The Rosenbaum Law Firm P.C. Blog

Most providers don’t stumble into fiduciary exposure intentionally. They do it by trying to be helpful.

Answering “just one more question.” Suggesting a workaround. Coordinating between payroll and HR. None of this feels like fiduciary conduct in the moment. Over time, though, it adds up.

ERISA doesn’t care whether you meant to act as a fiduciary. It cares whether you exercised discretion or influence over plan decisions. The line between education and advice is thinner than many providers realize, especially with smaller plans that lean heavily on outside help.

This is the provider’s blind spot. The more knowledgeable and responsive you are, the easier it becomes for a sponsor to rely on you. Reliance is flattering—but it can also be risky.

The solution isn’t disengagement. It’s structure. Providers should define how they help, how advice is framed, and where decisions clearly remain with the sponsor. Written follow-ups, disclaimers, and consistent messaging are not bureaucratic obstacles—they are protective tools.

Ironically, the providers who help the most effectively are often the ones who say “no” the most clearly. They know where their role ends, and they communicate that boundary early.

Helping is good. Helping without limits is not.

Plan sponsors are often surprised to learn that when their advisor, TPA, and recordkeeper disagree, the conflict doesn’t protect the plan sponsor—it exposes them.

ERISA places fiduciary responsibility squarely on the employer. That means if one provider says something is fine and another raises concerns, ignoring the issue or picking the most convenient answer can create real risk. Regulators and courts don’t care which provider was “supposed” to handle the issue. They care whether the sponsor acted prudently.

This shows up most often with operational failures: late deposits, missed eligibility, incorrect matches, or forfeiture mistakes. Each provider may see only part of the problem, but the sponsor owns the whole picture.

The smartest move isn’t to referee arguments. It’s to document them. Ask providers to put their positions in writing, evaluate the risks, and make a reasoned decision. Silence or informal assurances are rarely defensible after the fact.

Sponsors who treat provider disagreement as a warning sign—rather than a nuisance—are usually the ones who avoid bigger problems later.

Today’s industry news isn’t just another personnel announcement. When Fred Reish, a lawyer whose name has been synonymous with ERISA’s most complex fiduciary and regulatory issues for decades, changes teams, the whole retirement plan ecosystem should take notice.

Reish isn’t just experienced, he’s one of the very few people whose work has genuinely shaped how practitioners, providers, and plan sponsors think about fiduciary risk, prohibited transactions, and plan design. For decades he’s been in the trenches, advising plan sponsors, financial institutions, and fiduciaries on thorny problems most providers never see until it’s too late.

Now he’s joining Prime Capital Financial’s retirement practice to lead their fiduciary and ERISA work. That’s notable for two reasons:

1. Talent attracts scrutiny—and improvement. When someone with Reish’s depth of technical firepower moves, it often signals that the receiving organization is serious about strengthening its compliance and governance muscle, not just its brand. This is rarely “window dressing.” It’s substantive.

2. Sponsors should care about who shapes advice. Plan sponsors don’t buy lawyers; they buy confidence that their advisors know the difference between good intentions and defensible action. Providers aligned with true subject-matter experts can help sponsors navigate ambiguity in ways that aren’t just comforting, but defensible under scrutiny.

This isn’t about headlines. It’s about practical impact—on governance models, on how fiduciary risk is communicated, and on how sponsors and providers think about compliance as a process, not a product.

So yes, Fred Reish’s move is “landmark.” But more importantly, it’s a reminder: Experience doesn’t just matter in theory—its absence shows up in audits, examinations, and litigation.

Providers who want to thrive in the next decade aren’t just hiring bodies. They’re investing in minds that can explain risk before it becomes a problem.

Sponsors should be paying attention. Because when the landscape shifts at the expert level, it usually arrives at the compliance desk next.

Every retirement plan provider now talks about AI, personalization, and “smart” tools. Plan sponsors should listen — but they shouldn’t be dazzled.

Technology does not replace fiduciary responsibility. It magnifies it.

When a participant website nudges behavior, projects retirement income, or offers automated guidance, those features don’t exist in a vacuum. They are influencing participant decisions. That means sponsors need to understand what’s behind the curtain: the assumptions being used, the data sources, and whether any conflicts are embedded in the design.

Too often, technology is treated as a black box. The vendor built it. The recordkeeper maintains it. The sponsor just “offers” it. That mindset is dangerous. If a tool is part of how participants engage with the plan, it’s part of the plan’s fiduciary ecosystem — whether vendors want to admit it or not.

The right question isn’t “Is this innovative?” It’s “Is this prudent?”

Good technology supports fiduciary decision-making by simplifying choices, improving clarity, and encouraging better behavior. Bad technology creates false confidence and obscures responsibility. And when something goes wrong, “the system did it” has never been an effective fiduciary defense.

