Negotiating the Participant-Data Clause: Recordkeeping Agreements for Plan Sponsors in the 2026 RFP Cycle

This session examines the current regulatory, litigation, and market landscape governing how retirement plan recordkeepers use, share, and restrict participant data — and what plan sponsors can realistically demand in 2026 RFP negotiations. Attorneys will learn the specific contract provisions recordkeepers resist, the GAO and DOL frameworks creating negotiating leverage, and the litigation precedents shaping what courts and settling parties have treated as acceptable data-use restrictions. Attendees leave with a clear map of what is legally at stake, what contractual silence means under current law, and where the unresolved ERISA plan-asset question creates fiduciary exposure.

This session teaches plan sponsors and their ERISA counsel how to draft enforceable participant-data clauses in recordkeeper agreements and how to build the fiduciary committee’s monitoring file to document ongoing compliance. Attorneys will work through each structural element of a data clause — permitted-use restrictions, audit rights, breach notification, data portability, and unilateral-action limits — against the backdrop of the Williams-Linzey litigation, DOL Cybersecurity Compliance Assistance Release No. 2024-01, and the 2022 ERISA Advisory Council report. Attendees leave with a clause-by-clause drafting framework and a monitoring-file checklist ready for the 2026 RFP cycle.