Clearing Up the Confusion Over a Retirement Plan Advisor s Fiduciary Status

Clearing Up the Confusion Over a Retirement Plan Advisor s Fiduciary Status Chuck Rolph, J.D. Director, Advanced Consulting Group Nationwide Financial Introduction This paper is directed to financial advisors who, as part of their respective practices, alternatively provide investment advice, manage the investment of retirement plan assets, or sell financial products to retirement plans subject to the Employee Retirement Income Security Act of 1974 ("ERISA"). Its purpose is to clarify and distinguish the status of such advisors under: (i) the Securities Exchange Act of 1934 ("Exchange Act"), as regulated by the Financial Industry Regulatory Authority ("FINRA"); (ii) the Investment Advisers Act of 1940 ("Advisers Act"), as regulated by the Securities and Exchange Commission ("SEC"); and (iii) ERISA, as regulated by the Employee Benefits Security Administration ("EBSA") division of the U.S. Department of Labor. The paper will examine the effect of the Dodd-Frank Wall Street Reform and Consumer Protection Act, hereinafter referred to as "Dodd-Frank," on the definition of "fiduciary" applied to advisors under the three aforementioned laws and regulatory authorities. The information in this paper is current as of February 28, 2014. Dodd-Frank Section 913 Overview Subsection (a) defines the term "retail consumer" as a natural person, or the legal representative of a natural person who: (i) receives personalized investment advice about securities from a broker or dealer or investment adviser; and (ii) uses such advice primarily for personal, family, or household purposes. Subsection (b) directs the SEC to conduct a study to evaluate: (i) the effectiveness of existing legal or regulatory standards of care for brokers, dealers, investment advisers, persons associated with brokers, dealers, or investment advisers for providing personalized investment advice and recommendations about securities to retail customers; and (ii) whether there are legal or regulatory gaps, shortcomings, or overlaps in legal or regulatory standards in the 1

protection of retail customers relating to the standards of care for brokers, dealers, investment advisers, persons associated with brokers, dealers, or investment advisers for providing personalized investment advice about securities to retail customers that should be addressed by rule or statute. SEC Study on Investment Advisers and Broker-Dealers In response to the mandate contained in Dodd-Frank Section 913, the SEC released its Study on Investment Advisers and Broker-Dealers on January 21, 2011. The Study covers some 208 pages and includes a discussion of a uniform fiduciary standard. Pertinent parts of the Study's findings on a uniform fiduciary standard are hereinafter set forth, as follows: Consistent with Congress s grant of authority in Section 913, the Staff recommends the consideration of rulemakings that would apply expressly and uniformly to both broker-dealers and investment advisers, when providing personalized investment advice about securities to retail customers, a fiduciary standard no less stringent than currently applied to investment advisers under Advisers Act Sections 206(1) and (2). In particular, the Staff recommends that the Commission exercise its rulemaking authority under Dodd-Frank Act Section 913(g), which permits the Commission to promulgate rules to provide that: the standard of conduct for all brokers, dealers, and investment advisers, when providing personalized investment advice about securities to retail customers (and such other customers as the Commission may by rule provide), shall be to act in the best interest of the customer without regard to the financial or other interest of the broker, dealer, or investment adviser providing the advice. The standard outlined above is referred to in the Study as the "uniform fiduciary standard." The Staff notes that Section 913 explicitly provides that the receipt of commission-based compensation, or other standard compensation, for the sale of securities does not, in and of itself, violate the uniform fiduciary standard of conduct applied to a broker-dealer. Section 913 also provides that the uniform fiduciary standard does not necessarily require brokerdealers to have a continuing duty of care or loyalty to a retail customer after providing personalized investment advice. The following recommendations contained in the Study suggest a path toward implementing a uniform fiduciary standard for investment advisers and broker-dealers when providing personalized investment advice about securities to retail customers: Standard of Conduct: The Commission should exercise its rulemaking authority to implement the uniform fiduciary standard of conduct for broker-dealers and investment advisers when providing personalized investment advice about securities to retail customers. Implementing the Uniform Fiduciary Standard: The Commission should engage in rulemaking and/or issue interpretive guidance addressing the components of the uniform fiduciary standard: the duties of loyalty and care. 2

