Guidance stops short of a blanket cryptocurrency prohibition

By Percy LeeMarch 22, 2022

The U.S. Department of Labor (DOL) is warning 401(k) plan fiduciaries to "exercise extreme care" before considering whether to include a cryptocurrency option in a plan investment menu.

The sternly worded guidance, in Compliance Assistance Release No. 2022-01, published March 10, reveals heightened skepticism of 401(k) cryptocurrency investments and predicts new DOL enforcement activity for fiduciaries who permit 401(k) participants to invest in cryptocurrencies.

Crypto's Lukewarm Reception by Retirement Plans

Cryptocurrencies are digital currency created and exchanged over a decentralized computer network. Although Bitcoin is the first and best-known cryptocurrency, thousands of cryptocurrencies now exist.

Created to facilitate transactions free from governmental and third-party interference, cryptocurrencies have gained notoriety as volatile investments. Large institutional investors have been circumspect in investing in cryptocurrency, with defined benefit pension plans showing greater reticence than university endowments and family offices.

Investment in crypto assets by defined contribution plans remains uncommon, and most leading 401(k) record keepers do not permit cryptocurrencies to be traded directly on their platforms. Recently, however, several companies have begun to market services that would allow 401(k) plan participants to invest in cryptocurrency using specialized cryptocurrency exchanges.

Simmering DOL Wariness

The guidance follows President Biden's March 9 executive order directing federal agencies, including the DOL, to coordinate in developing a national policy that promotes the "responsible development and use of digital assets." However, Ali Khawar, acting head of the DOL Employee Benefits Security Administration, indicated as early as summer 2021 that the agency found 401(k) plan investment in cryptocurrency "very troubling" because of the volatility and lack of transparency of crypto investments.

In a March 10 blog post accompanying the new guidance, Khawar repeated the DOL's concerns about exposing plan participants to direct investments in cryptocurrencies and related products, such as non-fungible tokens, coins and crypto assets.

A Warning to Fiduciaries: Five Concerns

Plan fiduciaries must follow duties of prudence and loyalty under the Employee Retirement Income Security Act (ERISA), which courts have described as the "highest known to the law." Citing the recent U.S. Supreme Court decision in Hughes v. Northwestern University, the guidance reminds fiduciaries that they must select and monitor each investment option made available to plan participants to ensure its appropriateness. The guidance identifies five areas of concern facing 401(k) plan investment in cryptocurrency:

• Volatility and speculative nature of crypto investments.
  The guidance attributes the extreme price volatility of cryptocurrency investments to uncertainties in valuation, speculative conduct, fictitious trading, theft/fraud and other factors.
  

• Difficulty of enabling informed decisions.
  Cryptocurrency investments have dominated headlines for large gains and losses. The guidance states that this exposure can make it challenging even for experts to separate the facts from the hype and can attract participants who expect high returns without appreciating the risks. The difficulty is exacerbated if participants construe the availability of such investments in a plan investment menu as fiduciaries' endorsement of them.
  

• Custodial and record-keeping concerns.
  The guidance notes that unlike traditional plan assets that are held in trust or custodial accounts, readily available to pay benefits and plan expenses, cryptocurrencies generally exist as lines of computer code in a digital wallet and are susceptible to loss and theft.
  

• Valuation concerns.
   The guidance describes concerns about the reliability and accuracy of cryptocurrency valuations, noting expert disagreements on valuation models and the lack of consistent accounting treatment and reporting, as well as data integrity requirements, among cryptocurrency market intermediaries.
  

• Unstable regulatory environment.
  The guidance states that the rapidly evolving regulatory landscape for cryptocurrency markets poses considerable risks of noncompliance with respect to issuance, investments, trading and other activities. The DOL further cites cautions by the Financial Industry Regulatory Authority (FINRA) that cryptocurrencies have been used in illegal activities. Consumers who invest in cryptocurrency could be affected if law enforcement agencies shut down or restrict the use of platforms and exchanges.

Based on these concerns, the guidance issues a direct warning to 401(k) plan fiduciaries who allow participants to invest in cryptocurrencies and related products, concluding that the DOL expects to conduct an investigative program aimed at protecting participants and beneficiaries of plans that offer such investments.

Fiduciaries of such plans should expect to respond to questions about their compliance with ERISA duties of prudence and loyalty.

Departures from Previous DOL Guidance

The DOL has taken an aggressive position. First, the guidance takes the unusual step of singling out a specific asset class for additional enforcement scrutiny, even if it falls short of imposing a blanket prohibition on offering crypto assets to 401(k) participants. Fiduciaries may note that the DOL's position is more stringent than the ones expressed in the June 2020 information letter and December 2021 supplement statement regarding private equity investments in 401(k) funds, which are permissible as part of a diversified fund that is properly vetted and contains features designed to alleviate the liquidity and valuation concerns of private equity investments.

In contrast, the guidance on cryptocurrencies leaves little room for doubt that the DOL discourages crypto investments in 401(k) plans. It offers no concession for diversified investments similar to those described in the June 2020 information letter.

Brokerage Windows

The guidance on cryptocurrencies also appears to extend its warning not only to plans that offer crypto through the plan's menu of designated investment funds, but also to plans that let participants invest in stocks, bonds and other securities through an open platform referred to as a brokerage window. This suggests, contrary to prevailing guidance, that the DOL may expect plan fiduciaries not only to prudently select a brokerage window provider, but also to monitor the underlying investments made available through a brokerage window.

Conclusion

As cryptocurrency investments grow in popularity and mainstream consciousness, fiduciaries of 401(k) and similar plans may face questions from participants about the availability of cryptocurrency investments. The latest DOL guidance makes clear that an abundance of caution is warranted.

Fiduciaries who are considering adding cryptocurrency investments to 401(k) plans should reconsider their decision in light of this guidance and proceed only after weighing the risks of DOL investigation and fiduciary litigation and documenting the decision-making process.

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Source: The Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/dol-warns-401k-plans-against-allowing-crypto-investments.aspx