The Rosenbaum Law Firm P.C. Blog

The Department of Labor’s Employee Benefits Security Administration (EBSA) released Compliance Assistance Release No. 2025-01. For those of us keeping track at home, this new guidance effectively rescinds the now infamous 2022 Release that sent plan sponsors and ERISA attorneys into a quiet panic about the viability of cryptocurrencies in 401(k) plans.

Let’s rewind: the 2022 Release, issued under the Biden Administration, warned plan sponsors to exercise “extreme care”when it came to offering crypto investments in their retirement plans. “Extreme care,” while not a defined legal standard under ERISA, had the kind of chilling effect you might expect from a phrase better suited for a high-altitude mountain expedition than for investment lineups. While the 2022 Release didn’t carry the force of law, it carried the unmistakable weight of regulatory intimidation.

The new release changes that tone. It doesn’t endorse crypto. It doesn’t oppose it either. Instead, the DOL is stepping back into a more traditional, neutral stance—one rooted in ERISA’s actual fiduciary framework. That framework, in case we’ve forgotten, requires plan fiduciaries to act solely in the interest of plan participants, with the “care, skill, prudence, and diligence” of a prudent person familiar with such matters.

No more “extreme care.” Just regular, good-old-fashioned prudence.

The DOL now clarifies that the 2022 Release overstated its hand. Today’s release recognizes that ERISA does not single out asset classes for preemptive warning labels, and that it’s not the DOL’s role to referee which investments are inherently worthy or not. That’s the job of the fiduciaries—plan sponsors and committees—who are expected to do their homework and make prudent decisions based on facts, risk assessments, and participant needs.

So what does this mean?

If you’re a plan sponsor who had considered offering cryptocurrency investments—either directly in a core menu or indirectly through a brokerage window—but held back out of fear of regulatory scrutiny, the temperature just dropped a few degrees. You’re not being handed a green light. But the red light has been lifted.

Of course, just because you can offer crypto doesn’t mean you should. Cryptocurrency remains volatile, complex, and poorly understood by many plan participants. Fiduciaries still have a duty to evaluate whether any particular investment option, crypto included, aligns with the goals of the plan and the needs of its participants. That includes due diligence, risk assessment, and participant education—same as with any other investment.

As always, plan sponsors must walk the fine line between innovation and caution. The difference now is that the DOL is no longer trying to push them off that line. Welcome back to fiduciary neutrality.

I hated the Mission: Impossible TV show. Let me just get that out of the way. It was a fixture on Sunday afternoons when we didn’t have cable—reruns of that lifeless series looping like some cruel punishment. It was always the same shtick: dull plots, even duller characters, and the kind of “spy tech” that felt like it belonged in a RadioShack clearance bin. That fuse in the intro would light up, the music would swell, and I’d sigh. “This again?” I’d think, already bored before the episode began.

But the movies—ah, the movies—those were something else.

I still remember the summer of 1996, standing in line at the theater, a few months after finishing my second year of law school. My head was full of torts and constitutional law, and my life felt anything but cinematic. But that first Mission: Impossible film hit different. It wasn’t just a spy thriller—it was sleek, tense, and cleverly twisted. Tom Cruise as Ethan Hunt didn’t just reboot a stale franchise. He detonated the past and rebuilt it from scratch.

And here we are, nearly 30 years later, and I’ve just seen The Final Reckoning. Maybe it really is the last. Maybe it isn’t. But one thing’s clear: Cruise has done what even James Bond couldn’t. Sean Connery bowed out of Bond after less than a decade. Tom? He’s been sprinting, leaping, hanging from cliffs and airplanes, and chasing ghosts of global conspiracies for almost three decades. And he’s still going.

It’s poetic in a way. I saw the first two Mission films in theaters when they came out, then drifted away. Life happened—career, family, and all the responsibilities that come with trying to do right in a world that often does wrong. I didn’t return to Mission: Impossible until Fallout. That was the turning point. I binged the ones I’d missed—III, Ghost Protocol, Rogue Nation. Each one felt sharper, more focused. The stakes got higher, but so did the emotional weight. And somehow, through all the high-octane stunts and breakneck pacing, Ethan Hunt became more human.

