Joshua A. Lichtenstein

Partner

Josh Lichtenstein is an ERISA and benefits partner in New York who helps asset managers and employee benefit plans to find creative solutions to issues involving the investment of plan assets in a constantly evolving asset management landscape. Josh advises banks, asset managers, private wealth platforms, large pension plans and other institutions on the ERISA issues that have emerged or found prominence in recent years, including:

the DOL’s most recent fiduciary rule and the consequences of the elimination of that rule
the changing landscape of DOL guidance on plan investments in environmental, social and corporate governance oriented investments and activist funds
fiduciary governance best practices and litigation risks (including plan investment menu design)
representing and advising clients in connection with DOL examinations
conflicts of interest for credit funds and funds engaging in secondary transactions
ERISA restrictions on holding certain securities

Josh is also frequently approached by the press as an authority on these matters.

Experience

Josh partners with hedge, private equity, real estate and infrastructure funds, banks and their private wealth units to help them operate as ERISA fiduciaries and to comply with the prohibited transaction rules and related exemptions, or to structure investments to comply with the Venture Capital Operating Company (VCOC) or Real Estate Operating Company (REOC) exemptions or the so-called ERISA “25% test.” Josh regularly helps clients to develop new product offerings and to implement practical compliance programs for managing plan assets. He also works with asset managers on all benefits aspects of mergers and acquisitions, executive compensation matters and qualified and nonqualified benefits plans.

Josh was seconded to the ERISA legal group of a leading financial institution from October 2015 to May 2016, where he assisted in all aspects of ERISA compliance and on formulating approaches to compliance with the DOL’s most recent fiduciary rule.

