The Rosenbaum Law Firm P.C. Blog

To steal a joke from Chris Rock, when I worked at a TPA as the lead ERISA attorney, I used to joke that if you wanted to hide something from one of our plan administrators, just put it in the plan document file. Nobody ever cracked one open. Why? Because someone had already plugged the plan specs into Relius, and that’s all anyone looked at.

The problem, of course, was that the woman running the show back then was a complete buffoon. Things were constantly wrong — specs didn’t line up, operational errors piled up, and everyone assumed Relius was the gospel truth. Meanwhile, the plan document — the actual governing instrument under ERISA — sat ignored, like an unread instruction manual stuffed in a drawer.

Here’s the point: plan specs are only as good as the plan document they’re based on. If they don’t match, you’re courting disaster. I’ve seen plan sponsors dragged into compliance nightmares, IRS corrections, and even litigation simply because the specs in the recordkeeping system didn’t mirror what was written in black and white.

So, whether you’re a TPA, advisor, or plan sponsor, don’t treat the plan document like some dusty artifact. Specs, procedures, Relius entries, prototypes — all of it needs to reflect what’s actually in the governing document. Otherwise, you’re just building mistakes into the system and waiting for the IRS or DOL to find them.

Trust me, when they do, you won’t be laughing at the Chris Rock joke anymore.

To steal a joke from Chris Rock, when I worked at a TPA as the lead ERISA attorney, I used to joke that if you wanted to hide something from one of our plan administrators, just put it in the plan document file. Nobody ever cracked one open. Why? Because someone had already plugged the plan specs into Relius, and that’s all anyone looked at.

The problem, of course, was that the woman running the show back then was a complete buffoon. Things were constantly wrong — specs didn’t line up, operational errors piled up, and everyone assumed Relius was the gospel truth. Meanwhile, the plan document — the actual governing instrument under ERISA — sat ignored, like an unread instruction manual stuffed in a drawer.

Here’s the point: plan specs are only as good as the plan document they’re based on. If they don’t match, you’re courting disaster. I’ve seen plan sponsors dragged into compliance nightmares, IRS corrections, and even litigation simply because the specs in the recordkeeping system didn’t mirror what was written in black and white.

So, whether you’re a TPA, advisor, or plan sponsor, don’t treat the plan document like some dusty artifact. Specs, procedures, Relius entries, prototypes — all of it needs to reflect what’s actually in the governing document. Otherwise, you’re just building mistakes into the system and waiting for the IRS or DOL to find them.

Trust me, when they do, you won’t be laughing at the Chris Rock joke anymore.

The beauty of social media is that everyone has an opinion. The negative part of social media is that everyone has an opinion.

Once upon a time, disagreements lived at the dinner table, in union halls, or on the floor of Congress. Now they’re broadcast 24/7, amplified by algorithms, and weaponized by people hiding behind avatars. The vitriol we see, with each political side tearing at the other, has been sharpened and accelerated by social media.

I fear that this constant stream of outrage isn’t just bad for civil discourse — it’s dangerous. When online debates devolve into hate-filled pile-ons, it creates an atmosphere where extreme voices feel justified, even celebrated. What starts as words on a screen can too easily cross into actions in the real world.

Social media has given us connection, access, and a platform to be heard. But it’s also exposed the ugliest parts of human nature and magnified them. My concern is that unless we collectively learn how to dial back the toxicity, things are only going to get worse.

The Department of Labor (DOL) has released its Spring 2025 regulatory agenda, and for those of us in the retirement plan industry, it reads like a greatest hits playlist — ESG, fiduciary rule, auto-portability, pharmacy benefit managers (PBMs), electronic disclosure, lost and found, ESOPs, and yes, even IB 95-1.

The DOL framed this agenda as “a set of high-priority actions designed to reduce unnecessary burdens on employers and employees.” That’s the nice way of saying: changes are coming, and whether they’ll actually reduce burdens depends on where you sit in the industry.

ESG: The Never-Ending Ping-Pong Match

ESG is back on the table. The DOL intends to finalize a new rule by May 2026 that would ensure fiduciaries only consider financial factors when selecting investments or exercising proxy voting rights. The message is clear: no advancing social causes under the guise of fiduciary duty.

