Will 2014 finally bring regulatory closure to the issue of “fiduciary” or are we destined to wait for Godot yet again?
This was the tone I got when I spoke to various financial service providers and key members of major industry associations (see, “Compliance Headaches Coming for 401k Plan Sponsors Due to New Fiduciary Regs in 2014?” FiduciaryNews.com, January 7, 2014). One common thread, though, appeared in many of the responses. What’s surprising about it is not what it reveals, but what it ignores.
There seems to be a developing consensus that the Department of Labor will take the lead on the fiduciary issue by proposing its updated Fiduciary Rule sometime in August. Not only is Phyllis Borzi famously promoting the new Rule, but now DOL Secretary Thomas Perez has even taken a more visible role in its campaign.
Certainly not everyone agrees the DOL will ultimately follow through with this effort and industry lobbyists continue to work hard to prevent the DOL from moving forward. Still, a growing number of professionals are beginning to accept the fact the DOL will come up with something, albeit perhaps watered down a bit with exemptions favorable to the brokerage industry.
Given this broad agreement, veteran industry observers and players are expecting 2014 to become “the Year of the Retirement Advisor.” With SEC working on the Uniform Fiduciary Standard and the DOL promulgating a new Fiduciary Rule, regulators have aimed their sites squarely at the financial services industry.
Brian Graff, CEO of American Society of Pension Professionals & Actuaries (ASPPA) and Executive Director of National Association of Plan Advisors (NAPA) told me actions on these issues will have an impact on both fee-based advisers and wire-house advisors.
While everyone is talking about the prospect of brokerages changed their business model to accommodate the expected changes, not many acknowledgement that Registered Investment Advisers may also have to alter their methods and practices, particularly in the way they market and promote themselves.
Let’s look at these areas one at a time in terms of the DOL’s potential changes (since there’s greater agreement this one will actually occur).
Even with the requested exemptions, should the DOL bring IRA plans under the ERISA umbrella and broaden the definition of “fiduciary” to include brokers servicing all retirement plans (including IRAs), the brokerage industry will need to reconfigure its business plan. It will be more difficult to ignore hidden fees and conflicts-of-interest. It’s expected the DOL will require full disclosure in order to qualify for the exemption.
Although academic studies suggest such disclosure is (at best) ineffective and (at worst) counterproductive, there is one cohort who will rake through these disclosures with a fine-toothed comb – Registered Investment Advisers (a.k.a., the “competition”). Once the competition has written admission as to the existence of hidden fees and conflicts-of-interest, brokers must assume the competition will use it vigorously and effectively. No longer will retirement plan decision makers (whether they are corporate plan sponsors or individual IRA owners), believe they are getting “free” non-conflicted service. Brokers, therefore, will have to emphasize something other than “low” or “no” costs in their pitch.
Registered Investment Advisers, once they’re armed with this disclosure data, won’t have any advantage if their business model remains the same. Today, they can merely imply there’s a conflict-of-interest (and what that entails).
Once disclosure hits, they won’t be able to get by with just a wink and a nod (“say no more, say no more”). Nope, those conflicts-of-interest will be open for all to see. Now the Registered Investment Adviser will have to articulate exactly why conflicts-of-interest are a bad thing. Granted, with the abundance of peer-reviewed academic studies supporting them, this articulation should be easy, but it’s a business model change the adviser industry will, regardless, need to make.
I think the smarter advisors and advisers see the potential need to change their business models and are more than prepared to do so. What I don’t see, though, is many people talking about how these prospective regulatory changes will impact the most important person in the whole equation – the plan sponsor/IRA owner.
Remember, these players also have the same responsibilities as a fiduciary (in the case of the plan sponsor, because they are a fiduciary; in the case of the IRA owner, because only he can protect his own best interests).
At first glance, it seems like the change in the Fiduciary Rule will only affect service providers. But wait. If regulators change the requirements of service providers, than plan sponsors and IRA owners will need to know those changes lest they get duped by some malicious agent. And if these particular parties are going to have to know more, then they’re going to have to be educated.
And who’s going to do that? (Hint: Who does it now?) And how excited with plan sponsors and IRA owners be to learn about these changes in their job? (Hint” How enthusiastic are they now about taking the time to learn about their role as a plan sponsor/IRA owner?) And how effective will this all be? (Hint: Does it have even a smidgen of effectiveness now?)
Don’t think plan sponsors/IRA owners will be immune from any changes made on the fiduciary front. Indeed, they represent that front. They may blithely accept it. They may not like it. They may ignore it. They may rebel against it. But they will do something. And three out of their four options are not too pleasant.