Publications

Quoted, “Biden Win Could Undo DOL’s 'Tidal Wave' of Rules,” Ignites (September 21, 2020)
Quoted, “Intel Back in Court Over Erisa Claims,” Ignites (September 16, 2020)
Quoted, “Proposed Rules’ Quick Turnaround Could Open DOL to Challenges,” Bloomberg Law (September 9, 2020)
Quoted, “DOL Wants to Restrict Plan Fiduciaries from Proxy Voting on ESG Issues,” Financial Advisor IQ (September 3, 2020)
Quoted, “DOL’s Proxy Voting Proposal a 'Wake-Up Call' for Some Plans,” Ignites (September 2, 2020)
Quoted, “Cumming’s Take: Accredited-Investor Changes Unlikely to Move the Needle, “ WSJ Pro Private Equity (August 31, 2020)
Quoted, “Blackstone Gears Up for 'Hundreds of Billions' in 401(k) Cash,” Fundfire (July 29, 2020)
Quoted, “Q&A: Ropes & Gray's Joshua Lichtenstein on DOL's new fiduciary rule,” Reuters (July 24, 2020)
Quoted, “Former DOL officials say agency historically grants hearings on regulatory proposals,” InvestmentNews (July 20, 2020)
Quoted, “DOL’s ESG Rule a Step Back on Social Justice: Senate Dems,” Ignites (July 17, 2020)
Quoted, “U.S. Labor Department proposes revised fiduciary rule aligned with SEC's Reg BI, “ Regulatory Intelligence (July 10, 2020)
Quoted, “The DOL Takes On Regulation Best Interest,” Barron’s (July 2, 2020)
Quoted, “2020's Biggest Benefits Regulations: Midyear Report,” Law360 (July 2, 2020)
Quoted, “US Department of Labor proposes best-interest standard for investment advisers,” SNL Financial (July 1, 2020)
Quoted, “DOL Puts Rollover Changes on Fast Track: Lawyers,” Ignites (July 1, 2020)
Quoted, “DOL Proposes Replacement for Overturned Fiduciary Rule,” FundFire (June 30, 2020)
Quoted, “DOL’s New Proposed Fiduciary Rule Aligns With Reg BI, NAIC Suitability,” PLANADVISOR (June 30, 2020)
Quoted, “DOL unveils proposed exemption for fiduciaries,” Pensions & Investments (June 29, 2020)
Quoted, “DOL Reg Could End 'Ping-Pong' Match on ESG in Plans,” Ignites (June 26, 2020)
Quoted, “Trump Administration Targets ESG Funds With 401(k) Rule,” Bloomberg (June 25, 2020)
Quoted, “DOL’s stance on ESG in 401(k)s could be difficult to undo,” InvestmentNews (June 25, 2020)
Quoted, “3 Questions Lawyers Have About DOL's Ethical Investing Rule,” Law360 (June 24, 2020)
Quoted, “Coronavirus Creates New Risk for 401(k) Retirement Disputes,” Bloomberg Law (June 17, 2020)
Quoted, “What Access to the 401(k) Market Means for Private Equity,” WSJ Pro Private Equity (June 10, 2020)
Co-author, “The Department of Labor Provides a Road Map for Offering Private Equity and Other Alternative Investments in 401(k) Plans,” Ropes & Gray Alert (June 8, 2020)
Co-author, “Supreme Court Significantly Raises the Bar for Defined Benefit Plan Participants to File ERISA Fiduciary Breach Lawsuits, but the Risk of Lawsuit Remains,” Ropes & Gray Alert (June 5, 2020)
Quoted, “Supreme Court Decision Shields Corporate DB Plans from Participant Lawsuits,” FundFire (June 5, 2020)
Quoted, “Private Equity Fees Should Be Top of Mind for 401(k) Managers,” Bloomberg Law (June 4, 2020)
Quoted, “Justices Appear to Slam Door on Most Pension Plan Litigation,” Bloomberg Law (June 4, 2020)
Quoted, “Private Equity Options for 401(k)s Bring Litigation Uncertainty,” Bloomberg Law (June 4, 2020)
Quoted, “DOL Greenlights Private Equity Funds in 401(k)s,” Financial Advisor IQ (June 4, 2020)
Quoted, “DOL Opens Door to Greater Private Equity Holdings in 401(k)s,” Ignites (June 4, 2020)
Quoted, “U.S. Labor Department Allows Private Equity in 401(k) Plans,”WSJ Pro Private Equity (June 3, 2020)
Quoted, “Federal Guidance OKs Private Equity Funds In 401(k) Plans,” Law360 (June 3, 2020)
Co-author, “DOL Provides Sweeping Deadline Extensions and Other Relief for Employee Benefit Plans, Participants and Beneficiaries Due to the COVID-19 (Coronavirus) Outbreak,” Ropes & Gray Alert (May 1, 2020)
Quoted, “Is private equity ready for a retail revolution?” Private Equity International (April 30, 2020)
Quoted, “Hunt for diversification may get plans to rethink alts,” Pensions & Investments (April 6, 2020)
Quoted, “Court ruling on Intel’s DC plan sparks trepidation,” Pensions & Investments (March 9, 2020)
Quoted, “Supreme Court Ruling Sets Up Fight Over Private-Equity Push Into 401(k) Market,” WSJ Pro Private Equity (March 3, 2020)