Conservatives have long argued ESG is politics dressed up as risk management. While the Biden rule in 2023 made it easier to use non-financial factors as tiebreakers, the Trump administration seems poised to tighten the screws again. For plan sponsors, this means the ESG conversation will continue to be less about investments themselves and more about how the political winds blow.

Fiduciary Rule: Here We Go Again

If you’ve lost track of how many versions of the fiduciary rule we’ve had, you’re not alone. Biden’s “Retirement Security Rule,” finalized in April 2024, extended ERISA fiduciary duties to one-time advice like rollovers and annuity purchases. That rule is still tangled in litigation in the 5th Circuit.

The Trump administration says a new final rule is on the way by May 2026, promising it will be “based on the best reading of the statute” and aligned with deregulation goals. Translation: expect a rollback or rewrite. Every time this pendulum swings, providers and advisors are left trying to adjust compliance frameworks yet again.

Auto-Portability: Getting Closer

Auto-portability — the process of automatically rolling over small accounts when participants change jobs — has been promised for years. The agenda indicates a final rule by January 2026. Whether it builds on Biden’s 2024 proposal remains to be seen, but one thing is certain: recordkeepers and TPAs need to prepare for more operational complexity.

Independent Contractors: A Hot-Button Issue

The DOL is targeting September 2025 for a new proposal on defining employees versus independent contractors. Any changes here could ripple into retirement plan coverage, especially for industries heavily reliant on gig workers. The expectation? It will become easier to classify workers as contractors, reducing employer obligations.

PBMs: Transparency on the Horizon

By November 2025, the DOL aims to propose rules that would improve transparency around the direct and indirect compensation PBMs receive from employer health plans. While not strictly retirement-focused, this signals the DOL’s ongoing push for fee and cost transparency — a theme that crosses over to retirement plans.

Electronic Disclosure: Deregulation in Disguise?

The agenda suggests new regulations on electronic disclosure for health and welfare plans by May 2026, pitched as a “deregulatory action.” If that’s true, plan sponsors could get more flexibility in how they communicate, which would be a welcome change given how outdated some notice rules feel in 2025.

Lost and Found: Still in the Works

Remember the Retirement Savings Lost and Found database promised by SECURE 2.0? The DOL now says regulations for data collection will come by April 2026. The concept is great — participants shouldn’t lose track of their savings — but we’ve been waiting for the infrastructure to catch up.

ESOPs: Adequate Consideration

By January 2026, the DOL could issue a new rule on the adequate consideration of shares in ESOPs. This has always been a thorny area, with valuation disputes at the heart of countless lawsuits. Providers in the ESOP space should watch this closely.

IB 95-1: Pension Risk Transfers Under Review

Lastly, IB 95-1, which governs fiduciary considerations in pension risk transfers, could see new amendments by April 2026. Given the recent uptick in pension risk transfers, an update here would be timely, but it could also raise the compliance bar for sponsors looking to offload liabilities.

Final Thoughts

The DOL’s regulatory agenda is never light reading, and this one is no exception. While agendas are not binding and often move slower than promised, the themes are clear: ESG will stay political, the fiduciary rule is a moving target, transparency remains a focus, and operational rules like auto-portability and lost and found are slowly taking shape.

For plan providers, the best strategy is the same as always: stay nimble, prepare for change, and remember that just because a rule is on the agenda doesn’t mean it’s arriving on time. If there’s anything my years in the retirement plan business have taught me, it’s that DOL timelines age about as well as milk left out in the sun.

Chalk up another win for plan fiduciaries in the ongoing wave of forfeiture reallocation suits — and this time, the plaintiffs didn’t even get the courtesy of a do-over.

The Case

Roughly a year ago, participant Guadalupe Cano sued Home Depot and the administrative committee of its FutureBuilder Plan. The allegations? Breach of fiduciary duty, violation of ERISA’s anti-inurement provision, and engaging in prohibited transactions.

