News Archive

"[A] recent litigation outcome provides a roadmap for selling -- but not overselling -- ERISA 3(38) services. If used correctly, it may also serve as a blueprint for helping clients to take appropriate steps to fulfill their residual responsibility to monitor a 3(38) fiduciary." [Wanek v. Russell Investments Trust Co., No. 21-0961 (D. Nev. Sep. 25, 2025)]  MORE >>

"[P]lan sponsors reported a near equal focus on financial wellness for participants (39%) ... ensuring regulatory compliance (37%) and reducing costs (36%) in their plan.... 44% [state] that AI will have the greatest impact on the success of their plan over the next three- to five-year period.... 29% reported they are currently using or considering a MEP or PEP specifically as a way to lower plan costs.... 67% of plan sponsors said they are considering switching to a MEP or PEP or may consider it in the future. "  MORE >>

"QPAM audits verify that an asset manager's practices align with the fiduciary standards required under ERISA. In this guide, [the authors] explain what a QPAM audit is, detail the essential role of independent auditors in verifying ERISA compliance, and provide actionable recommendations for successfully navigating the audit process."  MORE >>

"[T]here have now been multiple court rulings on motions to dismiss [pension risk transfer] lawsuits with varying results. This article will discuss those rulings and analyze the issues faced by plan participants whose pensions have been transferred by their employers to annuity providers that utilize non-traditional capital structures."  MORE >>

"ERISA’s Section 404 talks about acting prudently and solely in the interest of participants. That used to mean watching fees, monitoring investments, and keeping minutes. But in 2025, prudence means locking down your participant data like it’s Fort Knox. Every Social Security number, every date of birth, every account balance—those are plan assets in digital form."  MORE >>

"Recent guidance from both the [DOL] and the New York State Department of Financial Services (DFS) underscores the importance of due diligence and ongoing oversight of ... third-party administrators (TPAs), carriers, and technology platforms ... Outsourcing the administration does not absolve you of your fiduciary duty.... Here's a checklist to guide your due diligence related to cybersecurity."  MORE >>

"This article begins a series about the part of the guidance that was an RFI, where the DOL is soliciting information that would be helpful for future guidance."  MORE >>

"As the default investment option in most retirement plans, TDFs typically hold the majority of plan assets -- yet many employers fail to evaluate them regularly, even as market conditions, participant demographics and fee structures continue to evolve. A TDF that was appropriate four years ago may now be underperforming, restructured or overpriced. In fact, average expense ratios have dropped significantly, especially for index-based and collective investment trust versions.1"  MORE >>

"The determination of actuarial assumptions to be used for plan purposes is certainly a fiduciary action.... But what about actuarial assumptions used for other plan purposes that are more administrative in nature? ... Recent cases under [ERISA[ highlight the potential risks and liabilities associated with these selections."  MORE >>

"Private equity funds can now explore new distribution channels through retirement plans. This includes launching collective investment trusts (CITs), target date funds and managed accounts that incorporate PE exposure. Fund managers have the opportunity to design products tailored for long-term retirement investing, potentially unlocking a vast pool of capital from defined contribution plans."  MORE >>

13 pages. "[T]he appointment of an independent fiduciary to advise or act with discretion on any matter provides not only the benefit of an independent and qualified party to act on behalf of the plan participants but presents significant risk shifting opportunity from the plan fiduciary to the independent fiduciary."  MORE >>

"According to the complaint ... IBM breached its fiduciary duties by retaining several underperforming propriety TDFs and several Vanguard mutual funds that consistently underperformed similar options ... costing plan participants $1.9 billion in returns. The allegations focus on IBM's proprietary suite of All-in-One Life Cycle funds, which includes both target-date retirement and target-risk funds used as default investment options." [Arechiga v. International Business Machines Corporation, No. 25‑9067 (S.D.N.Y. complaint filed Oct. 31, 2025)]  MORE >>

"[The section entitled Fiduciary Tips for Small Employers Selecting a PEP serves] as a valuable reminder that there ARE fiduciary considerations in making that choice -- something that purveyors of that option have been known to gloss over.... [T]hese admonitions could -- and should -- be broadly applied to pretty much any new plan option -- and not just for small employers. To that end, [here is] a fill-in-the-blank template, replacing the word PEP with, say -- alternative investments, cryptocurrency, retirement income, or a managed account."  MORE >>

