News Archive

"Ultimately, the objective of the Executive Order is to dissuade proxy advisors from making recommendations based on DEI and ESG initiatives. The utilization of the ERISA fiduciary statutory scheme as a tool for dissuasion has direct and significant impacts on service providers to retirement plans. From a practical perspective, service providers and fiduciaries to ERISA plans should consider the following:"  MORE >>

"This [article] provides an overview of President Trump's recent Executive Order directing regulatory agencies to take action to enhance 401(k) plan access to such strategies, and continues by summarizing some prior history, moves on to outline concerns of plan fiduciaries and then offers some of the reasons proponents and opponents have concerning alternative assets in 401(k) plans."  MORE >>

"Proxy advisors who provide recommendations and analysis to shareholders (including ERISA plan fiduciaries) regarding how to vote proxies on corporate matters may not fit neatly within the traditional fiduciary framework. However, the Executive Order directs the DOL to consider whether proxy advisors to ERISA plans should be ERISA fiduciaries because of their 'relationship of trust and confidence' with their clients."  MORE >>

"[I]ndependent journalist and teacher Jim Vail documented a striking confrontation between Teacher Trustee Erika Meza and the Chicago Teachers' Pension Fund's external consultant, Callan Associates ... The exchange highlights the growing tension between rank-and-file educator fiduciaries and institutional insiders pushing private markets -- especially private equity -- with all of the attendant cost, complexity, and opacity that has plagued many U.S. public pension systems."  MORE >>

"In most ESOP transactions, particularly leveraged buyouts, there is an inherent conflict between the goals of selling shareholders and the goals of the ESOP.... The independent trustee serves as the neutral fiduciary, charged with evaluating the transaction and deciding whether the ESOP should proceed. This includes the initial transaction forming the ESOP and any subsequent transactions involving an ESOP. The independent trustee works to make sure these inherently conflicted transactions meet regulatory requirements by remaining arms-length transactions."  MORE >>

"The [DOL] has asked for additional time to file an amicus brief in a forfeiture reallocation suit involving Honeywell International. It's a suit that the fiduciary defendants have already prevailed in their motion to dismiss -- twice -- most recently last July, and that time with prejudice.' [Barragan v. Honeywell Int"l, Inc., No. 24-4529 (D.N.J. Aug. 18, 2025; on appeal to 3d Cir. No. 25-2509)]  MORE >>

"11th Circ. hints at ERISA exhaustion rule repeal ... 2nd Circ. backs toss of NY tTeamsters' pension suit ... DOL drops 5th Circ. fiduciary rule appeals ... Wells Fargo escapes 401(k) forfeiture suit."  MORE >>

"A recordkeeper switch is not simply a checkbox for 'vendor change'. It is one of the highest-risk operational events in a plan lifecycle. Blackout periods must be communicated clearly, participant funds must be accurately transferred, and plan fiduciaries must vigilantly follow every step of the process. If you hand off everything to your provider, and then treat the transition like a lunch meeting that maybe one of your folks attended, you are creating systemic risk."  MORE >>

"Plan fiduciaries notched another victory in a much-watched, bellwether case alleging breaches of fiduciary duty for failures to manage the drug costs of employer-sponsored health plans." [Lewandowski v. Johnson & Johnson, No. 24-0671 (D.N.J. Nov. 26, 2025)]   MORE >>

"A recent [District Court decision] is a helpful reminder that insurers do not get to 'ERISA-wash' a claim simply because coverage was offered to employees through an employer channel. When the employer stays neutral, employees pay the full premium, and the insurer sells what is functionally an individually owned policy governed by state law, ERISA may never come into play -- no matter how aggressively the insurer invokes it after a claim dispute arises." [Koo v. Unum Grp., No. 25-5797 (C.D. Cal. Dec. 16, 2025)]  MORE >>

"A number of national employers (and consultants) found some coal in their Christmas stocking yesterday -- courtesy of Schlichter Bogard LLC. While it is not the healthcare fiduciary litigation many have been expecting, it does deal with benefits, and charges of a breach of fiduciary duty in what were allegedly excessive premiums in accident, critical illness, cancer, and hospital indemnity insurance -- voluntary benefits that are not subsidized by employers."  MORE >>

"[Under the the PBM Fiduciary Accountability, Integrity, and Reform (FAIR) Act (HR 6837), a] PBM would be considered a fiduciary to a group health plan if it: [1] maintains a 'prescription drug provider network or prescription drug formulary through the purchase of prescription drugs;' [2] negotiates or aggregates 'rebates, fees, discounts or other price concessions for prescription drugs;' or [3] processes the payment of claims for prescription drugs."  MORE >>

"ERIC has long advocated that Congress enact strong PBM transparency and accountability reforms to provide relief for employers and workers nationwide. In addition to applying fiduciary standards to PBMs, ERIC has called for PBM reforms to foster greater accountability and affordability by: [1] Providing comprehensive PBM transparency. [2] Banning so-called “spread pricing.” [3] Requiring 100% pass-through of rebates and payments from drug manufacturers."  MORE >>

11 pages. "[A] recent executive action from the White House has signaled a shift toward a more favorable regulatory environment for Investment Solutions that incorporate alternative investments. This article examines the evolving regulatory landscape in this area and discusses the key considerations for Plan fiduciaries who are interested in giving their Plan participants access to alternative investments through the Plan's Investment Solutions."  MORE >>

