The Rosenbaum Law Firm P.C. Blog

I once volunteered for an organization where I flat-out said the leadership—excluding myself—was stuck in 1986. I didn’t say it to be funny. I said it because it was true.

They were using the same dated tactics to bring in members and raise money that may have worked when Family Ties was a top-rated show, but not in today’s world. They were clinging to old models like they were gospel, completely missing the reality that people, and how you reach them, have changed.

And it wasn’t just that organization. I worked at a law firm where the culture and marketing mindset felt fossilized. I tried using social media to talk about retirement plan issues, start conversations, build credibility, the kind of things that actually bring in clients. The managing attorney looked at me like I had three heads. Meanwhile, her husband, also an attorney, was out there doing the same thing and doing it well. But instead of learning from that, she treated it like something shameful. God forbid a lawyer actually markets their services in a way that connects with the present.

Here’s the thing: this business changes. Retirement plan rules evolve. Plan sponsors change how they hire providers. The way we communicate, the way we demonstrate value, the way we build trust—it’s all different than it was decades ago. And it keeps changing.

You can’t keep marketing like it’s a fax machine world when everyone’s glued to their phones. You can’t wait around for referrals like you’re reading from a Rolodex. If you want to grow, you need to evolve. Learn new platforms. Try new strategies. Stay relevant.

This isn’t about chasing every trend or jumping on every buzzword. It’s about having the humility to recognize that you can’t coast on what worked 30 years ago. Relevance is earned every day. And if you don’t make the effort to stay current, someone else will, and they’ll eat your lunch while you’re still printing tri-fold brochures.

Success today requires flexibility, curiosity, and a willingness to challenge your own assumptions. If you’re in this business—any business, and still think your ’86 playbook is going to win today’s game, I’ve got news for you: the rules have changed.

And yes, the best thing about 1986 was still the New York Mets. But unlike some people I’ve worked with, at least the Mets have tried to evolve.

Vanguard’s latest report makes a blunt point: allowing collective investment trusts (CITs) in 403(b) plans could save the median plan participant about 0.08% to 0.09% annually compared to mutual fund fees—translating into $23,000–$28,000 less paid in fees by age 65 for someone earning $74,000 a year. That’s enough to cover six months of living expenses in retirement for one person.

Here’s the kicker: 10 million educators, healthcare workers, and nonprofit employees are left behind by plan regulations barring CIT access in most 403(b)s. Meanwhile, their private-sector counterparts in 401(k) plans enjoy lower-cost, institutional-tier investment options.

Why It Matters—and Fast

CITs aren’t gimmicks. They’re institutional investment vehicles regulated by OCC and state banking authorities, not the SEC—so they sidestep much of the retail marketing and disclosure regime. That makes CITs cheaper to run and easier to customize for large plan groups.

Since August 2024, CITs have even surpassed mutual funds in target-date fund assets. Yet many 403(b) plans remain frozen in time. This isn’t a small oversight—it’s a systemic inequity that costs participants real dollars over decades.

Legislative Progress—but Still No Access

The SECURE 2.0 Act tweaked tax law to permit CITs in 403(b)s, but securities law wasn’t updated, so most plans still can’t offer them. Recently, legislation—H.R. 1013, the Retirement Fairness for Charities and Educational Institutions Act—advanced from committee on a bipartisan 43–8 vote to bridge that gap.

One proposed amendment to restrict CITs only to ERISA-covered 403(b)s was defeated. That means potential access expands—not contracts—and that’s vital because ERISA fiduciary standards apply regardless of plan tax status .

Fiduciaries, Don’t Sleep on This

If you oversee a 403(b) plan today, you have options—but you still can’t offer CITs until the law changes. That means it’s incumbent on plan sponsors and advisors to engage lawmakers and support reform—both for compliance and participant benefit.

Even small fee differences can compound into substantial retirement savings. The longer this disparity persists, the more nonprofit workers pay—and the more they lose out on potential compounding. That’s not accidental—it’s a fiduciary blind spot worth fixing.

Bottom Line

This is not theory. It’s not a cost-savings calculator exercise. It’s real dollars that could be preserved for teachers, nurses, public school employees, and nonprofit staff for decades to come. If you’re serious about fiduciary duty—not just compliance—you need to be part of the solution.

Because when a quarter-percent difference translates into six months of income in retirement, it’s not small—it’s meaningful. And waiting is not an option.

A massive new study by Abernathy-Daley covering nearly 58,000 corporate 401(k) plans delivered a simple—but startling—message: virtually every plan suffers from overpriced, underperforming funds. In fact, 99% of plans have at least one fund with a cheaper, better-performing alternative over three, five, and ten-year spans, and 85% of plans have at least five such alternatives. Put simply: plan sponsors and advisors are systematically letting participants pay too much for too little.

Why Fiduciaries Are Facing Legal and Ethical Heat

This isn’t just bad investment advice—it’s a liability. Abernathy-Daley pulls no punches: the industry suffers from misaligned interests, inertia, and opaque revenue sharing that keeps inferior funds on shelves. These problems are well established—the freakshow litigations at Southwest Airlines and UnitedHealth earlier this year underscore the legal risk of inaction.

