Will investors be harmed if the DOL releases a fiduciary rule? What if the SEC doesn't?

The latest debate over whether the SEC and the Department of Labor should issue fiduciary rules this year recently turned to whether investors could be harmed by DOL’s rulemaking, or harmed by the lack of such a rulemaking by the SEC.

Indeed, fiduciary advocates told SEC Chairwoman Mary Jo White and the four commissioners in a mid-April letter that the SEC should act “expeditiously” to establish this year a uniform fiduciary standard of conduct consistent with Section 913 of the Dodd-Frank Act. That portion of the law gives the agency the authority to write a fiduciary rule for brokers that’s “no less stringent” than what is contained in the Investment Advisers Act.

The fiduciary advocates—including AARP, the CFP Board of Standards, the Consumer Federation of America, the Financial Planning Association, Fund Democracy and NAPFA—provided what they said is “empirical evidence” from academic research, market analysis and observation of industry practices that illustrates the harm to investors from allowing brokers to give advice to retail customers under a “suitability” standard.

Less Advice for Workers?

A report by Quantria Strategies, released in early April and commissioned by the law firm Davis & Harman LLP on behalf of a coalition of financial services organizations that provide retirement services, said that if the DOL expands its definition of fiduciary under ERISA to include rollover advice, it could spark “cash outs” of retirement plans at the time workers change jobs. The report claimed that could reduce retirement savings by as much as 40% for affected individuals.

Kent Mason, a partner at Davis & Harman in Washington, told me that if broker-dealers and call center representatives are fiduciaries, “the DOL rules would prohibit them from giving advice to workers regarding their distribution options. It is not a business decision by the BDs or the reps; it is a legal prohibition.”

The legal prohibition, Mason continued, arises under the DOL’s prohibited transaction rules. “Under those rules, a fiduciary is prohibited from giving any advice that could affect how much compensation he or his employer receives.”

For example, Mason—whose firm represents the companies that participated in the Oliver Wyman study on IRAs released to the DOL and the SEC last April—said that “if a BD or rep is associated with a financial institution, which is almost always the case, the financial institution may benefit if the participant rolls the money into an IRA that is maintained by the financial institution or into investments provided by the financial institution. Because of this potential benefit, the BD or rep would be precluded from providing any assistance regarding distribution options.”

Phyllis Borzi, assistant secretary for DOL’s Employee Benefits Security Administration, who’s the primary architect of the fiduciary rule, has said that rollovers will be included in DOL’s reproposed rule—which likely will be released later this year.

The Limitations of the Suitability Standard

As to the SEC’s rulemaking, the fiduciary advocates, who dub themselves the “Friends of Fiduciary,” told White and the commissioners that they “strongly believe that in order to be meaningful and consistent with Section 913, a uniform fiduciary rule must include more than the current suitability standard supplemented by additional disclosure requirements.”

Designed with a sales relationship in mind, the groups continued, “the suitability standard does not impose the same clear obligation that exists under a fiduciary standard, which requires the advisor to put the customer’s interest first.”

The groups go on to argue that the suitability standard “does not impose an obligation on brokers to appropriately manage conflicts of interest in order to ensure that they do not influence recommendations. These are among the standards that distinguish a suitability relationship from a fiduciary relationship.”

There is no justification, the groups said, “for applying different standards of care to financial professionals who are offering the same services to investors. Over the years, broker-dealers have not only identified themselves as financial advisors, but they have offered virtually identical services to investors in order to compete. The commission has permitted, at least tacitly, this evolution by failing to apply the appropriate regulatory standard.”

The letter then cited how investors are harmed by not requiring brokers to adhere to a fiduciary standard. “Investors suffer concrete harm—in the form of higher costs and poorer performance.”

The letter noted that advice offered by a broker-dealer in a non-fiduciary capacity can significantly erode long-term investor returns, citing a recent investor bulletin published by the SEC: “As the commission warned […] over time, even ongoing fees that are small can have a big impact on your investment portfolio,’ reducing returns, shrinking a nest egg and preventing investors from achieving financial goals.”

Not So Fast, Says SIFMA

Ira Hammerman, executive vice president and general counsel for SIFMA, said in reaction to the fiduciary advocates’ letter that while SIFMA “fully supports the SEC moving forward with fiduciary rulemaking,” it “strongly disagrees with any suggestion that customers of broker-dealers are suffering concrete harm in terms of higher costs or poorer performance.”

In fact, Hammerman continued, “because broker-dealer customers pay commissions as opposed to asset management fees, they are often more economical than RIA accounts. As for account performance, I’m sure there are plenty of broker-dealer accounts that perform better than RIA accounts, and I’m sure there are examples of RIA accounts that do better than broker-dealer accounts.”

SEC Chairwoman White stated in late February that the agency would make a “threshold decision” this year on whether to move forward with a fiduciary rulemaking.

Evidence From the Markets and Academia

This impact of the current fiduciary exemption for brokers, the fiduciary advocates’ letter said, was illustrated in an October 2013 Bloomberg Markets magazine report on data filed with the SEC, which showed that “‘89% of the $11.5 billion of gains in 63 managed-futures funds went to fees, commissions and expenses during the decade from Jan. 1, 2003 to Dec. 31, 2012.’”

The article stated that brokers “‘have an incentive to keep clients in managed-futures funds because they receive annual commissions of up to 4% of assets invested and investors pay as much as 9% in total fees each year.’”

The groups’ letter also cited reviews by Michael Finke, professor in the doctoral program in personal financial planning at Texas Tech University, of a number of academic studies related to the potential benefits to consumers of a fiduciary standard, including studies showing that less sophisticated and less wealthy investors are most likely to suffer harm from recommendations that are not based on their best interest.

For instance, a 2012 study found that commission-compensated insurance agents “will consistently recommend higher-commission products to less sophisticated consumers, leading to welfare losses that are greatest among those who can least afford to sustain them,” the letter stated.

Improving disclosures, the groups argue, will not “cure the significant harm that currently exists,” nor will better educating investors about the differences between brokers and advisors or relying on investors to choose the business model that is best for them. “It is in this context that the well-documented problem of investor confusion becomes relevant,” the groups stated. “Numerous studies over the years have demonstrated that investors do not understand the differences between brokers and advisors, including the differences in the legal obligations to clients.”

In an interview that appears in this issue’s cover story, White admitted that investors do not understand the difference between a broker and an advisor. She said, “The data certainly shows […] that there is that investor confusion.”

Finke told me that “increased disclosure is probably the worst thing that could happen” in the SEC’s fiduciary rulemaking. “It may even be counterproductive.” Basically, he said, “conflict-of-interest disclosure may even create an environment where a client feels they either have to follow the advice or admit that they don’t trust the advisor. Since advisors are often acquaintances, this is very difficult to do.”