The Rosenbaum Law Firm P.C. Blog

If you’ve been paying attention to retirement plan news lately, you know that alternative investments are no longer a fringe conversation. They’re front and center. The Department of Labor has now taken a significant step by sending a proposed rule on alternative investments to the White House for review. This isn’t casual guidance or a vague press statement. It’s a formal regulatory move that could shape how defined contribution plans look for years to come.

This proposal traces back to last year’s executive order directing the DOL, Treasury, and SEC to reexamine how ERISA fiduciaries handle private markets and other non-traditional investments. For decades, the retirement plan world has played it safe. Stocks, bonds, and cash ruled the day, largely because anything outside that box felt like an invitation to litigation. Illiquidity, valuation challenges, and participant understanding have always made alternatives a tough sell.

Now the government appears to be signaling that modernization is on the table. The proposed rule has been sent to the Office of Management and Budget, which means the formal review process has begun. The text isn’t public yet, but once it is, there will be a comment period where industry stakeholders can weigh in. That alone tells you this isn’t theoretical. This is moving.

The big question is what the final rule will actually say. Will it provide clearer standards for fiduciaries? Will it offer any comfort that private equity, real estate, infrastructure, or even digital assets can be used prudently in defined contribution plans? Or will it simply restate existing fiduciary principles with a new label slapped on the cover?

What’s clear is that the industry is changing whether regulators like it or not. Providers are pushing alternatives. Sponsors are curious. Participants are asking for diversification beyond the traditional menu. The DOL now has a chance to either bring clarity or add another layer of uncertainty.

Innovation is fine. But under ERISA, process still matters more than novelty. This proposal could be a turning point—or just another rule that looks important until the first lawsuit tests it. Either way, fiduciaries would be wise to pay attention.

If someone had told me 15 years ago that one of the world’s largest alternative asset managers would be partnering with a mainstream retirement plan provider to bring private market investments into 401(k) plans, I would have assumed they were confusing a pension plan with a hedge fund cocktail party. Yet here we are.

Empower has announced a new partnership with Blackstone, adding private equity, private credit, real estate, and infrastructure strategies to its defined contribution platform. This is not a fringe experiment. This is a serious push to make institutional-style investing available to everyday retirement savers, delivered through collective investment trusts and primarily accessed via managed accounts and advice-based models.

This move didn’t come out of nowhere. Over the past year, Empower has been building a private markets lineup with some of the biggest names in asset management. Blackstone’s entrance adds scale, brand recognition, and credibility to the effort. When a trillion-dollar asset manager steps into the 401(k) space, it’s no longer a theoretical conversation about “someday.” It’s a statement about where the industry thinks retirement investing is heading.

That said, this isn’t about replacing target-date funds or turning participants into day traders of illiquid assets. The pitch is diversification—giving long-term investors exposure beyond public stocks and bonds in a controlled, professionally managed way. Done correctly, that can make sense. Done poorly, it can become a fiduciary headache.

Plan sponsors and advisors should be asking hard questions. How do fees compare? How is liquidity managed? What happens in market stress? How is participant suitability determined? And perhaps most importantly, how do you document fiduciary prudence when offering strategies that most participants have never heard of and don’t fully understand?

Private markets in defined contribution plans are no longer a hypothetical future. They’re here. Whether this becomes a meaningful evolution in retirement investing or an option that only a small percentage of participants ever use will depend on execution, education, and fiduciary discipline.

This isn’t a joke. But it is a turning point worth paying attention to.

For years, forfeitures were treated like found money in 401(k) plans. Someone leaves before vesting, the plan keeps the unvested employer contribution, and no one loses sleep.

Then came the lawsuits.

Plaintiffs have begun challenging how forfeitures are used—particularly when they’re applied to offset employer contributions instead of paying plan expenses. Suddenly, something that felt routine is being reframed as a fiduciary breach.

Here’s the reality: forfeitures are not inherently bad. ERISA permits them. The IRS permits them. Most plans are designed to use them. But how you use them—and how well your plan documents support that use—matters.

