The Rosenbaum Law Firm P.C. Blog

Fifteen years into running my own practice, I can say without hesitation—it was the right decision. Going out on my own as an ERISA attorney allowed me to focus on what truly matters: delivering value to clients, not inflating hours to feed a law firm’s bloated overhead. I didn’t want to be another cog in the machine, pressured to bill time instead of spend time solving problems. I wanted to be a resource—not a revenue center.

One of the issues I’ve championed from the start is the importance of using an independent ERISA attorney for plan documents. Too often, plan sponsors rely on whoever is drafting the documents at their TPA or bundled provider. But here’s the thing: plan documents are legal documents. And legal documents come with legal consequences. You wouldn’t let your accountant draft your will, so why let your TPA’s in-house drafter—who might not even be a practicing attorney—build a plan document that could expose you to regulatory risk?

That’s not to say every ERISA attorney is the right ERISA attorney. Just like with TPAs and financial advisors, there are some great ones—and there are some you’d be better off avoiding. I know this firsthand. I’ve worked for TPAs. I’ve worked in law firms. And I’ve reviewed enough ERISA documents to know when something is a ticking time bomb.

One that sticks out? A plan amendment from a California ERISA attorney, intended to tweak a client’s matching formula. What landed on my desk was an incoherent monstrosity. I turned to my plan conversion expert and said, “Sure, he can write this—but good luck administering it.” That’s the danger of hiring the wrong specialist. If you’re a small business with a single-employer 401(k) plan, don’t hire an ERISA attorney who spends their days on multiemployer union plans and has never dealt with revenue sharing. It’s not the same world, and you’ll pay the price for that mismatch in the long run.

At the same time, I’ve never believed that every plan sponsor needs a $25,000 custom document. Value matters. If a TPA is offering a pre-approved document for $2,000 and it fits the plan sponsor’s needs, I’ll gladly recommend it. The key is understanding what the client needs—not pushing what pads your own bottom line.

I’ll never forget the advisor who told me about a plan sponsor whose $100,000 budget for a fiduciary review was entirely consumed by a single ERISA attorney—before the work was even finished. That’s not advocacy. That’s highway robbery.

That’s why my practice is built on flat fee billing. Plan sponsors need cost certainty. They deserve to know what they’re paying for, and they shouldn’t have to flinch every time they pick up the phone to ask their attorney a question. My disdain for the billable hour comes from years of watching it weaponized. When hours are currency, efficiency becomes the enemy. And the more important billables are to a law firm’s culture, the easier it is for overbilling and abuse to thrive.

I get why midsize firms stick to it—they’ve got overhead, associates, partners, and parking garages to pay for. But clients shouldn’t have to foot that bill. That’s why I don’t make them.

And look, as much as I’ve joked about my time working for TPAs—and yes, it’s been great material—those years were the foundation of everything I know. Nothing I learned in law school, and certainly nothing I saw in the corridors of a traditional law firm, prepared me like that TPA experience did. It was trial by fire. Drafting documents quickly. Fixing problems no textbook ever mentioned. Thinking fast, under pressure, and still producing something solid. That world taught me to be practical, to be responsive, and to embrace flat fee billing not as a gimmick, but as a reflection of how real retirement plans actually operate.

Fifteen years later, I still believe in the same things I did when I struck out on my own: that good advice should be affordable, that legal documents should be readable and administrable, and that clients shouldn’t have to choose between quality and value.

And no—I wouldn’t trade this ride for anything.

Let’s be honest: the Solo 401(k) is one of the great marketing wins of the retirement plan industry. It sounds easy. It sounds empowering. It sounds like freedom—no employees, no complex administration, no fuss. But let me tell you something most of those free providers won’t: Solo really means solo. As in, you’re on your own. And when things go wrong—and they often do—you’re the one left holding the bag.

I can’t count how many times I’ve heard from sole proprietors or one-person LLC owners who set up a free Solo 401(k) online and thought they were good to go. No advisory fee, no document fee, no setup costs—what could go wrong? Well, a lot. Because those free plans come with a dangerous assumption: that you, the plan sponsor, actually understand your responsibilities. Spoiler: most don’t. And that’s not a knock—it’s just the reality.

Most Solo 401(k) sponsors don’t realize that the moment the plan exceeds $250,000 in assets, they need to file a Form 5500-EZ annually. And many don’t even know what a Form 5500 is, let alone how to file it. I’ve seen people go five, six, even ten years without ever filing one—and when they finally discover the mistake, they’re knee-deep in IRS penalties, trying to clean up a mess they didn’t even know they made.

