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

Marcia S. Wagner, Founder and Managing Partner | The Wagner Law Group

Marcia S. Wagner advises fiduciary committees, recordkeepers, broker-dealers, banks, and other financial services firms on fiduciary issues, prohibited transactions, and compliance programs. She also counsels plan sponsors on qualified plans, 403(b) and 457 plans, multiple employer plans (MEPs), IRAs, and ESOPs. She founded The Wagner Law Group, based in Boston, roughly 30 years ago and has practiced employee benefits law for about 40 years.

• Education & Credentials

Ms. Wagner graduated summa cum laude from Cornell University, where she was elected to Phi Beta Kappa, and is a graduate of Harvard Law School.

• Recognition & Leadership

She was appointed Chair of the Employee Plans subcommittee of the IRS Tax Exempt & Government Entities Advisory Committee and received the agency’s highest honor. She is a Fellow of the American College of Employee Benefits Counsel and sits on its Board of Governors, and she serves on the Board of Directors of the American Benefits Council. Her more than 50 professional honors include induction into the Massachusetts Lawyers Weekly Hall of Fame in July 2025.

• Professional Involvement

Her writing on plan data protection includes “Cybersecurity and Retirement Plans: What Plan Sponsors Should Do” (2020) and “The DOL’s New Cybersecurity Audits and Informal Guidance” (2021), and she authored multiple editions of Quick Reference to HIPAA Compliance (Aspen Publishers, 2004–2016). Across hundreds of articles and 24 books, her titles include the co-authored Mandated Benefits compliance guides (Wolters Kluwer) and Advising Small Businesses: Qualified Retirement Plans.
She writes a regular column in 401(k) Advisor, contributes to PLANADVISER, PLANSPONSOR, SHRM, and NAPA outlets, and is frequently quoted in The Wall Street Journal and the Financial Times. She lectures widely, has given governmental testimony, and has appeared on Fox, CNN, Bloomberg, and NBC.

• Experience

Ms. Wagner represents plans and the financial institutions that service them in DOL, IRS, and PBGC audits and has negotiated closing agreements. She has obtained DOL advisory opinions, information letters, and prohibited transaction exemptions, and her practice includes HIPAA privacy and security, fiduciary compliance, and independent fiduciary services.
She serves as an expert witness in ERISA litigation; one court cited her testimony as pivotal and described her experience with 403(b) plans as impressive. Her plan sponsor work spans plan design, drafting, compliance, and tax planning under ERISA and the Internal Revenue Code, along with executive compensation, retiree medical benefits, plan terminations, mergers and acquisitions, and de-risking pension liabilities.

SESSION 1 – What Recordkeepers Will Actually Sign: Participant-Data Restrictions in 2026 | Marcia S. Wagner | 2:30pm – 3:30pm

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.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Drafting Participant-Data Clauses and the Fiduciary Committee’s Monitoring File | Marcia S. Wagner | 3:40pm – 4:40pm

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.