On August 7, President Trump issued a much-anticipatedexecutive order, directing the Labor Department to (re)consider barriers to defined contribution plans accessing alternative investments.  Nevin & Fred check it out – and theimplications.

More specifically, an executive order directed the Secretary of Labor to, among other things, “reexamine the Department of Labor’s guidance on a fiduciary’s duties regardingalternative asset investments in ERISA-governed 401(k) and other defined-contribution plans” – a stance widely seen as encouraging the consideration of alternative assets in defined contribution plans, including 401(k)s and 403(b)s.

The EO states as “the policy of the United States that everyAmerican preparing for retirement should have access to funds that include investments in alternative assets…”

That policy is, however, conditioned to situations “when therelevant plan fiduciary determines that such access provides an appropriate opportunity for plan participants and beneficiaries to enhance the net risk-adjusted returns on their retirement assets.”

While the Executive Order doesn’t immediately changeanything, it sets in motion the possibility of a less restrictive regulatory view on so-called, “alternative” assets, including private markets, real estate, digital assets, and lifetime income.

The Executive Order calls out “burdensome lawsuits that seek to challenge reasonable decisions by loyal, regulated fiduciaries,” as well as “stifling Department of Labor guidance” that is says has “denied millions of Americans opportunities to benefit from investment in alternative assets.”

Episode Resources

BreakingNews: Trump Signs EO to Advance Private Market Investments in 401(k)s

LifetimeIncome Also Cited in Private Markets Executive Order

TalkingPoints: Pandora’s Box

ThingsI Worry About (12): Private Funds and 401(k) Plans - Fred Reish

DOLPulls Guidance Cautioning Fiduciaries About Private Equity in 401(k)s

In recent days, federal courts have dismissed two notablesuits regarding forfeiture reallocation, but most notably the Labor Department has now weighed in on behalf of plan fiduciaries in another case.  Could this be a turning point?  Nevin & Fred weigh in.

The suits – against JP Morgan and Wells Fargo – weredismissed in different courts on different grounds.  Still, they came at a time, and in a way, that suggests at least some federal courts are now inclined to see practices long sanctioned by practice (and the IRS) as meritless.

The real game changer, of course, might be the LaborDepartment’s “friend of the court” filing on yet another suit – one that the fiduciary defendants have already had success in challenging the suit, and yet find themselves (still) in court litigating the issue(s).

Speaking of the Labor Department, a federal judge in Texasrecently ruled on a suit filed challenging the application of the so-called fiduciary regulation, most specifically with regard to its implications on rollovers.

So what does all that portend for ERISA plan fiduciaries?  And what might the anticipated executive order from the Trump Administration expanding/opening the door for private assets in defined contribution mean?

All this and more in the latest episode of Nevin (Adams)& Fred (Reish)…

Episode Resources

Forfeitures

DOL Backs HP in Forfeiture Reallocation Suit Appeal

Wells Fargo Fends Off Forfeiture Fiduciary Suit

JP Morgan Gets Clear Win in 401(k) Forfeiture Reallocation Suit

Fiduciary Suit

Federal Court Vacates Part of Rollover Rule

Private Markets

Retirement Plan Participants Want Access to Private Market Investments

Private Market Investments: Promises and Potential Pitfalls 

https://issuu.com/usaretirement/docs/napa_net_the_magazine_summer_2025

Empower’sMurphy Responds to Warren's Private Market Criticism

Some call them “lies”—but in this episode, Nevin (Adams) andFred (Reish) highlight some of the most common—and confusing topics—about retirement plan responsibilities.

Inspired by Fred Barstein’s “10 Biggest Lies Told to 401(k) Plan Sponsors,” the prolific podcasting pair parse a passel of problematic misperceptions regarding retirement plan responsibilities.

We’re talking about things like:

• RFP requirements,
• cheap investment picks,
• CIT assumptions,
• PEP perceptions,
• recordkeeper reliance, and
• the limits of advisor accountability. 

And that’s not all!  See how their list matches yours.

Episode Resources

Online Security Tips

Online Security Tips - U.S. Department of Labor

Title: Online Security Tips Author: Employee Benefits Security Administration, United States Department of Labor Subject: Tips to reduce the risk of fraud and loss to your retirement account by maintaining online access, using strong passwords, enabling multi-factor authentication, and protecting against phishing attacks.www.dol.gov

Nevin (Adams) & Fred (Reish) brought their prolific,pugnacious, and provocative perspectives in a live podcast format to the record-breaking NAPA 401(k) Summit.

