The company suing the US Labor Department over guidance it issued earlier this year warning retirement plans of the dangers of offering cryptocurrency investments has launched the nation’s first crypto 401(k) brokerage window.
ForUsAll Inc. took its Alt401(k) plan live with 50 companies, it said Thursday. The platform allows employees at those companies to invest part of their workplace savings in riskier growth assets such as Bitcoin and Etherium in addition to traditional securities.
Fidelity Investments Inc. also announced recently that it would begin allowing plans it administers to put Bitcoin on their investment menus.
A Fidelity spokesperson confirmed Thursday that the company has already gone live with customers, but declined to say how many plans are offering crypto investments.
“There are companies that offer Fidelity’s Digital Assets Account as a part of their core 401(k) lineup,” a spokesperson said. “The first plan sponsors went live this fall, as expected.”
Both ForUsAll and Fidelity are betting on crypto investments amid a market downturn and as regulators and participant rights attorneys are eyeing ways to poke holes in the crypto bubble. Traditionalists in the 401(k) space say digital currencies have no place in tried-and-true retirement accounts.
Many of San Francisco-based ForUsAll’s clients are fintech firms and digital startups that already work with crypto assets.
One of those firms, NuHire Group LLC, is a staffing and recruiting agency for technology companies. Founding Partner Ashton Wood said the company views cryptocurrency as a promising financial innovation.
“Our team has the privilege of helping grow some of the most cutting-edge blockchain startups in the world,” he said in a statement. “We see first-hand the innovations coming to the financial sector and owe it to our employees to ensure convenient access to the future of finance.”
ForUsAll said it expects to roll out its new investment platform to more than 100 companies later this year.
The Alt401(k) levels the playing field for average investors who wouldn’t otherwise have access to cryptocurrencies and their underlying blockchain technologies, said David Ramirez, ForUsAll’s co-founder and CEO. Institutional investors and wealthy Americans have already tried cornering the market, but middle-class investors access Wall Street primarily through their 401(k)s, so growth opportunities like crypto should be made available to them, he said.
“The idea that we would preclude the everyday American from being able to invest in what has been one of the best performing asset classes in 100 years would put them at a structural disadvantage compared to the large institutions and the high-net worth individuals who are increasingly investing in this asset class,” said Ramirez.
ForUsAll has been at the forefront of a simmering controversy over crypto 401(k)s since it sued the Labor Department in June over subregulatory guidance the department’s employee benefits agency issued this year threatening federal investigations against plans that opt into digital asset investing.
The guidance warned plan sponsors that cryptocurrency investments are volatile and difficult to accurately value in the market. ForUsAll said in its lawsuit that the agency’s threats amount to a ban on digital currency investing that subverts the federal rulemaking process.
It’s unclear whether the department will launch investigations into any or all of ForUsAll or Fidelity’s clients. The department didn’t immediately respond to a request for comment Thursday.
Both companies are “daring” the department to investigate their clients, said John Reed Stark, a former Securities and Exchange Commission enforcement attorney who led the agency’s Office of Internet Enforcement.
“Do they think the DOL is going to back down?” said Stark, who now operates a cybersecurity response consulting firm. “When you’re provoked—when they come in and say they’re going to do it anyway, it doesn’t make you step back, it makes you lean in.”
He said crypto-infused 401(k) plans may face danger from regulators seeking low-hanging enforcement fruit and potential plantiffs who see the space as a litigation goldmine due to high fees and aggressive sales.
ForUsAll’s crypto plan offers digital investments through a brokerage window, which exists outside the core plan lineup of investments and gives workers access to a broader scope of on- and off-market growth vehicles.
The brokerage window protects both investors and their employer plan sponsors, said Ramirez. Until recently, regulators have steered away from holding anyone but investors themselves liable for the selections they make in a window. Bifurcating the ForUsAll 401(k) platforms between the core plan lineup and the brokerage window allows the company to tack on additional protections for those investors to ensure they understand the risks.
Alt401(k) plans feature an in-plan brokerage window that lets workers transfer up to 5% of their savings into more than 50 different cryptocurrencies. ForUsAll says it closely monitors crypto allocations and will alert employees when their allocation exceeds 5% of their portfolio.
The company says it offers its clients’ workers risk-focused employee education, robust risk disclosures, and even a quiz they must pass that demonstrates their understanding of crypto investing risks.
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