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Seyfarth Synopsis: A deceptively simple question—How can an ESOP fiduciary determine that the price paid for closely-held stock constitutes “adequate consideration” under ERISA?—has created uncertainty in the employee stock ownership plan (“ESOP”) world for years. Relief is finally here in the form of the Retire Through Ownership Act (the “Act”), which was passed by the Senate in October 2025 and the House on September 16, 2026. The President signed the Act into law on October 15, 2026.

Background

An ESOP is a specialized type of retirement plan that allow employees to become partial owners of the company they work for.  ESOPs are generally subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including the fiduciary requirement that an ESOP pay no more than “adequate consideration” for company stock. ERISA defines “adequate consideration” by reference to fair market value, as determined in good faith by the trustee or named fiduciary.  However, because the stock of privately-held companies is not traded on a public exchange, determining fair market value is inherently a matter of professional judgment.  Further, ERISA has not historically provided a sufficiently clear or reliable framework for how an ESOP fiduciary may determine whether the “adequate consideration” standard is satisfied when relying on an independent appraisal. The absence of defined criteria has historically left plan sponsors and fiduciaries exposed to second-guessing and litigation risk.

Retire Through Ownership Act

The Act amends Section 3(18) of ERISA to establish a clear standard for satisfying ERISA’s adequate consideration requirement. Specifically, an ESOP fiduciary may make a good faith reliance on a valuation provided by an independent valuation expert or business appraiser, so long as that expert or appraiser relied on the principles and methodologies set forth in IRS Revenue Ruling 59-60.  (By way of background, IRS Revenue Ruling 59-60 is a well-established IRS framework that has long been used to value closely- held stock.)  Anchoring the safe harbor to Revenue Ruling 59-60 gives fiduciaries a recognized, defensible benchmark to follow.

Why It Matters

For companies considering an ESOP and the fiduciaries who serve existing ESOPs, the Act could meaningfully reduce the uncertainty and potential litigation exposure that have historically surrounded closely-held stock valuations.

The Act also reflects a broader federal effort to encourage employee ownership. Under the current administration, the U.S. Department of Labor is actively working to expand its support for employee ownership. These efforts are intended to make employee ownership more accessible while helping companies and employees understand how these arrangements can support business succession, workplace participation, and workers’ financial security.

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Seyfarth Synopsis: In a significant en banc decision, Bolton v. Inland Fresh Seafood Corporation of America, Inc., No. 24-10084, the United States Court of Appeals for the Eleventh Circuit overruled its four-decade-old precedent in Mason v. Continental Group, Inc., 763 F.2d 1219 (11th Cir. 1985), and found that ERISA does not require plaintiffs to exhaust administrative remedies before bringing statutory claims—including claims for breach of fiduciary duty.

Background

The case arose from an employee stock ownership plan (ESOP) created by Inland Fresh Seafood Corporation. In November 2016, the plan used proceeds from a $92 million loan to purchase all outstanding shares of Inland’s stock from four officers and directors. Five former employees, on behalf of the plan’s 578 participants, sued under ERISA § 502(a)(2) and (a)(3), alleging that the defendants breached their fiduciary duties by causing the plan to overpay for the stock by tens of millions of dollars based on inflated, false financial projections. The district court dismissed the complaint, holding that it was bound by Mason and its progeny to require administrative exhaustion, and a panel of the Eleventh Circuit affirmed.

The En Banc Court’s Reasoning

Writing for the en banc court, Judge Jordan explained that Mason‘s exhaustion requirement “was an atextual product of judicial creation based solely on policy reasons.” The court emphasized that ERISA, despite its comprehensive scope, “does not contain an exhaustion requirement for statutory claims,” and that courts “are not at liberty to add to or take from the language of [a] statute.” The court noted that Mason itself had acknowledged ERISA does not require exhaustion had advocated for the requirement anyway for policy reasons.

