Sunday, August 16, 2015

10 Questions re: DOL Fiduciary (Conflicts of Interest) Rule

After submitting my own comments on the DOL's rule proposal, then testifying before the DOL (and seeing others testify), I respond to some questions I've received regarding the DOL's "Conflict of Interest" (fiduciary) rule proposal, and its future.

1. Will the DOL's proposed rule be finalized?

Yes. Look for a "final rule" to come out either late 2015 or early 2016, with an effective date perhaps eight months later.

2. Will there be a great deal of changes from the proposed rule to the final rule?

No. Too many changes would require a re-proposal.

There will likely be some relief from some particularly burdensome continuing disclosure requirements imposed under the BIC exemption (a.k.a. BICE). Other tweaks are possible.

It is possible that the DOL could, to effect a major change in the rule, finalize the rule but then propose a change at the same time.

3. Industry opposition seems great. Won't this stop the rule?

Threats to the DOL rule exist, and these threats may stop the DOL from proceeding, or work to suspend/repeal the DOL's Conflict of Interest rule in the future.

Opposition from the broker-dealer community (SIFMA, FSI) and the insurance industry and the asset managers (ICI, etc.) is indeed great. With the rule's application to both DC plans and IRAs, the rule would cover $14 trillion in assets.

Why is opposition so great? In a word - profits. Imposing fiduciary duties is, at its core, a restraint on greed. With a duty of care imposed, and a duty of loyalty, including the requirement of "reasonable compensation," the extraction of rents by Wall Street and the insurance companies will diminish substantially. (This might be a good time to sell stock in some BD firms, insurance companies, and some asset management firms.)

However, the DOL's rule has received strong backing from the White House. It is this support that propels the DOL's proposed rule forward.

Still, threats to the DOL's proposed rule remain. These include:

    (A) Congress could enact legislation to effectively stop the DOL from proceeding, either by mandating that "the SEC must move first" or denying appropriations to proceed with or implement the proposed rule. Additionally, attached to other bills (including budget bills, and budget extenders) will be legislation to stop the DOL from proceeding.

Huge lobbying is going on, in this regard - particularly in the U.S. Senate. If enough Democratic U.S. Senators get on board, President Obama's staunch support for the DOL's proposed rule might fade.

The core lobbying strategy is likely to be centered around SIFMA's proposal to have FINRA change its suitability rule to incorporate an explicit "best interests" standard. I have written about this proposal before, pointing out that it is a minor change to the suitability standard and is not a fiduciary standard at all. Still, given FINRA's support of this proposal (which, in my view, is deceitful), those in Congress who truly don't understand the distinctions may be persuaded by SIFMA's lobbying (and, of course, persuaded by massive campaign contributions).

Of course, other "talking points" exist from the BD and insurance community, and will be pressed.

    (B) FINRA will likely be more proactive in seeking to oversee RIAs. And then stating that advice to sell a "security" to purchase an insurance product (EIA, fixed annuity, EIUL, etc.) is "investment advice" subjecting insurance agents to registration.

FINRA will lobby for "consistent" standards, even though ERISA and the securities laws, by their terms, impose different standards of conduct. FINRA, whose members are broker-dealer firms, won't enact a true fiduciary standard.

    (C) Judicial challenges will exist, if and when the rule is finalized. These will take many forms, including attacks on the sufficiency of the economic analysis.

    (D) If a Republican is elected President in late 2016, look for the DOL's rule, which would have been effective in mid-2016 (possibly), to be suspended or repealed in late January 2017.

Any change in the Administration will bring forth new faces at the DOL. Recall that when President Obama took office, the Bush-era fiduciary rule change was extended, and subsequently withdrawn. Given the political pressure which a Republican Congress/President would feel from Wall Street and the insurance companies, instructions from a new Republican White House to an interim DOL Secretary would likely occur to "suspend" the application of the rule, followed by a repeal a few months later and/or the enactment of a new, BD-friendly, "definition of fiduciary" rule.

4. What was your biggest surprise at the DOL's four days of hearings?

My biggest surprise was Prof. Mercer Bullard's testimony, which was supported by James Keeney's testimony. While I was aware of the problems with the DOL's rule, as to its effectiveness, their testimony was illuminating in bringing forth a greater understanding of the challenges presented by some aspects of BICE and by the application of mandatory FINRA arbitration.

Prof. Bullard rightly pointed out that BICE (the "Best Interests Contract Exemption") - by focusing only on removing the economic incentives of individual advisers - and not by removing the economic incentives of broker-dealer firms - will likely not result in substantial protection for consumers. The loopholes in BICE (such as "greater compensation is justified for more complex products" - to paraphrase), and the many ways to incentivize individual brokers for selling more profitable (to the firm) investment products (other than through direct compensation), will result in major abuses.

