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Amazon, Comcast Face 401(k) Climate Plans Shareholder Votes (1)

May 5, 2022, 8:54 PMUpdated: May 5, 2022, 10:51 PM

Amazon.com Inc. and Comcast Corp. stockholders can vote on proposals to evaluate the companies’ 401(k) plans for environmentally friendly investment options, the Securities and Exchange Commission determined.

In decisions made public Wednesday, the SEC denied appeals from both companies to exclude retirement plan evaluation proposals from their upcoming annual shareholder meeting agendas.

The companies argued that 401(k) investment decisions are day-to-day business operations that securities laws allow companies to handle without shareholder input. But the issue brought before both companies by nonprofit shareholder advocacy group As You Sow “transcends ordinary business matters” usually reserved for management control, regulators said.

Workplace retirement plans are emerging as an avant-garde battlefield for socially conscious investors trying to steer companies toward ambitious operational climate goals. Environmental advocates want to square companies’ outward stance on climate change and social justice issues with the 401(k) investment lineups they offer their workers.

Major public companies such as Apple Inc., Microsoft Corp., and Alphabet Inc. are saying one thing and doing another, said As You Sow CEO Andrew Behar. The market is chock-full of companies that pledge responsible business practices while exposing their employees to retirement investments that promote fossil fuels, deforestation, military weapons, and tobacco, he said.

Amazon and Comcast are among more than a dozen major public companies the nonprofit is probing.

“People don’t want to invest in their own destruction, and yet they have been forever,” Behar said. “Every pension fund, every 401(k), every 403(b) is investing in a non-livable planet when their employees are ready to retire. We’re looking at $10 trillion of assets that are completely invested out of alignment with people’s values.”

Investment Mismatches

Both shareholder proposals would require Amazon’s and Comcast’s boards to prepare reports that review retirement plan investment options and determine whether they align with the company’s climate action goals.

“We’re hoping that it brings to the attention of the boards and management that there’s a problem here that’s easy to fix,” Behar said.

An Amazon spokesperson said the company’s 401(k) plan also offers a self-directed brokerage option, or “brokerage window,” that allows workers to choose a broader array of investments. A Comcast spokesman wouldn’t comment beyond what was in the company’s filings.

Apple, Microsoft, and Alphabet didn’t respond to requests for comment.

More than half of participants in both the Amazon and Comcast 401(k) plans are invested in default options that have holdings in major oil and gas firms, fossil-fired utilities, coal companies, pipelines, and companies in the agribusiness sector with deforestation risk, according to As You Sow’s SEC filings.

The nonprofit polled a sample of Amazon employees and found that nearly three-quarters of them want to invest in sustainable options. Less than 2% of plan assets actually are invested in such stocks.

Comcast workers have more than $1 billion invested in the fossil fuel industry alone, according to 2020 U.S. Labor Department data. Amazon offers its workers one sustainable equity fund, and Comcast doesn’t offer any.

Both companies, however, are investing their own money in green business practices. Amazon has committed to achieving net-zero carbon emissions by 2040 and wants half of its shipments to have net zero emissions by the end of the decade. Comcast plans to be carbon-neutral by 2035 and installed fuel-efficiency software in more than 17,000 cable vans and trucks between 2016 and 2018.

Workers at those companies often don’t even know their life savings are supporting global polluters, Behar said.

“We started having interviews with Amazon employees, and when we asked them how they feel owning companies that are burning down the Amazon, they just looked at us like we were crazy,” he said.

Fiduciary Constraints

Amazon stockholders can vote on the retirement plan proposal at the annual shareholder meeting on May 25. Comcast’s shareholder meeting is scheduled for June 1. Both companies oppose the resolutions.

In its SEC filing appealing the shareholder proposal, counsel for Amazon said the company’s board doesn’t manage 401(k) plan investment options. Like most large plans, a committee of fiduciaries with personal liability over plan assets is responsible for investment decisions.

“Working within the fiduciary framework described above, our 401(k) plan has for many years offered plan participants an ESG screened investment option,” Amazon wrote in its filing.

Comcast said, in its SEC filing, that there’s no connection between its climate action goals or other company values and the selection of investment funds under its retirement plans. The shareholder proposal, therefore, is based on a flawed understanding of the basic fiduciary requirements that underpin investment options, the company said.

“The fundamental request of the proposal would seek to impose a specific and uniform set of non-economic goals, promoted by Comcast and set for reasons completely outside of any specific financial planning or investment considerations, on all of our retirement plan participants and beneficiaries,” Comcast said.

The U.S. Labor Department, which regulates private-sector pension plans, requires fiduciaries to make decisions about plan assets “solely in the interest of plan participants and beneficiaries.” Only then can environmental, social, and corporate governance factors be taken into account.

A Trump-era regulation tightened those restrictions even more, banning ESG assets as default investments and discouraging fiduciaries from considering ESG factors unless they are monetary in nature.

The DOL’s Employee Benefits Security Administration is considering loosening those restrictions and is seeking input from employee benefits practitioners about other ways to protect investors against climate-related financial risks.

(Updated with Comcast response in 10th paragraph. )

To contact the reporter on this story: Austin R. Ramsey in Washington at aramsey@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Melissa B. Robinson at mrobinson@bloomberglaw.com

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