"[Technical Release 2026-01] represents a notable expansion of the Department's engagement with the evolving state-law landscape surrounding ESG-related proxy voting regulation.... The Release creates a challenge for proxy advisory firms because, in arguing that these state rules are not preempted by ERISA, the Department suggests that any firm that makes a disclosure of nonfinancial proxy voting under a state law with respect to ERISA assets would be violating ERISA." MORE >>
"For advisors and plan sponsors evaluating how to enhance long-term, risk-adjusted returns within a defined contribution menu, private equity may offer exposure to a different growth profile than public markets alone. That said, expanded access does not eliminate risk, and inclusion comes with important considerations." MORE >>
17 pages. "[ARA recommends] that the Department: [1] Provide additional context to clarify how the proposed rule aligns with the existing prudence regulation ... [2] Clarify the interaction of a fiduciary's plan menu strategy decision and a fiduciary's selection of a DIA ... [3] Further mitigate frivolous ERISA litigation by addressing monitoring in the final rule and more explicitly defining certain key concepts ... and [4] Refine certain provisions relating to the safe harbor[.]" MORE >>
"The SPARK Institute offers the following recommendations. [1] Clarify safe harbor provisions are only a safe harbor ... [2] Clarify scope of presumption and deference ... [3] Clarify impact of factors beyond the six safe harbor factors ... [4] Do not add safe harbor factors ... [5] Reconsider emphasis on benchmarks ... [6] Reconsider guidance that artificially incentivizes mutual funds over other investments ... [7] De-emphasize conflict-free valuations ... [8] Consider example covering stable value fund selection." MORE >>
19 pages. "[It] is essential for DOL to make clear that there is no one prudent process, and any factors listed in a final regulation are not the exclusive means by which fiduciaries may meet their prudence obligations.... The language in the preamble and the repeated reference to an ERISA section 3(21)(A) fiduciary in the examples could be interpreted to mean DOL prefers that type of assistance rather than other types, and any other equally appropriate assistance (or lack of assistance if not needed) would not satisfy the requirements in a final regulation." MORE >>
"The proposed rule will reduce regulatory uncertainty by providing clarity to plan fiduciaries as they consider new plan investments that can help retirement savers invest for a successful retirement.... Fiduciaries should not be forced to operate under the fear that offering a particular asset class will invite hindsight second-guessing and costly, often meritless litigation, even where exposure to these assets can be prudently made available in a DC plan through a professionally managed, diversified investment option." MORE >>
"Among the nearly 40,000 comments through May 29, were hundreds, if not thousands, of identical messages from individuals both supporting and decrying the proposal as either a great opportunity for retirement plan investors, or a great danger to them." MORE >>
"CFA institute warns that the DOL pathway allowing alternatives needs stronger Guardrails especially around target date funds.... [F]iduciaries must evaluate not only the Target Date Fund itself, but each underlying investment component individually.... [I]ncreasingly, Target Date Funds are being moved into weakly regulated state-bank Collective Investment Trusts (CITs) ... The fiduciary obligation therefore requires substantially enhanced due diligence." MORE >>
19 pages. "[T]he Proposed Regulation is a crucial step in restoring balance, limiting meritless litigation, and reducing uncertainty and improving outcomes for retirement savers.... Certainty and predictability in legal standards are absolutely essential to our retirement system, and the NPRM is an important step.... We strongly support the NPRM because it generally adopts the framework the retirement community has recommended and because it has the potential to meaningfully improve the ability of tens of millions of Americans to save for retirement." MORE >>
"The [DOL's] proposed regulation on selecting designated investment alternatives ... reflects an effort by the DOL to bring greater structure and clarity to how fiduciary decisions are evaluated under ERISA. For plan committees and advisors, that shift creates a number of practical opportunities.... [1] A clearer playbook for fiduciary decisions ... [2] Stronger documentation and defensibility ... [3] More confidence to evaluate broader investments ... [4] Reduced pressure to default to lowest cost ... [5] Better alignment with participant outcomes." MORE >>
"The Proposed Rule does not by itself resolve all of the structural questions that private funds and other nonregistered products face in DC plans. It does, however, offer a clearer framework for fiduciaries' prudent process and highlights where the operational features of these products (particularly liquidity, valuation, benchmarking, fees, and complexity) may have to evolve. For managers and sponsors, the near-term focus is likely to be both on vehicles such as target date funds, balanced funds, and CITs and other delivery structures that can satisfy the Safe Harbor's expectations, and on targeted comments aimed at ensuring that the final rule can be applied to nonregistered structures on workable terms." MORE >>
"Forty percent of respondents indicated [litigation] occasionally influences decisions, while nearly a quarter of respondents stated it frequently shapes their approach. While it's clear that litigation risk has an impact of decisions, many in the comments indicated that they feel pretty good about their documented processes for making plan design and administrative decisions." MORE >>