"[T]he best fit for alternatives in DC plans is a modest allocation within professionally managed multi-asset products -- especially target-date funds ... [P]lan fiduciaries must thoroughly document their decisionmaking process; comprehend valuation and liquidity mechanics for the asset classes they decide to add; and be prepared for increased scrutiny and possible litigation."  MORE >>

"The number of new forfeitures cases has increased year over year, with five cases filed in 2023, 30 cases filed in 2024, and 43 cases filed so far in 2025 ... Cunningham has not yet resulted in a material increase in recordkeeping fee challenges or ERISA excessive fee lawsuits.... [S]table value funds have been the primary target in excessive fee lawsuits this year and investment challenges have significantly outnumbered recordkeeping fee challenges.... [There is] a trend toward lower settlements, including a growing number of six-figure settlements. "  MORE >>

"[1] My recordkeeper is the plan administrator.... [2] Nobody is complaining about our service providers or investments, so everything is fine ... [3] Our investment adviser is solely responsible for investment decisions.... [4] We must sign or approve whatever our recordkeeper sends us.... [5] Our fiduciary responsibilities apply only to our 401(k) and pension plans.... [6] We can do everything ourselves."  MORE >>

"PE in retirement planning may not be new, but it certainly has been accelerated and rushed to the top of the radar for many retirement savers looking for new opportunities for their money. However, all that glitters may not be gold, and the risks associated with private markets can be significant due to their higher fees, liquidity strains and less established nature."  MORE >>

"AI is being used to streamline tasks such as verifying eligibility, adjudicating claims, and reconciling payroll. Service providers are deploying systems that can detect anomalies in claims data and tailor outreach based on participant demographics and financial needs.... Errors, such as misclassified procedures or misallocated funds, can occur, and accountability ultimately rests with the plan fiduciary, regardless of the technology involved.... Vendor relationships should be structured to allow for ongoing monitoring and documentation of AI-driven decisions."  MORE >>

"[T]he airline has requested that the injunction be amended to apply only to the managers of the Plan's core investment options and not to the thousands of investment options available through BrokerageLink, the Plan's brokerage window, 'which American does not select, control or influence.' " [Spence v. Am. Airlines, Inc., No. 23-0552 (N.D. Tex. Sep. 30, 2025; motion for reconsideration filed Oct. 28, 2025)]  MORE >>

"401(k) forfeitures are no longer a technical detail; they are a litigation flashpoint. Employers that ignore the issue risk costly lawsuits, negative press, and employee mistrust. The best defense is a proactive one: clear plan terms, documented fiduciary process, transparent communications, and timely application of forfeitures."  MORE >>

"Private equity funds are fundamentally different from mutual funds or ETFs, which have daily liquidity. PE funds are illiquid -- typically locking up capital for 5-10 years. Their valuations are based on models, not transparent market pricing. Their fees can be five to 10 times higher than traditional index funds. The standard for most models is the '2 and 20' model: 2% management fee and 20% of the profits, which is much higher than your typical index fund."  MORE >>

"While VFCP cannot be used to absolve the breaching fiduciary of criminal activity ... an innocent fiduciary may still use this program if they have also reported the crime to the appropriate authorities. If all goes well, and [the innocent fiduciary] successfully completes the VFCP program, [they] will receive a No Action Letter from the DOL stating that it will not initiate an investigation or impose any additional penalties."  MORE >>

"[T]he absence of monetary damages is potentially a big deal and may take away some of the economic fuel for copycat cases.... One takeaway ... is that ERISA plan fiduciaries should continue to ensure that all investment decisions, proxy voting, and shareholder engagement in general are driven by pecuniary objectives in the exclusive interest of plan participants." [Spence v. Am. Airlines, Inc., No. 23-0552 (N.D. Tex. Sep. 30, 2025)]  MORE >>

"The complaint alleges a months-long scheme in which [two employees], working as junior inside sales representatives at Human Interest, systematically funneled their employer's most sensitive intelligence, including partnership leads, customer data, and internal strategy documents, directly to Guideline. But not just to anyone at Guideline; Human Interest alleges the brothers were sharing it directly with the company's chief executive ... and its chief financial officer[.]" [Human Interest Inc. v. Sterri, No. 25-0149 (D. Utah complaint filed Oct. 2, 2025)]  MORE >>

"The lack of formal guidance does not mean cryptocurrency is without challenges in the retirement plan space. Several factors continue to weigh heavily on fiduciary decision-making: Volatility and loss potential ... Participant demographics ... Unsettled regulatory landscape ... Alternative access points."  MORE >>