Duty of Loyalty: A uniform standard of conduct will obligate both investment advisers and broker-dealers to eliminate or disclose conflicts of interest. The Commission should prohibit certain conflicts and facilitate the provision of uniform, simple and clear disclosures to retail investors about the terms of their relationships with broker-dealers and investment advisers, including any material conflicts of interest. Principal Trading: The Commission should address through interpretive guidance and/or rulemaking how broker-dealers should fulfill the uniform fiduciary standard when engaging in principal trading. Duty of Care: The Commission should consider specifying uniform standards for the duty of care owed to retail investors, through rulemaking and/or interpretive guidance. Minimum baseline professionalism standards could include, for example, specifying what basis a broker-dealer or investment adviser should have in making a recommendation to an investor. Personalized Investment Advice About Securities: The Commission should engage in rulemaking and/or issue interpretive guidance to explain what it means to provide personalized investment advice about securities. Investor Education: The Commission should consider additional investor education outreach as an important complement to the uniform fiduciary standard. Statement Regarding Study On Investment Advisers And Broker-Dealers by Commissioners Kathleen L. Casey and Troy A. Paredes U.S. Securities and Exchange Commission Following are excerpts from a statement released by two SEC Commissioners in response to the SEC Study on Investment Advisers and Broker-Dealers. At the outset, it is important to underscore that the views expressed in the Study are those of the Staff of the Commission and not necessarily those of the Commission as a whole or of individual Commissioners. This is stated clearly in the Study and is consistent with other studies performed by the Staff and then delivered by the Commission to Congress. In our view, the Study s pervasive shortcoming is that it fails to adequately justify its recommendation that the Commission embark on fundamentally changing the regulatory regime for broker-dealers and investment advisers providing personalized investment advice to retail investors. The Study recommends the adoption of a new uniform fiduciary duty standard and harmonization of two disparate regulatory regimes. But it does so without adequate articulation or substantiation of the problems that would purportedly be addressed via that regulation. The Study also does not adequately recognize the risk that its recommendations could adversely impact investors. 3

Indeed, the Study does not identify whether retail investors are systematically being harmed or disadvantaged under one regulatory regime as compared to the other and, therefore, the Study lacks a basis to reasonably conclude that a uniform standard or harmonization would enhance investor protection. A stronger analytical and empirical foundation than provided by the Study is required before regulatory steps are taken that would revamp how brokerdealers and investment advisers are regulated. Because of our concerns, we oppose the Study s release to Congress as drafted. We do not believe the Study fulfills the statutory mandate of Section 913 of the Dodd-Frank Act to evaluate the effectiveness of existing legal or regulatory standards of care applicable to broker-dealers and investment advisers. Current Status of the Uniform Fiduciary Standard The SEC issued Release No. 34-69013 on March 1, 2013, requesting information on the uniform fiduciary standard. Here is a summary of what the SEC said in its release: The Securities and Exchange Commission is requesting data and other information, in particular quantitative data and economic analysis, relating to the benefits and costs that could result from various alternative approaches regarding the standards of conduct and other obligations of broker-dealers and investment advisers. We intend to use the comments and data we receive to inform our consideration of alternative standards of conduct for broker-dealers and investment advisers when providing personalized investment advice about securities to retail customers. We also will use this information to inform our consideration of potential harmonization of certain other aspects of the regulation of brokerdealers and investment advisers. The SEC has received comments from several professional organizations but, so far, no proposed regulations dealing with the uniform fiduciary standard have been issued. Registered Representatives under the Exchange Act of 1934, as Regulated by FINRA The general standard for registered representatives who are regulated by FINRA in the conduct of their financial activities with the public is a suitability, not a fiduciary, standard. FINRA Rule 2111 reads as follows: (a) A member or an associated person must have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through the reasonable diligence of the member or associated person to ascertain the customer's investment profile. A customer's investment profile includes, but is not limited to, the customer's age, other investments, financial situation and needs, tax status, investment objectives, investment experience, 4