Quoted, “401(k) Ruling Raises Questions About Alternatives in Plans, Disclosures,” Financial Advisor IQ (February 28, 2020)
Co-author, “Supreme Court Rules Six Year Statute of Limitations Applies to More ERISA Lawsuits,” Ropes & Gray Alert (February 27, 2020)
Quoted, “Intel 401(k) Ruling Settles One Issue, Leaves Others Waiting,” Bloomberg Law (February 27, 2020)
Quoted, “Supreme Court Raises Bar on 401(k) Communications,” Ignites (February 27, 2020)
Quoted, “Intel 401(k) ruling could bolster some class actions,” InvestmentNews (February 26, 2020)
Quoted, “Employers Lose Intel High Court Suit But Get Gift From Alito,” Law360 (February 26, 2020)
Quoted, “Supreme Court Rules for Plaintiffs in Intel ERISA Lawsuit,” Compliance Reporter (February 26, 2020)
Quoted, “Supreme Court’s decision on Intel vs Sulyma regarding 401ks explained,” ValueWalk (February 26, 2020)
Quoted, “Supreme Court rules against Intel in dispute over Erisa statute of limitations,” Compliance Reporter (February 26, 2020)
Quoted, “Is Private Equity Ready for Retail in 2020?,” WSJ Pro Private Equity (January 14, 2020)
Quoted, “High Court Kicks IBM Stock-Drop Case Back To 2nd Circ.,” Law360 (January 14, 2020)
Quoted, “Will Open MEPs pave way for alts in 401(k)s?,” BenefitsPRO (December 23, 2019)
Quoted, “SECURE Act moves to reality from long shot,” Pensions & Investments (December 23, 2019)
Quoted, “The Biggest Benefits Policy Developments Of 2019,” Law360 (December 19, 2019)
Quoted, “9 industry reactions to SECURE Act placement in spending bill,” BenefitsPRO (December 17, 2019)
Quoted, “SECURE Act set for passage in appropriations,” Compliance Reporter (December 17, 2019)
Quoted, “DOL Continues Aggressive Enforcement Pace in 2019,” ThinkAdvisor (November 22, 2019)
Co-author, “Retail Investments in Private Funds: Regulatory Obstacles and Opportunities,” Wolters Kluwer (October 18, 2019)
Co-author, “The Circuit Split On ERISA's Actual Knowledge Standard,” Law360 (October 17, 2019)
Co-author, “‘Actual Knowledge’ and ERISA Statute of Limitations Issues in Proprietary Funds Litigation,” Lexis Practice Advisor (October 10, 2019)
Co-author, “Retail Investments in Private Funds: Regulatory Obstacles and Opportunities,” Ropes & Gray Whitepaper (September 24, 2019)
Quoted, “Scalia Is Still in the DOL Fiduciary Rule Game,” ThinkAdvisor (September 24, 2019)
Co-author, “Business Roundtable Broadens Scope of a Corporation’s Purpose to Include Other Stakeholders,” Ropes & Gray Alert (August 26, 2019)
Quoted, “SEC Push to Boost Alts Access May Spark 401(k) Reforms,” FundFire (August 7, 2019)
Quoted, “Will Acting Labor Secretary Pizzella Greenlight a Fiduciary Rule?,” ThinkAdvisor (July 17, 2019)
Quoted, “Acosta's departure raises possibility of further fiduciary rule delay,” Compliance Reporter (July 15, 2019)
Quoted, “Departure of Alexander Acosta could slow DOL effort to revise fiduciary rule,” InvestmentNews (July 12, 2019)
Co-author, “Supreme Court Agrees to Hear Intel Case with Potentially Significant Implications for 401(k) Plan Fiduciaries,” Ropes & Gray Alert (June 27, 2019)
Quoted, “Will Values-Based Investing Ever Take Off?,” Barron’s (June 21, 2019)
Quoted, “Private Funds in 401(k)s? SEC Considers It,” Ignites (June 20, 2019)
Quoted, “SEC Seeks Input on Retail Investment in Private Offerings,” WSJ Pro Private Equity (June 18, 2019)
Quoted, “SEC Wants to Ease Access to Private Placements,” ThinkAdvisor (June 18, 2019)
Quoted, “DOL's New Fiduciary Proposal May be Less Onerous for Wealth, Retail Firms,” FundFire (May 29, 2019)
Quoted, “DC plans still slow on moving alts into lineups,” Pensions & Investments (May 27, 2019)
Quoted, “Maryland State Finance Committee Kills Fiduciary Bill,” FundFire (April 8, 2019)
Quoted, “BNP Paribas Says It Will Lose Access to Some U.S. Pension Assets,” Bloomberg Law (December 20, 2018)
Quoted, “Ex-Advisor Sues Stifel and MetLife Over Alleged ERISA Violation,” FundFire (December 13, 2018)
Quoted, “DOL fiduciary rule can cause litigation risk from beyond the grave,” InvestmentNews (July 27, 2018)
Co-author, “Fifth Circuit Issues Mandate Vacating the DOL’s Fiduciary Rule,” Ropes & Gray Alert (June 25, 2018)
Quoted, “ERISA Attorneys Help Digest DOL’s ‘Confusing’ Fiduciary Rule FAB 2018-02,” PLANADVISER (May 10, 2018)
Quoted, “DOL Clarifies Enforcement Stance After Fiduciary Rule Struck Down,” FundFire (May 9, 2018)
