The Rosenbaum Law Firm P.C. Blog

Plan providers love to say, “We’re not the fiduciary.” And in many cases, that’s true. But here’s the uncomfortable reality: silence can still get you pulled into a lawsuit.

I’ve seen it happen more times than I can count. A provider spots a problem—questionable forfeiture usage, rising fees without benchmarking, payroll errors that keep repeating—but says nothing. Or worse, mentions it casually once and moves on. Years later, when litigation hits, plaintiffs’ counsel asks a simple question: “What did the provider know, and when did they know it?”

That’s when silence becomes Exhibit A.

ERISA doesn’t require providers to be fiduciaries to be relevant witnesses. Emails, service logs, and internal notes suddenly matter. If a provider had visibility into an issue and failed to flag it in a meaningful way, plaintiffs will argue that the provider enabled imprudence—even if the claim ultimately fails.

The fix isn’t to overstep. It’s to document escalation. Providers should clearly identify risks, communicate them in writing, and explain consequences. If the sponsor ignores the advice, that’s on them—but only if the record shows the provider spoke up.

Being helpful doesn’t mean being quiet. And being quiet doesn’t mean being safe.

In today’s litigation environment, the most dangerous thing a provider can do is assume that saying nothing is neutral. It isn’t. Silence gets interpreted. Often badly.

If you see something, say something. Then document it. That’s not fiduciary overreach—it’s professional self-preservation.

If you’re the kind of person who waits until April 15 to drop off your federal tax return in a blue mailbox, or who trusts a mailed check will always be dated the day you dropped it in the slot, the U.S. Postal Service just quietly rewrote reality — and it’s about to affect legal and tax deadlines in 2026.

Here’s what’s going on, in plain Rosenbaum terms: the Postal Service has issued a new rule that clarifies what a “postmark” actually means — and that clarification could make the difference between a timely filing and a late one.

The Rule Change in a Nutshell

Effective December 24, 2025, the USPS updated the way it defines and applies postmarks:

· A postmark no longer necessarily reflects the date you handed the mail to the Postal Service.

· Instead, most postmarks now reflect the date your item is first processed at a sorting facility, which can be later than when it was dropped off.

This isn’t just bureaucratic jibber-jabber — it changes the baseline assumption that “mail is dated when it enters the mail stream.”

Why This Matters for Tax and Legal Deadlines

For decades, taxpayers and litigators leaned on the so-called “mailbox rule” under tax law (Internal Revenue Code § 7502) as well as other statutory deadlines: if something is postmarked by the due date — you’re good.

But under the new rule, that postmark might show a date that’s days after you actually put it in the mailbox, even if you followed all the mailing rules.

So if you:

· drop your tax return into a mailbox on April 15,

· but it isn’t processed until April 17, …your postmark might say “April 17.” That’s a real-world scenario that could spell disaster in an IRS audit or a legal dispute over timely filing.

What’s Changed Operationally

Why did this happen? Two big forces are at play:

1. Modernized mail processing: The USPS is routing more mail through regional centers with automation, which means mail isn’t postmarked immediately at the local post office.

2. Clearer definitions: The rule itself doesn’t change how mail is handled — it just spells out that a postmark equals processing date, not drop-off date.

That distinction may sound minor, but when hundreds of millions of deadlines and legal timelines across government and commercial laws depend on a “postmarked by” standard, it’s huge.

Practical Tips to Protect Yourself

If you’ve built a lifetime of trusting the blue mailbox to save you at the eleventh hour, here’s how to adapt:

Go inside the Post Office Drop your mail at the counter and ask for a manual postmark — that’s the legacy date-of-drop acceptance stamped right then and there.

Request official proof of mailing Certified mail, registered mail, or a Certificate of Mailing provide documented evidence of the actual mailing date — which could be critical if the mail doesn’t get processed until after a deadline passes.

When possible, file electronically From tax returns to legal notices, e-filing removes this postal ambiguity entirely.

Mail early — not at the last minute What used to be a reliable “mail on the due date” tactic now carries real risk under this clarified postmark system.

Bottom Line (The Rosenbaum Rule)

The USPS’s updated postmark rule doesn’t change postal service operations so much as it changes what you can legally rely on. For tax filings, legal deadlines, regulated notices, and anything else where a postmark date matters — assume the mailing date and the postmark date may differ.

