the conduct of financial-services organizations; and the market for investment services may have shifted in some quarters to a more fiduciary-based model, which is a trend that may continue here and there even in the absence of the Retirement Security Rule. In addition, indications (including in the DOL's Regulatory Agenda) are that the DOL may propose further revisions. However, it would not be surprising if any upcoming activity is not in furtherance of, and may even be in some ways contrary to, prior regulatory efforts. There are now decisions to be made by financial services institutions about next steps. Will some institutions want to continue complying with the conditions of whatever is left of Prohibited Transaction Class Exemption 2020-02, whether out of concern about fiduciary status or an affirmative willingness to act as a fiduciary? And, for those institutions that do not believe they are fiduciaries and do not wish to be fiduciaries, maybe, just maybe, it will finally be time to consider whether to dismantle the compliance procedures they have laboriously constructed, if they have not already started that consideration. As one further cautionary note, we do not know for sure what will happen under future administrations. Maybe, just maybe, the NeverEnding Story will find its way to a sequel. We at The Wagner Law Group stand ready to advise on these or any other matters arising under the fiduciary provisions of ERISA. [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2022/12/andrew-oringer.png[/author_image] [author_info]Andrew Oringer heads the firm’s New York office and serves as its General Counsel. His expertise extends to a broad array of issues relating to ERISA and executive compensation. He advises clients regarding their pension and welfare plans and arrangements, benefits-related tax matters and fiduciary issues arising in connection with the investment of plan assets, and has extensive experience with executive compensation representing employers as well as individual executives.[/author_info] [/author]

4th Circ. Genworth Ruling Raises Bar For ERISA Class Actions

2026-03-19T15:01:24Z

4th Circ. Genworth Ruling Raises Bar For ERISA Class Actions - Andrew Oringer, Law360, March 13, 2026 (PDF)

Exxon Cements Texas As Delaware’s Emerging Rival

2026-03-19T15:11:08Z

Exxon Cements Texas As Delaware's Emerging Rival - Andrew Oringer, Law360, March 11, 2026 (PDF)

Can AI Turn the Attorney-Client Privilege into a Hallucination?

