The Rosenbaum Law Firm P.C. Blog

Here’s that in Ary Rosenbaum’s voice — clear, direct, with a personal anecdote to drive the point home:

I’ve talked a lot about institutional share classes, revenue sharing, and the alphabet soup of fund share classes. Maybe I was getting too technical — ERISAese, if you will. So let me break it down in plain English.

No matter what it’s called — institutional, admiral, or some fancy alphabet soup designation — the plan sponsor’s job is straightforward: find the least expensive share class of a mutual fund that’s available to the plan. That’s it. Plain and simple. If they pick a higher-cost share class when a cheaper one is available, they’re just asking for trouble. Someone will come knocking, accusing them of breaching their duty of prudence. And rightly so.

It reminds me of a story about my cousin. Her father was wealthy because he owned a hat manufacturing business. We both had Apple II computers back in the day. She bought her copy of Print Shop at the local computer store for $60. I bought the same product by mail order for $32. Same software. The fact that her father overpaid was his problem — it was his money.

A plan sponsor can’t say the same thing. Overpaying with the participants’ money is a breach of fiduciary duty. When you’re a plan fiduciary, every penny counts — not for you, but for the people whose retirement you’re entrusted to protect. No excuses.

Absolutely. Here’s your piece in the voice of Ary Rosenbaum—refined for tone, rhythm, and clarity while keeping the conversational, legal-insider style you’re known for.

When I was in law school, I was the editor of the student magazine. One semester, I broke a story about a scandal at one of the law journals. The editor-in-chief of that journal—who didn’t appreciate the spotlight—handed me a letter from her attorney. It asked for my sources, who I talked to, what I knew, and everything but my name, rank, and serial number. It was the first time I was ever threatened with a lawsuit, and I’ll be honest: I was hyperventilating.

Then I looked down at my desk and noticed something interesting—the work number for this editor-in-chief was the same number listed for her attorney. Turns out, this “attorney” was someone who practiced international law, not libel. That taught me two things very quickly: First, people will weaponize the appearance of legal muscle even when there’s no bite behind the bark. Second, a lawyer’s letter is often more about pressure than position.

Fast-forward to today: I write an annual article (except, notably, the 16th annual edition this June) about payroll providers and third-party administrators. More than once, I’ve been threatened with litigation over it. Clients, non-clients, industry players—they all seem to have a lawyer on speed dial when the truth gets a little too uncomfortable.

Sometimes these threats are real—especially when there’s actual liability exposure. But most of the time, it’s a tactic, a scare move meant to get you to back off or shut up. When I got that letter in law school, I gave it to the Dean. His advice? “Settle immediately.” That was lousy advice. Here’s better: when you get a letter from a lawyer, speak to a lawyer. A good one will help you figure out if it’s a bluff or a bomb.

I get it—lawyers are expensive. Except me. But the worst mistake you can make is thinking you can handle a legal threat on your own.

A lawyer letter is like a hand in poker—sometimes it’s a bluff, sometimes it’s four aces. You need someone who knows how to read the table and tell you what’s real. If you get one of those letters, you know where to find me.

Well, that didn’t take long.

In what’s becoming a routine political tug-of-war, the Trump administration (yes, back again) has rescinded the Biden-era Department of Labor (DOL) guidance cautioning plan sponsors against offering cryptocurrency in 401(k) plans. To quote every compliance officer I’ve ever met: here we go again.

Now let me be clear—I love crypto. I believe in decentralization, innovation, and financial technology that isn’t stuck in the Stone Age of paper checks and fax machines. I think crypto has a role to play in the future of retirement planning. But like any shiny new object in the retirement space, it needs to be handled with a mix of curiosity, caution, and common sense.

Just because the DOL has backed off doesn’t mean you should go rushing to throw Bitcoin into your investment lineup like it’s a Target Date Fund. Fiduciary responsibility doesn’t vanish with a policy shift. ERISA didn’t change overnight.

