Utah v. Su (Fifth Cir. No. 23-11097)
On March 28, 2024, the Clinic filed an amicus brief on behalf of a group of scholars with expertise in the Employee Retirement Income Security Act of 1974, or “ERISA.” The plaintiffs in this case challenged the Department of Labor’s “2022 Investment Duties Rule” (“2022 Rule”), a set of amendments intended to clarify duties imposed on ERISA plan fiduciaries. The plaintiffs argued that the 2022 Rule authorized ERISA fiduciaries to consider environmental, social, and governance factors, even when those factors would not affect risk-adjusted returns. The district court rejected these arguments, including an argument grounded in the major questions doctrine, and granted the government’s motion for summary judgment. Plaintiffs appealed. Our amicus brief in support of the government explained that the 2022 Rule was consistent with longstanding ERISA precedents and with prior agency directives—that is, the 2022 Rule’s “regulatory antecedents.”