Fiduciary Issues

Industry & Regulatory News
Lawsuit Filed in Another Cybertheft of Plan Assets

A plaintiff in a 401(k) plan sponsored by Colgate-Palmolive Co. has filed a lawsuit against several parties after an unknown individual defrauded the plan of her entire $750,000 account. The plaintiff has named the plan sponsor, the recordkeeper Alight Solutions, and the plan trustee Mellon Bank, as defendants in the lawsuit. The plaintiff alleges the parties breached their fiduciary duty by failing to safeguard her assets.

July 11 2022
Industry & Regulatory News
DOL Issues Compliance Release on Cryptocurrencies

The Department of Labor (DOL) has issued Compliance Assistance Release 2022-01 pertaining to the use of cryptocurrencies as plan investments in 401(k) plans. In it, the DOL cautions fiduciaries to exercise extreme care before considering the addition of cryptocurrency options in a plan’s investment menu and elaborates that the failure to remove an imprudent investment option from a menu of options is a breach of fiduciary duty.

The DOL expresses concerns about significant risks and challenges related to fraud, theft, and loss due the following factors

  • Speculative and volatile investments due to early stage of development
  • Ability for participants to make informed investment decisions due to the unique nature of cryptocurrencies and lack of investor knowledge
  • Custodial and recordkeeping concerns related to the asset not being held in a trust or custodial account but rather, stored as “lines of computer code in a digital wallet”
  • Valuation concerns with reliability and accuracy, citing disagreements by experts
  • Evolving regulatory environment that could result in unlawful transactions or inadequate disclosures

The DOL intends to conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies and related products—including those within brokerage windows and take “appropriate action” to protect the interests of plan participants and beneficiaries.

March 10 2022
Industry & Regulatory News
DOL Issues "Supplemental Statement" to 2020 Information Letter

December 22, 2021 – The Department of Labor’s Employee Benefit Security Administration (EBSA) has issued a supplemental statement to a June 2020 Information Letter. The letter addressed whether plan fiduciaries should offer private equity investments as investment options in individual account defined contribution plans. The 2020 letter indicated that such plans could potentially include managed asset allocation funds with a private equity component, but pointed out that a plan fiduciary should take into account whether it is prudent to include such an investment, particularly if it is a component of a plan’s qualified default investment alternative (QDIA).

December 22 2021
Industry & Regulatory News
DOL Announces New Temporary Enforcement Policy for PTE 2020-02

The Department of Labor (DOL) has extended the transitional relief under Field Assistance Bulletin (FAB) 2018-02 and provided additional temporary non-enforcement guidance related to specific provisions of Prohibited Transaction Exemption (PTE) 2020-02 in FAB 2021-02.

October 26 2021
Industry & Regulatory News
Executive Order Includes Review of ESG Factors in Retirement Plans

Last week, President Biden issued an Executive Order on Climate-Related Financial Risk, which includes a directive to the Department of Labor (DOL) Secretary to consider publishing, by September 2021, a proposed rule to suspend, revise, or rescind the Financial Factors in Selecting Plan Investments and Fiduciary Duties Regarding Proxy Voting and Shareholder Rights final rules that were published during the Trump administration regarding environmental, social, and governance (ESG) investments and proxy voting by employee benefit plans.

May 24 2021
Industry & Regulatory News
Retirement Spotlight: DOL Releases Additional Investment Advice Guidance

Objective investment advice. Simple concept, right? And most everyone agrees that every saver and retirement investor is entitled to this. But ensuring that individuals have access to objective investment advice is easier said than done. In fact, the Department of Labor (DOL) has been trying to make this happen since the 1970s, when it first released a five-part test to help determine whether investment professionals owed their clients a duty to provide objective advice.

April 30 2021
Industry & Regulatory News
Washington Pulse: Department of Labor Releases Cybersecurity Guidance

Recent cyberattacks have gotten a lot of attention. Some of these hacks have created turmoil through a broad swath of the business community. But another widespread menace threatens our financial security. In fact, even as you read this, the global threat of cybercrime continues around the clock as criminals try to steal retirement plan assets.

April 22 2021
Industry & Regulatory News
DOL Releases Additional Prohibited Transaction Exemption Guidance

The Department of Labor (DOL) has issued two pieces of guidance on its new fiduciary advice prohibited transaction exemption, PTE 2020-02. The first piece is titled, “Choosing the Right Person to Give You Investment Advice: Information for Investors in Retirement Plans and Individual Retirement Accounts,” which is intended to educate retirement savers about considerations when choosing a potential advisor. The second piece of guidance, which is briefly highlighted further below, is titled, “New Fiduciary Advice Exemption: PTE 2020-02 Improving Investment Advice for Workers & Retirees,” and is a detailed set of frequently asked questions (FAQs).

April 14 2021
Industry & Regulatory News
DOL Releases Cybersecurity Guidance for Plan Sponsors, Fiduciaries, Service Providers, and Participants

The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) today released a three-part guidance package on cybersecurity for plan sponsors, plan fiduciaries, service providers, and participants. This guidance comes on the heels of the Government Accountability Office (GAO) report on cybersecurity risks for retirement plans released earlier this year. An EBSA news release accompanies the guidance release.

April 14 2021
Industry & Regulatory News
DOL Announces Non-Enforcement of ESG and Proxy Rules

The Department of Labor (DOL) has issued a statement that it will not enforce two final rules that were issued late in 2020. One rule, “Financial Factors in Selecting Plan Investments,” was published November 13, 2020, and effective January 12, 2021. This rule codified requirements for fiduciaries to consider regarding the promotion of nonfinancial objectives when selecting plan investments, generally requiring investment selection to be predicated on financial or "pecuniary" factors.

March 10 2021