Discrimination vs. "Religious Liberty": How Should We Respond?

In recent years I have been taken aback by the rise of discrimination in this country - whether it be against those of a particular race, or of a sex, of a particular religion, or of a particular sexual orientation. Discrimination may arise from hate, but also may arise from genuinely held religious views. But, to what extent should discrimination be permitted on the basis of "conservative" views of what may be called the "religious right"?

As this issue is examined, I must inquire:

• Why does discrimination exist?
• Can such discrimination be justified on the grounds of "religious liberty"?
• What should be our response to discrimination?

WHY DOES DISCRIMINATION EXIST?

First, what is discrimination, and how does it differ from prejudice? In terms of social psychology, prejudice refers to the negative emotions and feelings towards another social group. In contrast, discrimination refers to the negative actions or behaviours towards another group.

We all have are taught to categorize, as we learn and grow. Indeed, the ability to discern who you are "safe" around and who you may not be "not safe around" is a key learning phase in a child’s development. The ability to categorize brings not only perceived safety, but also a sense of belonging,  and the development of relationships with others that share your beliefs and your world.

For example, as a young white boy growing up in Charlotte, NC, in which forced integration of the schools occurred when I was 13, at first I had been sheltered from blacks. I had very little contact with blacks before school integration occurred. And I had been taught to fear blacks. Even today, more than four decades later, when I look at a black person often the first thought that comes to my mind is not whether that person is nice, or smart, or kind - but simply that the person is black. The teaching of fear is, indeed, a very powerful lesson that is difficult to overcome.

Yet, over time teachings change. Today's generation of students have (hopefully) not been taught to fear others of another race. I hope that today's students do not have the same initial reaction that I do, when viewing a student of another race. Rather that they can look at each other as individual persons first, ignoring their skin color (or religion, or sexual orientation), and seeing all of the gifts a person has to offer.

CAN DISCRIMINATION BE JUSTIFIED ON THE BASIS OF RELIGIOUS LIBERTY?

Religion is a strong force in our society. Religion can be a immense force for good. Towering figures such as Mahatma Ghandi, the Reverend Martin Luther King, Jr. and Mother Teresa improved the lives of millions and used the lessons of religion to liberate people, not oppress them.

Yet, a cursory review of the history shows that invoking religious preference to justify discrimination and oppression is a common tool. In the United States this tool was utilized against blacks in justifying slavery (and, thereafter, segregation and oppression), against women in denying them the right to vote, and against gays in denying them various rights - including the right to marry.

Fortunately, we have a U.S. Constitution. The Constitution guarantees your right to practice your religion as you see fit, but it also prevents the government from using religion to deny people certain rights.

So, what if - for example - you run a bakery shop. And you adopt the view on the basis of your "religious liberty" that you will not provide wedding cakes to gays. Or perhaps you decide to not hire any blacks in your shop. Or, perhaps even, that you will not hire women. Is this your choice?

The Constitution does not protect their religiously motivated right to discriminate in all cases. While under freedom of association and freedom of speech a private gathering may choose to exclude persons (as happens in some church congregations, and some private clubs), the interests of those oppressed must also be taken into account. A balancing of interests must occur.

Hence, we must recognize that people of faith do not exist in a vacuum. Their decisions impact their employees. Moreover, their decision to refuse to do business with someone — especially for reasons such as race or sex or sexual orientation — can fundamentally demean that individual and deny them their own right to participate equally in society. For this reason, the baker must, as a part of commerce and society, must be called upon to serve those to whom the baker would otherwise deny service. And the baker should not be permitted to discriminate as to employment.

We must remember that our Declaration of Independence proclaimed: "We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men ...."

And, let us also remember that the Preamble of the Constitution announced its purpose to be, among other things, securing “the blessings of liberty.” And, the story of our nation is that of bringing the promise of opportunity - to work, and to enjoy the fruits of labor, to more and more people. This hope, and promise, should not be denied to others as they engage in commerce and in activities within society, on the basis of religious freedom.

WHAT SHOULD BE OUR RESPONSE TO DISCRIMINATION?

We must oppose it, at every turn. Yet, the opposition must not necessarily involve more laws proscribed by government (although at times this may be necessary). Government is not the cure-all for all things.

Rather, we must recognize that discrimination continues today - at fairly high levels - because we as private citizens have not fully embraced the ideas of the Declaration of Independence. We must renew our work, privately, to secure the blessings of liberty for all. And we must do this in our everyday lives.

For example, we may express dismay at the discrimination against women in some Islamic countries - in not permitting them to vote, work at certain jobs, drive cars, or travel about unescorted. But what of discrimination against women in the Roman Catholic Church? What reason exists to deny women the ability to join the priesthood, or even aspire to one day become Pope? While our current Pope (whom I respect greatly for his emphasis on service to the poor, and other others) has justified this discrimination on the basis of "tradition," I find this to be a rather weak argument. Hence, if we are members of the Roman Catholic church, we should make our opinions known - that "religious tradition" is no more a viable excuse to discriminate against women than is "religious liberty."

What about the discrimination that exists today, as to blacks? While we hope that our institutions of government will not discriminate themselves, this still occurs (e.g., some police officers succumb to their prejudice). But, should we not - ourselves - seek to counter discrimination? Certainly we should speak up against it, when in occurs. But can we do more - proactively, rather than reactively?

For example, why do so many of us segregate ourselves when we attend church? Why, at school (even college), do so many students sit at lunch tables in which only whites are present, or blacks are present, or Chinese are present, etc.?

To make better progress toward ending discrimination we must expect better of ourselves. We must invite those who are segregated from us, for whatever reason, to join with us instead. We must be open to learning of the cultures of others, and having those cultures influence even our own ways of life.

This is not an easy task. It will take time. And there will be resistance. As there has been. Casting aside prejudice, whether it be motivated by an instilled sense of fear, or otherwise, is difficult. But it can be done.

Working to eliminate prejudice, proactively, is the right and just path. For, truly, all men and women are created equal. Each one of us deserves the opportunity to secure for themselves the American dream. As Americans, the blessings of equality and liberty are bestowed upon us all.

Are FSI and SIFMA's, the Broker-Dealer Lobbying Organizations, Trying to "Stick Up For" Small Investors, or "Stick It to Them"?