The fiduciary risk isn’t in having forfeitures. It’s in:

· Ignoring plan language

· Failing to apply forfeitures consistently

· Letting forfeitures accumulate without a clear purpose

· Never revisiting the decision

If forfeitures reduce employer contributions, sponsors should be prepared to explain why that approach makes sense for participants and the plan as a whole. If they pay expenses, sponsors should ensure that’s clearly authorized and properly documented.

This isn’t about panic. It’s about attention.

Forfeitures are a perfect example of an ERISA truth: permitted does not mean protected. Protection comes from clarity, consistency, and documentation.

In today’s litigation environment, anything that quietly benefits the employer deserves a second look—not because it’s wrong, but because it needs to be defensible.

Free money has strings attached. Fiduciaries ignore them at their peril.

When a 401(k) lawsuit is filed, the first thing plaintiffs’ counsel asks for isn’t your investment returns. It’s your committee minutes.

That surprises plan sponsors. It shouldn’t.

ERISA litigation is less about outcomes and more about process. Committee minutes are the written record of that process—or the written proof that there wasn’t one.

Good minutes don’t need to be novels. But they do need to show:

· What issues were discussed

· What information was reviewed

· What questions were asked

· What decisions were made—and why

Bad minutes are worse than no minutes. I’ve seen minutes that say things like “fees reviewed and approved” with no context, no benchmarking, and no discussion. That’s not protection—that’s an invitation.

The goal isn’t to script perfection. It’s to document engagement. Courts understand fiduciaries aren’t infallible. What they won’t forgive is rubber-stamping.

Here’s what strong minutes avoid:

· Jokes

· Casual language

· Statements suggesting decisions were predetermined

· Overreliance on providers without discussion

And here’s what they emphasize:

· Independent thinking

· Follow-up questions

· Conflicts disclosed and addressed

· Decisions revisited over time

Think of committee minutes as your future self’s best friend. Years later, when memories fade and personnel changes, those minutes may be the only evidence that fiduciaries took their role seriously.

Under ERISA, silence isn’t neutral. It’s suspicious.

One of the most dangerous phrases in the 401(k) world isn’t “lawsuit” or “DOL audit.” It’s: “Everyone does it this way.”

I hear it all the time from plan sponsors. Everyone uses revenue sharing. Everyone uses forfeitures to offset employer contributions. Everyone has the same default investment lineup. And yes—many of those practices may be permitted. But ERISA doesn’t ask whether something is common. It asks whether it’s prudent.

Fiduciary duty is not a popularity contest. Courts don’t care how many other plans do the same thing you do. They care whether your fiduciaries engaged in a thoughtful process, understood the impact on participants, and made a reasoned decision based on facts—not habit.

That’s why “everyone does it” has become such a weak defense in recent litigation. Plaintiffs’ lawyers love industry norms, because norms often hide complacency. And complacency is kryptonite under ERISA.

If your plan uses a common practice, ask the uncomfortable questions:

· Why does this plan do it this way?

· Who benefits?

· What alternatives were considered?

· When was the decision last reviewed?

The goal isn’t to be different for the sake of being different. It’s to be deliberate. Fiduciary best practices come from process, not tradition.

In the retirement plan world, comfort is often the enemy of compliance. If you’re relying on the idea that “no one ever gets sued for this,” you’re already thinking about fiduciary duty the wrong way.

Every few years, someone declares revenue sharing “dead.” And every few years, it stubbornly survives. Revenue sharing is still legal. It’s still widely used. And yes, it’s still dangerous—especially for plan providers who don’t explain it well.

The risk isn’t revenue sharing itself. The risk is how casually it’s treated.

Providers often assume that if revenue sharing is disclosed, the job is done. It’s not. Disclosure doesn’t equal understanding, and understanding doesn’t equal prudence. Plaintiffs know this, which is why revenue sharing keeps showing up in complaints.

Here’s where providers get into trouble: they fail to help sponsors understand the tradeoffs. Revenue sharing can reduce explicit fees, but it can also distort investment selection, obscure true costs, and create cross-subsidies between participants. None of that is inherently illegal—but all of it needs to be considered.

A provider who presents revenue sharing as the easy option without discussing alternatives is doing their client—and themselves—no favors. Courts expect fiduciaries to evaluate fee structures. When providers gloss over that evaluation, they become part of the story.

