DoL FIDUCIARY RULE ~ In Plain English
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1 MBA Risk Management & Compliance Institute September 13, 2017 Shane B. Hansen, Partner Warner Norcross & Judd LLP DoL FIDUCIARY RULE ~ In Plain English 2017 Warner Norcross & Judd LLP. All rights reserved. WNJ.com
2 Agenda What s certain, what s not... Applicable fiduciary requirements Transition period compliance Questions 2017 Warner Norcross & Judd LLP. All rights reserved. Page 2
3 Status today What s certain... Fiduciary status is applicable (eff. 6/9/17) Transitional prohibited transaction exemptions (PTEs) do apply 18-month delay on full applicability What s not... DoL s changes to PTE s conditions Pending court challenges still on appeal Political prognosis unlikely to block 2017 Warner Norcross & Judd LLP. All rights reserved. Page 3
4 Status today What s effective now... Fiduciary a/k/a best interest standard Fiduciary advice definitions... Recommendations to tax-qualified accts Recommendation of service providers Rollovers and required distributions Status change notice under 408(b)(2) DoL and IRS enforcement moratorium 2017 Warner Norcross & Judd LLP. All rights reserved. Page 4
5 Status today What s being delayed 18 months... Transition period extended to 7/1/2019 Best interest contract (BIC) requirements Principal transaction requirements Changes to PTE (annuities) What s gone... Prohibitions against mandatory arbitration clauses with class action waivers 2017 Warner Norcross & Judd LLP. All rights reserved. Page 5
6 Status today DoL still evaluating public comments Pres. Trump s Executive Memo analysis Fiduciary standard is unlikely to change Burdensome conditions are likely change Where to monitor DoL rulemaking Warner Norcross & Judd LLP. All rights reserved. Page 6
7 More information DoL FAQs Part I Exemptions Part II Rule Transition Period (Set 1) Transition Period (Set 2) Warner Norcross & Judd LLP. All rights reserved. Page 7
8 DoL Rule s Highlights Broadened the type of advice that constitutes fiduciary investment advice Expanded scope to ERISA plans and... IRAs (traditional and Roth IRAs) Archer MSAs, HSAs, and Coverdell Education Savings Accounts Applies changes to both ERISA and Internal Revenue Code 2017 Warner Norcross & Judd LLP. All rights reserved. Page 8
9 Fiduciary advice includes... Recommendations ( you should ) For compensation (direct/indirect); By a person who: Acknowledges fiduciary status; or Gives individualized advice; or Directs advice to specific investors 2017 Warner Norcross & Judd LLP. All rights reserved. Page 9
10 Fiduciary advice includes... Investment advice includes... Acquiring, holding, disposing of securities or other investment property Management of these investments - Investment policies or strategies Portfolio composition Selection of other providers Selection of account arrangements (e.g., brokerage versus advisory) 2017 Warner Norcross & Judd LLP. All rights reserved. Page 10
11 Fiduciary advice now also includes... Recommendations also cover... Rollovers, transfers, or distributions Amount(s); Form of distribution; or Destination of the funds Recommending investment product Recommending investment service 2017 Warner Norcross & Judd LLP. All rights reserved. Page 11
12 Fiduciary advice does NOT include... Plan information Investment education General financial, investment, and retirement information Hire me sales pitches What we can do for you And not what you should do Transactions with independent fiduciaries with financial expertise 2017 Warner Norcross & Judd LLP. All rights reserved. Page 12
13 Fiduciary advice does NOT include... Investment property does not include Health, disability, or term life insurance Other property having no investment component 2017 Warner Norcross & Judd LLP. All rights reserved. Page 13
14 Independent fiduciary exception Covers industry professionals Subadvisers to Institutional Fiduciary No meetings or advice to clients Institutional Fiduciary: Bank, insurance company, RIA, BD, or Responsible for at least $50M in AUM (plan and non-plan assets) 2017 Warner Norcross & Judd LLP. All rights reserved. Page 14
15 Fiduciary advice requirements Fiduciary status applies today (6/9/17) Fiduciary requirements are: Impartial, best interest, prudent advice Reasonable compensation (all sources) No material misstatements Mitigate adviser-level conflicts of interest Variable compensation is permitted if fully disclosed to the client 2017 Warner Norcross & Judd LLP. All rights reserved. Page 15
16 Fiduciary advice requirements ERISA prudent man standard... care, skill, prudence, and diligence under the circumstances a prudent man acting in a like capacity and familiar with such matters in the conduct of an enterprise of a like character and with like aims... Duty of loyalty - solely in client s interest Key point: document the process 2017 Warner Norcross & Judd LLP. All rights reserved. Page 16
17 Fiduciary advice requirements Rollovers, roll-ins, required distributions... A prudential process is required Gather and present current options/costs Compare available alternatives Evidence your comparison (old vs. new) Costs, alternatives, features Your recommendation(s) Client s decision Supervise and evidence the process 2017 Warner Norcross & Judd LLP. All rights reserved. Page 17
18 Rollovers, roll-ins, RMDs... Explain options to client Stay in plan, roll to new plan, roll to IRA Distribution options Compare plan v. plan or IRA v. IRA Need old plan/ira to compare Investments, expenses, and services Plan features vs. IRA features Assess/apply to client s circumstances 2017 Warner Norcross & Judd LLP. All rights reserved. Page 18
19 Leveling adviser compensation Adviser-level compensation can vary by product types (e.g., mutual funds vs. variable annuities or equity vs. bonds) No compensation variations among same type/class (e.g., mutual fund families and share classes) No adviser-level economic incentives... Quotas, bonuses, contests, awards, trips Recruiting incentives 2017 Warner Norcross & Judd LLP. All rights reserved. Page 19
20 Education versus Advice Education about options (pros/cons) is OK Education materials become advice if: Recommendation is a distribution (even an RMD) such as to the amount Specific product or service recommendations 2017 Warner Norcross & Judd LLP. All rights reserved. Page 20
21 Grandfathered transactions Old standards applied to... Transactions concluded before 6/9/17 Contractually committed investments But not expressions of future intent New standards apply to... Investments of new money, even into old accounts 2017 Warner Norcross & Judd LLP. All rights reserved. Page 21
22 PTE Annuities Covers fixed rate and fixed indexed Fiduciary standard of care applies Reasonable compensation No misstatements IMOs can continue to receive sales comp Unless changed, PTE will only apply to fixed rate annuities 2017 Warner Norcross & Judd LLP. All rights reserved. Page 22
23 Best Interest Contract Unless changed (seems like)... Requires a written client contract Acknowledgement of fiduciary status Contractually enforceable undertaking Disclosures (in person and on website) Policies and procedures to implement, including eliminating all adviser-level incentives 2017 Warner Norcross & Judd LLP. All rights reserved. Page 23
24 Thank You These materials are for educational use only. This is not legal advice and does not create an attorney-client relationship Warner Norcross & Judd LLP. All rights reserved. Page 24
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