"A federal judge allowed proceedings in a slate of consolidated complaints against the Cigna Group to move forward because the case does not entirely rest on the outcome of the Supreme Court's future ruling in a similar case.... [The judge] argued that pausing the Cigna lawsuits -- which involve both underperformance and forfeiture misuse claims -- would be unfair to the plaintiffs because the resolution of [Anderson v. Intel] will not address all liability theories alleged in the Cigna actions." [In re Cigna ERISA Litigation, No. 25-2465 (E.D. Penn. Apr. 8, 2026)] MORE >>
"This article explores 3(16) fiduciary services, what truly are 3(16) services, why viewing them through the lens of 'risk mitigation' is misleading, and how employers should properly evaluate and benefit from this growing service model." MORE >>
"The DOL's recently proposed rule on alternative investments ignores the fact that ERISA section 404(a) requires a plan sponsor to conduct an independent investigation and evaluation on each investment option chosen for a 401k plan. However, the very nature of alternative investments typically involves a basic lack of transparency, which effectively prevents the verification by a plan sponsor required by ERISA 404(a)." MORE >>
"With funded status holding at elevated levels, plan sponsors find themselves at a crossroads, deciding whether to transfer pension risk or continue managing assets in-house.... Planned uses of surplus assets varied across respondents ... After a decade-long decline, the expected return on assets (EROA) assumptions moved higher for the third consecutive year.... The average discount rate was 5.4% at the end of 2025, down 10 basis points from the prior year." MORE >>
"[1] Supreme Court will consider 'meaningful benchmark' standard for ERISA imprudent-investment claims ... [2] Fourth Circuit Court of Appeals vacates district court decision certifying class ... [3] Third Circuit Court of Appeals affirms summary judgment, agreeing that defendants engaged in a prudent process ... [4] Recent developments in pension risk transfer cases ... [5] District court grants motion to dismiss claims challenging health plans' prescription drug costs with prejudice."
"Public pensions, normally the first to lead securities fraud cases, have been notably absent from the Apollo/Epstein stock drop litigation. That absence may reflect a deeper conflict: the same pensions that could sue Apollo for misleading disclosures are heavily invested in its private equity and private credit funds, where valuations remain opaque and untested." MORE >>
"The DOL's proposal is much broader than anticipated and represents a new interpretation by the DOL of ERISA's duty of prudence.... Managers of alternative investments should consider the proposal's implications on fee transparency, liquidity management, and valuation processes.... The DOL anticipates issuing separate interpretive guidance relating to the duty to monitor. Public comments on the proposal are due on June 1, 2026[.]" MORE >>
"[T]he Proposed Rule provides a welcome roadmap to plan fiduciaries responsible for selecting all of a plan's designated investment alternatives, not only those that relate to alternative assets. The regulation, when finalized, will allow fiduciaries to demonstrate their compliance with ERISA's fiduciary duty of prudence. However, it remains to be seen whether the Proposed Rule will deter ERISA litigation." MORE >>
Slide Deck. "[1] Background -- executive order: Democratizing access to alternative assets for 401(k) investors ... [2] Summary of proposed rule: Fiduciary duties in selecting designated investment alternatives ... [3] Safe harbor factors when selecting designated investment alternative ... [4] Specific requests for comments within 60 Days ... [5] Topics explicitly not addressed ... [6] Considerations for plan fiduciaries." MORE >>
21 pages. "At year-end 2023, 97% of participants held some portion of their assets in equities ... This compares with 87% of participants at year-end 2007.... On average, younger 401(k) plan participants allocate a higher share of their assets to equities than older participants.... At year-end 2023, 77% of 401(k) plan participants were in plans allowing loans, but only 15% of participants who were eligible for loans had loans outstanding against their 401(k) plan accounts." [Also available: Supplemental Tables (XLSX)] MORE >>
"The familiar contours of what has been feasible for decades, and which have shown recent signs of renewed energy -- so-called target-date, life-cycle and other 'allocator' strategies of which Alternative Assets are a component -- will continue to be the likely theatre of operations for the near future." MORE >>
"While the general statement of the requirement of prudence on the part of an ERISA plan fiduciary states that there is an obligation of the fiduciary to consider all relevant factors, and that this applies to the valuation of alternative assets as a plan investment option available to participants, this same fiduciary obligation can equally be read to require, with respect to more traditional types of plan investment options, that there be an evaluation of such matters as the impact on an investment of environmental factors, benefits of a diverse workforce and other governance and societal implications of the businesses included in the investment choices available to plan participants." MORE >>