Then came Dead Reckoning Part One, and now The Final Reckoning. Together, they didn’t just deliver closure—they delivered connection. Threads from every film, every mission, every decision Ethan ever made came full circle. And in that, I found something personal. The way those films stitched themselves together across decades—it mirrored my own story. The twists in my life, the betrayals, the battles fought in quiet rooms and conference calls, the victories that no one else saw but mattered just the same.

The teaser trailers for The Final Reckoning did more than hype up the movie. They helped shape my story—Full Circle, the book I poured myself into. The language, the tone, even the sense of finality—the idea that everything leads back to where it began—was inspired by Mission: Impossible. Watching Ethan Hunt battle through layers of deception to uncover truth, to protect those he loves, to make peace with a life defined by sacrifice—that resonated with me. That was me.

Like Ethan, I didn’t choose every mission in my life. Some were handed to me. Some exploded in my face. And some I took on because no one else would. But I see it now: like in the movies, all of it was connected. Every impossible mission. Every fall. Every climb back up.

Like with Mission: Impossible, the circle is complete.

The 401(k) world has long been a place where innovation comes with a compliance manual and where “benefits” are often tied up in strings long before they reach employees. But sometimes, a change comes along that feels like a step forward — not just in retirement planning, but in empathy. Fidelity’s new approach to marrying 401(k) matching with student loan debt relief is one of those changes. Schwab is now following suit.

And yes, I said empathy. A word rarely uttered in boardrooms but sorely needed in benefits design.

For years, student debt has been the dark cloud hanging over every entry-level offer letter. A generation of workers, burdened with trillions in collective student loans, were told to “save for retirement” while barely able to make rent. The SECURE 2.0 Act gave plan sponsors the green light to finally change the rules of the game — to let student loan repayments count for 401(k) matching. Fidelity wasted no time jumping in with both feet, formalizing what it had been piloting internally since 2016. Schwab, not wanting to be left behind, quickly announced its own program with the help of Candidly.

Let’s be clear: this is a good thing. And it’s long overdue.

Under Fidelity’s Student Debt Program, employers can now send payments directly to loan servicers — accelerating debt payoff — while also matching those payments with contributions to the employee’s 401(k). Same pot of employer match dollars, new distribution strategy. Think of it as financial multitasking. For the employee, it feels like “free money” — because it is. Money that was previously locked away unless you played by the retirement plan rules of a bygone era.

Fidelity estimates that adopting this benefit could grow a participant’s 401(k) balance from $237,000 to $415,000. That’s not pocket change.

But let’s not gloss over the caution signs here.

Bloomberg recently flagged the usual suspects: fraud risk, compliance burdens, logistical hurdles, and a data access problem courtesy of the 2020 STOP Act. Matching student loan payments isn’t as easy as flipping a switch — employers need proof of payments, and servicers don’t exactly roll out red carpets for data-sharing. For companies without Fidelity’s infrastructure or Schwab’s Candidly partnership, this becomes a regulatory Rubik’s Cube.

And here’s where I raise my usual eyebrow:

When benefits are this good, why are employers slow to adopt them?

We’ve seen this story before. The law opens a door, but plan sponsors hesitate. Advisors fret about compliance. Recordkeepers develop patchwork solutions. Meanwhile, participants wait. Or worse — they give up.

Fidelity insists employers are eager to adopt these programs, and that demand has surged since SECURE 2.0. Let’s hope that’s true. But let’s also be honest — the success of this initiative depends on whether HR departments, benefit committees, and plan sponsors actually do the work to implement it. It’s not enough to roll out a press release. This only works if it’s real.

And that brings us back to paradigms — yes, I’m borrowing the word from an old law school dean who loved it a little too much. Because what we’re seeing here is the beginning of a paradigm shift. One where the traditional retirement system starts to acknowledge the financial realities of a younger, debt-strapped workforce. Where plan design isn’t just about tax deferral and QDIAs, but about helping people survive and eventually thrive.

If Fidelity and Schwab are leading the way, then good for them. But the rest of the industry — plan sponsors, recordkeepers, advisors — needs to follow. Quickly.

Because when nearly one in four working Americans owes student debt, this isn’t just a benefits trend. It’s a social necessity.

Let’s stop pretending we’re innovating and start doing it.

