Established under the Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act), Pooled Employer Plans (PEPs) are a type of defined contribution plan that allows multiple unrelated employers to participate in a single retirement plan – and thereby offer retirement benefits to their employees – under a designated Pooled Plan Provider (PPP), which serves as a named fiduciary, the plan administrator, and the person responsible for the performance of all reasonably necessary administrative duties. PEPs are seen as a way for small businesses to join together on a single retirement plan and reduce the related financial and administrative burdens. However, given that a PEP is typically structured as a trust fund for employees of multiple unrelated employers, until now, it has been unclear whether PEPs could take advantage of certain exemptions and exclusions that employee benefit plans typically rely on to avoid the registration requirements of the Securities Act of 1933 (the Securities Act) and the Investment Company Act of 1940 (the Investment Company Act).

On May 4, 2026, the Securities and Exchange Commission (SEC) Division of Corporation Finance released an update to its Corporation Finance Interpretations (CFIs) of the Securities Act Sections and Securities Act Forms, in each case, with respect to PEPs. Later that day, the SEC Division of Investment Management also released a statement clarifying the Staff’s views regarding the treatment of PEPs under certain Federal securities laws. However, as always, the Staff qualified such guidance with a caveat that its views, as represented in the Staff statement, have no legal force or effect and may be superseded by future changes in rules, regulations, and/or no-action and interpretive positions.

Updated CFIs

New Question 118.01: Section 3(a)(2) of the Securities Act

This question addresses whether PEPs are eligible to claim the Securities Act Section 3(a)(2) exemption for any interest or participation in a “single trust fund.” Section 3(a)(2) of the Securities Act exempts interests in certain employee benefit plans from the registration requirements under the Securities Act, including any interest or participation in a single trust fund.

The Staff responded that, although multiple unrelated employers participate in a PEP, it will not object if the PEP claims the Section 3(a)(2) exemption so long as the PEP meets the qualification requirements of the Employee Retirement Income Security Act of 1974 (ERISA) and Section 401 of the Internal Revenue Code of 1986 (the Code) and otherwise meets the conditions of Section 3(a)(2). However, the offers and sales of any securities in connection with such exempted PEPs will still be subject to the anti-fraud provisions of the Securities Act.

New Question 126.45: Form S-8

This question addresses whether an employer participant in a PEP may use the registration statement on Form S-8 to register the offers and sales of its own securities to its employees as an investment option in the PEP, and if so, whether the PEP must also register the offer and sale of plan interests on the same Form S-8.

In response, the Staff noted that it will not object if an employer participant in a PEP does in fact register offers and sales of its own securities to eligible employees on a Form S-8. In addition, the PEP may either (i) register the offer and sale of plan interests to the employees of that employer on the same Form S-8, or (ii) file a separate Form S-8 to register plan interests offered and sold to the employees of that employer.

However, the Staff has flagged for consideration a number of additional variables if the PEP opts to separately file its own Form S-8: (i) the employer, in addition to incorporating its own periodic reports, must incorporate the PEP’s periodic reports by reference into its Form S-8; (ii) in accordance with Rule 416(c), the PEP should register an indeterminate amount of plan interests; (iii) the PEP may also apply Rule 457(h)(2) by analogy and thereby not pay a fee for the registration, so long as the employer’s related Form S-8 is referenced and hyperlinked in the PEP’s Form S-8; (iv) the PEP’s Form S-8 need only incorporate the documents related to the plan in order to comply with Item 3; (v) the employer and the PEP must ensure ongoing compliance with Rule 428 and General Instruction G of Form S-8, i.e., that investors receive all information constituting a Section 10(a) prospectus and that such information is updated on an ongoing basis, as needed; and (vi) the PEP may register plan interests offered and sold to employees of multiple employers on a single Form S-8; provided, that each employer’s separate Form S-8 is referenced and hyperlinked in the PEP’s Form S-8.

SEC Division of Investment Management Staff Statement

In its May 4, 2026 statement, the Staff of the SEC Division of Investment Management delineated its views regarding the applicability of (i) Section 3(c)(11) of the Investment Company Act, an exclusion that is frequently relied upon by employee benefit plans, to PEPs specifically, and (ii) Rule 180 under the Securities Act to interests in collective investment trusts (CITs) maintained by a bank and issued to PEPs that cover self-employed individuals, in each case, noting that it would not object to the PEP relying on the foregoing exclusion or rule, subject to certain requirements also being met.

