The fiduciary rule, which requires financial advisors of retirement accounts to act in the best interests of their clients, has kicked up plenty of political and industry fuss. Although the Obama-era rule began taking effect earlier this year, its future survival under a new president and a Republican-controlled Congress remains in question.
But protecting retirement accounts from excessive fees or unnecessary risk is not a new idea and predates the U.S. Department of Labor’s fiduciary rule by more than 40 years. The inspiration for the rule was another law mandating a fiduciary standard — the Employee Retirement Income Security Act of 1974 — better known as ERISA.
This federal tax and labor law, which governs how employee benefit plans are handled, requires companies to act in the best interests of their employees when creating retirement accounts. Although enacted when pensions were king, the law foreshadowed a future world dominated by 401(k)s because it encompasses both types of retirement plans.
Years later it became obvious what ERISA didn’t cover: individual retirement accounts. That was the loophole the fiduciary rule was designed to plug by extending ERISA’s fiduciary standard to non-employer-sponsored IRAs. The same money that was governed by ERISA one day was the next day subject to a weaker suitability standard when it was rolled over into an IRA, says Larry Gwaltney, who co-leads Moore & Van Allen’s Litigation Practice Group in Charlotte, North Carolina. Under the Obama administration, “the Department of Labor believed it was costing people literally thousands of dollars in retirement income,” he says.
[See: 7 Reasons to Invest in an IRA.]
How ERISA came to be. An earlier generation of Americans already had discovered how poorly funded pension plans affected their retirements. The problem came to light after the Studebaker-Packard Corp. closed its manufacturing plant in South Bend, Indiana, in 1963, according to the Department of Labor’s website, and thousands of workers received lump sum payments worth a fraction of their pension benefits.
More than a decade of attempts to improve underfunded pension plans failed to pass in Congress. “It was not until 1972, when NBC aired ‘Pensions: The Broken Promise,’ that real reform efforts begin to take shape,” says Charles Field, partner of San Diego-based Sanford Heisler Sharp LLP and co-chair of the firm’s financial services practice. “To the millions of Americans who were watching, this program enlightened them on the compelling social problem of underfunded pension plans. Public sentiment grew sharply in favor of regulation.”
Of course, costs also played a role in keeping pensions healthy and well-funded, and ERISA required plan administrators to take fiduciary responsibility for those expenses. “Before ERISA, there was so much secrecy about fees,” says Liz Cohernour, chief operating officer of Wintergreen Advisers in Mountain Lakes, New Jersey. Because excessive fees and expenses can devastate the investment performance of retirement plans, Field says, those fees need to be manageable. If not, the plan’s fiduciary could be liable under ERISA, says Jason Howell, a fiduciary wealth advisor in Vienna, Virginia.
So when Congress passed the Revenue Act of 1978, opening the floodgates for employers to replace pensions with 401(k)s, ERISA’s fiduciary requirement still held. By eliminating pensions, companies were free of their financial obligations for funding an employee’s retirement but not of their fiduciary responsibilities as stewards of employer-sponsored retirement plans such as 401(k)s.
[See: 12 Steps to a Stronger 401(k).]
Why a “suitable” investment may not be. Under the law, that responsibility ended when employees left the company and took their 401(k) money with them. As baby boomers began retiring at a rate of 10,000 a day in 2010, the Department of Labor noticed that insurance companies, financial advisors, brokerage firms and banks were encouraging investors to roll over their retirement accounts into IRAs, Howell says. More investors nearing retirement began looking at IRAs than ever before, Howell says.
Once that money was rolled over into an IRA, however, investments that advisors recommended for these accounts only had to meet a suitability standard. Instead of suggesting the lowest cost or most relevant fund to an investor, an advisor could push anything considered “suitable” and earn an undisclosed commission and fees from the sale. Too often that resulted in unnecessarily higher costs and greater risk for the investor.
To protect people’s retirement money, the Department of Labor sought to expand ERISA’s “investment advice fiduciary” definition to ensure that advisors put a client’s interests above their own, says Bruce Givner a tax attorney with Givner & Kaye in Los Angeles. “It requires fees and commissions to be clearly disclosed.” Before the rule took effect in June, only registered investment advisors had to adhere to the fiduciary standard. The rule expands that standard to include anyone making a recommendation or solicitation of any kind to a retirement account, Givner says.
A law in limbo. The key word is “retirement account,” because non-retirement investing accounts aren’t included, although the Securities and Exchange Commission is working on its own fiduciary rule to cover them. Plus, despite more than seven years of debate, with firms and lobbying groups on both sides represented, the Trump administration has left everything in “limbo,” Howell says.
Large financial trade associations, such as the Investment Company Institute, U.S. Chamber of Commerce and Securities Industry and Financial Markets Association, have pushed back about costs and expenses, Givner says. Originally, the Department of Labor wanted to phase in the fiduciary rule between April 10, 2017, and Jan. 1, 2018, but now full implementation has been delayed until July 1, 2019.
Meanwhile, many companies expected the rule to take effect as planned and have already made changes. For instance, Merrill Lynch began shifting its advisors to a fiduciary’s compensation model. LPL Holdings, which as the nation’s biggest independent broker dealer was expected to face the greatest impact from the new rule, reduced its fees 30 percent to get out ahead of the final proposal, Givner says.
Some mutual fund companies have also created two types of cheaper mutual fund shares — transactional “T shares” that come with a 2 percent to 2.5 percent load, and no-load “clean shares” — to replace shares that historically have charged 5 percent front-end sales loads, trailing fees or contingent deferred sales charges, Field says. “Because the current law does not permit “clean” shares, the Securities and Exchange Commission has to review and approve a fund’s “clean” shares before they can be offered to the public. Eventually, once the regulatory hurdles are cleared, “clean shares,” will become a dominant force,” Field says.
[See: 7 Investment Fees You Might Not Realize You’re Paying.]
In the meantime, Howell suggests investors take matters into their own hands by asking advisors how they are paid and if they accept any commissions. “If their answer is a little slippery, ask them if they are a fiduciary and if they’d be willing to put it in writing,” Howell says. “Anyone who is not a fiduciary is going to have a lot of trouble putting that in writing because of compliance issues.”
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ERISA: Why the Fiduciary Rule Is Not a New Idea originally appeared on usnews.com
