News Archive

"The TrumpIRA has no mandatory features, at least in part because it stems from an executive order lacking statutory authority to require anyone’s participation. Could it make a significant dent in the coverage gap without mandatory participation? That might depend on how enticing the refundable Saver’s Match turns out to be."  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 >>

"Updating PTE 77-4 would better align the exemption with today's marketplace. It would give managers greater flexibility to offer plan participants diversified, professionally managed strategies -- including those with private market exposure -- within the familiar and well-understood ERISA compliance framework of PTE 77-4.... [E]xpanding the exemption ... would provide access to a broader range of investment options. More choice when paired with strong fiduciary oversight can support better diversification and long-term investment opportunities."  MORE >>

"The EBSA's emerging modus operandi reflects a recurring pattern of regulatory overextrapolation whereby narrow, context-dependent judicial observations are elevated into rigid doctrinal propositions.... While courts have long recognized procedural prudence as an important evidentiary component of fiduciary conduct, the EBSA has increasingly suggested -- either explicitly or functionally -- that adherence to procedural formalities alone is sufficient to establish fiduciary prudence under ERISA. That position is irreconcilable with ERISA jurisprudence."  MORE >>

"At its core, [FAB 2026-01] is constructed upon a fundamentally misleading and legally unsupported premise: that fiduciary prudence under ERISA may be established -- or defeated -- solely through evidence of 'procedural prudence,' divorced from substantive outcomes and objective economic reality. But that proposition is not the law. It has never been the law."  MORE >>

"The Investment Selection Proposal, the [DOL's] recent proposal that provides a guide for a prudent fiduciary process, was initially envisioned as a way to facilitate greater access for alternative assets in 401(k) plans. What the DOL produced in March instead was an asset-neutral proposal that does not emphasize alts or private securities at all.... The proposal might instead be called the 'Litigation Mitigation Proposal.' "  MORE >>

"At its core, [FAB 2026-01] portends agency leadership's intended shift away from broad or aggressive enforcement strategies toward a more disciplined and targeted approach.... EBSA emphasizes its continued commitment to protecting plan participants and beneficiaries, with a focus on where enforcement resources have the greatest impact."  MORE >>

"The memorandum, which has no legal effect, was issued by Daniel Aronowitz, Assistant Secretary for EBSA.... The fact that he issued it to the Director of Enforcement of field staff, as well as the field staff, underscores its importance, because the Director of Enforcement issued all prior Field Assistance Bulletins.... The emphasis on not making law by litigation and reducing participant litigation that results only in big payouts for plaintiff class-action lawyers is something the Assistant Secretary wrote about even before being appointed to lead EBSA."  MORE >>

"EBSA's goals as described by [Assistant Secretary of Labor Daniel Aronowitz] are consistent with potential Congressional action that would curtail the litigation risks and eliminate the regulatory burdens that have hindered plan sponsors and fiduciaries. Proposed legislation, for example, would end the [DOL's] practice of entering into common interest agreements with plaintiffs' law firms; require investigations to conclude within a reasonable timeframe; and reverse plaintiff-friendly Supreme Court precedent for ERISA prohibited transaction claims, including claims that an ESOP overpaid for employer stock."  MORE >>

"This article provides an overview of the current state of guidance on ERISA investment following DOL's most recent actions.... DOL formally reinstated the agency's longstanding regulatory definition from 1975.... DOL reinstated the text of PTE 2020-02 as originally adopted during the first Trump administration. DOL also updated its website to reflect the pre-2024 text of the six other PTEs amended in connection with the Biden-era rule.... DOL also reinstated a 2005 advisory opinion -- previously withdrawn by the Obama administration in 2016 -- that provides guidance on whether participant rollover recommendations are advice under the 1975 regulation. "  MORE >>

"The PBGC announced it intends to focus on requests that concern significant or newer legal arguments, with a particular interest in complaints before U.S. circuit courts of appeals and the Supreme Court. However, the PBGC will consider filing supporting legal arguments at the district court level if the dispute involved is significant enough to merit the PBGC’s input."  MORE >>

"As part of the Corporation's compliance assistance efforts, this program establishes a process for private parties to request that the agency file an amicus brief in cases with potential implications for PBGC or the broader private pension system.... Instructions for submitting an amicus curiae request can be found on PBGC's website. Upon receiving a request, PBGC will move expeditiously to evaluate it. Still, PBGC recommends early submission to facilitate thorough review. PBGC may ultimately decline to file an amicus brief. It may also elect to file one on its own initiative."  MORE >>

"[M]any states continue to require employers, regardless of industry, to offer a retirement plan. Adult-use cannabis companies ... are legally required at the state level to provide a plan while still facing limited access to compliant 401(k) providers because of ongoing federal illegality.... The complexity increases further for companies operating both medical and adult-use divisions.... Provider compliance risk has not gone away."  MORE >>

"ERISA's fiduciary duty runs to participants -- to the 70-year-old who cannot recover from a 65% drawdown, to the 55-year-old who is five years from retirement and has no ability to time the market, to the 35-year-old who deserves to have their retirement savings managed with the same discipline that pension trustees apply. An asset that collapses in market stress, fails as an inflation hedge, and rests on 15 years of unreliable return data does not meet that standard."  MORE >>