In the world of retirement plans, some stories feel like déjà vu with a fresh set of dollar signs. The latest lawsuit filed by former participant Brian Byrne against TIAA and its associated retirement plans is no exception. But beneath the legalese and financial jargon is a familiar, troubling pattern—one that raises fundamental questions about fiduciary duty, loyalty, and who actually benefits when plan sponsors double as asset managers.

Let’s strip it down. This case isn’t about exotic investments or esoteric financial engineering. It’s about share classes—specifically, why TIAA allegedly kept plan participants in higher-cost R3 share classes when lower-cost R4 share classes were available for the exact same funds. The allegations? That this wasn’t an oversight or a slow administrative pivot. This was a choice—a conscious one. And like so many fiduciary failures I’ve seen over the past two decades, it was a choice that benefitted the plan provider at the expense of the participants.

According to the complaint, TIAA made the R4 share class available to institutional investors back in September 2022. These R4 shares carried “significantly less” in fees compared to the R3 shares—yet as of December 31, 2023, TIAA still had over $2.2 billion of plan assets parked in the higher-cost R3s. That’s not pocket change. That’s participants’ money being used inefficiently, allegedly to pad margins and prop up the in-house business.

Worse still, the complaint highlights what’s become a recurring issue in proprietary fund litigation: underperformance. The suit claims that TIAA kept a proprietary fund in its lineup that has been trailing its benchmark since 2009—to the tune of more than 186%. If that number sounds absurd, that’s because it is. No prudent fiduciary keeps a fund like that in place—especially not when alternatives exist. But a conflicted one might.

And here’s the crux of the matter: TIAA, as both recordkeeper and asset manager, occupies a conflicted position. When a plan provider offers its own proprietary investments, the incentives are inherently misaligned. Every dollar that stays in a TIAA-managed fund—even a higher-cost, underperforming one—is a dollar that benefits TIAA before it benefits the plan participant.

The numbers tell the story: $1.6 billion of the Retirement Plan’s assets—nearly a third—remained in the higher-cost R3 share class. Another $150 million in the 401(k) Plan, and $370 million in the Retirement Plan, were still invested in the same TIAA Growth Fund that, according to the lawsuit, has chronically failed to meet expectations. In a world where institutional investors fight tooth and nail over basis points, this isn’t just negligence. It’s potentially disloyal, imprudent, and, if proven true, a textbook ERISA violation.

This lawsuit underscores a broader truth: fiduciary breaches don’t always wear masks. Sometimes, they come dressed in familiar logos, wrapped in marketing about “long-term stewardship” and “participant-first service.” But when the numbers don’t add up, when performance lags and fees remain unjustifiably high, it’s worth asking: who is the plan really working for?

I’ve long warned about the dangers of proprietary funds, the misuse of share classes, and the subtle erosion of fiduciary standards when providers profit from their own conflicts. This case, like others before it, is a reminder that vigilance is not optional—it’s essential.

Stay tuned. If history is any guide, this won’t be the last time we see a headline like this. But perhaps, if participants, attorneys, and yes, even some plan sponsors, keep speaking up, it might just be one of the last times it’s allowed to happen.

When I was at American University Washington College of Law, the dean at the time was a man named Claudio Grossman. He was from Chile and seemed to carry that fact around like a passport that needed stamping at every conversation. His favorite word was paradigm. He used it constantly—so much, in fact, that I often wondered if he truly understood what it meant. It was like a magician pulling the same rabbit out of the same hat over and over again, insisting it was a new trick each time. In lectures, meetings, hallway conversations—“paradigm” this, “paradigm” that. Eventually, the word lost all meaning. It became noise. A kind of academic Muzak that played in the background while students like me tried to focus on surviving law school.

But lately, and especially in reflecting on Full Circle, I’ve come to understand that paradigm was always the right word—just misused, misapplied, and, in Grossman’s case, misplaced.

You see, my life has been defined by resisting paradigms. Not society’s, but my parents’. Their paradigm of what a child should be. What I should have been. And more importantly, what I should have done for them.

I wasn’t the son they ordered from a catalog. I didn’t go to Harvard. I didn’t write perfect essays in high school, or chase after the Ivy League dream they wore like a badge. I didn’t win the medals they could hang in their mental trophy case and polish at dinner parties. I didn’t become their reflection.

