Service Providers Start Final Fiduciary Rule Analysis

No doubt about it—it’s a big day in the retirement planning industry, and for financials services more broadly.

Comments are already pouring in on the freshly published final fiduciary rule, billed by the Department of Labor (DOL) as a direct extension of President Barack Obama’s wider goal of promoting stronger consumer protections across the economy, especially in the wake of the 2008 financial crisis.  

The DOL began the process of formally publishing the rulemaking at 6 a.m. today, the culmination of the better part of a decade of work and two separate proposed versions. On first review, it appears the final version looks a lot like the second version proposed in the Spring of 2015, albeit with some important softening around the edges in response to industry criticism.

Speaking with reporters on Tuesday, Labor Secretary Thomas Perez stressed that the final version of the fiduciary rule is the result of years of collaboration and discussion between government regulators and the financial services industry, especially recordkeepers and advisory firms concerned about what the rulemaking will do to their compensation models. As one has probably come to expect in this contentious political and regulatory environment, some of the industry response was positive, some negative. Given that the rule is only a few hours old, most of the commentary was pretty cautious.  

Among the first comments to reach PLANSPONSOR was one from the Financial Services Institute, which clearly is in the skeptical camp. According to FSI President and CEO Dale Brown, “The Department of Labor’s two earlier proposals were complex and unworkable. As we have said since day one, there is no compelling evidence this rule is necessary to achieve a uniform fiduciary standard, and DOL’s own analysis fails to make the case.” He says FSI will spend the coming days “thoroughly analyzing this rule to determine if it protects Main Street investors by preserving their access to affordable, objective financial advice delivered by their chosen financial adviser.”

NEXT: Comments from across the industry 

Another early commentator was the Financial Planning Coalition (FPC), composed of the Certified Financial Planner Board of Standards Inc. (CFP Board), the Financial Planning Association (FPA) and the National Association of Personal Financial Advisors (NAPFA). The group issued the following statement regarding the rule, which they argue will “require fiduciary-level advice for all Americans’ retirement assets under the Employee Retirement Income Security Act (ERISA).”

“The Financial Planning Coalition applauds the Department of Labor for its commitment to American investors and retirement savers,” the group writes. “Based on our initial review, this rule, achieved through an inclusive, comprehensive review process, carefully balances needed consumer protections with preserved access to retirement advice. The end result is a rule that will help bring millions of Americans much closer to a secure, dignified retirement. We urge Congress not to harm American investors and retirement savers by dismantling this important consumer protection.”

TIAA also had a statement ready to go, quickly following the rule’s release, from Roger W. Ferguson Jr., the firm’s president and CEO, who pointed out the big impact the final rule will likely have on the individual retirement account (IRA) market, not just within employer-sponsored ERISA plans.

“Putting the customer first is a core TIAA value, and we believe adhering to a best interest standard under the department’s new regulation is an important way to help more people build financial well-being,” he says. “IRAs are a key part of creating retirement security, so we agree with the requirement that distribution advice be subject to the same fiduciary standard as all other investment advice. This will ensure that rollover discussions, including whether to roll over from an employer-sponsored plan to an IRA, are always in employees’ and retirees’ best interest. Based on our preliminary analysis, it appears the department has gone a long way toward making the best interest standard the industry standard. TIAA supports this direction, and we look forward to reviewing the full rule.”

NEXT: One RIA’s analysis  

Robert C. Lawton, president of Lawton Retirement Plan Consultants and an occasional source of commentary for PLANSPONSOR, feels much of the final rule language is “aimed specifically at brokers who provide investment advice to clients under the ‘suitability’ requirement, which exempted brokers from being fiduciaries.”

He adds that the stance taken by the final rule is that “a fiduciary’s responsibilities are both ethical and legal. They are required to provide advice that is in the best interests of their clients rather than themselves and cannot benefit personally from advice shared. Fiduciaries must adhere to the prudent person rule, which states that advisers should act with skill, care, diligence and use good professional judgment. Additionally, fiduciaries should never mislead clients, always provide full and fair disclosure of all important facts and avoid conflicts of interest.”

Like Perez and other supporters of the DOL, Lawton says the final structure of the rule “seems reasonable.”

“Investment advisers working for registered investment advisory (RIA) firms are required to be fiduciaries, providing investment advice that keeps their client’s best interests first and foremost. Full disclosure here, my firm is a RIA and I believe in being a fiduciary to my clients,” he says, adding that the impact on plan sponsors is “going to be nearly all positive.”

“Most retirement plan sponsors have a hazy understanding about what a fiduciary is and if their adviser is acting as one,” he concludes. “Plan sponsors working with advisers who haven’t been acting as fiduciaries will be approached by these advisers as they begin to define a new working relationship. They are likely to outline relationships that feature higher costs. There will also be additional paperwork to sign, which describes their fiduciary limitations.”

He predicts there will be renewed competition between RIAs as different firms feel different fee pressures and respond in different ways. He says the message from Perez and the DOL to sponsors is, “Don’t feel that you have to work with a broker who views his new responsibilities as a burden. These regulations benefit you, the plan sponsor. Any adviser who whines and complains about taking your best interests into account when providing investment advice is not worth working with.”