Quoted, “DOL field guidance clears some fiduciary smog,” Fund Action (May 8, 2018)
Quoted, “DOL Rule Technically Dead, Desire to Redefine 'Advice' Not: Lawyer,” Ignites (May 8, 2018)
Co-author, “DOL Publishes Guidance on ESG Investment Considerations by Retirement Plans – Takeaways for Managers, Plan Sponsors and Public Companies,” Ropes & Gray Alert (May 7, 2018)
Quoted, “Labor Dept. maintains scaled-back enforcement while fiduciary rule in limbo,” Compliance Week (May 7, 2018)
Co-author, “Department of Labor Announces New Enforcement Policy Following Fifth Circuit’s Fiduciary Rule Decision,” Ropes & Gray Alert (May 7, 2018)
Quoted, “Court Ruling Aside, For Now DOL Will Rely on Fiduciary Rule to Govern Investment Advice,” InvestmentNews (May 7, 2018)
Quoted, “DOL Declines to Scrap Fiduciary Rule Despite Invalidation,” Law360 (May 7, 2018)
Quoted, “Court Deals DOL Fiduciary Rule Another Blow,” Fund Action (May 3, 2018)
Quoted, “Fifth Circuit Rejects Attempts to Save Fiduciary Rule,” Financial Advisor IQ (May 3, 2018)
Quoted, “5th Circ. Won't Rethink Invalidation of DOL Fiduciary Rule,” Law360 (May 2, 2018)
Quoted, “ERISA Stock-Drop Suits Take A Back Seat As Market Roars,” Law360 (April 10, 2018)
Quoted, “DOL Fiduciary Rule Sparks Charges of Reverse-Churning,” InvestmentNews (April 4, 2018)
Co-author, “Fifth Circuit Raises New Questions by Ruling that the Fiduciary Rule Is Invalid,” Ropes & Gray Alert (March 21, 2018)
Quoted, “Appeals decision opens door for SEC best interest standard,” International Financial Law Review (March 21, 2018)
Quoted, “DOL Rule Dead, Maybe, Following 5th Circuit Ruling,” Ignites (March 19, 2018)
Quoted, “Wealth Firms Still Face Uncertainty on DOL Rule, Despite Ruling,” FundFire (March 19, 2018)
Quoted, “Circuit Court Ruling to Vacate DOL Fiduciary Rule Extends Regulatory Uncertainty,” (March 16, 2018)
Quoted, “Fiduciary Rule’s Next Stop: Supreme Court?” Financial Planning (March 16, 2018)
Quoted, “DOL Fiduciary Rule Likely to Live on Despite Appeals Court Loss,” InvestmentNews (March 16, 2018)
Quoted, “DOL Direction Sought After Fiduciary Rule Nixed by 5th Circuit,” Law360 (March 16, 2018)
Quoted, “'Pure Uncertainty': Court's 'Fiduciary' Ruling Muddles Federal Regulation,” POLITICO Pro (March 16, 2018)
Quoted, “Massachusetts' Galvin: investors aren't 'pawns in a prize contest',” International Financial Law Review (February 27, 2018)
Quoted, “How Pension Execs Can Steer Clear of Fiduciary Snafus,” FundFire (February 26, 2018)
Quoted, “CCOs put on notice by Massachusetts fiduciary rule case,” Compliance Reporter (February 22, 2018)
Quoted, “State Securities Cops Filling In For Feds On Fiduciary Beat,” Law360 (February 20, 2018)
Author, “Tread carefully with Erisa money,” Alt Credit Intelligence (February 16, 2018)
Quoted, “Scottrade Charged With Violating The DOL’s Fiduciary Rule,” ValueWalk (February 16, 2018)
Quoted, “State securities regulator says states can enforce DOL fiduciary rule,” InvestmentNews (February 16, 2018)
Quoted, “WSJ Wealth Adviser Briefing: Massachusetts Takes Action to Enforce Fiduciary Rule,” Wall Street Journal’s Moneybeats (February 16, 2018)
Quoted, “Mass. Regulator Charges Scottrade Over Sales Contests,” Law360 (February 15, 2018)
Quoted, “Massachusetts Accuses Scottrade of Fiduciary Rule Violations,” WSJ Pro Financial Regulation (February 15, 2018)
Quoted, “New DOL, SEC officials help advance fiduciary rule work,” InvestmentNews (December 22, 2017)
Co-author, “Department of Labor Releases Final 18-Month Delay in Applicability Date for Portions of Fiduciary Rule,” Ropes & Gray Alert (November 29, 2017)
Quoted, “Fiduciary rule delay gives DOL chance at organized rollout,” Compliance Reporter (November 9, 2017)
Quoted, “Will Regulatory Rule Dash Private Equity’s Retail Dreams?,” WSJ Pro Private Equity (September 29, 2017)
Co-author, "Department of Labor Proposes 18-Month Delay in Applicability Date for Portions of Fiduciary Rule," Ropes & Gray Alert (September 1, 2017)
Quoted, “What Happens if Class-Action Mechanism Dies?,” Barron’s (September 1, 2017)
Quoted, “WSJ Wealth Adviser Briefing: Fiduciary Delay, Battling Biases, Harvey’s Latest Burden,” The Wall Street Journal’s MoneyBeat (August 30, 2017)
Quoted, “DOL fiduciary rule: The 5 biggest things to watch for if BICE's class-action provision is killed,” InvestmentNews (August 29, 2017)