Plan ahead. Get proof. File early. Because in the world of deadlines, “close enough” isn’t always good enough — especially when a postmark could be dated days after you handed it to Uncle Sam’s favorite mail carrier.

Stay timely, stay documented, and stay Rosenbaum-smart about your filings.

If you’ve been paying attention to the growing wave of 401(k) forfeiture litigation, the Department of Labor’s latest move is a big deal — even if it didn’t come with fireworks and fanfare.

In a recent development, the U.S. Department of Labor filed an amicus brief supporting JPMorgan Chase & Co. in a 401(k) forfeiture lawsuit now on appeal in the Ninth Circuit. This marks the second time in recent months that the DOL has sided with a plan sponsor rather than plaintiffs challenging the use of forfeited plan funds — signaling a continued shift toward a more employer-friendly posture in this corner of ERISA litigation.

So What’s the Dispute, Anyway?

Here’s the basic setup in plain English:

· In many 401(k) plans, when an employee leaves before fully vesting in employer contributions (like matching amounts), those unvested funds get forfeited back to the plan.

· What the sponsor does with those forfeitures — whether to offset future contributions or pay administrative costs — has become the subject of a growing number of lawsuits. Plaintiffs say certain uses violate ERISA’s fiduciary duties; defendants — and now the DOL — say they don’t.

The plaintiffs typically argue that using forfeitures to reduce future employer contributions (instead of paying expenses that otherwise would be charged to participants) breaches ERISA’s duty of loyalty and prudence. The defendant, backed by the DOL, argues that if the plan documents permit it, using forfeitures this way doesn’t violate the law.

Why the DOL’s Involvement Matters

When the DOL files an amicus brief, it’s not because they’re bored. It’s because the department thinks the issue matters to the administration of employee benefit law. In this case, the DOL is essentially saying:

· The practice of allocating forfeitures toward employer contributions is supported by long-standing practice and plan terms.

· Doing so, by itself, doesn’t automatically violate ERISA.

· Distinguishing between “settlor functions” (plan design and funding decisions) and “fiduciary functions” (managing the plan for the exclusive benefit of participants) is key.

This approach echoes a similar position the DOL took in another employer-defense forfeiture case last year, reinforcing the idea that not all allocation decisions demonstrate improper fiduciary conduct.

Bottom line? The DOL’s backing could influence how appellate courts evaluate these claims, especially in circuits like the Ninth where a precedent-setting decision could ripple nationwide.

But This Isn’t a Guaranteed Win for Employers

Let’s be clear: an amicus brief isn’t the same thing as a court’s ruling. It’s advice to the court. Courts are free to follow the DOL’s lead or chart their own course. And remember — there are dozens of these forfeiture lawsuits pending, with courts across the country taking different approaches on motions to dismiss. (Mayer Brown)

So while the DOL’s position is good news for sponsors with clear plan language and solid administrative processes, it doesn’t mean plaintiffs will stop filing or that all cases will be dismissed.

What Plan Sponsors Should Take Away

Here’s my take — plain and practical:

1. Solid plan language still matters. If your plan clearly authorizes how forfeitures can be used — and you follow it carefully — you’re in better shape defending any plaintiff challenge.

2. Documentation is your friend. Maintain contemporaneous records showing why you allocated forfeitures as you did. That helps defeat claims that you acted imprudently.

3. Compliance doesn’t stop at “it’s permitted.” Just because the plan says you can use forfeitures in a certain way doesn’t mean the decision was “prudent” under ERISA. Be sure your fiduciaries genuinely consider participant interests.

4. The DOL’s voice counts — but courts still decide. A departmental brief isn’t binding. It influences courts, especially where appellate precedent is lacking — but it doesn’t bind them. So don’t assume victory yet.

Final Rosenbaum Rule

In the world of ERISA litigation, trends matter. And right now, the trendlines — from forfeiture cases to public DOL positions — are pointing in favor of clarity, compliance, and careful fiduciary deliberation. The department’s latest brief in the JPMorgan case is just the latest chapter in a broader story about how retirement plans should treat forfeited dollars, and how the law interprets fiduciary judgment calls.

If you’re a plan sponsor or adviser, this is not a “set it and forget it” issue. It’s a reminder that good plan design paired with disciplined administration is the best defense against litigation risk — especially when plaintiffs try to recast decades-old practices as new theories of liability.