But the heart of the complaint was about how forfeitures were used. Cano argued that Home Depot consistently failed to use forfeited funds to pay plan administrative expenses — money that, in her view, should have reduced the amounts charged to participant accounts. Instead, forfeitures were reallocated to offset employer contributions.

She claimed millions of dollars in contributions between 2018 and 2022 were reduced because of this practice. Cano further argued that Home Depot failed to investigate alternatives or consult independent experts, painting the company’s actions as disloyal and imprudent.

The Decision

Judge Tiffany R. Johnson of the Northern District of Georgia was not persuaded. While she acknowledged that forfeitures are plan assets and that Home Depot was acting in a fiduciary role when deciding how to allocate them, she found no breach of duty.

Why? Because the plan document itself allowed the company to use forfeitures either for administrative costs or for employer contributions. That choice is not prohibited by ERISA. Judge Johnson went further, emphasizing that ERISA doesn’t require fiduciaries to eliminate participant expenses entirely or to maximize participant benefits at all costs. The law requires prudence under the circumstances and adherence to plan terms — and Home Depot checked those boxes.

On the anti-inurement charge, the court was blunt: forfeited funds never left the plan, so there was no self-dealing. As for prohibited transactions? No transaction, no claim.

Finally, when plaintiffs asked for another shot at reframing their arguments, the judge shut the door. Amendment would be futile, she said, given the clear language of the plan and decades of regulatory guidance supporting this type of forfeiture use.

What This Means

Forfeiture suits have been cropping up all over the country, and while outcomes have varied, this ruling fits the emerging trend: if the plan document permits reallocating forfeitures and the practice aligns with long-standing IRS and Treasury regulations, fiduciaries are on solid ground.

Home Depot’s win underscores a basic but crucial point for plan sponsors: document terms matter. As long as you follow the plan and the regulations, courts are increasingly unwilling to stretch ERISA to create new obligations.

And in this case, the judge also made clear she wasn’t going to let plaintiffs keep rolling the dice until they finally hit a sympathetic ear. That’s an important message for the litigation environment going forward.

For fiduciaries, the takeaway is reassuring: consistency with plan terms and regulatory history remains the strongest defense against these creative — but ultimately unsuccessful — forfeiture claims.

According to Fidelity Investments’ latest Q2 2025 retirement analysis, retirement savers got some good news: average 401(k), 403(b), and IRA balances hit record highs. Despite the rocky market start this quarter, balances climbed: 401(k)s up 8%, 403(b)s up 9%, and IRAs up 5% compared to a year ago.

That’s not just a stat to file away. It’s a reminder of one of the most basic, yet hardest-to-follow principles of retirement saving: stay the course.

As someone who has spent a career watching the retirement plan industry twist itself in knots over fees, litigation, and compliance, I can tell you this: the real “secret sauce” of retirement success isn’t hidden in the latest investment option or recordkeeping platform. It’s about consistency. Participants who avoid making emotional decisions, who contribute steadily and diversify reasonably, are the ones who build wealth over decades.

Fidelity also drilled down on higher education employees. The findings were encouraging: strong savings rates and healthy asset allocation. But not everything is rosy. Younger workers and women, in particular, are showing gaps in preparedness. That’s not a higher-ed-only problem, that’s an industry-wide challenge. It’s another reminder that plan sponsors and providers need to think beyond average balances and address disparities within their participant population.

When I talk to plan sponsors or providers at “That 401(k) Conference,” I often joke that my New York Mets have taught me patience (too much patience, maybe). But it’s the same with 401(k)s: you can’t let one bad quarter define your season. You stick with your plan, and over time, the wins outweigh the losses.

The lesson from Fidelity’s Q2 analysis is simple: retirement savers who tuned out the noise and kept contributing are in a stronger position today. If you’re a plan sponsor or advisor, your job isn’t just about picking funds or benchmarking fees—it’s about reminding participants of this very truth.

Because at the end of the day, the best retirement strategy is often the least exciting one: keep calm, keep saving, and let time and compounding do their work.

A long-time client of a financial advisor had a 401(k) plan sponsor that was quiet, easy to deal with, and, most importantly, loyal. Everything seemed smooth until the advisor’s new employee came on board. The new hire saw the plan and thought it was the perfect time to make their mark. Acting as the 3(38) fiduciary, they completely overhauled the fund lineup.