I've heard FSI's and SIFMA's arguments that small clients can't be served by advisors under a fee-based system, cost-effectively. Yet, it is a false argument made in an attempt to frame the DOL's fiduciary rule as "bad" for investors.

Can small investors be better served in a commission-based environment. Let's examine the evidence.

First, there are many fee-only advisers, as well as robo-advisor platforms, that offer low-monthly-subscription-fee or low-AUM fees or flat fees or hourly fees for advisory services. In fact, after the DOL rule was finalized, a couple of dual registrant firms announced the LOWERING of their minimums, in connection with fee-based accounts, in order to serve small clients.

Many, many advisors currently work under a fee-only platform, and many (if not most) of them serve small clients. And most of them are actually trained to provide both financial and investment advice (not just sell products). Consumers should just look for advisors by visiting the web sites of Garrett Planning Network (www.GarrettPlanningNetwork.com), XY Planning Network (www.XYPlanningNetwork.com) and many members of the National Association of Personal Financial Advisors (www.NAPFA.org) and the Alliance of Comprehensive Planners (www.acplanners.org). [Disclosure: I have served as a consultant to Garrett Planning Network in terms of providing educational content to them, and I am a member of NAPFA.]

Second, being sold a product on commission is not "cheaper"; in fact, it is far more expensive to small investors. In my experience, most brokers go out of their way to ensure that their commissions are not cut via breakpoint discounts, by spreading client funds over several fund families. (I've seen this again, and again, and again). So, let's examine the typical fees paid by clients sold Class A mutual fund shares:
  1) 5.75% sales load. What is the impact of this? Assuming a 10% level annual rate of return for a stock fund, the fund must secure a 1.20% greater annualized return for the fund to "break-even" with a no-load fund, over a 5-year time horizon. If the fund were held for 10 years, the greater return required is 0.59%. If the fund were held for 15 years, then the break-even is 0.43%. But, here's the catch - the average stock fund is held for 4 years, and the average bond fund is held for 3 years, according to the ICI.
  2) Class A shares also typically possess a 12b-1 "marketing fee" (80% of these collected fees are passed on to brokerage firms, on average). This fee is typically 0.25% a year.
  3) Funds sold through the broker-dealer channel typically have fairly high commission structures, due to excessive trading of securities within the fund, using full-service brokers as the chosen brokers for such trades, and payment of soft dollars. While the impact may only be a few basis points, or in excess of 50 basis points (or even much more), the fees add up! Add in bid-ask spreads, which in turn fuel back to the brokerage firms payment for order flow, and even more costs are extracted from investors.
   4) The funds sold by broker-dealer firms usually have higher management fees. In turn, these higher management fees often are used, in part, for revenue sharing payments, such as "payment for shelf space."
   5) The funds sold by broker-dealer firms are often tax-inefficient. Not enough brokers structure portfolios tax-efficiently, nor do they utilize tax-efficient stock mutual funds. This results in a substantial tax drag on investment returns that often could be avoided, or at least minimized.

Fees and costs matter. A huge body of academic research shows that the higher the product fees, the lower the returns to investors, all other things being equal.

Third, the payment of commissions on mutual funds is counter to Modern Portfolio Theory, in particular a strategic or tactical asset allocation methodology and the necessary rebalancing undertaken in conjunction with same. Unless the fund is a target date fund (or similar fund) (which may have even higher costs, or may not be tax-efficient if the client has accounts with different tax characteristics), then rebalancing of the portfolio should be undertaken. Of course, this leads to more commissions. IN ESSENCE, COMMISSION-BASED MUTUAL FUNDS ARE CONTRARY TO THE SOUND MANAGEMENT OF AN INVESTMENT PORTFOLIO.

Fourth, the "suitability standard" that currently governs broker-dealers and their registered representatives no substantial duty of due care upon the firm or its representatives. They are not required to possess expertise in investment portfolio design, nor in investment product selection. There is no fiduciary duty of loyalty. Hence, there is no duty to truly evaluate and select the BEST mutual funds or other investment securities for the client. In essence, the current and inherently weak and vague suitability standard is the underlying foundation upon which a product distribution network has been built. This product distribution scheme is purposely designed to obscure the many, many fees and costs investors are incurring.

Fifth, for ongoing advisory fees small clients get more and better service, at less cost. For the 1% (or higher, or much lower) annual AUM fee charged by some fee-only advisors (which FSI and SIFMA tout as "too expensive" for small investors), nearly always substantial additional financial planning services are provided, fiduciary responsibility is assumed, and an ongoing duty to monitor the portfolio exists. It's just not an apples-to-apples comparison, to begin with.

In essence, small clients get FAR MORE SERVICE and BETTER ADVICE from fee-only, fiduciary advisers, than they do from the vast majority of stockbrokers (i.e., registered representatives of broker-dealer firms).

An Aside: Use of Variable Annuities to Enhance Compensation, Avoid Breakpoint Discounts. To avoid breakpoint discounts for clients who seek to invest more than $25,000, many brokers have turned to the use of variable annuities. Yet, many broker-sold annuities have total annual fees and costs of 3%, 4% or higher. While "guarantees" exist - such as the death benefit guarantee, and possible lifetime withdrawal guarantees - the costs of these guarantees, the restrictions imposed when they are chosen, and the relatively low annuitization rates (upon annuitization, which is necessary to secure various lifetime withdrawal benefit guarantees) - all combine to negate the attractiveness of these guarantees. In essence, such guarantees fail any reasonable cost-benefit analysis, from the perspective of the investor (or the fiduciary advisor of the investor).

Economic incentives matter. Remove the incentives to recommend high-cost products that pay the firm or its representatives more, and the client - including the small client - receives much better investment recommendations, for often far less total fees and costs. And the all-so-important financial planning advice is also included, as part of the lower fees paid.

What About Municipal Bonds? One could argue that a client who desires municipal bonds would be better served in a commission-based environment. But that ignores the present reality that municipal bonds require ongoing monitoring of the issuer in most instances. Also, a true fiduciary firm would seek to aggregate bond purchases for its many clients, in order to secure substantially less principal mark-ups. Additionally, any "average mark-up" paid by a client can easily be translated into an ongoing advisory fee charged to the client, instead.

It's Time to Speak Up, To Counter FSI/SIFMA's Falsehoods.

All fiduciary advisors need to push back against FSI and SIFMA's false statements.