Plan sponsors don’t need to become software engineers. But they do need transparency, documentation, and explanations they can stand behind. If a provider can’t clearly explain how a tool works, why it’s appropriate, and how it helps participants make better decisions, that should be a red flag.

In the end, technology doesn’t protect fiduciaries. Thoughtful oversight does.

If there’s one thing retirement plan sponsors learn quickly, it’s that “settled law” in ERISA litigation is often as stable as quick-sand. The latest example comes from the U.S. Department of Labor — and it’s a move that sponsors, committees, and counsel should not ignore.

Earlier this month, the DOL weighed in on a high-stakes ERISA case involving how the burden of proof is allocated in fiduciary breach suits. Historically, when the statute is silent, courts sometimes borrowed burden-shifting concepts from trust law — meaning that once a plaintiff showed breach and loss, the fiduciary might have to disprove causation. But in a newly filed amicus brief, the DOL did an about-face: it’s now advocating for the ordinary default rule that plaintiffs must prove every element of their claim, including causation.

Why does this matter? Because burden-shifting is not an academic procedural nuance — it’s a litigation fulcrum. When plaintiffs don’t have to prove causation up front, ERISA suits can become easier to plead, harder to defend, and more expensive to litigate. By backing the default rule, the DOL is effectively aligning itself with fiduciary defendants on a core procedural trench.

Whether you agree with the policy or not, sponsors should treat this as a fiduciary-risk signal. The DOL’s position will likely influence how courts — including possibly the Supreme Court — handle ERISA claims going forward. And if it becomes the standard, sponsors and their counsel may find themselves with more leverage in early motions to dismiss.

For plan committees and fiduciary officers, the takeaway is simple: don’t assume that long-standing litigation norms will stay the same. Litigation is shifting — and staying ahead means understanding not just the substance of fiduciary duty, but the procedural landscape that determines who wins and who pays.

Low participation rates. Weak deferral levels. Participants who never log in unless something goes wrong. When sponsors raise these concerns, the response is often the same: “That’s just how employees are.”

I don’t buy it.

Engagement isn’t a mystery. It’s a design problem.

If the plan experience feels confusing, impersonal, or irrelevant, people disengage. If communications read like legal disclosures instead of human language, they get ignored. And if tools don’t reflect real life — student loans, caregiving, job changes, or economic stress — participants tune out.

Sponsors have more influence here than they realize. Vendor selection matters. Website usability matters. Communication tone matters. A retirement plan that feels intentional sends a message that saving for the future isn’t an afterthought.

Too often, engagement is outsourced along with recordkeeping. Sponsors assume the vendor owns the problem. But engagement failures ultimately show up as sponsor problems — poor outcomes, employee dissatisfaction, and, in some cases, litigation risk.

The best sponsors I work with don’t ask, “Why won’t employees engage?” They ask, “What are we doing that makes engagement harder?”

That shift matters. It reframes engagement as part of plan design, not participant behavior. It leads to better questions, better decisions, and better outcomes.

Engagement isn’t about flashy tools or constant emails. It’s about clarity, relevance, and trust. When participants believe the plan was designed with them in mind, engagement follows.

And when it doesn’t, sponsors shouldn’t point fingers — they should look in the mirror.

The retirement industry loves the phrase best practices. It sounds proactive, responsible, and professional. In reality, most “best practices” have very little to do with improving plan outcomes and everything to do with surviving a deposition.

Look closely and you’ll see it. Committees that meet because the calendar says they should, not because there’s anything meaningful to discuss. Investment reviews filled with charts no one reads. Fee benchmarking reports generated annually, acknowledged, and filed away like a receipt you keep just in case someone asks later.

None of this is inherently bad. The problem is that best practices have become a substitute for judgment.

Too often, providers design processes not to help sponsors make better decisions, but to create a record that says, we were there. The goal isn’t clarity—it’s plausible deniability. If something goes wrong, the defense isn’t “this was the right call,” it’s “we followed industry standards.”

Courts are getting smarter about this. They’re less impressed by volume and more interested in substance. Did the committee understand what it was approving? Were alternatives actually discussed? Did anyone explain why a decision mattered, or was it just presented as the next step in a prepackaged workflow?

True best practices don’t exist to be uniform. They exist to be thoughtful. A three-page memo that explains a risk and a recommendation is often more valuable than a 60-page report no one can summarize.

Providers need to stop confusing activity with prudence. Governance is not theater. Documentation is not protection if it reflects rubber-stamping rather than real deliberation.

The irony is that litigation avoidance works best when it isn’t the point. When providers focus on helping sponsors understand risk, make informed decisions, and document why something was done—not just that it was done—the file writes itself.

That’s not flashy. It doesn’t scale well. But it’s what actually holds up when someone finally opens the file.

