DOL Withdrawal of Current Guidance for Retirement Plan Investments: Private Equity, Cryptocurrency, and ESG Investing
Next Steps and Pitfalls to Avoid for Plan Sponsors, Managers, and Third-Party Administrators

Course Details
- smart_display Format
Live Online with Live Q&A
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
ERISA
- event Date
Tuesday, August 26, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will provide ERISA counsel an in-depth overview of the Department of Labor's (DOL) reversal of current ERISA-related policies and guidance with respect to ESG investing, proxy voting, cryptocurrency, and private equity investing. The panel will discuss the rules, fiduciary issues, and transaction risks associated with such investments and activities, ERISA compliance, exposure for fiduciaries, and best practices for ERISA counsel, plan sponsors, and fiduciaries.
Faculty

Mr. Olstein’s practice focuses on the fiduciary responsibility provisions of ERISA and the prohibited transaction excise tax provisions of the Internal Revenue Code. He has an extensive background advising financial institutions, plan sponsors, and investment committees on ERISA matters, including compliance with ERISA’s fiduciary duty and prohibited transaction rules, in connection with the investment of pension plan assets. Mr. Olstein regularly advises fund sponsors on the application of ERISA’s “plan asset” rules as they relate to the establishment and operation of private investment funds. From representing issuers and underwriters in connection with marketing securities to investors, to advising plan sponsors and independent fiduciaries in connection with the selection of annuity providers, he offers substantial experience at the intersection of ERISA and fiduciary responsibility. Mr. Olstein is an active member of the American Bar Association’s Section of Taxation and the New York City Bar Associati

Mr. Kaleda has more than two decades of experience advising financial services and insurance firms on complex ERISA Title I matters, with a focus on fiduciary compliance, investment structures and regulatory strategy. He counsels plan sponsors, investment managers, insurers, broker-dealers, banks, recordkeepers and other financial institutions on a wide range of ERISA and Internal Revenue Code issues. Mr. Kaleda's practice includes advising on fiduciary obligations, prohibited transaction rules and the structuring of alternative investment vehicles, such as plan asset funds, real estate operating companies (REOCs) and venture capital operating companies (VCOCs). He regularly assists clients in navigating Department of Labor regulations, including obtaining advisory opinions and exemptions. Mr. Kaleda is widely recognized in the ERISA and financial services communities for his thought leadership. He has authored a bimonthly “Compliance Consult” column for PlanAdviser magazine and contributes frequently to publications, such as The Investment Lawyer, Employee Benefit News and Plan Sponsor Magazine. Mr. Kaleda is a sought-after speaker on fiduciary and regulatory topics and has been quoted in leading industry outlets including on Wall Street and Financial Adviser.

Mr. Ryan is a partner in the Executive Compensation & Employee Benefits Department, specializing in ERISA Title I matters. He advises plan sponsors and plan service providers with respect to a range of fiduciary issues arising under ERISA and the Internal Revenue Code, including Department of Labor guidance and regulations. Mr. Ryan's work focuses on a variety of investment-related matters, including issues arising under the fiduciary and prohibited transaction provisions of ERISA related to the structure, design, and implementation of various investment products, such as private equity, real estate, hedge funds, commodity and real assets funds, and many others. He has substantial experience applying ERISA’s prohibited transaction rules to these types of investment products. In addition to his transactional work, he represents clients in DOL enforcement actions and investigations. Mr. Ryan has been recognized as a leading lawyer in Chambers USA (2023) for Employee Benefits & Executive Compensation (District of Columbia).
Description
On May 28, 2025, the DOL announced its plans to rescind its 2022 ESG rule (and presumably the portion of that rule that addresses proxy voting activities on behalf of ERISA plans) and rescinded its 2022 guidance cautioning plan fiduciaries to exercise “extreme care” when permitting cryptocurrency and other digital asset investments in 401(k) retirement plans. We also expect an Executive Order encouraging investments in alternative assets classes, such as private equity. While the change in policies presents opportunities, related changes to benefit plans must be managed carefully in light of ERISA’s requirements and the possibility of related litigation.
In 2022, the DOL issued guidance regarding the inclusion of cryptocurrency investment options in 401(k) plans, with stark warnings regarding (1) the fiduciary duty of prudence and personal liability; (2) security risks; (3) recordkeeping and custody; (4) valuation challenges; and (5) liquidity and diversification concerns. However, in light of the recent withdrawal of such guidance, plan sponsors and fiduciaries must grapple with ERISA rules and monitor carefully retirement plan investments to minimize risks and potential claims. In addition, rules governing consideration of ESG factors in investment decisions are in flux, with the DOL stating that they will engage in new rule-making with no indication of the extent to which the forthcoming regulation will depart from prior guidance. The DOL previously issued guidance on 401(k) plans investing in alternative assets classes and we expect the current Administration to promote such investments.
Listen as our panel discusses the impact of the DOL’s withdrawal of the ESG rule and cryptocurrency guidance and what is expected with regard to investing in alternative assets classes.
Outline
I. Status of the ESG and proxy voting rule
II. DOL withdrawal of prior guidance on digital asset investments
III. Navigating challenges for cryptocurrency investments
IV. Current and expected DOL guidance on 401(k) investments in alternative asset classes
V. Best practices for ERISA counsel, fund managers, and advisers
Benefits
The panel will discuss these and other key issues:
· How does the DOL's withdrawal and potential replacement of the ESG and proxy voting rule impact retirement plan investing?
· What are the critical issues for fiduciaries when considering offering digital assets as plan investments in light of DOL's policy reversal regarding these investments?
· What are the ERISA compliance rules applicable to plan investments in cryptocurrency?
· What are the inherent risks in investing in cryptocurrency?
· Why would fiduciaries of 401(k) plans want to offer exposure to alternative asset classes?
· What are the obligations and potential liability for fiduciaries?
· What methods can be implemented to minimize the fiduciary risks of plan investments?
Unlimited access to premium CLE courses:
- Annual access
- Available live and on-demand
- Best for attorneys and legal professionals
Unlimited access to premium CPE courses.:
- Annual access
- Available live and on-demand
- Best for CPAs and tax professionals
Unlimited access to premium CLE, CPE, Professional Skills and Practice-Ready courses.:
- Annual access
- Available live and on-demand
- Best for legal, accounting, and tax professionals
Unlimited access to Professional Skills and Practice-Ready courses:
- Annual access
- Available on-demand
- Best for new attorneys
Related Courses

Correcting Retirement Plan Compliance Issues Under SECURE 2.0
Tuesday, July 1, 2025
1:00 p.m. ET./10:00 a.m. PT

Advanced Qualified Plan Design for Income Tax Reduction and Retirement Planning
Thursday, July 24, 2025
1:00 p.m. ET./10:00 a.m. PT

Structuring Cash Balance Pension Plans and Conversions: Tax Benefits for Principals and Employees
Wednesday, July 2, 2025
1:00 p.m. ET./10:00 a.m. PT
Recommended Resources
Getting the Most Out of BARBRI Resources
- Learning & Development
- Business & Professional Skills
- Talent Development
Navigating Modern Legal Challenges: A Comprehensive Guide
- Business & Professional Skills
- Career Advancement