Category: 408(b)(2)


Disclosures for Individual Brokerage Accounts

Posted on September 24, 2012, by Fred Reish in 404a-5, 408(b)(2), Broker-Dealers, DOL Activity. Comments Off on Disclosures for Individual Brokerage Accounts

In DOL Field Assistance Bulletin (FAB) 2012-02R, the Department of Labor explained the disclosures for individual brokerage accounts in participant-directed plans. I am concerned that many broker-dealers have not focused on these new “requirements.” That is true for several reasons, including:

So much money and energy have been devoted to complying with the plan disclosure requirements, that is, the 408(b)(2) disclosures.
The 404a-5, or participant, disclosure requirements are imposed on plan sponsors, in their fiduciary capacity. Stating this slightly differently, the participant disclosures for brokerage accounts are not imposed on broker-dealers, but instead are placed on the shoulders of the plan sponsors. Since it is not a legal responsibility for broker-dealers, it has not received the same attention as the 408(b)(2) disclosures. However, as a practical matter, plan sponsors will turn to the broker-dealers and insist that they satisfy those disclosure requirements. That seems … Read More »


Asset Allocation Models

Posted on September 4, 2012, by Fred Reish in 404a-5, 408(b)(2), DOL Activity. Comments Off on Asset Allocation Models

Based on the DOL guidance in FAB 2012-02, many advisers have concluded that asset allocation models (AAMs) can be offered to plans without the need to treat them as designated investment alternatives (DIAs) and, therefore, without the need to report the performance history, expense ratios, etc., of the AAMs.

Unfortunately, that is an oversimplification and may inadvertently lead to problems under both the 408(b)(2) and 404a-5 regulations. 


408(b)(2) and Plan Sponsors

Posted on August 20, 2012, by Fred Reish in 408(b)(2), fiduciary, Plan Sponsors. Comments Off on 408(b)(2) and Plan Sponsors

My law firm recently published a bulletin about the responsibilities of plan sponsors, as the “responsible plan fiduciaries,” for reviewing the 408(b)(2) disclosures of covered service providers. A copy of the bulletin can be found at:

http://www.drinkerbiddle.com/resources/publications/2012/
ERISAServiceProviderDisclosuresWhatPlanSponsorsNeedtoDoNow?Section=Publications

While many plan sponsors and almost all advisers understand that fiduciaries must evaluate the compensation of service providers to ensure that it is reasonable, there are other requirements which are less well understood.

For example, there is a requirement that plan sponsors review the disclosures as soon as reasonable to determine whether they have received disclosures from all of the covered service providers and whether the disclosures are complete (that is, whether they include all of the required information). And, it appears that at least part of the review needs to be done by the end of August.

If a plan did not receive disclosures from all … Read More »


Hedge Funds and Prohibited Transactions

Posted on July 12, 2012, by Fred Reish in 408(b)(2), Broker-Dealers. Comments Off on Hedge Funds and Prohibited Transactions

In working with broker-dealers and RIAs, I have come to realize that there is some misunderstanding about the application of ERISA’s provisions to investments in hedge funds.

If ERISA plan fiduciaries are given “individualized” advice based on the “particular needs” of the plan (such as asset allocation or non-correlated investments), then the recommendation of an investment in a hedge fund is like any other recommended investment. That is, it can be a fiduciary act by the broker-dealer or the RIA firm.


408(b)(2) Disclosures and Referrals to Investment Managers

Posted on June 27, 2012, by Fred Reish in 408(b)(2). Comments Off on 408(b)(2) Disclosures and Referrals to Investment Managers

The 408(b)(2) regulation requires a number of disclosures, including two status disclosures. Those are: Whether the service provider is acting as an ERISA fiduciary; and whether the service provider is acting as an RIA.


408(b)(2) Disclosures for Related Parties

Posted on June 20, 2012, by Fred Reish in 408(b)(2), Broker-Dealers, fiduciary, Registered Investment Advisers, RIA, Service Providers. Comments Off on 408(b)(2) Disclosures for Related Parties

One of our concerns about disclosures by broker-dealers (and affiliated RIAs) is that they may not fully appreciate the concept of related parties under the 408(b)(2) regulation.

When a broker-dealer is a covered service provider and contracts with others to provide some of the services, the broker-dealer and those other parties are “related” for purposes of the regulation and its disclosure requirements. In those cases, the compensation of the related party (as opposed to the broker-dealer) must be disclosed if it is (1) transactional or (2) charged against the plan’s investments. In some cases, there may be other required disclosures.


Adequacy of Disclosures

Posted on June 13, 2012, by Fred Reish in 408(b)(2), Broker-Dealers, DOL Activity, fiduciary, prohibited transaction, Registered Investment Advisers, RIA. Comments Off on Adequacy of Disclosures

As we get closer to the July 1, 2012 deadline for 408(b)(2) disclosures, more issues emerge concerning the adequacy of disclosures. Of particular concern is the requirement that the disclosures include both monetary and non-monetary compensation. For example, where a mutual fund family or insurance company subsidizes broker-dealer or RIA conferences for plan sponsors or advisers, there is at least an issue of whether those subsidies should be disclosed to the plan sponsor clients of those RIAs or broker-dealers. Another example is where a mutual fund complex or insurance company pays for advisers to attend conferences.


408(b)(2) Compliance

Posted on June 7, 2012, by Fred Reish in 408(b)(2), DOL Activity, fiduciary, Service Providers. Comments Off on 408(b)(2) Compliance

As you know, I have done a series of short articles about overlooked and misunderstood issues for 408(b)(2) compliance. This article continues that series.


408(b)(2) Disclosures for Solicitor’s Fees

Posted on May 29, 2012, by Fred Reish in 408(b)(2), prohibited transaction, Registered Investment Advisers, RIA, Service Providers. Comments Off on 408(b)(2) Disclosures for Solicitor’s Fees

In my last article, I discussed our concerns about the lack of awareness of discretionary investment managers concerning 408(b)(2) disclosures. This article addresses another one of our concerns . . . 408(b)(2) disclosures by advisers who refer investment managers and receive solicitor’s fees.


ERISA Disclosures for Discretionary Investment Managers

Posted on May 17, 2012, by Fred Reish in 408(b)(2), prohibited transaction, Service Providers. Comments Off on ERISA Disclosures for Discretionary Investment Managers

Covered service providers must make their 408(b)(2) disclosures by July 1, 2012—just weeks away. The failure to make those disclosures will cause their agreements with ERISA plans to become prohibited transactions, resulting in re-payments of compensation to the plans, taxes, interest and penalties.




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