Because I really like lawyering, I am pleased that I have had a very busy and productive February, full of client meetings, filings in courts in various jurisdictions, and interesting work. The drawback, though, is that it is now almost the end of the second month of 2025 and I still haven’t finished my countdown of my top ten blog posts from 2024. It’s starting to get a little embarrassing, frankly, to the extent that I think many law bloggers would have just dropped the whole countdown thing by now and just hoped that nobody would ever notice that they only made it to the fifth or the fourth or whatever number it was of their most popular posts from the prior year. Not me, though, because I am apparantly a glutton for punishment and determined, like Charlie Brown, to finally kick that football!

More seriously though, it is worth finishing this countdown because I believe that my second most popular post from 2024 is one of the more important posts I have ever written and is becoming more and more timely by the day. The post discusses the political and economic pressure to add private equity investment options to 401(k) plan investment menus, and why this is a terrible idea. Forget the question of whether it is paternalistic for naysayers like me to argue against it – the simple fact is that such a change will open up plan sponsors to so much future class action litigation that I don’t think anyone who argues against the proliferation of class actions against plan sponsors has any business promoting this idea. And that’s before we get to the question of whether the average plan participant is an appropriate and knowledgeable enough investor for this to make sense. Tell me, dear reader – do you have the time to research the details of the investments in your 401(k) plan, or do you just look at the returns? It’s not a criticism, it is just a fact – the investment of time to properly consider private equity investments, and the risks versus the returns, and the expertise needed to do so, makes this a bad idea for plan participants.

And so what if protecting plan participants by continuing to preclude such investments in 401(k) plans might strike some as paternalistic. That’s the whole point of the fiduciary requirements for such plans: that there is a prudent and loyal expert acting on behalf and in the interest of plan participants. If that isn’t pretty close to the definition of paternalistic, I don’t know what is. And yet, to the extent the 401(k) system does in fact work, this dynamic is a large part of the reason why.

So, with that, I will climb down from my soap box and introduce the second most popular post on my blog in 2024, “Adding Private Equity Investment Options to 401(k) Plans May Be a Good Idea – for Everyone Who Is Not a Plan Participant or a Plan Fiduciary.”