News Archive

"[T]he American Ownership and Resilience Act (AORA) [HR 3248; S 1645] would expand pools of investment capital necessary to grow the field while respecting the original intentions of the founders of ESOP legislation to create not ephemeral employee ownership but stable, long term employee ownership which broadens participation in business ownership and strengthens the American economy."  MORE >>

"[T]here will be no decrease in the amount of ERISA litigation as long as the main proponents and beneficiaries of frivolous litigation in this country remain rooted.... Defense lawyers who might sympathize with the plight of their clients have no incentive to curtail baseless lawsuits as it means fees for them ... Big settlements mean big profits [for insurers] since loss ratios determine premium rates.... [S]tate governments get a premium tax from insurance companies as a percentage ... of the premiums written in each state."  MORE >>

"[1] ERISA remains the foundation of retirement security ... [2] Employers need relief from excessive litigation ... [3] Secure 2.0 is changing how businesses support employees ... [4] Employees should engage with their benefits early."  MORE >>

"[T]hree former Assistant Secretaries of Labor for the Employee Benefits Security Administration (EBSA) offered their insights on some key matters affecting retirement plans and those who administer and serve them.... Lifetime income ... Alternative investments ... Panelists drew on their unique perspectives and offered a big-picture view of EBSA and its mission."  MORE >>

"Pete Stavros, founder of Expanding ESOPs, shared ... a much more detailed public policy proposal with the ultimate aim not to promote ESOPs as we know them today, but to convince Congress to create a new type of qualified retirement plan under [ERISA] and to call them ESOPs. ... TEA agrees with some of the issues Expanding ESOPs highlights in its principles. However, the detailed STEP policy proposal is the wrong solution if the true goal is employee ownership and building retirement wealth for employee owners."  MORE >>

17 pages. "[T]he PBGC's disavowal of federal protection for retirees after pension risk transfers was never authorized by Congress and conflicts with both the statute and the PBGC's own 1981 position. The authors trace the legal history, legislative intent, and policy implications demonstrating that the law already requires PBGC guarantees to continue even after pension benefits are annuitized. Their analysis calls on regulators and courts to restore this 'forgotten promise' to strengthen the integrity of the U.S. pension system."  MORE >>

"[T]he 'Saving for the Future Act' [HR 5887] aims to increase Americans' retirement savings while helping workers save for short-term emergencies.... Under the legislation, companies with ten or more employees would be required to contribute at least 50 cents per hour worked to participants' retirement accounts. This minimum would increase to 60 cents after two years and continue rising in line with wage growth."  MORE >>

"[A] list of things ... that those in our industry generate, promote and often share as fact without any application of common sense, and no apparent appreciation for the damage done by their complicity in sharing such nonsense.... [1] Reporting on average -- well, anything ... [2] Surveys that show an average or median account balance -- with no delineation for age or tenure.... [3] A single provider survey that shows an average or median account balance.... [4] Surveys that claim participants want things they can't possibly understand.... [5] Data 'analysis' that takes real stuff, combines it with fake stuff, makes up a new scary-sounding name for it, and then claiming that vast majorities of all the retirement plans in existence are in 'violation.' "  MORE >>

"If the Supreme Court sides with the Second Circuit, ... withdrawal liability estimates requested by and provided to employers prior to their withdrawal will be more reliable estimates of the actual withdrawal liability.... If, however, the court sides with the D.C. Circuit ... withdrawal liability estimates will be arguably unreliable for purposes of estimating the actual withdrawal liability, making it more difficult to plan for withdrawal liability in the same manner as an employer does any other corporate liability." [M&K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 22-7157 (D.C. Cir Feb. 9, 2024; cert. pet. granted Jun. 30, 2025 No. 23-1209)]  MORE >>

20 pages. "This paper examines the unique challenges confronting Gen-X, including gaps in protected income, inadequate financial literacy, and shifting work and caregiving dynamics. It also explores policy solutions and tools -- such as annuities, improved access to financial advice, and innovative income frameworks -- that can help this generation achieve greater security."  MORE >>

"Until now, DOL has virtually always supported plaintiffs or, just as troubling, remained silent when plaintiffs filed meritless lawsuits against plan sponsors. Whether through this action or inaction, DOL's effective regulation through litigation has failed to fulfill its responsibilities under ERISA and inappropriately deputized plaintiffs' attorneys to clarify what is required and prohibited by the law. DOL's forfeiture brief comes at an especially helpful time, as these forfeiture cases have just begun to reach the federal courts of appeal."  MORE >>

"The Justice Department has asked for another extension in a legal challenge involving the so-called fiduciary rule ... The filing explains that two district courts issued universal stays of the effective date of these regulatory changes, and that the government appealed both district court decisions." [FACC. v. DOL, No. 24-0163 (E.D. Tex. Jul. 25, 2024; on appeal to 5th Cir. No. 24-40637; motion to extend filed Oct. 22, 2025)]  MORE >>

