Democratizing Access to Alternative Assets for 401(k) Investors

The order directs the Secretary of Labor to reexamine all existing Department of Labor guidance on fiduciaries' duties under ERISA when considering alternative asset funds for retirement plan participants, including whether to rescind the DOL's December 21, 2021, Supplemental Private Equity Statement. Within the same 180-day window, the Secretary must also propose rules, regulations, or guidance — potentially including calibrated safe harbors — clarifying the fiduciary process for offering alternative asset funds and how to weigh higher expenses against the objectives of greater long-term returns and diversification. The order separately directs the SEC to consider revisions to rules on accredited investor and qualified purchaser status that currently limit access to such investments.

The order does not itself change any existing regulation or rescind any prior guidance; all operative impacts depend on rulemaking, guidance issuance, or guidance rescission completed by the relevant agencies after this order. It also defines "alternative assets" broadly to include private-market equity and debt, real estate interests, actively managed digital asset vehicles, commodities, infrastructure financing, and lifetime income strategies such as longevity risk-sharing pools.

The more than 90 million Americans enrolled in 401(k) and other employer-sponsored defined-contribution retirement plans, plan fiduciaries and investment managers who administer those accounts, investment firms offering alternative asset products, and plaintiffs' attorneys who bring ERISA fiduciary-breach litigation against plan sponsors.

If the DOL and SEC follow through with rule changes, 401(k) plan fiduciaries could offer private equity, real estate, digital asset funds, and other alternative investments inside employer retirement accounts — exposing workers to potentially higher long-term returns but also to less-liquid and often higher-fee investment vehicles.

The Secretary of Labor leads implementation, with a 180-day window to both review prior guidance and produce new proposed rules or guidance, including possible safe harbors that could limit fiduciary liability when offering alternative assets. The Secretary must consult the Treasury Secretary, SEC, and other regulators. The SEC runs its own parallel track — with no set deadline — considering revisions to accredited investor and qualified purchaser standards. No rule takes effect until agencies complete notice-and-comment rulemaking under applicable law; the order creates no rights enforceable against the government.