39 pages. "Aon conducted a study of the investment policy statements of the 50 largest U.S. public pensions.... There is no single 'right' way to write an IPS, but it should be structured and worded with intention to provide clear guidance for implementation Especially with an evolving investment environment -- it is important that IPS documents evolve with the markets while maintaining appropriate risk management." MORE >>
"[This] article examines how multi-layer asset allocation ranges can help institutional investors close unintended risk gaps in their investment policy statements. Aon's review of public pension investment policy statements found an even split between single-layer and multi-layer asset allocation ranges, despite the fact that single-layer approaches can allow significant risk drift without violating policy." MORE >>
"[T]his Essay argues that administrative and financial disclosure are not necessarily equivalent to fiduciary intelligibility. ... [It] identifies a participant-facing practice of fiduciary justification potentially latent within ERISA’s disclosure architecture itself. In a post-Loper Bright environment emphasizing statutory interpretation over accumulated administrative convention, the Essay argues that ERISA’s SPD framework may reveal a continuing commitment to participant-facing fiduciary stewardship rather than technical disclosure alone." MORE >>
"Although rooted in an executive order on alternative assets, the proposal addresses more than just alternative assets and outlines a new process-based safe harbor for fiduciary decision-making. This LawFlash outlines key themes and implications from the proposal." MORE >>
"Fiduciary oversight is an ongoing process, not a one-time event. Taking time each year to review plan operations, investments, fees, and participant engagement can help plan sponsors support employees’ retirement readiness while maintaining strong governance practices." MORE >>
"Oregon Potato claims that Marsh violated [ERISA] by using a consulting firm ... to manage the company's health plan.... According to [the lawsuit, the defendants] recommended in 2023 that the company switch from a fully insured health plan to a guaranteed level-funded premium plan. The arrangement allegedly enabled [the consulting firm] to collect excessive fees and disadvantaged plan participants, who failed to receive medical benefits for the guaranteed premiums they paid." [Oregon Potato Co. v. Strong, No. 25-5139 (E.D. Wash. Mar. 2, 2026)] MORE >>
"[In] its pursuit of a fiduciary safe harbor, the DOL is making the following mistakes: [1] Applying the standards of very large companies, with their substantial resources, to the small and mid-market plan sponsors and their fiduciaries; [2] Giving examples that appear to be imposing mandatory rules, which is inconsistent with a principles-based standard -- the prudent person standard of ERISA." MORE >>
"[A]sset managers and private equity fund sponsors have launched a coordinated push to bring private equity, private credit, and other alternatives into participant-directed accounts.... It is, we are told, time to democratize access. What this framing tactfully omits is that the accredited investor standard, the prudent expert rule under ERISA, and the diversification and liquidity expectations baked into Section 404(a) exist for reasons.... Stripping those guardrails away is not democratization. It is the unilateral repeal of protection, sold to the people who lost it as a favor." MORE >>
"Plan committees should evaluate whether their current fiduciary process, including investment review and selection framework, generally aligns with the proposed six‑factor analysis, particularly with respect to the rationale documented in committee minutes. Plan fiduciaries should consider with their ERISA counsel and investment advisor what preparatory steps, if any, may be appropriate in anticipation of the proposed regulations being finalized, including with respect to fiduciary process, committee documentation, and investment policy statements." MORE >>
"The U.S. Chamber of Commerce and the American Benefits Council filed a joint amicus brief ... asking the U.S. 4th Circuit Court of Appeals to set aside the ERISA class certification approved by a district court in a lawsuit involving the 401(k) pension plan of the National Rural Electric Cooperative Association....[The lawsuit was filed] by two current plan participants, representing a class of more than 77,000 participants.... The plaintiffs accuse NRECA and its fiduciary committee of breaching obligations under [ERISA] and charging the multiple employer plan's participants excessive administrative fees." [Mullins v. NRECA, No. 25-0994 (E.D. Va. Mar. 13, 2026; on appeal to 4th Cir. No. 26-0165)] MORE >>
"Yet another set of 401(k) plan fiduciaries have been targeted with a fiduciary breach suit regarding “massive underperformance relative to that of well-established, prudently managed, comparable funds that Defendants could have selected for the Plan.”" [Clayton v. Aon Corp., No. 26-6026 (N.D. Ill. complaint filed May 22, 2026)] MORE >>
"Federal courts are seeing a new wave of Employee Retirement Income Security Act (ERISA) suits based on university health plans that allegedly directed plan participants toward university-affiliated providers without appropriate transparency. Current litigation is pending involving Northwestern University and the University of Rochester, both of which utilize tiered network arrangements. According to the plaintiffs' claims, these arrangements result in much higher costs for plan participants who seek care outside the preferred affiliated network." MORE >>
"[The lawsuit] challenged the decision to invest in the Equitable Fixed Income Fund, which allegedly had investments in nine synthetic GICs offered by several large American banks and insurance companies.... Complicating matters was a contract with Alight Financial Solutions, LLC to provide recordkeeping services for the plan for which the plaintiff alleged received 'millions of dollars in indirect compensation from investments within the Plan' in addition to direct fees paid by Equitable." [Tedford v. Equitable Financial Life Ins. Co., No. 25-2180 (D.N.J. May 19, 2026)] MORE >>