All fiduciary advisors need to let their U.S. Senators and U.S. Congressmen know that FSI and SIFMA are not trying to stick up for small investors, but rather stick it to them.

The Fiduciary Standard Likely Stalls in D.C., But New Directions Are Possible

The Fiduciary Movement Stalls in D.C.

The election of President-elect Trump has shifted the landscape for regulatory initiatives over the next several years. While much remains uncertain, three major developments likely to occur include:

First, the delay and eventual repeal (via new rulemaking) of the April 2016 DOL Conflicts of Interest (Fiduciary) Rule and its related exemptions is highly likely. The reality is that it is very, very easy for an agency to delay the implementation of a rule, and then to eventually kill it by eventual adoption of a new rule. Such was actually done by the Obama administration to a prior “definition of fiduciary” final rule that was adopted in the waning days of the Bush administration. While the situation here is different, the principle – that it is very, very difficult to challenge an agency’s delay of the implementation of a rule – remains the same.

Second, there will be a renewed attempt by FINRA to oversee registered investment advisers, either through legislation or by a FINRA-favorable SEC “third-party exam” rule. Unlike the proposals in 2011 for expanded FINRA authority, that were eventually defeated, the likelihood of a FINRA “win” is much greater this time around.

Third, Congress will attempt to repeal the Dodd Frank Act of 2010, including its authorization to the SEC to apply some form of fiduciary standards to brokers who provide personalized investment advice. The U.S. Senate, through the filibuster powers the Democrats possess, may not permit such a wholesale repeal. Nevertheless, the SEC would be highly unlikely to exercise its authority to apply a bona fide fiduciary standard upon brokers, given the pressure on its budget Congress could bring to bear. (In addition, the SEC will likely be composed of 3 Republican commissioners, and 2 Democratic commissioners. The application of the fiduciary standard shouldn't be a partisan issue, but it is.)

I would add that any hope for reforming the SEC’s application of the fiduciary standard under the Advisers Act seems remote. The SEC currently permits the wearing of “two hats,” the “switching of hats,” the disclaimer of most fiduciary duties by those who dual registrant firms that operate under the Advisers Act, the use of titles that infer a relationship of trust and confidence while actively disclaiming that such a relationship exists, and the provision of wholesale financial and investment advice that is clearly not “solely incidental” to the sale of a security or investment product. Moreover, the SEC long ago permitted the application of the inherently weak suitability standard (which actually lowers the standard of due care applicable to most service product providers) to the selection of mutual funds and other pooled investment vehicles. It would take an extremely strong and independent new SEC Chair to change the SEC’s misguided direction of the past four decades and fix all of this. Quite frankly, such is not in the cards.

Yet, despite the likely delay in advancement of fiduciary standards through legislative and/or government agency action, there are steps we can pursue to advance our emerging profession.

So, what is the way forward? In my view, the next four years could involve several possible initiatives not involving federal or state legislation or agency rulemaking.

Step 1: We Can Oppose the FINRA Threat to a Bona Fide Fiduciary Standard

Of the foregoing potential developments, the increased chances for a FINRA takeover of RIAs is most troubling. This could lead to FINRA undertaking rule-making for RIAs, thereby imposing a rules-based regime that is burdensome (especially to smaller RIA firms) and unnecessary.

Moreover, FINRA’s influence on how the fiduciary standard evolves and is enforced would result in a “casual disclosure-only” “new federal fiduciary standard” that is anything but a true fiduciary standard. Consumers' best interests would not be protected; they would only receive vague warnings that something might be up - from those who otherwise state that they act in the customer's "best interests." In essence, the state of fiduciary law, as applied to the delivery of financial and investment advice, could be set back for decades to come.

We must devote resources to this effort to oppose FINRA’s takeover of the RIA community, and the subsequent eventual evisceration by FINRA of the fiduciary standard. All of our professional associations must devote their resources to this, and when called upon each of us individually should reach out to policy makers with well-crafted messages.

Step 2: CFP Board: Please, Please, Please ... Lead, Don’t Follow

The CFP Board must lead, not follow. It must adopt a principles-based, yet clearly applicable and bona fide, fiduciary standard for all those who hold the Certified Financial Planner™ certification.

If you are a CFP® and if you are providing investment advice, you are a fiduciary. Or retirement planning. Or estate planning. Or tax planning. Or insurance planning. No exceptions. The fiction that one can do just “one element” of financial planning and not be a fiduciary should be relegated to the CFP Board’s past. If you either hold out as a CFP^® or actually undertake those activities, you should be a fiduciary.

Additionally, the fiduciary duties should be more clearly expressed. There should exist a non-waivable, non-disclaimable duty to act in the client’s best interest at all times, under the fiduciary duty of loyalty. If a conflict of interest exists, it must be properly managed so that the client is not harmed.

The 237 words contained in the DOL’s Impartial Conduct Standards could be utilized and adapted for such a promulgation of the fiduciary principle. This would include the fiduciary duty of due care and the duty to invest following the requirements of the prudent investor rule. I would suggest, however, that a client could choose the prudent investor rule to not apply to some or all of the client’s investments, if the client is provided a clear statement to that effect and provides informed consent. This would permit the development of new and novel investment strategies, provided the client is informed of the potential risks of such strategy, achieves a proper understanding of those risks, and provides informed consent.

The CFP Board is undergoing the process of reviewing and revising its standards of conduct, at present. We should support the CFP Board in that endeavor, and patiently await the outcome.

However, if the CFP Board does not fix the loopholes in its current rules, both as to when fiduciary status is applied and as to what fiduciary status means, then it would be worthwhile for practitioners to consider alternatives to the CFP Board. In other words, if the CFP Board fails to move the profession forward, then we should consider whether following the CFP Board is in a true profession’s best interests.

Step 3: Raise the Bar for Portfolio Construction and Investment Selection

If you asked most individual clients if their portfolios were being managed “prudently” and “expertly,” most would assume that would be the case. Sadly, that is just not so. In point of fact, a wide variety of unproven investment strategies are utilized. Often both risks and cost are taken on by individual investors who receive investment advice.

Additionally, due diligence criteria for the selection of specific investments often lack any reasonable basis. At the same time, other due diligence criteria that clearly result in the better selection of investments (especially pooled investment vehicles) are given little if any consideration.