If I were ever to offer crypto in a 401(k)—and I’m not saying I would, just if—I certainly wouldn’t do it through some fly-by-night crypto wallet company that promises the moon, charges you the stars, and stores your coins on a server in someone’s basement. No, I’d use a trusted custodian—someone with experience, infrastructure, insurance, and a track record of not disappearing when the market tanks.

Because let’s not forget: plan sponsors have a duty of prudence. That means understanding what you’re offering, why you’re offering it, and how it fits into the larger plan structure. Offering crypto in a plan isn’t inherently imprudent—but doing it with the wrong partner absolutely is.

So while the political pendulum swings, let’s remember our job hasn’t changed. We’re still here to protect participants, build smart plans, and avoid ending up as the cautionary tale at the next ASPPA conference.

Stay curious. Stay cautious. And please—if you’re going to offer crypto in a 401(k), don’t let a Reddit thread be your due diligence.

There are few things more maddening, more viscerally frustrating, than watching a plan sponsor or service provider steer themselves into the abyss out of sheer pride or ignorance—or worse, some toxic blend of both. But in the twilight centuries of the 5500s, nothing tested my patience quite like the decision not to use the DFVCP.

Let me be clear: the Department of Labor’s Delinquent Filer Voluntary Compliance Program (DFVCP) is a gift. A golden parachute for those who stumble, an amnesty for the well-intentioned but disorganized. It’s not just a program—it’s a lifeline. And yet, somehow, year after year, I would encounter plan sponsors—employers, trustees, alleged fiduciaries—who chose not to grab hold.

You’d sit across from them, the ink on the late Form 5500s still drying, and you’d explain it calmly, like you’re talking to someone dangling from a ledge. “You’re late. You’ve missed a required filing. But if you act now, if you enter the DFVCP voluntarily, the penalty is capped. You control the narrative. You retain dignity.”

And still, the response: “Let’s wait. Let’s see if the DOL notices.”

The DOL always notices.

It was maddening because it wasn’t just about money, though the penalties outside DFVCP could be catastrophic. It was about mindset. The DFVCP was built on a principle I respect deeply—redemption. A structured way to admit a mistake, make amends, and move forward without getting devoured by the very system designed to ensure compliance.

But so many couldn’t see it. Maybe they’d been taught that compliance was an adversarial game, that if you admitted fault you invited disaster. Maybe they were emboldened by years of evasion. Or maybe, and this is the one that made me want to scream into my coffee mug, they just didn’t want to pay anything.

So they’d roll the dice. Ignore my counsel. Decline DFVCP. And inevitably, months later, I’d get the call, their voice hushed and panicked:

“We just got a letter from the DOL.”

And I’d take a breath. Not to stay calm—I was calm. But to keep from saying, “I told you so.”

You don’t get points for pride in ERISA. You get penalties.

In those late years, as the industry automated and compliance tools became smarter, I often wondered why we still needed to have this conversation. Why, even with the ghosts of civil penalties looming large, people still believed they could outmaneuver time and regulation.

But then again, maybe that’s the curse of my profession—the long war between logic and hubris.

And in that war, the DFVCP was one of our few truces.

Refusing it? That was the madness.

Two years ago, a guy named Handy tried to do something that should be dead simple in 2025: roll over his $114,000 401(k) after changing jobs. He was 33, building toward his future. But instead of a clean, secure digital transfer, Paychex sent him—wait for it—paper checks.

And then the real disaster struck: those checks were intercepted and fraudulently cashed. That $114,000? Gone. Just like that. Now Handy’s stuck in federal court, chasing down money that was supposed to carry him into retirement.

And here’s the kicker: no one even told him a digital transfer was an option.

Let that sink in.

This Shouldn’t Still Be Happening

Paychex is not some back-office operation with a fax machine and a dusty Rolodex. They’re one of the biggest payroll and retirement administrators in the country. But Handy’s story highlights what I’ve been shouting from rooftops for years: too much of the retirement industry is still stuck in the 1990s.

