The Rosenbaum Law Firm P.C. Blog

For years, if you asked a 401(k) plan sponsor what their top concern was, you’d get a predictable answer: cost. Cutting expenses. Reducing fees. Pinching pennies. And it made sense. In a post-fee lawsuit world, with advisors and fiduciaries sweating bullets over every basis point, plan sponsors were laser-focused on keeping costs down.

But according to Escalent’s 2025 Retirement Planscape report, the times, they are a-changin’. Just 40% of plan sponsors now say that reducing plan costs is a priority, down from 50% last year. That’s not a gentle slope; that’s a pretty steep drop. And in its place? Cybersecurity and artificial intelligence.

We’ve entered the era where cost is no longer king. Fear is.

Let’s talk about fear first—cybersecurity. Seventy percent of all plan sponsors reported experiencing a 401(k)-related data breach in the last year. That’s not a rounding error. That’s an epidemic. And it’s not just the small guys fumbling with passwords taped to their monitors. Even 10% of large-mega plans (those managing $100 million or more) got hit. It’s not a matter of if your plan will get attacked, it’s when.

And the DOL knows it. Last September, they extended their cybersecurity guidance beyond retirement plans to include health and welfare plans too. In other words, they’re acknowledging that your participant data is as much a fiduciary liability as your investment menu. That’s a sea change. A plan sponsor that isn’t taking cybersecurity seriously today is tomorrow’s front-page fiduciary disaster.

Sonia Davis from Escalent hit the nail on the head: sponsors are trying to wrap their arms around this new landscape. They’re putting protocols in place, tightening up access controls, vetting their providers more carefully—and, let’s be honest, bracing for lawsuits if and when something goes wrong. Because in this world, a data breach isn’t just an IT issue—it’s a fiduciary time bomb.

But alongside the fear, there’s also a bit of optimism. That’s where AI comes in.

The same plan sponsors that are sweating bullets over data hacks are also starting to see AI as a solution, not just a risk. Sixty-six percent of sponsors managing $100 million or more believe AI can offer a better participant experience. We’re talking virtual assistants answering 401(k) questions, tailored simulations for retirement outcomes, and more personalized engagement.

That’s not fluff. That’s meaningful evolution. If we want participants to take their retirement savings seriously, we need to meet them where they are, with tools that don’t feel like they were built in 1998. AI can bring real-time support, customization, and education in ways that glossy enrollment booklets and quarterly statements never could.

But—and this is a big but—this only works if sponsors and providers deploy these tools intentionally. You can’t just slap a chatbot on your website and call it innovation. You need

AI that’s transparent, secure, and designed with participant outcomes in mind—not just provider marketing goals.

And here’s the kicker: plan sponsors aren’t just hoping for this evolution—they’re expecting their providers to lead it. The message from employers is clear: bring us smarter tools, better engagement, and stronger defenses. That’s the new value proposition. It’s not about who can shave 5 bps off the recordkeeping fee anymore, it’s about who can keep participant data safe while improving their retirement readiness with cutting-edge technology.

So, to my fellow plan providers: the winds have shifted. If you’re still selling solely on cost, you’re playing yesterday’s game. Sponsors want more. They need more. And if you can deliver AI-driven personalization while locking down cybersecurity, then you’re not just a provider, you’re a partner for the next generation of retirement plans.

And to plan sponsors: it’s OK to still care about costs. But don’t lose sight of the new battlefield. In a world of ransomware, phishing, and deepfakes, protecting participant data is fiduciary prudence. And embracing technology, carefully and strategically, is how you turn your plan from a checkbox into a real benefit.

Welcome to the new frontier. It’s not just about saving money, it’s about protecting it, growing it, and educating your participants every step of the way.

When Congress passes sweeping retirement legislation, the details often come later—and those details usually come in the form of regulatory spaghetti that plan sponsors and administrators are left to untangle. Case in point: the Roth mandate under Section 603 of SECURE 2.0. And now, the AICPA has weighed in, asking Treasury and the IRS to bring some order to the chaos.

Let’s rewind. Section 603 of SECURE 2.0 (part of the massive year-end legislation bonanza known as the Consolidated Appropriations Act of 2023) dropped a bomb on catch-up contributions for high earners. It mandates that catch-up contributions for certain participants be made on a Roth basis—meaning after-tax. The proposed regs (REG-101268-24) issued in January gave us a start, but as usual, they left more questions than answers.

