DOL Retirement Plan Fee and Expense Disclosures: Tackling Complex 408(b)(2) Questions

Looking at What Worked and What Needs Improvement in the First Round of 408(b)(2) Disclosures for Service Providers and Plan Sponsors

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Wednesday, September 12, 2012

Recorded event now available

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Program Materials

This CLE webinar will identify the recurring questions that have arisen for benefits counsel encounter when obtaining service provider disclosure requirements under Rule 408(b)(2), as well as the best means for fiduciaries to effectively use that information when outlining plan costs to participants.


The U.S. Department of Labor final disclosure requirements for ERISA plan service providers became effective July 2012. Rule 408(b)(2) requires plans to provide administrative and investment costs to plan sponsors for use in their own fee disclosures to participants, but there is much confusion.

Questions of process and content persist for service providers and plan fiduciaries alike. Benchmark analysis to determine reasonableness of costs is a key challenge, including deciding who pays for experts. Another key uncertainty is determining what factors beyond price need to be examined.

Fiduciaries must also determine how 408(b)(2) responsibilities are different from their ever-present obligations to determine the need for services and reasonableness of fees. And what are the obligations for service providers that are also responsible plan fiduciaries?

Listen as our panel of experienced ERISA attorneys reviews common and recurring questions about the proper way to disclose information, assessing whether a service provider arrangement is reasonable, avoiding common errors, and adopting best practices for fiduciaries to prepare participant disclosures.



  1. Introduction and overview of disclosure requirements under 408(b)(2) and related rules
  2. Benchmarking
    1. Undertaking a benchmarking analysis and other obligations to assess whether their arrangement with a covered service provider is “reasonable”
    2. How fiduciaries benchmark—methods and plans
    3. Choosing benchmarking experts
    4. Who pays for experts
    5. How often is the need to hire outside experts
    6. What to do after obtaining benchmarks
    7. Frequency of sending out RFP
    8. What to do re: regulations saying price is not the only item to be evaluated
  3. The experience for responsible fiduciaries
    1. Responsible fiduciaries’ preexisting responsibility to determine need for services and reasonableness of fees—how following the regulation improved or hindered that process
    2. Whether responsible fiduciaries found the information useful in preparing participant disclosures
  4. Assessing compliance by service providers
  5. Treatment of service providers that are also responsible plan fiduciaries
  6. Participant disclosure—was plan fiduciary or HR department ready for increased participant questions?
  7. Common difficulties and questions


The panel will review these and other key questions:

  • When undertaking a benchmark analysis, what do plan fiduciaries have to do to assess whether a service plan arrangement is reasonable?
  • Who pays for outside experts evaluating service costs—the plan or the plan sponsor?
  • What should plan fiduciaries do when receiving incomplete or inadequate disclosures?
  • What obligations are there for a service provider that is also a plan fiduciary beyond appointing an investment manager?

Following the presentations, the speakers will address your specific questions during the interactive Q&A.


Sarah E. Downie
Sarah E. Downie

Orrick Herrington & Sutcliffe

She advises plan sponsors, employers, management and executives on all aspects of compensation and benefits, including...  |  Read More

Jeffrey Lieberman
Jeffrey Lieberman

Clifford Chance

His practice specializes in employee benefits and executive compensations. He is a regular publisher of articles on...  |  Read More

Adrienne A. Scerbak
Adrienne A. Scerbak

Of Counsel
Winston & Strawn

She focuses her practice in the area of Title I of ERISA, advising private equity, real estate, and hedge funds as...  |  Read More

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