The U.S. stock market may give us a rocky ride in 2016, but the year is shaping up to be a good one for retirement savers. At long last, investment advisers may be required to put your best interests ahead of their own.
The U.S. Department of Labor is applying the finishing touches to the so-called fiduciary rule – a geeky-sounding phrase that actually will mean a great deal to anyone with a 401(k) or Individual Retirement Account (IRA).
This rule will reshape the retirement advice business because it will require banks, brokers, mutual fund companies and insurance agents to keep fees low and protect your savings from excessive risk when they advise you, rather than focus on how much they can earn in commissions.
(A specific subset of advisers called Registered Investment Advisers, or RIAs, who typically work independently or for smaller firms, already are subject to a fiduciary duty standard.)
Opponents failed to stop the Labor Department last month, when Congress declined to add a rider to the omnibus federal spending bill that would have halted the rulemaking. If they try again, President Barack Obama is ready to veto any subsequent legislation aimed at halting the process.
If you doubt that we need this regulation, consider the case of JPMorgan Chase & Co. Just before the holidays, the largest bank in the United States agreed to pay $307 million to settle accusations by the U.S. Securities and Exchange Commission (SEC) that brokers and advisers in several JPMorgan divisions steered clients into its own, more expensive investment products over other choices without making the required disclosures to clients about conflicts of interest.
JPMorgan also gave preference to third-party hedge fund managers who paid placement fees equal to 1 percent of the market value of invested client assets – so-called “retrocession” fees. While clients did not pay those fees directly, this type of arrangement ultimately hurts the investor because it puts a drag on performance.
Finally, the company chose mutual funds with more expensive retail fees over identical – but less expensive – institutional funds.
The bank will pay $267 million to the SEC, and $40 million to the Commodity Futures Trading Commission, which also conducted an investigation.
The SEC cease-and-desist order describes the violations as willful, fraudulent and deceitful, and identifies $127 million in ill-gotten gains generated through JPMorgan’s disclosure failure.
J.P. Morgan Securities sells through a network of more than 2,800 advisers located in Chase bank branches around the United States. From 2009 through early 2012, it invested as much as 51 percent of client assets in its proprietary funds; that figure fell to roughly one-third of assets by the end of 2013, according to the SEC order.
The bank admitted to wrongdoing, but no restitution will be made to customers. The bank said in a public statement its only misstep was inadequate disclosure of what it sells to customers.
“We have always strived for full transparency in client communications, and in the last two years have further enhanced our disclosures in support of that goal,” the company said in a written statement. “The disclosure weaknesses cited in the settlements were not intentional and we regret them. We remain confident in our investment process and are proud of the way we manage money.”
But disclosure is only part of the problem. “Transparency is important, but it isn’t adequate to meet fiduciary duty. You have to avoid the conflicts first and foremost,” says Kathleen McBride, who chairs the Committee for the Fiduciary Standard, a nonpartisan volunteer organization of professionals advocating for the fiduciary standard.
If the Labor Department rules were already in place, they would have governed any dealings by the bank affecting client retirement accounts, including rollovers from 401(k)s into IRAs – already one of the largest and most lucrative segments of the investment industry and only getting larger as more baby boomers retire.
Meanwhile, the SEC has responsibility for monitoring fiduciary compliance outside retirement accounts. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 directed the agency to consider ways to strengthen and broaden existing fiduciary standards under the securities law. The agency has not taken action yet.
“The bottom line is, in a nonfiduciary world, JPMorgan can do anything it wants to,” says Sheryl Garrett, founder of the Garrett Planning Network of fee-only RIAs, and a key fiduciary advocate. “In a fiduciary world, if advisers told clients to roll over an IRA or 401(k) into these types of funds, every single customer affected would be in a class action lawsuit going after them.”