The Rosenbaum Law Firm P.C. Blog

One of the hardest parts of being a plan provider isn’t the complexity of ERISA—it’s the incomplete information. Providers are often asked to solve problems without being given the full picture, and that’s a recipe for compliance failures that no service agreement disclaimer can truly fix.

Plan providers rely on plan sponsor data to perform testing, draft amendments, determine eligibility, and spot compliance risks. Controlled group ownership, affiliated service groups, other retirement plans, payroll practices, mergers, acquisitions—none of this is optional context. When sponsors leave out details, whether intentionally or accidentally, providers are forced to work with blind spots that can undermine even the best systems and expertise.

The frustrating reality is that when issues surface years later, providers are often pulled into the blame cycle despite never having the facts needed to prevent the problem. The IRS and DOL don’t audit based on what the provider was told; they audit based on what actually happened. That disconnect creates unnecessary exposure for everyone involved.

Providers need to be proactive in setting expectations. Data-collection processes should emphasize completeness, not convenience. Annual questionnaires shouldn’t feel like busywork; they should be framed as risk-management tools that protect the sponsor and the provider alike. Educating sponsors on why certain questions matter can reduce resistance and improve accuracy.

Plan providers aren’t miracle workers. They can’t fix problems they don’t know exist. The best provider-client relationships are built on transparency, not assumptions. When providers insist on better information up front, they’re not being difficult—they’re doing their job.

I understand why some plan sponsors withhold information from their plan providers. Sometimes it’s embarrassment. Sometimes it’s fear of added cost. Sometimes it’s just not knowing what matters. Unfortunately, in the retirement plan world, hiding information never protects you—it only delays the damage.

Controlled group issues, affiliated service groups, other retirement plans, ownership changes, payroll quirks—these aren’t “nice to know” details. They are foundational facts that determine compliance. When a provider doesn’t have the full picture, they can’t give accurate advice, and the plan sponsor is still the one holding the fiduciary bag.

I’ve seen plan sponsors omit information unintentionally and end up with failed testing, missed coverage issues, or deduction problems that snowballed over multiple years. I’ve also seen sponsors intentionally stay quiet, hoping a problem wouldn’t surface. It always does—usually during an audit, a transaction, or litigation, when the stakes are highest.

ERISA is unforgiving about ignorance. You don’t get a pass because you didn’t mention something. Providers rely on what they’re told. If the information is incomplete, the advice will be too.

Transparency with your plan provider isn’t about trust—it’s about self-preservation. The more they know, the better they can protect you. The less they know, the more exposed you are.

If you want fewer surprises from the IRS, the DOL, or a plaintiffs’ lawyer, stop treating information like a liability. In the long run, secrecy costs far more than honesty ever will.

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.