A top industry legal firm—HaynesBoone—has done a nice brief write-up about the new DOL rule. The piece summarizes the key components, including the five-part test and key exemptions. The new rule brought back the 1975 standard five-part test for determining who is a fiduciary. The test consists of:
1. Render advice as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property;
2. On a regular basis;
3. Pursuant to a mutual agreement, arrangement, or understanding with the employee benefit plan, plan fiduciary, or IRA owner;
4. The advice will serve as a primary basis for investment decisions with respect to the employee benefit plan or IRA assets; and
5. The advice will be individualized based on the particular needs of the employee benefit plan or IRA.
Now to the exemptions. According to HaynesBoone “fiduciaries may not (i) engage in self-dealing, (ii) receive compensation from third parties for transactions involving such plan assets, or (iii) purchase or sell investments with plans when acting on behalf of their own accounts. Provided the conditions of the exemption are met, the Proposed Exemption would allow investment advice fiduciaries to receive compensation for certain transactions that would otherwise be prohibited.” HaynesBoone continued “The Proposed Exemption would require investment advice to be provided in accordance with the “impartial conduct standards.” Under this standard, investment advice fiduciaries must provide advice that is in the retirement investor’s “best interest” (i.e., in adherence to the duty of prudence and loyalty), charge only “reasonable compensation,” make “no materially misleading statements,” and satisfy various other requirements, each as further described in the Proposed Exemption. The Proposed Exemption also requires certain disclosures be made to retirement investors, the implementation of certain policies and procedures, the performance of certain retrospective compliance reviews, and the adherence of recordkeeping obligations”.
FINSUM: This coverage makes it clear why this is such an industry-friendly rule versus the first iteration.
Democrats are pushing for more time with the new DOL rule. The party says that the 30-day comment period on the new DOL rule is insufficient for public comment. They argue that since the new rule is 123 pages itself and relies on thorough knowledge of the SEC’s 770-page Reg BI, 30 days is simply not enough time to fully digest and comment on the rule. In their words, “As the Obama Administration twice respected the requests of those who asked that the fiduciary rule comment periods be extended, we call on this Administration to do the same. At a minimum, we request the DOL provide an additional 60 days so as to give the public a more appropriate amount of time to consider the impact of such a significant proposal and better align this comment period with past precedents.”
FINSUM: Two industry perspectives here. On the one hand, going slow is not necessarily bad—who wants new regulations sooner? On the other, getting the rule done before Trump may leave office would be more beneficial to the industry than a new version that a new Democratic administration might propose.
It comes as no real surprise, but those who have seen the new DOL rule (which was kept very private until recently), have said it is largely exactly what was expected. In particular, those who are currently abiding by Reg BI (implemented today) will be considered to be abiding by the new DOL Rule. The rule is much narrower in scope, lacks the lawsuit component of the first, and interestingly, uses the five-part test of the original rule, but in a way that allows loopholes for firms to essentially decide if they want to abide by the rule or “disclaim away” their need to follow the regulation. About the five-part test, according to Barbara Roper, head of the Consumer Federation of America, “That means firms will essentially be able to choose whether they want to operate under what’s left of the fiduciary standard or disclaim away their fiduciary obligations”.
FINSUM: No big surprises here, this is the DOL rule “light” version the industry was hoping for and expecting.
Most advisors will have heard of Michael Kitces’ lawsuit to try to stop Reg BI from implementation. This lawsuit, often cited in media as XY Planning Network, is an effort by the RIA planning group to block the lawsuit. XY says that the new Reg BI does not represent Congress’ intent with the Dodd-Frank Act, and that it does not creative a uniform standard of conduct for brokers and advisors as the 2010 law intended. Seven states joined the XY effort, but last week a US circuit court of appeals upheld the SEC. This means Kitces and the team may try to take the rule to the Supreme Court.
FINSUM: This effort seems completely doomed to us. In Kitces’ own words “Courts do tend to give [government regulators] deference and the bar is fairly high to prove that they misunderstood the law itself and did not apply it properly”.
For the last several months, brokerage firms have been preparing for the implementation of the SEC’s Reg BI, which comes into effect next Tuesday (June 30th). The driving force behind the rule has been the SEC’s current chief, Jay Clayton. However, those paying attention will have seen that the whole Reg BI project was throw in doubt this week as President Trump has just nominated Clayton to be the US Attorney for the Southern District of New York. Clayton is apparently interested in the role. This raises serious questions about how seriously the rule will be enforced as the entire rule was basically Clayton’s project. According to Phyllis Borzi, who formerly headed the DOL, “It matters in the sense that this [Reg BI] was his baby, he was determined to push it through…”, its “effectiveness” she said “will rise and fall on how well it’s enforced because the rule itself leaves a lot of ambiguity, so it will be critical how it’s implemented”.
FINSUM: If Clayton leaves, it will create a major void for the rule, including, its enforcement, changes, and focus.
COVID has affected the wealth management business as deeply as any other industry. Disruption has arrived, but opportunity has also come with it. But how will it impact the recruiting environment? By all accounts, it looks like the next six months or so will be an ideal time for advisors to move networks/companies. Firms are loosening purse strings and are jumping head first into recruiting again as periods of upheaval like COVID have usually led to increased movement among advisors. That means advisors are likely to get bigger checks for moving now than they would have earlier this year. The lack of conferences also means they are putting more money into other efforts to reach advisors.
FINSUM: Generally speaking, the COVID environment seems to have been beneficial for advisors. New efficiencies and work/life balance have been found as a result of working from home; deeper bonds with clients have been formed during the crisis; and there are increasing opportunities for recruiting. The speed of the market recovery has also been beneficial.