ERISA Compliance for ESOP Transactions Amid New DOL Enforcement Guidance: Structuring Options, Fiduciary Liability

This CLE course will provide ERISA counsel, employee stock ownership plan (ESOP) trustees, selling shareholders, and plan sponsors guidance on ESOP transactions and compliance issues in light of the Department of Labor's (DOL) recent enforcement guidance for the Employee Benefits Security Administration (EBSA). The panel will discuss (1) key items of focus in Field Assistance Bulletin No. 2026-01, (2) rules and procedures governing fiduciary duties of trustees in ESOP transactions, (3) the SECURE 2.0 provisions applicable to ESOPs, and (4) best practices in satisfying fiduciary duties in ESOP transactions and avoiding litigation.

An ESOP can be a useful financing and liquidity strategy in addition to providing tax and employee benefits. However, the DOL heavily scrutinizes the design and structure of ESOP transactions, and the IRS indicated that it will continue to undertake enforcement strategies to ensure compliance with tax law requirements by employers sponsoring an ESOP.

Under SECURE 2.0, key provisions impacting ESOPs include: (1) amending Section 1042 of the IRC to allow limited application of tax deferral on a sale of stock to S corporation ESOPs; (2) amending Code Section 401(a)(35) to change the definition of "publicly traded" for diversification requirements; (3) directing the DOL to create an Employee Ownership Initiative; and (4) directing the DOL to release formal guidance on ESOP valuation standards.

Finally, on April 14, 2026, the DOL's EBSA issued Field Assistance Bulletin No. 2026-01, providing new enforcement priorities and guidance under ERISA with a significant focus on ESOP structures. In addition, the IRS continues to undertake enforcement strategies to ensure compliance with tax law requirements, with a focus on specific ESOP transactions. Knowledge of transaction structures will allow ESOP counsel to achieve the goals and objectives of the parties involved while also complying with applicable regulations.

Listen as our panel discusses rules and regulations impacting ESOP transactions, DOL guidance, and other critical issues associated with structuring ESOP transactions.