The court underscored that the Eleventh Circuit’s Mason decision “stand[s] alone in requiring mandatory exhaustion for fiduciary-breach and statutory claims under ERISA,” noting that seven sister circuits—the Third, Fourth, Fifth, Sixth, Ninth, Tenth, and D.C. Circuits—hold that no exhaustion is required, with only the Seventh Circuit aligned with Mason (and even then on a discretionary rather than mandatory basis). The Court found that the quality of Mason‘s reasoning, its conflict with sister circuits, and minimal reliance interests all weighed in favor of overruling. The Court applied the holding retroactively.

Inland argued that even if ERISA did not require exhaustion, the plan did. However, the Court rejected that argument, finding the plan’s “Claims and Review Procedures” were permissive rather than mandatory, as they stated a participant “need not file a claim” but “may submit a written claim.” The Department of Labor, appearing as amicus, agreed that the plan’s internal review process “is voluntary, not mandatory.” Having found the plan language to be permissive, the Court did not decide whether a plan can impose an exhaustion requirement that ERISA does not contain. Moreover, while the case did not involve a benefit claim, the Court’s discussion of the permissive plan language flags a potential way for plaintiffs in benefit claim cases to avoid the exhaustion requirement.

Key Takeaways for Plan Sponsors and Fiduciaries

  • Easier access to court. Participants in the Eleventh Circuit may now bring statutory ERISA claims—particularly fiduciary-breach claims—directly in federal court without first exhausting internal plan procedures.
  • Review plan documents. Sponsors who wish to require participants to exhaust administrative remedies should revisit plan and SPD language to ensure the claim and appeal language is mandatory, not permissive.

Seyfarth’s Employee Benefits and ERISA Litigation teams are available to help plan sponsors, fiduciaries, and administrators assess the impact of Bolton on plan design, claims procedures, and litigation strategy.

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Cost

There is no cost to attend, however, registration is required. 

REGISTER HERE

Thursday, October 15, 2026
3:00 p.m. to 4:00 p.m. Eastern
2:00 p.m. to 3:00 p.m. Central
1:00 p.m. to 2:00 p.m. Mountain
12:00 p.m. to 1:00 p.m. Pacific

About the Program

The ERISA litigation landscape continues to evolve as courts, regulators, and litigants shape new developments affecting employee benefit plans. Recent judicial decisions, agency activity, and enforcement trends are creating important considerations for plan sponsors, fiduciaries, and benefits professionals across both retirement and welfare plans.

Join our ERISA litigation team for a timely discussion of notable developments impacting the benefits landscape. We will explore emerging trends, litigation risks, and practical considerations to help organizations understand the latest legal developments and prepare for what may lie ahead.

Topics include:

  • Examining the evolving impact of recent administrative law developments on ERISA-related regulatory and litigation issues
  • Reviewing recent Department of Labor positions and guidance affecting ERISA litigation
  • Assessing current developments in excessive-fee, fiduciary breach, and retirement plan litigation
  • Discussing trends in welfare plan litigation, including provider reimbursement, tobacco surcharge, and pharmacy benefit manager-related challenges

Speakers

Ian Morrison, Partner, Seyfarth Shaw LLP
Amanda Genovese, Partner, Seyfarth Shaw LLP
Brad Perkins, Partner, Seyfarth Shaw LLP
Michael Cederoth, Associate, Seyfarth Shaw LLP

Learn more about our ERISA & Employee Benefits Litigation practice.

To comply with State CLE Requirements, CLE forms requesting credit in IL or CA must be received before the end of the month in which the program took place. Credit will not be issued for forms received after such date. For all other jurisdictions forms must be submitted within 10 business days of the program taking place or we will not be able to process the request.

Our live programming is accredited for CLE in CA, IL, and NY (for both newly admitted and experienced).  Credit will be applied as requested, but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. CLE decisions are made by each local board, and can take up to 12 weeks to process. If you have questions about jurisdictions, please email [email protected].

Please note that programming under 60 minutes of CLE content is not eligible for credit in GA. programs that are not open to the public are not eligible for credit in NC.

If you have any questions, please contact Kate Stacey at [email protected] and reference this event.

