Securities Regulation Daily Wrap Up, STRATEGIC PERSPECTIVES—New paper titled ‘Federal government ready to expand 401(k) offerings’ examines future state of retail investment, (Aug 20, 2025)
The Trump Administration’s EO on alternative assets in 401(k)s may offer some the hope of investing in a new asset class but likely not without the potential for investor confusion, higher fees, and litigation.
The Trump Administration’s executive order on 401(k) plans calls on the Department of Labor to once again step into the debate over whether to include alternative assets, such as private equity, real estate, and crypto, in workers’ retirement plan menus. A new white paper examines how developments at both the DOL and the SEC going back over a decade prompted the SEC to gradually (now more quickly) warm to the idea of private market investment options for retail investors and how the DOL had already gotten there, albeit by taking a somewhat bumpy path with occasionally conflicting guidance for ERISA fiduciaries issued during both the first Trump Administration and the Biden Administration.
The white paper also explores what new DOL and SEC rulemakings and/or guidance on retail investors’ access to alternative assets and private markets may look like—probably bland language that is still capable of a wide-open interpretation to promote the current Administration’s priorities. Whatever the rules or guidance become, they will be informed by the now rapid confluence of a renewed interest in opening private markets to retail investors and a fundamental shift in how the federal government treats crypto.
The main wild card is the EO’s language about removing litigation barriers that could stand in the way of broadening 401(k) investment options. That raises questions about whether the Trump Administration has the authority to curtail ERISA lawsuits. Likewise, a case now pending before the U.S. Supreme Court could expand or shut down investor lawsuits over fees and other disputes, especially in the context of closed-end funds, which some SEC officials have suggested could be one of the best vehicles for retail investors to gain exposure to private markets.
To read, “Federal government ready to expand 401(k) offerings,” please click here.
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