Compliance May 6, 2026

DOL Requests Time in Additional Forfeiture Appeals

The Department of Labor asked for 5 minutes, as it did in a previous case, to argue on behalf of defendants.

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The Department of Labor asked the U.S. 3rd Circuit Court of Appeals to allot a portion of defendants’ oral argument time in two separate forfeiture cases to the department so that it can express its view on the disputes.

Defendants in both Luciano Barragan v. Honeywell International Inc. and Jim Cain v. Siemens Corp. granted the DOL five of their allotted 15 minutes of oral argument time in forfeiture complaints against the companies’ retirement plans. The DOL secured the same agreement for time in a separate forfeiture complaint, Hutchins v. HP Inc., scheduled to be heard by the U.S. 9th Circuit Court of Appeals May 20.

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The 3rd Circuit hears appeals from district courts in Delaware, New Jersey and Pennsylvania.

The request for time continues the department’s active approach in defending employers facing litigation, particularly in forfeiture complaints. In January, the DOL submitted four amicus briefs backing employers in forfeiture disputes, including an amicus brief in each of the three disputes in which the department seeks to argue on behalf of the employers during oral arguments.

According to Encore Fiduciary, 48 forfeiture complaints were filed in 2025, and 29 were filed in 2024. The cases typically center on how a plan sponsor used the plan’s forfeited funds. Previous IRS guidance allows sponsors to use forfeitures to either pay down plan expenses or to offset future employer contributions, if permitted in the plan documents.

Plaintiffs often accuse defendants of violating their fiduciary duties by using the funds to offset future contributions.

Plaintiffs’ arguments have more often been successful when an employer’s plan documents included a specific process for using forfeitures, such as paying down plan expenses before using leftover funds to offset future contributions. The arguments have been less successful when plan documents simply allowed the employer to use the funds for either purpose without a specific order.

Oral arguments in Barragan and Cain will begin on May 27.

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