The lawsuit alleges that the Labor Department's guidance is an "arbitrary and capricious" attempt to restrict the use of cryptocurrency in retirement plans. Key allegations from the complaint include:

The department rushed out the guidance and deliberately circumvented the Administrative Procedure Act's rulemaking process because it feared that commercials broadcast during the Super Bowl would encourage employees to put their retirement savings in crypto.
The guidance directly contradicts President Joe Biden's March 9 executive order that directed several federal agencies, including the Labor and Treasury Departments, to begin focusing their efforts on the growing cryptocurrency field and evaluate how to move crypto forward through appropriate regulation.
Neither the guidance nor statements by department officials offer any coherent rationale for how a duty would exist to select and monitor investments in a brokerage window if those investments are cryptocurrency but not if they are any other type of investment.
There was a strong demand to add cryptocurrency to retirement plans through ForUsAll's program before release of the guidance. Since the release of the guidance, however, approximately one-third of the plans have indicated that they do not intend to proceed at this time given the position taken by the department.

ForUsAll wants the court, among other relief, to vacate and set aside the crypto guidance; prevent the department from acting to implement the guidance; and prohibit investigations outside the scope allowed by the Employee Retirement Income Security Act of 1974.

Instant Insights /

DOL asks judge to toss lawsuit over its 401(k) 'cryptocurrency guidance'

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