FIDUCIARY REQUIREMENTS FOR DISCLOSURE IN PARTICIPANT-DIRECTED

INDIVIDUAL ACCOUNT PLANS

September 5, 2008

James R. GriffinJackson Walker L.L.P.jgriffin@jw.com • 214-953-5827

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• Proposed Regulations issued by U.S. Department of Labor on July 23, 2008

• Written comment period ends September 8, 2008

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• 437,000 participant-directed individual account plans

• 65 million participants

• $2.3 trillion in assets

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DOL’S CONCERN

• Participants are making un-informed decisions in the investment of their accounts: Employers are not providing enough information Employees are not considering the information that they receive

• Information related to: Account management Investment choices Fees & expenses

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DOL’S VIEW

• Fiduciary Duty

• Plan fiduciaries must take steps to ensure that participants and beneficiaries are made aware of their rights and responsibilities with respect to managing their individual plan accounts and are provided sufficient information regarding the plan, including its fees and expenses, and designated investment alternatives, including fees and expenses attendant thereto, to make informed decisions about the management of their individual accounts.

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• 404(c) is voluntary

• Not all employers are providing the necessary information.

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GOAL OF NEW PROPOSED REGULATIONS

• Provide access to basic plan and investment information

• Establish uniform, basic disclosures for participants and beneficiaries

• Provide investment related information in a form that encourages and facilitates a comparative review among investment options

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DOL COMMENT LETTERS

• http://www.dol.gov/ebsa/regs/cmt-feedisclosures.html

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RELATED ACTIVITY• SEC proposed regulations requiring a summary prospectus with

additional web-based disclosures

• 401(k) fee litigation

• Expanded disclosure on Schedule C to Form 5500 for plan years beginning in 2009

• Possible Federal legislation

• DOL proposed regulation relating to disclosures by service providers (December 13, 2007)

• DOL proposed regulation related to investment advice

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GENERAL RULE: 2550.404a-5(a)• Fiduciaries must take steps to ensure that participants

and beneficiaries, on a regular and periodic basis, are made aware of their rights and responsibilities with respect to the investment of assets held in, or contributed to, their accounts and are provided sufficient information regarding the plan, including fees and expenses, and regarding designated investment alternatives, including fees and expenses attendant thereto, to make informed decisions with regard to the management of their individual accounts.

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• Plan-Related Information

• Investment-Related Information

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PLAN RELATED INFORMATION: 2550.404a-5(c)

• General plan information

• Administrative expense information

• Individual expense information

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General Plan Information 2550.404a-5(c)(1)

• On or before the date an individual is eligible to become a participant or beneficiary, and at least annually thereafter:

How participants and beneficiaries may give investment instructions Any specified limitations on such instructions, including any restrictions

on transfer to or from a designated investment alternative; The exercise of voting, tender and similar rights appurtenant to an

investment in a designated investment alternative as well as any restrictions on such rights;

The specific designated investment alternatives offered under the plan; Any designated investment managers to whom participants and

beneficiaries may give investment directions.

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General Plan Information 2550.404a-5(c)(1)

• Participants and beneficiaries must be furnished a description of any material changes to the required information not later than 30 days after the date of adoption of such changes.

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Administrative Expense Information 2550.404a-5(c)(2)

• On or before the date an individual is eligible to become a participant or beneficiary, and at least annually thereafter:

Participants and beneficiaries must be furnished an explanation of any fees and expenses for plan administrative services (e.g., legal, accounting, recordkeeping) that may be charged against their accounts and the basis on which such charges will be allocated to, or affect the balance of, each individual account (e.g., pro rata, per capita).

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Administrative Expense Information 2550.404a-5(c)(2)

• At least quarterly:

Participants and beneficiaries must be furnished statements of the dollar amounts actually charged during the preceding quarter to the participants' or beneficiaries' accounts for administrative services, and general descriptions of the services to which the charges relate.

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Individual Expense Information 2550.404a-5(c)(3)

• On or before the date an individual is eligible to become a participant or beneficiary, and at least annually thereafter:

Expenses that are assessed on an individual-by-individual, rather than plan-wide, basis.

Such expenses might be attendant to a qualified domestic relations order, a participant loan, or investment advice services.

