Author: Britney Littles

Bailey Glasser partner Mark Boyko spoke with Bloomberg Law about the Trump administration’s recent executive order encouraging 401(k) plans to adopt alternative investments such as private equity and cryptocurrency. The order also signals an effort to limit fiduciary litigation, which for decades has protected employees and retirees from excessive fees and risky investments.

Despite hints at a new regulatory safe harbor, Mark emphasized that ERISA’s guarantee of a private right of action for plan participants cannot be overridden by agency guidance: “There’s no question this administration and the people it has put in at the DOL would like to make it more difficult for employees to protect their ERISA rights,” Mark said. “But the DOL can’t create a regulation that runs contrary to ERISA.”

Advocates warn that introducing opaque, high-fee, illiquid assets into retirement plans, combined with efforts to curb litigation, could threaten retirement security for millions of Americans.

“I don’t think this executive order is going to move the needle much,” Mark told Bloomberg Law, noting that ERISA requires plan investments to be prudent, regardless of any executive order.

For more insights and to read the full Bloomberg Law article visit here.

Learn more about Partner Mark Boyko here.

Law360 recently featured Bailey & Glasser, LLP ERISA partner Mark Boyko in an article spotlighting four federal appellate arguments in August with major implications for retirement plan participants.

One case before the Eleventh Circuit, Eboni Williams et al. v. Gerald Shapiro et al., will decide whether arbitration clauses can push Employee Stock Ownership Plan (ESOP) disputes out of court. Plaintiffs allege plan participants lost money in an undervalued stock deal involving A360 Holdings LLC, executives, and plan trustee Argent Trust Co. The U.S. Department of Labor and the American Association for Justice have filed amicus briefs supporting the case remaining in court.

On this matter, Boyko told Law360, “I have a hard time seeing courts reversing the trend of correctly ruling that the effective vindication doctrine is violated by many of these arbitration provisions,” he said.

Another case before the Ninth Circuit, Wehner v. Genentech Inc. et al., will test the standards for benchmarking 401(k) target-date funds. The plaintiff seeks to revive claims that Genentech’s funds underperformed, arguing the California judge erred in dismissing the claims by applied an overly strict comparison standard that compared the allegedly imprudent investments to better-managed ones.

“By requiring the benchmark to be identical, you prohibit any litigation against a target-date fund for doing something that no other fund does,” Boyko explained. “The very thing that makes the fund imprudent now has to become part of the benchmark, and so you can’t actually measure what the imprudence is costing.”

Mark is a pioneer in ERISA class action litigation, representing workers and retirees in some of the earliest and most significant cases in the field. His work has secured over $500 million in judgments and settlements and includes successful appeals before multiple federal circuits and the U.S. Supreme Court. Learn more about Mark’s experience by visiting his website bio here.

Read the full Law360 article here.