2026-03-12T12:53:13Z

By Denise Chicoine and Andrew Oringer It has become axiomatic to say that artificial intelligence (AI) is everywhere. As the world is changing, the bar organizations and associations that have an interest in regulating the legal profession are trying to chase the moving target that AI presents. Some of the issues, such as those involving inadequate review of and supervision regarding AI output, are arguably fairly intuitive and relatively straightforward. Others, like the risks that AI might hallucinate (in the current vernacular) fictional cases or that confidential information plugged into an AI platform might be revealed by the platform in an effort to answer other users, are arguably less intuitive and more subtle and nuanced. Further to this latter point, there is the emerging related issue of whether the use of AI, whether by a law firm or a client, could result in the loss of the attorney-client privilege for the information submitted as a part of an AI query. For example, in United States v. Heppner, the federal trial court for the Southern District of New York ruled that when a defendant communicates with a publicly available AI platform in connection with a pending criminal investigation, the communications are not protected by the attorney-client privilege or the attorney work-product doctrine. Background The attorney-client privilege shields from disclosure in legal proceedings any oral, written, or electronic communications made in confidence for the purpose of seeking or providing legal advice. Courts construe the attorney-client privilege narrowly because it operates as an exception to the rule that “all relevant proof is essential” for a complete record and for “confidence in the fair administration of justice.” See, e.g., In Re Six Grand Jury Witnesses, 979 F.2d 939 (1992). The work-product doctrine preserves a zone of privacy in which a lawyer can prepare and develop legal theories and strategies with an eye toward litigation, free from discovery by adversaries. See, e.g., United States v. Nobles, 422 U.S. 225, 238 (1975). The ruling in Heppner addresses a question that may well be of first impression nationwide: how do these doctrines apply in the context of the use of AI in litigation? Facts of Heppner In Heppner, the defendant was indicted for securities fraud, wire fraud and related charges. The criminal charges stemmed from actions the defendant allegedly took as an executive of a publicly traded company. The defendant used a highly developed AI tool after he was subpoenaed by a grand jury and became aware he was the target of a criminal investigation. Defense counsel did not ask the defendant to perform the AI search. Thereafter, FBI agents arrested the defendant and executed a search warrant at his home. During the course of the search, the government seized numerous documents and electronic devices. Defense counsel claimed that some of the seized documents that memorialized the defendant’s communications with the AI tool were privileged, on the basis that the defendant used AI for the purpose of communicating with his lawyers to outline a strategy in response to likely charges. The Ruling in Heppner Heppner rejects defense counsel’s argument that the materials in question were protected from disclosure because the defendant had input information to AI that he had learned from counsel, created the AI output for the purpose of obtaining legal advice, and later shared that output with counsel. The court said that all recognized privileges require, among other things, “a trusting human relationship,” such as, in the attorney-client context, a relationship “with a licensed professional who owes fiduciary duties and is subject to discipline. No such relationship exists, or could exist, between an AI user and a platform such as” the one used in Heppner. The court also stated that there was no reasonable expectation of confidentiality in communications with the AI tool. The AI platform has a written privacy policy to which users must consent which provides that all data collected is used to “train” the AI platform and could be disclosed to a host of third parties, including governmental regulatory authorities. (Lawyers are well-advised to take note of this aspect of the way in which AI may be trained.) The court noted that the defendant did not communicate with the AI tool for the purpose of obtaining legal advice. He communicated with the platform of his own volition, and “what matters for the attorney-client privilege is whether [the defendant] intended to obtain legal advice from [the AI platform], not whether he later shared [the AI platform’s] outputs with counsel.” In regard to the work-product doctrine, the court stated that the purpose of the doctrine “is not generally promoted by shielding from discovery materials in an attorney’s possession that were prepared neither by the attorney nor his agents.” The court, which is in the Second Circuit, pointed out that the Second Circuit has repeatedly stressed that the purpose of the doctrine is to protect lawyers’ mental processes. The court held that the AI documents do not merit protection under the work-product doctrine because, even assuming they were prepared “in anticipation of litigation,” they were nevertheless not prepared by or at the behest of counsel and did not reflect defense counsel’s strategy. Heppner concludes: “AI’s novelty does not mean that its use is not subject to longstanding principles, such as those governing the attorney-client privilege and the work product doctrine.” Heppner may be appealed, but, regardless of where the case ends, it presents a cautionary tale regarding confidentiality and privilege. Conclusion The world is continuing to evolve regarding the development of AI. Among the legal ethics issues that will continue to emerge are those relating to confidentiality and privilege, as Heppner starkly illustrates. Attorneys, and indeed their clients, should pay heed to when the use of AI - not only with respect to the absence of privilege in their interactions with AI platforms (as Heppner directly shows) but also with respect to whether the inputting of otherwise confidential information will be used by the platform in a way that discloses the information to others (as noted in Heppner) - may have unforeseen legal consequences. If you have any questions about Heppner, the attorney-client privilege, the attorney work-product doctrine or any other ethical issues affecting attorneys, please do not hesitate to contact our dedicated Ethics Group or Employment Group. [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2021/07/chicoine-denise-a.jpg[/author_image] [author_info] Denise A. Chicoine as concentrated her practice in employment law. She handles a wide array of employment issues, such as noncompete agreements, severance agreements, disability accommodation, and employee benefits.[/author_info] [/author] [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2022/12/andrew-oringer.png[/author_image] [author_info]Andrew Oringer heads the firm’s New York office and serves as its General Counsel. His expertise extends to a broad array of issues relating to ERISA and executive compensation. He advises clients regarding their pension and welfare plans and arrangements, benefits-related tax matters and fiduciary issues arising in connection with the investment of plan assets, and has extensive experience with executive compensation representing employers as well as individual executives.[/author_info] [/author

4 Questions About Trump’s Retirement Savings Pitch

2026-03-05T15:35:01Z

4 Questions About Trump's Retirement Savings Pitch - Andrew Oringer, LAW360, February 26, 2025 (PDF)

Bringing Alternatives to DC Plan Participants Tops 2026 Regulatory Priorities

2025-12-22T21:23:52Z

Bringing Alternatives to DC Plan Participants Tops 2026 Regulatory Priorities - Andrew Oringer, Pensions & Investments, December 22, 2025 (PDF)

Tip Tip Hooray? – Have Proxy Advisors Hit a Tipping Point? Trump Administration Issues Executive Order on Proxy Advisors