In part 1 the precocious podcasting pair talked about anumber of lessons to be learned from recent litigation, including:     - Who bears the burden of proof in ERISA litigation—according to the United States Supreme Court (bad policy, but “good” law)?- A rare jury trial—and a BIG settlement.  Why they’re rare (but may become more common).  Oh, and it involved a multiple employer plan (MEP).   - Fred clarifies his prediction on PEPs (but he’s still a fan).

In part 2, the pugnacious pair presciently pontificated on:      - What to make/do about the recent surge in litigation regarding plan forfeitures;    - What to consider in light of recent developmentsregarding private investments in defined contribution plans;    - The implications of/for proxy voting by definedcontribution plans in the aftermath of recent litigation regarding American Airlines.

Episode Resources

Forfeitures

Forfeiture Litigation Update

Impact of Forfeiture Lawsuits on Plan Sponsors

Alternative/Private Investment Trends

The Growing Case for Alternatives in Retirement Saving: NAPA 401(k) Summit

How Advisors REALLY Feel About Private Markets Investments in 401(k)s

Proxy Voting

How Fiduciaries Can/Should Fulfill Proxy Voting Responsibilities: Hauser

Trump-led DOL to Address ESG Rule Through Rulemaking Process

Nevin (Adams) & Fred (Reish) brought their prolific,pugnacious, and provocative perspectives in a live podcast format to the record-breaking NAPA 401(k) Summit.

That’s right, at the mid-point of the 2025 NAPA 401(k)Summit, the precocious podcasting pair talked about a number of lessons to be learned from recent litigation, including:

• Who bears the burden of proof in ERISA litigation—according to the United States Supreme Court (bad policy, but "good" law)?
• A rare jury trial—and a BIG settlement.  Why they’re rare (but may become more common).  Oh, and it involved a multiple employer plan (MEP).

• Fred clarifies his prediction on PEPs (but he's still a fan).

And that’s just Part 1! 

Episode Resources 

Burden of Proof Ruling

Supremes Back Cornell Plaintiffs in ERISA Burden of ProofStandard

Oral arguments in the case:  Supremes Hear ERISA Burden of Proof Case

The Cornell University Litigation “Saga”  https://www.napa-net.org/header/search/?q=cornell

ERISA Jury Trials

Jury Slaps Pentegra with $39 Million in Damages in MEPExcessive Fee Suit

Fidelity Wins Motion on Jury Demand

PEP Perspectives

Nevin & Fred: Could a Predominant PEPs Prediction ProvePositive?

PEPs Will Match Single Employer Plan Adoption in 5 to 10 Years: Fred Reish

As interest rates rise, so has interest in pension risktransfer (PRT)—and litigation.  Nevin & Fred take a look at what’s underlying (and undermining) that focus, aswell as a new suit alleging aggressive participant marketing.

Pension risk transfer is an aptly named process undertakenby an organization that wants to transfer its pension obligations to another entity, typically an insurance company. The process itself is a fiduciary decision requiring carefulconsideration of the entity to which those obligations are transferred—and therein lies the basis of a recent spate of litigation regarding those choices (and during a period of time in which PRT volumes have been setting records). 

For those not familiar with the underpinnings of the pensionrisk transfer (PRT—because we need another acronym), IB 95-1, issued by the Department of Labor in 1995 (in the wake of the Executive Life collapse), outlines the fiduciary standards to be used in selecting an annuity provider for a pension risk transfer. That includes considerations of the provider’s investment portfolio, size relative to the annuity contract, level of capital and surplus, liability exposure andavailability of state government guaranty associations.

In 2024, and in accordance with the provisions of the SECURE2.0 Act of 2022, the Labor Department basically concluded that while it was open to, and still considering, potential updates to Interpretive Bulletin 95-1, it felt that that document “continues to identify broad factors that are relevant to a fiduciary’s prudent and loyal evaluation of an annuity provider’s claims-paying ability and creditworthiness.” Additionally, EBSA found it “desirable for guidance in this area to remain principles based.” 

In this episode, Nevin (Adams) and Fred (Reish) talk about the trends and issues here.  They also look at a new lawsuit that brings up an old issue—a recordkeeper’s access toparticipants and alleged promotion of their offerings. 

Episode Resources:

Another Pension Plan Popped by Pension Risk Suit

Verizon Pension Risk Transfer Challenged in Court

Fiduciary Duty a Factor in Pension Risk Transfers

New ERISA Suit Alleges High Fees, Low Performance, Improper Forfeitures

A “new” entrant to the forfeiture reallocation suit “suite”—and a decision in favor of fiduciary defendants.  Nevin & Fred review the latest developments.

