408(b)(2) Guide and More

The DOL recently issued a proposal to require a 408(b)(2) “guide.” The guide has also been referred to as a roadmap. But I think of it as an index to the disclosures.

This is the DOL’s response to their review of provider disclosures and problems the DOL has seen. The DOL has at least two more significant concerns.

The proposal is that plan sponsors be given a stand-alone guide or index to provide directions to where each of the 408(b)(2) disclosures is found in the disclosure documents. It will only apply where covered service providers use multiple or lengthy documents. As a result, it will primarily impact recordkeepers and broker-dealers (as opposed to other covered service providers, such as RIAs and TPAs).

There is time to comment on the proposal. Hopefully, the comments will enable the DOL to find the “fine line” between meaningful disclosure, on the one hand, and overly burdensome requirements on the other.

But, that’s not the end of the story. I have heard of two other DOL concerns. The first is that some covered service providers are not giving fiduciaries information that specifically applies to their plan. For example, the disclosures might instead provide a list of services or compensation amounts that might or might not apply to a particular plan. The Department’s view is that the disclosures should include only the services and compensation for the plan receiving the disclosures. The second concern is that service providers are using overly-broad ranges to make disclosures. For example, if a service provider were to disclose that the fees will be somewhere between 0% and 5%, the Department would likely take the position that the information was not specific enough to enable the responsible plan fiduciaries to evaluate the compensation of the adviser relative to the services being provided.

That’s it for now. But, be forewarned, there is more to come.

As a footnote to these comments, we anticipate that the DOL will begin their first wave of 408(b)(2) investigations in the second half of this year.

To read the Client Alert I co-wrote on this subject in March 2014, visit the Drinker Biddle website here: DOL Proposed Regulation on 408(b)(2) “Guide” – Impact on Service Providers.

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The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Faegre Drinker.