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Seyfarth Synopsis: The DOL’s latest MHPAEA guidance gives plan sponsors a practical roadmap for where parity compliance reviews should focus next. Although the DOL has announced limited nonenforcement relief for certain portions of the 2024 Final Rule, the agency made clear that it continues to enforce MHPAEA’s core statutory requirements, including the obligation to prepare and maintain written NQTL comparative analyses. The key takeaway is to review written plan terms and operational practices for warning signs involving treatment exclusions, medical necessity, utilization management, and network adequacy, and to make sure service providers will provide support.

Consistent with the DOL’s enforcement priorities for 2026, earlier this week the Department of Labor (“DOL”) released Field Assistance Bulletin No. 2026-03 and an accompanying web page (“Identifying Potential Problems: If You See the Following in Written Plan Provisions or Plan Operations, Think Twice about Possible MHPAEA Compliance Problems”), which spotlight three key focus areas for enforcement and provide a checklist for identifying warning signs that might indicate potential compliance problems under the Mental Health Parity and Addiction Equity Act (MHPAEA).

Three Key Focus Areas

The Field Assistance Bulletin explains that the DOL intends to focus its MHPAEA NQTL enforcement on three areas where it sees significant risk of participant harm:

  1. Treatment exclusions for mental health and substance use disorder benefits;
  2. Medical necessity and utilization management processes, including prior authorization, concurrent review, and related claims review standards; and
  3. Network adequacy and provider reimbursement, including standards for admitting MH/SUD providers to networks and methodologies that may contribute to inadequate access.

Employer Takeaway: According to the guidance, these are the places the DOL is most likely to look first. Treat the DOL’s three focus areas as the starting point for your next MHPAEA review.

Continue Reading DOL Hands Employers a Mental Health Parity Roadmap
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Seyfarth Synopsis: On August 11, 2026, the Internal Revenue Service issued proposed regulations addressing nondiscrimination rules for dependent care assistance programs (“DCAPs”) under Section 129 of the Internal Revenue Code (the “IRC”). More than 45 years after DCAPs were enacted under IRC § 129, these proposed regulations provide long-awaited guidance on DCAP nondiscrimination testing and also address employer contributions and nondiscrimination rules for Trump Accounts. For additional information on Trump Accounts, see our blogs here and here.

Background:

A DCAP allows employees to pay eligible dependent-care expenses with pre-tax dollars. Employers may also contribute to an employee’s DCAP. For 2026, the maximum amount that may be excluded from an employee’s gross income is $7,500, or $3,750 for a married individual filing separately.

Eligible expenses generally include care for:

  • A child under age 13; or
  • A spouse or dependent who lives with the employee and is physically or mentally incapable of self-care

The proposed regulations confirm and elaborate on the four statutory nondiscrimination tests applicable to DCAPs:

  • Contributions and benefits test
  • Eligibility test
  • Owner concentration test
  • Average benefits test

For the first time, each test receives detailed regulatory guidance.

Continue Reading Worth the Wait: After 45 Years, Dependent Care Assistance Programs Finally Get Regulations
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Seyfarth Synopsis: In newly issued ACA Implementation FAQs (Part 74), the Departments of Labor, Health and Human Services, and Treasury provide welcome guidance for employers sponsoring health-contingent wellness programs. Most notably, the agencies announced temporary enforcement relief regarding the retroactive application of wellness program rewards when a participant satisfies a reasonable alternative standard mid-year and clarified when plans must provide notice of the availability of a reasonable alternative standard.

Background

HIPAA’ s nondiscrimination rules generally prohibit group health plans from varying eligibility, benefits, or premiums based on a health factor. An important exception permits employers to offer certain wellness program incentives, such as premium discounts, rebates, reduced cost-sharing, or the absence of a surcharge, when participants satisfy specified wellness-related conditions. The Affordable Care Act largely codified these rules and continued the distinction between participatory only wellness programs and health-contingent wellness programs.

For health-contingent wellness programs, the regulations require that the “full reward” be made available to all similarly situated individuals, including through a reasonable alternative standard for participants who cannot satisfy the initial health-related requirement. Examples include tobacco cessation programs, biometric screening programs, or programs tied to specific health outcomes.

