"The EBSA's position falsely suggests that fiduciary prudence is an either-or proposition, while fiduciary prudence under ERISA actually requires consideration of both procedural and substantive prudence.This analysis argues that an exclusive focus on proceduralism is inconsistent with ERISA's legislative history, ignores the dual nature of fiduciary prudence, and creates a regulatory environment that favors the insurance industry over plan participants and at the expense of both plan participants and their beneficiaries." MORE >>
"This summary focuses on the responsibilities and role of ERISA fiduciaries in managing plan investments.... [1] Evaluate and update the investment structure ... [2] Draft and periodically review the Investment Policy Statement (IPS) ... [3] 404(c) and QDIA oversight ... [4] Review and monitor investment manager performance ... [5] Monitor and benchmark plan fees ... [6] Managed accounts evaluation and monitoring ... [7] Oversee required employee communications ... [8] Review overall plan utilization ... [9] Review defined contribution trends and overall plan effectiveness." MORE >>
"The question now before the Court is whether plaintiffs alleging imprudence based on underperformance must plead a 'meaningful benchmark' at the motion-to-dismiss stage and, if so, how closely the comparator must align with the challenged fund's objectives, risks, and strategy.... Briefing and oral argument will occur this spring and a decision is expected in or before June 2026." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025; cert. pet. granted Jan 16, 2026, No. 25-498)] MORE >>
"[T]wo former DOL officials have now weighed in supporting the plaintiffs in an ERISA litigation suit.... [T]he brief hearkens back to the environment pre-ERISA, and the history with the Studebaker-Packard Corporation's bankruptcy, and subsequent loss of pensions by its workforce that (eventually) provided the impetus for [ERISA].... They write that the suit 'plausibly alleges a concrete and particularized injury: a non-speculative, materially increased risk of nonpayment that is fairly traceable to the challenged fiduciary decision and redressable through ERISA's remedial provisions, including equitable relief.' " [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"The increased attention from regulators, lawmakers, and major market participants such as JPMorgan suggests that the role and influence of these firms are under unprecedented scrutiny. While companies should continue to follow established guidelines and best practices, and utilize market trends to inform their proxy voting and governance strategies, it is equally important to remain adaptable." MORE >>
"The company's 401(k) plan covers about 63,000 participants and holds nearly $15 billion in assets, according to the complaint. Roughly one-third of these funds were in what plaintiffs termed 'underperforming' products ... The former employees argued that the company was involved in self-dealing and prohibited transactions under ERISA because it designed its own funds, picked the managers, decided how assets were allocated and then collected related fees." [Lowbruck v. Dell, No. 26-0209 (W.D. Tex. complaint filed Jan. 28, 2026)] MORE >>
"[T]here have been glimmers of hope signaling that the Supreme Court's decision in Cornell, despite its initial impact, may actually provide an unexpected playbook for fighting back against meritless litigation.... In recent weeks, two courts have applied two of Cornell's so-called screening tools to dismiss meritless claims, and a third court is considering whether to implement another." MORE >>
"Though the DOL argued in its filing that the plaintiffs continue to receive benefits following the PRT, the former DOL officials argued that insisting the plaintiffs lacked standing would disrupt the balance of ERISA and that the PRT substantially increased the risk of nonpayment of benefits, thereby giving the plaintiffs standing in the case." [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"[A] key question that courts will have to grapple with in each of these cases is whether the plans fall outside the ambit of ERISA in accordance with the [DOL's] 'voluntary plan' safe harbor ... Plaintiffs maintain that the employers lacked any process to review, select or monitor carriers and brokers or to confirm that broker commissions were reasonable. They further allege ERISA prohibited transactions, asserting that employers and brokers caused the payment of excessive commissions from plan assets." MORE >>
"The Department of Labor filed its fourth amicus brief supporting employers in 401(k) plan forfeiture disputes, offering its starkest warning yet that a pro-plaintiff ruling could jeopardize employee benefits." [Barragan v. Honeywell Int'l, Inc., No. 24-4529 (D.N.J. Aug. 18, 2025; on appeal to 3d Cir. No. 25-2509)] MORE >>
"[T]he department argues that the district court correctly held that the plan sponsor did not breach its fiduciary duties of prudence and loyalty because the plaintiff's argument only included a bare allegation that forfeitures were not allocated to pay plan expenses, even though the plan at issue provided for fiduciary discretion over that decision. Instead, the brief explains how a prudent and loyal fiduciary might have concluded that it was important to ensure that plan participants received the contributions expressly promised by the plan in a timely manner." [Barragan v. Honeywell Int'l, Inc., No. 24-4529 (D.N.J. Aug. 18, 2025; on appeal to 3d Cir. No. 25-2509)] MORE >>
"The industry will likely see a multi-pronged approach to developing alternative investment solutions for the DC Plan marketplace. Plan sponsors contemplating a move into alternatives should expect to see iterations of popular asset allocation strategies such as target-date and target-risk funds coming to market with alternative investment exposures already embedded[.]" MORE >>
"The standing doctrine advocated by Lockheed is inapplicable to the circumstances here and would license Lockheed or any other plan sponsor to select almost any insurer not in immediate danger of failing in the near future, even those with lower ratings and riskier business models than Athene. And ... with annuity contracts the future can extend for many decades." [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"In FY 2025, EBSA closed 878 civil investigations. Of those, 556 investigations (63 percent) produced monetary results for plans or other corrective action, for a total of $714.4 million recovered.... In FY 2025, [EBSA] obtained 297 non-monetary civil corrections, including: [1] removing 15 fiduciaries, [2] barring 24 individuals from serving as fiduciaries, [3] appointing 18 fiduciaries, [4] improving missing participant procedures for 49 plans, and [5] implementing 61 global corrections across multiple ERISA-covered health plans." MORE >>
