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On June 30, 2026, the DOL Inspector General released a report – DOL Needs Stronger Oversight and Controls for Sharing Confidential Information – reviewing and finding significant faults with DOL’s “common interest agreement” program, under which it “share[s] confidential information with plaintiffs’ attorneys during class action lawsuits.” The report responds to a request from the House of Representatives Committee on Education and the Workforce.
In this article, we begin with a summary of the Report’s findings and recommendations. We then provide a sample of the specific issues and examples the IG identified as needing “stronger oversight and controls” – some of which are particularly disturbing.
As described by the IG: DOL “uses common interest agreements to gather and share information with non-governmental entities [in this case, plaintiffs’ attorneys in the business of suing ERISA fiduciaries] and to assist in facilitating settlements resulting from its investigations.” While DOL emphasizes information shared by law firms to it, it is clear that there is meaningful sharing going the other way – DOL providing information it has gathered (e.g., in its investigations) to plaintiffs’ attorneys. The rationale for this is that such “sharing [of] information furthers the Department’s enforcement interests.”
Broadly, the IG found that:
DOL did not establish sufficient controls for how it shared confidential information using common interest agreements with non-governmental entities. Specifically, [the Solicitor of Labor] SOL, [the Employee Benefit Security Administration] EBSA, and [the Wage and Hour Division] WHD [which was also a subject of the Report] did not have formal policies and procedures, a framework for internal coordination, nor tracking mechanisms. These issues occurred because management did not place sufficient emphasis on oversight and accountability, which included not: (1) establishing roles and responsibilities; (2) having strategies for minimizing potential, actual, and apparent bias with government personnel working on agreements; and (3) providing training to all responsible parties. As a result, DOL may have improperly entered into common interest agreements with non-governmental entities and potentially disclosed privileged investigative information, providing an unfair advantage to those entities.
Those are pretty big problems, especially for plan sponsors and sponsor fiduciaries, who have faced a 20-plus year storm of fiduciary litigation.
To address these problems, the IG made eight recommendations:
1. Establish and implement written policies and procedures to standardize the development, execution, and monitoring of common interest agreements with non-governmental entities.
2. Establish clearly defined roles and responsibilities, including monitoring for bias, for the designated signatory of common interest agreements with non-governmental entities.
3. Require staff who participate in common interest agreements to sign an affidavit that they have not previously been employed by the external parties involved in the agreement in the prior year and that they will abide by any post-employment restrictions imposed by 18 U.S.C. § 207.
4. Establish and implement coordination processes with all applicable DOL client agencies.
5. Develop a tracking system to monitor executed common interest agreements with non-governmental entities, including information shared.
6. Update and provide training to all applicable DOL agencies and SOL attorneys on the management and use of common interest agreements.
7. Establish coordination procedures with SOL to monitor common interest agreements with non-governmental entities.
8. Establish coordination procedures with SOL to develop, execute, and monitor common interest agreements with non-governmental entities.
The new leadership at DOL generally agreed with these recommendations and stated that it intends to implement them.
Probably the most disturbing IG finding was that in at least two (sampled) cases there was evidence of DOL personnel conflicts of interest, making recommendation 3 (above) particularly significant.
The Report is most interesting in the light it sheds on what has been going on at DOL, and we briefly discuss some examples below. To avoid over-hyping this, we should note that these are, in effect, anecdotes (generally the product of audit samples the IG did on certain common interest agreements). It’s unclear how widespread these problems are/were, and the program itself seems to have been somewhat limited – according to the Report, there were only seven EBSA-related common interest agreements established over the period January 1, 2023, and June 30, 2025. Although, as we’ll see, DOL’s tracking of these agreements was so lax that even DOL isn’t sure that all the relevant agreements have been identified.
There was never a formal process for establishing a common interest agreement. Some were entered into orally, simply “through a conversation.” There were also instances where the DOL official entering into the agreement did not have authority to do so.
Appearance of conflicts of interest. The issues here were detailed in the Committee on Education and the Workforce’s letter to DOL:
The extent to which any law firm or firms are the recipient of more DOL assistance than others. Questions would include: Are there revolving door relationships with these law firms, i.e., have any attorneys at these firms worked at EBSA, and have any EBSA attorneys worked at these firms? What does a search of emails and call logs between DOL and the firms reveal? To what extent do DOL employees communicate with plaintiffs’ law firms using unofficial channels, such as personal cell phones or personal email accounts?
The IG describes two “scenarios” where DOL-personnel conflict of interest is clearly at issue:
An individual from a non-governmental entity entered into a common interest agreement with DOL in April 2023. After signing the agreement, this individual served as Senior Counsel to the Secretary of Labor for about 8 months (November 2023 to July 2024), left the Department, and returned to the same non-governmental entity. SOL did not provide details on what role and responsibilities this individual had, if any, after returning to their former non-governmental employer.