What Fiduciaries Should Do Right Now

1. Benchmark Your Plan Annually

If you’re not comparing your lineup against peer medians every year—including returns and fees—you’re asleep at the wheel. Plans with persistent underperformers need to be pruned, fast.

2. Fix the Lineup

Plan advisors must be held accountable. If there are cheaper alternatives in the same fund category performing better, swap them out. Don’t let conflicts of interest justify inertia.

3. Boost Participant Education

The Bottom Line

Relying on participants to audit their own plan is fantasy. Instead, sponsor-led education must include easily digestible summaries of fee impact and fund replacement rationale.

This isn’t theoretical. It’s empirical: you’re almost guaranteed to find overpriced, lagging funds if you audit your 401(k) lineup. That’s a fiduciary failure—not an investment oversight.

If you’re serious about your duty as a fiduciary—if you’re serious about participants’ retirement outcomes—you’ve got to stop treating fund selection as a “set-it-and-forget-it” routine. Benchmarks, accountability, and education are not optional. They’re the difference between good faith compliance and systemic breach.

Look, I love a good soap opera. I grew up on Dallas, and I still sneak in The Bold and the Beautiful when I can. There’s something about the betrayal, the big reveals, and the constant twists that makes it compelling. But you know where I hate a good soap opera? In 401(k) plan beneficiary designations.

On May 1, 2025, the Fifth Circuit handed down a decision in LeBoeuf v. Entergy Corp. that reminds us—yet again—why 401(k) plan sponsors, participants, and yes, even plan committees, need to treat beneficiary designations like legal documents, not romantic subplots.

Let’s run through the plot.

Meet the Cast

Alvin Martinez worked for Entergy Corporation for over 35 years. He had a 401(k) plan account, worth about $3 million at the time of his death. In 2002, his wife passed away. In 2010, Alvin submitted a beneficiary form listing his four adult children as his beneficiaries. That form came with a warning: if he got remarried after submitting the form, his designation would be revoked unless he updated the form after the new marriage and got a notarized spousal waiver.

That warning wasn’t buried in the fine print—it was spelled out in black and white.

Fast-forward to 2014: Alvin gets remarried. No update to the form. No spousal waiver. Just quarterly statements from the plan that continued to list his kids as the beneficiaries—statements that apparently didn’t mention the plan rule that a new marriage nullifies a prior designation.

In 2021, Alvin passes away. The Committee paid the money, $3 million, to the second wife, not the adult children. The kids sued. The court said: case closed.

Don’t Blame the Committee

The adult children argued that the Committee misrepresented the plan by not correcting the quarterly statements. The court didn’t buy it. Why? Because Alvin got the plan document, the beneficiary form, and at least nine summary plan descriptions (SPDs) explaining the marriage provision.

He had the information. He just didn’t act on it.

The court also emphasized that participants have a duty to inform themselves about the plan. That’s a crucial takeaway. We live in a world where everyone expects the plan sponsor or recordkeeper to hold their hand through every life event. But here’s the truth: retirement plans aren’t babysitters. If you remarry, it’s on you to update your beneficiary form. If you divorce, same thing. If your beneficiary dies, again—your responsibility.

This Soap Opera Happens Too Often

I’ve seen this exact scenario more times than I care to count. It’s not just big companies like Entergy, this happens with small businesses too. A participant dies, and then the phone calls start. “But he told me I was the beneficiary.” “The quarterly statement says my name!” “He wouldn’t have wanted it this way.”

Maybe all true. But courts don’t care what he would have wanted. They care what he did. And if he didn’t update the form or get the spousal waiver, it doesn’t matter what’s on the statement.

The Fix: Annual Beneficiary Reviews

If you’re a plan sponsor reading this, here’s your action item: require your participants to review their beneficiary designations every single year. Make it part of your annual open enrollment or 401(k) check-in. Better yet, anytime a participant notifies HR of a life event, marriage, divorce, birth, death, make beneficiary review mandatory. It’s a small ask that avoids million-dollar mistakes.

Also, let’s get real: plan recordkeepers need to put disclaimers on those quarterly statements that remind participants the listed beneficiaries may be voided by life events. It’s not foolproof, but it’s better than radio silence.

Final Thought

Beneficiary designations aren’t dramatic until they are. Then suddenly, your 401(k) plan becomes an episode of Days of Our Lives, with grieving children and confused spouses fighting over a retirement account.

Don’t let that happen. Don’t let your plan be the one that ends up in federal court over a misunderstood form.

Because in the 401(k) world, the drama should be about investments, not inheritance battles.

And if you’ve got questions about cleaning up your beneficiary process or educating your participants, give me a call. I’d rather help you write a happy ending now than untangle the soap opera later.

Vestwell made headlines today by announcing a new partnership with Amazon’s Delivery Service Partner (DSP) program to offer Pooled Employer Plans (PEPs) to delivery associates. Sounds impressive, right? Let’s slow down. I’ve been in this business long enough to know when something has more press release sizzle than retirement plan steak.

