4 Ways the New 408(b)2 Disclosure Regulations Will Benefit Plan Sponsors

The new 408(b)2 disclosure regs have been long awaited, and present a great opportunity for companies to better understand and benchmark the fees associated with their 401(k) provider. Additionally, it will be require 401(k) service providers to better articulate value in light of the fees they charge. ERISA requires plan fiduciaries to review the fee structure of, and I paraphrase, “reasonable fees for reasonable service.” What is reasonable? That is for plan fiduciaries to determine via the value proposition delivered by 401(k) service providers, which includes recordkeepers, TPAs, custodians, advisors and yes, participant advice providers.

While the impact of this disclosure does not directly impact us as a 401(k) participant advice provider since we have been transparent and conflict-free from the start, there are a lot of benefits for the companies and employees we serve. Here are a few:


  1. Service Providers Must Disclose Whether They are Fiduciaries – There is so much confusion over this issue, it is great to see the regulations require this so to clarify for plan sponsors who is and who is not acting as a fiduciary. Most plan fiduciaries have been confused by this over the proliferation of the terms used by service providers such as fiduciary, co-fiduciary, fiduciary warrant and especially advice, which automatically makes someone a fiduciary. Per InvestmentNews.com:

    “Along with requiring bundled service providers to break out costs of their record-keeping services, the new regulation also requires providers to disclose whether they are acting as fiduciaries to plans.”
  2. Disclosure Simplifies Plan Reviews and Benchmarking – Understanding value will be much easier if there is some standardization and definition of what services are to be included under each term. Making an apples to apples comparison is critical for making a large decision on a large purchase, such as a 401(k) service provider. 
  3. Independence and Conflicts to be Better Articulated – Understanding the inherent conflicts of interest with various service providers. Per InvestmentNews.com,

    “Under the rule, consultants — and many plan service providers — will be required to reveal to DB and DC plan sponsors
    hitherto undisclosed compensation they are receiving, including any revenue sharing or finder’s fees.”
  4. Transparency Improves ClarityIt is obvious, but understanding what plans are paying for various providers has been extremely difficult to understand for many companies. Including us. We do not do plan-level consulting work, but when we are working on a plan that has a fiduciary plan consultant, the quality of the plan has a distinctly different flavor than the plans that do not. Service and value are the at the crux of the conversation, which ultimately resonate in greater outcomes for participants. Per InvestmentNews.com,



Alison Borland, retirement strategy leader at unbundled provider Hewitt Associates, Lincolnshire, Ill., said: “The regulations will put different types of service providers, including bundled and unbundled providers, on a level playing field.”

“Ultimately that means better transparency, more negotiating power and lower total costs for plan sponsors and plan participants.”
Cheaper is not always better. Receiving the best value for a reasonable cost is all this disclosure regulation is aiming at in our humble opinion, which is great for plan fiduciaries and their participants, which includes themselves.


  1. Jim Geld on July 27, 2010 at 5:22 pm

    The opportunity to see the “fully bundled” programs unlock their fees almost boggles the mind. Finally we will be able to show the benefits of “universal access” programs in a strategic alliance.

  2. Brad Hyde, QPFC, AIF on July 27, 2010 at 5:28 pm

    I cannot wait for these rules to be put in place. We RIA’s will finally have a level playing field since we have been practicing full fee disclosure all along.

  3. Chad Griffeth on July 27, 2010 at 5:30 pm

    I agree on both counts, and feel that this only will benefit the improved fiduciary oversight and education of plan sponsors, which ultimately benefits participant outcomes.

  4. Alexander G. Assaley, III AIF on July 27, 2010 at 9:44 pm

    I agree with each of your comments and applaud the DOL’s steps to require disclosure of fees and services. I would have liked to have seen stronger disclosures regarding fiduciary / non-fiduciary capacity, but we shall see if the SEC and potential Congress take care of this with a universal fiduciary standard. Lastly, it is important for truly qualified retirement plan advisers to help communicate and educate the plan sponsor community on the requirements and importance of this reg; otherwise I still foresee many plans with undisclosed or excessive costs – and therefore, not in compliance and not on track for a better plan, come 7/16/11.

  5. Joe Gordon on July 28, 2010 at 6:40 am

    Only thing I dislike is the change to NOT requiring a services agreement with all parties. When people sign something saying the disclosures are valid, they tend not to lie as much and are attesting that they reviewed what they are signing.
    I can foresee instances where brokers bait and switch, and if caught, simply say, “Oops!, sorry! A little sloppy on my part!”