Here’s an email interview with Fred Reish, one of the country's leading ERISA attorneys and an expert on fiduciary responsibility. He has written four books and over 350 articles on employee benefits, IRS and DOL audits, and pension plan disputes and is a shareholder of Reish Luftman Reicher & Cohen. In 2007, he was recognized by 401kWire as the 401(k) Industry’s Most Influential Person.
Fred has graciously agreed to provide his thoughts on the upcoming 408(b)(2) regulation which mandates the disclosure of compensation and conflicts of interest by retirement plan service providers to plan fiduciaries. The regulation was first proposed by the Department of Labor (DOL) in late 2007 as a way to increase the transparency of retirement plans and to shift the burden of disclosure to service providers. ERISA requires that fiduciaries determine whether plan expenses are "reasonable" in light of the services being provided.
Until now, this has been very difficult to do because of the lack of transparency regarding compensation, conflicts and fee arrangements. Since service providers have not been obligated to provide this information it has been difficult for fiduciaries to make an apples-to-apples comparison between plans and providers. Personally, I think this is an important step forward for the industry and should help protect the interests of participants. Better late than never.
1. Could you please provide a brief overview of the upcoming 408(b)(2) regulation?
The proposed regulation has a number of requirements, some of which are very significant and others of which are more detailed. The most significant provisions of the regulation are that all covered service providers (which includes most service providers to ERISA plans) must have written agreements with the plans and must make disclosures about the following matters to the "responsible plan fiduciary;" services provided; direct and indirect fees for those services; and specified conflicts of interest.
2. How does the proposed regulation differ from current practices?
Current practices vary, depending on which category of covered service providers you are talking about. For example, most third party administrators, recordkeepers and RIAs currently have written agreements, but only the RIAs universally do a good job of disclosing conflicts of interest in writing. On the other hand, most broker-dealers do not have specific ERISA written agreements with their plan clients.
3. Could you provide examples of some of the most common conflicts of interest you come across?
A conflict of interest occurs any time a service provider is receiving compensation from two sources. For example, a service provider could be receiving compensation from a plan or plan sponsor and, at the same time, be receiving compensation from investments. Wherever there are two sources of revenue, the obvious question is, who will the service provider be loyal to in the event that the interests are not identical (or, in the future, change so that they are not identical)?
That, and variations of that, are the most common forms of conflicts of interest. In other words, “follow the money.”
4. It seems as though RIAs will be least affected in terms of disclosure. What does the proposed regulation mean for broker-dealers as well as TPAs and/or recordkeepers who may be receiving indirect compensation in the form of 12b-1's and sub-TA fees?
I agree that broker-dealers have the longest way to go. The key issues for broker-dealers is the development and use of a compliant service agreement and the disclosures concerning the services to be rendered to the plan, the methodology of calculation for the amount of the compensation for those services and the disclosures concerning potential conflicts of interest.
With regard to recordkeepers, the issues are somewhat different. For example, most recordkeepers already have agreements with plans. So, they will just need to update those agreements for the changes. The major change is that the recordkeepers will need to formally disclose all of the “revenue sharing” that they are receiving from mutual funds, their managers and affiliates. That consists primarily of 12b-1 fees and subtransfer agency fees. The compensation disclosures will be made as a formula or percentage, since 408(b)(2) requires disclosure prior to the service provider taking over the plan.
5. What are the consequences of failing to comply?
If a covered service provider fails to comply with these rules, the relationship with the plan will become a prohibited transaction. As a result, the service provider will be required to disclose all of its compensation and to pay it to the plan. In addition, there are excise taxes under section 4975 of the Internal Revenue Code.
6. Who is responsible for paying the excise taxes (is it the service provider or the plan sponsor?)
The service provider is responsible for paying the excise taxes.
7. Do you have any idea on when the final regulation will go into effect and how long service providers will have to comply?
At this point, we don’t know when the final regulation will be issued. It could be within the next two weeks or it could be a period of time after that. Check back in a couple weeks.
8. What impact do you think the new regulation will have on the retirement plan industry and how services are delivered to employers and participants?
In general, I believe that the new disclosures will provide plan sponsors with additional information to evaluate the costs and services for their plans. As a result, I think that plan sponsors will pay even more attention to those issues. In addition, I think that the changes favor focused 401(k) advisers and providers. That is, I believe that, for broker-dealers, the changes require additional efforts and expense. That will favor those broker-dealers who are committed to the 401(k) marketplace.