We need to raise the bar as to the proper management of investment portfolios. As alluded to previously, I believe the default standard of due care owed to individual investors should include the application of the prudent investor rule (PIR). The PIR contains the duty to minimize idiosyncratic (diversifiable) risk and the duty to not waste client assets. Individual investors can choose to have their advisers not be bound by the PIR, but only after they are clearly advised of the risks present and of the fees and costs involved for the implementation of an investment strategy not subject to the PIR.

In essence, we need to raise the bar on the profession’s due diligence, both as to investment strategies and the selection of investments (especially pooled investment vehicles). We need to be better at researching and selected investment strategies that possess a high probability (over the long term) for outperformance and/or risk reduction. We need to be much better at conserving the client’s assets.

The DOL’s Best Interests Contract Exemption was poised to do this for ERISA-governed and IRA accounts, through the application of the Best Interests Contract Exemption, its Impartial Conduct Standards, and by means of the Prudent Investor Rule (PIR) contained therein. Since the DOL rules applying this higher standard are likely to be delayed and eventually killed, the profession (through the CFP Board, if possible) needs to move forward, instead. In essence, our profession should adopt the prudent investor rule as the “default” standard for the provision of investment advice. Again, clients may opt out of the standard,

I am not suggesting that we cut our fees as advisers. Rather, by become better experts in the design and management of investment portfolios, as well as by properly managing the behaviors of our clients, we will even more deserve professional-level compensation. Expert, trusted advice deserves to be well-compensated, for such advice is very valuable.

Step 4: Continue to Win in the Marketplace.

While the public is much more aware of the need for their financial or investment adviser to be a “fiduciary,” many individual consumers don’t understand this term. And, even among those that do, they are susceptible to misdirection from broker-dealer firms and insurance companies (and their various representatives) that state they will “seek to act in your best interests” or “can operate as a fiduciary.” Additionally, the terms “fee-based” remains, when describing many firms or advisers or practices, a misleading statement when proper explanation of the term is not provided.

So, distinctions must be made. Perhaps the best distinction is being “fee-only.” Even better would be the promulgation of a designation, or certification, that consumers can recognize. (Sorry, NAPFA, but “NAPFA-Registered Financial Advisor” fails to resonate as an effective mark, given the length of the term; a more “catchy” mark is needed. Perhaps “NETA” – “NAPFA Expert Trusted Adviser.”)

Additionally, checklists can and should be continue to be developed in which good, detailed questions are asked by consumers of their current and/or prospective financial advisers. Through such checklists and accompanying explanatory language, consumers can be educated about the dangers of proprietary products, principal trading, and product-based compensation schemes. Some of these checklists exist already, but they could be improved upon.

The past two decades has seen the rise of AUM-based compensation. This trend will continue, as both consumers and good advisers seek to avoid the insidious conflicts of interest that so pervade much of financial services today.

Conclusion

The application of the fiduciary principle to the provision of investment and financial advice, via government action, is likely now delayed for at least several years to come.

Yet, into this vacuum those concerned about our profession and its development can continue to act. We can, together, oppose the FINRA takeover of the independent RIA community. We can voluntarily adopt higher standards for CFP^® certificants, both as to adopting a non-waivable, sensibly applied duty of loyalty and a more appropriate standard of due care.

And, collectively and individually, bona fide fiduciaries can continue to prevail in the marketplace.

We might wish, on behalf of our fellow Americans, a more rapid application of fiduciary principles to the delivery of investment and financial advice. But, for several years to come, such is unlikely to occur. Yet, in the near future we can act to better lay the foundations for a true profession, and in so doing serve the interests of our friends, neighbors and clients. And, in so doing, we can promote the long-term application of the fiduciary principle, the accumulation of better savings and investments, and the long-term economic vitality of America itself.

The Future of Fiduciary, Post-Election

There is no doubt that the results of the U.S. Presidential and Congressional elections will result in a significant impact upon the application of the fiduciary standard of conduct to financial planning and investment advisory activities. I anticipate that the DOL "Conflicts of Interest" regulation (including BICE, etc.) will be halted in early 2017. Furthermore, the Dodd-Frank Act's authorization for the SEC to adopt fiduciary rules for broker-dealer firms will likely be repealed, and even if not a newly constituted SEC is highly unlikely to move forward with fiduciary rule-making.

But this does not mean that the advancement of the fiduciary principle, in its application to the delivery of all-important financial and investment advice, will necessarily completely stall. The battlegrounds merely shift - at least for the next four years. To the marketplace. And to our professional organizations.

Consumers have expressed their desire for financial and investment advice that is free from conflicts of interest, wherever possible. Those in the media continue to serve an important role in educating consumers on the necessity of independent, truly objective advice. Media outlets will continue to recommend that consumers seek out fiduciary advisers, primarily by promoting financial advisor searchers through such groups as the National Association of Personal Financial Advisors, Garrett Planning Network, the Alliance of Comprehensive Advisors, and XY Planning Network. And such groups will continue to expand their influence and reach.

In addition, more and more financial and investment advisors will seek out firms that practice under fiduciary principles. Advisors enjoy going to work when they are not influenced to push proprietary products or engage in commissioned product sales. The deeper, much more satisfying relationship with a client that results from the avoidance of conflicts of interest is what good advisors will continue to migrate toward.

Advisors will continue to pressure their professional associations to adopt policies that clarify the distinctions between salespeople and trusted, fiduciary advisors. Should these professional associations resist the call to tighten their standards, new professional associations may arise.

And, in the more distant future, new opportunities will arise with lawmakers to revisit the application of the fiduciary principle upon financial and investment advice. Patience will be required in the interim, and certain initiatives advanced in government in the interim may require opposition.

Hence, while the results of the 2016 elections are a set-back for those who advocate for the adoption of the fiduciary principle within the financial planning and investment communities, all is not lost. Much education and work remains to be undertaken, especially as the fiduciary movement continues to prevail in the marketplace. And further foundations need to be laid for the time when new opportunities will again arise through legislation and rule-making activities.

Our society continues to advance. Greater specialization occurs. As does greater reliance on the expertise of others. Into this transformation the role of trust takes on greater meaning. The application of fiduciary standards merely reflect this greater reliance on the expertise and trustworthiness of others.

Though the road may be longer, the Power of Trust will prevail. Continue to join with many other advocates and help make this vision - of a community of true professionals bound together by a bona fide fiduciary standard - a reality. For the sake of our profession. For our fellow Americans. For the future economic prosperity of America itself.