2025-12-18T14:30:00Z

by Andrew L. Oringer After years of handwringing by those opposed to the influence of proxy-advisory firms, are the storm clouds over those firms about to release a torrent? The most recent bolt of lightning comes in the form of the December 11, 2025, Executive Order captioned, “Protecting American Investors from Foreign-Owned and Politically-Motivated Proxy Advisors” (the “Executive Order”). Before the Enron/WorldCom debacles, the process by which executive-compensation packages were approved seemed often to involve an exercise whereby advisors would look to validate proposed packages. A common path was to hire a consultant who, after reviewing comparables, would express support for the proposal du jour. The tides palpably shifted after Enron/WorldCom on political, social, advisory and press-related fronts, with executives and executive pay quickly flying into the crosshairs of growing anti-executive sentiment. The “TARP” (Troubled Asset Relief Program) bail-out legislation would arguably not have passed without tough executive-pay provisions, and follow-on legislative and regulatory initiatives, notably including the Dodd-Frank legislation and the regulations thereunder, subsequently emerged. As compensation consultants began to take a more adversarial tack when it came to advising Boards and Compensation Committees about the propriety of proposed pay packages, the phenomenon of proxy-advisory services coalesced. These are advisors that generally advise shareholders regarding whether or not pay packages, board candidates and other proposals on the proxy ballot should be approved. In part because there were (and are) only a handful of these advisors, they started to take on a quasi-governmental regulatory feel. Many issuers and advisors began to structure their compensation agreements, plans and packages so that they would get the seal of approval from proxy-advisory firms, whether or not the issuers and their advisors agreed with the underlying substantive positions that informed the firms’ approaches. This process evolved into an effort to figure out just how the applicable provisions would fit into the firms’ analytical matrices and scoring checklists. In many cases, structures and specifics that might be considered desirable but that were perceived as likely to run afoul of the firms’ often inflexible standards would never even get out of the gate. Indeed, some firms began selling products designed to help issuers and their advisors navigate the gauntlet to an affirmative recommendation. Someone, however, by definition, has to be at the top of the food chain. If every single executive finding him- or herself as the most highly paid person were to be considered too highly paid, then no one could ever be the most highly paid, which, unless everyone is paid the same, is simply not possible. It often seemed to some that the proxy advisors’ wooden adherence to matrices and checklists failed to recognize that one size does not fit all. To be sure, some issuers fought back and proceeded in the face of negative recommendations, occasionally with success. But it could be a combative, embarrassing and ugly process, and one not necessarily guaranteed to result in shareholder approval even in the case of successful issuers otherwise generally supported by their shareholders. Eventually, the pendulum, as it so often does, started to swing. People increasingly questioned why, even conceding that some issuers might be unduly aggressive, it should necessarily be that a handful of self-appointed guardians of the compensation galaxy were effectively setting national compensation policy. During the first Trump administration, the SEC began looking at these matters, and eventually started taking aim at proxy-advisory firms. Commentators, as they’re prone to do, starting wondering if: now – a ha! - the influence of proxy-advisory firms might finally be on the wane. But sea changes tend to take time, and, here, putting aside the question of whether the pendulum had truly started to swing, the anti-advisor tides ebbed significantly with the Biden election. Now, however, it appears that the pendulum has swung yet again, maybe powerfully so. There may be a convergence of at least four factors that could bode poorly for proxy-advisory firms. First, as noted, there was the Trump reelection. Then, there is the ramping up of controversy and criticism, even amongst those not focused on executive compensation, of proxy advisors firms that have made their way towards matters relating to diversity, equity and inclusion (“DEI”) and environmental, social and governance (“ESG”), which feeds into this Republican administration’s distaste for proxy-advisory firms (in this regard, note the reference to “politically-motivated” advisors in the Executive Order). In addition, these federal factors are evolving against the backdrop of the extremely high-profile approval of the Musk compensation package over the clear objection and no-vote recommendation of the principal proxy-advisory firms.[1] And now, we have the Executive Order taking direct aim at proxy advisors. The Executive Order begins by bemoaning the “enormous influence” that proxy advisors:

wield . . . over corporate governance matters, including shareholder proposals, board composition, and executive compensation, as well as capital markets and the value of Americans’ investments more generally, including 401(k)s, IRAs, and other retirement investment vehicles. These proxy advisors regularly use their substantial power to advance and prioritize radical politically-motivated agendas - like “diversity, equity, and inclusion” and “environmental, social, and governance” - even though investor returns should be the only priority. . . . Their practices . . . raise significant concerns about conflicts of interest and the quality of their recommendations, among other concerns. The United States must therefore increase oversight of and take action to restore public confidence in the proxy advisor industry, including by promoting accountability, transparency, and competition.

