An ERISA litigation trend has emerged that would have been unthinkable a few years ago: The U.S. Department of Labor (DOL) is intervening in court and taking the employer’s side. This trend reflects a deliberate policy shift that matters for every plan sponsor and fiduciary in an environment where “regulation by litigation” has become a default strategy for plaintiffs’ lawyers.

This summary addresses recent legal developments regarding the use of forfeitures by 401(k) plans and related compliance issues raised under the Employee Retirement Income Security Act of 1974, as amended (ERISA).

On December 30, 2025, the U.S. Department of Health and Human Services Office of Inspector General (the OIG) issued an unfavorable advisory opinion (AO 25-12 or the Opinion) regarding a home care agency’s (the Company) proposal to market sign-on bonuses to prospective employees of the Company, who would provide in-home support services primarily to the family members of these prospective employees (the Proposed Arrangement). Pursuant to AO 25-12, the OIG concluded that the Proposed Arrangement would result in prohibited remuneration under the federal Anti-Kickback Statute (the AKS) and implicate the civil monetary penalty provision prohibiting inducements to beneficiaries (the Beneficiary Inducements CMP).