percentage/performance fee based services for ERISA funds

[fidu]

is there an ERISA problem with a fiduciary charging custody clients based on percentage instead of flat fees?

for example, investment managers charging fees based on percentage of return. performance based fees for corporate action services and the like?

any thoughts???

[KJohnson]

You may want to look at the following DOL Opinions-- 89-28A, 86-20A and 86-21A. The notes that I have indicate that they deal with some type of performance based fee although I have not gone back and reread these recently.