News Archive

"President Trump on [June 29] announced in a social media post that he will nominate Keith Sonderling to be the next Secretary of Labor. Sonderling has been serving as Acting Labor Secretary since April, after then-Labor Secretary Lori Chavez-DeRemer resigned following allegations of misconduct and other improprieties."  MORE >>

"[As] TrumpIRA.gov involves neither actual delivery of a retirement savings platform nor any sort of integration with payroll providers, and participation will be voluntary, whether the program will act to increase savings or long-term wealth for individuals is yet to be determined."  MORE >>

12 pages. "This roundup highlights noteworthy bipartisan and partisan retirement-related bills pending in Congress, listed in chronological order based on their date of introduction, describing their content and status, and indicating where a more in-depth GRIST on the legislation is available."  MORE >>

"Comment letters from the business, finance, and employee benefits communities have been broadly supportive of the [DOL's] Investment Selection Proposal, though many of these letters have also recommended various improvements and clarifications. In particular, industry letters urged the DOL to clarify the status of outside fiduciary advisers, the duty to monitor and to reconsider the DOL's wording regarding 'maximizing' returns."  MORE >>

"Just over one year ago, the US Supreme Court addressed the pleading requirements for prohibited-transaction claims under ERISA ... The Court recognized the 'serious concern' that its decision could lead to an 'avalanche of meritless litigation,' and suggested five tools that district courts could use to screen out meritless, 'barebones' suits.... While the Supreme Court's five suggestions have not been widely adopted in the year since Cunningham, three of them have been utilized at least once, showing that courts are willing to use these tools in the right circumstances."  MORE >>

"Whereas the federal government previously exerted itself through a mix of tax deductions, exclusions, credits, and deferrals, the current Administration is pursuing a more engaged role. Building on the successes of 2022's SECURE Act 2.0, the One Big Beautiful Bill Act, and a slate of executive orders, the Administration has sought avenues to put money directly in Americans' pockets, or rather, their retirement accounts."  MORE >>

"DOL's work here is important. They aren't changing the standard. The proposal doesn't raise or lower the bar for investment selection. It aims to add clarity. A clearer process-based rule can help fiduciaries evaluate investments carefully, document their decisions, and have more confidence that a prudent process will be respected.... [1] Asset neutrality must stay at the center. [2] The final rule should address the broader range of fiduciary investment decisions. [3] DOL should provide additional clarity on certain concepts while preserving maximum fiduciary discretion."  MORE >>

"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 >>