The Rosenbaum Law Firm P.C. Blog

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

The Case

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

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

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

The Decision

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

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

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

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

What This Means

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

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

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

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

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

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

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

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

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

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

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

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

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

The Fragile Balance

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

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

The Lesson

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

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

The Bottom Line

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

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

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

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

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

The Fragile Balance

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

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

The Lesson

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

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

The Bottom Line

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

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

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

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

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

Why It Matters for Retirement Plans

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

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

Vigilance Is the Only Defense

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

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

The Human Factor

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

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

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

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

The Dual Burden

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

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

The Retirement Ripple

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

The Human Side

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

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

Finding a Balance

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

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

The Bottom Line

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

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

There’s never a shortage of new retirement plan fee and investment performance cases. The problem for plan sponsors is that even if you’re doing everything right, you can’t ever be completely sure you won’t be sued. That’s just the reality of today’s litigation environment.

A recent case, Macias v. Sisters of Charity of Leavenworth Health System, drives home one of the most basic lessons that retirement plan attorneys (myself included) harp on all the time: if you put something in writing, you need to follow it, and document that you followed it.

The Case at Hand

In Macias, the plan sponsor, its board, and the retirement investment committee were sued over alleged failures in monitoring investments. The defendants tried to get the case dismissed early, arguing that the plaintiffs hadn’t even stated a valid claim. The court didn’t agree.

Why? Because the plaintiffs alleged that the defendants had an Investment Policy Statement (IPS) that required them to evaluate plan investment performance annually against certain benchmarks, and that they failed to do so. The court found that was enough to plausibly allege a breach of fiduciary duty.

Now, maybe the defendants did the evaluations. Maybe they didn’t. Maybe they’ll eventually win at trial. But the point is that because there’s an allegation they didn’t follow their own IPS, they couldn’t knock the case out early. That means discovery, legal fees, and possibly a settlement just to avoid bleeding money in litigation.

Process Over Results

This case highlights a theme that comes up time and again in ERISA litigation: process matters more than results. Courts know markets are unpredictable and investment performance will fluctuate. What they focus on is whether fiduciaries had a prudent process for monitoring investments, following their own rules, and documenting their actions.

An imprudent process, or even the appearance of one, is a much bigger legal risk than a bad quarter in a mutual fund.

The Role of the IPS

Here’s the irony: a retirement plan isn’t legally required to have an IPS. But having one is considered best practice. It sets the framework for how investment decisions will be made and how advisors’ performance will be measured. It provides structure and consistency.

The catch is that once you have an IPS, it’s not just a nice piece of paper. It’s a commitment. If the IPS says you’ll review performance annually, you need to do it annually. If it says you’ll benchmark against certain indices, you need to use those indices. And you need to write down that you did it.

Otherwise, the IPS becomes Exhibit A in the plaintiffs’ complaint.

Practical Takeaways for Plan Sponsors

1. Review the IPS regularly – Dust it off at least once a year to make sure it still matches your practices and expectations.

2. Follow the IPS to the letter – If it says you’ll do something, do it. Don’t improvise.

3. Document everything – Meeting minutes, memos, consultant reports—if it’s not documented, it might as well not have happened in the eyes of a court.

4. Align with your advisors – Make sure your investment advisors are on the same page. They’ll want clarity on how their performance will be judged, and you’ll want their help keeping the IPS current.

The Bottom Line

Even perfect process and airtight documentation won’t guarantee you won’t get sued. Plaintiffs’ firms are filing these cases in bulk, especially when fees are involved. But if you’ve got your IPS, you’re following it, and you’re documenting it, you’re putting yourself in the best possible position to defend the plan.

Skipping those steps? That’s like putting a “Sue Me” sign on your retirement plan.

Just when you think the forfeiture reallocation litigation wave can’t get any bigger, another suit drops. The latest target? The 401(k) plan of RTX, the company formerly known as Raytheon Technologies Corp.

The case, Jacob v. RTX Corp. , was filed on August 22, 2025, by plan participants Melissa Jacob and Thomas Miller. Their lawyers, Webster Book LLP, DiCello Levitt LLP, and Miller Law Firm, are the same familiar names who’ve been spearheading these forfeiture cases across the country.