That’s where the AICPA comes in. In a July 1 letter, the organization asked for additional guidance, and frankly, they’re not wrong to do so.

Here’s the crux of it: if you’re 50 or older and earn over a certain threshold (currently $145,000 in wages from the current employer), your catch-up contributions must be Roth. The problem is, employers and plan providers need to know exactly how to determine who’s subject to this rule and what counts as wages. And they need to know it before they’re penalized for getting it wrong.

Kristin Esposito, director of Tax Policy & Advocacy at the AICPA, said it well: “Post-SECURE 2.0, employers and plan administrators will need clear guidance to ensure compliance of the law regarding Roth-mandated catch-up contributions.” That’s not just an understatement—it’s a polite way of saying “this is a hot mess and you need to fix it.”

One of the main asks from the AICPA? A safe harbor that lets plan sponsors rely on W-2 wage information to determine who’s above the Roth threshold. That seems like a no-brainer. If we expect HR departments and payroll providers to cross-reference every dollar from predecessor employers or related entities, we’re setting people up for failure. Not to mention the audit headaches that will follow.

And speaking of related entities, the AICPA wants the IRS to clarify how disregarded entities are treated. For employment tax purposes, disregarded entities file with their own EINs and are treated like employers. But when it comes to determining who’s the “employer sponsoring the plan” under Prop. Regs. Secs. 1.414(v)-2(b)(3) and (4), the waters are murky at best. If you’re a plan sponsor operating across multiple business structures, this guidance could mean the difference between compliance and noncompliance.

Bottom line? The intent behind the Roth mandate may be noble—getting more tax revenue now, simplifying retirement income later—but implementation is another story. Without clarity, we’re going to see a lot of errors, a lot of compliance risk, and a lot of unhappy plan sponsors.

This isn’t about dodging the Roth rule. It’s about making it administrable. Plan administrators shouldn’t have to be forensic accountants to determine who qualifies for a catch-up contribution

and whether it needs to be Roth. And participants shouldn’t be surprised by a tax treatment they didn’t ask for and might not understand.

So hats off to the AICPA for stepping in with practical suggestions. If Treasury and the IRS are smart—and I hope they are, they’ll take this feedback seriously and issue guidance that makes implementation smoother, not harder.

Because the SECURE 2.0 Act was supposed to improve retirement security—not trap employers and participants in a bureaucratic maze of unintended consequences.

In a world where retirement plan innovation often comes with more flash than substance, it’s refreshing to see a strategic alliance that actually addresses a fundamental challenge in defined contribution plans: providing real lifetime income.

Transamerica just announced it’s teaming up with Nuveen and TIAA to roll out the Nuveen Lifecycle Income Index CIT Series (NLI), a target-date fund offering that includes a slice of guaranteed lifetime income through the TIAA Secure Income Account (SIA). If that sounds like a mouthful, don’t worry, it’s basically a target-date fund that comes with a pension-like feature built in. And for those of us who remember pensions fondly, or at least remember a time when people had pensions, that’s a big deal.

Let’s break this down: Transamerica will make the NLI CIT Series available on its recordkeeping platform as a default investment option. That alone is worth watching. Defaults are where the money goes, and if this becomes the QDIA of choice for plan sponsors, it could put lifetime income front and center for participants who might not otherwise seek it out.

The NLI structure aims to do a few things: maintain liquidity, keep costs in check, offer portability, and reduce volatility, all while embedding the opportunity for participants to convert part of their savings into a steady paycheck for life. The investment side is managed by Nuveen, which brings institutional heft, and the income guarantee comes from TIAA, a name that’s been around longer than most 401(k) plans.

There’s no obligation for participants to annuitize, which is smart, no one likes being locked into something unless there’s a real benefit. But for those who choose to do so, the TIAA Secure Income Account offers predictable lifetime income backed by some of the strongest insurance ratings in the business. Add in the TIAA Loyalty Bonus and potential for increasing payments in retirement (to help fight inflation), and it becomes even more compelling.

Colbert Narcisse at TIAA says this setup simplifies plan administration and delivers on what many workers actually want: security and predictability in retirement. Brendan McCarthy at Nuveen echoed the demand angle, pointing to their research showing that workers overwhelmingly want lifetime income options. I don’t doubt it. For too long, defined contribution plans have operated on a “good luck, you’re on your own” model at retirement. This is a step toward fixing that.

