At the heart of the Department of Labor’s effort to finalize a new rule requiring advisors to act as fiduciaries to most 401(k) plans and IRAs is the need to clarify which entities in the financial services world are actual fiduciaries, and which merely imply that they are.

That line has been blurred, argued Labor Secretary Thomas Perez, in testimony to Congress defending the Department’s effort to post a rule by the end of the Obama Administration, in spite of wide-ranging criticism from stakeholders, and a growing number of lawmakers, that the rule, as proposed, would have massive unintentional consequences for small workplace retirement accounts and IRAs.

One witness at this week’s public open meeting over the DOL’s proposal testified to the extent of how blurry the line between fiduciary and broker has become.

In his capacity as head of the Public Investors Arbitration Bar Association, a nonprofit association of attorneys that represents plaintiffs in securities arbitration hearings, Joseph Peiffer testified that brokerage firms routinely advertise themselves as fiduciaries when they clearly are not.

“One thing is clear,” Peiffer told a panel of DOL representatives. “Right now, the very same brokerage firms that advertise like fiduciaries routinely contest that they owe a fiduciary duty to their clients.”

In some of the most personal testimony offered in the four days of hearings at the DOL, Peiffer detailed several horror stories in his time representing more than 500 clients that he says were victims of conflicted advice.

“Almost every week, we see a retiree come into our office who has lost a substantial amount of his life savings,” said Peiffer.

“These retirees often break down in my office when I explain to them how their investment was lost to conflicted advice. I have had clients that ran out of money and had to rent a room from his ex-wife. I have had clients live with me because they couldn't afford the gas and lodging to stay at a protracted arbitration hearing. I have, unfortunately, even had clients attempt suicide,” he added.

Along with his testimony, Peiffer submitted a report he coauthored this year that compares the advertising claims with the arbitration stances made by nine of the country’s largest broker-dealer brands.

“Brokerage firms now engage in advertising that is clearly calculated to leave the false impression with investors that stockbrokers take the same fiduciary care as a doctor or a lawyer,” claims the report, which was co-authored by Christine Lazaro, director of the St. John’s School of Law securities arbitration clinic.

“But, while brokerage firms advertise as though they are trusted guardians of their clients’ best interests, they arbitrate any resulting disputes as though they are used car salesmen,” wrote the attorneys.

Their report claimed that Merrill Lynch, Fidelity Investments, Ameriprise, Wells Fargo, Morgan Stanley, Allstate Financial, UBS, Berthel Fisher, and Charles Schwab all advertise “in a fashion that is designed to lull investors into the belief that they are being offered the services of a fiduciary.”

Language in one piece of Fidelity marketing material actually claims the firm puts clients’ interests before their own, according to the study.

Allstate, a brand known for its “you’re in good hands” slogan, which the paper suggests is enough to dupe investors into thinking the firm has a legal obligation to put investors’ interests first, is currently fighting an arbitration claim brought by a couple who lost $400,000 because the broker put all of their savings in a non-diversified stock portfolio in 2007.

Allstate’s defense? It owed no fiduciary duty to the couple. The case is pending, according to the report.

One UBS ad features a voice presenting for a hypothetical broker saying she will not rest until her client “knows she comes first,” alleges the paper.

But when it is forced to defend its action in arbitration hearings, the firm routinely deploys the defense that brokers don’t owe fiduciary duties to their customers, says the report.

Merrill Lynch’s website claims to offer investors a financial strategy that “puts your needs and priorities front and center,” the report says.

Yet the firm, one of the first brokers to go on the public record in favor of a uniform fiduciary standard, “has refused to acknowledge it owes a fiduciary duty in arbitration when it breaches that duty to investors,” write Peiffer and Lazaro.

“Billions each year slip through the fingers of American investors because of the conflicted investment advice they receive,” they conclude.

“The SEC and DOL must take action to force brokerage firms to live up to the standard that they market to investors rather than the one brokerage firms argue when they have wronged those same investors.”

Instant Insights /

Witness says brokers try to pass themselves off as fiduciaries

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