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Individual Expense Information 2550.404a-5(c)(3)

• At least quarterly

The dollar amount actually charged during the preceding quarter to the participant's or beneficiary's account for individual services,

A description of the services provided to the participant or beneficiary for such amount (e.g., fees attendant to processing plan loans).

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INVESTMENT RELATED INFORMATION: 2550.404a-5(d)

• Information to be provided automatically

• Format

• Information to be provided subsequent to investment

• Information to be provided upon request

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Information to be Provided Automatically

2550.404a-5(d)(1)• On or before the date an individual is eligible to become a participant

or beneficiary, and at least annually thereafter:

Identifying Information

Performance Data

Benchmarks

Fee and Expense Information

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Identifying Information 2550.404a-5(d)(1)(i)

• Name of the designated investment alternative;• Internet Web site address with supplemental information regarding

the designated investment alternative, including: the name of the investment's issuer or provider, the investment's principal strategies and attendant risks, the assets comprising the investment's portfolio, the investment's portfolio turnover, the investment's performance and related fees and expenses;

• Type or category of the investment (e.g., money market fund, balanced (stocks and bonds) fund, large-cap fund);

• Type of management utilized by the investment (e.g., actively managed, passively managed).

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Performance Data 2550.404a-5(d)(1)(ii)

• For fixed rate investments, both the fixed rate of return and the term of the investment;

• For other investments, the average annual total return (percentage) of the investment for the 1-year, 5-year, and 10-year periods, measured as of the end of the applicable calendar year;

• A statement that an investment's past performance is not necessarily an indication of how the investment will perform in the future.

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Benchmarks 2550.404a-5(d)(1)(iii)

• For designated investment alternatives with respect to which the return is not fixed, the name and returns of an appropriate broad-based securities market index over the 1-year, 5-year, and 10-year periods comparable to the performance data periods provided under paragraph (d)(1)(ii) of this section, and which is not administered by an affiliate of the investment provider, its investment adviser, or a principal underwriter, unless the index is widely recognized and used.

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Fee and Expense Information 2550.404a-5(d)(1)(iv)

• For fixed rate investments, the amount and a description of any shareholder-type fees that may be applicable to a purchase, transfer or withdrawal of the investment in whole or in part.

• For other investments:

the amount and a description of each shareholder-type fee (i.e., fees charged directly against a participant's or beneficiary's investment), such as sales loads, sales charges, deferred sales charges, redemption fees, surrender charges, exchange fees, account fees, purchase fees, and mortality and expense fees;

the total annual operating expenses of the investment expressed as a percentage (e.g., expense ratio); and

a statement indicating that fees and expenses are only one of several factors that participants and beneficiaries should consider when making investment decisions.

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Comparative Format 2550.404a-5(d)(2)

• Chart or similar format designed to facilitate a comparison of information for each designated investment alternative available under the plan, as well as: a statement indicating the name, address, and telephone

number of the fiduciary (or a person or persons designated by the fiduciary to act on its behalf) to contact for the provision of the information required to be provided upon request, and

a statement that more current investment-related information

(e.g., fee and expense and performance information) may be available at the listed Internet Web site addresses.

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Information to be Provided Subsequent to Investment

2550.404a-5(d)(3)

• Any materials provided to the plan relating to the exercise of voting, tender and similar rights related to the investment to the extent that such rights are passed through to the participant or beneficiary under the terms of the plan.

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Information to be Provided Upon Request

2550.404a-5(d)(4)

• Prospectuses, including short form or summary prospectus;• Financial statements or reports, such as statements of additional

information and shareholder reports, and of any other similar materials relating to the plan's designated investment alternatives, to the extent such materials are provided to the plan;

• A statement of the value of a share or unit of each designated investment alternative as well as the date of the valuation; and

• A list of the assets comprising the portfolio of each designated investment alternative which constitute plan assets and the value of each such asset (or the proportion of the investment which it comprises).

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Method of Disclosure

• Summary Plan Descriptions• Benefit Statements• Model Disclosure• Electronic Disclosure

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Regulatory Impact Analysis

• DOL estimates that the aggregate cost of initial compliance with the new proposed regulations for all 437,000 plans would be $24,690,000.

• Assumptions:

½ hour of lawyer’s time per plan

In house rate of $113 per hour

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