The DOL Conflict of Interest Rule Considerations for Registered Investment Advisors The Department of Labor s Conflict of Interest Rule (the Rule) has broad implications for the financial services industry. While Registered Investment Advisors (RIAs) may potentially be less impacted than broker-dealers, the change in the definition of investment advice under the Employee Retirement Income Security Act of 1974, as amended, (ERISA) expands the scope of individuals who will be considered fiduciaries. RIAs, as defined by the Investment Advisers Act of 1940, as amended, (Advisers Act) will need to consider the potential compliance requirements with the Rule and how they will adapt. As you read this article, ask yourself if you have repeatable processes in place to help you comply with all of the relevant aspects of the Conflict of Interest Rule. What s your game plan? The Rule generally assigns fiduciary status to investment recommendations made to ERISA plans, plan participants or IRA holders. Although IRAs are generally not subject to ERISA, the Internal Revenue Code contains parallel prohibited transaction provisions that are applicable to transactions involving ERISA plans as well as IRAs. While RIAs are always fiduciaries under the Advisers Act, they must also consider distinct obligations when deemed a fiduciary under ERISA. Below is a high level review of implications for RIAs to consider. Important New Definition of Investment Advice Under ERISA and Implications for RIAs While RIAs always act in a fiduciary capacity for their clients under the Advisers Act, the RIA may also be deemed a fiduciary under ERISA when providing advice on the retirement assets held by a client. Simply put, there are different fiduciary standards of conduct under each of these laws, and RIAs, who are also ERISA fiduciaries, should not assume that compliance with the Advisers Act meets the ERISA requirements. Key distinctions include: Disclosure and informed consent may address conflicts that arise in advisory relationships, but this approach alone cannot resolve a conflict of interest on the part of an ERISA fiduciary. An ERISA fiduciary always has an absolute duty to avoid conflicts of interest, because conflicts of interest violate the ERISA fiduciary standard. Fiduciaries may engage in certain transactions only where a statutory or administrative exemption (i.e., an exemption issued by the DOL) is available and the ERISA fiduciary has satisfied the applicable conditions for exemptive relief. If an RIA is deemed an ERISA fiduciary, disclosure practices may fall short. The DOL s Conflict of Interest Rule changes the definition of investment advice under ERISA to: A person is providing investment advice if they provide a recommendation for a fee to a plan, plan fiduciary, plan participant or beneficiary, an IRA or an IRA owner; AND The person, directly or indirectly, represents they are acting as a fiduciary or Renders the advice based on the understanding that the advice is particular to the needs of the plan/participant/ira/ira owner or Directs the advice to a specific recipient regarding the advisability of a particular investment or a management decision
Fiduciary status for purposes of ERISA and the Internal Revenue Code differ from those associated with fiduciary status under the federal securities laws which is something all RIAs need to understand. The prohibited transaction rules under ERISA and the Internal Revenue Code forbid a fiduciary from engaging in a transaction that involves IRA or ERISA plan assets if there is a conflict of interest. ERISA also specifically prohibits self-dealing transactions, and similar rules exist in the Internal Revenue Code. The DOL s Conflict of Interest Rule addresses the conflict that exists where a fiduciary has given recommendations that are considered to be investment advice, and the fiduciary receives a fee in connection with the advice. Recommendations are broadly defined and include advice regarding the investment of ERISA or IRA assets, including recommendations as to the acquisition, holding or sale of ERISA or IRA assets. Such recommendations will constitute fiduciary investment advice. It s important to think through the following key considerations that could impact your business. Do you make investment recommendations? Virtually all RIAs who engage in the recommendation of investment products and services to ERISA plan participants and IRA holders will be considered fiduciaries. Fiduciary investment advice recommendations are defined to include: Securities recommendations, Investment management recommendations on investment policies and strategies, Portfolio composition, Selection of third parties to provide investment advisory or management services, and The direction of assets to advisory versus commission-based accounts. Recommendations for rollovers, transfers or distributions from a plan or IRA, including recommendations regarding the destination of rollover distribution proceeds are also considered fiduciary investment advice, and may need relief under a prohibited transaction exemption. As you read this article, ask yourself if you have repeatable processes in place to help you comply with all of the relevant aspects of the Conflict of Interest Rule. 2