Instead, I built something from the ground up. My practice. My integrity. My independence. No silver spoon, no handouts, no shortcuts—just sweat, stubbornness, and survival. I took the long way, because that’s the only road I had. And in doing that, I broke their paradigm. Or maybe I just refused to live inside it.

My parents were broken people. Narcissistic to the core. Everything I achieved had to be theirs. Everything I failed at was entirely mine. Their love—if you can call it that—was transactional, conditional, and forever out of reach. I spent years in that loop, trying to decode their expectations, trying to earn their approval by shaping myself into someone else’s ideal. But the more I tried, the further I drifted from who I actually was. Until one day, I stopped trying. I let go of the idea that I had to fit their image. That I had to play a role in their performance.

That was the beginning of the real paradigm shift. Not in a lecture hall. Not from a dean’s monologue. But in the quiet, painful realization that I could not—and would not—spend my life being a character in someone else’s script.

The funny thing is, Claudio Grossman probably thought he was introducing us to a revolutionary concept when he said paradigm. But for me, the revolution was personal. It was walking away from a broken inheritance. It was building a life that didn’t need their approval. It was writing Full Circle—not just as a memoir, but as a declaration.

I was not their paradigm. I never will be. And that’s the point.

ERISA is filled with traps for the unwary. Some are complex, hiding in layers of regulatory nuance. Others are deceptively simple—like plan forfeitures. Yes, I’m talking about those dollars left behind when participants fail to vest in employer contributions. Easy to ignore. Easy to mishandle. And now, thanks to the IRS, impossible to overlook without consequence.

The IRS has spoken, and here’s the message in plain English: if you’re sitting on plan forfeitures from 2024 or any earlier year, you’ve got until December 31, 2025 to use them—or you’ve got a compliance failure on your hands.

Let me back up a bit. In 2023, the IRS issued proposed regulations aimed at cleaning up the widespread misuse—or nonuse—of forfeitures in defined contribution plans. The rule? Forfeitures must be used no later than 12 months after the end of the plan year in which they’re incurred. That’s not a suggestion. That’s an expectation. Miss the deadline, and you’ve got a formal compliance issue.

Now here’s the good news. Recognizing that many plan sponsors haven’t been following the rule—some because they didn’t know better, others because they just didn’t know at all—the IRS is offering a one-time reprieve. Under the proposed regulations, any forfeitures incurred during plan years beginning before January 1, 2024, are treated as if they were incurred in the first plan year starting on or after that date. Translation: if you’re on a calendar-year plan, all of those pre-2024 and 2024 forfeitures must be put to use by December 31, 2025.

Let’s be clear—this isn’t a “we’ll look the other way if you try your best” situation. It’s a window. A deadline. And if you fail to act, it slams shut, and you’ll be left facing a compliance failure with no easy way out.

Of course, utilizing forfeitures isn’t as simple as dumping them back into the plan. The use must be consistent with the terms of your plan document. Are forfeitures allocated to participants? Used to reduce employer contributions? Cover plan expenses? Your plan document holds the answer—and you’d better be following it. If you’re not, you’re risking not just IRS scrutiny, but participant lawsuits, which we’ve already seen cropping up across the country.

Now, a common question: “But Ary, these are just proposed regulations—do I really have to follow them?” My answer? Yes. The IRS has made it crystal clear: you can rely on these proposed regs now. There’s no need to wait until they’re final to get your house in order. And if you’re sitting on unused forfeitures, there’s no excuse not to act.

So here’s your action plan:

1. Inventory your forfeitures. Figure out what you’ve been carrying forward—and for how long.

2. Check your plan document. Make sure you know what the governing rules are for using forfeitures.

3. Develop a plan. Use the forfeitures in a compliant way before December 31, 2025.

4. Document everything. If the IRS or a plaintiff’s lawyer comes knocking, you’ll want a clear paper trail.

Retirement plan compliance isn’t just about keeping the IRS happy—it’s about doing right by your participants. Forfeitures aren’t “extra” money. They belong to the plan, and they must be used for the benefit of participants, according to the rules you agreed to when you adopted the plan.

The clock is ticking. The relief is temporary. Do the right thing now—before the IRS does it for you.