The Executive Order then embarks on a multi-front attack on proxy advisors. The initiative involves the Securities and Exchange Commission (the “SEC”), the Federal Trade Commission (the “FTC”), the Attorney General and the Department of Labor (the “DOL”). The Executive Order directs the SEC to (i) review its guidance relating to proxy advisors and shareholder proposals for possible revision or rescission, (ii) enforce anti-fraud rules in this context and assess whether SEC registration is required, (iii) consider the need for increased transparency regarding recommendations, methodology and conflicts of interest, (iv) analyze whether “a proxy advisor serves as a vehicle for investment advisers to coordinate and augment their voting decisions with respect to a company’s securities and . . . [thereby] form a group for purposes of” the federal securities laws, and (iv) examine whether the retention by registered investment advisers (“RIAs”) of proxy advisors regarding non-pecuniary factors in investing may be inconsistent with the RIAs’ fiduciary duties. The FTC, in consultation with the Attorney General, is generally directed to (i) review ongoing antitrust investigations at the state level into proxy advisors and determine if there is a probable link between conduct underlying those investigations and violations of federal antitrust law and (ii) investigate the possibility of unfair methods of competition and unfair or deceptive acts or practices on the part of proxy advisors by (A) conspiring or colluding to diminish the value of consumer investments, (B) failing adequately to disclose conflicts of interest, (C) providing misleading or inaccurate information, (D) undermining the ability of consumers to make informed choices, or (E) otherwise engaging in federal antitrust violations. The DOL is generally directed to revise its fiduciary guidance under the Employee Retirement Income Security Act of 1974 (“ERISA”) consistently with the Executive Order. The DOL is expressly directed to consider whether any proposed revisions should include amendments to specify that any individual who has a relationship of trust and confidence with the individual’s client, including any proxy advisor, or who provides advice for a fee or other compensation with respect to the exercise of the rights appurtenant to shares held by ERISA plans, is an ERISA fiduciary. The DOL is also generally directed to (i) strengthen the fiduciary standards of pension and retirement plans covered under ERISA, including by assessing whether (A) proxy advisors act solely in the financial interests of plan participants and any of their practices undermine the pecuniary value of the assets of ERISA plan, and (ii) enhance transparency concerning the use of proxy advisors, particularly regarding DEI and ESG investment practices. It is noted that the provisions relating to retirement investors, who are mentioned in both the FTC and the DOL sections of the Executive Order, take on great significance given the staggering level of assets in retirement plans (including ERISA plans (which generally are plans maintained by U.S. corporate (and other similar) employers) and public plans (which are not ordinarily subject to ERISA)). One might surmise that the Trump administration’s pursuit of proxy-advisory firms will be the subject of contentious litigation. After all, these efforts could pose an existential threat to those firms. Ironically, one hurdle the Trump administration might face is the recent Supreme Court case of Loper Bright Enterprises v. Raimondo.[2] Loper Bright, which might well be welcomed by the administration in other contexts, essentially eliminated the deference to federal agencies regarding statutory interpretation that had generally been required (under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[3]) by the Court. However, even assuming that the actions to be taken in furtherance of the Executive Order might face difficult litigation, the mere existence of the Executive Order and the regulatory activity it directs could well be problematic for proxy advisors and their business even before the eventual fate of any regulatory activity is finally known. Will things come together in a way that truly diminishes the arguable stranglehold that proxy-advisory firms have had on the executive-compensation practice? Will the recent trending away of being beholden to the firms’ matrices and checklists turn into a deeper and more comprehensive rejection of their influence? Is this the tipping point so hoped for by those who decry the influence of proxy-advisory firms? Maybe. While the Musk approval may have sounded an alarm bell for proxy-advisory firms, the Executive Order may be of more direct concern. Be careful for what you wish was a message of W.W. Jacobs’ The Monkey’s Paw and, in the case of proxy advisors, their wide-ranging success may well have led to a backlash that ultimately could undermine their entire business model. Time will tell and, possibly sooner rather than later, we shall see. We at The Wagner Law Group stand ready to advise regarding the Executive Order and about any other matters relating to executive compensation in the context of both public and private companies. [1] The Musk approval was a high-profile slap in the face of the proxy-advisory firms. The no-vote recommendation was clear, on a package that followed rejection by the Delaware courts and that has a potential payout, if all hurdles and other conditions are met, of a trillion dollars. Indeed, there are indications that the issuer’s move of its domicile to Texas could be a harbinger of things to come in terms of Delaware’s effective near-monopoly on business domicile. See, e.g., A. Oringer, "Texas Targets Del. Primacy With Trio Of New Corporate Laws,” Law360 (June 17, 2025). [2] 603 U.S. 369 (2024). [3] 467 U.S. 837 (1984). [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2022/12/andrew-oringer.png[/author_image] [author_info]Andrew Oringer heads the firm’s New York office and serves as its General Counsel. His expertise extends to a broad array of issues relating to ERISA and executive compensation. He advises clients regarding their pension and welfare plans and arrangements, benefits-related tax matters and fiduciary issues arising in connection with the investment of plan assets, and has extensive experience with executive compensation representing employers as well as individual executives.[/author_info] [/author]