But it gets worse. Let’s say you’re a consultant with a booming solo business and things are going well, so you hire a part-time employee. Congratulations—your Solo 401(k) is no longer a Solo 401(k). The moment you bring on that W-2 employee (even if they’re part-time), your plan may become subject to the full rules of ERISA. That means eligibility requirements, nondiscrimination testing, notices, disclosures—and guess who’s not going to tell you any of this? The platform that gave you the plan for free.

A Solo 401(k) can be a great vehicle if you understand what you’re getting into. But don’t be fooled by the simplicity of the name. There’s no one behind the curtain watching your compliance. There’s no TPA reminding you about your filing deadline. There’s no advisor helping you navigate plan design when your business grows. You’re the sponsor, the administrator, the compliance officer, and sometimes, the one left cleaning up a very expensive mess.

So before you click “set up now” on a free plan, ask yourself: Do I actually know what I’m responsible for? Because when the IRS or DOL comes knocking, “but I got it for free online” won’t be much of a defense.

And trust me, by the time you need an ERISA attorney to fix what went wrong, that “free” plan won’t be free anymore.

When a $69 million settlement drops, it’s more than just a corporate write-off—it’s a signal flare in the murky world of fiduciary responsibility. UnitedHealth Group, one of the largest health care conglomerates in the country, has agreed to settle allegations that it mismanaged its own 401(k) plan, a move that impacts hundreds of thousands of participants and raises uncomfortable questions about just how well Fortune 100 companies understand—or choose to ignore—the obligations they owe their workers under ERISA.

The complaint, filed in 2021 and now resolved in 2024 after three years of litigation, centered on UnitedHealth’s use of the Wells Fargo Target Fund Suite—investments the plaintiffs allege were poorly managed and left participants with returns that didn’t match the risk. This wasn’t just a bad day in the market. This was, according to the allegations, systemic fiduciary failure, where decisions about plan menus may have been driven more by corporate convenience than participant outcomes.

The judge’s approval of the $69 million settlement might not be an admission of guilt, but it does speak volumes. You don’t stroke a check like that unless the risk of going to trial feels a whole lot worse. And for the 350,000 current and former employees who trusted their retirement savings to the company’s plan, it’s a bitter reminder that “do no harm” doesn’t always extend to the back office.

Charles Field, one of the lead attorneys on the case, put it plainly: ERISA’s fiduciary standards are “strict and exacting.” I’d go further—they are the backbone of retirement security in this country. When plan sponsors treat those duties as loose guidelines rather than legal obligations, people get hurt. Real people. The kind who work long hours, raise families, and count on these plans to deliver when it’s time to retire.

This case should resonate far beyond Minnesota. It’s a warning to every plan fiduciary, committee member, and corporate executive who views their retirement plan as a box to check or a line item to manage: ERISA doesn’t care how big your company is or how glossy your benefits brochure looks. It cares whether you’re putting participants first. Always.

If that sounds like a high bar, good. It’s supposed to be.

In the retirement plan industry, acquisitions aren’t just about numbers—they’re about narrative. And with its seventh deal in two years, July Business Services (JULY) is writing a very clear one: they’re not just growing, they’re building something with intention.

JULY finalized its acquisition of Employee Incentive Plans (EIP), a respected small to mid-sized 401(k) service provider. This wasn’t a shotgun wedding. By all accounts, the match was driven as much by cultural alignment as it was by strategic expansion.

But this deal wasn’t just about absorbing another recordkeeper. JULY also folded in the retirement advisory practice of AtlasMark Financial, Inc. into Expand Financial (EXPAND), its fiduciary advisory subsidiary. This move brings more than clients—it brings capabilities. EXPAND now becomes a stronger fiduciary partner, promising a model grounded in ERISA standards and backed by scalable tools for growth-hungry advisors.

That last part is key. Too often, advisors are left stuck between the ever-growing compliance burden and a service model that was built for 2005. With this merger, JULY seems to be making a play: let’s give advisors what they actually need—compliance infrastructure, investment management, and a support system that doesn’t force them to choose between growth and risk.

From a business perspective, JULY now serves over 10,000 plans and oversees $18 billion in assets under administration. But more interesting than the numbers is the structure they’re building. With EXPAND offering ERISA-based fiduciary services and a pipeline of culturally aligned firms joining the fold, JULY isn’t just scaling—they’re sculpting.

