That is the line committees cannot afford to miss. They cannot interfere, but they also cannot ignore. Those two verbs define the narrow lane that fiduciaries must stay in if they want delegation to work as intended.
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Fiduciaries can follow every step of a prudent process and still end up with outcomes they did not anticipate. That’s not how fiduciary risk is supposed to work. Or at least, not how it used to work.
Once the regulatory gaps are acknowledged, the issue quickly shifts from theory to action. Plan sponsors are not just waiting for guidance. They are being forced to decide whether to engage with the Saver’s Match at all.
Private equity inside a daily-valued, participant-directed plan introduces structural tension. Illiquid assets must coexist with participant liquidity expectations. Valuations must be estimated where markets do not exist. And governance must bridge that gap without introducing bias or delay.
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Private equity investments raise a second layer of fiduciary difficulty because they are not simply harder to compare. They are also harder to value, harder to redeem, and harder to explain to participants who may assume daily-priced plan options operate under familiar public-market rules.
Ongoing forfeiture lawsuits involving major plans are reshaping how courts evaluate fiduciary oversight. Sponsors who rely on routine processes may discover that governance gaps create legal exposure for committees and financial harm for participants.
Cunningham v. Cornell is testing whether traditional 401k fiduciary compliance truly protects plan sponsors. Courts and regulators are probing governance gaps, personal liability, and participant harm more aggressively than ever.
Fiduciary litigation did not let up in 2025, and 2026 is seeing even more refined theories targeting 401k plans. Plan sponsors must look beyond procedural checklists to avoid the top governance pitfalls that trigger personal liability and erode participant savings.
Could Employer Matching On Trump Accounts Become The Next Fiduciary Recruiting Perk (And Liability)?
With contributions via employer programs not beginning until July 4, 2026 (IRS Notice 2025-68), sponsors who move quickly have a compressed window to design, test, and communicate the benefit. That compression creates both opportunity and risk.