"Annuity contracts have long provided the following capabilities to DC plans: [1] Asset accumulation.... [2] Protection of asset accumulations.... [3] Accumulations of guarantees.... [4] Protection and distribution of guarantees.... The question raised by the DOL's proposed prudence safe harbor, at least from the lifetime income side, will be whether and how any of the description of the standards apply to any of these particular features and the different types of contracts under which they are provided." MORE >>
"For plan sponsors willing to do due diligence, CITs can potentially reduce costs, improve flexibility, and support better long‑term outcomes for participants. But they can introduce risk and confusion just as easily as any other investment vehicle." MORE >>
"The DOL's proposal would introduce a safe harbor for offering alternative investments in 401(k) plans. The Supreme Court's review could clarify fiduciary liability and proof standards. These changes may accelerate adoption of private market assets in defined contribution plans." [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 >>
"[Judge Kymberly Evanson] dismissed the case on substantive grounds, noting that nearly all allegations about Athene's financial condition arose after the relevant transaction and thus did not show that the defendants breached their fiduciary duties when choosing Athene for the 2019 transaction." [Maneman v. Weyerhaeuser Co., No. 24-2050 (W.D. Wash. Mar. 31, 2026)] MORE >>
"The proposed regulation, through detailed examples, provides a roadmap to plan fiduciaries for investing in alternative assets, but also provides an asset-neutral 'process-based safe harbor' to guide plan fiduciaries in selecting DIAs. In providing the safe harbor, the DOL asserts that plan fiduciaries will enjoy reduced litigation risk -- another aim of the President's Executive Order. While the proposed regulation's safe harbor is helpful, there is an open question as to how effective it can be in taming the firehose of litigation that has been plaguing plans and plan fiduciaries for decades." MORE >>
"The proposed rule does not require fiduciaries to offer investments with allocations to alternative assets. However, the preamble includes extensive investment and market research supporting the benefits of institutional-quality investment diversity, and provides helpful guidance to plan fiduciaries to assist in their evaluation of such investments. Fiduciaries who wish to consider a broader universe of investments but do not have the requisite expertise should determine whether their investment consultants and advisors have such expertise and engage with them as appropriate, to determine what is best for their plan and their participants." MORE >>
"The proposed rule gives fiduciaries 'maximum discretion' to include alternative assets on plan menus. Following the safe harbor's six-factor framework is likely to establish a presumption of prudence. Plan sponsors and their counsel should begin aligning investment selection and monitoring processes with the six-factor framework now." MORE >>
"America's retirement laws have one crystal clear social purpose -- to let more Americans retire with dignity. It's a new day for those 90 million Americans and their families. The [DOL] has taken its thumb off the scale. Our laws and regulations do not permit us to disfavor (or to favor) specific investments or investment types. The Department is now fully out of the game of picking winners and losers." MORE >>
"A new safe harbor process framework does not eliminate the practical issue that alternative assets often involve more limited transparency, different fee structures, liquidity constraints, and valuation methodologies that can be harder to benchmark that can be more difficult to benchmark and defend. It is likely that plaintiffs' counsel would focus heavily on benchmarking, valuation practices, and fee reasonableness relative to documented expected benefits." MORE >>
"The Proposed Rule is process‑based and asset‑neutral. It neither mandates nor prohibits any asset class, including alternative investments.... Asset‑allocation vehicles, including target‑date funds, are expressly within the rule's scope. The Proposed Rule underscores the importance of documenting the fiduciary decision making process, the appropriate use of expert advisors, and ongoing monitoring." MORE >>
"[The SEC has] issued an Interpretative Release related to how federal securities laws will be applied to many cryptocurrency assets and related transactions. This release clarifies the SEC's approach in an area otherwise historically challenged with much uncertainty, especially with respect to the fundamental regulatory question of which crypto assets are considered securities and which aren't." MORE >>
"The Working Group has asked for input on how to ensure that indexed annuity illustrations give consumers reasonable expectations, after regulators observed materials suggesting annual returns of 10-25% for multiple years. The comment record -- including responses from industry trades, actuarial bodies, consumer advocates, and vendors -- strongly suggests that current practices around indexed annuity illustrations and disclosures will be revisited. The Working Group is considering short-term and long-term approaches designed to ensure consumers receive reasonable expectations for indexed annuity returns at the point of sale." MORE >>
"One of the most consequential features of the Proposed Rule is its breadth. Although the rulemaking was prompted by the Order's directive to facilitate access to alternative assets, the safe harbor's detailed fiduciary process framework is designed to apply to the selection and monitoring of all designated investment alternatives on a plan's menu -- not only to products offering exposure to private equity, private credit, real estate, or other alternative strategies." MORE >>
