id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
inlawrev-27644	Muir, Dana M.	Matching Preferences and Access: Sustainable Investing in 401(k) Plans	2023	43	.pdf	application/pdf	20080	1126	51	The general standard for prudence requires fiduciaries to give “appropriate consideration” to facts and circumstances relevant to the investments being evaluated.210 The 2022 Final Regulation provides additional guidance on what constitutes “appropriate consideration” in the design or review of a menu for a 401(k) plan.211 Although it did not include the formula in the regulatory language, the DOL stated in the preamble that it agreed with a commenter’s proposed two-part analysis for prudence in the construction of a 401(k) plan menu.212 First, the fiduciary must consider how “a given fund fit[s] within the menu of funds to enable plan participants to construct an overall portfolio suitable to their circumstances[.]”213 Second, the fiduciary must compare a fund under consideration “to a reasonable number of alternative funds to fill the given fund’s role in the overall menu[.]”214 This Part uses that analysis to build a framework for fiduciary consideration of plan participant preferences. Tibble v. Edison Int’l, 575 U.S. 523, 530 (2015); see Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 421 (2014) (holding that decisions regarding employer stock in an Employee Stock Ownership Plan were fiduciary decisions); Peter J. Wiedenbeck, Untrustworthy: ERISA’s Eroded Fiduciary Law, 59 WM. & MARY L. REV. 1007, 1068 (2018) (positing that the Supreme Court may view plan sponsor decisions on plan investments as an “inherent fiduciary function.”).	cache/inlawrev-27644.pdf	txt/inlawrev-27644.txt