The 401(k) match has long been one of the most powerful tools for building retirement savings. It’s the “free money” we’ve all been trained to chase—and advise our clients to chase. So when Fidelity, Schwab, and others start finding new, creative ways to repurpose that match money—like paying down student loan debt or even contributing to HSAs—it raises an important question:

Are we helping, or are we just rearranging deck chairs on the Titanic?

Let’s start with the good. SECURE 2.0 opened the floodgates for some real innovation. Allowing employers to treat student loan repayments like 401(k) deferrals, and now, in a recent private letter ruling, even potentially using those same employer match dollars for HSAs—these are genuinely interesting, forward-thinking concepts. They recognize the financial reality of today’s workers: Gen Z and Millennials are drowning in debt and struggling with healthcare costs. Telling a 28-year-old with $110,000 in student loans and a $3,000 deductible to “save for retirement” feels tone-deaf. These ideas meet people where they are.

But here’s where the lawyer in me—and the long-term fiduciary thinker—starts raising red flags.

We’re still pulling from the same pot of money. The 401(k) match was never designed to be a catch-all financial wellness fund. It was supposed to build retirement security. Full stop. If we start siphoning those dollars toward today’s problems, what happens tomorrow? Yes, we reduce current stress, but do we increase future financial vulnerability?

It’s a bit like giving someone an umbrella in a thunderstorm, while quietly poking holes in their roof for when the next storm rolls in.

There’s also a bigger concern here—one that gets lost in all the cheerleading about “flexibility” and “innovation.” What if employers start using these programs not as a supplement, but as a substitute? “Oh, we don’t offer a 401(k) match andstudent loan help. We offer one pot of money, and you choose where it goes.” Sounds equitable. Feels empowering. But it’s really just a cost-saving rebrand. And once the marketing gloss fades, the math doesn’t lie: less going into retirement accounts means less available when people need it most.

Am I being cynical? Maybe. But I’ve been in this business too long not to recognize when a good idea starts becoming a Trojan horse.

So, what’s the answer?

Yes, give employees student loan help. Yes, fund their HSAs. But don’t do it instead of helping them save for retirement. Do it in addition to. Expand the benefit, don’t just reallocate it.

Because the only thing worse than not helping people today… is leaving them stranded tomorrow.

I was never going to be the guy—the one people rallied around, the golden child, the anointed one. I wasn’t the star quarterback of anyone’s career fantasy draft. More often than not, I was the last pick in the schoolyard pick’em. And it wasn’t because I lacked ability. Quite the opposite. I had the talent. What I lacked was the pedigree, the polish, the politics. The things narcissists and gatekeepers latch onto when they’re deciding who “belongs.”

I’ve written before—most recently in Full Circle—that in the law firm world, maybe half of the people who make partner actually deserve it. The other half? Beneficiaries of the right lunch buddies, the right mentor, or the right last name. It’s a club. And if you don’t have the right handshake, they’ll make damn sure you stay outside.

There were moments in my life when that weighed on me. Watching someone far less capable than me get the job, the praise, the platform. It eats at you, if you let it. Makes you question if talent really matters at all. But here’s the thing I learned: they can only keep you down for so long.

Real talent—paired with relentless hope—is a force. Maybe not the kind that storms the gates on day one. But it chips away. It endures. It makes itself undeniable over time.

It’s something I think about a lot, and not just professionally. Hope is hard-earned when you come from a family where love is conditional and success is never your own. My parents had their idea of who I should be—and spoiler alert, I didn’t fit their mold. I didn’t go to Harvard. I didn’t climb the ladder they imagined. I built my own. And I climbed that. And it worked out.

There’s a quote from The Shawshank Redemption—one of the few films that gets the long game of resilience right: “Hope is a good thing, maybe the best of things, and no good thing ever dies.”

That’s the kind of hope I clung to. Not the naïve, starry-eyed version. The kind born of disappointment and grit. The kind that gets up after the fifth, sixth, or fifteenth rejection and says, “I’m not done yet.”

So no, I was never their guy. But I became my own guy. And eventually, I became the right guy—for the clients who valued what I did, for the readers who saw themselves in my story, and for the people who believed that merit still matters, even in a world that often forgets it.