Do you communicate with clients or prospects in a way that could trigger fiduciary status? Certain communications are not considered investment advice that would make the RIA an ERISA fiduciary: General communications, including: Widely circulated newsletters General marketing materials Commentary on public broadcasts or at-large speaking engagements Investment education, including: Plan information, including information about the impact of early withdrawals, and different rollover and distribution options and the risks associated with them General financial investment and retirement information, such as general information about risk and return, diversification determining income needs in retirement Asset allocation models, even if they are hypothetical with different investment horizons and risk profiles based on generally used market data Interactive investment materials, such as worksheets or tools to help clients estimate income needs in retirement or determine asset allocations or distribution options or products Will you receive a fee from a new or existing client? ERISA and the Internal Revenue Code broadly define fiduciaries to include persons who give investment advice for a fee, regardless of whether that fee is paid directly by the customer or by a third party. ERISA fiduciaries are required to strictly avoid conflicts of interest, including receiving compensation from third parties in connection with transactions involving a client s funds, or rely on a prohibited transaction exemption in accepting compensation. In general, under ERISA, conflicts must be resolved not just disclosed. As a result, you will need to analyze compensation sources that create conflicts, including the following: Revenue from third parties that varies based on the investment advice you or your firm provide Fees that vary based on anything but neutral factors Soft-dollar arrangements for retirement accounts Proprietary products in retirement accounts Hard-dollar benefit agreements The DOL Conflict of Interest Rule: Considerations for Registered Investment Advisors 3
The Best Interest Contract Exemption is a component of the DOL s regulatory package that aligns an individual RIA s interests with those of the retirement plan or IRA investor, while leaving the RIA flexibility in designing a business model that best serves their retirement clients. Rollover recommendations in particular, which are now characterized as fiduciary investment advice, will require RIAs to comply with the Best Interest Contract Exemption when making those recommendations. Advisory solutions should be thought about in concert with the Best Interest Contract Exemption, and not in lieu of the Best Interest Contract Exemption. RIAs who do not have discretion are eligible to rely on the Best Interest Contract Exemption to relieve any conflict for the ongoing management of client assets. As such, RIAs should determine whether there are conflicts that will require the Best Interest Contract Exemption, or whether you may be able to rely on other exemptions for the relief you need to manage these assets. For discretionary accounts, the Best Interest Contract Exemption may not be relied upon to relieve the conflicts created by the ongoing management of client assets. Conflicts arising from this ongoing management must be resolved or must rely on a prohibited transaction exemption. Your firm should evaluate the services it offers, and understand how any conflicts of interest are resolved. Watch for our next guide that will discuss other ERISA issues in the advisory marketplace that may impact your business. It s important to note, you may still need to rely on the Best Interest Contract Exemption for the recommendation to conduct a rollover, which is a separate transaction from the discretion exercised over the assets. If you have determined that you will rely on the Best Interest Contract Exemption, some of the key conditions you will need to disclose to retirement investors include: State the Best Interest standard that will be provided Inform investors of the services that will be provided Explain how investors will pay for services, either directly or through third-party payments Describe material conflicts of interest, including any fees the RIA and affiliates will charge investors or their retirement accounts and the types of compensation that the RIA and its affiliates expect to receive from third parties in connection with investment recommendations Inform investors that they have the right to obtain copies of the RIA s written description of its policies and procedures, as well as specific disclosure of costs, fees and compensation, including third-party payments Include a link to the RIA s website, which must include the model contract disclosures updated on a quarterly basis and the RIA s written description of its policies and procedures Disclose whether the RIA offers proprietary products or receives third-party payments with respect to any recommended transaction and if investment recommendations are limited, in whole or in part, to proprietary products or investments that generate third-party payments Provide investors with your contact information Describe how you will monitor investments and alert investors about any recommended changes as well as the frequency and the reasons for alerts The Conflict of Interest Rule contains very specific conditions. This document contains a broad overview of considerations to help you get started. Review the full scope of the Rule at http://www.dol.gov/ebsa/regs/conflictsofinterest.html. 4
Do you qualify for the level-fee fiduciary Best Interest Contract Exemption? Level-fee fiduciaries must still document the specific reason or reasons why the recommendation was in the best interest of the prospect or client. A special streamlined version of the Best Interest Contract Exemption is available for level-fee fiduciaries. It requires: A written statement of fiduciary status; Compliance with Impartial Conduct Standards Providing advice in an investor s best interest Receiving reasonable compensation for transactions Not making materially misleading statements to investors about recommendations Written documentation of the reasons for the recommendations as well as the available options for an investor to consider Some activities that may require a Best Interest Contract (BIC) include: What is a Level-Fee Fiduciary? According to the Rule, a financial institution and advisor are level-fee fiduciaries if the only fee or compensation received by the financial