Prof. Bullard and James Keeney (a retired FINRA arbitrator) both pointed out that FINRA arbitrators will not be trained to adjudicate disputes involving the DOL's fiduciary standard, nor will they apply it correctly in arbitration proceedings. Prof. Bullard rightfully pointed out that FINRA's leadership's statements in opposition to the DOL's proposed rule, and its fiduciary standard, will effectively negate (to a degree) the enforcement of the DOL's rule through FINRA-mandated arbitration.

5. Were the DOL's hearing merely "theatre"?

No. The DOL staff, and in particular Deputy Asst. Secretary Tim Hauser, asked some very particular questions in an attempt to understand challenges the rule posed, in an effort to ascertain tweaks that could be undertaken.

Unfortunately, most of the time the testimony was mere "talking points." Still, at times, meaningful discussion occurred.

6. Are there any surprises as to WHO is either supporting or not supporting the proposed rule?

The support by a huge coalition of groups (including AARP, Consumer Federation of America, AFL-CIO, Pension Rights Center, and many, many more) has been quite strong.

The Financial Planning Coalition (CFP Board, FPA, and NAPFA) came out with a strong 35-page comment letter. This was followed by very effective testimony by Marilyn Mohrman-Gillis (CFP Board Director of Public Policy) and Ray Ferrara (former Chair, CFP Board) during the first panel, highlighting that the DOL's proposed rule was workable. The CFP Board's own experience with "business-model-neutral" standards was effectively utilized as a good example, and Ray Ferrara's firm's business model was utilized to demonstrate how small investors are (and can be) effectively served under the DOL's proposal. Let's applaud the Financial Planning Coalition for giving their important support to the DOL's proposed rule.

I continue to be somewhat surprised by the U.S. Chamber of Commerce's opposition to the DOL's rule. One would think that a rule which protects plan sponsors (i.e., business owners) would be something the DOL supports. Indeed, the Committee on Investment of Employee Benefit Assets, which is comprised of large corporate plan sponsors, supports the DOL's proposed rule. One wonders why any business (other than broker-dealer firms and insurance companies) continues to maintain membership in the Chamber, given the undue influence of Wall Street over the Chamber.

I am somewhat surprised by FINRA's opposition to the rule, and by its endorsement of SIFMA's misleading "best interests" standard. FINRA's true colors are exposed. Instead of acting to protect consumers, FINRA and its suitability standard, which lowers the common law standard of due care applicable to nearly every other service provider continues to protect brokers, not consumers. In my opinion, FINRA's oversight of market conduct regulation should be terminated, as in its 75 years of existence FINRA has failed to effectively protect American consumers of investment advice.

7. What changes would you like to see to the DOL's proposal?

There are many, but here are the key ones.

     A) A streamlined "AUM Adviser Rollover Exemption" - similar to that proposed at page 24 of the Financial Planning Coalition's comment letter (or as proposed, using different terminology, in my own comment letter). Fee-only RIAs who subscribe to the tough "sole interests" standard of ERISA need not be subjected to BICE's requirements; standards can be established to guide fee-only advisers in providing advice on IRA rollovers.

    B) Changes to BICE, and/or clarifications.
           1) Note that additional compensation for more complex products should be minimal.
           2) Provide examples of unreasonable compensation. Commission-based compensation may be o.k. for smaller accounts, but for larger accounts commissions quickly become unreasonable. This is particularly a problem when break-point discounts are not applied. Most VAs and EIAs do not provide for breakpoint discounts.
           3) Suggest the many considerations which must be taken into account before an IRA rollover advise can be provided. (See my comment letter, published earlier in this blog.)
           4) Suggest that advisers recommending VAs, EIAs, and fixed annuities must undertake a proper cost-benefit analysis and truly understand these products before selling them. (In my view, most of the VAs and EIAs on the market today fail the cost-benefit analysis.)
           5) Permit the contract with the client to be presented and signed later (but prior to implementation); however, the terms of the contract (and the fiduciary duties) should be retroactive to all prior communications between the parties.

   C) New Proposed Rule to Make FINRA Arbitration Non-Mandatory.

There are just too many flaws in FINRA's arbitration (including the fact that the membership association of broker-dealers is in charge of arbitration involving its members, an inherent conflict of interest that has led and continues to lead to problems in arbitration fairness, and the perception of unfairness as well).