Wellness Programs Continue to Face Scrutiny

The guidance also comes at a time when health-contingent wellness programs, particularly tobacco cessation and tobacco surcharge programs, continue to attract litigation. Plaintiffs have challenged whether certain tobacco-related wellness programs satisfy HIPAA’s nondiscrimination rules, including the requirement to offer participants a reasonable alternative standard for earning the reward or avoiding a surcharge. Against that backdrop, employers have sought additional clarity regarding the administration of tobacco cessation programs and the availability of wellness incentives. The Departments’ decision to provide enforcement relief and clarify notice obligations may help reduce some of the uncertainty that has surrounded the operation of these programs in recent years.

Retroactive Rewards: Enforcement Relief for Plans

Since the 2013 wellness program regulations were issued, plan administrators have questioned whether a participant who satisfies a reasonable alternative standard partway through the plan year must receive the wellness reward retroactively back to the beginning of the year or only prospectively from the date the alternative standard is satisfied. The uncertainty arose because the preamble to the 2013 regulations appeared to require retroactive rewards, while neither the regulatory text itself nor the statute clearly imposed that requirement.

In response, the Departments announced that, pending future guidance or regulations, they will not take enforcement action against a plan or issuer that provides the reward only for the period after the participant satisfies the reasonable alternative standard, provided the plan otherwise complies with the applicable wellness program requirements.

This enforcement approach provides employers with greater administrative flexibility. Rather than recalculating and refunding premium surcharges or other incentives retroactively to the first day of the plan year, plans may provide the reward prospectively once the participant completes the reasonable alternative standard.

Importantly, the Departments emphasized that this relief does not alter the underlying requirements governing wellness programs. Plans must still be reasonably designed to promote health or prevent disease, may not operate as a subterfuge for discrimination based on a health factor, and must continue to offer reasonable alternative standards that provide participants with a meaningful opportunity to earn the reward.

Clarification of Notice Requirements

The FAQs also address another recurring compliance question regarding when plans must disclose the availability of a reasonable alternative standard.

The Departments confirmed that the required notice must be included in all plan materials describing the terms of a health-contingent wellness program. In addition, for outcome-based wellness programs, the notice must appear in communications informing an individual that he or she did not satisfy the initial standard. The notice must include contact information for obtaining a reasonable alternative standard and indicate that recommendations from the participant’s physician will be accommodated.

At the same time, the agencies clarified that not every mention of a wellness program triggers the disclosure requirement. Materials that merely note the existence of a wellness program, without describing its terms, are not required to include the reasonable alternative standard notice. As an example, the FAQs explain that a Summary of Benefits and Coverage (SBCs) that simply notes that cost-sharing may vary based on participation in a wellness program generally would not require the disclosure if it does not describe the program’s specific requirements.

Takeaways for Plan Administrators

Plans offering health-contingent wellness programs, particularly tobacco surcharge programs, should review their wellness program administration and communications in light of the FAQs.

Key action items include:

  • Evaluating whether current payroll and premium administration practices align with the agencies’ enforcement relief regarding mid-year completion of reasonable alternative standards.
  • Confirming that wellness program notices are included in documents that describe program terms and participant requirements.
  • Reviewing participant communications to ensure that required reasonable alternative standard language is provided where applicable.
  • Monitoring future regulatory developments, as the Departments indicated additional guidance or regulations may be issued on these issues.

Conclusion

Although the FAQs do not change the underlying wellness program rules, they provide practical compliance relief and helpful clarification on two issues that have generated uncertainty for plan administrators for more than a decade, and have spawned a spate of recent litigation. Employers that utilize health-contingent wellness programs should take this opportunity to confirm that both their administrative practices and participant communications remain aligned with current agency guidance.

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Seyfarth Synopsis: Section 103 of the SECURE Act 2.0 replaces the Saver’s Credit with a new matching contribution from the federal government. Since the enactment of SECURE 2.0, there have been a number of questions about the implementation of this new matching contribution, and how it will operate. In IRS Notice 2026-48 (“Notice”), the Treasury Department and IRS announced that they intend to propose regulations and other guidance regarding the Saver’s Match program. The Notice does not establish proposed or final regulations. Rather, it outlines the government’s current views on how it expects the Saver’s Match program to work and previews issues that Treasury and the IRS anticipate addressing in future guidance.