Applicability of the “Single Trust Exclusion” in Section 3(c)(11) of the Investment Company Act to PEPs

An employee benefit plan that meets the definition of an “investment company” under Section 3(a)(1) of the Investment Company Act must register as an investment company unless an exclusion or exemption applies. Employee benefit plans typically rely on the “single trust exclusion” from the definition of “investment company” under Section 3(c)(11) of the Investment Company Act for “[a]ny employee’s… profit-sharing trust which meets the requirements for qualification under section 401 of [the Code].” As discussed above, Section 3(a)(2) of the Securities Act includes a similar exemption for “single trusts.”

The Staff has historically interpreted a “single trust” to refer to the following type of trust, which PEPs do not neatly fall into: (i) a trust fund for employees of a single employer; (ii) a trust fund for employees of employers so closely related as to be regarded as a single employer (e.g., a parent and its subsidiaries); and (iii) a trust fund established and controlled by employers and/or a union representing the employees of such employers.

In response to this uncertainty with respect to PEPs, recognizing that Congress enacted the SECURE Act to remove legal barriers preventing the broader use of multiple employer plans and amended ERISA and the Code to treat PEPs as single employer plans thereunder, the Staff clarified that it will not object if a PEP treats itself as a single employer plan for purposes of the Investment Company Act and relies on the single trust exclusion in Section 3(c)(11) of the Investment Company Act to avoid registration (and therefore regulation) as an investment company under the Investment Company Act. However, the Staff highlighted two prerequisites to such treatment: the PEP must (i) be subject to ERISA and (ii) meet all of the requirements for qualification under Section 401 of the Code.

Applicability of Rule 180 to Interests in CITs Issued to Certain PEPs

CITs typically rely on the exemption in Section 3(a)(2) of the Securities Act to avoid the registration requirement with respect to the offer and sale of their interests. However, Section 3(a)(2) does not apply to interests in plans covering self-employed individuals (as defined in Section 401(c) of the Code) or to interests in CITs and separate accounts that fund such plans. CITs that accept such assets may seek to rely instead on the exemption under Rule 180 of the Securities Act, which, among other criteria, requires that (i) under Rule 180(a)(2), the plan covers only employees of a single employer or of interrelated partnerships and (ii) pursuant to Rule 180(a)(3), the issuer have reasonable grounds to believe that such employer has the requisite sophistication, i.e., knowledge and experience in financial and business matters, so that the interests of the employer and its employees are adequately represented.

Sponsors of CITs have generally interpreted the Rule 180 exemption as being unavailable to interests issued to PEPs that cover self-employed individuals, given that such plans cover multiple unrelated employers and there has been substantial uncertainty as to how PEPs would satisfy the sophistication requirement.

However, for similar reasons as stated above (i.e., in light of the spirit of Congress’s adoption of the SECURE Act), the Staff declared it would be reasonable to treat PEPs as single employer plans for purposes of Rule 180(a)(2). As such, the Staff will not object if a CIT relies on Rule 180 and issues interests to a PEP that covers self-employed persons without registering the offer and sale of such interests under Section 5 of the Securities Act; provided that the plan satisfies two conditions: (i) the plan must be subject to ERISA, and (ii) the issuance must meet all of the requirements in Rule 180(a)(1) and (a)(3). That said, because the PPP provides most of the administrative and fiduciary responsibilities with respect to a PEP and thereby effectively assumes the role of the employer, a CIT may apply the sophistication requirement to the PPP instead of any employer to confirm that the PPP is able to adequately represent the interests of plan participants.

Implications for Small Businesses

The SEC indicated that it intends to propose rules and release guidance to reduce regulations that it believes are unduly burdensome on small businesses and facilitate access to capital markets. Although informal, these recent developments are in line with such efforts. The SEC’s recent guidance on PEPs helps clarify how employer participants and PPPs can navigate prior uncertainties with respect to the registration obligations of PEPs and rely on exemptions and exclusions thereto to avoid undue burdens, thereby making retirement savings options more accessible.