On July 22, the House Education and Workforce Subcommittee on Workforce Protections held a hearing where Department of Labor Inspector General Anthony P. D’Esposito testified about his office’s recent report on DOL’s use of common interest agreements. The ESOP Association (TEA) worked with former Committee Chair Virginia Foxx, current Chair Tim Walberg, and Subcommittee Chair Ryan Mackenzie in support of investigating this concerning practice. TEA explained its concerns in a statement submitted for the hearing record.
Common interest agreements are written or oral arrangements that allow parties claiming a shared legal interest to exchange information. At DOL, these agreements have enabled agency investigators to share potentially confidential information with private plaintiffs’ attorneys. Because the Employee Benefits Security Administration (EBSA) can compel sensitive information from plan fiduciaries, this coordination can give private law firms access to evidence and government assistance they could not obtain through ordinary discovery. Worst of all, this information sharing could happen in secret without the affected company or fiduciary knowing it occurred. However, following the OIG report, the DOL is moving to make important changes.
The danger of these agreements became clear in Harrison v. Envision Management Holding, an ESOP class-action lawsuit. After learning of the extensive cooperation between DOL and a private plaintiffs’ law firm, Magistrate Judge Maritza Dominguez Braswell of the U.S. District Court for the District of Colorado warned that the arrangement “could set a dangerous precedent.” Judge Braswell further stated:
“It would allow a government agency to weaponize private litigation against some target before confirming the target should be a target. Moreover, the government could litigate in the shadows, without giving the opposing party an opportunity to adequately probe and defend itself.”
That warning captures the central problem. Government investigative power should not be used as a back channel through which private attorneys obtain information, assistance, or strategic advantages that would not otherwise be available under ordinary discovery rules. TEA took steps to support the congressional oversight measures needed to gain reforms at the DOL.
In its report, the OIG found that DOL lacked adequate controls over these agreements. DOL initially identified 45 agreements from January 2023 through June 2025, later found three more, and still could not ensure that its count was complete. Some agreements were oral; enforcement agencies were not always aware that DOL’s Office of the Solicitor had entered agreements on their behalf; and witness statements unavailable under normal discovery rules were shared with outside private firms. The OIG issued eight recommendations covering standardized written procedures, signatory authority and bias safeguards, agency coordination, centralized tracking of agreements and the information shared, and staff training. DOL leadership has agreed to those recommendations and is working to reform its internal processes related to common interest agreements.
TEA would prefer that DOL end this practice altogether. As long as it continues, however, TEA supports all eight OIG recommendations. We also believe Congress can go even further to ensure sustained transparency over common interest agreements by passing the Balance the Scales Act, H.R. 2958. This bill would require the DOL to report to Congress on its use of common interest agreements and notify employers, plan sponsors, and fiduciaries directly and adversely affected by these arrangements.
TEA will continue to urge Congress to pass H.R. 2958. Employee owners, ESOP companies, plan fiduciaries, and the American taxpayers deserve confidence that DOL’s enforcement powers are exercised fairly, impartially, and transparently.
Additional Information
TEA calls for action on common interest agreements in November 2024 The ESOP Association Applauds Chairwoman Virginia Foxx Calling for Investigation Into U.S. Department of Labor’s Potential Abuse of Authority With Common Interest Agreements | The ESOP Association
Review the testimony of Jim Bonham, President and CEO of The ESOP Association, made in July 2025 about the reforms needed at the DOL, including common interest agreements https://youtu.be/V_Z_QzG3PrY
Read the DOL OIG report here US DOL - Office of Inspector General Report - DOL Needs Stronger Oversight and Controls for Sharing Confidential Information
View the hearing here Broken Trust: How the Biden-Harris DOL Leaked Confidential Information
TEA’s full statement to the House Education and Workforce Committee https://assets-tea.s3.us-east-2.amazonaws.com/assets/public/2026-07/Common%20Interest%20Agreement%20Hearing%20Statement%20final%207.20.26.pdf
