While the financial services community waits for some movement from the SEC on new rules and policies governing advisors, the Labor Department has taken it upon itself to get the ball rolling in the name of better protecting investors and pensioners.
During two days of testimony last week, the Labor Department heard from constitutes both for and against its new proposed rule that would expand the definition of fiduciary to include anyone who offers recommendations on investing in, buying, holding or selling securities or anyone who provides advice on managing securities or IRAs as a fiduciary.
On Tuesday, the Certified Financial Planner Board of Standards weighed in with its perspective, crediting the DOL for taking the initiative to lay the foundation for determining not only what constitutes investment advice but also when and how advisors and broker-dealers should disclose any and all potential conflicts of interest to investors.
"CFP Board is certainly encouraged that the Department of Labor is giving so much attention to this issue," said Marilyn Mohrman-Gillis, the CFP Board's managing director for public policy and communications. "Most Americans invest through their 401(k)s and IRAs. We commend the Department for providing a broader and clearer understanding of what it means to provide investment advice. This should help protect participants and beneficiaries from conflicts of interest and self-dealing."
Mohrman-Gillis added that while most of the critics of the DOL's recommendations -- which call for expanding the definition of a fiduciary beyond the current standard established by the Employee Retirement Income Security Act of 1974 (ERISA) to anyone who provides investment advice even one time -- would prefer it wait for the SEC to deliver its own official definition and rule on the fiduciary standard, the CFP wants the DOL to continue moving forward on its own.
"As compared to an SEC rulemaking, the ERISA fiduciary framework has been in place for more than 35 years and has been carefully developed to provide protections to plans and plan participants consistent with Congress's intent," she said. "The Department is not currently revisiting the standard, but rather is expanding its application to additional relationships that it has identified as presenting greater risks of conflicts of interest and self-dealing."
That's not to say the CFP Board is unanimously supporting all of the Department of Labor's proposed rules, particularly those pertaining to the so-called "adverse interests" exception.
"We do have concerns though that the proposed adverse interests exception to the proposed definition could create a huge loophole that would weaken the intent of the expanded definition of fiduciary," Mohrman-Gillis said. "As we read it, this exception could allow advisers to simply 'opt out' of ERISA's fiduciary status by disclaiming any intention to provide impartial investment advice."
She also said the fiduciary standard is a not a "disclose and disclaim" standard and that the disclosure of a conflict of interest "cannot negate fiduciary status, including the duty to act as a prudent investor."
Last month, The Securities Industry and Financial Markets Association fired off a letter to the Department of Labor, arguing that its proposed rule to redefine the term fiduciary could interfere with investors’ ability to save for retirement and that financial institutions will charge more to plan participants and IRA account holders.
SIFMA also urged the DOL to work more closely with the Financial Industry Regulatory Authority and the SEC to ensure any new fiduciary standard of care for brokers and investment advisors will work effectively and fairly throughout the industry.
For now, the DOL said the testimony it received as well as the issued raised in letter writing campaigns from all constituents will be reviewed by it and the SEC before it embarks on any new policies, reports or rulemaking endeavors down the road.
But from the CFP Board's view, the Labor Department is mostly on the right track.
"There is no reason why advice about taking a distribution from a plan should be treated any differently from advice about how to invest funds within the plan," Mohrman-Gillis said. "Some of the greatest abuses we have seen began with self-interested advice that a plan beneficiary take a lump-sum distribution from a benefit plan. There are many considerations in deciding to take a distribution from a plan, and sometimes the best advice may be to leave the funds in the plan, and not to take a distribution."
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