Now, let’s be clear: this isn’t the first time someone’s tried to crack the lifetime income code within 401(k) plans. The industry has been flirting with this idea since the Pension Protection Act made automatic features more common. But execution has been spotty. Some solutions have been too complicated. Others too expensive. Some couldn’t scale. Some scared participants off with the word “annuity.” And many providers didn’t want to touch lifetime income with a ten-foot pole because of the perceived fiduciary risk.

But times are changing. With SECURE 2.0 and growing regulatory nudges around lifetime income illustrations and retirement readiness, the writing’s on the wall: plan sponsors need to think about not just getting participants to retirement, but through it.

And this new alliance could help. Transamerica gains a differentiated offering. Nuveen gets to show off its investment chops. TIAA brings the annuity muscle. Participants get flexibility, professional management, and the option—not the obligation—for lifetime income. That’s a win-win-win, in theory.

Of course, the devil’s in the details. Will plan sponsors embrace this? Will advisors understand it well enough to recommend it? Will participants trust it? Time will tell. But if you ask me, the move toward embedding lifetime income in a target-date structure, especially one that’s available as a CIT, is the most promising direction I’ve seen in a while.

It’s a rare case in our industry where a legacy provider (TIAA), a money manager with scale (Nuveen), and a modern recordkeeper (Transamerica) are combining forces not just to grab market share—but to solve a problem that actually matters.

If you’re a plan sponsor looking for a way to offer more than just accumulation, this new solution is worth a serious look. Because for most participants, running out of money isn’t just a fear, it’s the fear. And we owe them more than a glorified savings account and a pat on the back.

Let’s see if this becomes more than just another product announcement—and actually a real shift in how we think about retirement income.

On July 4th, while many of us were grilling hot dogs and dodging fireworks, President Trump signed the One Big Beautiful Bill Act (HR 1) into law. Love the name or roll your eyes at it, this bill packs a massive punch for employers, especially when it comes to tax incentives tied to benefits.

From paid leave and student loan repayment to childcare credits and a whole new breed of savings accounts (hello, Trump Accounts), this legislation makes some temporary perks from the old TCJA world permanent—and adds a few new wrinkles for plan sponsors to chew on. If you offer benefits, you’re going to want to pay attention. Here’s the short version of what matters:

1. Paid Family Leave Gets Permanently Valuable

That tax credit for offering paid family and medical leave? It’s permanent now. Employers can claim a credit for a percentage of wages or insurance premiums related to leave—as long as that leave isn’t required by state or local law. If you’ve been hesitant to offer paid leave, this gives you more long-term incentive to do so.

2. Childcare Credits Expand in a Big Way

The tax credit for employer-provided childcare expenses is now juiced up to 40% (50% for small businesses), with limits that go up to $500k and $600k respectively. If you help fund or operate childcare for your employees, Uncle Sam is officially giving you a high five.

3. Telehealth + HSAs = Permanently Compatible

Telehealth services can be covered before the deductible for HDHPs, permanently. And starting in 2026, direct primary care arrangements will also be HSA-compatible. This opens up more flexibility in how you structure high-deductible health plans and wellness programs.

4. Student Loan Repayment Gets a Lifeline

That $5,250/year tax exclusion for employer-paid student loan help? It’s here to stay. So is the Section 127 education assistance limit—with inflation adjustments added. Expect this benefit to become a bigger deal for recruiting and retention.

5. Introducing… Trump Accounts

Yes, that’s the actual name. Think of them as IRAs for kids under 18, with contribution limits, employer match possibilities, and a weird (but probably well-funded) pilot program giving new parents a $1,000 credit to kickstart savings. You’ll likely hear more as providers figure out how to integrate this into benefit packages. Stay tuned—and definitely consult your tax pro before jumping in.

6. 529 Plans Can Now Cover More

Expanded uses for 529 distributions now include K-12 schooling, tutoring, therapies for students with disabilities, and credentialing expenses. A big win for parents—and a reason to remind employees to revisit their 529 strategies.

7. Bicycle Commuting Is Back (and So Is Moving Help)

Qualified bicycle commuting reimbursements are back in play—on a taxable basis. Moving expense reimbursements get special tax treatment for military and intelligence personnel.

