For the last couple of months it has been pretty easy to assume that the new version of the DOL’s fiduciary rule would not have nearly as heavy a hand as the first iteration. Most have thought it would likely sing to the same tune as the SEC’s best interest rule. One of the integral reasons for this view is that the DOL is now under the leadership of Eugene Scalia, son of Antonin Scalia, the former of which is one of the top securities lawyers in the country and long a fierce critic of the fiduciary rule. However, a major new development this week—Scalia says he may have to recuse himself from the whole fiduciary rule process because of federal ethics rules. Scalia was part of the lawsuit that defeated the rule last year, which is the reason for the recusal.
FINSUM: It now seems very likely that Scalia won’t be leading this process, which means it is commensurately more likely the DOL rule 2.0 could be much tougher than expected.
It has been a decade in the making, but it finally, unceremoniously, happened. The AUM in passive investment vehicles, like ETFs, has finally overtaken that in actively managed ones, like mutual funds. As of August 31, money in passive funds totaled $4.27 tn, just a touch higher than the $4.25 tn in actively-managed funds. In a good summary of the overall change in landscape, the Wall Street Journal says “That shift lowered the price of investing for individuals, reduced the influence of stock pickers and turned a handful of Wall Street outsiders into the biggest power brokers in the industry”.
FINSUM: Every advisor reading this column knows exactly why this happened, but it is nonetheless a landmark moment. It is also perhaps a warning sign—which side is driving the market?
It feels like a complete repeat of the DOL’s fiduciary rule. With less than a year to go until implementation (June 2020), the SEC’s new Regulation Best Interest has just entered legal limbo. Perhaps even more worrying than the recent lawsuit from seven states is the fact that leading industry figure Michael Kitces’ firm, XY Planning Network, has just sued the SEC in New York to help block the rule. Kitces is trying to build on the FPA’s legacy of defeating regulators, such as it did in 2005 with the “Merrill Lynch rule”. It is highly unclear what the ultimate outcome of these suits might be, which means brokerages are having trouble committing resources to comply with them.
FINSUM: The chances that this rule gets implemented in its current form seem small, which means it that it is unwise to invest too much into compliance at this point. Everyone still has a bad taste from the money spent complying with the defunct DOL fiduciary rule.
RIAs have been growing at breakneck speed for years. Their growth rates are pretty much the envy of everyone else in finance. But to be honest, they may in fact be growing too fast. Take for instance the case of Creative Planning, a Kansas-based RIA that has tripled its client assets to $42 bn since 2016. Alongside the tremendous growth they have also seen trouble, such as an SEC fine for improper radio advertising and another less infraction. The bigger problem for RIAs is that their own internal systems for control, compliance, and governance may be quickly overwhelmed by the growth they are seeing.
FINSUM: RIAs who are growing organically are having trouble keeping up, but the ones growing through acquisition might have even more trouble, especially with keeping costs manageable considering all the overlap.
It honestly seems like it would have happened sooner given all the uproar over how “lenient” the new SEC best interest rule supposedly is. Nonetheless, now it has: the SEC has just had a suit filed against it by no less than seven states and the District of Columbia as part of an effort to block the rule. It is the first lawsuit filed against the new regulation and came from a group that included, California, Delaware, New Mexico, Oregon, Connecticut, Maine, and New York. The plaintiffs argue that the rule "undermines critical consumer protections for retail investors". One top lawyer in the space said “The day the release came out [about Reg BI], we figured the SEC would get sued, and here we are”.
FINSUM: Not much of a surprise here really, except maybe that the suit is coming from a pretty formidable group (and not just some random trade body). Get ready for a long period of legal limbo.
There is a new digital custodian in the industry who is promising 90% cost savings to RIAs on their technology and custodial costs. That new company is called Altruist, and is a commission-free custody service that intends to compete with the big players in the space at their own game. “Our goal is for everyone to really pay almost nothing”, says founder Jason Wenk, continuing “How much has really changed over the last 10 years? The change is way overdue. It’s not like this is some epiphany for us”. The new Altruist platform will launch in October and be very easy to integrate with the existing platforms from major competitors.
FINSUM: Technology costs are eating up a huge chunk of revenue across the industry, so anyone that can lower them and still provide stellar service will have a competitive edge.