The Claims

Like the other lawsuits in this line, the complaint isn’t reinventing the wheel. The plaintiffs allege the fiduciaries violated ERISA by:

1. Failing to act in accordance with plan documents.

2. Breaching duties of loyalty and prudence.

3. Using plan assets for the benefit of the employer.

4. Engaging in self-dealing.

5. Causing prohibited transactions.

On top of that, they allege RTX failed to monitor its Pension Administration and Investment Committees, always a catchall claim in these suits.

The real crux of the complaint, however, is how RTX handled plan forfeitures. Each year, fiduciaries had a choice: use forfeitures to pay plan expenses or offset employer contributions. According to the plaintiffs, RTX always picked the latter, using forfeitures to reduce its matching contributions since 2019.

What ERISA Says

The plaintiffs make sure to cite ERISA’s requirement that plan assets must be used “for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan.” And while RTX’s plan documents apparently allow forfeitures to offset employer contributions and to pay expenses, the lawsuit zeroes in on the fact that fiduciaries never chose the expense route.

That’s the sleight of hand in these complaints. Yes, the plan says forfeitures can reduce contributions, but the plaintiffs argue that doing so is never in participants’ best interest when the employer is flush with billions in profits. In their telling, if RTX has no risk of defaulting on contributions, the “right” choice should always be applying forfeitures to cover expenses—because otherwise those expenses come out of participants’ pockets.

Dollars and Numbers

The complaint throws around some big figures:

· From 2019 through 2023, participants’ accounts paid more than $25 million in administrative expenses.

· During that same period, RTX reduced contributions by $18.6 million using forfeitures.

· Unallocated forfeitures piled up year over year, hitting $6.6 million by 2023.

The plaintiffs argue that, in effect, participants lost twice: they paid expenses from their own accounts, while RTX got to lower its contributions thanks to forfeiture dollars.

A “Flawed” Process

The lawsuit doesn’t stop at outcomes; it also takes aim at process. The plaintiffs say fiduciaries didn’t even bother to create a reasoned, impartial method for deciding how to use forfeitures. Instead, they claim RTX rubber-stamped the option that benefitted itself. That lack of process, they argue, is itself a breach of the duty of prudence.

In other words: not only did RTX pick the “wrong” option every time, but it also didn’t have a documented, participant-first process for making the decision. That’s the kind of allegation courts have been listening to in fiduciary breach cases.

What It Means

Forfeiture suits have exploded in the last two years, and RTX is just the latest headline name to be dragged into court. These cases hinge on a simple but powerful point: fiduciaries must act in the best interest of participants. Even if the plan documents allow multiple uses of forfeitures, plaintiffs are arguing that prudence and loyalty demand picking the path that favors participants, especially when the employer’s financial health isn’t at risk.

For plan sponsors and fiduciaries, the lesson is obvious. If your plan allows forfeitures to offset contributions or pay expenses, you need:

· A documented process for deciding how to use them.

· A reasoned analysis that shows consideration of participant interests.

· A clear record showing why one choice was made over the other in a given year.

The lawsuits may seem formulaic, but they’re finding traction because fiduciaries haven’t been meticulous about process and documentation.

My Take

I’ve said it before: the retirement plan industry has a habit of ignoring issues until litigation forces the change. Forfeitures were always treated as a boring back-office accounting exercise—until plaintiff firms figured out there was money to be made. Now every plan sponsor should expect scrutiny.

The irony is that forfeitures, in theory, should benefit the plan and its participants no matter how they’re applied. But in litigation land, perception matters more than theory. If it looks like you’re helping the company more than the participants, you’re in trouble.

It reminds me of the old Dallas TV show, when J.R. Ewing made decisions, they were always in J.R.’s interest, never anyone else’s. In the world of ERISA, that doesn’t fly. Fiduciaries aren’t supposed to be J.R.; they’re supposed to be Bobby, always trying to do right, even when it costs more.

And that’s the bottom line here. If you don’t want to be the next RTX, you need to show you’ve been acting like Bobby, not J.R.

I’m still amazed at how often I come across participant-directed 401(k) plans that don’t have a financial advisor attached. Now, I completely get why solo 401(k) plans usually don’t. Most individuals think they can manage things themselves. I’m in that boat too—my solo 401(k) is self-directed, and I handle my own investments. But here’s the important point: the very moment I add an employee, I will hire a financial advisor. And the reason is pretty simple.

