Do Investment Advisors Have Your Best Interests In Mind? They Don’t Have To

Image courtesy of Alan Levine

The Department of Labor’s Fiduciary Duty Rule aims to protect families from conflicts of interest by requiring advisors to act in the best interest of customers. Sounds pretty common sense. But it’s now in jeopardy as President Donald Trump on Friday signed an executive order directing the Department to take the first step toward changing or eliminating the rule, before it even formally takes effect.

Trump’s executive order essentially does away with the April implementation deadline for the so-called fiduciary rule  — also known as the conflicts of interest rule — and could erase it altogether.

The rule, which was finalized in April 2016 after years of back and forth between federal regulators and the banking industry, aimed to prevent advisors from gouging customers by selling them products that could benefit the advisor financially but may not be in the best interest of the consumer.

Without this regulation, some companies that offer advice on retirement investments, such as stockbrokers or those who sell life insurance, only have to comply with a “suitability” standard, the New York Times reports.

The suitability standard requires brokers to make recommendations that are suitable based on a client’s personal situation, but not necessarily what is best for their future.

Under the fiduciary rule, an advisor would be required to determine what would best suit a consumers’ needs, even if they don’t offer that product or service.

With Friday’s executive order, things will continue as they always have under the suitability standard. That is, until the review of the fiduciary rule is finished, and it is either scrapped or, more unlikely, enforced.

Opponents of the fiduciary rule argue that it could hurt consumers by driving up the costs of working with advisors.

The American Banking Association in April 2016 said that it was concerned about the rule.

“Banks have a long history of helping customers save and prepare for retirement through IRAs, 401(k)s and other important products and services,” ABA said. “For months, we have presented the DOL with ways to revise the rule to preserve the value of IRAs and 401(k)s for bank customers. We recognize the efforts that the DOL has made to address our concerns that the rule could make it harder for customers to continue to use these important bank services.”

On the other end of the spectrum, consumer advocates warn that doing away with the soon-to-be implemented rule could have a lasting adverse affect on consumers.

“The Department of Labor’s fiduciary rule is essential,” said Laura MacCleery, vice president of consumer policy and mobilization for our colleagues at Consumers Union. “Too often, some advisers may steer you to investments with high fees and lower returns that benefit their bottom line, but leave you paying a heavy price.”

A recent Consumer Reports survey found that just 34% of Americans were either only slightly confident or not confident (about 31%) that banks and investment companies were acting transparently and responsibly to charge reasonable fees and protect their investments.

The fiduciary rule, MacCleery notes, helps remove the conflicts of interest that can jeopardize consumers’ retirement.

“Rolling back this rule could compromise the retirement security of millions of Americans,” she says.

The Consumer Federation of America argues that the rule, even months away from implementation, has helped consumers, including lower costs for retirement advice and products, incentives to act against consumers’ interests have been eliminated, and consumers have more choice when looking for advisors.

“If the Department of Labor follows through on this threat and delays and repeals the rule, brokers and insurance agents will be free to go back to putting their own financial interests ahead of the interests of their clients, recommending investments that are profitable for the firm but not the customer,” CFA says in a statement. “And they will be permitted to do all this while claiming to act as trusted advisers.”

The executive order comes the same day that Massachusetts Sen. Elizabeth Warren released a report [PDF] detailing the kind of kickbacks currently offered to retirement advisors for selling financial products, regardless if they are in the best interest of customers.

The report details an array of trips offered by companies. For example, the investigators found that the American National company offers its “top 80 qualifiers and their guest” a five-day stay at “The One & Only Palmilla” resort in Los Cabos, Mexico in May 2017, while AIG Partners Group, in order to “renew and strengthen bonds with our most valued distribution partners,” offers its top-selling annuity agents a May 2017 four-day stay with a guest at the Ritz-Carlton in San Francisco.

“The Labor Department’s Conflict of Interest Rule will end the kinds of kickbacks and incentives that put families’ retirement savings at risk,” Sen. Warren said in a statement.

New York Rep. Carolyn Maloney issued a statement shortly after the executive order was signed, calling the action troubling.

She notes that the order essentially requires the DOL to “conduct a one-sided cost-benefit analysis to lay the groundwork for repealing this critically important rule.”

At this afternoon’s signing of the memorandum, Trump was joined by Rep. Ann Wagner (MO), who has been a vocal critic of the fiduciary rule.

“What we’re doing is we are returning to the American people — low- and middle- income investors, and retirees — their control of their own retirement savings,” said Rep. Wagner at the signing.

What the Congresswoman failed to mention in all this discussion of investors and retirees is that her campaign was predominantly backed by the financial industry.

According to the Center for Responsive Politics, in 2016 alone Rep. Wagner received around $875,000 in campaign contributions from the financial sector. That is more than $600,000 above the contribution level of any other sector that funded her election.