DOL Fiduciary Rule, Pt. 1 (Apr. 5)

Mike & Co. —

Tonight, fingers crossed for the Secretary in the Badger State.

Tomorrow, Labor Secretary Perez will release the final version of the long awaited DOL Fiduciary Rule, ending a long slog toward placing fiduciary responsibilities on myriad investment brokers.  The winners and losers of the Rule aren’t always clear, but one thing is for sure – the amount of coverage and intense lobbying that this ostensibly simple Rule has generated indicates that somebody stands to make a lot of money, and somebody else stands to lose it.

Below is a what-to-look for guide to the outstanding questions the Rule is expected to address.  Tomorrow will feature a summary and analysis of the Rule and its prospects.  Then, Treasury’s inversions initiative.

Best,

Dana

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Questions the Rule May Answer

• Who is to be covered under the Rule?

The Rule will cover any individual who receives payment in exchange for providing investment advice that is specialized to the customer or directed toward a retirement plan sponsor, a plan participant, or an IRA owner.  This means that an adviser is required to provide investment advice that is in the best interest of the investor, and to explicitly disclose fees and commission payments they might receive.

• Who will benefit, who doesn’t? Smaller brokerage firms and individual advisers, particularly those who deal with many small investors, stand to suffer during the transition period.  These groups will need to switch from a commission-based system to accepting annual fees; these fees may not be enough when applied to smaller accounts.  Large firms, which predominantly advise larger investors, and low-cost ETF and Index Mutual Funds stand to see a big payday.  The Rule will likely encourage the use of low-cost investment products like index funds, and larger advising firms already make enough off annual fees to continue operating.

• Will the Rule ever come into effect?Two House bills and three Senate proposals have been put forward to stop the final rule from coming into effect – both House bills would require that the DOL rule be approved by Congress, and would apply looser standards to advisers if the rule was not approved.  The GOP uniformally opposed the proposed rule, and some moderate Democrats have cold feet over it.  If bipartisan support can be built up despite the election year chill, it is possible that the rule won’t see the light of day in its current state.  To combat this, Secretary Perez has been negotiating with Democrats over the past months to make sure their concerns are assuaged in the final Rule.

What’s in a Rule?

The DOL’s proposed definition, released a year ago, identifies a “fiduciary advisor” as any individual receiving compensation for providing advice that is individualized or specifically directed to a particular plan sponsor (e.g. an employer with a retirement plan), plan participant, or IRA owner for consideration in making a retirement investment decision.  This is an exceptionally broad definition and has some brokers spooked.

Some exemptions were included in the 2015 draft of the Rule:

• Principal Transaction Exemption: Allows advisers to recommend certain securities and sell them to the customer directly from the adviser’s own inventory, as long as the adviser adheres to consumer-protective conditions.

• Pre-existing Transaction Exemption (Grandfather clause): Allows advisers to receive on-going compensation payments in connection with a prohibited transaction that was completed before the enactment of the proposed rule, as long as the adviser does not provide additional advice to the plan or IRA regarding the same asset after enactment of the proposed rule.

• Best Interest Contract Exemption:To qualify for the “best interest contract exemption” advisers and firms must enter into a contract with their clients that:

—  commits the firm and adviser to providing advice in the client’s best interest

—  warrants that the firm has adopted policies and procedures designed to mitigate conflicts of interest

—  clearly and prominently discloses any conflicts of interest that may prevent the adviser from providing advice in the client’s best interests

At least two activities will not make someone a fiduciary:

• Education: The DOL Rule will provide a carve-out for people providing investment education, allowing for advisers and plan sponsors to continue to provide general education on investment decisions.

• Order Taking: A broker that is simply executing a trade on behalf of an investor, without providing any investment advice, is not considered a fiduciary.

DOL could bring action against fiduciary advisers who do not provide advice in their client’s best interest, while the IRS may levy excise taxes on transactions that are not eligible for an exemption in the rule.  Clients would also be able to bring action against a fiduciary adviser, both as plan participants and IRA owners.

Winners and losers

The DOL Rule will be a boon for larger brokerage firms, many of which already rely on annual fees from larger investors.  They already have little incentive to offer advice that could violate a fiduciary obligation.  The Rule will also boost investment firms which specialize in low-fee investments, like Vanguard and State Street Global Advisors.  Expect to see the major index mutual fund and exchange-traded fund firms to take an even larger share of stocks as a result.

The transition for brokerages and individual advisers, who often rely on commission compensation to operate, could end up hit hardest by the rule.  They claim that the commission broker’s earn is the only thing that makes advising small investors worthwhile, and that switching these accounts to an annual fee would result in brokers dropping their smallest clients.  Smaller firms have also expressed concerns about being able to pay for ensuring their brokers comply with the DOL Rule.

The administration claims that investors lost between $6 billion and $17 billion per year based on bad investment advice, but has so far had a difficult time providing data to support that claim.  That’s in part to the difficulties inherent in quantifying such a loss – these losses are often caused by perfectly legal actions making it hard to use legal records, and other customers may not know that they’ve been fleeced by their adviser at all.

What’s even less clear is how much the winners in this rule stand to gain from its enactment – certainly an increase in ETFs and Index Mutual Funds will result, but whether or not their competitors can accommodate smaller investors on annual fees alone may be a major determinant in how retirement investments are made in the wake of the Rule.