A lawsuit challenging the US Labor Department’s guidance on including cryptocurrency in 401(k) plans highlights the department’s warning that it will investigate retirement plan sponsors who offer such investments.

Guidance (CAR No. 2022-01) the Employee Benefits Security Administration issued in March instructed employers to use “extreme care” when considering digital asset investments and warned of a looming “investigative program” for crypto-invested plans. Even employers that let their workers choose digital assets could undergo heightened regulatory scrutiny, the guidance said.

That enforcement standard has the potential to leave businesses that offer 401(k) benefits scrambling to meet an evolving definition of what it means to be a prudent investor, exposing new avenues for future litigation and costing plans money.

“Threatening investigations is enough to put a plan sponsor on notice that you probably shouldn’t select this as an investment,” said Chantel Sheaks, vice president of retirement policy at the US Chamber of Commerce, which opposes the department’s move. “Why would any plan sponsor purposefully pick this type of investment knowing that they will be investigated? You just wouldn’t.”

Plan provider ForUsAll Inc. sued the Labor Department in federal district court for violating the Administrative Procedure Act (Pub.L. 79-404) when it issued its guidance ...

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