There is no such thing as a perfect plan sponsor. Anyone who tells you otherwise is either selling something or has never actually worked inside a retirement plan.

Most plan sponsors are not negligent. They are overwhelmed. They are HR managers wearing five hats, CFOs who inherited a plan they didn’t design, or owners who were told years ago, “Don’t worry, we’ve got this.” And that’s the real problem—someone else always had it, until suddenly no one did.

The retirement industry loves to pretend that sponsors are fully informed decision-makers who knowingly accept risk. In reality, sponsors rely almost entirely on their providers to explain what matters, what has changed, and what can go wrong. When something blows up—late deposits, missed eligibility, bad amendments, broken matches—the postmortem always starts the same way: “We didn’t know.”

And most of the time, that’s true.

The uncomfortable truth for plan providers is this: sponsor mistakes are often provider communication failures. Not because the provider gave bad advice, but because they assumed silence was safer than clarity. They explained the mechanics but not the consequences. They delivered compliance without context. They checked the box and moved on.

ERISA doesn’t reward perfection. It rewards process, prudence, and documentation—but only if someone actually understands what they’re approving. A sponsor who signs blindly isn’t protected, and neither is the provider who let them.

The best plan sponsors I’ve worked with weren’t the smartest or the most sophisticated. They were the ones whose providers took the time to say, “Here’s the risk, here’s the decision, and here’s why it matters.”

The myth of the perfect plan sponsor lets everyone else off the hook. And that’s how problems age quietly—until they don’t.

For years, policymakers have promoted lifetime income options as the next evolution of defined contribution plans, the long-awaited bridge between the old pension world and the modern 401(k). On paper, it’s a simple pitch: convert savings into a stream of guaranteed income and provide participants with the peace of mind that they won’t outlive their money.

In practice, it’s far more complicated, and plan sponsors are the ones caught in the middle.

The first problem is fiduciary risk. Sponsors worry that selecting the wrong product — or the right product that later becomes the wrong product, could expose them to second-guessing or litigation. Lifetime income is not like a mutual fund lineup that can be swapped with minimal disruption. Once participants annuitize, there’s no “undo” button.

Second, participant comprehension is a real hurdle. Lifetime income products aren’t intuitive. “Guaranteed for life” feels reassuring, until participants realize that “guaranteed” means different things depending on the insurer, the terms, and the fine print. Sponsors become educators, translators, and sometimes the scapegoats when expectations and reality don’t align.

Third, portability remains a challenge. Even with recent regulatory improvements, participants still fear losing benefits if they change jobs or if the employer changes providers. In a workforce that now changes jobs with the frequency previous generations changed cars, permanence is a tough sell.

Finally, lifetime income arrives at a time when sponsors are already risk-averse due to litigation trends. Anything labeled “new,” “innovative,” or “guaranteed” may as well come with a neon sign flashing: “See you in court.”

Lifetime income is not inherently the problem. The idea is sound. Participants need tools to manage retirement drawdowns. But unless sponsors receive clearer protections, simpler products, stronger participant education, and sensible expectations on all sides, the promise of lifetime income may remain more policy talking point than practical solution.

Because for plan sponsors, offering lifetime income shouldn’t feel like making a lifetime commitment they didn’t sign up for.

Most plan providers are prepared for competition. They know how to differentiate fee schedules, demonstrate technology, and present fiduciary solutions. They refine their pitch decks and rehearse the perfect value statement. But the truth is, in this industry, your biggest competitor usually isn’t another provider — it’s indifference.

For many plan sponsors, the retirement plan is not their business, it’s a distraction from their business. They’re worried about sales, supply chains, payroll timing, healthcare premiums, hiring shortages, and the dozen other fires that start each morning before coffee. The 401(k) plan becomes the afterthought that lives somewhere on the agenda between “fix copier jam” and “renew pest control contract.”

Indifference isn’t laziness, it’s overload.

This means the opportunity for providers isn’t just to sell services; it’s to spark engagement. Sponsors move when they understand the cost of standing still. Inertia has a price: employees who don’t save, participants who complain, fees that go unreviewed, cybersecurity that sits untested, and plan designs that never evolve with workforce demographics.

The provider who wins isn’t just the one with the best system, it’s the one who can translate consequences into clarity and complexity into confidence. Education done right doesn’t sound like a lecture; it feels like relief. When sponsors say, “I didn’t know we could do that,” or “No one ever explained it that way,” you’ve already separated yourself without a single pricing grid.

The key is to stop aiming to impress and start aiming to inform.

If you can help a sponsor shift from “we’ll get to it someday” to “we can’t put this off any longer,” you didn’t just win a client, you changed their outlook. And in this business, that’s the kind of conversion that lasts longer than the latest feature update or fee reduction.

Because when indifference is your true competitor, insight is your most powerful sales strategy.