Fiduciary Duties In Selecting Designated Investment Alternatives

The proposed "Fiduciary Duties in Selecting Designated Investment Alternatives" regulation aims to expand 401(k) access to alternative assets—such as private equity, real estate, and digital assets—by establishing a process-based safe harbor for plan fiduciaries. This safe harbor provides legal protection and a presumption of prudence to fiduciaries who objectively and analytically evaluate and document six core factors during the investment selection process: performance, fees, liquidity, valuation, benchmarking, and complexity. While the Department of Labor seeks to alleviate regulatory burdens and reduce the litigation risk that often deters investment innovation, the rule has faced criticism for potentially shifting financial risk from plan sponsors to participants, who may be exposed to higher fee structures, reduced liquidity, and the inherent volatility of speculative markets.
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