408(b)(2) was designed to give plan fiduciaries the information needed to evaluate what they pay for retirement plan services. Seventeen years of Form 5500 data show it has not worked. The reason is structural as the regulation is built on projections rather than actuals, percentages rather than dollars, and a one-time disclosure rather than a recurring moment of accountability. Quarterly invoicing replaces the broken mechanism with a superior one. One paragraph added to ERISA. Several provisions struck. A reasonable estimate of 50 to 60% reduction in compliance burden for service providers and 60 to 70% for plan sponsors. Better outcomes than the current system produces. Here is the provision by provision accounting.

The framework for identifying genuinely excessive retirement plan fees already exists. Daniel Aronowitz built it. Applied to small plan recordkeeping and advisory fees, where services are standardized and comparisons are reliable, it points to fee dispersion that warrants serious EBSA scrutiny.

Field Assistance Bulletin 2026-01 generated immediate and thorough commentary from the ERISA bar. Every major analysis was accurate, professional, and written entirely for large plan clients. The Am Law 100 firms that cover ERISA serve Fortune 500 companies and institutional fiduciaries — a narrow slice of a market with 836,000 plans in it. 91% of those plans have fewer than 100 participants. The two words in FAB 2026-01 most relevant to that market — loyalty and egregious — appeared in none of the published analysis in that context. This post explains what those words actually mean for the small plan market, why asset-based advisor compensation is a loyalty question and not merely a prudence question, and why the fidelity bond enforcement priority named in the FAB points directly at the plans the published commentary ignores.

Field Assistance Bulletin 2026-01 received substantial coverage when it was issued on April 14. Every published reaction focused on the shift away from ESOP enforcement, the loyalty-over-prudence priority, and the prohibition on regulating by enforcement. None of them noted the most significant detail in the document. To my knowledge, this is the first FAB in the 24-year history of the bulletin program to designate fidelity bond violations as a named enforcement priority with a specific completion timeline. That is not a technical footnote. It is a structural change in how EBSA intends to approach a requirement that has existed since 1974 and has rarely been systematically enforced. This post explains what changed, why it matters, and what plan sponsors should do about it.

For years, regulators and industry participants have debated who should be considered a fiduciary, focusing on definitions, standards, and rollover advice. But this debate overlooks a more fundamental issue: how advice is paid for and experienced. When fees are not invoiced, services are not clearly defined, and costs are not experienced in real time, neither plan sponsors nor participants can evaluate value or behave like true buyers. This lack of price visibility and accountability allows conflicted incentives and misaligned compensation to persist, even under fiduciary frameworks. Repeated efforts to expand fiduciary definitions have led to litigation without materially changing these underlying dynamics. A functioning market requires more than labels. It requires transparent pricing, explicit scope, and a mechanism for ongoing evaluation. Without those, the system cannot discipline itself.

Discrimination testing has governed 401(k) plans for more than 50 years, yet there is little evidence that it improves outcomes for non-highly compensated employees. At the same time, plan design features like auto-enrollment and escalation have proven effective in increasing participation. If the goal is better outcomes, it may be time to reconsider whether compliance testing is the right tool.

Most plan sponsors don't know who their advisor is, mainly because the advisor often makes little or no effort to reach out and nothing in the 401(k) system ever tells them. No bill arrives, no name appears, and when personnel change the relationship drifts quietly into the background while the fee runs on. A simple invoice with a service description would fix most of that.