Stay vigilant, stay documented, and as always — stay Rosenbaum-smart about your ERISA compliance.

If you ever thought IRS procedural updates were boring, buckle up — because the latest IRS guidance for 2026 determination letters, opinion letters, and private letter rulings actually matters. A lot. Especially if you live in the retirement-plan, ERISA, and employee-benefits universe.

While this isn’t a sweeping overhaul, the IRS has quietly done three things that will hit plan sponsors and practitioners where it counts: higher fees, mandatory electronic filing, and tighter rules on refunds. None of this is theoretical. This is real-world compliance friction.

The Big Picture

Every year, the IRS updates its procedural rules for how it issues determination letters, opinion letters, and other rulings. These letters are not required in most cases — but when you need one, you really need one. They are the IRS equivalent of “don’t worry, you did it right.”

For 2026, the IRS is clearly signaling something familiar: More formality, more structure, and more cost.

What Changed for 2026

1. User Fees Are Up — Across the Board

Let’s not sugarcoat it. IRS user fees increased, in some cases materially. Whether you’re requesting a private letter ruling, a determination letter on an individually designed plan, or submitting under a correction program, the price of IRS comfort has gone up.

That means:

· Higher costs for plan sponsors

· Harder conversations with clients

· Less tolerance for “let’s just file and see what happens”

If you’re budgeting compliance costs for 2026 based on 2025 numbers, adjust accordingly.

2. Electronic Filing Is No Longer Optional

All Form 5300-series determination letter submissions must now be filed electronically. This includes the usual suspects: Forms 5300, 5307, 5309, 5310, and related filings.

Paper is effectively dead here. The IRS wants clean, standardized electronic submissions, and that’s not going to change.

From a practical standpoint:

· Sloppy submissions are easier for the IRS to flag

· Incomplete uploads are harder to excuse

· There is less room for informal follow-up

This is modernization, but it also means less forgiveness.

3. Fee Refunds Just Got Harder to Get

This is the sleeper issue that practitioners should really pay attention to.

Under the updated procedures, the IRS will generally not refund user fees if it later determines that your submission contained a material omission, even if:

· The omission was unintentional, or

· The IRS ultimately declines to rule

In other words, if you leave out a key fact that should have been disclosed, you may lose the ruling and the fee.

That’s a big deal. It raises the stakes for accuracy and completeness — especially in complex plan design or correction scenarios.

Why This Matters More Than It Sounds

It’s easy to dismiss procedural updates as IRS housekeeping. But determination letters and opinion letters are not academic exercises. They are risk-management tools.

When a plan is audited years later, these letters can:

· Shorten audits

· Limit exposure

· Provide leverage in disputes

· Protect fiduciaries from second-guessing

Higher fees and stricter procedures mean that mistakes are more expensive, not just inconvenient.

What Plan Sponsors and Advisors Should Do Now

Here’s the Rosenbaum checklist:

· Budget higher compliance costs for 2026

· Prepare submissions earlier, not at the deadline

· Over-disclose rather than under-disclose

· Treat every filing like it won’t get a second chance

This is especially true for individually designed plans and correction filings, where factual nuance matters.

The ERISA Parallel

If this feels familiar, it should. ERISA preemption exists to create uniformity and predictability. IRS letter programs serve the same purpose on the tax side. But uniformity only works when everyone plays by the rules — and the IRS just made the rules tighter.

Final Rosenbaum Thought

A determination letter is like insurance: you complain about the premium until the day you really need the coverage. In 2026, the IRS has raised the premium and shortened the grace period.

Plan carefully. File cleanly. Assume no do-overs.

Most plan sponsors don’t wake up thinking, “Let’s mismanage the 401(k) today.” Yet bad outcomes happen all the time — excessive fees, underperforming investments, compliance failures, and, eventually, fiduciary exposure.

In my experience, the problem usually isn’t the plan. It’s the process.

A “bad” 401(k) is almost always the result of decisions made without structure, documentation, or follow-through. Committees meet irregularly. Reviews are rushed. Vendors are left on autopilot. Benchmarks are outdated or nonexistent. Changes happen reactively instead of strategically.

ERISA doesn’t require perfection. It requires prudence. And prudence is about how decisions are made, not whether every decision turns out to be optimal in hindsight.