There’s a lesson here for the rest of the industry. Growth for growth’s sake is a vanity metric. But growth with purpose? That’s a competitive advantage.

Let’s see if others are paying attention.

The just-released 25th Edition of the 401k Averages Book confirms what many of us on the fiduciary side have known—and preached—for years: fees continue to fall, but not evenly. While this is welcome news, it’s also a wake-up call for those who still haven’t benchmarked their plans in the last few years.

Investment-related fees dropped between 0.02% and 0.12%, depending on plan size. Recordkeeping fees inched downward, in some cases by 0.03%, driven by fierce pricing competition and heightened fee transparency demands from sponsors, participants, and yes—plaintiff’s lawyers.

Advisor fees? Largely flat or slightly down, averaging a 0.01% decrease. That’s consistent with what I’ve seen in my own practice: fee compression is real, and fiduciaries who don’t regularly test their plan pricing against the market are either asleep at the wheel or setting themselves up for trouble.

And here’s the punchline: smaller plans still get the short end of the stick. A $5 million plan is paying 1.08% in total costs, while a $50 million plan pays 0.76%. Advisor comp alone drops from 0.37% to 0.16% as plan size scales. If you’re a small employer reading this, don’t assume your costs are “reasonable” just because no one’s complained—benchmark, document, repeat.

The 25th Edition includes 24 plan scenarios, helping plan sponsors see how their plan stacks up. One stat jumped off the page: a $1 million plan with 100 participants can cost anywhere from 0.87% to a staggering 3.56%, depending on the provider and fee structure. That’s a lawsuit waiting to happen.

As always, kudos to Joseph Valletta, CFA, and the team at Pension Data Source for providing this indispensable benchmarking resource. For fiduciaries, ignorance is not bliss—it’s liability.

I’m not anti-life insurance. In fact, I have life insurance, and I believe it’s one of the most important financial tools out there for protecting your loved ones. But when it comes to stuffing life insurance into a 401(k) plan, I have some strong reservations—and those reservations are grounded in reality, not theory.

Let’s be clear: I’ve seen what goes wrong when someone tries to get too clever with life insurance in a qualified plan. Sure, there are consultants and insurance agents who will spin it as an executive benefit strategy or a way to build cash value in a tax-deferred wrapper. But when the rubber meets the road, these arrangements often blow up in the face of the plan sponsor—and it’s the kind of explosion that can cost you the qualified status of your plan.

I’m not going to go into the defined benefit plan disasters where the plan is nothing more than a shell to pay insurance premiums—though I’ve seen enough of those trainwrecks to fill a chapter in a compliance horror storybook. I want to talk about what I see in 401(k) plans.

Problem #1: Discrimination Issues

Too many times, the life insurance component is offered only to company owners or a select group of executives. That’s a benefit, right, and feature. And if that benefit isn’t available to the rest of the plan participants, guess what? You’ve got a discriminatory feature that can cause a compliance failure. A 401(k) plan isn’t a private club for the C-suite. If you want to offer life insurance, it better pass coverage testing and be nondiscriminatory. Otherwise, you’re playing games with your plan’s tax qualification.

Problem #2: Titling the Policy

Here’s another compliance grenade I see too often: the insurance policy is titled directly in the name of the participant. That’s a problem. When an asset is held in a 401(k) plan, it needs to be held by the plan. If the policy is titled in the participant’s name without clearly being owned by the plan, you’ve just crossed into prohibited transaction territory. ERISA doesn’t play around with this stuff.

It’s not enough to say “Well, it’s in the plan documents.” It has to be executed properly—ownership needs to be in the name of the plan, there must be clear documentation, and it must comply with DOL and IRS rules. Otherwise, you’ve just created a liability where there didn’t need to be one.

Problem #3: Nobody Knows What They’re Doing

Let’s be honest. Most of the life insurance in 401(k) plans that I’ve seen was pitched by someone who didn’t fully understand the ERISA ramifications. This is not a plug-and-play product. If you’re not working with a team that understands both qualified plans and the nuances of insurance within those plans, you’re asking for trouble.

Look, I’m all for creativity in plan design when it serves participants, complies with the law, and avoids risk. But stuffing life insurance into a 401(k) plan because someone convinced the business owner it’s a slick tax shelter? That’s not creativity—that’s negligence.

