Advisers face high standard under rule
It seems like an issue everyone can agree on: Financial professionals should be required to handle our retirement money with the utmost care, putting investors’ interests first.
But that type of care comes in degrees, and deciding exactly how far advisers should go has been the center of heated debate for nearly 15 years, pitting financial industry stakeholders, who argue their existing regulatory framework is enough, against the U.S. Labor Department, the retirement plan regulator, which says there are gaping holes.
The issue has reemerged as the department prepares to release a final rule that would require more financial professionals to act as fiduciaries — that is, they’d be held to the highest standard, across the investment landscape, when providing advice on retirement money held or destined for taxadvantaged accounts, such as individual retirement accounts.
Most retirement plan administrators who oversee the trillions of dollars held in 401(k) plans are already held to this standard, part of a 1974 law known as ERISA, which was established to oversee private pension plans before 401(k)s existed. But it doesn’t generally apply, for example, when workers roll over their pile of money into an IRA when they leave a job or retire from the workforce. Nearly 5.7 million people rolled $620 billion into IRAS in 2020, according to the latest IRS data.
The Biden administration’s final regulation, which will be released this spring, is expected to change that and patch other gaps. Investment professionals selling retirement plans and recommending investment menus to businesses would also be held to its fiduciary standard, as would professionals selling annuities inside retirement accounts.
“It shouldn’t matter whether you’re getting advice on an annuity, any kind of annuity, a security — if it’s advice about your retirement, that should have a high standard that applies across the board,” said Ali Khawar, the Labor Department’s principal deputy assistant secretary of the Employee Benefits Security Administration.
The evolution of brokers’ and advisers’ duties to American investors stretches back decades. But the journey to extend more stringent protections over investors’ retirement money began during the Obama administration, which issued a rule in 2016 that was halted shortly after President Donald Trump took office and was never fully enacted; it was struck down in 2018 by an appeals court in the 5th Circuit. That rule went further than the current one — it required financial firms to enter contracts
with customers, which allowed them to sue, something the court argued went too far.
The Biden administration’s plan — and the final rule could differ from the initial October proposal — would require more financial professionals to act as gold-standard fiduciaries when they’re making an investment recommendation or providing advice for compensation, at least when holding themselves out as trusted professionals.
The standard also kicks into play when advisers call themselves fiduciaries, or if they control or manage someone else’s money.
As it stands, it is much easier to avoid fiduciary status under the ERISA retirement law. Investment professionals must meet a five-part test before they are held to that standard, and one component states that professionals must provide advice on a regular basis. This means that if an investment professional makes a one-time recommendation, that person is off the hook — even if the advice was to roll over someone’s lifetime savings.
Though investor protections have improved in recent years, there isn’t a universal standard for all advisers, investment products and accounts.
The varying “best interest” standards can be dizzying. Registered investment advisers are fiduciaries under the 1940 law that regulates them, but even their duty isn’t viewed as quite as stringent as an ERISA fiduciary.
Professionals at brokerage firms may be registered investment advisers, to whom the 1940 fiduciary standard applies — or registered representatives, to whom it does not. In that case, they’re generally held to the Securities and Exchange Commission’s best interest standard. There’s more.
Annuity sellers are largely regulated by the state insurance commissioners, but legal experts say their best interest code of conduct, adopted in 45 states, is a weaker version than the one for investment brokers. Variable annuity and other products, however, fall within the domains of both the SEC and the states.
Stakeholders in the financial services and annuities industries say the current standards that apply are enough.
This includes Regulation Best Interest, enacted by the SEC in 2019, which requires brokers to act in their customers’ best interests when making securities recommendations to retail customers. They argue that the more stringent ERISA standard would cause customers to lose access to advice (though comprehensive lower-cost advice from fiduciaries has become more accessible in recent years).
The SEC’S adoption of Regulation Best Interest “requires all financial professionals subject to the SEC’S jurisdiction to put their clients’ interest first — to not make recommendations that line their own pockets at the expense of their client,” said Jason Berkowitz, chief legal and regulatory affairs officer at the Insured Retirement Institute, an industry group, during a House hearing about the rule in January.
