The Department of Labor (the “Department”) has weighed in on whether defined contribution plans can include investment options containing private equity on a handful of occasions.  During the first Trump Administration, the Department issued an information letter to Jon Breyfogle that confirmed that the Employee Retirement Income Security Act of 1974, as amended, does not prohibit plan fiduciaries from making available an allocation to private equity as part of a defined contribution plan’s investment lineup.  During the Biden Administration, the Department issued a supplemental statement to the information letter in which it attempted to restrict the information letter’s scope.

Following President Trump’s Executive Order on Democratizing Access to Alternative Assets for 401(k) Investors (“Executive Order”), on August 12, 2025, the Department issued a news release in which it announced the withdrawal of the supplemental statement.  The rescission of the supplemental statement is just one piece of the Executive Order’s directive for actions to be considered by the Department within the next six months.  The Department’s next steps (e.g., initiating a rulemaking process, issuing additional guidance, etc.) remain to be seen. 

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