Final Thought

If you’re a plan sponsor, keep it simple and compliant. Don’t chase shiny objects. Focus on good providers, reasonable fees, and a prudent process. That’s what ERISA demands—and that’s what protects your plan and your business.

And if you still want to put life insurance into a qualified plan? Fine. Just make sure your advisor actually knows what they’re doing. Because the IRS and DOL won’t accept “We didn’t know” as a defense.

There’s a hard truth in life, and I learned it the long, slow, and silent way: if you don’t speak up for yourself, you’ll be passed over, stepped on, and probably volunteered to clean up after someone else’s kugel spill.

As I wrote in Full Circle, back in my teenage years at Young People’s Synagogue at East Midwood Jewish Center, I played the role of the dutiful nice guy. You know, the one who showed up early, stayed late, and never got the title—kind of like the unpaid intern who’s somehow also your carpool ride.

Leadership roles were doled out like parts in a high school musical directed by someone’s passive-aggressive older cousin. The person assigning them? A college student named Adam. And every year, Adam gave me the same role: guy who does everything and gets nothing. He made people co-officers who didn’t even show up. He passed me over for president like it was a sacred tradition.

And what did I do? Nothing. I sat there quietly, like a mensch with a clipboard, smiling through clenched teeth and rationalizing, “Maybe next year.” Spoiler: next year never came.

Fast forward a couple of decades, and the stakes are a little higher now than who leads Shabbat announcements. I’m running my own law firm, negotiating retainers, and trying to deliver ERISA compliance without losing my mind—or my voice.

So when a client recently slighted me, again and again—ignoring my reasonable request to revise a retainer agreement—I remembered Adam. And I remembered that feeling. The one where you know you’re being taken for granted, but you stay silent because it’s easier.

Only this time, I wasn’t seventeen.

This time, I said something. Actually, I said everything. I warned one of the client’s employees, “I’ve got one foot out the door.” A week later, I picked up the other foot and walked.

I quit. And it felt… amazing. Liberating. Like finally being promoted to president of a synagogue you no longer care about.

Here’s the truth: no one’s coming to rescue you. No one’s handing you the title, the recognition, or the revised contract. If you’re waiting for fairness to find you, it’s probably stuck in traffic behind a bar mitzvah procession.

So speak up. For your fees. For your worth. For your teenage self who should have gotten the gavel instead of the handout flyer duty.

Because being silent doesn’t make you righteous—it just makes you invisible.

Let me be honest: most fiduciary training out there is about as exciting as watching paint dry in a compliance office. It’s often a checkbox exercise—generic, outdated, and completely divorced from the real-world problems that retirement plan fiduciaries face every day. So when Josh Itzoe, a name many of us in the industry respect, launches something new and calls it “Fiduciary U,” it’s worth taking a closer look.

Josh isn’t just another talking head in the retirement space. He built his reputation as a co-founder of Greenspring Advisors, authored two best-selling books, and now runs FiduciaryWorks, a platform many advisors rely on for plan governance. With Fiduciary U, he’s doing something our industry desperately needs: delivering real fiduciary education in real time—without wasting everyone’s time.

Here’s the pitch, and frankly, it makes sense:

“Everybody talks about fiduciary training, but most of it is basic, boring and outdated.” – Josh Itzoe, via LinkedIn

He’s not wrong. Most of what passes for training is a liability shield, not a learning experience. Fiduciary U flips that on its head with bite-sized, on-demand content that committee members can actually finish—and understand—before their next quarterly meeting.

Courses like these aren’t just relevant; they’re essential:

· Fiduciary Training Essentials (30 mins)

· Making “Cents” of Retirement Plan Fees (14 mins)

· ERISA Litigation Trends from 2024 (12 mins)

· Cybersecurity for Plan Sponsors and Participants (13–15 mins)

In an environment where ERISA litigation is rising, cybersecurity is a daily risk, and fee compression is squeezing everyone, this is the kind of practical education that separates the real fiduciaries from the people who just show up to committee meetings for the muffins.

Fiduciary U is also 24/7, which means committee members can train on their own schedule—nights, weekends, during lunch, even between Zoom calls. No more excuses. No more “we’ll get to it next quarter.”

Most importantly, it scales, and it’s affordable, making it accessible for both large corporate plans and the small businesses who usually get stuck with a laminated fiduciary checklist and a prayer.

