Brokers Violating DOL Rule by Shifting Clients to Fee Accounts: Roper

Consumer group urges regulators to investigate if 'firms found to be exploiting the DOL rule'

The Consumer Federation of America is urging regulators to investigate incidences of broker-dealers shifting retirement savers into fee-based accounts from less expensive commission accounts, which violates the Department of Labor’s fiduciary rule.

Since Labor’s rule was finalized, “industry lobbyists have repeatedly claimed that brokerage firms are responding to the rule by shifting retirement savers into fee accounts when they would be better off in commission accounts, exposing them to increased costs in the process,” wrote Barbara Roper, director of investor protection, and Micah Hauptman, the federation’s financial services counsel, in letters to Securities and Exchange Commission Chairman Jay Clayton, Financial Industry Regulatory CEO Robert Cook and Labor Secretary Alexander Acosta.

Roper and Hauptman urged FINRA, SEC and the Labor Department “to take quick and forceful action to protect investors from any firms found to be exploiting the DOL rule to profit unfairly at their customers’ expense.”

If brokers are steering customers to higher-cost fee accounts, “that would be a clear violation of the DOL rule provisions, as well as parallel requirements under SEC and FINRA standards, requiring firms that offer both fee and commission accounts to recommend the type of account that is best for the customer,” Roper said.

Such a practice would also “clearly violate” the fiduciary rule’s requirement that compensation for fee and commission accounts alike be reasonable in light of services offered, the two said.

“It’s possible that industry lobbyists are simply engaging in their all too familiar misrepresentations of the rule’s impact, and it is important to note that those making this claim have failed to provide concrete evidence to back it up,” said Roper.

But Kent Mason, an attorney with Davis & Harman in Washington and a fiduciary rule opponent, said that he was "disappointed" with the federation's assertion, adding that "with the mountains of evidence building about the adverse effects of the DOL fiduciary rule, it was our hope that the entire community could move past by the political rhetoric and posturing, and examine how we can all work together to modify the fiduciary rule."

Commission-based accounts, Mason argued, "are risky and costly under the fiduciary rule. There are numerous surveys and reports – real facts, not rhetoric – that show that, because of these risks and costs, many financial institutions and advisors are either withdrawing from the commission-based market or are restricting access to commission-based accounts."

Just as the industry told Labor, Mason continued, "this is happening solely because of the costs and risks imposed by the DOL rule. That means that many investors have lost access to commission-based accounts. These investors are not 'being steered' toward fee-based accounts; rather, because of the DOL rule, these are the only accounts available to many of them. In fact, those with access to fee-based accounts are the lucky ones; they get fiduciary-protected personalized advice at reasonable fees for the enhanced advisory services provided to fee-based accounts. Millions of investors do not have enough assets to qualify for fee-based accounts, so they will be left with no personalized advice at all because of the fiduciary rule."

But Roper argued in her letter that contrary to lobbyists' assertions, “the vast majority of firms have chosen to continue offering commission accounts under the rule.”

However, if lobbyists are “right that firms are nonetheless steering retirement investors toward fee accounts when they would be better off in commission accounts, these industry groups are essentially acknowledging that brokerage firms are engaged in widespread and egregious violations of both the DOL rule and securities laws.”

If the allegations are true, “it reflects not a problem with the DOL rule itself, as industry lobbyists have tried to suggest, but an enforcement failure on the part of DOL and its fellow regulators at the SEC and FINRA,” Roper added.

“Through its non-enforcement policy, the DOL has sent a message to broker-dealer firms that they can flout the requirements of the rule, harming retirement savers while the DOL looks the other way. If firms are inappropriately shifting retirement investors into fee accounts and charging them excessive fees, as industry lobbyists have claimed, there’s no way the Department could conclude that firms are making a good faith effort to comply,” added Hauptman.

This lack of agency enforcement, Hauptman continues, “only confirms the need for a strong and independent enforcement mechanism, which only the full rule provides.”

The consumer group’s letter came the same day that the Washington Examiner printed an op-ed column by Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, and committee member Rep. Phil Roe, R-Tenn., urging lawmakers to get their anti-fiduciary rule legislation to President Donald Trump’s desk.

The Affordable Retirement Advice for Savers Act, H.R. 2823, which passed the committee on July 20, “will repeal the fiduciary rule and preserve access to affordable retirement advice,” the lawmakers wrote.

“It also amends federal law to require retirement advisors to act in the best interests of their clients. Legislation — not 1,000 pages of red tape — is the right way to address an issue with such a widespread impact,” they wrote, and “proves we can hold financial advisors accountable without causing millions of Americans to lose access to affordable retirement advice.

“It's our hope,” they continued, “that members of both parties will do the right thing by joining together and sending H.R. 2823 to President Trump’s desk.”

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