Milwaukee Journal Sentinel

Melnick: Demand more from financial advisers.

- STEPHANIE L. MELNICK Stephanie L. Melnick is with the law firm Melnick & Melnick S.C., Mequon.

President Donald Trump has been busy. In just over two weeks, he issued 18 executive orders, including a couple that are particular­ly questionab­le. The president banned certain Muslims from entering the United States and appointed adviser Steve Bannon, former executive chairman of Breitbart News, to the National Security Council. The reasons these policies are controvers­ial is self-evident.

But recently Trump’s tone changed. He issued an executive order attacking financial regulation­s, including the Fiduciary Rule, which was slated for April implementa­tion. He signed these anti-financial regulation proclamati­ons surrounded by like-minded legislator­s, including Rep. Ann Wagner (R-Mo.) whose St. Louis district is home to multiple national investment firms, including Edward Jones, Scottrade, Stifel Financial and Wells Fargo Advisors — a city she touts as “one of the largest clusters of brokerage firms outside of New York.”

The president did not take his giant pink eraser to Dodd-Frank or the Fiduciary Rule making holes and leaving rubber shards in his wake. What he did was more insidious. The president’s orders harkened back to his populist campaign rhetoric: he delayed the Fiduciary Rule’s implementa­tion pending a study about retirement investors’ access to financial advice under the rule. Wagner claimed, “We are returning to the American people, low-and middleinco­me investors, and retirees, their control of their own retirement savings. This is about Main Street.”

No, it’s not. The purpose of the Fiduciary Rule is to require financial profession­als who advise retirement savers to act in their clients’ best interests — what most Americans believe their brokers, insurance agents and financial advisers are already doing. In reality, most financial profession­als need only recommend “suitable” investment­s. A front-load, high annual fee index mutual fund might be a suitable investment for your IRA even if a no-load, low annual fee index mutual fund is available. And since it’s suitable, your financial adviser can recommend the more expensive mutual fund, knowing he’ll earn a bigger commission for doing so. The White House Council of Economic Advisers in 2015 determined that retirement savers lose $17 billion annually from exactly this type of conflicted advice.

Conflicted advice inspired the Obama administra­tion to develop the Fiduciary Rule in 2009. The rule-making process involved multiple opportunit­ies for public comment, multiday hearings and revisions by the Department of Labor. The financial services industry repeatedly objected, hating the rule from the get-go. The final rule was issued in April 2016, with an April 10, 2017, effective date. Wall Street trade organizati­ons and insiders, including, for example, the American Council of Life Insurers (ACLI), the National Associatio­n for Fixed Annuities and the Securities Industry and Financial Markets Associatio­n, challenged the Fiduciary Rule in Texas, Washington, D.C., Minnesota and Kansas federal courts starting in June 2016 alleging, for example, that the rule violates the First Amendment because it limits the (bad and conflicted) advice investment advisers can offer.

If Trump is right and the Fiduciary Rule will limit investors’ ability to find financial profession­als willing to advise them, then financial profession­als — unwilling to put their clients’ interests first — are the problem, not the rule. Looking outside the financial services context, what if car dealers refuse to sell used cars in your city because an ordinance requires dealers to sell properly functionin­g cars or disclose defects? The solution is not to scrap the ordinance and allow sales of defective cars.

Here are three key features of the rule:

It requires investment advisers (including brokers and insurance agents) who advise retirement investors to act as fiduciarie­s, requiring them to put your interests ahead of their own.

Advisers may continue to receive commission­s if they comply with the Best Interest Contract Exemption (BIC or BICE) and commit in writing to act in investors’ best interests, charge reasonable compensati­on and disclose how they are paid.

Investors can file class-action lawsuits against advisers and firms who breach their fiduciary obligation­s.

Trump’s executive order requires that the rule be studied, but it can’t be upended without congressio­nal or regulatory action. This rule is a no-brainer. Insist that your senators and representa­tives protect you from Wall Street’s interests and influence. If you need more convincing that Wall Street isn’t looking out for investors, consider Wall Street and its champions in their own words:

Gary Cohn, White House National Economic director and former Goldman Sachs president: “We think it is a bad rule. It is a bad rule for consumers . ... This is like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger.”

ACLI President and CEO, Dirk Kempthorne: “It is urgent the Department of Labor grant a delay in the applicatio­n of the regulation, given the significan­t and harmful impact of the regulation on the ability of Americans to save for a financiall­y secure retirement. Life insurers are proud to act in the best interest of consumers.”

House Speaker Paul Ryan (R-Wis.) tweeted: “President Trump’s action to delay the #fiduciary rule is a wise one. It’s Obamacare for financial planning.”

Given Wall Street’s anti-Fiduciary Rule rants coupled with an inconsiste­nt professed desire to act, “in the best interests of consumers,” the Fiduciary Rule likely is to be delayed and perhaps revised.

So employ your own DIY Fiduciary Rule.

Demand your investment adviser commit to the fiduciary oath in writing. If he refuses, replace him.

Research your financial adviser before you hire him. Look at FINRA’s BrokerChec­k for a brokers’ employment and disciplina­ry history and SEC investment Adviser Public Disclosure Database for investment firms’ filings (hint: start with the firm’s ADV-2 brochure) and advisers’ employment, exams, registrati­ons, and disciplina­ry history.

Ask your financial adviser questions and demand answers.

In 2015, Sen. Elizabeth (D-Mass.) investigat­ed kickbacks offered to the largest 15 annuity companies and found that 13 of the 15 incentiviz­ed their agents with kickbacks — including exotic, all-expenses-paid vacations and golf outings. The companies buried vaguely worded customer disclosure­s about the kickbacks deep in their hundred-page prospectus­es. The Fiduciary Rule would end this. But, for now, you’ll have to demand your financial advisers disclose and forgo these extravagan­t rewards.

Newspapers in English

Newspapers from United States