"The EBSA's position falsely suggests that fiduciary prudence is an either-or proposition, while fiduciary prudence under ERISA actually requires consideration of both procedural and substantive prudence.This analysis argues that an exclusive focus on proceduralism is inconsistent with ERISA's legislative history, ignores the dual nature of fiduciary prudence, and creates a regulatory environment that favors the insurance industry over plan participants and at the expense of both plan participants and their beneficiaries." MORE >>
"[EBSA] filed four friend-of-the-court briefs in circuit courts alone in January, putting it on track to outpace the number the agency has filed in recent years.... The DOL is on track to easily outpace the seven briefs it put out in 2016, the most it filed annually in ERISA cases over the past ten years[.]" MORE >>
"Individual plan participants entangled in 401(k) excessive-fee and investment-underperformance lawsuits had a median recovery of just $67.79 in 2025, even as law firms representing plaintiffs averaged $1.59 million per case in fees ... While supporters of such complaints argue that litigation (and the threat of litigation) deter misconduct and force better plan practices, critics say the figures show workers gain little, while employers face mounting costs that ultimately shrink retirement benefits and plan services." MORE >>
"The [DOL's amicus brief], which argued the Lockheed retirees lack standing to challenge the company's pension de-risking transaction, is inconsistent with [ERISA] and would undermine the statute's standards by 'insulating fiduciary conduct from review precisely when judicial oversight is most needed,' Phyllis Borzi and Ali Khawar told the US Court of Appeals for the Fourth Circuit in a Jan. 30 amicus brief backing the Lockheed workers." [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"Some retirement savers might experience life-altering losses if retirement plan sponsors and advisers steer them into risky and hard-to-value investments like private equity and cryptocurrencies....[P]rivately traded investments ... may be difficult to sell when workers are ready for retirement and digital collectibles ... have no intrinsic value ... Marketing risky investments to millions of retirement plan participants is a way to bail out billionaires at the expense of ordinary savers ... A speculative bubble like the one in the roaring 1920s might grow and lead to a crash with economywide repercussions." MORE >>
"Amicus briefs are not binding law, but neither are they merely they symbolic. Until regulatory guidance is issued, some key takeaways include the following: [1] A signal to the plaintiffs' bar ... [2] A brief from the Solicitor General on behalf of the DOL can shape outcomes, even if the Supreme Court ultimately does not take the case.... [3] The DOL's new posture suggests that process and judgment should get more deference.... [4] The briefs telegraph where the DOL is heading on formal rulemaking." MORE >>
"The rule and related amendments to seven prohibited transaction exemptions (PTEs) were originally scheduled to go live on Sept. 23, 2024. The dismissal of DOL's appeal leaves the court orders blocking the rule in place pending resolution of the legal challenges seeking the rule's invalidation. However, the rule is unlikely to take effect in its current form now that DOL has indicated it expects to engage in further rulemaking." MORE >>
"[ERISA Litigation Reform Act (HR 6084)] aims to curb meritless class actions by clarifying the pleading standard applicable to ERISA-prohibited transactions claims. The reform effort comes in response to recent litigation trends and the United States Supreme Court's decision in Cunningham v. Cornell last year, which effectively lowered the pleading standard for prohibited transaction claims under ERISA." MORE >>
"[E]liminating tax-deductible contributions for retirement accounts that already contain at least $5 or $10 million would raise very little revenue on an immediate basis (less than $0.15 billion per year or $0.05 billion per year, respectively).... [In] contrast, requiring immediate disgorgement of excess balances would raise larger amounts of revenue on an immediate basis -- $84 billion for accounts in excess of $5 million, or $11 billion if the limit were set at $10 million. In all the examples, however, future revenue would change depending on rates of return, future tax rates, and the timing of distributions that would have been taken in the absence of the policy." MORE >>
"[T]he Protecting Prudent Investment of Retirement Savings Act (HR 2988) ... would significantly restrict the consideration of non‑pecuniary factors in retirement plan investing.... It would also impose new nondiscrimination rules for service provider selection, tighten fiduciary obligations with respect to proxy voting, and require enhanced disclosures for brokerage windows." MORE >>
"Because ERISA is a remedial statute grounded in trust law, and because fiduciaries exclusively control the information necessary to assess causation, the burden of proof on causation properly rests with the fiduciary once a breach and loss are shown. Any contrary rule would undermine ERISA's core purpose, reward informational asymmetry, and render fiduciary duties unenforceable in practice. So, the obvious question is -- why would the EBSA submit an amicus brief that is totally inconsistent with legal precedent and tries to burden plan participants with an impossible task[.]" [Pizarro v. Home Depot,No. 22-13643 (11th Cir. Aug. 2, 2024;cert. pet. filedDec. 3, 2024;motion to dismissfiled Jan. 7, 2026)]MORE >>
