There is nothing in the Employee Retirement Income Security Act of 1974 (ERISA) that prohibits an ERISA plan from investing in private funds or other alternative assets. Defined benefit plans have done so for decades. On the other hand, few defined contribution plans incorporate alternative investment options – often due to concerns over litigation risk. Two developments may make it more palatable, however, for ERISA fiduciaries to invest in private market assets. One is the U.S. Department of Labor’s proposed regulation (Proposal) that would provide a safe harbor for plan fiduciaries when considering investment choices. The other is the Anderson v. Intel case pending before the U.S. Supreme Court, which could tighten pleading standards for plaintiffs in breach of duty actions against plan trustees. A Practising Law Institute program on ERISA plan access to private markets detailed the potential impact of the Proposal and the pending Supreme Court case; how sponsors are using collective investment trusts to hold ERISA assets; the evolving array of private market retirement products; and sponsors’ incentives to have their funds qualify as default investment options. This article discusses the key takeaways from the program. See “SEC Committee Wary of Retail Investor Confusion and Incompatible Features of Alternative Assets” (Jul. 23, 2026).