investment time horizon, liquidity needs, risk tolerance, and any other information the customer may disclose to the member or associated person in connection with such recommendation. (b) A member or associated person fulfills the customer-specific suitability obligation for an institutional account, as defined in Rule 4512(c), if (1) the member or associated person has a reasonable basis to believe that the institutional customer is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies involving a security or securities and (2) the institutional customer affirmatively indicates that it is exercising independent judgment in evaluating the member's or associated person's recommendations. Where an institutional customer has delegated decisionmaking authority to an agent, such as an investment adviser or a bank trust department, these factors shall be applied to the agent. Investment Advisers under the Advisers Act, as Regulated by the SEC Section 202(a)(11) of the Advisers Act defines an investment adviser as any person or firm that: (i) for compensation; (ii) is engaged in the business of; (iii) providing advice to others or issuing reports or analyses regarding securities. Summary of Registration Rules. In accordance with section 203A(a)(1) of the Advisers Act, advisers with less than $25 million of assets under management are regulated by one or more states unless the state in which the adviser has its principal office and place of business has not enacted a statute regulating advisers. As a practical matter, this means that only a small adviser with its principal office and place of business in Wyoming (which has not enacted a statute regulating advisers) may register with the SEC. The Dodd-Frank Act raised the threshold for advisers to register with the SEC to $100 million of assets under management. See section 410 of Dodd-Frank Act. Generally, Section 203A(a)(2) of the Advisers Act holds that advisers with between $25 million and $100 million of assets under management are regulated by one or more states if: (i) the adviser is registered with the state where it has its principal office and place of business (e.g., it cannot take advantage of an exemption from state registration); and (ii) the adviser is subject to examination by that state securities authority. A mid-sized adviser may register when it acquires $100 million of assets under management and must register once it obtains $110 million of assets under management, unless some other exemption is available. Rule 203A-1(a)(1). Once registered with the SEC, a mid-sized adviser is not required to withdraw from SEC registration and register with the states until the adviser has less than $90 million of assets under management. Fiduciary Duty Standard for Advisers. The Staff of the Investment Advice Regulation Office, Division of Investment Management, U.S. Securities and Exchange Commission issued a report dated March 2013 entitled: Regulation of Investment Advisers by the U.S. Securities and Exchange Commission. Following are selected excerpts from that report that set forth the fiduciary standard for advisers. 5

The Advisers Act does not provide a comprehensive regulatory regime for advisers, but rather imposes on them a broad fiduciary duty to act in the best interest of their clients. As the Commission explained: Unlike the laws of many other countries, the U.S. federal securities laws do not prescribe minimum experience or qualification requirements for persons providing investment advice. They do not establish maximum fees that advisers may charge. Nor do they preclude advisers from having substantial conflicts of interest that might adversely affect the objectivity of the advice they provide. Rather, investors have the responsibility, based on disclosure they receive, for selecting their own advisers, negotiating their own fee arrangements, and evaluating their advisers conflicts. See Amendments to Form ADV, Investment Advisers Act Release No. 2711 (Mar. 3, 2008). Fundamental to the Advisers Act is the notion that an adviser is a fiduciary. As a fiduciary, an adviser must avoid conflicts of interest with clients and is prohibited from overreaching or taking unfair advantage of a client s trust. A fiduciary owes its clients more than mere honesty and good faith alone. A fiduciary must be sensitive to the conscious and unconscious possibility of providing less than disinterested advice, and it may be faulted even when it does not intend to injure a client and even if the client does not suffer a monetary loss. Retirement Plan Advisors, subject to ERISA enforcement by the Employee Benefits Security Administration ("EBSA") ERISA section 3(21)(A) defines a fiduciary as follows: Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 405(c)(1)(B). Implicit within this definition of fiduciary are different categories of fiduciaries, to include: (i) the discretionary authority or control over the plan's assets; (ii) the provision of investment advice; and (iii) the discretionary authority or responsibility in the administration of the plan. In the context of this paper, the retirement plan advisor could potentially be exercising discretionary authority or control over the plan's assets if the advisor were acting in the capacity of a registered investment adviser, as an investment manager described in ERISA section 3(38); or, the retirement plan advisor could be providing investment advice to the plan in the capacity of an investment advice fiduciary, in which case it is not necessary that the advisor have status as a registered investment adviser. This paper does not contemplate an advisor acting as a plan 6