Here’s the bottom line: If you’re a retirement plan sponsor, committee member, or advisor, Fiduciary U gives you no excuse to remain uninformed. And if you’re not prioritizing fiduciary education, you’re not just behind—you’re vulnerable.

Training isn’t just a best practice. It’s a risk management strategy. And in 2025, it better be a priority.

Another week, another Adams v. Goliath story in the world of ERISA litigation—and this time, Goliath is Cigna. The company is now facing its second lawsuit in as many months over how it handled forfeitures in its $13 billion 401(k) plan. If you’re a fiduciary—or advise one—pay attention. These cases may seem like déjà vu, but they’re sending a very loud and clear message: the era of sloppy fiduciary oversight is over.

Let’s break this one down.

Three former Cigna employees are alleging that the company misused over $17 million in forfeited 401(k) assets to offset its own matching contribution obligations. The plaintiffs claim this violated ERISA’s fiduciary duties and self-dealing prohibitions. Their logic? Once the money leaves a non-vested employee’s account and hits the plan’s forfeiture bucket, it becomes plan money, and should be used for plan purposes—like paying for administrative expenses or reallocating to participants—not for helping the company’s bottom line.

Cigna, of course, disagrees. They’ve said they’ll “defend the company vigorously,” which is corporate PR speak for “this is going to be expensive.”

But here’s the kicker: the IRS has said that using forfeitures to reduce employer contributions is legal, within certain limits. In fact, that was reaffirmed in 2023. So why all the lawsuits? Because legality under the Tax Code isn’t the same thing as prudence under ERISA’s fiduciary standards. If a plan document says forfeitures should be used a certain way, or if the fiduciaries never even considered using them to reduce fees for participants, then they’re vulnerable—no matter what the IRS says.

Let’s not forget: this is the second lawsuit Cigna has faced recently. The other alleges they kept participant assets in underperforming stable value options and again misused forfeitures. Where there’s smoke, there’s often a fiduciary committee that hasn’t read its plan document in a while.

A few takeaways for plan sponsors and advisors:

1. Forfeitures are not free money. They’re plan assets. Treat them with the same care as participant contributions.

2. Document your decision-making. If you’re using forfeitures to offset contributions, make sure the plan permits it, and document why you chose that route over other alternatives.

3. Read your plan document. I shouldn’t have to say this, but clearly, some committees aren’t doing it.

4. Benchmark everything. Fees, investments, processes—even how you handle forfeitures.

With over 93,000 participants and $13 billion in plan assets, Cigna’s plan isn’t just a retirement vehicle—it’s a litigation magnet. But the lessons apply just as well to the $10 million plan down the street. ERISA doesn’t care about your size—it cares about your process.

And if your process stinks? The plaintiffs’ bar is more than happy to help you improve it—at a steep cost.

As always, don’t let litigation be your wake-up call. Be proactive. Be prudent. Be a fiduciary.

In any service industry, there’s a wide range of quality and pricing. People often tell me I focus too much on third-party administrators (TPAs), but that’s where I’ve spent a lot of my career—as an ERISA attorney and former TPA employee. I know the business inside and out.

I get asked all the time, “Ary, do you work as a TPA too?” My answer is always no—and it’s simple: I respect the work TPAs do way too much to jump into their lane. It’s not just about pushing paper; it’s complicated, and it requires real expertise. The good ones get too little credit and too much blame.

What I see, time and again, is a huge difference in service quality—far beyond just price. Take one of my clients, for example: stuck with a TPA that’s really just an insurance company in disguise. They sold the client life insurance policies the company couldn’t afford and set up a “special” sub-trust that the IRS no longer recognizes as special. That’s not administration—that’s selling snake oil.

Now the client is trying to get out of a plan that’s a half million dollars underwater. A new TPA who actually knows their business took one look and said, “This should have been wound down years ago. Why didn’t the old TPA tell you that?” Well, because the old TPA wasn’t really in the administration business—they were in the insurance sales business. And terminated plans don’t pay fees or premiums, so it’s no surprise they dragged their feet.

When it comes to choosing a TPA, price matters. But it’s service quality that makes or breaks the whole deal. A cheap TPA who can’t—or won’t—give you honest, proactive advice will cost you more in the end. The right TPA is a partner, a trusted advisor who knows ERISA, knows your plan, and is looking out for your best interest.

That’s why I focus on the good TPAs, and why I don’t try to be one myself. Let the experts handle their side of the business—and hold them accountable.