At first glance, this is a feel-good story about democratizing retirement savings. Amazon has 400,000 drivers in its DSP network, and these small businesses have historically struggled to offer 401(k) plans. PEPs are supposed to simplify and reduce costs, and Vestwell wants to step in as the pooled plan provider. They’ll handle fiduciary duties, onboarding, and admin—essentially a turnkey retirement plan for folks who spend more time behind the wheel than behind a desk.

But here’s my skepticism: don’t assume this will result in a mountain of new 401(k) assets. In fact, this might just be a giant exercise in collecting dimes.

PEPs for the Little Guys: Nice in Theory, Tough in Practice

I’ve seen how these small employer PEPs and solo 401(k) PEPs play out. They sound revolutionary, “One plan to unite them all!,” but when the rubber meets the road, they rarely bring in large sums. Why? Because the average participating employer is tiny. You’re talking about owner-operators or companies with 5–10 employees, tops. Even if the plan sees decent participation, the average account balance is going to be modest. Very modest.

Remember, just because a PEP has access to 400,000 workers doesn’t mean anywhere near that number will enroll, or contribute meaningfully. You think every DSP is clamoring to start a retirement plan and make matching contributions? Many are barely keeping up with labor costs, insurance, and fuel prices.

This business is hard enough without fantasy projections about how many Amazon drivers are suddenly going to become long-term retirement savers. Yes, it’s a noble goal, but nobility doesn’t equal profitability.

Fiduciary Work for a Few Bucks a Month?

As a pooled plan provider, Vestwell is taking on a significant fiduciary and administrative load. When you’re dealing with hundreds or thousands of small employers, each with unique payroll quirks, language needs, and inconsistent staffing, the operational complexity balloons. And for what? A few bucks per participant per month?

It’s the same reason I warn advisors against going all-in on solo 401(k)s. You can fill your calendar helping sole proprietors and gig workers, but it’s a volume business with razor-thin margins. There’s a reason most national recordkeepers don’t chase this market: the juice isn’t worth the squeeze.

A Big Win for PR, Not Necessarily for Plan Providers

Don’t get me wrong—Vestwell deserves credit for taking on a tough, underserved market. But let’s not pretend this is going to rival a Fortune 500 company dropping a $100 million 401(k) plan on your platform. This is about incremental impact. Lots of little balances. Lots of work.

What’s the ROI here? It depends. If you believe PEPs will fundamentally reshape the small business retirement landscape, maybe this is your Woodstock. But from where I sit, this is more like a Costco run: you’re getting volume, not margin.

The Bottom Line

I’ve always said that success in this business comes from focus, not fantasy. PEPs are a good tool, but they’re not magic. Don’t expect a retirement gold rush just because Amazon’s logo is on the press release. It’s still a game of dimes, useful, important dimes, but dimes all the same.

And as always, don’t get caught up in the hype. Especially when the plan design is still in motion, the employers haven’t signed on, and the actual participation rate is anyone’s guess.

Because at the end of the day, I’m not interested in delivering packages, I’m interested in delivering results.

Without fail, every single day—like clockwork—I get a handful of emails trying to pry their way into my digital life. Sometimes it’s an alleged Amazon receipt I never made, sometimes a fake Dropbox notice, and sometimes it’s a desperate attempt to convince me I’ve inherited a fortune from an uncle I never knew existed. Spoiler: I haven’t. But behind these phishing attempts is a more serious truth—someone, somewhere is working full-time to breach your security. And in our industry, that’s not just annoying—it’s dangerous.

As a retirement plan provider, you’re not just protecting your own business; you’re holding the keys to someone else’s future. Their savings, their financial security, their dignity in old age—it all lives behind the digital gates we’ve built. And if those gates fall, don’t think for a second you won’t be held accountable. ERISA doesn’t shrug its shoulders when a cyber thief makes off with participant data or, worse, actual plan assets.

It’s not enough to rely on two-factor authentication and hope for the best. Hope is not a cybersecurity strategy. What you need is a real process—a living, breathing, regularly updated system that anticipates attacks, not just reacts to them. That means working with cybersecurity professionals who understand the unique regulatory environment of retirement plans. These aren’t just IT people who reset your password when you lock yourself out of Outlook. These are specialists who know how to defend access points, monitor behavior anomalies, and close off vulnerabilities before they become disasters.

Your clients won’t care that it was a Russian bot or a kid in a basement. If their accounts get drained, you’ll be the one answering for it. And frankly, you should be. As a fiduciary—or even just a service provider—you have a duty to prevent that kind of failure. And if you’re not taking that duty seriously, you shouldn’t be in this business.

Cybersecurity isn’t a compliance box you check off once a year. It’s an ongoing investment in your reputation, your relationships, and your responsibility to the people who trust you with their livelihoods. The risks are real, and the stakes are too high to wing it.

Take the threat seriously, build a defense, and remember: in the retirement plan world, silence from a hacker doesn’t mean safety—it usually just means they haven’t gotten in yet.

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.