Courts don’t ask whether your plan was the cheapest or the best performing. They ask whether you had a reasoned process: Did you review fees regularly? Did you monitor investments against stated criteria? Did you understand what your providers were doing — and what they weren’t? Did you document your deliberations?

Too many sponsors confuse delegation with abdication. Hiring a recordkeeper, advisor, or TPA does not transfer fiduciary responsibility. It simply changes how that responsibility must be exercised. Oversight is still required. Questions still need to be asked. Decisions still need to be made — and recorded.

A strong process doesn’t require endless meetings or excessive paperwork. It requires consistency. Clear roles. Defined review cycles. Written policies that are actually followed. And the discipline to revisit decisions before they become problems.

If your plan feels “stuck,” “messy,” or risky, don’t start by firing vendors or changing investments. Start by fixing the process.

Because a good process can rescue a mediocre plan. A bad process will eventually ruin a good one.

If I walked into your office tomorrow and you handed me responsibility for your 401(k), I wouldn’t start by changing investments, firing vendors, or chasing the latest industry trend.

I’d start with the basics — because that’s where most plans quietly fail.

First, I’d look at who actually makes decisions. Not who’s listed on paper, but who really has authority. Too many plans operate with informal power structures: one dominant personality, a “committee of one,” or a group that meets only when something goes wrong. Fiduciary responsibility doesn’t work well in the shadows.

Second, I’d review your process. Do you have an investment policy statement that’s followed, not just filed away? Are fees benchmarked on a regular schedule? Do you review vendors proactively or only after complaints arise? A plan without a process is a lawsuit waiting for a bad year.

Third, I’d read the meeting minutes — slowly. Minutes tell the real story. They show whether decisions were reasoned, whether alternatives were considered, and whether questions were asked. Sparse or generic minutes don’t protect anyone. They usually do the opposite.

Fourth, I’d assess vendor oversight. Recordkeepers, advisors, and TPAs are important, but none of them are fiduciaries just because they say they are. Delegation requires monitoring. Trust without verification is not a fiduciary strategy.

Finally, I’d look at participant impact. Not through glossy reports, but through outcomes. Are employees actually participating? Are they deferring enough? Are communications understood, or just delivered?

Here’s the truth plan sponsors don’t always want to hear: most 401(k) problems aren’t dramatic. They’re quiet. They build slowly through neglect, assumptions, and unchecked routines.

Fixing a plan doesn’t start with bold moves. It starts with discipline.

And discipline, done consistently, is what keeps good plans out of trouble.

For years, plan providers survived on a simple premise: do solid work, keep clients happy, and the business will come. That world doesn’t exist anymore.

Being “good at what you do” is now table stakes. Every recordkeeper claims strong technology. Every TPA promises accuracy. Every advisor says they’re service-driven. From a plan sponsor’s perspective, everyone sounds the same — and sameness is deadly in a commoditized market.

The uncomfortable truth is that competence no longer differentiates providers. Visibility does. Clarity does. Relevance does.

Plan sponsors don’t evaluate providers the way providers think they do. They aren’t auditing backend processes or marveling at operational efficiency. They’re asking simpler questions: Do I trust you? Do you understand my problems? Can you explain risk without confusing me?

Providers who struggle usually don’t struggle because they’re bad. They struggle because they’re invisible. They rely on referrals that no longer flow the way they used to. They depend on relationships that retire, merge, or get disrupted by consolidation. They assume their work speaks for itself — even though no one is listening.

In today’s environment, providers have to articulate value, not just deliver it. That means having a point of view. It means educating without lecturing. It means being willing to say uncomfortable things about fiduciary responsibility, governance, and process — even when it costs a sale.

The providers who will survive are the ones who stop hiding behind “service” and start owning their role as problem solvers and risk managers. They invest in messaging the same way they invest in systems. They show up consistently, not just when an RFP appears.

Being good still matters. It just isn’t enough.

In a crowded industry, providers who don’t define themselves will be defined by price — or ignored entirely.

Every plan sponsor committee has one.

The loudest person in the room. The one with the strongest opinions. The one who “has experience” — usually from a prior employer, a cousin’s plan, or something they once read on LinkedIn.

And far too often, that person is also the least informed about how fiduciary responsibility actually works.

ERISA does not reward confidence. It rewards prudence. Courts don’t care who spoke the most, who dominated the meeting, or who shut everyone else down. They care about whether decisions were made through a reasoned, informed process. Volume is not a substitute for diligence.

