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Adam Scoll

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Adam Scoll is a partner in the Firm’s Tax Department and Private Funds Group.

He specializes in the area of Title I of ERISA and the investment of ERISA “plan assets,” advising both pension trusts and their investment managers and advisers with regard to compliance with ERISA’s complex fiduciary duty and prohibited transaction rules.

Adam regularly advises private investment fund sponsors regarding the structuring of their funds in order to accept investments from ERISA-covered pension trusts, including compliance with the ERISA “plan asset” regulations and the operation of venture capital operating companies (VCOCs) and real estate operating companies (REOCs).

Adam also represents both employers and senior executives in the negotiation and drafting of employment and separation agreements, deferred compensation plans, and equity and “phantom equity” arrangements, including compliance with the nonqualified deferred compensation rules under Sections 409A and 457A of the Internal Revenue Code.

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The new “retirement security rule” package, issued by the U.S. Department of Labor (the “DOL”) on October 31, 2023, is the latest chapter in an almost 15-year effort by the DOL to amend the five-part test in its 1975 regulation for determining whether a person is a “fiduciary” by reason of providing “investment advice” for a fee (the “Five-Part Test”). (For more on the history, see here, here, and here.) The package includes a proposed new fiduciary “investment advice” rule (the “Proposed Rule”) and proposed amendments to certain prohibited transaction exemptions.

Very generally speaking, the Proposed Rule would significantly expand the circumstances under which a person could be treated as providing “investment advice” that is subject to ERISA’s fiduciary standards (including the self-dealing prohibited transaction rules). In particular, the Proposed Rule would replace the Five-Part Test’s requirements that advice be provided (1) on a “regular basis” pursuant to (2) a “mutual agreement, arrangement or understanding” that (3) it would serve as “a primary basis for investment decisions” with a much broader test that is based on the retirement investor’s reasonable expectations and context. The Proposed Rule would specifically cover a recommendation to roll over an account from an employer-sponsored plan (e.g., a 401(k) plan) into an individual retirement account (an “IRA”).

Responding to the “terrifying” reality that conflicted investment advice is costing retirement savers billions of dollars each year, on October 31, 2023, the Department of Labor (“DOL”) issued proposed rules representing its latest attempt to expand what it means to be providing “investment advice” for a fee under the Employee Retirement Income Security Act of…

In late 2022, the U.S. Department of Labor (the “DOL”) issued final regulations (the “Final Rules”) which address the extent to which ERISA plan fiduciaries may consider environmental, social and governance (“ESG”) factors when making investment decisions and exercising shareholder rights, such as voting proxies, on behalf of ERISA-covered plans. For a detailed discussion of the Final Rules, see here.

Although the Final Rules generally became effective on January 30, 2023, certain special proxy voting-related rules are set to first take effect on December 1, 2023, and may require action by ERISA plan fiduciaries in advance of the effective date.

In addition to the excitement of the upcoming outdoor concert season, Proskauer’s lawyers are anxiously awaiting VERY different forms of entertainment:

  • the next installment of the never-ending saga of U.S. Department of Labor (“DOL”) guidance on who is considered an investment advice fiduciary, including whether the fiduciary standard applies to advice on whether to take a rollover;
  • finalization of the DOL’s QPAM Exemption amendment proposal; and
  • resolution of court challenges to the DOL’s final “ESG” rules.

We discussed these developments at ERISAFest 2023.  If you missed it, feel free to reach out to your Proskauer contact for a recording, and be sure to sign up next year!

In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanushaproskauer benefits brief podcast Yarlagadda discuss the Department of Labor’s final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, such as voting proxies.  Although these final rules generally became effective on January 30, 2023, they are currently being challenged both in the courts and in Congress.


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On November 22, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) released final regulations (the “Final Rules”) that are intended to be more supportive of ERISA fiduciaries considering environmental, social, and governance factors (“ESG”) in investment decisions as compared to the Trump administration’s 2020 regulations (the “2020 Regulations”).  The Final Rules…

On July 27, 2022, the U.S. Department of Labor (the “DOL”) issued notice of a proposed amendment (the “Proposed Amendment”) to Prohibited Transaction Class Exemption 84-14 (which is commonly referred to as the “QPAM Exemption”) that would (as described in more detail below) significantly amend certain of the exemption’s conditions, including:

  • increasing the equity/net worth

…

On December 21, 2021, the Department of Labor (the “DOL”) published a Supplemental Statement (the “Supplemental Statement”) to its June 3, 2020 Information Letter (the “2020 Letter”) addressing fiduciary considerations for including private equity within an investment option under an ERISA-covered defined contribution plan (e.g., a 401(k)…

On October 14, 2021, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) published in the Federal Register a new proposed regulation (the “Proposed Rules”)[1] on fiduciary responsibility in selecting ERISA plan investments and exercising shareholder rights (proxy voting). The Proposed Rules reflect an effort to “warm” what the current DOL perceives…

On November 3, 2020, the U.S. Department of Labor’s Office of the Solicitor of Labor (the “DOL”) issued an opinion letter (the “2020 Letter”) to the Securities Industry and Financial Markets Association (“SIFMA”) stating that it would not view a conviction under foreign law as a disqualifying event under Prohibited Transaction Class Exemption 84-14 (the…