Interesting Angles on the DOL’s Fiduciary Rule #63

Policies and Procedures: The Fourth BICE Requirement

This is my 63rd article about interesting observations concerning the Department of Labor’s fiduciary rule and exemptions. These articles also cover the DOL’s FAQs interpreting the regulation and exemptions and related developments in the securities laws.

On August 31, the Department of Labor (DOL) issued its proposal to extend the transition period for three prohibited transaction exemptions until July 1, 2019. Those exemptions are the Best Interest Contract Exemption (BICE), the 84-24 exemption (for sale of annuities and insurance products), and the Principal Transactions Exemption. In all likelihood, the DOL will finalize that extension within the next 60 days.

The practical effect will be to both delay the applicability date of the final exemptions until July 1, 2019 and to extend the transition versions of those exemptions until June 30, 2019.

However, the DOL is not proposing to extend the applicability date of the fiduciary rule. The full fiduciary regulation applied earlier this year–on June 9, 2017. In other words, advisors to “qualified” accounts (i.e., plans, participant accounts and IRAs) already are fiduciaries. And, where the advisor or the advisor’s supervisory entity (for example, a broker-dealer) receives payments from third parties (such as insurance commissions or 12b-1 fees), or where the advice increases their compensation, those payments will be prohibited transactions. As a result, those advisors and entities will need the protection of a prohibited transaction exemption.

BICE is the exemption that will be used for most transactions. In order to comply with BICE, the supervisory entity and the advisor must satisfy the three Impartial Conduct Standards: the best interest standard of care; no more than reasonable compensation; and no materially misleading statements.

It is commonly believed that BICE requires satisfaction of only those three conditions. However, that is not the case. There is a fourth, and less well-known, requirement. As stated in the DOL’s August 31 guidance:

During the Transition Period, the Department expects financial institutions to adopt such policies and procedures as they reasonably conclude are necessary to ensure that advisers comply with the impartial conduct standards. During that period, however, the Department does not require firms and advisers to give their customers a warranty regarding their adoption of specific best interest policies and procedures, nor does it insist that they adhere to all of the specific provisions of Section IV of the BIC Exemption as a condition of compliance. Instead, financial institutions retain flexibility to choose precisely how to safeguard compliance with the impartial conduct standards, whether by tamping down conflicts of interest associated with adviser compensation, increased monitoring and surveillance of investment recommendations, or other approaches or combinations of approaches.(Emphasis added.)

As a result, supervisory entities, such as broker-dealers and RIAs, need to ensure that their practices, policies and procedures, and supervision are adequate to protect retirement investors from the conflicts arising from advisor compensation that could incent an advisor to make recommendations that are not in the best interest of a retirement investor. While the conflict can arise in any situation involving commissions or similar transactional payments, there are other, less obvious, areas where the conflict can be significant and where, therefore, the policies and practices may need to be strengthened. For example, when an advisor recommends that a participant take a distribution and roll it over to an IRA, that recommendation typically results in higher compensation for the advisor. And, where the rollover amount is large, the additional compensation can be significant. As a result, financial institutions, such as broker-dealers and RIAs, need to have compliant processes in place to ensure that inappropriate rollover recommendations are not made. In addition, those recommendations need to be supervised to ensure compliance with the best interest standards. This is an area where a conservative approach is good risk management.

The same concept applies to other types of recommendations where significant increases in compensation to advisors could result, as well as to bonus and recruiting arrangements. Any arrangement that materially increases advisor compensation should be closely vetted. That vetting should occur at three levels. The first is the design of the compensation system; the second is the development of policies and procedures to oversee that fiduciary recommendations are in the best interest of retirement investors; and the third is the supervision of those policies and procedures. Now is the time to review practices, policies and supervision in light of the DOL’s expectations.

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.