8. ACA and Medicaid Changes: Not Immediate, But Big

There’s a long tail to the ACA/Medicaid cuts, many not felt until after the 2026 midterms. Still, fewer people on Medicaid or ACA plans could mean more folks looking to employer plans for coverage. This could affect risk pools, plan costs, and participant behavior down the line.

9. Temporary Tax Deductions for Employees

Employees can now deduct up to $25,000 for tips and $12,500 for overtime. This is temporary, but it could factor into how you communicate compensation packages, especially in service industries.

What Should Plan Sponsors Do Now?

· Talk to your providers. These changes may affect plan design, communications, and compliance in big ways.

· Review your benefits strategy for 2026. This is a great opportunity to modernize offerings and attract/retain talent.

· Stay informed. Agencies are going to be issuing regulations for the next year to sort out the details, especially around Trump Accounts and telehealth arrangements.

Bottom line: The One Big Beautiful Bill lives up to its name in scope, even if it leaves a few open questions. It gives plan sponsors more tools to build meaningful, tax-savvy benefit packages—if they’re willing to do the homework.

Stay tuned, because the devil is always in the guidance.

Here we go again. Another jumbo 401(k) plan, another lawsuit, another round of alleged fiduciary misconduct that reads like a broken record for those of us who’ve been watching this space since before fee disclosure was a thing.

This time, the target is the Stifel Financial Profit Sharing 401(k) Plan, with over $1.3 billion in assets—a big, juicy plan that allegedly fell short of its fiduciary responsibilities in a very familiar way: not acting like a prudent fiduciary when it came to fees and fund selection. The plaintiffs—five participants suing on behalf of themselves and similarly situated plan participants—claim the fiduciaries blew it. And not in a minor way, but in a way that cost plan participants millions of dollars over several years.

The central allegation? That Stifel’s fiduciaries failed to leverage their buying power as a billion-dollar plan. That they didn’t push for reasonable fees for recordkeeping and administrative (RKA) services. That they didn’t do the due diligence that ERISA demands—ongoing, objective review of the plan’s investment options to ensure they were performing and prudent.

If this sounds like déjà vu, that’s because it is.

Bargaining Power Means Nothing If You Don’t Use It

A $1.3 billion plan has negotiating clout, period. You should be able to command rock-bottom recordkeeping fees and premium service levels. But according to the suit, from 2019 through 2023, Stifel allegedly allowed unreasonable expenses to be charged to participants for RKA services. The fiduciaries, the suit claims, didn’t try to cut costs or explore lower-cost options until it was too late.

And that’s a fundamental breakdown of fiduciary responsibility. You’re not spending your own money when you’re a fiduciary. You’re spending the plan’s money. The participants’ money. That means you better act like you’re walking around with someone else’s checkbook—because you are.

Prudential, Empower, and the GIF That Keeps on Giving (to Them)

Then there’s the next layer: the investment menu. The lawsuit calls out the plan’s relationship with Prudential (now Empower), which allegedly included a stable value fund—a guaranteed income fund (GIF)—that didn’t live up to the “best available” standard.

Let’s be honest, stable value is where a lot of plan sponsors and advisors stop asking questions. They figure: “Hey, it’s stable, it’s safe, what’s to worry about?” Well, plenty—especially if you’re not paying attention to crediting rates, the underlying investment structure, and whether your participants are getting fleeced on the spread.

According to the complaint, the Empower GIF had low crediting rates, high embedded spreads (the difference between what Empower earned and what participants received), and a structure

that left participants exposed to single-entity credit risk, illiquidity, and zero transparency. Translation: Empower allegedly got rich while participants got shortchanged.

If true, that’s not just imprudent, it’s a disgrace. Selecting an investment based on ease or legacy relationships instead of participant outcomes is a surefire way to find yourself on the wrong end of an ERISA complaint. And here we are.

This Isn’t Just About One Plan—It’s a Pattern

I’m not here to say whether the allegations are true or not—lawsuits are one side of the story, and that’s always worth repeating. But if you’ve followed the pattern of fiduciary litigation over the last decade, the playbook is very familiar. Big plan. Big fees. Big service providers. And fiduciaries who either didn’t know better or didn’t care to ask better questions.

This isn’t about bad guys in the shadows, it’s about good intentions gone unchecked. It’s about fiduciaries not taking their duties seriously, or being overwhelmed, under-advised, or worse, asleep at the wheel. You can’t plead ignorance under ERISA. Fiduciary responsibility is an active duty, it’s not “set it and forget it.” It’s not “trust but don’t verify.” It’s work. Real work. And too many plan sponsors and committees don’t want to do it.