According to a 2024 Capitalize survey, 43% of 401(k) rollovers still involve physical checks. That’s almost half the market. And more than 80% of savers say the process should be as simple as sending a bank wire.

Instead, they get phone trees, hold music, weeks of waiting, and checks that can vanish into thin air.

Why Are We Still Using Paper Checks?

It boils down to three things: legacy systems, regulatory inertia, and a stunning lack of urgency from some plan providers.

The systems that run many retirement plans were designed decades ago. Updating them means time, money, and effort—things some providers aren’t exactly eager to spend if the Department of Labor isn’t forcing them to. So they do the bare minimum. And savers pay the price.

In Handy’s case, that price was six figures.

Paper Checks Are a Gift to Criminals

This isn’t theoretical. Paper-based rollovers expose people to:

• Fraud and theft: Checks can be intercepted, altered, or forged with shocking ease. It happens all the time.

• Delays and frustration: Mailed checks get lost or delayed. Some rollovers take months—Capitalized found that 42% took longer than two months.

• Zero transparency: Good luck getting real-time updates or tracking a check that’s already disappeared into the system.

Worse still, protections like ERISA, while useful, are limited. If your check gets stolen and cashed, you may be stuck in a legal no-man’s-land between your old provider, your bank, and the receiving custodian. Meanwhile, your retirement sits in limbo.

Here’s How You Protect Yourself

If you’re rolling over a 401(k), treat it like you’re moving a briefcase full of cash across state lines—because in some ways, you are. Here’s how to stay safe:

• Demand a direct transfer. Don’t settle for a check. Push your provider to wire the money straight into your IRA or new 401(k). It’s secure and traceable.

• Hire the right help. Work with a Certified Financial Planner™, not a buddy with a business card. You want someone bound by fiduciary duty, not commission checks.

• Track everything. If you’re forced to accept a check, send it by certified mail and keep every receipt. If anything goes sideways, documentation is your best friend.

• Watch your accounts. Fraud doesn’t always come with fireworks. Check your statements regularly and report anything suspicious ASAP.

• Stay ahead of scams. From fake self-directed IRAs to shady rollover “services,” there’s no shortage of traps out there. Education is your best defense.

Your Money Deserves Better

Retirement savings should not be vulnerable to outdated processes and broken systems. Handy’s case is tragic—but it’s not unique. I’ve seen this story play out too many times. Until the industry catches up with the 21st century, it’s on savers to be their own first line of defense.

Your future deserves more than a check in the mail. It deserves security, clarity, and accountability. And if your provider can’t offer that? Find one that can.

Here’s the short version: the Department of Labor’s decision to reopen the Biden-era ESG rule is overdue—and welcome.

Yes, Judge Kacsmaryk blessed the 2022 regulation under the new post-Loper Bright world, but legal survivability is hardly the same thing as sound policy. The rule’s core flaw is philosophical, not procedural: it invites fiduciaries to sprinkle non-pecuniary dust onto investment decisions that should be grounded, full stop, in dollars and risk-adjusted return. ESG may be fashionable cocktail-party talk, but retirement plans are neither hedge funds for social experiments nor slush funds for political goals. They exist to replace paychecks, not to save the planet or re-engineer boardrooms.

That’s why the attorneys general filed suit in January 2023. It wasn’t grandstanding; it was recognition that the rule muddies the clean line ERISA has always drawn: undivided loyalty to pecuniary benefit. Every time regulators imply “Sure, go ahead and weigh climate metrics if you feel they matter,” they push fiduciaries toward situations where proving pure pecuniary intent becomes a discovery nightmare. Litigation risk skyrockets, participant trust erodes, and plan committees start behaving like nervous cats—terrified of stepping on the wrong political land mine.