The danger isn’t that committee members disagree. Disagreement is healthy. The danger is when one voice crowds out inquiry. When questions stop being asked because “we’ve always done it this way.” When vendors aren’t challenged because someone insists they’re “fine.” When the committee defers to confidence instead of evidence.

Fiduciary decisions should be built on data, benchmarking, expert input, and documented deliberation. That means asking uncomfortable questions. It means slowing down decisions that feel rushed. It means being willing to say, “I don’t know — let’s find out.”

Plan sponsors also need to remember this: fiduciary liability is individual. Being outvoted doesn’t protect you if you sat silently while bad decisions were made. Silence can look a lot like agreement when minutes are reviewed years later.

Strong committees don’t eliminate dominant personalities. They manage them. A good chair keeps meetings structured, ensures every member is heard, and forces decisions back to process, not personalities. Advisors and ERISA counsel should be facilitators, not spectators.

The goal isn’t harmony. The goal is governance.

Because when the loudest voice is wrong, and no one challenges it, the fiduciary risk belongs to everyone in the room.

Every year brings incremental changes to retirement plans, but 2026 is different. This isn’t just about higher contribution limits. It’s about a fundamental shift in how catch-up contributions are taxed — one that will directly affect higher-income workers and quietly reshape retirement planning.

Start with the headline numbers. In 2026, the employee 401(k) contribution limit rises to $24,500. Catch-up contributions for those age 50 and older increase to $8,000, and participants ages 60 to 63 can still make a larger “special” catch-up of $11,250. On paper, that’s a win for retirement savers.

But here’s the catch — and it’s a big one.

If you earned more than $145,000 in the prior year, all catch-up contributions must be made on a Roth basis. No pre-tax option. No deferral of income taxes until retirement. That’s a significant departure from how higher earners have historically used catch-ups as part of their tax-planning strategy.

This change isn’t accidental. Shifting catch-up contributions to Roth means the government collects taxes now instead of later. For participants in their peak earning years, that can mean paying tax at a higher marginal rate than they might have faced in retirement.

That said, this isn’t automatically bad policy — just different policy.

Roth contributions grow tax-free, qualified withdrawals aren’t taxed, and Roth accounts aren’t subject to required minimum distributions. For some participants, especially those who expect higher taxes later or want flexibility in retirement income planning, this could actually be a long-term advantage.

The real risk is complacency.

Participants need to confirm whether their employer’s plan even offers a Roth option. If it doesn’t, higher-income employees may lose the ability to make catch-up contributions altogether. Plan sponsors need to understand that this is no longer a participant-level issue — it’s a plan-design and operational issue.

2026 isn’t just another compliance year. It’s the year retirement savings became more complicated — and more strategic.

If you’re not reviewing this now, you’re already late.

At some point, without much notice, 401kHelpCenter.com disappeared.

No announcement. No farewell post. No “we’re shutting down” explanation. One day it was there — the next day it wasn’t. And that’s a shame, because it was one of the best collectors of 401(k) content the industry ever had.

For years, 401kHelpCenter wasn’t flashy. It wasn’t trying to sell you a platform, a managed account, or a bundled solution. It did something far more valuable: it curated. It gathered articles, regulatory updates, commentary, and resources from across the retirement industry and put them in one place. It respected the idea that good information mattered, and that practitioners — plan sponsors, providers, and advisors — wanted access to it without marketing noise.

In an industry that now confuses content with branding and education with lead generation, 401kHelpCenter felt almost old-fashioned. It didn’t pretend to be the smartest voice in the room. It let everyone be heard.

Its disappearance says something uncomfortable about where we are as an industry. Content has become transactional. If it doesn’t convert, it doesn’t survive. If it doesn’t fit neatly into a funnel, it gets abandoned. The idea of maintaining a neutral, centralized library of retirement plan knowledge doesn’t generate enough ROI to justify the effort — even if it creates enormous value.

That’s the real loss.

401kHelpCenter wasn’t perfect, but it was useful. It helped newcomers learn the landscape and veterans keep up with it. It reminded us that the retirement industry is bigger than any one firm, platform, or personality.

When a site like that goes dark, knowledge doesn’t disappear — it fragments. It gets buried behind paywalls, gated downloads, and SEO-driven blog posts that say less and sell more.

That’s progress, I guess.

But it still feels like something important was lost.