Come midnight this Friday, anyone advising IRA account holders, and most of thecountry’s 401(k) plans, will have to operate under the fiduciary rule’s impartial conduct standards.

|

The June 9 requirement is, of course, a far cry from compliancewith the full rule, which is scheduled for January 1, 2018.

|

The impartial conduct standards require that advice is given inthe best interest of investors. Advisors can only receivereasonable compensation and are prohibited from giving investorsmisleading information.

|

The fiduciary rule’s private right of action, which givesinvestors recourse through class-action claims, will not applyuntil the beginning of next year. The Labor Department hasunderscored that its focus during the transition period will be oncompliance and not enforcement.

|

Notwithstanding that intended latitude, nothing prohibitsplaintiffs’ attorneys from advancing claims in the near term.

|

But a least one attorney currently representing planparticipants in a high-stakes fiduciary claim doesn’t foresee thesharks circling advisors—at least not right away.

|

“As long as people are doing the right thing, there shouldn’t bemuch litigation risk,” said Charles Field, a partner with Sanford,Heisler, and Sharp.

|

Last year, Field and his firm sued fiduciaries of MorganStanley’s $8 billion 401(k) plan, alleging it was stacked withhigh-cost, low-performing proprietary investments. The suit seeks$150 million in damages on behalf of a proposed class of 60,000participants.

|

According to Field, the vagueness of the impartial conductstandards may give advisors on IRAs some protection during therule’s transition period.

|

“At this point, nobody is really sure what any of this means,”said Field. “The prohibition on misleading statements—that ispretty plain and obvious. With the best interest requirement, thatis more complex—if a seller can establish why a product is in aninvestor’s best interest, for now that will suffice.”

|

But on the question of what exactly is reasonable compensation?“Nobody really knows,” said Field. “Ultimately, the market place isgoing to dictate what reasonable compensation is.”

|

In FAQs and other recent communications, Labor has indicatedthat it wants to give industry time to establish complianceprograms, and allow nascent industry efforts to issue new shares ofmutual funds that will give advisors and brokers more clearingmanaging the rule’s best interest standard.

|

|

In response to the fiduciary rule, some investment managers haverolled out T shares of mutual funds, which come with a uniformfront load of 2.5 percent across asset classes, and a standard 0.25percent trail. They are designed to create level fees betweenequity and fixed income funds—the former come with highercommissions.

|

T shares ostensibly address one area of advisor conflict byneutralizing the incentive to sell higher-cost shares of equityfunds. They are expected to replace A shares of mutual funds, whichtraditionally have come with front loads of 5 percent andhigher.

|

Field is among the growing number of industry insiders that seeA shares becoming extinct in the foreseeable future.

|

“Who is going to buy an A share of a mutual fund when you canbuy a cheaper T share? And if a broker has a fiduciary duty toinvestors’ best interests, who is going to recommend an A sharewhen a T share is available?” he said.

|

According to Morningstar, dozens of investment management firmshave applied to the SEC to launch fiduciary-friendly T shares.Those that haven’t are bound to do so, the firm has said.

|

Another developing option is so-called clean shares of mutualfunds, a term coined in England after that country imposed newfiduciary rules on advisors and brokers.

|

Clean shares come without any sales and marketing fees and allowbrokers to set their own fee levels according to the servicesprovided.

|

A recent no-action letter from the SEC to Capital Group, whichowns American Funds, confirmed that investment managers would notbe acting as broker-dealers in issuing clean shares, so long as thesales loads and 12-b(1) trail fees are stripped.

|

Field said the guardrails set out in the SEC letter on cleanshares are “pretty solid.”

|

Ultimately, how clean shares develop may set the standard fordefining what reasonable compensation is under the impartialconduct standards.

|

“What will that do to T shares? We don’t know yet—that will taketime to develop,” said Field.

|

Some reports suggest that filings for clean shares with the SEChave slowed as the Labor Department undertakes its review of thefiduciary rule. There's an irony in that: Labor has indicated it iswaiting for the market for clean shares to more fully developbefore understanding how to approach amending the rule.

|

In spite of the uncertainty as the market feels out newpositions on compensation, Field says changes are long overdue.

|

“People are waking up and getting smarter about theirinvestments,” he said. “Up to now people’s eyes have been glazedover from all the confusion—everything was shrouded inmystery.”

|

Related: See all fiduciary rule articles atBenefitsPRO

Complete your profile to continue reading and get FREE access to BenefitsPRO, part of your ALM digital membership.

  • Critical BenefitsPRO information including cutting edge post-reform success strategies, access to educational webcasts and videos, resources from industry leaders, and informative Newsletters.
  • Exclusive discounts on ALM, BenefitsPRO magazine and BenefitsPRO.com events
  • Access to other award-winning ALM websites including ThinkAdvisor.com and Law.com
NOT FOR REPRINT

© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.

Nick Thornton

Nick Thornton is a financial writer covering retirement and health care issues for BenefitsPRO and ALM Media. He greatly enjoys learning from the vast minds in the legal, academic, advisory and money management communities when covering the retirement space. He's also written on international marketing trends, financial institution risk management, defense and energy issues, the restaurant industry in New York City, surfing, cigars, rum, travel, and fishing. When not writing, he's pushing into some land or water.