Ron A. Rhoades
Wednesday, November 9, 2016

DOL Fiduciary Rule: What "Best Interests" Means, Impacts on Financial Services

Introduction.

Congress will not stall the DOL Rule in 2016. What occurs in 2017 may well be determined by the upcoming Presidential election, and even then great uncertainty exists as to whether the DOL's Conflict of Interest Rule would or could be timely repealed by a new Administration. Court challenges to the DOL Rule will occur, but their likelihood of success is below 50/50. As a result, all firms and advisers should be seeking to adapt to the new Rule.

In adapting, firms and advisers should take care to fully comply with the Impartial Conduct Standards required under the Best Interests Contract Exemption. Given the substantial academic research regarding the impact of fees and costs on investor returns, and the express language used by the DOL in announcing BICE, the receipt of additional third-party compensation - without fee offsets - may be problematic. The result will likely be a substantial movement toward AUM fees, and to the selection of low-cost investment products.

Congress Continues to Serve Wall Street, Not Main Street - But Congress Will Not Stop the DOL Final Rule.

As the Republicans in Congress continue to vote on resolutions and bills that would seek to stop the implementation of the DOL's Final Rule, permit me to briefly comment on this political state of affairs.

I have always been for government of a small size. There are a great many things that government fails to do well. Yet, there are areas where laws and regulation, carefully crafted, are required.

The DOL's "Conflict of Interest Rule" (a.k.a., "Fiduciary Rule") is altogether necessary. In this most complex financial world, the vast information asymmetry between financial/investment adviser and client cannot be overcome through financial literacy efforts, nor through disclosures. The application of fiduciary standards to such a relationship is a natural consequence, supported by many public policy goals. Just as attorneys are not permitted to take advantage of unsuspecting clients, neither should investment advisers.

Congress is 2017 will not succeed. It will make many efforts, but all will stall in the U.S. Senate or be vetoed by President Obama. Republicans, in undertaking these many but doomed legislative efforts, will continue to be seen as under the control of Wall Street. (Although, to be fair, a large number of "corporate Dems" in Congress have also been viewed as under Wall Street's influence). It could be said that voters of tired of the compact between Congress and monied interests - hence the rise of such polarizing personalities as Donald Trump and Bernie Sanders.

And, as I set forth later in this post, Congress has been misled by Wall Street on the DOL's rule-making effort. (As Congress has previously been misled by Wall Street and the insurance companies, many times over.) You think Congress would learn. Then again, monied interests continued to possess outsize influence over our policy makers.

Other developments could stop the DOL's Final Rule. Lawsuits are certain to be filed, probably with the insurance industry leading the way. But I would put their likelihood of success, in stopping the DOL Final Rule's implementation, at less than 50/50.

And, a new Administration could seek to enact a new rule in 2017, that effectively would repeal the DOL's April 2016 Final Rule. But there is no assurance that such would occur, regardless of who is elected. Also, government rule-making in adherence to existing laws defining the scope of review and public commentary, takes tremendous time - far more time than the 2-1/2 month window between the installation of a new Administration and the April 1, 2017 effective date of the core of the DOL's rule's requirements.

A new Congress could also enact legislation that more quickly and effectively stops the DOL's Rule, but getting enough votes in the U.S. Senate, in which neither party will likely possess a fillibuster-proof majority, may be problematic.

The DOL's Admirable "Sole Interests" Application of the Fiduciary Standard.

As as a principles-based rule, the DOL Final Rule sets forth principles that must be followed in the course of a relationship of trust and confidence. Even Adam Smith, the founder of modern capitalism, supported ethical rules of conduct.

Ignoring the several exemptions the DOL promulgated, the Final Rule, at its core, is an example of the best form of government regulation. It applies ERISA's tough sole interests fiduciary standard of conduct, by requiring conflicts of interest to be avoided. ERISA's tough prohibited transaction rules are also applied, in the context of the statutory exemption from same that permits "necessary" services for "reasonable compensation."

In essence, the DOL's Final Rule is elegant in its simplicity and in its application. It is an example of government getting things right.

"BICE" - The "Best Interests" Version of the Fiduciary Standard - Did the DOL "Get It Right"?

In contrast to the core of the DOL's Final Rule, the DOL also issued or modified several class exemptions. These exemptions, requested by the financial services industry, are far more complicated than the rule itself. (Wall Street complains about this complexity, but the DOL was only trying to meet Wall Street's requests while still availing consumers of ERISA's mandate that they be protected.)

The "Best Interests Contract Exemption" is an attempt by the DOL to accommodate the wearing of "two hats" by a fiduciary - i.e., serving as the purchaser's representative while also permitting the receipt of third-party compensation (commissions, 12b-1 fees, payment for shelf space, soft dollar compensation, and other revenue-sharing). It seeks to ban the worst practices (sales quotas, prizes and trips and awards for reaching certain sales targets for a product, etc.), while permitting compensation by different means. In so doing, despite many changes to the rule, it mandates many disclosures to individual investors (although we all know such disclosures are largely ineffective as a means of consumer protection).

However, in the Best Interests Contract Exemption (BICE) the DOL quite explicitly applied its strict "Impartial Conduct Standards." When you read the language of the BICE release carefully, you will find a strong (and correct) application of the "best interests" fiduciary duty of loyalty. In essence, the client cannot be harmed by the receipt of third-party compensation. Given the substantial (some would say overwhelming) academic research that higher fees and costs associated with investment products lead to lower returns for investors, one can easily conclude that the only way for a firm to receive additional compensation and fulfill BICE's requirements is to offset additional compensation against other fees the client pays.

I believe most advisers, and eventually most firms, will conclude that either fee-offsets must be undertaken (to return the arrangement to agreed-in-advance reasonable and levelized compensation), or they will simply switch to some form of level fee arrangement (assets-under-management percentage fee, annual retainer, fixed fee for discrete advice, subscription-based fees, and hourly fees). In other words, I suspect BICE will not be used all that much.

There is much to like about the final version of BICE and some of the changes the DOL undertook. For example, I like the fact that the DOL abandoned having a "legal list" of investments, and instead relying upon the required due diligence of investment advisers to properly formulate investment strategies and to select investment products. I also admire the DOL's elicitation of the best interests fiduciary standard, and the DOL's resistance to Wall Street's many attempts to redefine "best interests" as a version of suitability.