What Plan Sponsors Should Take From This

Whether you’re running a $1.3 billion plan or a $3 million startup 401(k), the fundamentals don’t change:

· Review fees regularly. Don’t wait for a lawsuit to realize you’re overpaying for basic services.

· Benchmark. Everything. Investments, recordkeeping, TPA services. You don’t know if you’re paying too much until you compare.

· Understand your funds. Especially stable value or GIC options. Just because the label says “guaranteed” doesn’t mean it’s good.

· Ask hard questions. If your providers can’t explain their fees, structures, or services, find someone who can.

Final Thought: Lawsuits Are Lessons—If You’re Willing to Learn

This isn’t the first time a mega-plan has been sued for allegedly falling asleep at the fiduciary switch, and it won’t be the last. But every one of these cases is a warning. Whether or not Stifel’s fiduciaries are ultimately found liable, the message is clear: fiduciary complacency costs money, reputations, and often your job.

So, stay tuned. We’ll see where this one goes. But if you’re a fiduciary reading this, don’t just stay tuned, get proactive.

Because in the ERISA world, “I didn’t know” has never been a valid defense.

While all the attention in the retirement plan world last week was on the One Big Beautiful Bill, cue the overly dramatic headlines and LinkedIn humblebrags—there was another important development flying under the radar. On July 1st, the Department of Labor quietly submitted a request to the Office of Management and Budget (OMB) that, to those of us who live and breathe ERISA, felt like a “hey, pay attention!” moment. It appears the DOL is teeing up a Request for Information (RFI) on pooled employer plans (PEPs). And let me be clear: I love PEPs. But we need more guidance.

Let me explain.

The OMB’s regulatory dashboard (yes, I’m the guy who checks that) now shows a pre-rule submission from the DOL focused on Section 101 of the SECURE Act, the very section that birthed PEPs by giving unrelated employers the ability to band together under one defined contribution plan, operated by a pooled plan provider (PPP). And while that’s been a game-changer for many of us in the retirement space, it’s also been a frustrating exercise in ambiguity.

The Department’s statement says it wants to consult a “diverse set of stakeholders,” including employers, employees, and service providers, to determine where regulatory or other guidance would help in establishing and operating PEPs. In other words: we’re finally going to have the grown-up conversation about what’s working, what’s not, and what guardrails are missing.

PEPs Were Supposed to Be Easy. They’re Not.

On paper, PEPs are beautiful. Open MEPs, no commonality requirement, no industry restriction, no need for employers to even know each other, other than having the good sense to offer a retirement plan. Section 101 even took a chainsaw to the “one bad apple” rule, ensuring that a mistake by one participating employer doesn’t ruin the plan for everyone. In theory, it was a new dawn for small and midsized businesses, finally a way to pool resources, reduce costs, and offload fiduciary liability to a professional PPP.

But in practice, the DOL and IRS have left just enough open questions to make a lot of people nervous.

What are the exact responsibilities of the pooled plan provider? What is the extent of their fiduciary oversight? What does operational compliance look like when you have 200 different employers, each with unique demographics, payroll systems, and HR practices? Can a PPP reasonably ensure compliance across that diversity without becoming a glorified babysitter? And how are recordkeepers, TPAs, and advisors supposed to coordinate in this new, semi-centralized structure?

PEPs were sold as plug-and-play. But too often, what you get is plug-and-pray.

Here’s Why This Matters

Look, I’ve been a fan of PEPs from day one. I’ve helped plan providers and advisors build PEP platforms, and I’ve watched some of them scale faster than you can say “SECURE 2.0.” I also know the pain points. I know the PPPs who thought this would be easy and then got a rude awakening when their plan got flagged during a DOL audit because one adopting employer didn’t process deferrals timely.

Section 344 of SECURE 2.0 now requires the DOL to study the PEP industry and provide Congress with a report, including recommendations, within five years. That clock is ticking. We don’t have five years to wait for clarity. We need it now, especially as more providers try to enter this space, and more employers consider joining a PEP rather than sponsoring their own plan.

Let’s also be honest: some PEPs out there are simply bundled garbage. Built with the same inefficiencies, same opaque fee structures, and same poor participant outcomes that gave MEPs a bad name ten years ago. If we’re serious about making PEPs a success—and we should be—we need guidance that distinguishes quality from chaos.