administrator within the meaning of ERISA section 3(16) and exercising control over the administration of the plan. The EBSA has indicated that it intends to release new proposed regulations governing the definition of investment advice fiduciary. However, until such time as new final regulations become effective, the current regulatory definition of investment advice fiduciary under 29 CFR 2510.3-21(c) remains in effect: (c) Investment advice. (1) A person shall be deemed to be rendering "investment advice" to an employee benefit plan, within the meaning of section 3(21)(A)(ii) of the Employee Retirement Income Security Act of 1974 (the Act) and this paragraph, only if: (i) Such person renders advice to the plan as to the value of securities or other property, or makes recommendations as to the advisability of investing in, purchasing, or selling securities or other property; and (ii) Such person either directly or indirectly (e.g., through or together with any affiliate) (A) has discretionary authority or control, whether or not pursuant to agreement, arrangement or understanding, with respect to purchasing or selling securities or other property for the plan; or (B) renders any advice described in paragraph (c)(1)(i) of this section on a regular basis to the plan pursuant to a mutual agreement, arrangement or understanding, written or otherwise, between such person and the plan or a fiduciary with respect to the plan, that such services will serve as a primary basis for investment decisions with respect to plan assets, and that such person will render individualized investment advice to the plan based on the particular needs of the plan regarding such matters as, among other things, investment policies or strategy, overall portfolio composition, or diversification of plan investments. The implications of a retirement plan advisor's being rendered a fiduciary to the particular ERISA-covered plan are that he or she will be held to the general "prudent man standard of care" found in ERISA section 404(a) in his or her dealings with the plan. ERISA section 404(a) reads as follows: (a)(1)prudent man standard of care. Subject to sections 403(c) and (d), 4042, and 4044, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and 7

(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title and Title IV. Practical Takeaways for the Retirement Plan Advisor 1. The advisor working the retirement plan market should decide what role he or she wants to play: (i) a seller of financial products to the plan's trustee; (ii) a provider of investment advice to the plan's trustee and/or to its participants; or (iii) an investment manager who has control over the management of the plan's assets. The role the advisor chooses to play will dictate the regulatory regime and the status of the affected advisor as a fiduciary or not. 2. If selling a financial product to the plan's trustee, the advisor will be regulated by FINRA and will be subjected to a suitability standard of conduct, not a fiduciary standard. Such an advisor will not be a fiduciary under ERISA; however, such advisor will need to be cognizant of the EBSA regulations under ERISA section 408(b) that require any seller of financial products to make certain disclosures to the plan's fiduciary(ies) in order to avoid committing a prohibited transaction in connection with such sale. 3. If providing fiduciary investment advisory services or investment management services to the affected plan, the advisor (to the extent that he or she is conducting these activities as a registered investment adviser) will be subject to fiduciary standards and regulation by the SEC (in connection with the investment advice and management services). In addition, such advisor will be considered a fiduciary under ERISA and subject to the fiduciary duties found in ERISA section 404(a), as administered by the EBSA. 4. The uniform fiduciary standard being developed pursuant to the study mandated by Dodd- Frank section 913 still has not come to fruition. Once such a standard is developed and implemented, it will still not directly affect the definition of "fiduciary" under ERISA section 3(21)(A). The result is that the retirement plan advisor will be governed by two (and possibly competing) definitions of "fiduciary." Furthermore, Dodd-Frank section 913 is focused on the retail consumer and would apply, if at all, to the retirement plan advisor who provides investment advice to the participants in the plan only. CIRCULAR 230 DISCLOSURE: To comply with US Treasury Department regulations, we inform you that, unless otherwise expressly indicated, any tax advice as contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, by any person other than Nationwide and its affiliates, for the purpose of (i) avoiding penalties that may be imposed under the Internal Revenue Code or any other applicable tax law, or (ii) promoting, marketing or recommending to another party any transaction, arrangement or other matter. The Employee Retirement Income Security Act of 1974 ( ERISA ) and the federal income tax laws are complex and subject to change. 8

Notwithstanding the foregoing, the information in this e-mail is not intended to be, nor is it to be construed as, tax or legal advice. Neither Nationwide nor its representatives give legal or tax advice. Please consult your attorney or tax advisor for answers to specific questions. Nationwide and the Nationwide framemark are registered service marks of Nationwide Mutual Insurance Company. Nationwide Financial Services, Inc. All rights reserved. Nationwide Investment Services Corporation, Columbus, Ohio, member FINRA. NFM-12640AO (02/14) 9