Time to Put the Kibosh on Fiduciary Exemptions

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The politically powerful trade associations are now more determined than ever to keep their investment advisor membership from having anything to do with the word "fiduciary." In a missive to its members that's remarkably straightforward, the Securities Industry and Financial Markets Association (SIFMA) has demanded that the Employee Benefits Security Administration (EBSA) of the Department of Labor (DOL) withdraw its proposed rule redefining a "fiduciary" and then re-propose it--in accordance, of course, with the dictates of SIFMA. Here are a few quotable nuggets from the SIFMA communication--followed by my interpretation of what I think they really mean:

• "Given the importance of personal choice, your clients deserve strong protections from a new uniform fiduciary standard without sacrificing choice of products and services, or facing higher costs."
   
  Given the importance of flexibility to the profitability of your business model, there's no way that you should subject yourself to any fiduciary standard, which could prevent you from pitching the most lucrative products and services for your business.
   
• The DOL "has proposed a new definition of fiduciary under ERISA.which will lead to increased costs and complexity and less choice for plans and individual retirement accounts which will negatively impact consumers."
   
  The DOL has proposed a new definition of fiduciary under ERISA.which will lead to decreased costs and complexity and greater low-cost choices for plans and individual retirement accounts, which will really hurt your profitability and your business model.
   
• "It is imperative that you make your voice heard by joining the fight to protect your clients."
  It is imperative that you make your voice heard by joining the fight to protect your own business model.

This message to SIFMA members is somewhat ironic given that a number of polls have found that the membership of such trade associations is generally more open to being judged by a fiduciary standard than the leadership of these associations would seem to comprehend, based on their own missives.

The Seller's Exemption in the Proposed Rule
The rule proposed by the EBSA includes a nifty (for non-fiduciaries) provision known as the seller's exemption. Under the proposed rule, a "fiduciary" is anyone who provides "investment advice" which is defined as either (1) "recommendations on investing in, purchasing, holding, or selling securities" or (2) "recommendations as to the management of securities or other property."

And yet, a non-fiduciary such as a broker could still provide either kind of advice as long as (1) the broker represents that it isn't an ERISA fiduciary, (2) the broker isn't an ERISA fiduciary under either ERISA sections 3(21)(A)(i) or 3(21)(A)(iii), (3) the broker isn't an RIA, and (4) the broker doesn't provide individualized advice that's understood to be in connection with investment or management decisions with respect to plan assets. Given these four conditions, the broker won't be considered as providing ERISA-defined "investment advice" and therefore won't be an ERISA-defined "fiduciary." I noted in my last column that the seller's exemption in the proposed rule essentially swallows the rule.

So the key to avoid becoming a fiduciary when dealing with ERISA-qualified retirement plans is written disclosure. The head of the American Society for Pension Professionals and Actuaries (ASPPA) is most helpful in suggesting what this disclosure might look like: "If the advisor [e.g., a commission-based broker or other advisor] discloses to the client [e.g., the fiduciaries of a retirement plan] that they aren't acting in a fiduciary capacity, that they are being compensated by the plan provider [e.g., a broker/dealer, insurance company or mutual fund company] and they are transparent about the amount of the fees they are charging--and the client is OK with that--then they have satisfied their disclosure requirements."

While this suggestion may appear to be all sweetness and light, anyone who is experienced in dealing with retirement plans--and is truly honest in acknowledging the real limitations of a disclosure-only solution--knows differently. In the first place, many people--whether they're consumers, or fiduciaries of mom-and-pop or Fortune 500 401(k) plans--simply don't read disclosures. Others that do take the time to read them may do so until hell freezes over but will never understand the meaning of the disclosures on their own.

But not to worry because right at the side of such plan fiduciaries answering their questions will be those trusty folks who don't want to be fiduciaries (say, brokers, insurance agents, and benefits consultants). These folks will, no doubt, obligingly explain to the fiduciaries the meaning of the word "fiduciary" or will describe why, when a non-fiduciary is acting for a purchaser (or seller) on the other side of a transaction from the retirement plan, that will make the non-fiduciary's interests "adverse to the interests of the plan or its participants." Uh-huh.

Perhaps a DOL attorney who testified at the EBSA hearing in Washington, D.C., on March 1 defined the end-game of a disclosure-only solution best: "The mere fact that there was disclosure of the conflict may actually encourage them [e.g., plan fiduciaries] to believe, 'This guy [i.e., a non-fiduciary advisor] really does have my interests at heart. Look how honest he was. He told me about the conflict.'"