The RFI Is Our Chance to Speak Up

An RFI doesn’t have the glamor of a final regulation or the panic of a prohibited transaction class exemption, but it’s the first step in shaping policy. The DOL is essentially saying: “Tell us what you need.” And as someone who’s spent 25 years navigating the potholes of retirement plan compliance, I plan to take them up on the offer.

So should you. If you’re a pooled plan provider, an advisor using a PEP platform, a TPA helping run one, or an employer thinking about joining one—this is your moment. Let the DOL know where the confusion is. Tell them what’s working. Show them what’s broken.

Because I still believe in PEPs. I believe in their ability to expand coverage, lower costs, improve outcomes, and make small businesses more competitive in the retirement benefits arena. But belief only goes so far. What we need now is clarity, structure, and rules that support innovation without inviting chaos.

PEPs are not a fad. They’re a fundamental shift in how we think about retirement plans for small employers. Let’s make sure the DOL gives us the framework to do them right.

Plan sponsors and recordkeepers let out a collective sigh of relief when the Roth catch-up contribution requirement under SECURE 2.0 was delayed until 2026. And for good reason—this rule, though well-intentioned, brings with it a level of administrative complexity that even seasoned ERISA professionals wince at.

Let’s start with the basics. The requirement applies only to employees earning more than $145,000 (indexed) in FICA wages, not partners or self-employed individuals. That $145,000 threshold? It’s not a number retirement plans are used to tracking. Many plans don’t even offer Roth at all, and suddenly they’re being asked to flip a switch they don’t have installed.

The IRS tried to help with proposed regulations, but in classic IRS fashion, the guidance added as many questions as it answered. This isn’t plug-and-play. It’s overhaul-and-pray.

So, what should plan sponsors be thinking about now, not in 2026?

· Do you need to add a Roth feature? If your plan doesn’t offer Roth, affected employees can’t make any catch-up contributions. That’s not a good look. But simply requiring Roth for everyone isn’t allowed, either. So, you’ll have to track who’s subject to the rule anyway.

· Will you use deemed Roth elections? Plans can default high earners into Roth catch-up without needing a separate election—but participants must be able to opt out. If you go this route, you can fix some mistakes with in-plan conversions instead of refunds.

· Tracking Wages and Employer Type Matters. Only FICA wages from the employee’s common law employer that participates in the plan count. So, if you’re in a controlled group or a multiple employer plan, the math gets tricky.

· Payroll Coordination is Key. Your payroll provider and recordkeeper will need to communicate like never before. The feeds must be aligned, and there’s zero room for error here.

· Watch for Traps. New hires aren’t subject to the rule their first year. There’s no proration for partial-year employees. And plan sponsors need systems that flag when associates become partners since the rule doesn’t apply to self-employed individuals.

· Correction Procedures Matter. You’ve got options, like converting mistaken pre-tax contributions to Roth before W-2s are issued or using in-plan rollovers. EACAs (early withdrawal features) also help by offering a wider correction window.

In short, 2026 may feel far away, but the work starts now. SECURE 2.0’s Roth catch-up requirement isn’t going anywhere, and like most things in the 401(k) world, if you wait too long to prepare, you’ll pay for it later.

The Department of Labor’s Employee Benefits Security Administration (EBSA) just did what many plan sponsors wish they could do, clear out old, confusing clutter that no longer serves a purpose.

On June 30, the DOL issued a Direct Final Rule (DFR) announcing the removal of several long-standing ERISA Interpretive Bulletins from the Code of Federal Regulations. Why? Because they’re outdated, superseded, and—most importantly—potentially confusing. In other words, the DOL finally Marie Kondo’d a few dusty corners of ERISA history.

Here’s what’s getting tossed:

Interpretive Bulletin 75-2

This one addressed whether a party in interest engages in a prohibited transaction by doing business with an entity in which a plan has invested. The DOL says it has issued enough subregulatory guidance since then to make this bulletin more relic than resource. Translation: we’ve said it better since.

Interpretive Bulletin 75-6

Back in 1975, the DOL weighed in on whether a plan could advance funds to a fiduciary for plan-related expenses. But in 1977, they issued a final regulation under ERISA Section 408(c)(2) that covered this issue fully. So why keep an outdated bulletin hanging around? They won’t.