The smarter approach is transparency with context. Explain what revenue sharing does, what it costs, who benefits, and what other options exist. Then document that conversation.

Revenue sharing isn’t a villain. But it’s not harmless either. Providers who treat it casually risk being seen as facilitators instead of advisors.

And in ERISA litigation, that’s a dangerous place to be.

Plan providers love to say, “We’re not the fiduciary.” And in many cases, that’s true. But here’s the uncomfortable reality: silence can still get you pulled into a lawsuit.

I’ve seen it happen more times than I can count. A provider spots a problem—questionable forfeiture usage, rising fees without benchmarking, payroll errors that keep repeating—but says nothing. Or worse, mentions it casually once and moves on. Years later, when litigation hits, plaintiffs’ counsel asks a simple question: “What did the provider know, and when did they know it?”

That’s when silence becomes Exhibit A.

ERISA doesn’t require providers to be fiduciaries to be relevant witnesses. Emails, service logs, and internal notes suddenly matter. If a provider had visibility into an issue and failed to flag it in a meaningful way, plaintiffs will argue that the provider enabled imprudence—even if the claim ultimately fails.

The fix isn’t to overstep. It’s to document escalation. Providers should clearly identify risks, communicate them in writing, and explain consequences. If the sponsor ignores the advice, that’s on them—but only if the record shows the provider spoke up.

Being helpful doesn’t mean being quiet. And being quiet doesn’t mean being safe.

In today’s litigation environment, the most dangerous thing a provider can do is assume that saying nothing is neutral. It isn’t. Silence gets interpreted. Often badly.

If you see something, say something. Then document it. That’s not fiduciary overreach—it’s professional self-preservation.

If you’re the kind of person who waits until April 15 to drop off your federal tax return in a blue mailbox, or who trusts a mailed check will always be dated the day you dropped it in the slot, the U.S. Postal Service just quietly rewrote reality — and it’s about to affect legal and tax deadlines in 2026.

Here’s what’s going on, in plain Rosenbaum terms: the Postal Service has issued a new rule that clarifies what a “postmark” actually means — and that clarification could make the difference between a timely filing and a late one.

The Rule Change in a Nutshell

Effective December 24, 2025, the USPS updated the way it defines and applies postmarks:

· A postmark no longer necessarily reflects the date you handed the mail to the Postal Service.

· Instead, most postmarks now reflect the date your item is first processed at a sorting facility, which can be later than when it was dropped off.

This isn’t just bureaucratic jibber-jabber — it changes the baseline assumption that “mail is dated when it enters the mail stream.”

Why This Matters for Tax and Legal Deadlines

For decades, taxpayers and litigators leaned on the so-called “mailbox rule” under tax law (Internal Revenue Code § 7502) as well as other statutory deadlines: if something is postmarked by the due date — you’re good.

But under the new rule, that postmark might show a date that’s days after you actually put it in the mailbox, even if you followed all the mailing rules.

So if you:

· drop your tax return into a mailbox on April 15,

· but it isn’t processed until April 17, …your postmark might say “April 17.” That’s a real-world scenario that could spell disaster in an IRS audit or a legal dispute over timely filing.

What’s Changed Operationally

Why did this happen? Two big forces are at play:

1. Modernized mail processing: The USPS is routing more mail through regional centers with automation, which means mail isn’t postmarked immediately at the local post office.

2. Clearer definitions: The rule itself doesn’t change how mail is handled — it just spells out that a postmark equals processing date, not drop-off date.

That distinction may sound minor, but when hundreds of millions of deadlines and legal timelines across government and commercial laws depend on a “postmarked by” standard, it’s huge.

Practical Tips to Protect Yourself

If you’ve built a lifetime of trusting the blue mailbox to save you at the eleventh hour, here’s how to adapt:

Go inside the Post Office Drop your mail at the counter and ask for a manual postmark — that’s the legacy date-of-drop acceptance stamped right then and there.

Request official proof of mailing Certified mail, registered mail, or a Certificate of Mailing provide documented evidence of the actual mailing date — which could be critical if the mail doesn’t get processed until after a deadline passes.

When possible, file electronically From tax returns to legal notices, e-filing removes this postal ambiguity entirely.

