Let's declare 2015 the year we officially recognize 401(k) plans as a failed experiment in retirement planning. And let's give some credit for that to plaintiffs' attorneys, the Supreme Court and the Department of Labor.

To be fair, lots of credit also goes to the CFOs and HR professionals who cut costs on 401(k) plans to bare bones and failed to educate employees about how to use their investment options. Let's not forget the fund companies that enjoyed years of large fees without scrutiny, nor third-party administrators who used higher internal expenses to rebate the company's costs back to the employer. Financial advisors who pocketed 12b-1 fees and other forms of trailing commissions can't be completely overlooked, either.

Imagine how recent lawsuits would have gone if the 401(k)s had done a good job. What if the plaintiffs had sued about plan expenses and the companies' response had been "We use those fees to cover advice services to all plan participants, with advisors who come on-site once a week"? I did this in the early 2000s for a $100 million plan. We gave the company relief from fiduciary responsibility. We were on-site, did financial plans, asset allocation, explained rebalancing — at no additional cost to the plan participants. We were paid with 12b-1 fees, which we split with Putnam, the plan provider — we took 12.5 basis points and didn't feel underpaid.