Mark Boyko Featured in Bloomberg Law on Challenges to Private Equity in 401(k)s

Bailey Glasser partner Mark Boyko spoke with Bloomberg Law about the Trump administration’s recent executive order encouraging 401(k) plans to adopt alternative investments such as private equity and cryptocurrency. The order also signals an effort to limit fiduciary litigation, which for decades has protected employees and retirees from excessive fees and risky investments.

Despite hints at a new regulatory safe harbor, Mark emphasized that ERISA’s guarantee of a private right of action for plan participants cannot be overridden by agency guidance: “There’s no question this administration and the people it has put in at the DOL would like to make it more difficult for employees to protect their ERISA rights,” Mark said. “But the DOL can’t create a regulation that runs contrary to ERISA.”

Advocates warn that introducing opaque, high-fee, illiquid assets into retirement plans, combined with efforts to curb litigation, could threaten retirement security for millions of Americans.

Historically, retirement plans have been invested almost exclusively in stocks, bonds and capital preservation vehicles. The executive order aims to lower barriers to adding alternative assets like private equity while signaling possible litigation restrictions. However, creating a safe harbor broad enough to cover these asset classes yet narrow enough to withstand ERISA and Administrative Procedure Act scrutiny poses a major challenge.

“I don’t think this executive order is going to move the needle much,” Mark told Bloomberg Law, noting that ERISA requires plan investments to be prudent, regardless of any executive order.

For more insights, read the full Bloomberg Law article here.  

Mark is a member of Bailey Glasser's ERISA and Employee Benefits & Trust Litigation Practice Group and is a nationally recognized leader in ERISA class action litigation, with decades of experience representing workers and retirees in groundbreaking cases. His work has secured more than $500 million in judgments and settlements, including successful appeals before multiple federal circuits and the U.S. Supreme Court.