I remain concerned about BICE's enforcement. It remains to be seen whether broker-dealers will be subject to more (successful) class action claims, given the difficulty of certifying a "class." The removal of punitive damages as a remedy, with only compensatory damages available, may lead firms to regard the costs of failing to comply with BICE's fiduciary duties as just a mere "cost of doing business." (Sadly, many individual advisers will see their reputations ruined in the process, while firms just trudge along.) And, FINRA's mandatory arbitration - with its emphasis on a "fair" or "equitable" remedy (appropriate when dealing with the weak suitability standard) - may serve to substantially weaken the enforcement of the fiduciary standard of conduct, and especially the enforcement of the BICE's Impartial Conduct Standards.

I would also have preferred to see BICE sunset, in 6-7 years, as a temporary measure as the industry adjusts; I fear that, over time, BICE will be interpreted incorrectly and will then permit certain nefarious practices. We can only hope that a future Administration will repeal BICE, while preserving the Final Rule itself, once the industry has move much further toward the provision of advice under levelized compensation arrangements.

The Interrelationship Between BICE's Impartial Conduct Standards and Academic Research

A further "deep dive" into BICE is appropriate, in considering how to comply with its many requirements.
 
A key aspect of the U.S. Department of Labor's Final Rule ("Conflicts of Interest") and its related Best Interests Contract Exemption (BICE) Final Rule deserve further analysis: "What does the term 'best interest" mean? And, how is it possible to comply with BICE'S Impartial Conduct Standards?"

I was struck by an article appearing at WealthManagement.com written by David Armstrong, "Fiduciary Rule Takes Center Stage in Nashville," regarding comments made at the NAPA 401(k) summit in mid-April 2016. Leaving aside the credit that NAPA took for getting the streamlined exemption in place for level-fee advisers (the credit goes to many others, in my opinion, who were far more influential in both identifying the need for this and in promoting it to the DOL), the article stated:

• "Leaders of the association, the largest trade group for retirement plan advisors in the country, kicked off the three-day event with a muted victory lap."
• "'Ultimately, firms are going to have to decide if they are 'full BIC or BIC light' ... There is no third option.' There is more flexibility in how an advisor is compensated if they are using the full best interest contract exemption, but also more liability from trial lawyers. There’s less flexibility in compensation under the streamlined level-to-level version, but less liability.'”
• "RIAs will go for the BIC light version, while deep-pocketed wirehouses will likely chose the full BIC version. 'How hybrid firms thread that needle remains to be seen,' Graff said."
• "“One thing the DOL did not take away was the ability of trial lawyers to file class-action lawsuits” against firms thought to be in violation of the best interest contract exemption. “We have to see it as a cost of doing business,” he said.

Additionally, over the past couple of weeks, I have spoken to many securities lawyers and compliance consultants. Many of these attorneys and consultants seem to be focusing on BICE's "policies and procedures," rather than the substantive requirements of the Impartial Conduct Standards applicable under BICE.

Consultants have further stated to me that insurance company executives are "O.K." with BICE, and that insurance company executives are not troubled by its greater transparency requirements. And others have stated that BD executives believe not much will change, for their firms, in the end - under BICE.

It seems to me that far too many BD and insurance company executives, and even the compliance / securities law consultants that provide advice in this area, have opined that it will be largely "business as usual" in dealing with IRA accounts. I suspect they are wrong. Please permit me to explain why.

ERISA's sole interest standard is tough - it prohibits any conflicts of interest. In turn, the prohibited transaction requirements of ERISA serve to strengthen this requirement. If it were not for the statutory 408(b)(2) exemption, even fee-only advisers could not provide services to plans covered by ERISA.

Yet, ERISA permits the DOL to issue class exemptions from the prohibited transaction rules - as the DOL has done with the Best Interests Contract Exemption (BICE). Yet, the requirement for a class exemption is that the exemption is "in the [best] interests of the plan and its participants and beneficiaries." Another requirement for a class exemption is that the exemption is "protective of the rights of particiapnts and beneficiaries of such plan." 29 U.S.C. Sect. 1108(a).

Under state common law, and English law from which American common law is derived, technically the existence of a conflict of interest is a breach of a fiduciary duty. Under the sole interest (trust law-based) fiduciary standard, there is no method to cure for the breach by the fiduciary. Any conflict of interest is, per se, wrongful. And recession of the transaction, even when the entrustor (beneficiary, or client) is a remedy frequently applied.

But, under the common law's best interest fiduciary standard, the conflict of interest are strongly disfavored, but is permitted in certain instances. A conflict of interest is a breach of one's fiduciary duty, but the assertion of a defense to the breach can occur. In essence, the breach of the fiduciary obligation can be "cured" - by only by demonstrating that the clients' best interests were not subordinated. Several steps are required for such a cure, including: (1) affirmative disclosure of the conflict of interest and all material facts regarding it; (2) ensuring the client understands the conflict (a burden placed on the adviser, not the client, recognizing that the duty to read when receiving advice from a fiduciary is somewhat abrogated, and that even with extensive counsel some clients may not be able to understand the material facts and the conflict of interest and its ramifications); (3) the client's informed consent; and (4) even then, that the transaction remain substantively fair to the client. And the courts take the view, properly so, that clients would never provide informed consent to be harmed.

If you delve into the Final Rule and BICE, the DOL in its releases has a lot of language which sets forth that, although commission-based compensation might be acceptable (although I have concerns about the reasonableness of compensation for larger transactions), and differential compensation can be paid to a firm, still the client cannot be harmed.