I believe the DOL should propose, separately, a rule stating that arbitration of individual claims should be voluntary, and if undertaken must be undertaken in a neutral arbitration forum chosen by agreement of both parties. Such agreement should be permitted only after a claim is known. Pre-dispute arbitration clauses should be prohibited.

Standards for the conduct of arbitration proceedings should be established. Additionally, standards for the conveying of arbitration decisions (including the publication of the determined facts, and application of the law to the facts) should be mandated by the DOL. Finally, standards for effective appeal of arbitration decisions to the courts should be specified.

While I support the idea of mandatory arbitration, as a means of protecting a firm's most valuable asset - its reputation - from frivolous claims, the fact of the matter is that the present system of arbitration under FINRA has poisoned the arbitration process so greatly that no mandatory arbitration forum, however well designed, is likely to be perceived as fair or as necessary.

8. Should the "Education Exemption" Be Expanded?

There were a great many suggestions made at the DOL hearings to expand the "Education Exemption," such as by permitting specific fund recommendations to be made during "educational" presentations.

I don't like the idea of such an expansion. Advice is advice, whether it is given in a one-on-one face-to-face meeting, via a conversation with a call center employee, or in a group presentation.

I'm not a fan of the education exemption, at all. Even suggesting a strategic asset allocation for various ages (or "years to retirement") strikes me as advice. Any discussion of specific investment products or securities seems to me to be clearly crossing the line into the "advice" realm.

9. What will the SEC do, as to the fiduciary standard's applicability?

The SEC has a black eye - by not proceeding more quickly to implement Sect. 913 of The Dodd Frank Act. This section authorizes the SEC to impose fiduciary standards upon broker-dealers and their registered representatives who provide personalized investment advice.

While the SEC still has other "mandatory" rule makings to undertake, the SEC has failed to recognize that Sect. 913 rule making is likely to be its most important, and most meaningful, if and when undertaken. All of the SEC's other "reforms" of the capital markets will result in little impact if, in the final analysis, individual investors continue to fail to receive the important protections a bona fide fiduciary standard offers.

In fact, the SEC's decisions over the past four decades, which have essentially negated the application of the Advisers Act to investment advice provided by brokers, and which have permitted waiver by fiduciaries (particularly seen with dual registrants) despite the anti-waiver clause of the Advisers Act, led to the need for the DOL to proceed.

However, I don't see any rush at the SEC to draft rules extending fiduciary protections. They may be working on it, but at the present time it does not appear to be a priority. To my knowledge, as of early August 2015 no "drafts" are being circulated within the SEC, even as to an outline of Section 913 rule-making.

And, even if the SEC proceeds, I doubt the SEC will enact a rule which truly applies fiduciary protections. It would likely be a weak, and ineffective rule.

The SEC has a fundamental problem - the revolving door between Wall Street and the SEC. Staff support for a bona fide fiduciary standard is minimal.

It would take a very strong SEC Chair, with the support of two other SEC commissioners (there are 5 SEC commissioners in total), to effect a bona fide fiduciary standard, and to effectively change several SEC decisions over the past four decades that have weakened or refused to apply the fiduciary standard. I applaud SEC Chair Mary Jo White's understanding of the issues, but she may lack the political cover to proceed strongly. Even then, she has surrounded herself with those who are used to working under the weak suitability standard, instead of surrounding herself with those who are used to working as bona fide fiduciaries.

Time has effectively run out for the SEC. Any new Administration will likely result in a new SEC Chair. If a Republican President is elected, no action will likely be taken on Section 913. If a Democratic President is elected, then the ability of the SEC to move forward (and escape any Congressional pressure to not act) will depend upon such President's public support of SEC rule-making. Given the many other issues a Democratic President will face, the use of political capital to support the SEC may not occur - at least in the first term of a new presidency.

10. How important is the DOL's Proposed Rule?

Given the inability of the SEC to protect investors, by correctly applying a strong, bona fide fiduciary standard of conduct, the DOL's proposed rule has taken on incredible importance to individual Americans, and to America itself.

The huge extraction of rents by Wall Street and the insurance companies must stop. This has caused a massive drag on U.S. economic growth, as well as impeding the individual financial security of hundreds of millions of individual Americans.

There is, indeed, a lot at stake. Let us applaud the courage of DOL Secretary Thomas Perez, Asst. Secretary Phyllis Borzi, and the DOL EBSA staff, for recognizing the importance of this issue and pursuing a strong DOL rule, despite monumental opposition from heavily monied Wall Street and insurance company interests.

Let us hope, and work toward, the adoption of a final rule and its effective implementation.

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