What is the Saver’s Match?

Beginning in 2027, the Saver’s Match will replace the federal Saver’s Credit. By way of background, the Saver’s Credit is an income tax credit of up to $1,000 ($2,000 if married filing jointly) that reduces a taxpayer’s federal income tax liability.   

Instead of providing a tax credit, the Saver’s Match is a contribution to an employer’s qualified retirement plan or an IRA from the federal government of up to 50% of what the taxpayer contributes to the retirement plan or IRA, capped at a match of up to $1,000. The Saver’s Match rate is based on an individual’s tax filing status and modified adjusted gross income. For married individuals filing jointly, the match applies to each spouse. Certain individuals, such as those that are under age 18, are not eligible. After SECURE 2.0 was enacted, a number of open questions arose with respect to the Saver’s Match, primarily administrative questions and concerns. For example:

  • Are employer-sponsored retirement plans required to accept these contributions?
  • How will taxpayers “apply” for the Saver’s Match contribution?
  • How will these Saver’s Match contributions be transmitted from Treasury to an employer-sponsored retirement plan?
  • What do employer’s do with these contributions once they are in the plan?  Do they have to be separately tracked?
  • What withdrawal, distribution and reporting requirements apply to Saver’s Match contributions?
  • Will recordkeeper/TPA platforms support these contributions?
  • What if errors arise in the calculation and/or transmittal of the Saver’s Match? How are these issues corrected?

The Notice directly addresses several of the questions outlined above, while leaving room for additional guidance and regulations.

Continue Reading New Saver’s Match, New Plan Sponsor Decisions
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Seyfarth Synopsis: The IRS has issued further guidance on Trump Accounts addressing employer contributions and eligible investments in which Trump Account funds may be invested.

We discuss the new guidance in our Legal Update here. As discussed in our prior blog posts, including “Trump Accounts: The New Kid on the IRA Block” and “No ERISA Strings Attached: The DOL Weighs In on Employer and Employee Contributions to Trump Accounts”, regulators have been slowly rolling out guidance since the announcement of Trump Accounts.

Implementing a Trump Account Contribution Program

Under the Proposed Rules, employers seeking to contribute to a Trump Accounts contribution program (a “Program”) must satisfy the following requirements:

  1. Plan Document Requirement. A Program must be established under a separate written plan document.
  2. Tax-Advantaged Contributions and Limitations. Contributions to a Program are permitted up to a maximum dollar limit of $2,500 (subject to inflation adjustments) which applies per employee; not per eligible dependent.
  3. Eligibility Requirements. Contributions are permitted only until the beneficiary turns 18. One of the more employer-friendly aspects of the proposal permits employers to rely on employee certifications, rather than requiring employers to independently verify every dependent’s age and dependent status.
  4. Nondiscrimination Rules. Certain rules will apply to contributions to a Program that prohibit discrimination in favor of highly compensated employees (“HCEs”). The nondiscrimination rules track the nondiscrimination rules that apply to dependent care flexible spending accounts.
  5. Trustees. Employers must still verify that the contributions are going to an actual Trump Account, and unlike employer contributions to a Health Savings Account, employers cannot limit contributions under their Program to Trump Accounts held by a particular trustee.
  6. Notices and Reporting. The Proposed Rules reference notices to employees, annual statements, and reporting obligations involving account trustees.

Investment Rules

Investments in Trump Accounts will be selected by the trustees holding the individual Trump Account funds, not their employers. Treasury previously announced that all contributions to Trump Accounts would be defaulted to the State Street SPDR Portfolio S&P 500 ETF (SPYM). The Proposed Rules elaborated on permissible investments and specified that Trump Account funds may not be invested in index funds that correspond to environmental, social, and governance (ESG) indices. 

Potential Challenges

Although the Proposed Rules address some of the key questions relating to Trump Account administration, a number of potential challenges remain. Please see our Legal Update here for more details. We will continue to monitor developments as Treasury and the IRS work toward final regulations and additional operational guidance.

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Seyfarth Synopsis: The Department of Labor (DOL) recently issued Technical Release 2026-02, which clarifies that neither Trump Accounts nor employer contributions to Trump Accounts are considered “employee pension benefit plans” under Section 3(2) of ERISA. For additional information about Trump Accounts, please see our prior to blog posts here and here.

