A 401(k) provider has filed a lawsuit against the US Labor Department, claiming that recent agency guidance stating that companies that provide cryptocurrency in retirement plans can expect to be examined is unconstitutional.

ForUsAll Inc. filed the case against the Labor Department on Thursday, which supervises 401(k)-type plans, in US District Court in Washington, DC. The 401(k) administrator is based in San Francisco. It has stated that employees in its retirement plans will be able to invest up to 5% of their 401(k) contributions in Bitcoin, Ethereum, Litecoin, and other cryptocurrencies.

Last year, the company collaborated with cryptocurrency exchange Coinbase Global Inc., allowing employees to invest in cryptocurrencies through a self-directed brokerage window within their 401(k) plans.

The suit by ForUsAll comes after the Labor Department expressed worries about cryptocurrency in retirement plans on 10th March. The regulator emphasized the market’s volatility and the lack of a widely established methodology investors can use to evaluate bitcoin values in its guidance. Bitcoin has lost around 56% of its value since November.

Crypto in Retirement Plans

ForUsAll isn’t the only company trying to include cryptocurrency in 401(k) plans.

Fidelity Investments stated on 26th April that the 23,000 organizations that use it to manage their retirement plans would be able to use bitcoin later this year. Fidelity would allow savers to put up to 20% of their money in Bitcoin under the scheme, while employers might choose a lower limit.

According to the company, about 150 of the 500 organizations utilizing ForUsAll’s 401(k) services have signed agreements incorporating the bitcoin option. Customers of ForUsAll have an average of 160 employees and 3 million USD in 401(k) assets.

Nearly a third of the clients it has spoken with since the Labor Department’s 10th March guidelines have decided not to provide the cryptocurrency option when it becomes available later this summer, said ForUsAll.

In addition, ForUsAll claims that their cryptocurrency window includes investor protections such as education and safeguards like a 5% cap on digital-currency allocations.

More About ForUsAll Lawsuit

According to the lawsuit, the Labor Department’s 10th March advice is unduly aggressive because it considers the merits of a specific sort of investment.

In a news release, Jeff Schulte, CEO of ForUsAll, stated, “Congress never gave government officials the right to pick winners and losers, let alone the legal authority to prohibit whole asset classes arbitrarily.”

“While bitcoin is the department’s immediate target, if left unchecked, this action could embolden the agency to restrict other investment kinds or techniques in the future,” said the release.

Before publishing the advisory, the agency should have gone through its normal rule-making procedure, including asking the public opinion, according to the lawsuit.

Financial sector trade groups, including the Investment Company Institute, which embodies mutual-fund companies, wrote to the Labor Department on 12th April requesting that the 10th March guidance be withdrawn.

In an conversation with The Wall Street Journal in late April, Ali Khawar, acting assistant secretary of the Department of Labor’s Employee Benefits Security Administration, claimed the administration isn’t outlawing cryptocurrency in 401(k)s.

“That is their discretion,” he added if employers believe they can make a case for the asset and have addressed the agency’s concerns.

Khawar agrees that bitcoin has interesting applications, but it must mature before people can invest their retirement funds in it, including creating consumer protections.

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