Fiduciary Rule RFI Comments Suggest Split in Industry Outlook

Today is the second and final deadline for submitting responses to the DOL’s broad RFI regarding the fiduciary rule expansion under ERISA—but late comments will also be accepted for a short time. 

The second of the Department of Labor’s aggressive deadlines for submitting responses to a crucial request for information (RFI) process regarding a possible additional delay or full-scale repeal of the fiduciary rule expansion has arrived today, August 7, 2017.

The RFI process included an earlier deadline for responses to the restricted question of whether or not the fiduciary rule implementation should be slowed or indefinitely delayed. This second deadline pertains to the full RFI issued only a short time ago by the DOL, in which the department asks a number of wide-ranging questions about ways the Obama-era rule expansion might enhance or impede the advice retirement investors receive, including whether firms are changing their business models in response to the rule; whether the rule will cause firms to de-emphasize small individual retirement account (IRA) investors; and to what extent firms are making changes to their investment lineups and pricing in response to the rule. The department also asked about new data or insights about class action lawsuits as an enforcement mechanism.

There were thousands of new comments submitted on these points by a variety of parties, from concerned individual investors to the largest retirement recordkeeping and asset management industry providers. It will take some time to do any kind of scientific analysis of the dense, voluminous commentary. However, even a brief survey makes clear that, for the most part, many providers seem to remain steadfast in opposition to the fiduciary rule. They worry that all of the questions/trends mentioned by DOL, as the full fiduciary rule implementation takes place through 2018 and beyond, will play out poorly for advisers and investors alike.

But the comments also make clear not all providers are fretting the accelerating fiduciary expansion. Morningstar’s commentary, for example, sums up the general arguments made in support of allowing the rulemaking to proceed, potentially with some modifications: “In general, we believe the early evidence suggests the rule will be positive for ordinary retirement investors. It appears that it will accelerate existing and largely positive trends for investors in the way that wealth management firms deliver advice by 1) encouraging firms to move from a commission-based model to offering advice for an explicit fee; 2) putting additional focus on investment product expenses which are borne by the investor; and 3) encouraging firms to use financial technology to create innovative advice solutions.”

Morningstar provides evidence that asset managers appear to be responding to the rule by “offering new share classes that should reduce conflicted advice.”

“In the long-run, we expect further innovation in share classes to provide more flexibility to advisers and better outcomes for investors,” Morningstar opines. “We also expect distributors to rationalize their investment lineups in response to the rule.”

Morningstar’s commentary goes on to argue that the fiduciary rule will not necessarily wholly do away with commission-based retirement account servicing, given the new best-interest exemptions also baked into the rulemaking: “In certain cases commission-based accounts may continue to better serve investors—particularly those retirement investors who wish to buy and hold investments for a long period of time—because these arrangements can be less expensive … For example, if an investor paid a 2.5% commission to purchase a fund and a trailer 12b-1 fee of 0.25%, he would be better off after holding the investment for around three years (depending on returns) than if he paid a typical 1% asset management fee annually, assuming all else is equal with regard to the investment, including the quality of advice.” Ultimately, Morningstar argues, it is the quality of advice that is more important than the form by which it is paid, “but making the cost of advice explicit is most likely to help retirement savers assess whether they get their money’s worth for the fees they pay.”

NEXT: Opposition remains as significant as ever

Among the myriad respondents that are more skeptical of the rulemaking is the National Association of Insurance and Financial Advisors (NAIFA), which argues coordination with the Securities and Exchange Commission (SEC), which currently is undertaking a parallel public comment process, is essential to a successful rulemaking outcome.

“Such coordination is necessary to harmonize any standards for firms and advisers in the retail investor context, and to avoid potentially conflicting rules and requirements for the same investment transaction,” the association argues. “Moreover, as the primary regulator in this area, the SEC has invaluable expertise that can and should help inform the Department’s ultimate approach.”

Heeding the DOL’s call for data revealing industry trends occurring alongside the fiduciary rule expansion, NAIFA points to a survey of its membership (with 1,084 respondents) showing 91% “have already experienced or expect to experience restrictions on product offerings to their clients.” In addition, nearly 90% believe consumers will pay more for professional advice services, and 75% have seen or expect to see increases in minimum account balances for the clients they serve.

“And 78% of NAIFA members say that although they continue to offer professional advice to clients, general confusion about the complex Rule and PTEs is impeding their ability to serve clients,” NAIFA says. “Further, a survey of 552 U.S. financial advisers conducted in October 2016 found that 71% plan to disengage from some mass-market investors because of the DOL rule, and 94% of advisers say that small clients orphaned by advisers will have to turn to robo-advice.”

Numerous other respondents take up the argument that a significant number of advisers plan to exit the business entirely due to the fiduciary expansion, which will restrict consumers’ access to much-needed professional advice. Firms say they have restricted product offerings to certain clients, thereby limiting consumer choice, and have abandoned traditional, lower-cost compensation arrangements for advisers in order to avoid the cost of complying with the exemptions and mitigate the threat of costly class action lawsuits.

Seemingly striving for a middle ground, the responses submitted from some of the biggest brands in the retirement industry speak of the importance of protecting individual investors with a strong fiduciary standard while at the same time warning the rulemaking as it stands right now may prove unworkable in the field. Prudential, from its position as a provider of retirement plan services and annuity products, for example says that since the definition of “fiduciary” and the related prohibited transaction exemptions to be adopted by the Labor Department were finalized last year, it has been actively working to meet new obligations.

“These efforts have underscored for us, and we believe for the financial services industry, the complexity of the rule, the need for greater clarity in certain aspects of the rule and the potential unintended consequences for plan participants and beneficiaries, IRA owners and plan fiduciaries,” Prudential notes. “As such, it continues to be our view that the rule presents significant obstacles to the intended goal of enhancing American’s retirement security.”