But there is enough of a difference between the different best interest standards and ERISA fiduciary status that firms take pains to make disclosures on their websites that they aren’t that kind of fiduciary.
On its website, Janney Montgomery Scott, a financial services firm in Philadelphia, said fiduciary status was “highly technical” when it came to retirement and other qualified accounts and depended on the services chosen.
Confused?
“Unless we agree in writing, we do not act as a ‘fiduciary’ under the retirement laws,” the firm said, referring to ERISA, “including when we have a ‘best interest’ or ‘fiduciary’ obligation under other federal or state laws.”
“It would be unreasonable to expect ordinary retirement investors to understand the implications of these disclosures,” said Micah Hauptman, director of the Consumer Federation of America, a nonprofit consumer association.
Under the latest proposal, fiduciaries must avoid conflicts of interest. That means they can’t provide advice that affects their compensation, unless they meet certain conditions to ensure investors are protected — that includes putting policies in place to mitigate those conflicts. Disclosing conflicts alone isn’t enough, department officials said.
“Our statute is very anticonflict in its DNA,” Khawar of the Labor Department said. “There are ways that we’re going to expect you to behave to ensure that the conflict doesn’t drive the decision that you make.”
Kamila Elliott, the founder and CEO of Collective Wealth Partners, a financial planning firm in Atlanta whose clients include middle-income to high-earning Black households, testified at a congressional hearing in favor of the so-called retirement security rule. Elliott, who is also a certified financial planner, said she had seen the effects of inappropriate advice through her clients, who came to her after working with annuity and insurance brokers.
One client was sold a fixed annuity in a one-time transaction when she was 48. She invested most of her retirement money into the product, which had an interest rate of less than 2.5% and a surrender period of seven years. If she wanted to allocate any of that money in the market, which Elliott felt was more appropriate for her age and circumstances, she would owe a penalty of more than 60% of her retirement assets.
“A one-time and irrevocable decision as to whether and how to roll over employer-sponsored retirement assets may be the single most important decision a retirement investor will ever make,” she said before a House committee in January.
Another client who had just $10,000 in an individual retirement account was sold a whole life insurance policy with an annual premium of $20,000 — something most average investors cannot keep up with, causing them to lose the policies before they can benefit from them.
“For many investors, it would not be wise to put your entire retirement portfolio in an insurance product,” she said.
Jason C. Roberts, CEO of the Pension Resource Institute, a consulting firm for banks, brokerage and advisory firms, said he expected that financial services providers would need to change certain policies to adhere to the new rule, such as making the compensation more level across products, so advisers would not be paid more for making certain recommendations, and curb certain sales incentives and contests.
“It’s really going to hit the broker-dealers,” he said, adding that parts of the annuity industry may be more affected.
Labor Department officials said they took industry stakeholder and other comments into consideration when drafting the final rule, though they declined to provide details.
After the White House’s Office of Management and Budget completes its review of the final rule, it could be published as soon as this month.
Given the rule’s history, that may not be the end of the road. Legal challenges are expected, but fiduciary experts say regulators devised the rule with that in mind.
Arthur B. Laby, vice dean and professor at Rutgers Law School, said the court that voided the Obama-era rule did not recognize the societal changes that had affected the market for retirement advice.
In her opinion on behalf of the majority, the judge argued that when Congress enacted ERISA — in 1974 — it was well aware of the differences between investment advisers, who are fiduciaries, and stockbrokers and insurance agents, who “generally assumed no such status in selling products to clients.”
That’s why, in part, the court argued fiduciary status shouldn’t apply to brokers now.
But times have changed. “Today,” Laby said, “many brokers function as advisers through and through.”
The latest proposal acknowledges that: If a professional making a recommendation can be viewed as someone with whom an investor has a relationship of trust and confidence — whether a broker or an insurance agent — that person would be considered a fiduciary.
“A relationship of trust, vulnerability and reliance,” Laby said, “calls for the protections afforded by a fiduciary duty.”