Aesop sure had a way with twisting with people’s minds.

At one moment in his fable, you’re dealing with a young lad whoexhibits an abnormal fear of and fixation on untamed canine beasts.No sooner are you convinced it’s best to shun this little chicken,it turns out he’s right, but not before the imaginary wolf he’sbeen crying about becomes real and devours half the city ofTownsville.

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In many ways the fiduciary rule can be likened to the wolf inAesop’s fable. Folks have been sounding the alarm of its impendingarrival ad nauseam. And I’m not singling out just one side of thedebate on this. no. To borrow from another fairy tale, thefiduciary rule is neither as hot nor as cold as the two opposingsides argue. Unfortunately, it ain’t Goldilocks, either.

Some look at June 9^th as a watershed, the day theDOL’s much heralded conflict-of-interest (aka “fiduciary”) rulebecame self-aware. Or so we’re led to believe from much of thereporting. For a number of reasons, while investors are likely tosee some changes, (see “What’s the Immediate Impact of the DOL FiduciaryRule on Current IRA Holders and Future Rollovers?”FiduciaryNews.com, June 13, 2017), sober minds realize theso-called “Big Bang” of June 9^th is nothing more than a“Meek Whimper.”

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Yes, it’s excellent the preliminary debate raised the level ofconsciousness of “fiduciary” in the minds of investors. (In thismanner, it’s probably more significant – and correct – to say theintense discussion leading up to the rule’s implementation made thepublic “self-aware” of the importance of “fiduciary.”) Yes, it’sexcellent we now appear to have a framework for a level playingfield among investment advisers and advisors. And, yes, it’sexcellent conflicts-of-interest won’t get in the way of helpingfolks retire in comfort.

But, no, the rule as it exists today registers just a mere tadabove “much ado about nothing.” Let’s explore why this is so.

First, it currently contains no formal punishment fornon-compliance. This is because the DOL has specifically said itwould not enforce the rule until next January.

Is there a chance class action attorneys might fill the voidleft by the DOL? Maybe, but probably not. It takes time toaccumulate a significant number of victims, and it’s likely thisthreshold won’t be exceeded until sometime past January, at whichtime the DOL will presumably be on the case.

Even if the critical mass is attained prior to the DOL cavalry’sarrival, there’s just enough uncertainty in the precise nature ofthe rule, again, in its current form, to place a high level of riskin attempting to take legal action. So, we have a rule, but we haveno penalty for failing to follow it. Said another way, if a rulefalls without enforcement, will anyone hear of it?

Second, the original wording of the rule, despite what some maybe saying, contains loopholes wide enough to drive an RV through. Imean, what precisely does “reasonable” mean? It can’t be measuredin terms of the “average” fee, lest we slip into an irrationalWobegon spiral. Instead of mythical LakeWobegon where “all the children are above average,” we’ll betalking about the mythical service agreement “where all fees arebelow average.” It just can’t happen. No. Really. Mathematicallyall fees cannot be “below average.”

So, then it means it’s OK to have different fee levels(including fees derived from conflicts-of-interest). How, then, dowe measure “reasonable”? Experienced readers know where this isheading. The “reasonableness” of fees will be measured not by thedollar amount paid, but by the values derived in relation to thedollar amount paid. In other words, higher fees must yield highervalue.

Ah, but then we get into the ticklish question of “What isValue?” There’s the rub. One man’s value is another man’scommodity.

Consider this, can something have any “value” if it doesn’t comeat a price? How often have we heard stories of people overlookingexpensive gifts while placing hard earned trinkets in secure curiocabinets? Reframing this to 401(k) plans, do two identicalbenchmarking services offer the same value if one is free and theother costs five figures?

You may think the answer is easy, but let me ask it another way.Which of these two identical benchmarking services would you trustmore: The one that was thrown into an existing service package atno extra cost, or the one that costs you five figures off of an alacarte menu?

Now do you see how hard it is to truly define “value”? It’s oneof those “I can’t define it but I’ll know it when I see it” things.And, somewhere in the future, there’s a Potter Stewart wannabe justwaiting for some trial lawyer to bring a fiduciary rule case beforehim just so he can make this obscene statement about “value.”

Finally, we still don’t know how the story ends. The DOL isalready on the record saying they continue to look at the rule’swording and aren’t promising they won’t change it. In fact, this isone of the reasons they used to justify deferring any enforcementuntil the start of next year. So, all those fantastic new benefitsthis rule offers? They may be washed away by the end of theyear.

In the end, just like you should never believe your own pressclippings, don’t get caught up in all the hype surrounding thefiduciary rule. Still, again, just like the fact you get presscoverage indicates at least some think you have somethingsignificant to offer, recognize the fiduciary rule does have merit.We’re just not yet exactly sure what it is.