401(k) Plan Fees: A Trifecta of Governmental Oversight

Arguably, 401(k) plan fees are the biggest policy issue in the retirement world today. They potentially raise questions about the fundamental business underpinnings of the principal form of retirement savings for the last twenty years. As an indication of their significance, three branches of the federal government: administrative, judicial, and legislative are currently and simultaneously addressing 401(k) plan fees.

This Article will not attempt to provide a comprehensive discussion of 401(k) plan fees and all of the issues that they raise. Instead, the Article will focus on recent governmental activity regarding 401(k) plan fees. It will begin by discussing three recent DOL initiatives governing the disclosure of plan fees: (1) the revision of Form 5500, and particularly Schedule C; (2) the proposed section 408(b)(2) regulations; and (3) the proposed section 404(a)/404(c) regulations. The Article will then turn to the 401(k) plan fee litigation. Specifically, it will discuss two leading decisions, Haddock v. Nationwide Financial Services and Hecker v. Deere, which represent opposite ends of the spectrum of judicial resolution of 401(k) plan fee disputes. Finally, the Article will discuss recent legislative proposals to mandate greater disclosure of 401(k) plan fees.