The Surgical Amendment post walked through what provisions of 408(b)(2) become redundant once quarterly invoicing replaces projection based disclosure. This post does the affirmative side. Here is the actual statutory text that would add the invoicing requirement to ERISA.The following statutory text would amend Section 408(b)(2) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1108(b)(2)) by designating
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Two Reform Efforts, One Structural Problem
By Paul Sippil
Two reform conversations are moving through Washington right now. One concerns pharmacy benefit managers. The other concerns retirement plan service providers. They are usually treated as separate policy areas with separate constituencies and separate committee jurisdictions, but structurally, they are the same problem.In both markets, the nominal purchaser is a fiduciary buying services on behalf of beneficiaries. In pharmacy benefits,…
The Surgical Amendment: What Invoicing Replaces in 408(b)(2) and What Stays
By Paul Sippil
408(b)(2) was designed to give plan fiduciaries the information they need to evaluate service provider compensation. It has not fully achieved that purpose. Seventeen years of Form 5500 data covering thousands of plans, based on my analysis, documents the result: asset-based advisor compensation growing automatically without plan sponsor awareness, advisor compensation continuing after death without detection, including cases where compensation…
The Test Already Exists – EBSA Just Hasn’t Applied it to the Right Market
By Paul Sippil
Daniel Aronowitz Gave Us the Test. Here’s What It Shows About Small Plan Recordkeeping.Daniel Aronowitz, now EBSA’s Assistant Secretary, spent years arguing that excessive fee litigation was broken because plaintiff attorneys were using bad comparisons. He was largely right. The cases against large university plans routinely used unreliable benchmarks, inflated Form 5500 data, and compared materially different services as if…
Field Assistance Bulletin 2026-01 and the 88%: What the ERISA Bar Missed
By Paul Sippil
FAB 2026-01 has generated substantial commentary from the ERISA bar. Proskauer, National Law Review, ASPPA-Net, PSCA, and others all covered it within 48 hours. The analysis has been thorough and professional, but it has also been written entirely for large plan clients. The Am Law 100 is the annual ranking of the 100 highest-grossing law firms in the United States.…
EBSA’s New Enforcement Bulletin: What the Trade Press Missed
By Paul Sippil
EBSA issued Field Assistance Bulletin 2026-01 on April 14. The trade press covered it, but nobody noted the most significant detail. To my knowledge, this is the first FAB in the 24-year history of the bulletin program to designate fidelity bond violations as an enforcement priority with a specific completion timeline.Every prior FAB addressed how to apply ERISA’s rules including…
The Fiduciary Illusion
By Paul Sippil
For years, the industry has been debating who should be considered a fiduciary. Should brokers be held to a fiduciary standard? Should rollover advice trigger fiduciary status? Where should the line be drawn? But this debate has always seemed incomplete. It assumes the problem is how we define advice, but the deeper issue is how advice is paid for and…
Fifty Years of Testing Without Proof of Results
By Paul Sippil
Discrimination testing has been part of the 401(k) system for more than 50 years and was designed to ensure that plans benefit rank and file employees, not just owners and highly compensated employees. It was introduced to address real abuses in earlier plan designs, but it is worth asking whether it continues to function as intended.There is no shortage of…
Invoices Would Change How Plan Sponsors Use Their Advisor
By Paul Sippil
A CFO leaves. The 401(k) advisor keeps getting paid. The fee runs automatically, the new person inherits a plan they don’t fully understand, and the advisor never gets the call that would let them re-establish the relationship.I’ve seen this pattern hundreds of times. The plan sponsor has no idea who their advisor is. The person who hired them left three…
Who Does ERISA Litigation Actually Protect?
By Paul Sippil
A Davis & Harman analysis of 27 disclosed ERISA settlements in 2025 found that the median recovery for individual plan participants was $67.79. Attorneys on average received $1.59 million per case and $18,830 for every dollar that class members received.And this system is worse than merely inefficient because it actively targets plans with the lowest fees while ignoring plans…