The Travel Agent Analogy

I’m often shocked that travel agents are still around in the internet age. Back in the day, unless you had access to their software, you couldn’t book airfare or hotels on your own. The internet changed all that. Now you can book trips with a click of a button. The same is true for investing. Thanks to technology, buying or selling securities has never been easier. Because of that, a lot of people think financial advisors are dinosaurs—like travel agents. But that comparison doesn’t hold water.

What Advisors Really Do

The real value of a financial advisor in a 401(k) plan isn’t about picking mutual funds. ERISA §404(c) requires a “broad range” of investment options, and, to borrow from Commander Montgomery Scott in Star Trek III, “a monkey and two trainees” could put together a mutual fund menu that checks that box.

The real role of a financial advisor is being part of the fiduciary process—helping draft an investment policy statement, regularly reviewing the fund lineup, and, most importantly, educating employees. That’s where the rubber meets the road.

A Real-Life Example

Years ago, I worked at a semi-prestigious law firm on Long Island (sorry, Lois) that had no financial advisor on its 401(k) plan. For ten years, nobody reviewed the investment options. I knew that was a problem the moment I overheard a staff member say he only invested in the mid-cap mutual funds because, in his words, “it represented the middle of the market.” That right there is why you need an advisor—someone to guide participants so their decisions aren’t based on misunderstandings.

Even Index Plans Need Help

Some plan sponsors think, “We only offer index funds or ETFs, so we don’t need an advisor.” Wrong. Yes, index funds generally outperform most active managers, but participants still need education around asset allocation, diversification, and risk tolerance. An all-index lineup doesn’t magically solve those issues. An advisor helps participants understand howto use those low-cost funds effectively, while also giving plan sponsors the ERISA §404(c) protection they want.

Why I’ll Hire One

When I eventually add employees to my firm, I’ll bring on a financial advisor—even though I’ve been knee-deep in 401(k) plans my entire career. Why? Because I know my lane. I don’t have the background or training to do fund analysis or conduct participant education at the level an advisor can. My value comes from my ERISA and fiduciary knowledge. I’ll stick to what I do best and hire an advisor to do what they do best. That way, I keep myself—and my plan—out of trouble.

In short: if you’re running a participant-directed 401(k) plan without an advisor, you’re gambling with fiduciary risk and your employees’ financial futures. That’s not a gamble worth taking.

Another week, another excessive fee case settled. This time, it’s Jack Henry & Associates Inc., a well-known technology provider, and its 401(k) retirement committee agreeing to a $1.6 million settlement in a fiduciary breach case under ERISA.

What Was the Case About?

The suit, filed by participants Guy LaCrosse and Jojemar Mendoza, accused Jack Henry of two familiar sins:

1. Excessive recordkeeping and administrative fees – The plan allegedly paid over $2 million between 2017 and 2022, averaging $78 per participant.

2. Imprudent investment option – Specifically, the Prudential Guaranteed Income Fund, which plaintiffs argued was retained despite being a poor choice.

The original complaint dates back to October 2023, with the claims later expanded to include the Prudential GIF issue.

The Settlement Path

Like most of these cases, it took time. A December 2024 mediation didn’t produce a deal, but by January 2025 the parties had an agreement in principle: $1.6 million plus non-monetary relief. That “relief” includes a commitment by Jack Henry to issue RFPs for recordkeeping and administrative fees—something most prudent fiduciaries should be doing anyway. The final settlement was nailed down after a July 2025 settlement conference.

Who’s Covered?

Roughly 8,278 plan participants are expected to benefit. With $1.3 billion in plan assets and over 8,000 participants, this was not a small plan by any means.

My Take

This settlement is another reminder that process matters. Excessive recordkeeping fees are the low-hanging fruit for class-action attorneys, and keeping an imprudent fund on the menu is like putting up a neon sign that says “sue me.”

The real kicker here is that the settlement requires Jack Henry to do what ERISA already expects—benchmark fees and consider competitive bids. If a lawsuit is what it takes to make that happen, it’s an expensive lesson for plan sponsors everywhere.

Bottom line: Don’t wait for plaintiffs’ attorneys to do your fiduciary homework for you.