Interesting Angles on the DOL’s Fiduciary Rule #36

Retirement Advice and the SEC

While the DOL’s fiduciary regulation and prohibited transaction exemptions have occupied everyone’s attention over the last year, other regulatory agencies have been focusing on retirement plan issues, as well.

For example, in its “Examination Priorities for 2017,” the SEC has indicated that it will focus on “Senior Investors and Retirement Investments.” Specifically, the SEC says:

As the U.S. population ages and investors become more dependent than ever on their own investments for retirement income, we are devoting increased attention to issues affecting senior investors and those investing for retirement.

  • ReTIRE. We will continue our multi-year ReTIRE initiative, focusing on investment advisers and broker-dealers along with the services they offer to investors with retirement accounts. This year, these examinations will likely focus on, among other things, registrants’ recommendations and sales of variable insurance products as well as the sales and management of target date funds. We will also assess controls surrounding cross-transactions, particularly with respect to fixed income securities.
  • Senior Investors. Today’s Americans are more reliant on returns from their investment portfolios to fund their retirement compared to previous generations. We will evaluate how firms manage their interactions with senior investors, including their ability to identify financial exploitation of seniors. Examinations will likely focus on registrants’ supervisory programs and controls relating to products and services directed at senior investors.

With regard to retirement investments, the most impactful “focus” will be on recommendations and sales of variable insurance products. In the context of individual retirement accounts and annuities, that refers to individual variable annuities. (Also see Retirement-Targeted Industry Reviews and Examinations Initiative, June 22, 2015. Note that the SEC references FINRA’s guidance on rollovers, Regulatory Notice 13-45.)

However, unlike the DOL, the SEC will not focus on the fiduciary process and prohibited transaction exemptions. Instead the SEC will examine for violations of rules that are, in some ways, similar to the fiduciary rule, such as the best interest of the investor, the suitability of the product for the investor’s needs, and disclosures. However, unlike the DOL rule, the securities laws do not include prohibited transactions.

With regard to senior investors, it’s important to keep in mind that the terms “Senior Investors,” “Retirees,” and “IRA Owners” are, in many cases, synonymous. For these investors, the SEC will focus on:

  • The ability of advisers to identify financial exploitation of seniors;
  • Registrants’ supervisory programs and controls related to products and services directed at senior investors.

In terms of qualified assets, this means that the SEC will be looking at the products and services recommended to retirees who are IRA owners. Are the services and products recommended to those IRAs suitable for retirees and were the recommendations in the best interest of the IRA owners? In my opinion, increasing attention will be given to the recommendations of particular investments and strategies to older investors. Those recommendations should be consistent with retirement investing, including appropriate asset allocation.

Forewarned is forearmed.

POSTSCRIPT: Some readers may think that, since this article is about SEC examinations, it is limited to registered investment advisers. However, when the SEC uses the term “registrants,” it is referring to the “more than 4,000 broker-dealers (including approximately 162,000 branch offices and 640,000 registered representatives), more than 12,000 investment advisers (with nearly $67 trillion in assets under management) . . .” (See footnote 2 in Examination Priorities for 2017.)

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Faegre Drinker.