The ESG crowd insists “material factors” like climate risk are simply another lens for measuring value. Maybe. But a fiduciary already has license—indeed, a duty—to consider any factor demonstrably linked to return. We don’t need an acronym to do that. What the 2022 rule really did was give cover for mission-driven screens and shareholder campaigns that, more often than not, have indeterminate or negative value in a diversified portfolio. Ask ten asset managers for an ESG score, get twelve different answers and a higher fee schedule. Participants get the bill.

So, credit where it’s due: the Trump DOL’s decision to initiate notice-and-comment and potentially restore the 2020 rule signals a return to clarity. Tell fiduciaries: price the risk, prove the math, and leave the politics to Congress. If a climate metric, a diversity statistic, or a governance ratio truly moves the valuation needle, bake it into your cash-flow model like you would any other risk driver—no ESG halo required.

Will the new proposal fix every ambiguity? Probably not. But at least we can start from a place where fiduciary duty isn’t stretched to accommodate every social crusade with a PowerPoint deck and a marketing budget.

UBS has found itself the latest target in the growing wave of ERISA litigation surrounding the handling of forfeitures in 401(k) plans. In Czakoczi v. UBS AG et al., filed in the District of New Jersey, the allegations mirror a familiar tune: that UBS prioritized its own bottom line over the financial best interests of plan participants.

Here’s the crux of the matter—one that should make any fiduciary sit up and pay attention. UBS is accused of using plan forfeitures (those unvested amounts left behind when employees leave before vesting) to reduce its own future matching contributions. Meanwhile, plan participants continue to foot the bill for administrative expenses out of their own individual accounts. As Carol Czakoczi, a participant in the plan, points out in her complaint, this dynamic leaves employees with less money to invest or distribute when they retire.

For those of us who’ve lived in the trenches of the retirement plan industry, this lawsuit is déjà vu. We’ve seen this before—and not just with UBS. Cigna was recently sued over a similar issue, and Intuit reached a settlement after a failed motion to dismiss. And while some plan sponsors have dodged bullets in recent court decisions (Kaiser Foundation Health Plan, for example), it would be foolish for others to interpret that as a green light to carry on without carefully examining their forfeiture practices.

Let’s be clear: plan documents typically provide flexibility in how forfeitures are handled. UBS’s plan, for instance, allows forfeitures to be used either to reduce employer contributions or to pay plan expenses, “as determined by the plan Administrator in its sole discretion.” But discretion isn’t a free pass—it must be exercised prudently and solely in the interest of plan participants, as ERISA demands.

That’s where UBS, according to the complaint, failed. The plaintiff alleges that the plan administrator didn’t go through any reasoned or impartial process to determine the best use of forfeitures. The argument is that, because UBS isn’t at risk of missing its matching contributions, the logical and participant-friendly move would have been to use forfeitures to pay plan expenses.

In a plan with over $9 billion in assets and more than 32,000 participants, small decisions like these can have a massive impact. If plan participants are covering plan expenses out of their accounts, they’re effectively subsidizing UBS’s obligations—an arrangement that runs afoul of the fundamental fiduciary principles of ERISA.

The lawsuit, led by plaintiff’s firm DiCello Levitt LLP, seeks to hold UBS fiduciaries accountable and recoup what it calls “plan losses.” Time will tell whether the case survives a motion to dismiss or meets the same fate as some of the recent forfeiture cases that were tossed for insufficient claims.

But win or lose, there’s a lesson here—one I’ve preached for years. If you’re a plan sponsor or fiduciary, you mustdocument your decisions and ensure they are grounded in the best interest of your participants. When you have discretion, use it carefully and thoughtfully. Don’t default to what’s easiest or most beneficial for the company. ERISA doesn’t care about corporate convenience; it cares about fiduciary integrity.

And while UBS has declined to comment, let this be a cautionary tale for every other plan sponsor out there: treating forfeitures as a piggy bank to ease your own contributions may seem harmless—but in the ERISA world, optics matter, and so does process.

The best fiduciaries are the ones who treat their responsibilities as more than a legal duty—they treat them as a trust. That trust, once broken, is hard to repair.

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.