"The plaintiffs contend that the defendants caused the plan to overpay for the stock by tens of millions of dollars ... [and] sought equitable relief ... [P]laintiffs contended that [1] they had no obligation to exhaust the plan's internal appeals, and [2] assuming such an obligation existed, they should be excused from that requirement.... The Eleventh Circuit began by acknowledging that while '[a]ll circuits require exhaustion in the ERISA context,' the Eleventh Circuit was special. 'Where we diverge is in our application of the exhaustion requirement to statutory violation claims.' " [Bolton v. Inland Fresh Seafood Corp. of Am., Inc., No. 24-10084 (11th Cir. Oct. 15, 2025)]  MORE >>

"A recent Eleventh Circuit decision opens up a route for overturning the appellate court's strictest-in-the-nation precedent requiring administrative exhaustion of all claims brought under [ERISA], ... given that two judges in a panel concurrence advocated for such action following en banc review." [Bolton v. Inland Fresh Seafood Corp. of Am., Inc., No. 24-10084 (11th Cir. Oct. 15, 2025)]  MORE >>

"[E]ven though American Airlines followed a prudent investment selection process and there were no monetary damages to award because no losses could be tied to American's decisions, the court injected itself into running the plans permanently and ordered that annual disclosures not required by ERISA be given to all participants.... ERISA explicitly permits courts to grant injunctive relief, but it is far from clear that the specific relief awarded in the second American Airlines decision is consistent with ERISA or even with the first American Airlines decision." [Spence v. Am. Airlines, Inc., No. 23-0552 (N.D. Tex. Sep. 30, 2025)]  MORE >>

"S 2403, the Retire Through Ownership Act ... would ... [a]mend the definition of 'adequate consideration' under ERISA to provide a fiduciary with good faith reliance on the methodologies set forth under [Rev. Rul. 59-60] in determining the fair market value of an asset."  MORE >>

" 'Pension systems with no or limited restrictions tend to perform better in the Index,' commented Tim Jenkins, lead author of the report and Partner at Mercer. 'This suggests that instead of imposing mandates, governments can focus on making investment options attractive, promoting transparency and sound governance, and fostering collaboration with the private sector to support sustainable retirement systems and economic growth.' "  MORE >>

"The [DOL] announced in September that it would be revisiting the definition of fiduciary adviser, with the aim of issuing a new rule in 2026.... The regulatory agenda that DOL published did not provide much detail on what a new rule might look like, saying only that it 'will ensure that the regulation is based on the best reading of the statute.' "  MORE >>

"[T]he Retire through Ownership Act (S 2403), could make it easier for companies to avoid legal challenges to the valuation of shares the ESOP acquires.... [T]he Employee Ownership Representation Act of 2025 (S 1728), would add ESOP representatives to the ERISA Advisory Council.... Both bills will now move to the House."  MORE >>

"There are about 31.9 million 'forgotten' 401(k) accounts, totaling about $2.1 trillion, according to a recent report from Capitalize.... Capitalize's estimate is likely overestimated. Or more precisely, they inappropriately include accounts left behind at a previous employer as 'forgotten.' "  MORE >>

"The [Cunningham v. Cornell] ruling is badly mistaken. Because the definition of 'party in interest' includes every plan fiduciary, the Court's decision allows lawsuits for all transactions involving a plan's receipt of services, even the services mandated by ERISA. On the Court's reading of the statute, ERISA both requires that fiduciaries perform specific acts and simultaneously prohibits fiduciaries from performing those same acts." [Cunningham v. Cornell Univ., No. 23-1007 (S.Ct. Apr. 17, 2025)]  MORE >>

"While ERISA claims are indeed arbitrable as a general matter, a growing number of circuit courts have ruled that arbitration clauses cannot overreach and extinguish substantive remedies. Several plan sponsors have tried to add arbitration clauses that waive plan-wide remedies, but courts have found them to constitute prospective waivers of participants' statutory rights, rendering them unenforceable under the 'effective vindication' doctrine."  MORE >>

"The looming threat of costly, prolonged legal challenges discourages companies from exploring innovative solutions -- even those that might objectively serve participants' best interests. The primary concern is not an absence of fiduciary expertise, dedication or substantial regulatory ambiguity; rather, it is a litigation environment that inhibits constructive and meaningful dialogue.... Trump's executive order calls on agencies to clarify guidance and facilitate innovation and, importantly, to relieve the litigation risk currently faced by prudent fiduciaries."  MORE >>

"Aronowitz's appointment signals a potential turnaround in EBSA's regulatory posture, with implications for ongoing litigation, compliance strategies and fiduciary risk management. His leadership is expected to bring a more pragmatic and business-friendly approach to EBSA's enforcement and rulemaking priorities."  MORE >>

"[E]stimates from the Morningstar study ... show that, depending on the behavioral response, the Saver's Match could increase retirement wealth at 65 for Gen Z and Millennials by 8 to 12 percent ... Since Roths are currently used in state auto-IRA programs, the states will need to ensure that workers have access to a separate traditional account for receiving the Saver's Match. So far, they appear to be stepping up, but the withdrawal process may still be hard for workers to understand."  MORE >>