The U.S. Securities and Exchange Commission staff in the Divisions of Investment Management and Corporation Finance issued guidance on how federal securities laws apply to pooled employer plans, or PEPs, which let multiple unrelated employers participate in one retirement plan. In substance, the staff said it would not object if ERISA-governed PEPs that meet the relevant Internal Revenue Code qualification requirements use existing single trust exclusions and exemptions commonly relied on by retirement plans, and it confirmed how participating employers can register offerings of their own securities through a PEP. The Division of Investment Management said a PEP may treat itself as a single employer plan for purposes of the Investment Company Act section 3(c)(11) exclusion, provided it is subject to ERISA and meets the relevant Code requirements. The same statement says a collective investment trust may rely on Securities Act Rule 180 to issue interests to a PEP that covers self-employed individuals without registering the offer and sale, if the plan is subject to ERISA and the issuance meets Rule 180(a)(1) and (a)(3), with the rule’s sophistication requirement assessed at the pooled plan provider level rather than for each participating employer. Separately, Corporation Finance interpretation 118.01 says qualifying PEPs may claim the Securities Act section 3(a)(2) exemption for interests in a single trust fund even though multiple unrelated employers participate. That exemption does not apply where a participating employer offers its own securities as an investment option, but Corporation Finance interpretation 126.45 says the employer may use Form S-8 to register both its securities and the related plan interests, or use separate Form S-8 filings by the employer and the PEP subject to stated incorporation and hyperlink conditions. The staff also noted that the Securities Act anti-fraud provisions continue to apply, and the Investment Management statement says it reflects staff views only rather than Commission action.
U.S. Securities & Exchange Commission 2026-05-04
U.S. Securities and Exchange Commission staff clarifies that pooled employer plans may rely on single trust exemptions and use Form S-8
SEC staff in the Divisions of Investment Management and Corporation Finance issued guidance on how federal securities laws apply to pooled employer plans, clarifying when they may rely on exclusions and exemptions used by single-employer retirement plans. Certain ERISA-governed pooled employer plans may treat themselves as single-employer plans for Investment Company Act and Securities Act purposes. The guidance explains how participating employers can register offerings of their own securities through a pooled employer plan using Form S-8, reiterates that Securities Act anti-fraud provisions continue to apply, and notes the Investment Management statement reflects staff views rather than Commission action.