Just consider these excerpts from the DOL's release:

• The advice must be provided “without regard to financial or other interests of the Adviser, Financial Institution, or any Affiliate, Related Entity or any other party.
• Financial Institutions must refrain from giving or using incentives for Advisers to act contrary to the customer’s best interest.
• Stated differently, “[t]he Adviser may not base his or her recommendations on the Adviser’s own financial interest in the transaction.”
• However, the DOL noted that BICE’s “goal is not to wring out every potential conflict, no matter how slight, but rather to ensure that Financial Institutions and Advisers put Retirement Investors’ interests first, take care to minimize incentives to act contrary to investors’ interests, and carefully police those conflicts that remain."
• As to the use of the phrase “other party,” the DOL stated that it “intends the reference to make clear that an Adviser and Financial Institution operating within the Impartial Conduct Standards should not take into account the interests of any party other than the Retirement Investor – whether the other party is related to the Adviser or Financial Institution or not – in making a recommendation. For example, an entity that may be unrelated to the Adviser or Financial Institution but could still constitute an ‘other party,’ for these purposes, is the manufacturer of the investment product being recommended.”
• The DOL noted that “full disclosure is not a defense to making an imprudent recommendation or favoring one’s own interests at the Retirement Investor’s expense.”
• The DOL provided a specific example of the application of these requirements: “[F]or example, an Adviser, in choosing between two investments, could not select an investment because it is better for the Adviser’s or Financial Institution’s bottom line, even though it is a worse choice for the Retirement Investor.”
• The DOL also cited several decisions addressing the requirements when a conflict of interest is present: “Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir. 1982) (“the[] decisions [of the fiduciary] must be made with an eye single to the interests of the participants and beneficiaries”);

So, here's the rub. Where does additional (differential) compensation paid to the firm come from? From the products that are recommended. And, all things being equal (i.e., same asset class, same characteristics), that product will have higher expenses, to pay for such additional compensation to the firm recommending the product under BICE.

Please note that an overwhelming body of academic research reveals (and, I would say, concludes) that higher fees and costs for mutual funds (and, by extension, to other products) results in lower returns to the investor. Witness the following research in this regard:

• Actively managed funds tend to underperform their benchmarks after adjusting for expenses, and the probability of earning a positive risk-adjusted return is inversely related to expense ratios. (Haslem et al., 2008).
• Although a small number of early studies find that mutual funds having a common objective (e.g., growth) outperform passive benchmark portfolios, Elton, Gruber, and Blake (1996)  argue that most of these studies would reach the opposite conclusion if survivorship bias and/or adjustments for risk were properly taken into account.
• Expense ratios and turnover are negatively correlated with return. (Carhart, 1997 ; Dellva & Olson, 1998 ; O’Neal, 2004).
• Loads are also negatively associated with fund performance (Carhart, 1997 ; Dellva & Olson, 1998 ).
• Load funds underperform no-load funds by an estimated 80 basis points (bps) per year (Carhart, 1997).
• Transaction costs also decrease the potential benefit of active management (Carhart, 1997).
• Opportunity costs exist due to cash holdings by funds. Hence, part of this underperformance is because actively managed mutual funds have higher liquidity needs for frequent purchases and redemptions. (O’Neal, 2004).
• Lower performing fund have higher fees, and high-quality funds do not charge comparatively higher fees. (Gil-Bazo & Ruiz-Verdu, 2008).
• As a result of lower expenses, broad index funds tend to outperform actively managed funds with equivalent risk. Therefore, the best way for most investors to improve performance is to have a broad index fund with minimal costs (Malkiel, 2003).
• As stated in a 2011 paper, using data on active and passive US domestic equity funds (the sample included a total of 13817 funds while the CRSP Mutual Fund Database) from 1963 to 2008, the authors observed: “Similar to others, we first show that fees are an important determinant of fund underperformance – that is, investors earn low returns on high fee funds, which indicates that investors are not rewarded through superior performance when purchasing ‘expensive’ funds. We explore a number of hypotheses to explain the dispersion in fees and find that none adequately explain the data. Most importantly, there is very little evidence that funds change their fees over time. In fact the most important determinant of a fund’s fee is the initial fee that it charges when it enters the market. There is little evidence that funds reduce their fees following entry by similar funds or that they raise their fees following large outflows as predicted by the strategic fee setting hypothesis. We also do not find evidence that higher fees are associated with proxies for higher service levels provided to investors. Overall, our findings provide little evidence that competitive pricing exists in the market for mutual funds.”
• Vidal et. al., 2015: High Mutual Fund Fees Predict Lower Returns. “[We confirm the negative relation between funds´ before fee performance and the fees they charge to investors. Second, we find that mutual fund fees are a significant return predictor for funds, fees are negatively associated with return predictability. These results are robust to several empirical models and alternative variables.” Marta Vidal, Javier Vidal-García, Hooi Hooi Lean, and Gazi Salah Uddin, The Relation between Fees and Return Predictability in the Mutual Fund Industry (Feb. 2015).
• Sheng-Ching Wu, 2014: High-Turnover Funds Have Inferior Performance. “[F]unds with higher portfolio turnovers exhibit inferior performance compared with funds having lower turnovers. Moreover, funds with poor performance exhibit higher portfolio turnover. The findings support the assumptions that active trading erodes performance….]
• Blake, 2014 (UK): Average Fund Manager in UK Unable to Deliver Outperformance Using Either Selection or Market Timing. “[U]sing a new dataset on equity mutual funds [returns from January 1998–September 2008] in the UK … [we] find that: the average equity mutual fund manager is unable to deliver outperformance from stock selection or market timing, once allowance is made for fund manager fees and for a set of common risk factors that are known to influence returns; 95% of fund managers on the basis of the first bootstrap and almost all fund managers on the basis of the second bootstrap fail to outperform the zero-skill distribution net of fees; and both bootstraps show that there are a small group of ‘star’ fund managers who are able to generate superior performance (in excess of operating and trading costs), but they extract the whole of this superior performance for themselves via their fees, leaving nothing for investors.”
• Ferri and Benke (2012). Using the “CRSP Survivor-Bias-Free US Mutual Fund Database … maintained by the Center for Research in Security Prices (CRSP®), an integral part of the University of Chicago Booth School of Business … In all portfolio tests, there was some benefit to using low-cost actively managed funds, but not as much as we expected, given the reported impact that fees have on individual fund performance. The probability of outperformance by the all index fund portfolios remained above 70% in all scenarios … We speculate that filtering actively managed funds may shift the probability curve closer to an all index fund portfolio as in the low-expense example, but we are not convinced that any filtering methodology will significantly alter the balance in favor of all actively managed funds. This may be an area for future research … A diversified portfolio holding only index funds in all asset classes is difficult to beat in the short-term and becomes more difficult to beat over time. An investor increases their probability of meeting their investment goals with a diversified all index fund portfolio held for the long term.”

Please note that I am not stating that index funds are required to be utilized. I don't believe the body of research regarding the use of low-cost actively managed funds has been fully developed, yet. And, some index funds suffer from substantial market impact costs during reconstitution. More research in this area is required, and I believe we might suggest that low-cost index funds are (usually) a prudent choice for advisers. Yet, very low-cost actively managed funds might also be prudent, and some research appears to support this view.