Quoted, “U.S. Targeting Class-Action Provision of DOL Rule,” Barron’s (August 25, 2017)
Quoted, “DOL fiduciary rule: Trump administration signals intent to kill class-action provision in BICE,” InvestmentNews (August 25, 2017)
Quoted, “WSJ Wealth Adviser Briefing: DOJ on DOL Rule, Streetwise on Investor Caution,” The Wall Street Journal’s MoneyBeat (August 25, 2017)
Quoted, “Another delay in fiduciary rule could result in substantial revision,” Compliance Week (August 22, 2017)
Quoted, “New DOL delay prolongs fiduciary rule uncertainty,” Compliance Reporter (August 16, 2017)
Co-author, “Department of Labor to Propose 18-Month Delay in Applicability Date for Portions of Fiduciary Rule,” Ropes & Gray Alert (August 10, 2017)
Quoted, “Long DOL Rule Delay Hints at Revisions: Lawyers,” Ignites (August 10, 2017)
Quoted, “Brace For 18 More Months of Fiduciary Reg Limbo,” MutualFundWire.com (August 10, 2017)
Quoted, “DOL plots 18-month fiduciary rule delay,” Fund Action (August 9, 2017)
Quoted, “DOL To Postpone Parts Of Fiduciary Rule Until 2019,” Law360 (August 9, 2017)
Quoted, “DOL seeks to delay fiduciary rule until July 2019,” InvestmentNews (August 9, 2017)
Quoted, “SEC poses biggest threat to DoL, fiduciary rule,” International Financial Law Review (August 8, 2017)
Quoted, “DOL hints at SEC fiduciary collaboration,” Compliance Reporter (July 7, 2017)
Co-author, “Department of Labor Requests Information on Fiduciary Rule,” Ropes & Gray Alert (July 6, 2017)
Quoted, “DOL Asks For More Info On Fiduciary Rule,” Law360 (June 30, 2017)
Quoted, “More clarity expected for DOL rule,” Fund Action (June 14, 2017)
Co-author, “Key Considerations for Asset Managers under the DOL’s Fiduciary Rule,” Ropes & Gray Alert (June 13, 2017)
Quoted, “DOL fiduciary rule takes effect, but more uncertainty lies ahead,” InvestmentNews (June 9, 2017)
Quoted, “Fiduciary rule: Last-minute prep and continued uncertainty,” Compliance Reporter (June 7, 2017)
Quoted, “SEC Muddies Fiduciary Rule Waters With Comment Request,” Law360 (June 7, 2017)
Quoted, “SEC Jumps Back in the Fiduciary Rule Debate,” Ignites (June 2, 2017)
Quoted, “Fiduciary Rule’s ‘Soft Open’ Makes Full Repeal Less Likely,” Law360 (May 23, 2017)
Co-author, “Department of Labor Provides Guidance on Fiduciary Rule Transition Period,” Ropes & Gray Alert (May 23, 2017)
Quoted, “DOL faces tough road in revising or repealing fiduciary rule,” InvestmentNews (April 13, 2017)
Quoted “Fiduciary Duty Delay Pleases Few, Clarifies Little,” Law360 (April 5, 2017)
Quoted “Labor Department staff has ‘fiduciary’ rule foes seething over delay,” Politico (April 6, 2017)
Quoted, “DOL delays Fiduciary Rule, eases compliance burden for BICE,” Fund Operations (April 6, 2017)
Quoted, “Global Equities Roundup: Market Talk,” Dow Jones Institutional News (April 6, 2017)
Quoted, “Will ERISA preempt state law under the fiduciary rule?” BenefitsPro (March 30, 2017)
Co-author, “Department of Labor Delays Fiduciary Rules for 60 Days” Ropes & Gray Alert (April 5, 2017)
Quoted, “House Democrats denounce DOL rule delay as comment period closes,” InvestmentNews (March 17, 2017)
Quoted, “DOL Promises Enforcement Grace Period for Fiduciary Rule,” Ignites (March 13, 2017)
Co-author, “Department of Labor Proposes 60-day Delay of Fiduciary Rule,” Ropes & Gray Alert (March 3, 2017)
Quoted, “Fiduciary duty rule review confuses US retirement sector,” International Financial Law Review (February 8, 2017)
Quoted, “Welcome to Fiduciary Reg Limbo,” MutualFundWire.com (February 7, 2017)
Quoted, “DOL Issues New Fiduciary Rule FAQs,” Compliance Reporter (January 24, 2017)
Co-author, “DOL Issues Additional Interpretative Guidance on New Fiduciary Rule,” Ropes & Gray Alert (January 17, 2017)
Quoted, “Who's afraid of Virginia Foxx and friends? Maybe pro-DOL forces should be but no panic yet,” RIABiz.com (January 11, 2017)
Quoted, “People are worried that Trump will roll back a rule meant to protect Americans' retirement money from Wall Street,” Business Insider (January 6, 2017)
Co-author, “DOL Issues First Interpretative Guidance on New Fiduciary Rule,” Ropes & Gray Alert (2016)
Co-author, “Release Us From Confusion Over ERISA Fiduciary Claims,” 37 Pension & Benefits Reporter (BNA) 647 (2010)