Mail early — not at the last minute What used to be a reliable “mail on the due date” tactic now carries real risk under this clarified postmark system.

Bottom Line (The Rosenbaum Rule)

The USPS’s updated postmark rule doesn’t change postal service operations so much as it changes what you can legally rely on. For tax filings, legal deadlines, regulated notices, and anything else where a postmark date matters — assume the mailing date and the postmark date may differ.

Plan ahead. Get proof. File early. Because in the world of deadlines, “close enough” isn’t always good enough — especially when a postmark could be dated days after you handed it to Uncle Sam’s favorite mail carrier.

Stay timely, stay documented, and stay Rosenbaum-smart about your filings.

If you’ve been paying attention to the growing wave of 401(k) forfeiture litigation, the Department of Labor’s latest move is a big deal — even if it didn’t come with fireworks and fanfare.

In a recent development, the U.S. Department of Labor filed an amicus brief supporting JPMorgan Chase & Co. in a 401(k) forfeiture lawsuit now on appeal in the Ninth Circuit. This marks the second time in recent months that the DOL has sided with a plan sponsor rather than plaintiffs challenging the use of forfeited plan funds — signaling a continued shift toward a more employer-friendly posture in this corner of ERISA litigation.

So What’s the Dispute, Anyway?

Here’s the basic setup in plain English:

· In many 401(k) plans, when an employee leaves before fully vesting in employer contributions (like matching amounts), those unvested funds get forfeited back to the plan.

· What the sponsor does with those forfeitures — whether to offset future contributions or pay administrative costs — has become the subject of a growing number of lawsuits. Plaintiffs say certain uses violate ERISA’s fiduciary duties; defendants — and now the DOL — say they don’t.

The plaintiffs typically argue that using forfeitures to reduce future employer contributions (instead of paying expenses that otherwise would be charged to participants) breaches ERISA’s duty of loyalty and prudence. The defendant, backed by the DOL, argues that if the plan documents permit it, using forfeitures this way doesn’t violate the law.

Why the DOL’s Involvement Matters

When the DOL files an amicus brief, it’s not because they’re bored. It’s because the department thinks the issue matters to the administration of employee benefit law. In this case, the DOL is essentially saying:

· The practice of allocating forfeitures toward employer contributions is supported by long-standing practice and plan terms.

· Doing so, by itself, doesn’t automatically violate ERISA.

· Distinguishing between “settlor functions” (plan design and funding decisions) and “fiduciary functions” (managing the plan for the exclusive benefit of participants) is key.

This approach echoes a similar position the DOL took in another employer-defense forfeiture case last year, reinforcing the idea that not all allocation decisions demonstrate improper fiduciary conduct.

Bottom line? The DOL’s backing could influence how appellate courts evaluate these claims, especially in circuits like the Ninth where a precedent-setting decision could ripple nationwide.

But This Isn’t a Guaranteed Win for Employers

Let’s be clear: an amicus brief isn’t the same thing as a court’s ruling. It’s advice to the court. Courts are free to follow the DOL’s lead or chart their own course. And remember — there are dozens of these forfeiture lawsuits pending, with courts across the country taking different approaches on motions to dismiss. (Mayer Brown)

So while the DOL’s position is good news for sponsors with clear plan language and solid administrative processes, it doesn’t mean plaintiffs will stop filing or that all cases will be dismissed.

What Plan Sponsors Should Take Away

Here’s my take — plain and practical:

1. Solid plan language still matters. If your plan clearly authorizes how forfeitures can be used — and you follow it carefully — you’re in better shape defending any plaintiff challenge.

2. Documentation is your friend. Maintain contemporaneous records showing why you allocated forfeitures as you did. That helps defeat claims that you acted imprudently.

3. Compliance doesn’t stop at “it’s permitted.” Just because the plan says you can use forfeitures in a certain way doesn’t mean the decision was “prudent” under ERISA. Be sure your fiduciaries genuinely consider participant interests.

4. The DOL’s voice counts — but courts still decide. A departmental brief isn’t binding. It influences courts, especially where appellate precedent is lacking — but it doesn’t bind them. So don’t assume victory yet.

