Regulating Retirement Savings Roulette: A Framework for Evaluating Prudence of Cryptocurrency Investments in 401(k)s

Foolhardy or farsighted, Americans are investing their retirement savings in volatile cryptocurrencies. These investments, conducted largely through brokerage windows enabling plan participants to invest in options not on their employer-sponsored retirement plan menu, are increasing. Clarity on whether and to what extent fiduciary duties apply to self-directed brokerage windows in 401(k)s is needed to protect Americans’ retirement outlooks and to equip fiduciaries with enough information to fulfil their obligations. No agency or court has confirmed the existence of fiduciary duties relating to brokerage windows, let alone defined the contours of any such duty.

The Department of Labor (DOL) recently withdrew a 2022 Compliance Release that had been the dam holding back large-scale cryptocurrency investments through 401(k)s. This Article evaluates the present fiduciary landscape for brokerage windows by surveying recent policy developments, appurtenant regulatory guidance, and relevant case law. It then adds to the taxonomy and contributes by proposing a framework for evaluating fiduciary conduct concerning brokerage windows that is sufficiently flexible to address this and future junctures in which investment innovations and retirement savings management collide.