4 Big ERISA Litigation Developments From 2025’s 2nd Half

2025-12-18T15:07:10Z

4 Big ERISA Litigation Developments From 2025's 2nd Half - Andrew Oringer, Law360, December 12, 2025 (PDF)

Employee Benefits Complaint vs. Johnson & Johnson Dismissed for Second Time

2025-12-08T14:54:21Z

Employee Benefits Complaint vs. Johnson & Johnson Dismissed for Second Time - Andrew Oringer, PLANSPONSOR, December 5, 2025 (PDF)

Dead Yet? – The NeverEnding Story of the Amended Fiduciary Rule May Just Have Ended

2025-11-25T21:51:39Z

By Andrew Oringer In prior Alerts, we have chronicled in some detail recent developments relating to the so-called Amended Fiduciary Rule under the Employee Retirement Income Security Act of 1974 ("ERISA") and its later incarnation, the Retirement Security Rule. Four of our recent Alerts may be found here, here, here and here. Because of the background contained in our prior Alerts, we will not attempt in this Alert to repeat the comprehensive background. When we last left what looked like it could be a Never-Ending Story that started at least three presidential administrations ago, (i) the DOL lost two cases involving the Retirement Security Rule in Texas at the district-court level, Americans for Consumer Choice, Inc. v. U.S. Department of Labor and American Council of Life Insurers v. U.S. Department of Labor, (ii) the Biden-era DOL appealed the cases to the Fifth Circuit, and (iii) the DOL under Trump II asked the Fifth Circuit if it could have more time to consider whether to continue those appeals. We now have the answer to whether the DOL wishes to continue the appeals. Yesterday, November 24, 2025, the DOL filed a motion with the Fifth Circuit "to dismiss its appeals" in the Consumer Choice and ACLI cases. The motion expressly stated that the appellees in Consumer Choice "do not oppose this motion" and that the appellees and intervenors-appellees in ACLI "consent to this motion". So there you have it. The Never-Ending Story may well have ended. But its impact may live on. As examples, the "best interest" regulation of the Securities and Exchange Commission draws significantly from the now-defunct Amended Fiduciary Rule; various states have pursued and may continue to pursue best-interest initiatives regarding the conduct of financial-services organizations; and the market for investment services may have shifted in some quarters to a more fiduciary-based model, which is a trend that may continue here and there even in the absence of the Retirement Security Rule. In addition, we do not know for sure whether the DOL will attempt to tweak the existing 1975 fiduciary rule or what will happen under future administrations. So now there are decisions to be made by financial-services institutions about next steps. Will some institutions want to continue with compliance with the conditions of whatever is left of Prohibited Transaction Class Exemption 2020-02, whether out of concern about fiduciary status or an affirmative willingness to act as a fiduciary? And, for those institutions that do not believe they are fiduciaries and do not wish to be fiduciaries, maybe, just maybe, it will finally be time to consider whether to dismantle the compliance procedures they have laboriously constructed, if they have not already started that consideration. We at The Wagner Law Group stand ready to advise on these or any other matters arising under the fiduciary provisions of ERISA. [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2022/12/andrew-oringer.png[/author_image] [author_info]Andrew Oringer heads the firm’s New York office and serves as its General Counsel. His expertise extends to a broad array of issues relating to ERISA and executive compensation. He advises clients regarding their pension and welfare plans and arrangements, benefits-related tax matters and fiduciary issues arising in connection with the investment of plan assets, and has extensive experience with executive compensation representing employers as well as individual executives.[/author_info] [/author]

4 Appellate Arguments for Benefits Attys to Watch in Sept.

2025-09-09T19:06:14Z

4 Appellate Arguments for Benefits Attys to Watch in Sept. - Andrew Oringer, Law360, August 29, 2025 (PDF)