"In its current form, the rule's safe harbor rests on a broken fee disclosure framework for collective investment trusts holding private market assets, extends asset-neutral treatment to cryptocurrency without any participant protections, and creates robust legal protections for fiduciaries without corresponding transparency for participants. Each of these gaps undermines the rule's participant-protection potential and should be addressed in the final rule."  MORE >>

"[FAB 2026-01] contains a defect that is not merely analytical, but structural: it is internally inconsistent on its face. The Bulletin expressly conditions enforcement on alignment with 'clearly established case law,' yet the governing premise it adopts -- that fiduciary prudence may be satisfied by process alone -- is unsupported by, and in tension with, the very body of law it invokes. That contradiction is fatal."  MORE >>

"The cost and quality criteria specified in the order will narrow the IRAs eligible for being listed through the marketplace and may incentivize the development of new, low-cost, index-based products tailored to the new platform.... [T]he implementation timelines set forth in the Executive Order are tight. With the Saver's Match set to take effect on January 1, 2027, IRA custodians and recordkeepers will have a limited window to build the operational framework necessary to implement the federal matching contributions efficiently and accurately."  MORE >>

"The Fourth Circuit held ... that in the context of defined contribution plans, ERISA claims under section 502(a)(2) present claims for individualized monetary relief and thus are not appropriate for class treatment under Rule 23(b)(1).... If other circuits adopt the Fourth Circuit's reasoning, the decision could eliminate the availability of mandatory certification under Rule 23(b)(1), but the ruling does not foreclose the possibility that ERISA breach of fiduciary duty class actions arising under defined contribution plans can be filed under Rule 23(b)(3)." [Trauernicht v. Genworth Fin. Inc., No. 24-1880 (4th Cir. Mar. 10, 2026)]  MORE >>

"President Donald Trump's April 30 Executive Order establishing TrumpIRA.gov and expanding access to retirement savings has quickly drawn a largely supportive reaction across the retirement industry ... [This article provides] a roundup of 12 statements received ... highlighting both optimism about the potential to expand access -- particularly through alignment with the Saver's Match -- and caution about execution, standardization, and the need for legislative follow-through."  MORE >>

"Over the past few years, plan sponsors, services providers, and trade associations have been increasingly vocal about issues with EBSA's enforcement. FAB 2026-01 appears designed to address many of the key concerns, including the length of time of investigations and attempts to regulate through enforcement. This represents a fundamental shift in DOL's relationship with the regulated community, though the ultimate impact will depend, in large part, on how it is implemented by the DOL regional offices."  MORE >>

"President Donald Trump is expected to sign an executive order directing the Treasury Department to launch a new website where private-sector workers without access to employer-sponsored retirement plans could browse and enroll in qualifying accounts. The portal, to be called TrumpIRA.gov, is set to be operational by January ... That timing coincides with the rollout of a government contribution program for lower-income savers that traces back to Secure 2.0[.]"  MORE >>

"A federal auto‑enrollment plan could bring nearly 32.3 million new savers into the system and increase retirement wealth by 28%-49% under base plan designs.... Workers with 10+ years of sustained participation could see 67% to 125% higher retirement wealth under auto‑enrollment scenarios.... Strengthening the Saver's Match can boost average retirement wealth increases to 59%-77% and adds up to $1.35 trillion in projected retirement wealth over 10 years."  MORE >>

"DOL will prioritize investigations of the most egregious violations, provide advance notice of the agency's ERISA interpretations, commit to completing investigations within reasonable timeframes, and require senior leadership to review significant enforcement matters. Agency leadership believes these principles will promote 'transparency, consistency, and the rule of law.' [FAB 2026-01] doesn't explain how DOL will apply these principles to investigations and enforcement actions that are already in progress."  MORE >>

"As to civil (not criminal) enforcement, [FAB 2026-01] establishes a clear lodestar. The emphasis is to be on breaches of the duty of loyalty ... [E]nforcement activities need to have a close connection with: [1] The plain language of ERISA's text, [2] Clearly established guidance in final DOL regulations or prominently published sub-regulatory guidance, or [3] Clearly established court decisions.... [T]he DOL's Assistant Secretary must be informed by field personnel of 'significant enforcement activity,' which is to include any proposed settlements or voluntary corrective actions.... EBSA investigators and professionals must not do anything that compromises the DOL's independence, integrity, and credibility with the regulated or participant communities."  MORE >>

"The [DOL] has previously lent its support to a number of different defendants in forfeiture reallocation suits. Now, they're asking to participate ... in Ninth Circuit oral arguments -- scheduled for May 20 -- in a suit challenging how HP Inc. handled forfeited contributions in its 401(k) plan." [Hutchins v. HP Inc., No. 23-5875 (N.D. Calif. Feb. 5, 2025; on appeal to 9th Cir. No. 25-826; DOL amicus brief filed Jul. 9, 2025)]  MORE >>