"Plan fiduciaries should monitor the potential reclassification of proxy advisors as ERISA fiduciaries. Such a change would require proxy advisors to demonstrate that their recommendations are based solely on participants' financial interests, potentially increasing their compliance and litigation risks. This uncertainty may also accelerate the trend of companies ... developing in-house proxy analysis solutions to replace external advisors." MORE >>
"According to the allegations in the Complaint, Bloomberg failed to remove two funds from its Plan ... despite those funds suffering from poor investment performance for over a decade." [Rajappan v. Bloomberg L.P., No. 26-0785 (S.D.N.Y. complaint filed Jan. 29, 2026)] MORE >>
"Given the relative uncertainty surrounding the selection of alternative investments as investment choices in retirement plans, fiduciaries should remember to use procedures that will clearly establish that they acted as 'prudent experts.' ... Alternative assets have a particular risk-return profile, which may or may not be appropriate for retirement savings in a particular 401(k) plan.... [P]lan fiduciaries should be able to demonstrate that the selection of an investment choice is justified." MORE >>
"The complaints generally allege that the employers offering these programs could and should have negotiated lower premiums. According to the plaintiffs, the higher premiums may be the result of potentially excessive broker commissions, and excessive compensation to the consultants that administer them. The complaints speculate that employers offer these voluntary benefit programs without first engaging in a request for proposal process." MORE >>
"For self-insured employers, rising medical claim denials are no longer a back-office nuisance, they represent a direct fiduciary risk under [ERISA].... This article reframes claim denials through the plan sponsor lens ... [exploring] the drivers behind rising denials, the financial and legal implications, recent court cases, and practical steps to strengthen governance and protect both plan integrity and member trust." MORE >>
212 pages. "The Department is proposing a regulation that would require providers of pharmacy benefit management services and affiliated providers of brokerage and consulting services to disclose information about their compensation to fiduciaries of self- insured group health plans subject to [ERISA].... These disclosure requirements would apply for purposes of ERISA's statutory prohibited transaction exemption for services arrangements. This proposal implements section 12 of President Trump's Executive Order 14273, Lowering Drug Prices by Once Again Putting Americans First ...
"The Department's proposed regulation is intended to provide much needed transparency into contracts and arrangements with PBMs and affiliated brokers and consultants so that the responsible plan fiduciaries of ERISA-covered self-insured group health plans can better fulfill their statutorily mandated role to determine that the service contracts or arrangements are reasonable. Under the Department's proposed regulation, these service providers would be required to provide robust disclosures to responsible plan fiduciaries of self-insured group health plans regarding their compensation for such services, including the advance disclosure of compensation they reasonably expect to receive. The proposed regulation also includes audit provisions designed to ensure that the responsible plan fiduciaries of self-insured group health plans can verify the accuracy of the disclosures. The responsible plan fiduciaries would be able to use the disclosures in their process of selecting a provider of pharmacy benefit management services, engaging an affiliated broker or consultant, monitoring these service providers' operations and compliance with contractual obligations, and also in analyzing the drivers of prescription drug costs." MORE >>
"Issued under ERISA's statutory service provider prohibited transaction exemption, the proposed rule requires PBMs to disclose the following information for the first time: Rebates and other payments from drug manufacturers. Compensation received when the price paid by the plan for a prescription drug exceeds the amount reimbursed to the pharmacy. Payments recouped from pharmacies in connection with prescription drugs dispensed to the plan. The proposed regulation would also allow plan fiduciaries to audit the accuracy of PBM disclosures and provides additional relief for plan fiduciaries if their PBM fails to meet its obligation." MORE >>
"Where district courts have ruled on motions to dismiss forfeiture-related claims, to date they have largely sided with defendant-employers ... [F]orfeiture claims have been dismissed in at least 25 cases and have been allowed to survive in at least six cases.... Appeals are currently pending in the Third, Eighth, and Ninth Circuits, and Bank of America recently requested permission for a Fourth Circuit appeal. The Ninth Circuit is poised to be the first to rule." MORE >>
"Historically, benefit consultants functioned primarily as intermediaries between employers and insurance carriers and did so under the protection of ERISA's fiduciary exemption. But here plaintiffs allege that consultants exercise discretion in selecting insurance carriers and insurance policies, and also in structuring voluntary benefit plans to gain sizeable commissions -- actions that, plaintiffs argue, make these consultants plan fiduciaries." MORE >>
"Make sure health and welfare plan documentation and delegation is current, accurate, and understood.... Set a proactive annual calendar for welfare plan governance and vendor oversight.... Keep detailed records of welfare plan decisions, especially exceptions, claims escalations, and vendor direction." MORE >>
"For years, Morningstar has positioned itself as the independent umpire of the mutual fund world.... If Morningstar approves it, fiduciaries feel safe. But buried in Morningstar's own SEC filings is something most plan sponsors, consultants, and courts do not realize: Morningstar is deeply embedded in the business of helping insurance companies design retirement plan investment menus built around CITs, annuities, and proprietary insurance wrappers -- the very structures now raising ERISA prohibited transaction concerns." MORE >>