In addition, SOL disclosed that a different and current DOL employee was a former student intern at this same entity. This employee was the signatory for the April 2023 agreement as well as three other agreements the non-governmental entity and DOL entered into in 2023 and 2024.
SOL identified one former employee—employed at DOL from February 2022 to May 2025—who was employed at a non-governmental entity before and after their employment with SOL. In addition, we identified one current SOL employee who was previously employed at the same entity from September 2013 to August 2015. The employee joined SOL in August 2015. We determined that SOL entered into six agreements with this entity from January 2023 to March 2024; however, neither SOL employee signed these agreements.
EBSA did not always know when the SOL had entered into a common interest agreement. According to the Report:
SOL took the lead on these agreements but did not always communicate with the agencies on the actions it took. … EBSA and WHD indicated they would not always know if an agreement was implemented unless SOL chose to share that information. There were no formal policies or procedures that required SOL to notify EBSA or WHD when an agreement was executed on their behalf. We found two specific instances in our testing when EBSA and WHD were unaware an agreement had been used.
You would think that, since this program was supposed to aid DOL enforcement efforts, coordination with the subject matter agency – EBSA – would have been essential.
There was no adequate tracking mechanism. Indeed, “DOL was unable to determine with certainty the number of agreements it executed.” This issue – what the IG was in effect unable to find out – raises questions about how big these problems (especially those related to conflicts of interest and bias) actually were. The IG audited “current and former employee email accounts and searched internal drives for information shared through these agreements.” But it “could not determine if additional information – that was not provided to us during the audit – was shared during verbal conversations, in-person meetings, or via personal devices or personal email accounts. As a result, information may have been inappropriately shared but not disclosed.”
The Committee on Education and the Workforce asked several pointed questions about this program. We excerpt some of the most interesting questions/answers below:
Pre-litigation assistance. The Committee asked for the number of instances (during the period January 1, 2023, and June 30, 2025) “in which DOL shared information gleaned from EBSA investigations with outside law firms before any lawsuit had been filed related to the investigation.” EBSA identified one such case.
Provision of non-discoverable information. The Committee asked for the number of instances in which DOL provided plaintiffs’ law firms with information they would not have had access to under normal discovery rules. DOL identified one such case, in which it “shared witness statements from one EBSA investigation.”
DOL responded to certain other committee questions about, e.g., assisting in litigation (for instance, strategy phone calls) and whether there was any favoring of particular law firms with generic denials.
The Committee also asked for DOL’s view of how this program might have affected its reputation. The (new, Trump 2.0) DOL stated:
DOL is aware of actions undertaken during the previous Administration in which the agency entered into common interest agreements with plaintiffs’ law firms and privileged investigative material was shared by the Department with those outside firms. This has the potential to create an appearance of impropriety in the use of common interest agreements and could present reputational risk and the potential for legal risk to DOL. Some risks include waiving the ability to invoke privileges, protecting the confidentiality of materials in the future, or adversely affecting the Department’s enforcement efforts…. If the American people suspect that the Department is sharing information to enrich plaintiffs’ law firms, this may erode public trust in DOL and cause reputational harm.
We suspect that this policy will persuade some sponsors/sponsor fiduciaries to think seriously before cooperating in – and will be more likely to bring counsel to – certain DOL investigations.
In describing DOL’s response to the Committee’s questions about, e.g., pre-litigation assistance, sharing of non-discoverable information, assisting with litigation, and favoring certain law firms, the IG noted that because of DOL’s lack of documentation and monitoring, it was unable to determine if DOL had actually identified all instances of the identified “problematic” DOL conduct.
For instance, with respect to the Committee’s question about pre-litigation information sharing, the IG stated: “Due to DOL’s lack of tracking for common interest agreements, there was no way to ensure the agencies provided us with all electronic documentation. In addition, the agencies did not document verbal interactions, such as telephone or virtual conversations and in-person meetings, with the law firms. As such, we were unable to determine if investigative information was electronically or verbally shared with outside law firms prior to legal proceedings.”
This is all pretty disturbing. To put it bluntly: DOL is literally feeding information to a plaintiffs’ law firm to, in effect, encourage litigation against sponsors. Said differently, one might say that fiduciary litigation is doing the work that one would expect to be done by DOL’s Enforcement division. An even better solution, however, could be for EBSA to make an effort to clear up the legal issues that have led to this litigation – something the current version of EBSA is proposing.
What’s unclear is what we said above: is this everything (in which case it seems pretty limited) or simply the tip of an iceberg?
We will continue to follow this issue.
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