Now, let’s be clear, that was within their rights. As a 3(38), you have discretion over the investments. The problem? The plan sponsor didn’t appreciate the change. Instead of seeing it as proactive management, they saw it as disruptive. The end result: the advisor lost a long-term client.

The Fragile Balance

Sometimes working with plan sponsors is a lot like walking on eggshells. One small misstep—or even something you thought was the “right” step, can cause a crack that ends the relationship.

I know that feeling all too well. Growing up at home, I had to walk on eggshells constantly. The smallest changes in tone, the smallest perceived mistake, could lead to outsized consequences. With plan sponsors, it’s eerily similar. Even if you’re doing your job correctly, even if you’re following fiduciary standards to the letter, you can still get fired.

The Lesson

I’m not saying you shouldn’t do your job. You absolutely should. Fiduciary responsibility is not optional. But there’s a difference between doing your job and being tone-deaf to the client’s perspective.

Plan sponsors want stability. They want reassurance. And they don’t want surprises. If you’re going to make major changes, like revamping an entire fund lineup, you’d better be prepared to communicate why, when, and how it benefits them. Dropping it on them like a ton of bricks is rarely going to end well.

The Bottom Line

Advisors, TPAs, and other providers need to remember that relationships with plan sponsors are as much about trust as they are about technical expertise. You can be right and still lose the client. You can be prudent and still get fired.

That’s the uncomfortable reality of our business. Do your job, but don’t forget the human side. Communicate. Educate. And above all, respect the fact that, to a plan sponsor, change can feel like chaos.

Sometimes, keeping the eggshells intact is just as important as the fiduciary duty itself.

A long-time client of a financial advisor had a 401(k) plan sponsor that was quiet, easy to deal with, and, most importantly, loyal. Everything seemed smooth until the advisor’s new employee came on board. The new hire saw the plan and thought it was the perfect time to make their mark. Acting as the 3(38) fiduciary, they completely overhauled the fund lineup.

Now, let’s be clear, that was within their rights. As a 3(38), you have discretion over the investments. The problem? The plan sponsor didn’t appreciate the change. Instead of seeing it as proactive management, they saw it as disruptive. The end result: the advisor lost a long-term client.

The Fragile Balance

Sometimes working with plan sponsors is a lot like walking on eggshells. One small misstep—or even something you thought was the “right” step, can cause a crack that ends the relationship.

I know that feeling all too well. Growing up at home, I had to walk on eggshells constantly. The smallest changes in tone, the smallest perceived mistake, could lead to outsized consequences. With plan sponsors, it’s eerily similar. Even if you’re doing your job correctly, even if you’re following fiduciary standards to the letter, you can still get fired.

The Lesson

I’m not saying you shouldn’t do your job. You absolutely should. Fiduciary responsibility is not optional. But there’s a difference between doing your job and being tone-deaf to the client’s perspective.

Plan sponsors want stability. They want reassurance. And they don’t want surprises. If you’re going to make major changes, like revamping an entire fund lineup, you’d better be prepared to communicate why, when, and how it benefits them. Dropping it on them like a ton of bricks is rarely going to end well.

The Bottom Line

Advisors, TPAs, and other providers need to remember that relationships with plan sponsors are as much about trust as they are about technical expertise. You can be right and still lose the client. You can be prudent and still get fired.

That’s the uncomfortable reality of our business. Do your job, but don’t forget the human side. Communicate. Educate. And above all, respect the fact that, to a plan sponsor, change can feel like chaos.

Sometimes, keeping the eggshells intact is just as important as the fiduciary duty itself.

Every single day, I get a text that someone is trying to hack into my Coinbase account. I don’t even need coffee anymore, the scam alerts are my morning jolt. If it’s not Coinbase, it’s an email claiming my law firm’s “HR department” has urgent documents for me to review. (Note to scammers: I own my firm, and we don’t have an HR department.) Other times, it’s a fake real estate transaction I’ve supposedly been roped into. And let’s not forget the classics, the blackmail emails claiming they’ve hacked my webcam and are going to share embarrassing footage unless I pay up in Bitcoin.

