Is Cryptocurrency Too Risky For 401(k) Plans? The Controversy Continues

The Department of Labor's compliance assistance release on cryptocurrency (CAR 2022-01) issued earlier this year was controversial and resulted in a lawsuit by provider ForUsAll to get the guidance vacated. In that guidance, the DOL not only suggested-without actually saying so- that cryptocurrency was not a prudent investment for 401(k) plan participants, but indicated that it expected to start an investigative program in which plan fiduciaries who permitted cryptocurrency investments would have to justify their decisions as consistent with their fiduciary duties. This guidance came shortly after President Biden issued an executive order calling for the U.S. to support technological advances that promote responsible development and use of digital assets and seemed to be out of step with it. Following the issuance of the guidance, Fidelity announced that it would nevertheless be making cryptocurrency investments available as part of its investment menu and stated that