Presentations

Speaker, “Evaluating ESG: How the DOL's Draft Rule May Impact 401(k)s,” Ignites Exchange Webcast (August 18, 2020)
Speaker, “A New Era: What the DOL Guidance Means for Private Equity and Other Alternative Investments in 401(k) Plans,” Ropes & Gray Webinar (June 18, 2020)
“COVID-19: Credit Funds: Considerations for Credit Fund Managers Overseeing ERISA Plan Assets in Light of the Pandemic,” Ropes & Gray Podcast (May 13, 2020)
“COVID-19: Key Decisions for Defined Contribution Plan Sponsors Under the CARES Act,” Ropes & Gray Podcast (April 1, 2020)
“Cross-selling in the Crosshairs: Implications and Challenges of the Oracle 401(k) Fee Litigation Settlement,” Ropes & Gray Podcast (March 23, 2020)
Panelist, “Plan Design Optimization,” Pensions & Investments East Coast Defined Contribution Conference (March 9, 2020)
“ERISA Plan Fiduciaries’ Proxy Voting: Regulatory Updates,” Ropes & Gray Podcast (December 16, 2019)
“Supreme Court May Resolve Key ERISA Statute of Limitations and Proprietary Fund Litigation Questions,” Ropes & Gray Podcast (November 25, 2019)
Co-presenter, “SEC aims to level playing field for retail investors,” Private Funds CFO Podcast (August 12, 2019)
“ERISA Plan Sponsors, ESG and the April 2019 Executive Order on Promoting Energy Infrastructure,” Ropes & Gray Podcast (May 10, 2019)
Co-presenter, “Unwinding the Fiduciary Rule: New State Enforcement Activity, Next Steps for ERISA Counsel and Advisers,” Strafford Publications Webinar (February 19, 2019)
Presenter, “ERISA/IRA Investor Compliance Issues for Credit Funds,” New York City Bar Association's Private Investment Funds Committee (February 6, 2019)
“Credit Funds: How Managers Can Avoid and Mitigate ERISA Conflicts,” Ropes & Gray Podcast (January 10, 2018)
Panelist, “2017 In Review: The Hedge Funds Industry,” Ropes & Gray Webinar (January 10, 2018)
Podcast, “DOL fiduciary: The battle is just beginning,” InvestmentNews (June 9, 2017)
Speaker, “A View From Washington: The First 100 Days,” Ropes & Gray Webinar (April 24, 2017)
Panelist, “A View From Washington”, SIFMA Private Funds Roundtable (February 8, 2017)
Speaker, Goldman Sachs U.S. Financial Services Conference (2016)

Education

JD, New York University School of Law, 2008
BA, summa cum laude, The College of New Jersey, 2004