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Believing These Myths About Service Providers Can Increase ERISA Fiduciary Liability

"[1] My recordkeeper is the plan administrator.... [2] Nobody is complaining about our service providers or investments, so everything is fine ... [3] Our investment adviser is solely responsible for investment decisions.... [4] We must sign or approve whatever our recordkeeper sends us.... [5] Our fiduciary responsibilities apply only to our 401(k) and pension plans.... [6] We can do everything ourselves."

Viewing ESG and ERISA Through a Political Lens: Does the American Airlines Relief Make Sense?

"[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)]

Did Empower's Cross-Selling Cross the Line? Why Fiduciaries Should Monitor Recordkeeper Marketing

"While the GAO and the SEC have expressed concern about cross-selling to retirement plan participants ... there is no body of case law specifically holding that plan data is a plan asset or that cross-selling violates ERISA. Further, courts have blocked enforcement of the [DOL's] rollover advice rule that makes rollover advice a fiduciary activity if there will be an ongoing advice relationship after the rollover. Faced with these challenges, plaintiffs have cast a wide net in their attempt to recover from Empower." [Williams‑Linzey v. Empower Advisory Group, LLC, No. 25‑14660 (D.N.J. complaint filed Aug. 15, 2025)

How to Allocate the Employee Equity Pool

"Company equity is a powerful tool for compensating employees, attracting investors, and aligning the interests of key stakeholders with the long-term goals of the business. It is also a complex area that requires careful planning and consideration to avoid common pitfalls. Founders should consider the equity as a resource that dilutes existing ownership and look at the long-term implications of their decisions to allocate equity."

Follow the ERISA Roadmap: Good Governance Leads to Good Decisions

"Good plan governance provides a roadmap for and is the key to fulfilling ERISA fiduciary responsibilities well.... [T]he governance structure sets out the various responsibilities and applicable deadlines, how those responsibilities will be fulfilled, and who is responsible for taking action. Good governance requires effective delegation, committee charters, regular oversight of plan providers and input from qualified investment and legal professionals."

Getting Ahead of the New Roth Catch-Up Requirement: Issues to Consider Now

"Do you need to add a Roth feature to your plan? ... Will you have deemed Roth elections? ... How will you track wages? ... How will you exclude self-employed individuals (owners and partners)? ... How will your payroll provider coordinate with your recordkeeper? ... Will this affect your nonqualified plan?"

Alternative Investments and 401(k) Plans: How Fiduciaries Can Navigate ERISA's Waters

"[1] Make investments through a fund that is an investment company under the '40 Act or a fund that is not treated as holding plan assets ... [2] Investigate custody arrangements to make sure they are institutional grade and that assets are not held outside the U.S.... [3] Consider indirect investments ... [4] Make sure that you will get the information required to report the investment on Form 5500 and show returns on participant disclosures.... [5] Consider making alternative investments available through self-directed brokerage accounts where participants take on more responsibility for their investment choices."

Why Don't More 401(k) Plans Have Lifetime Income Options?

"Plan sponsors seem afraid of annuities that can guarantee lifetime income or just unaware that they are an option. Is fear of annuities valid and, if so, what can be done about it?"

How Supreme Court's Cornell Decision Will Affect ERISA Lawsuits (PDF)

"The impact of this decision will extend beyond the Cornell dispute because all plan sponsors have similar service arrangements ... The Court ... [suggested] guardrails that could be imposed by district court judges to control those meritless lawsuits ... However, these guardrails would be imposed at the discretion of individual judges and their application would likely be inconsistent. Amending ERISA to clean up the language in Section 406 that the court was constrained by would be preferable[.]" [Cunningham v. Cornell Univ., No. 23-1007 (S.Ct. Apr. 17, 2025)]

Remembering Jeff Mamorsky: An Honored Colleague and ERISA Pioneer

"Jeffrey D. Mamorsky ... died on April 21 at age 79. Jeff was a trailblazer in the field of employee benefits law, and his contributions to the legal profession and the lives of countless individuals over the past five decades were both profound and enduring."