U.S. DOL’s 401(k) Rule: Analysis of Public Comments
Client Alert | June 24, 2026
This update breaks down the more than 47,000 public comments submitted on the Department’s proposed rule in a detailed white paper.
Earlier this year, the U.S. Department of Labor proposed a new rule that would establish a process-based safe harbor for fiduciaries selecting investment options for participant-directed defined contribution retirement plans, which, if met, would give rise to a presumption that the fiduciaries satisfied their duty of prudence under the Employee Retirement Income Security Act. The rule has the potential to significantly curb meritless class actions targeting 401(k) plans. And although the rule applies to all investment selections, part of the Department’s reason for issuing it is to implement Executive Order No. 14330, Democratizing Access to Alternative Assets for 401(k) Investors, and it will be particularly welcome by fiduciaries considering offering exposure to alternative assets offered by private equity firms, real estate fund managers, and other alternative fund managers. The proposal could prove the most impactful rule issued by the Department during President Trump’s second term.
Gibson Dunn partners Andrew Kilberg and Brian Richman and associates Aaron Hauptman and Robert Frey break down the more than 47,000 public comments submitted on the Department’s proposed rule in a detailed white paper, examining who lined up behind the proposed process-based safe harbor, who pushed back, and what the comment docket signals for the shape and timing of the final rule.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding the issues discussed above. Please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of the firm’s Administrative Law & Regulatory, ERISA Litigation, Executive Compensation & Employee Benefits, Investment Funds, or Real Estate / REITS practice groups, or the authors:
Administrative Law & Regulatory:
Eugene Scalia – Washington, D.C. (+1 202.955.8543, esmith@gibsondunn.com)
Andrew G.I. Kilberg – Washington, D.C. (+1 202.887.3759, akilberg@gibsondunn.com)
Brian Richman – Dallas (+1 214.698.3466, brichman@gibsondunn.com)
ERISA Litigation:
Karl G. Nelson – Dallas (+1 214.698.3203, knelson@gibsondunn.com)
Ashley E. Johnson – Dallas (+1 214.698.3111, ajohnson@gibsondunn.com)
Jennafer M. Tryck – Orange County (+1 949.451.4089, jtryck@gibsondunn.com)
Executive Compensation & Employee Benefits:
Michael J. Collins – Washington, D.C. (+1 202-887-3551, mcollins@gibsondunn.com)
Sean C. Feller – Los Angeles (+1 310.551.8746, sfeller@gibsondunn.com)
Krista Hanvey – Dallas (+1 214.698.3425, khanvey@gibsondunn.com)
Investment Funds:
Kevin Bettsteller – Los Angeles (+1 310.552.8566, kbettsteller@gibsondunn.com)
Shannon Errico – New York (+1 212.351.2448, serrico@gibsondunn.com)
Blake E. Estes – New York (+1 332.253.7778, bestes@gibsondunn.com)
Marian Fowler – Washington, D.C. (+1 202.955.8525, mfowler@gibsondunn.com)
MacRae Robinson – New York (mmrobinson@gibsondunn.com)
Real Estate / REITS:
David Perechocky – New York (+1 212.351.6266, dperechocky@gibsondunn.com)
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