Who falls for this stuff? Clearly, someone does, otherwise the scammers wouldn’t bother. It’s like the Nigerian prince emails of the early 2000s. They seem ridiculous, but if even one out of a thousand people takes the bait, it’s a profitable business.

Why It Matters for Retirement Plans

You might be wondering why I’m spending time ranting about scammers. It’s because the same tactics these grifters use are aimed at plan participants and plan sponsors. A single careless click can compromise accounts holding millions in retirement savings.

Think about it: hackers don’t need to break into Fort Knox when they can trick someone into handing over the keys. Phishing emails, fake login pages, phony HR messages—these are all tools in the cybercriminal’s arsenal. Once inside, it’s disturbingly easy to move money around, and the damage can be irreversible.

Vigilance Is the Only Defense

For plan sponsors, vigilance isn’t optional. Fiduciary duty doesn’t stop at picking funds and monitoring fees, it now extends to protecting participant data and assets from cyber theft. Regulators have been crystal clear: cybersecurity is a fiduciary responsibility.

That means training employees not to click on suspicious links. It means adopting multi-factor authentication (yes, even if it’s annoying). It means vendors need to be vetted for their cybersecurity practices, just as much as their recordkeeping fees.

The Human Factor

At the end of the day, technology only goes so far. The weakest link is always human behavior. Scammers don’t have to be smarter than your IT team; they just have to be clever enough to trick one distracted person into clicking “open.”

I might roll my eyes at the endless stream of scam attempts, but it’s a reminder that someone is always knocking at the door. For retirement plans, you can’t afford to leave it unlocked.

Retirement saving is hard enough when you’re just trying to take care of yourself. Add in kids, and it gets tougher. Add in aging parents, and it can feel impossible. According to the 2025 Annual Retirement Study from the Allianz Center for the Future of Retirement, a quarter of Americans are caught in exactly that spot, caring for children under 18 while also supporting their parents.

This “sandwich generation” is more than just a buzzword. It’s a financial reality for millions, especially millennials (46%) and Gen Xers (18%). And while we like to think about retirement planning as a straight-line path, save, invest, grow, retire, the truth is that life rarely works that way.

The Dual Burden

The numbers are sobering: 78% of those in the sandwich generation provide their parents with physical, financial, or emotional support. That’s on top of caring for their own kids. Nearly three in four say it’s difficult to juggle all of their financial needs and goals under this dual responsibility.

And the cost? A staggering 59% of sandwich generation Americans say they’ve reduced or stopped contributing to their retirement savings. Seventy percent say it has significantly impacted their retirement plans. Translation: today’s caregiving is tomorrow’s retirement shortfall.

The Retirement Ripple

When you press pause on saving for retirement, the compounding effect works against you. Skipping contributions for even a few years doesn’t just mean less money saved—it means missing out on the growth those contributions could have generated.

The Human Side

Let’s be clear, this isn’t about selfishness. Nobody chooses to be in the sandwich generation. Most people don’t expect to be financially supporting their parents while also raising kids, but 60% of respondents said that’s exactly where they’ve found themselves. It’s a situation filled with love, duty, and guilt, but also filled with financial strain.

I know the feeling of walking on eggshells when trying to juggle multiple responsibilities at once. When you’re sandwiched, every dollar feels like it has two or three claims on it. It’s overwhelming, and most say it feels like a full-time job.

Finding a Balance

So what’s the takeaway? You can’t abandon your retirement savings entirely. If you do, you may be condemning your future self, and perhaps even your children, to an even heavier financial burden down the road.

This is where a financial advisor can earn their keep. Not as a magician, but as someone who can help balance competing needs. That might mean adjusting contributions, exploring risk management tools, or simply creating a strategy that acknowledges the realities of caregiving while keeping retirement savings alive.

The Bottom Line

The sandwich generation is being pulled in two directions, and it’s stretching retirement security thin. But the hard truth is this: if you don’t take care of your own financial future, no one else will.

You can’t stop being a parent. You can’t stop being a child. But you can put yourself on the list of people you care for, because if you don’t, the entire foundation crumbles.