Yet, given the strong academic evidence available, I believe it is reasonable to conculde that, to the extent investment advisers believe that they can recommend higher-cost products that pay their firm more, with no harm to the client, these investment advisers are not acting as expert advisers with the due care required of a fiduciary. And, if those higher-cost products result in additional compensation to the adviser's firm, that's also a breach of the fiduciary duty of loyalty.

So, under BICE - the allowance of differential compensation cannot, under the express language the DOL has utilized in its release, in several places - harm the client. Yet, the academic research is clear - higher compensation flows for recommending higher fee/cost products which, all things being equal, result in lower returns to the investor. Many experts from the world of academia will be available to testify for this proposition.

The DOL did set forth examples on how to cure the breach of fiduciary duty that flows from the conflict of interest resulting from differential compensation. For example, the receipt of additional compensation could serve to offset other fees - essentially returning to a level-fee arrangement. When banks were permitted around the early 1990's to convert common trust funds to proprietary mutual funds, the approach taken by many (but not all) state legislatures was to require proprietary fund management fees to be credited against trustee fees. (Although, the presence of relatively high fund administrative fees, paid in part to affiliates, reveals a weakness in enforcement of the principles involved, by the FDIC and OCC.)

In essence, the way I read the DOL's Best Interests Contract Exemption, most firms and advisers should embrace AUM fees. However, for the very small clients (perhaps with accounts of $25,000 or less) a commission-based platform could be used - provided the commissions for all products on the platform are the same (at least for similar products) (otherwise, a conflict of interest exists that cannot be properly managed).

I have heard BD execs say, "We are not worried about increased transparency" or "higher disclosure burdens." Of course, this is because disclosures are largely ineffective.

I have also heard BD/insurance company execs state that should clients complain about the conflicts of interest / higher-fee products, that resolving such complaints is just a "cost of doing business." The DOL Final Rule prohibits punitive damages, which would serve to deter bad conduct. And rescission as a remedy is also unavailable. [Class actions are permitted, but under what circumstances can you certify a class of IRA owners? That's an open question.]

Additionally, concerns exist regarding the efficacy of arbitration. One might argue that arbitration, with FINRA's instruction to arbitrators to be guided by equity (i.e., to do what is "fair"), can easily diminish the fiduciary protections, which should be strictly enforced. This remains to be seen. (One can also argue that the pursuit of "fairness" also helps complainants, in arbitration, to prevail when the low "suitabiity" standard would not permit recovery.)

This sets up an interesting dynamic. Firms won't fully comply with the Impartial Conduct Standards' requirements, in order to secure more profits. And they will litigate/settle complaints, as a cost of doing business, given that the size of any compensatory damages awards would be far less than the additional profits firm make by ignoring the Impartial Conduct Standards. Any reputational risk at the firm level is mitigated - first by settlement "keep quiet" clauses - and next by large advertising budgets and the short memories of the public.

Yet, advisers will see preservation of their reputation as a most important factor driving their business and everyday decisions. Individual advisers will not want to see complaints that lead to their U-4s being tarnished.

Also, note that differential compensation will be paid to the firm, but not passed on to the adviser, as under BICE the individual advisers cannot be incentivized to do harm.

So, what will happen? If BD firms don't move to fee offsets, or (preferably) AUM platforms with low-cost investment products (with no product provider compensation to the BD firm), then in all likelihod individual brokers will be conflicted - and worried about their reputation. And these individual brokers will speak with their feet - by departing the firm.

As a result - in order to retain advisers (and reduce compliance and litigation costs) - I suspect that some, perhaps the majority, of larger BD firms will embrace largely conflict-free AUM platforms for their registered reps to use. These AUM platforms will use low-cost ETFs and low-cost funds that provide no additional compensation to the BD firm or its representatives.

But, many BD firms will not properly adopt a true fiduciary culture - and the reps in those firms will suffer, or depart, or both.

If I am correct, then the DOL rule - with its application of the fiduciary standard to DB, DC and IRA accounts - about 60% of publicly traded investments in the US (if you exclude bank deposits) - will be transformational in financial services. It will accelerate the move toward fee-based compensation that was already largely underway.

In the end, the DOL's rule-making efforts will force investment products to compete on their merits, not on the basis of how much commission is paid or how much revenue sharing or "marketing support" payments are paid to the BD firm.
The DOL's Fiduciary Rule: Impacts Upon Financial Services.

The DOL's Fiduciary Rule, if properly applied and enforced, will serve to transform the financial services industry. We have already seen a major shift in recent years toward levelized compensation arrangements, and the DOL's Rule will only accelerate this process. We have already seen low-cost products gain market share, and we have seen competitive pressures (via new applications of technology, and otherwise) force adviser's compensation lower.

As the DOL's rule is applied, and firms continue to adjust, greater competitive pressures will emerge over time. leading to even lower fees and costs associated with investment products and the receipt of investment advice. This is good for consumers. And, as greater capital accumulations will result, this is good for the U.S. economy.

The provision of investment advice continues to migrate toward a professional services business model. Yes, there will still be "mega-firms" of advisers, much of the same size of the largest broker-dealer firms today. But, similar to the legal and accounting professions, many mid-size regional and local firms will continue to expand in number. And, it is likely that the majority of advisers will reside in 1-5 person firms.

One huge consequence of the DOL's Final Rule is the need to justify (and document), in the IRA rollover context, the value of the services provided. As a result, firms will continue to expand their value-added service offerings, including all-important financial and tax planning services. With the rise in financial planning services will come increased demand for new financial planners; this bodes well for our universities as they accelerate enrollment in their undergraduate financial planning programs.

Additionally, all advisers need to get better at due diligence, in both investment strategies and investment product selection. Greater scrutiny is required of the strategies and products already utilized by advisers, and greater inquiry is needed into the universe of strategies and products to discern the very best that can be employed to serve client needs.

Finally, if we continue to evolve toward a model in which consumers can trust their financial services providers, and if we continue to get better in our expertise, there could well be an explosion in the demand for financial planning advice over the next decade.

Eventually financial planning may become a true profession, bound together by the fiduciary principle. Many steps remain, but the DOL Fiduciary Rule is a significant advancement toward that goal.