institution, RIA and any affiliate in connection with the advisory or investment management services is a level fee that is disclosed in advance to the retirement investor. A level fee is defined in the exemption as a fee or compensation that is provided on the basis of a fixed percentage of the value of the assets or a set fee that does not vary with the particular investment recommended, rather than a commission or other transaction-based fee. Recommending a rollover from a 401(k) to an IRA you must provide a comparison of fees for each Providing a referral to another person(s) to provide investment advice Advising on any change of third-party manager Recommending a rollover from a former employer s 401(k) to a new employer s 401(k) if there is a fee for investment advice in the new plan Receiving direct or indirect compensation from asset managers The DOL Conflict of Interest Rule: Considerations for Registered Investment Advisors 5
Are you providing investment advice to ERISA plan participants? If you are currently an ERISA fiduciary to plans, the Best Interest Contract exemption requires certain disclosures to be made when the advice is being given to ERISA plan participants. The Best Interest Contract Exemption does not require a contract if the investment advice is being given to an ERISA plan participant. Instead the exemption allows the RIA to provide disclosures regarding their status as a fiduciary and requirements to adhere to the impartial conduct standard. Do you need to meet all of the conditions of the Best Interest Contract Exemption, sometimes referred to as the full BIC? If you cannot meet the definition of level-fee RIA or provide non-discretionary investment advice to IRA investors or ERISA plan participants, all of the conditions of the Best Interest Contract Exemption must be complied with in order to obtain relief under the exemption. It is important to consult with your own counsel to determine if the BIC Exemption affects your business model. The conditions of full BIC require a contract between the retirement investor and the advice giver, such as the RIA, in addition to a number of other conditions. Do you conduct IRA rollover business? For many RIAs, IRA rollover activity may fuel new account and asset growth. Rollover recommendations are treated as investment advice, and require compliance with the Best Interest Contract Exemption. You can consider limiting the Best Interest Contract to the rollover recommendation, which would require : Documenting the specific reason or reasons why the recommendation was in the best interest of the prospect or client Providing a comparison of the fees and expenses of the employer plan versus the IRA as well as the available options for an investor to consider Are you making a recommendation to a client to move from a commission-based to an advisory structure? The Rule provides that a recommendation to a retirement investor to shift from a commission to a fee-based arrangement will require the same standard of care and documentation as a rollover recommendation. Documentation regarding why this arrangement is in the best interest of the prospect or client is key to demonstrating procedural prudence. 6
How do you get started? You can start by educating yourself about how the Rule could potentially impact you and your client relationships. The focus should be on how you serve retirement plans and IRAs under the new requirements. Complying with the Rule can be complex. RIAs will need to consult with their counsel to assess their business models and determine their strategy to comply with the Rule s requirements. Additional action steps can include: Consulting ERISA counsel to understand how your business is impacted by the Conflict of Interest Rule and exemptions Segmenting client relationships Determining how you analyze and document rollover recommendations Identifying potential changes to your service model Defining your material conflicts of interest Making a decision about how to handle pre-existing securities Developing contracts and disclosures for rollover recommendations, or for non-discretionary business where the Best Interest Contract exemption may be needed Visiting the DOL Resource Center in NetX360 We can help Talk to your Relationship Manager about how our open-architecture platform can support your strategies to comply with the new Conflict of Interest Rule. Additional information can be found in the DOL Resource Center in the Marketing Center in NetX360. The DOL Conflict of Interest Rule: Considerations for Registered Investment Advisors 7
The information provided in this document is general and educational in nature, and is not intended to be, and should not be construed as legal advice. Firms must evaluate their business models to determine how the DOL rule impacts their business and compliance models. The information provided in this article is educational in nature, and is not intended to be, and should not be construed as legal advice. Federal and state laws and regulations governing broker-dealer and registered investment advisor conduct are complex and subject to change. Pershing Advisor Solutions LLC, member FINRA, SIPC, is a wholly owned subsidiary of The Bank of New York Mellon Corporation (BNY Mellon). Clearing, custody or other brokerage services may be provided by Pershing LLC, member FINRA, NYSE, SIPC. Pershing Advisor Solutions relies on its affiliate Pershing LLC to provide execution services. Bank custody and private banking solutions are provided by BNY Mellon, N.A., member FDIC, a wholly owned subsidiary of The Bank of New York Mellon Corporation. Except with respect to uninvested cash held in a bank deposit account chosen by client as part of a sweep election, assets custodied at BNY Mellon, N.A. are segregated from the general assets of BNY Mellon, N.A. pershing.com One Pershing Plaza, Jersey City, NJ 07399 ART-PAS-DOL-2-17