What We Already Knew about Employer and Employee Contributions to Trump Accounts

The One, Big, Beautiful Bill Act and related Treasury guidance previously provided the following parameters for employer and employee contributions to Trump Accounts:

  • Employers may contribute up to $2,500 to Trump Accounts of young employees or children of employees under an Internal Revenue Code Section 128 program (“Section 128 Program”). These contributions are not considered taxable income to the employees or the Trump Account beneficiaries.
  • The $2,500 limit applies on a per employee basis, meaning that if an employee has multiple children with Trump Accounts, the employer’s aggregate contributions to those children’s Trump Accounts may not exceed $2,500.
  • Employers can facilitate pre-tax employee contributions to Trump Accounts for the employee’s dependents (but not the employee) through a Section 125 cafeteria plan.  However, these employee contributions are technically still considered “employer” contributions under a Section 128 Program and would therefore be subject to the same $2,500 limit described above.
  • All Section 128 Program contributions must be made pursuant to a written plan document and the contributions must comply with applicable nondiscrimination testing rules (which are expected to look similar to the nondiscrimination testing rules applicable to Dependent Care Spending Accounts).
Continue Reading No ERISA Strings Attached: The DOL Weighs in on Employer and Employee Contributions to Trump Accounts
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On February 25, 2026, the Department of Labor (DOL) issued proposed regulations implementing Section 338 of SECURE 2.0, which generally requires defined contribution plan administrators to furnish at least one benefit statement on paper every calendar year and defined benefit plan administrators to furnish at least one pension benefit statement on paper every three calendar years. The proposed regulations specify how plan administrators that otherwise comply with the 2002 or 2020 electronic disclosure safe harbors under Title I of ERISA can comply with this new requirement. Please see our prior blog post for a summary of the existing electronic disclosure safe harbors.

For plans using the 2002 “wired-at-work or consent” safe harbor, the proposed regulations would require plan administrators to provide a one-time paper notice — provided before any electronic qualified retirement plan benefit statement — to participants, beneficiaries, or alternate payees who first become eligible on or after January 1, 2026, informing them of their right to opt out of electronic delivery and receive all disclosures required under Title I of ERISA (i.e., SPDs, SMMs, SARs, benefit statements, etc.) on paper, free of charge. This requirement applies only to newly eligible individuals and is not retroactive (i.e., the plan administrator does not need to provide the one-time notice to individuals who became eligible for the qualified retirement plan prior to January 1, 2026). Notably, the DOL specifically contemplates that this notice will be included with other new-hire and benefit explanation documents, meaning that a separate specific notice for this purpose is not required. Further, the one-time notice is required only if the plan chooses to send the required annual (DC plans) or triennial (DB plans) pension benefit statement electronically under the 2002 safe harbor, rather than mailing it on paper. This proposed change is significant because the “wired-at-work” safe harbor does not currently require plan administrators to give participants the option to opt out of electronic distribution. Plan administrators will need to discuss implementation of this new opt out feature with their third-party recordkeepers. 

For plans using the 2020 “notice and access” safe harbor, the proposed regulations would exclude the newly mandated paper pension benefit statements from the 2020 safe harbor unless the individual affirmatively elects electronic delivery. The 2020 notice and access safe harbor did not previously include an affirmative election requirement, so plan administrators will need to coordinate with their third-party recordkeepers to discuss how to best solicit participant elections for electronic delivery (if desired). In addition, the proposed regulations would require that pension benefit statements (1) describe how to request that such statements be furnished electronically; and (2) include contact information for the plan sponsor, plan administrator or other designated plan representative. Fees for paper benefit statements are prohibited. 

SECURE 2.0 provides that the new paper benefit statement requirement will apply for plan years beginning on or after January 1, 2026. Importantly, however, the DOL has stated it will not take enforcement action against plan administrators that comply in good faith with a reasonable interpretation of the proposed rules. Plan administrators therefore should evaluate their current disclosure practices and assess whether operational changes will be needed for the current and upcoming plan years.