Takeaway
- The 2025 CAR doesn’t alter ERISA’s substantive fiduciary requirements and concerns however eases the DOL’s beforehand hostile enforcement stance towards cryptocurrency and comparable digital property in 401(okay) plans, restoring a “impartial” DOL enforcement method. 401(okay) plan fiduciaries should nonetheless contemplate all related ERISA elements and apply the mandatory care, ability, prudence, and diligence required by ERISA in managing their 401(okay) plan fund lineup. They’ll now really feel extra assured {that a} resolution to incorporate cryptocurrency in their 401(okay) plan won’t be subjected to elevated scrutiny by the DOL; nevertheless, they need to stay vigilant concerning the danger of potential participant claims and sophistication actions.
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On Might 28, 2025, the DOL launched Compliance Assistance Release No. 2025-01. The 2025 CAR rescinds the DOL’s earlier Compliance Assistance Release No. 2022-01 (2022 CAR), issued in 2022, which indicated an unfavorable DOL enforcement stance on together with cryptocurrency and comparable digital property in 401(okay) plan fund lineups.
In rescinding the prior steerage, the DOL states that the 2022 CAR articulated a regular of care that was inconsistent with ERISA’s fiduciary rules, and that the 2025 CAR “restores the [DOL’s] historic method by neither endorsing, nor disapproving of, plan fiduciaries who conclude that the inclusion of cryptocurrency in a plan’s funding menu is suitable.”
The DOL additional reminds plan fiduciaries that, “[w]hen evaluating any explicit funding kind, a plan fiduciary’s resolution ought to contemplate all related information and circumstances and can “essentially be context particular”, and that fiduciaries should “curate a plan’s funding menu ‘with the care, ability, prudence, and diligence beneath the circumstances then prevailing {that a} prudent man appearing in a like capability and aware of such issues would use in the conduct of an enterprise of a like character and with like goals’ for the ‘unique function’ of maximizing risk-adjusted monetary returns to the plan’s members and beneficiaries.”
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