Many employers offer 401(k) and other retirement plans for their employees as part of the cost of doing business. Too often, retirement plans are established and operated without much thought given to the numerous legal obligations that plan fiduciaries have, leaving employers vulnerable to challenges by their own employees as well as governmental agencies auditing their plans. A particular point of vulnerability are the investment choices that employers make for their retirement plans.

Plan committees and other fiduciaries in charge of selecting investments for a retirement plan are bound by law to make prudent and diverse investment choices and to monitor those choices periodically. These duties also apply to 401(k) plan fiduciaries who choose the menu of investment options from which employees may select investment of their own plan accounts. The U.S. Supreme Court recently underscored the seriousness of these duties by allowing employees to challenge some fiduciary decisions made years ago.