In what comes as very disappointing news to many advisors, the DOL has just confirmed worst fears—it is officially bringing the fiduciary rule back. The DOL mentioned this idea in passing last year, but not given formal word on it. However, speaking before Congress yesterday, DOL chief Acosta confirmed that the fiduciary rule was coming back and that the agency was coordinating with the SEC. Acosta declined to give a timeline, but late this year is the anticipated unveiling of the new rule. According to one industry commentator, "We see this as a positive for financial advisers and active [investment] management as the Labor standard is unlikely to include class-action liability”.
FINSUM: It is too early to know if this is good news or bad because no one has clarity on what the DOL is doing. That said, our instinct is the new rule will be less onerous than previously.
Vanguard funds have been performing well for years. That performance, mixed with ultra low costs is the reason they have thrived over the last decade and now contend for being the largest asset manager. However, there is a little known reason they have done so well—they employ a patented system for minimizing taxes in mutual funds. Vanguard uses a trading technique employing “heartbeat” trades which move stocks between ETFs and mutual funds in such a way that completely eliminates the taxability of their capital gains. Vanguard employs the strategy on 14 funds, and those have reported a combined $191 bn in gains while reporting zero to the IRS. Vanguard says the technique is entirely legal and has a patent on it through 2023.
FINSUM: This is an excellent competitive advantage and we thought advisors would like the view under the hood as to why Vanguard is thriving as one of the very best fund providers.
Any investor in ETFs will have noticed the marked rise of “factors” over the last few years. These are technical or conceptual overlays that managers use to create a theme for a fund. They are generally predicated on some type of data, like “quality” or “momentum”, both of which are well-studied. However, lately there has been an explosion of new factors which are being employed in funds. The problem is that many of these are not being observed on a long enough timeline to see if they are relevant. In practice, this means that a lot of funds are predicated around strategies that do not have any proof of concept.
FINSUM: So we have mixed feelings about this. On the one hand, some factors seem clearly frivolous, while others which may also be quite new, seem to be a good angle on the current market environment. The key is to be very discerning in choosing these types of funds.
The current plan for a new New Jersey fiduciary rule is of a new breed. The proposal goes to lengths never seen in the fiduciary regulation world, far exceeding both the SEC best interest rule and the defunct DOL fiduciary rule. The proposal is officially called the “Fiduciary Duty of Broker-Dealers, Agents, Investment Advisers, and Investment Adviser Representatives” and includes an expansive definition of a “recommendation”, imposes a uniform duty on both advisors and brokers, and importantly, “creates presumptive breaches if brokers and advisors do not recommend the best reasonably available option and fee arrangement”. Unlike Maryland, the state doesn’t need an internal Senate vote to enact the rule.
FINSUM: This is a very strong rule that would set an alarming, and in our view, misguided precedent for other states, or even the DOL’s update of its own rule. A presumptive breach based on single recommendations sounds ludicrous to us. Almost all decisions can be made to look poor in hindsight. Further, defining what the “best” investment selection is at one point is nearly impossible.
Life insurance and annuities have always been a strange grey area for RIAs. They tend to be quite high commission products, a fact which obviously does not blend well with the no-commission, fiduciary mandate. This has left RIAs in an odd position. However, a new and quick growing company, DPL Financial, is now offering a solution. The company serves as an insurance network helping RIAs utilize products from the space. It works with providers of insurance products to help them tailor their offering for RIAs, such as making products commission-free. DPL has already signed up 200 RIAs to use its service. In an example of what they do, DPL’s founder and CEO, David Lau, commented on signing up Jackson National Life Insurance recently, saying “Jackson has long been a market leader in variable annuities, and we are excited to be their partner in launching their fee-based products to the independent RIA market”.
FINSUM: This seems like a very smart and useful approach and the utility for RIAs appears clear. It is obvious they are solving a big problem given their pace of growth.
The last year has seen a steady and encouraging rise of alternative fee structures in mutual funds. In particular, a number of managers have adopted so-called fulcrum structures to their mutual funds. All of these funds charge a low or zero base fee, and then a performance fee for outperformance of their relevant benchmark. The idea is that customers only have to pay up for services that actually outperform benchmarks. Some providers that now offer these funds include AllianceBernstein, Fidelity, Allianz, and Fred Alger. The main criticism of the funds that is that they can skew incentives and push managers to take outsized risk in order to produce upside.
FINSUM: These funds are not without their imperfections, but they are a useful and thoughtful response by mutual fund managers who are realizing they need to do more to justify their raison d’etre versus ETFs. We think they are a good deal for investors because if the results aren’t good, you pay very little, if they are great, you pay for it. Compare that to an ETF, where you are never going to outperform, but will likely pay more than 10 bp.