Final Rosenbaum Rule

In the world of ERISA litigation, trends matter. And right now, the trendlines — from forfeiture cases to public DOL positions — are pointing in favor of clarity, compliance, and careful fiduciary deliberation. The department’s latest brief in the JPMorgan case is just the latest chapter in a broader story about how retirement plans should treat forfeited dollars, and how the law interprets fiduciary judgment calls.

If you’re a plan sponsor or adviser, this is not a “set it and forget it” issue. It’s a reminder that good plan design paired with disciplined administration is the best defense against litigation risk — especially when plaintiffs try to recast decades-old practices as new theories of liability.

Stay vigilant, stay documented, and as always — stay Rosenbaum-smart about your ERISA compliance.

If you ever thought IRS procedural updates were boring, buckle up — because the latest IRS guidance for 2026 determination letters, opinion letters, and private letter rulings actually matters. A lot. Especially if you live in the retirement-plan, ERISA, and employee-benefits universe.

While this isn’t a sweeping overhaul, the IRS has quietly done three things that will hit plan sponsors and practitioners where it counts: higher fees, mandatory electronic filing, and tighter rules on refunds. None of this is theoretical. This is real-world compliance friction.

The Big Picture

Every year, the IRS updates its procedural rules for how it issues determination letters, opinion letters, and other rulings. These letters are not required in most cases — but when you need one, you really need one. They are the IRS equivalent of “don’t worry, you did it right.”

For 2026, the IRS is clearly signaling something familiar: More formality, more structure, and more cost.

What Changed for 2026

1. User Fees Are Up — Across the Board

Let’s not sugarcoat it. IRS user fees increased, in some cases materially. Whether you’re requesting a private letter ruling, a determination letter on an individually designed plan, or submitting under a correction program, the price of IRS comfort has gone up.

That means:

· Higher costs for plan sponsors

· Harder conversations with clients

· Less tolerance for “let’s just file and see what happens”

If you’re budgeting compliance costs for 2026 based on 2025 numbers, adjust accordingly.

2. Electronic Filing Is No Longer Optional

All Form 5300-series determination letter submissions must now be filed electronically. This includes the usual suspects: Forms 5300, 5307, 5309, 5310, and related filings.

Paper is effectively dead here. The IRS wants clean, standardized electronic submissions, and that’s not going to change.

From a practical standpoint:

· Sloppy submissions are easier for the IRS to flag

· Incomplete uploads are harder to excuse

· There is less room for informal follow-up

This is modernization, but it also means less forgiveness.

3. Fee Refunds Just Got Harder to Get

This is the sleeper issue that practitioners should really pay attention to.

Under the updated procedures, the IRS will generally not refund user fees if it later determines that your submission contained a material omission, even if:

· The omission was unintentional, or

· The IRS ultimately declines to rule

In other words, if you leave out a key fact that should have been disclosed, you may lose the ruling and the fee.

That’s a big deal. It raises the stakes for accuracy and completeness — especially in complex plan design or correction scenarios.

Why This Matters More Than It Sounds

It’s easy to dismiss procedural updates as IRS housekeeping. But determination letters and opinion letters are not academic exercises. They are risk-management tools.

When a plan is audited years later, these letters can:

· Shorten audits

· Limit exposure

· Provide leverage in disputes

· Protect fiduciaries from second-guessing

Higher fees and stricter procedures mean that mistakes are more expensive, not just inconvenient.

What Plan Sponsors and Advisors Should Do Now

Here’s the Rosenbaum checklist:

· Budget higher compliance costs for 2026

· Prepare submissions earlier, not at the deadline

· Over-disclose rather than under-disclose

· Treat every filing like it won’t get a second chance

This is especially true for individually designed plans and correction filings, where factual nuance matters.

The ERISA Parallel

If this feels familiar, it should. ERISA preemption exists to create uniformity and predictability. IRS letter programs serve the same purpose on the tax side. But uniformity only works when everyone plays by the rules — and the IRS just made the rules tighter.

Final Rosenbaum Thought

A determination letter is like insurance: you complain about the premium until the day you really need the coverage. In 2026, the IRS has raised the premium and shortened the grace period.

Plan carefully. File cleanly. Assume no do-overs.