"The Intel case is not about whether private equity is 'good' or 'bad.' It is about whether ERISA fiduciaries can hide the governing investment contracts, invent benchmarks, and still claim compliance with the strictest fiduciary law in the country. If Intel prevails, the consequences will not stop with private equity. They will extend directly to target-date funds, annuities, private credit, and any opaque product that depends on secrecy to survive scrutiny." [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 >>
"The [ERISA Litigation Reform Act (HR 6084)] would impose a stay on discovery once a defendant files a motion to dismiss under Rule 12 in any action against a plan or its fiduciaries under Section 502. The stay would be automatic unless the court finds that particularized discovery is necessary to preserve evidence or prevent undue prejudice. The bill would also impose document preservation obligations during the pendency of the stay." MORE >>
"Current proposals focus on practical improvements such as streamlining plan administration, expanding access for younger and independent workers, and introducing greater flexibility in investment and income options.... [This article describes] the retirement bills that have been introduced in this Congress, including what they mean to employers and what plan design decisions may lie ahead." MORE >>
"What we saw in 2025: [1] Supreme Court: lowering the pleading bar for prohibited transaction claims ... [2] Defined benefit plans: evolving pension risk transfer and actuarial equivalence litigation ... [3] Defined contribution plans: expanding fiduciary breach theories ... [4] Health plan litigation: mounting cases even as health plan fiduciaries score wins ... [6] The Trump administration focuses on ERISA ... What [to watch] in 2026: [1] ERISA in the Supreme Court: the meaningful benchmark divide ... [2] ERISA jury trials in the Second Circuit: the saga continues." MORE >>
"With a deadline ticking, the [DOL] has submitted for review a proposed rule that would clarify its position on alternative assets and the appropriate fiduciary process. The DOL submitted the proposal to the White House's Office of Information and Regulatory Affairs on Jan. 13.... [OMB] typically has up to 90 days to review rules; however, that period could be shorter. With the 180-day deadline ticking, it seems possible that the OMB will move quickly in its review." MORE >>
"Filed as part of an ongoing effort to stop regulation by litigation, the brief ... reiterates the appropriate standards for derisking transactions known as pension risk transfers.... In the brief, the department said fiduciaries enjoy deference a long as they engage in the pension risk transfer process in a way that demonstrates prudence and loyalty." [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"On January 9, 2026, the [DOL] filed an amicus brief defending Pension Risk Transfer (PRT) annuities -- arguing, astonishingly, that stripping retirees of ERISA protections, PBGC insurance, and diversified pension trusts causes no material harm to participants.... This brief is not a neutral statement of law. It is an industry advocacy document that -- if accepted by courts -- would effectively legalize the quiet dismantling of defined benefit pensions, one annuity contract at a time." [Konya v. Lockheed Martin Corp., No. 24-0750 (D. Md. Mar. 28, 2025; on appeal to 4th Cir. No. 25-2061)] MORE >>
"The Health, Employment, Labor, and Pensions (HELP) Subcommittee on [January 7] held a hearing to debate lifetime income options in retirement plans and whether policymakers should consider potential legislation that would promote the tools." MORE >>
"Deputy Secretary of Labor Keith Sonderling told a panel of industry experts that the [DOL] plans to issue more guidance and to reduce 'regulation by litigation.' Sonderling said the DOL would deliver a new rule on the inclusion of private investments in DC plans, a rule that would provide plan sponsors with a safe harbor from potential litigation that often curtails their hesitancy to adopt private assets." MORE >>
"[T]he ERISA Litigation Reform Act (HR 6084) -- aims to curb ERISA lawsuits by making it more difficult for certain prohibited transaction claims to survive a motion to dismiss.... The bill would override [Cunningham v. Cornell] by amending ERISA to require a higher pleading standard for prohibited transaction claims involving the payment of allegedly excessive compensation to plan service providers." MORE >>
"Industry experts say 2026 will be defined by policy momentum and plan sponsor caution over alternative assets in defined contribution plans.... Advisers say client inquiries are rising, and the industry is building the infrastructure to make private equity, private credit and real assets work inside default solutions, likely as part of target-date funds, managed accounts or other professionally managed offerings." MORE >>
"Litigation reform and the Supreme Court's Cornell decision ... Risk transfer litigation ... Alternative assets Executive Order.... Proxy advisory firm Executive Order.... DOL intends to revise ESG regulation.... Aronowitz confirmed as EBSA head ... DOL advisory opinion on lifetime income QDIA.... DOL 'non-enforcement' policy for transfers of small retirement benefits to state unclaimed property funds.... DOL files amicus briefs requesting Supreme Court review of two key ERISA fiduciary decisions and supporting sponsor fiduciaries.... Forfeiture litigation." MORE >>
"[TIAA's] retirement security Policy Roadmap ... aims to provide an actionable, bipartisan path forward for employers, workers, and policymakers to improve retirement outcomes for America's workers.... [T]he Policy Roadmap calls for ... defined contribution plan sponsors to set default employee contribution rates at 6% with annual auto-increases, and for retirement policymakers to require minimum default contribution rates of 6% for plans with annual auto-increases." MORE >>