Interpretive Bulletin 75-10

This one tried to sort out overlapping DOL and IRS responsibilities right after ERISA passed. But the Reorganization Plan No. 4 of 1978 split up interpretive duties between the DOL and IRS. In the years since, each agency has stayed in its lane. So this bulletin, while historically interesting, is no longer necessary for administration or compliance.

Why It Matters

On the surface, this looks like administrative housekeeping—and it is. But it’s also a good sign. When the DOL recognizes that keeping outdated guidance “on the books” creates confusion, that’s progress. If you’ve ever cited a rule from 1975 only to find that it was quietly replaced decades ago, you know how frustrating that legal archaeology can be.

The DOL isn’t changing any rules here—they’re just pruning old ones that no longer apply. Think of it like removing the rotary phone from your office to make room for Wi-Fi. The underlying communication still exists. It’s just happening through better channels now.

The DFR takes effect 60 days after it’s published in the Federal Register—meaning these bulletins will officially disappear by September 1, 2025.

It’s a small step, but in an industry built on complexity, even a little clarity goes a long way.

In the world of ERISA litigation, process often trumps perfection. That was the story in Waldner v. Natixis, where a federal judge dismissed claims that Natixis and its plan committee acted disloyally and imprudently by loading up a $440 million retirement plan with proprietary funds.

The plaintiff, Brian Waldner, argued the plan’s committee—made up entirely of Natixis employees—filled the plan with high-fee, underperforming affiliated funds to benefit the company, not participants. He claimed a breach of loyalty, imprudent selection and monitoring, and excessive fees.

But after a full trial, Judge Leo T. Sorokin saw it differently. While he acknowledged the plan had a heavy dose of proprietary funds—18 out of 28 during the class period—he found no evidence of disloyal intent. ERISA doesn’t ban proprietary funds. It just requires fiduciaries to act solely in the interest of participants when choosing them.

What saved Natixis? Process. The committee relied on Mercer, an independent investment consultant, reviewed fund performance at regular meetings, and consulted experienced ERISA counsel. They even rejected some proprietary funds and considered alternatives. When they chose affiliated options, they were among the top-performing available—hardly a red flag.

Judge Sorokin made it clear: just having Natixis employees on the committee or favoring in-house funds doesn’t prove disloyalty. Plaintiffs needed evidence of self-dealing or undue influence—and they didn’t have it.

As for the prudence claim, the judge admitted the committee wasn’t a model of perfection. There were lapses, including delays in conducting a full investment structure review. But he noted that the committee still reviewed detailed performance reports and acted based on independent advice. No specific misstep tied to actual losses, and that’s what ERISA requires.

In short, the committee may have made mistakes, but they didn’t breach their fiduciary duties.

What This Means

This case is a reminder that ERISA litigation is about process. You don’t need to be perfect—you just need to be prudent and loyal. Get good advisors, follow a documented process, and make decisions in participants’ best interests. Even if you wear two hats, as an employer and a fiduciary, just make sure you’re wearing the right one at the right time.

In the end, Judge Sorokin said it best: “Neither shows the true colors of this case.” Not the plaintiff’s portrayal of a conflicted committee, nor the defense’s image of perfection. What won here wasn’t a rosy picture, it was reasonable, documented decision-making.

If you’re a 401(k) plan sponsor, you don’t need to be an ERISA expert—you just need to avoid doing dumb things. Here are a few quick tips to help you stay on the right side of your fiduciary duties and keep your participants (and the DOL) happy:

1. Review your fees. Regularly. Don’t assume your plan is “fine” because no one’s complained. Benchmark your recordkeeping and investment fees every 2–3 years. Overpaying is not a victimless crime.

2. Document everything. If a tree falls in the forest and no one documents it, it never happened. Same goes for committee meetings. Keep minutes, note your process, and show your work.

3. Don’t just set it and forget it. ERISA doesn’t reward autopilot. Review your investment lineup at least annually. Performance, fees, share classes—all of it.

4. Watch your provider relationships. Just because your advisor or TPA is a nice guy doesn’t mean they’re giving you the best deal. Loyalty is great in friendships, not in fiduciary oversight.

5. Educate yourself. You don’t need to become an ERISA nerd like me, but you do need to understand the basics. Fiduciary responsibility is personal—ignorance is not a defense.

Do the right thing. Ask the tough questions. And if something feels off, it probably is. Better to be proactive now than be a case study in a class action later.