Yet another 401(k) forfeiture fiduciary breach suit has beenfiled—but there are some key differences:

• The plaintiffs are represented by the law firm of Schlichter Bogard, LLC.
• The plan involved was the largest targeted by this type of litigation to date (nearly $8 billion).
• The plan document language prohibited use of forfeitures to offset employer contributions before offsetting administrative expenses (at least according to the suit).

And then there is a case that has been through severalrounds of adjudication—and though winning, has had to keep going back to court.  But HP finally prevailed, and though the actions regarding the application of forfeitures were seen as fiduciary decisions—well, there was a bit of a “new” twist in how the judge viewed them.

In this episode Nevin (Adams) & Fred (Reish) examine theissues and potential implications, as well as a quick review of some recent updates.

Episode Resources

Schlichter Targets Massive 401(k) Plan With Forfeiture Suit

401(k) Fiduciaries Fend Off Forfeiture Reallocation Suit

Some “new” News:

DOL Pushes Pause on 401(k) Fiduciary Rule Suits

Breaking News: White House Nominates Next EBSA AssistantSecretary

Supremes Hear ERISA Burden of Proof Case

Could plan fiduciaries violate their duty of loyalty to plan

Participant-plaintiff (and pilot) Bryan P. Spence filed suit in the U.S. District Court for the Northern District of Texas in June 2023 against Defendants American Airlines, Inc., American Airlines Employee Benefits Committee, Fidelity Investments Institutional, and Financial Engines Advisors, LLC (he subsequently dropped the latter two). 

The suit alleged that they “breached their fiduciary duties

And now—following a four-day bench trial during which there was “testimony from multiple witnesses and examined numerous exhibits,” a review of the record in its entirety and where the Court “has observed the witnesses to assess their credibility and weigh their testimony”—that same Judge O’Connor has now determined what appears to be an unusual divergence. 

So, what’s going on with this case, and what does/should it

Episode Resources:

Judge Says American Airlines 401(k) Fiduciaries ‘Blinded’ by

With apologies to Charles Dickens, Nevin & Fred have

Several weeks back Brian Brashaw issued a challenge (of sorts) to the podcasters of the retirement industry.  Specifically, he expressed an interest in that unique and special group doing a podcast “visited by three spirits: ghosts of 401k past, present and future.”

To date, we’ve seen interest, but no “takers” – but here’s

 Episode Resources

An ‘Unintended’ Consequence - https://www.napa-net.org/news/2024/11/talking-points-an-unintended-consequence/

4 Things You Need to Know About Default Funds https://www.napa-net.org/news/2019/2/4-things-you-need-know-about-default-funds/

How to SECURE 'Better' Retirements  https://www.napa-net.org/news/2024/6/talking-points-how-secure-better-retirements/

It’s the holiday season, and Santa isn’t the only one making

Let’s face it, SECURE 2.0 has a LOT of good, interesting—and

What happens if you forget? What happens if the business is

And then, there’s the so-called fiduciary rule (also known

There are also some “nice” things in SECURE 2.0 with regard

In this engaging episode, Nevin (Adams) & Fred (Reish)

P.S.  Oh, and Fred Reish has gotten some AI assistance in composing a song about retirement (lyrics below)!  

Episode Resources:

A Country and Western Retirement lyrics:  https://fredreish.com/the-last-rodeo/

Things I Worry About:

SECURE 2.0 automatic enrollment requirements https://fredreish.com/things-i-worry-about-2-automatic-enrollment/

How automatic enrollment requirements will be applied:  https://fredreish.com/things-i-worry-about-2-automatic-enrollment/

Automatic Enrollment corrections:  https://fredreish.com/things-i-worry-about-3-automatic-enrollment-3/

The SEC Requirements for Rollover Recommendations  https://fredreish.com/best-interest-standard-of-care-for-advisors-97/

Staff Bulletin: Standards of Conduct for Broker-Dealers and

IRS Issues Guidance on Expansion of EPCRS  https://www.napa-net.org/news/2023/5/irs-issues-guidance-expansion-epcrs/

How to Correct Enrollment Errors for Long-Term, Part-Time

IRS Releases Q&A Guidance on Key SECURE 2.0 Provisions  https://www.napa-net.org/news/2023/12/breaking-irs-releases-qa-guidance-key-secure-20-provisions/