WILL Sues Biden Administration Over Illegal ESG Rule

This lawsuit aims to stop the politicization of retirement incomes, as over 140 million Americans are impacted by the new woke investing rule

The News: The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit on behalf of retirement account participants, Rick Braun and Fred Luehrs, against the U.S. Secretary of Labor for a new rule permitting the use of environmental, social, and governance (commonly referred to as “ESG”) factors in retirement investing. The suit was filed in the United States District Court for the Eastern District of Wisconsin.

Imposing ESG factors not only violates the Employment Retirement Income Security Act of 1974 (ERISA), which governs the operation of retirement plans and protects the hard-earned savings of millions of employees from mismanagement and abuse, but undermines the authority of Congress.

The Quotes: WILL Associate Counsel, Kate Spitz, stated, “By injecting highly partisan issues—like climate change and racial justice—into investment strategy, the Biden Administration is jeopardizing the retirement income of over 140 million Americans. Their new rule far exceeds the law and their constitutional authority.”

Rick Braun, a Wisconsinite with a retirement account impacted by the new ESG Rule, said, “I have been financially responsible, saving to have a future. Now it’s all at risk because politicians in Washington want to gamble it away on their favorite pet projects and causes.”

The Lawsuit: The lawsuit asks the court to enter a temporary restraining order and preliminary injunction halting the ESG Rule. The suit urges the court to enter a declaratory judgment that the ESG Rule exceeds the statutory authority conferred on the Secretary and the Department by Congress, and thus violates the Administrative Procedure Act.

WILL Client, Fred Luehrs

Background: ERISA protects retirement savings from mismanagement and abuse, and imposes fiduciary duties on those who administer the plans. Plan participants are entitled to receive information about their plan, the plan’s performance, and the effect of that performance on the benefits they receive. Congress has provided that a fiduciary shall discharge its duties with respect to an ERISA plan “solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan.”

However, under the Biden Administration, the Secretary of Labor promulgated a new rule last December that allows and encourages plan administrators to consider ESG factors when making investments on behalf of plan beneficiaries. Studies have shown that noneconomic factors—like ESG investing—are not as profitable as investing in standardized portfolios, such as investing in an index like the Standard & Poor’s 500 or the Nasdaq. Under the rule, Plan administrators can now risk beneficiaries’ investments for progressive policy dreams.

WILL has recently joined more than 100 organizations and officials in signing a coalition letter to Congress, opposing the 401(k) rule and supporting the congressional effort to overturn it. Now, WILL is pursing legal efforts to stop the politicization of retirement incomes, especially since Congress never granted President Biden the authority to overrule ERISA.

This is WILL’s 7th lawsuit against the Biden Administration.

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