DOL's fiduciary rules could send many in the retirement industry packing

While many in the investment community are worried about the increased regulatory climate and what it means for their business, many registered investment advisors (RIAs) are feeling confident that their model is the correct one: And the increase in their clientele the past five years has shown increased risk can come with great reward.

With the economic crisis of the past few years ravaging individual retirement savings, many investors have flocked to RIAs, advisors they know will keep their best interests at heart when choosing investments because they choose to take on the major responsibilities of being fiduciaries.

David Altimont, senior vice president and practice leader for Lockton Investment Advisors, LLC in Dallas, has been in the retirement plan industry for 28 years and has run the Lockton retirement practice for eight. The fiduciary climate is changing and becoming more complex, he said. It also is “starting to lean more and more in the direction of plaintiffs attorneys and their clients over the last four or five years.”

The Department of Labor’s re-proposal of the definition of fiduciary, which could change who is considered a fiduciary under the Employee Retirement Income Security Act, should be finalized sometime in 2012, and that has the industry abuzz. But recent legal decisions, like the one that was handed down in March in Tussey v. ABB, Inc., could be the new norm, and not everybody wants that kind of responsibility.

In the Tussey case, current and former employees of ABB, Inc., a manufacturer of power and automatic equipment, sued the company and everyone involved with choosing investments for ABB’s 401(k) plans for breach of fiduciary duty. The court found in their favor, saying that the ABB fiduciaries “never calculated the amount of the recordkeeping fees paid to Fidelity Management Trust Company via the revenue sharing arrangements it had with ABB plan investments,” according to law firm King & Spalding.

The court also found that the ABB fiduciaries didn’t investigate the market price for similar recordkeeping services and didn’t benchmark the cost of recordkeeping fees prior to entering into the revenue sharing arrangement with Fidelity, the law firm stated.

The company did benchmark the fees at one point, but ignored their consultants advice when they were told that the fees Fidelity was charging were too high, sometimes 100 percent more than their competitors.

The lesson learned from this and other lawsuits is that plan participants are tired of being ripped off and having their retirement savings depleted by poor decisions that were not made in their best interest.  Financial advisors are learning that they can’t take their fiduciary duty lightly, especially with the DOL’s commitment to retirement security and enforcement.

New fee disclosure rules that go into effect this year also will fuel people’s interest in lawsuits and many will try to recoup some of their investment losses after they find out what they’ve been paying in fees.

Even with the changing regulatory climate, Altimont said he has no plans to exit the industry. If anything, he feels he and other plan fiduciaries are in a better position going forward than their retail counterparts who have never had to achieve the same high standard when giving investment advice to clients.

“As a fiduciary for investment plans it underscores some of the things we have focused on for a number of years, really, which is the importance of having a good documented process, meeting on a regular basis, following our investment policy statement and benchmarking plan fees, including our own, on a regular basis,” Altimont said. “We’ve seen this standard get stepped up in the last couple of years and we have this particular ABB case that moves the bar even further along in terms of where fiduciaries have to be. I think that for the first time in the ABB case, you have a situation where fiduciaries are clearly being held to the ERISA standard vs. just having a good plan not being good enough, which was clearly the case with ABB.”

The interesting part about the ABB case is that the company’s investment policy plan wasn’t unreasonable, but the “fiduciaries weren’t doing what they were supposed to do under ERISA guidelines,” he said.

Altimont, who also has his Juris Doctor, believes that having a higher standard across the board means “we have to look out more for our clients and make sure we have good processes and are doing what we are supposed to do, which is to be the experts for our clients in a lot of these key areas.”

He added that from a business perspective, the increased regulatory scrutiny is probably a good thing for his company because “it really sets the bar higher for those of us clearly in the business for the long run and it creates a higher standard that some of those who have not spent as much time in or dabbled in the business may not be willing to uphold. I think it is good. Clearly we will have some compression in the business. We’ve seen it. We’re busier than we’ve ever been and it has a lot to do with what side of the business [we are] on.”

Altimont believes that broker/dealers and those advisors who work with individual retirement accounts should be held to the same standards as registered investment advisors. “Absolutely I think they should. There’s no reason that because of a firm’s method of registration or licensing that their advisors should be less accountable than groups such as our own that hold a registered investment advisor designation.”

Brooks Mosley, president of Ballew Russell, an advisory firm in Jackson, Miss., said his RIA firm spends a great deal of time making sure that the investments it chooses are suitable for investors and are cost-competitive. “If something goes awry with those investments, we hold ourselves accountable for that,” he said.

The difference between a broker and an RIA is that the broker earns a commission on certain investments they pitch to clients and they are not held accountable when those investments don’t do well.

“I’m not sure the typical participant in a retirement plan sees a nickel’s worth of difference between a broker and an RIA. We’ve not done as good of a job communicating what our responsibility is,” Mosley said.

Many people don’t realize that they only take a set percentage from a plan for their investment advice, that they aren’t getting additional money if they push certain investments.

Mosley believes that fee disclosure rules that go into effect July 1 will impact the business of being a fiduciary. He hopes that impact will be positive, but he isn’t sure.  “It will be good for people to get that information. I know most people are not embarrassed about what they are charging. If they are doing a good job, their clients appreciate it. But that is not always the case.”

He added that the investments RIAs choose don’t always work out, but “we’re patient with our funds. We give them the opportunity to do what we hired them to do. We have certain criteria to get them out of the plan and replace them.”

Ballew Russell began working on a fee-only basis in the early 1990s and took on a fiduciary role shortly after that. Its fiduciary role was incorporated into the company’s documents in an RIA agreement within the last four or five years, he said.

“If everyone became a fiduciary, it would increase costs in retirement plans and many are not willing to take that on, or if they are going to take it on, they will charge more to do it,” Mosley said. “Instead of decreasing costs [it could raise them]…that is one of the big bugaboos out there. I can’t imagine it not.”

He believes that 95 percent of advisors in the industry are not Bernie Madoff. They are doing it for the right reasons and are going to do the best they can for their clients. “They are not always going to pick the best stock or bond fund, but they are going to care about what they are putting you in and will do the best they can with the knowledge they have,” he said. “That’s part of being a fiduciary. It will be interesting to see how everything shakes out.”

Like Altimont, Mosley said he can’t imagine leaving the business because of the increased regulatory scrutiny, but he said it is harder on a company when you put the fiduciary label on it. “Sometimes we’re not as competitive on cases as we would like to be. We have to sell it. Explain it. They don’t see that we’ll take on more of that role for the plan sponsor. They go with the less expensive option.”

As far as what the DOL’s new definition of fiduciary will mean for the industry as a whole, Mosley said that he thinks there “absolutely will be people scrambling if the DOL definition is anyone selling retirement plans.”

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