On May 4, 2026, the U.S. Securities and Exchange Commission’s Division of Corporation Finance published two new Corporation Finance Interpretations (“CFIs”), formerly known as Compliance and Disclosure Interpretations.  The new CFIs relate to pooled employer plans (“PEPs”), which are defined contribution retirement plans, such as 401(k)s, that permit employees from multiple unrelated employers to join together in a single plan that is managed by a pooled plan provider (“PPP”).  The PPP handles plan administration and the fiduciary duties associated with plan investments, thereby reducing the costs and administrative burdens to employers of running such a plan, and making PEPs an attractive option for small businesses.

New Securities Act Sections CFI 118.01 clarifies that, if a PEP meets the applicable requirements of (i) ERISA and (ii) the Internal Revenue Code, and otherwise meets the conditions of Section 3(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), the Staff will not object if the PEP claims the Section 3(a)(2) exemption for any interest or participation in a “single trust fund” even though multiple, unrelated employers participate in the PEP.  Practically speaking, this means that PEP interests will be exempt from the registration requirements of the Securities Act, just like interests in single-employer 401(k)s and similar plans meeting these same criteria.

The CFI notes that the anti-fraud provisions of the Securities Act will apply, and that Section 3(a)(2) will not be available for investments by an employee in employer securities, if such securities are offered as an investment option in the PEP (both of these statements are true with regard to more traditional “single trust” defined contribution plans, too).  Lastly, the CDI provides a link to the Division of Investment Management’s guidance on the same issue.

New Securities Act Forms CFI 126.45 provides that an employer participant in a PEP may register offers and sales of its own securities to employees on Form S-8. The PEP must also register the offer and sale of plan interests to the employees of that employer on the same Form S-8.  However, the parties are permitted to file separate Form S-8s, subject to the following:

  • the employer must incorporate both its own and the PEP’s periodic reports by reference into its Form S-8, while the PEP’s Form S-8 need only incorporate limited documents by reference;
  • the PEP should register an indeterminate amount of plan interests(see Rule 416(c));
  • the PEP may rely, by analogy, on Rule 457(h)(2), and need not pay a registration fee in connection with the plan interests if it appropriately references and hyperlinks the employer’s related Form S-8;
  • both parties must comply with prospectus delivery and update requirements; and
  • the PEP can register plan interests offered and sold to employees by multiple employers on a single Form S-8, subject to appropriate references and hyperlinks.

Find the new CFIs here.