They may overlook you. They may underestimate you. But they can’t stop you—if you’ve got talent. And if you’ve got hope.

If you’ve worked in the retirement plan industry long enough, you’ve had that moment — that gut punch — where you know you’re the best person for the job, but the gig goes to someone else. Someone who isn’t as experienced. Someone who doesn’t know the ins and outs of plan design, ERISA compliance, or fee benchmarking. Someone who might, let’s be honest, blow it.

It’s frustrating. It’s unfair. And it’s reality.

We like to believe that meritocracy rules, that decisions are based on who can best serve the plan and its participants. But hiring — like most things in life — is never that clean. It’s messy, personal, and filled with variables we’ll never see.

Maybe the chosen provider plays golf with the CFO. Maybe they went to the same alma mater. Maybe they dropped their fees by 5 basis points just long enough to win the business. Or maybe the decision-maker just liked them better. There’s no ERISA rule against “chemistry.”

Plan sponsors aren’t ERISA attorneys. They’re HR managers, CFOs, business owners — often overwhelmed and under-informed about what a good plan provider actually does. They’re susceptible to shiny sales decks, big brand names, or smooth talkers with nothing under the hood. The best person for the job doesn’t always get it, because not every decision is made with clarity or competence.

I’ve said it before: You can’t explain irrational behavior from a rational viewpoint. Trying to make sense of it will only drain you. So don’t.

Grin. Bear it. And move on.

Because the good news is, not all plan sponsors are irrational. There are still plenty out there who care about the right things: transparency, expertise, and participant outcomes. The trick is to find them. They’re the ones who will recognize what you bring to the table — and stick with you when it matters.

In this business, you won’t win every plan. But you don’t need to. You just need to win the right ones. The ones that value substance over flash. The ones that care about getting it right, not just getting it done.

Stay in the game. Stay true to your value. And when the right sponsor comes along, they’ll know exactly who the best person for the job is.

In this business—the retirement plan business, the ERISA world—you don’t build anything alone. You might draft the documents, run the meetings, fix the failures, and chase the clients, but if you’re lucky, a few people walk the road with you. Some give you a push when you’re stuck. Others hand you a brick when you’re building. And some? Well, some just stand by the side and watch. Or worse—they pretend they’re helping while quietly betting against you. You don’t forget any of them.

When I think back to the early days of my ERISA practice, it’s not just a blur of plan restatements and prototype documents. It’s people. People who returned my calls when no one else would. People who referred business to me not because they had to, but because they believed I knew what I was doing—or at least, would figure it out. Some of them are still in my life. A few aren’t. But I remember all of them.

There was a TPA who took a chance on me before I had a name. Before the blog, before the speaking gigs, before the law firm had any traction. They gave me a referral when I was still moonlighting and hustling, working nights and weekends to get my solo practice off the ground. I didn’t ask them to take a risk. They just did. That kind of loyalty stays with you.

Then there were the plan sponsors—small business owners mostly—who didn’t care that I wasn’t at a big law firm anymore. They wanted someone who would return their calls, who actually understood how 401(k) plans worked in practice, not just on paper. I built my firm on clients like that. People who didn’t need a slick PowerPoint, just honest advice and someone who wouldn’t disappear after the retainer check cleared.

Of course, not everyone was supportive. Some smiled to my face while warning others not to work with me. There were advisors I’d worked alongside for years who suddenly couldn’t find the time to grab coffee. Industry colleagues who vanished the moment I wasn’t “useful” to them anymore. They’re the same ones who later reached out when I had a following and a platform. The thing is, you can always tell who’s there for the work and who’s there for the spotlight.

You learn, fast, who’s on your side. Not when things are easy, but when the client is angry, the plan is broken, and the DOL is breathing down your neck. Those are the moments that separate the real partners from the fair-weather ones. I’ve had people step up for me in those moments. I’ve also had people disappear. You don’t chase the ones who leave. You just remember.

I’ve never needed a large crowd—just a loyal few. The ones who showed up when it wasn’t convenient. The ones who didn’t need to be asked twice. The ones who believed in me when all I had was a laptop, a home office, and a belief that doing the right thing still mattered in this industry.

You never forget who was there. And you especially never forget who wasn’t.