I have had only limited bkgrnd with ESPPs and recently had posed to me the question of whether or not Sec. 423 ESPP's are governed by ERISA. Having some familiarity with Microsoft, I recall that it was determined in that case that the ESPP was NOT governed by ERISA. However, I am wondering by what authority that was decided. The specific issue that came up was whether or not the ESPP in question is required to have a trust established in conjunction with the Plan. Any pointers in the right direction would be most helpful. (since ERISA is NOT my specialty!)

Section 423 plans are not subject to ERISA. DOL Advisory Opinion Letter No. 90-17A.