"[T]he government asserted that the Sixth Circuit's ruling is incorrect and identifies two principal errors. The first error is the Sixth Circuit's conclusion that a plaintiff need not allege a meaningful benchmark to state a plausible claim of imprudence based on relative underperformance.... The second error asserted is the Sixth Circuit's acceptance that the plaintiffs below had pled a meaningful benchmark when asserting that the S&P Target Date Fund (TDF) was an appropriate comparator to the challenged funds." [Johnson v. Parker-Hannifin Corp., No. 24-3014 (6th Cir. Nov. 20, 2024; cert. pet filed Mar. 26, 2025, No. 24-1030; DOL amicus brief filed Dec. 9, 2025)\]  MORE >>

"[T]he Fifth Circuit affirmed the denial of Aetna's motion to compel arbitration and stay litigation, holding that [1] the parties did not clearly and unmistakably delegate questions of arbitrability to an arbitrator, and [2] the plan's ERISA claims seeking monetary relief against a fiduciary constitute equitable relief and therefore fall outside the scope of the arbitration clause." [Aramark Servs., Inc. Grp. Health Plan v. Aetna Life Ins. Co., No. 24-40323 (5th Cir. Dec. 18, 2025]  MORE >>

"During the hearing, the Subcommittee Chair specifically focused on a ... the ERISA Litigation Reform Act (HR 6084), that would override the most troubling aspects of the Supreme Court's decision in Cunningham v. Cornell.... [O]ptimism that such a solution could move forward on a bipartisan basis was dashed by the hearing. And without some bipartisanship in the Senate (at least 7 votes), legislation to fix the Cornell problem will not be enacted ... [The industry needs] to keep raising the profile of the baseless nature of so many of these suits, including, ironically enough, the Cornell suit itself. "  MORE >>

"Enacted into law in July of this year, the OBBBA brought us several new consumer-directed provisions ... The courts, including the Supreme Court, had a busy year as well.... The [ACA] made an appearance in 2025, notably in a major court case.... This year also saw the introduction of an alternative furnishing option for Forms 1095.... A flurry of fiduciary lawsuits this year shone a spotlight on the fiduciary responsibilities employers have as sponsors of group health plans.... [PBMs] also made their way onto this year's compliance-oriented center stage."  MORE >>

"As we look ahead to 2026, plan sponsors face a shifting landscape of regulation, fiduciary risk and opportunity, evolving plan design, and rapidly changing participant expectations. In many respects, this moment represents a continuation of change -- but with unusual force and urgency.... [P]lan sponsors will need to be proactive."  MORE >>

"With respect to ERISA-covered retirement plans, the EO instructs DOL 'to consider' revising the current advice fiduciary regulation to explicitly include proxy advisors as ERISA advice fiduciaries. In this note, [the authors] briefly discuss the EO's overall 'theory of the case' and the instructions to SEC and FTC [and] then describe the EO's ERISA-related instructions to DOL."  MORE >>

"The decision reinforces that ERISA plaintiffs must allege specific, like‑for‑like comparisons to survive a motion to dismiss.... For plan sponsors, the ruling underscores that well‑documented, routine recordkeeping arrangements and monitoring processes can help defeat speculative ERISA fee litigation at the pleading stage." [Fleming v. Kellogg, No. 22-0593 (W.D. Mich. Dec. 8, 2025)]  MORE >>

"Many small-plan sponsors are being nudged toward [target date funds] that slot in the recordkeeper's stable-value fund, a move that reduces administrative costs. The resulting lower fees benefit participants, but when cost-sharing arrangements start to shape a target-date manager's allocation decisions, they introduce real trade-offs. [This article looks at] what's driving the trend, how widespread it's become, and what those trade-offs mean for investors."  MORE >>

"CFA charterholders are bound not only by applicable law (including ERISA), but by an independent professional code that places client interests, transparency, and integrity of the profession above product sales or industry narratives.... [A]ctively recommending annuities in 401(k) plans may run afoul of multiple CFA Institute standards, particularly where the risks and conflicts inherent in annuities are minimized, obscured, or ignored."  MORE >>

"It is interesting that the Supreme Court requested briefs from DOL with respect to both certiorari petitions and that DOL is now taking an explicitly pro-sponsor position. Indeed, in Home Depot the position it is arguing for -- that the plaintiff bears the burden of showing loss-causation -- is a reversal of the position it had taken in two previous amicus briefs to the Court.... In its briefs DOL cites concerns about excessive litigation resulting in 'increased costs,' decreased 'efficiency' and 'predictability,' and a reduction in 'investment choices.' " 
[Johnson v. Parker-Hannifin Corp., No. 24-3014 (6th Cir. Nov. 20, 2024; cert. pet filed Mar. 26, 2025, No. 24-1030; DOL amicus brief filed Dec. 9, 2025); Pizarro v. Home Depot, No. 22-13643 (11th Cir. Aug. 2, 2024; cert. pet. filed Dec. 3, 2024; DOL amicus brief filed Dec. 9, 2025)]   MORE >>

"In both cases, the Solicitor General agreed with the petitioners ... that the legal questions are sufficiently important to warrant the Supreme Court's review. Further, the Solicitor General supported the plan sponsor and fiduciary defendants (and disagreed with the plaintiffs) on the merits of the legal questions being presented to the Supreme Court. This reflects a clear shift under the new Administration to interpret ERISA in reasonable and common-sense manner." 
[Johnson v. Parker-Hannifin Corp., No. 24-3014 (6th Cir. Nov. 20, 2024; cert. pet filed Mar. 26, 2025, No. 24-1030; DOL amicus brief filed Dec. 9, 2025); Pizarro v. Home Depot, No. 22-13643 (11th Cir. Aug. 2, 2024; cert. pet. filed Dec. 3, 2024; DOL amicus brief filed Dec. 9, 2025) ]   MORE >>