Responding to the comments of the benefits community, the U.S. Department of Labor has revised its enforcement guidance on the applicability of participant-level fee disclosure requirements to investments made through brokerage windows. 

In May, the DOL issued a field assistance bulletin that surprised many plan sponsors. It stated that the requirement to disclose fee information to participants about investment alternatives specifically made available under a defined contribution plan could apply to certain investments made by participants through brokerage windows or comparable arrangements. On July 30, the DOL reversed its course, issuing a revised bulletin that eliminates the requirement to disclose fee information to participants for all investments made available to participants solely through brokerage windows or comparable arrangements.

While ERISA fiduciaries will welcome this news, the relief offered by the revised bulletin is limited in some respects.  For example, all participant-directed investments under defined contribution plans, including brokerage windows and similar arrangements, remain subject to plan-related disclosure requirements, such as the requirement to provide participants with information about administrative fees and expenses.  Moreover, the bulletin suggests that ERISA fiduciaries retain additional obligations concerning investments under a brokerage window or similar offering that the DOL intends to define by working with the benefits community to establish "a practical and cost-effective" approach.

Ballard Spahr’s Employee Benefits and Executive Compensation Group assists employers in understanding their fiduciary obligations, and can help develop policies and procedures to document the exercise of your organization’s fiduciary responsibilities regarding the investment and administration of plan assets. If you have questions, please contact Clifford J. Schoner at or 215.864.8626.

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