The latest salvo in the long-running battle over the inclusion of private fund assets in employee benefit plans (e.g., 401(k) plans) occurred when President Donald J. Trump issued an executive order (Order) on August 7, 2025. The Order instructs the U.S. Department of Labor (DOL) to take steps to facilitate the inclusion of investments in alternative assets in employee benefit plans. The Order acknowledges the problem that “burdensome lawsuits” have posed to expanding plan participants’ access to alternative assets. It is notable, however, that the Order does not explicitly spell out any specific solutions for the threat of litigation that plan sponsors and fiduciary committees face under the Employment Retirement Income Security Act of 1974 (ERISA). Absent litigation reform, the DOL’s development of a safe harbor or other regulatory measures, plan sponsors and fund managers arguably lack adequate protections from frivolous ERISA litigation to confidently move forward with making investments in alternative assets available to plan participants. This second article in a two-part series delves into the ERISA litigation risks that could result from including alternative assets in employee benefit plans, as well as certain factors that could reduce that risk. The first article summarized the Order; contextualized past DOL guidance; offered relevant considerations that fund managers and plan sponsors should weigh; and considered the likelihood of immediate action. See “Inherent Obstacles and Promising Pathways to Retailization in the PE Industry” (May 29, 2025).