While 401(k) record keepers and service providers are combing through the 408(b)(2) fee disclosure rules with a fine-tooth comb, looking for potential compliance problems, plan sponsors have adopted a wait and see attitude.
During a recent webinar, Fred Reish, partner and chairman of the financial services ERISA team at Drinker Biddle & Reath LLP, expressed concern that the new rules didn’t include a summary or road map requirement like was first discussed, but instead proposed the issuance of a guide.
“They attached a sample guide at the end of the regulation. If you look at the sample guide, it is very detailed and may have some other requirements,” he said. “It will give people indigestion.”
Another point of contention with the new regulation is “the requirement for participant disclosures. It shifts the burden onto the service provider to ensure that the plan sponsor has all the information it needs to satisfy its fiduciary responsibility for delivering participant disclosures,” Reish said. “We all know record keepers will be able to do that, but it was purely a burden on plan sponsors. It has legally shifted onto record keepers now. As a result, it was never presented as an issue. The Department of Labor never allowed the private sector to comment on it or give insights. They were probably thinking it wasn’t that big of a change.”
One of the problems has to do with how to provide this information on alternative investments. If a plan sponsor designates investment alternatives, the participant disclosure information must be disclosed no later than the date the investment is designated by the covered plan, Reish said.
“The record keeper can’t possibly give all participant disclosure information at that time,” he said. That’s because they are expected to disclose operating expenses, historical performance, website information, strategies and investments. “It seems to me if they are working off a large group of funds, it will be very difficult to disclose all that information on all funds before they are designated,” Reish said.
Larry Goldbrum, general counsel for The SPARK Institute, agreed, saying that “record keepers are going to have to think about protocols and practices and how a plan officially designates an investment alternative. This is not a clean issue. Technically, the plan investment committee can designate anything, but when was it officially designated and when was it communicated to the record keeper?”
He added that there are practical issues with the startup for this. How much information do you have available to you with respect to plan investments? Do you have materials readily available to make disclosures?
“I’ve heard from a lot of you, you are struggling with these issues and trying to come up with a workaround. Until there is some further guidance, provide what you can based on what you know and exercise control over at the time of the disclosure to avoid a technical breach.”
Craig Hoffman, ASPPA’s general counsel and director of regulatory affairs, said at the ASPPA conference in New Orleans that, his organization also is concerned with how the definition of designated investment alternative is applied in the context of a model portfolio application. In particular ASPPA is worried about how that plays out into participant level fee disclosure, where more information is needed on each designated investment alternative and the calculation of some of the benchmarks and earnings history is more difficult when dealing with a model portfolio. Another concern is how far service providers have to go to disclose non-monetary compensation.
Reish and Goldbrum also had concerns about non-monetary compensation and how service providers would need to account for them, such as compensation received from the sponsorship of a conference.
David Wray, president of the Plan Sponsor Council of America, said his only request regarding fee disclosure is “something that makes it easier for the plan sponsors to assemble the information from the disclosures so they can do fee benchmarking. Other than that, we have to see how it works before [we] come up with a list [of demands for the Department of Labor].”
He added that plan sponsors haven’t seen how the disclosures are going to be presented so they aren’t in a position to make demands upon the Department of Labor just yet. “Different providers will do it in different ways, some good and some not so good. I think we need to wait and see what happens and see how it works.”