DOL Fiduciary Rule Dies… Introduces a new opportunity for financial advisors.

So it’s official. The DOL Fiduciary rule is a thing of the past. For many of us in the financial industry, it consumed a lot of our time, energy and resources for the the better part of three years. You couldn’t turn anywhere in the financial news media without seeing it. Yet, its ultimate demise was rather anti-climactic. It died rather quietly compared to all of the noise it made early on.


I had written a piece for Investment News a while back titled DOL Rule: What’s wrong with the Financial Advice Industry. The point of the piece was to share a few simple thoughts about what I felt was right and wrong about the rule. I still feel the same today as I did then. Hopefully the SEC will introduce a rule that is workable for the industry while addressing the heart of the matter: do what’s best for clients.

The Heart of the Matter

Do what is best for clients. Seems simple, right?

It’s far more complex than that. It’s the reason that the DOL rule (R.I.P.) and the newly proposed SEC rule required more than 1,000 pages each as they struggled to define “best for clients.” It appears as though that definition is fuzzy. The problem is that rule makers want something black and white,  which (in my opinion) is the reason that the “lowest/cheapest fee” argument was the easiest thing for them to attach themselves to when attempting to define “best interests.” Anybody who understands the complexity of the financial industry knows how problematic this can be.

What do Groceries Have to do with this?

I frequently shop at a local grocery store around the corner from my house. We don’t do all of our grocery shopping there, but for quick trips to get many of the basics, this is where my family turns. We do this for a couple of reasons. We happen to like some of the produce there, and the convenience of it being really close to the house (with easy parking) makes it simple.

The big regional/national grocers are an extra 10 minutes away. We do some of our big shopping trips there, but it tends to be something that is planned out in advance (considering we have two little girls that need to be factored into the equation).

Once in a great while, I’m tasked with running out late to get milk or one of the household “necessities.” The gas station on the corner tends to be my “go-to” solution. It’s a quick and easy stop with the added benefit of actually being open at 11 PM.

In each of the above examples, it wouldn’t be uncommon for me to purchase milk during those grocery trips. Our girls are turning into milk-junkies. The cost for a gallon of milk at each of those places varies dramatically. One could argue that the gallon that costs the most (from the gas station), may be the least fresh. But that doesn’t stop me from making that purchase when I need to.

As a consumer, I’m making those purchases based upon something other than price. I’m placing a value on convenience, flexibility, service, and the added benefit of buying local vs. a national chain. Sometimes I think about and look at the price I’ll be paying, but I’ve got enough experience and knowledge to understand that I’ll be paying more in exchange for things that are more important to me at that moment than dollars and cents.

The Opportunity

After the tax reform bill passed, my team created a seminar focused on some of the most recent changes affecting the financial lives of those 50 years and older. I wrote about the opportunity that it presented in a blog post titled 6 Ways to leverage tax reform in your marketing strategy. The focus of the seminar was on three recent law changes:

  1. The Social Security claiming strategy changes
  2. The DOL Fiduciary rule
  3. Tax reform bill

When the DOL rule officially became a thing of the past, I was immediately asked “well are we going to pull that from the presentation?” The question was a valid one that I had received from a number of advisors. I think the expectation was to simply remove that section and just go back to doing things the way we always had.


The death of the DOL Fiduciary rule gives advisors an incredible opportunity. We’re provided with the opportunity to educate consumers about how the financial industry works. And while it’s a bizarre analogy, we can share with them the difference between the gas stations, the local grocers and markets, and the national chains. ALL of them have their place within the industry.

We simply need to do a better job of helping consumers arrive at their buying decisions logically, regardless of whether they are buying an investment or a gallon of milk.

Explain what a fiduciary is. Explain why your clients see value in doing business with you. Be transparent. Help them to understand a little bit about the industry and where you fit in. In a world that is going increasingly digital, I’m firmly convinced that there will always be a strong need and desire for financial professionals that want to build relationships with their clients, while helping to hold them accountable for the things that need to be done to help them reach their goals.

We’ll get a fiduciary rule someday. For now, we’ll have to rely on the financial professionals that can objectively explain how the different aspects of the financial industry impact to the very consumers it is there to serve.





DOL Fiduciary Rule – Upheld for FIAs

Here’s the Skinny,

The 10th District Court of Appeals just upheld the DOL Fiduciary Rule. It was “argued that the DOL rule treated fixed indexed annuities arbitrarily by forcing the products under the best-interest contract exemption, a provision of the regulation that allows brokers to earn variable compensation as long as they sign a legally binding contract to act in the best interests of their clients.”

Currently, Fixed indexed annuities “operate under the same exemption of federal retirement law as fixed annuities. But the DOL put them under the so-called BICE due to their complexity and the potential conflicts of interest associated with their sales.” 

It was also argued that the “DOL violated rule-making procedures and didn’t do a proper economic impact analysis in promulgating the fiduciary rule.”

“The 10th Circuit judges held that DOL followed appropriate administrative procedure, was fair in its treatment of fixed indexed annuities and that it conducted an appropriate economic analysis.”[1]

Oddly, it feels as though the DOL Fiduciary Rule is heating up again given all the recent press and State activities.  If you are not properly adhering to the regulatory constraints of the DOL Fiduciary Rule’s “extended delay” (through July 1, 2019), you are placing yourself in significant jeopardy.

For more information click & refer to these previous Advisor Skinny posts…

That’s the Skinny,

DOL Fiduciary Rule Enforcement: How Massachusetts May Have Provided the Spark for a Massive Fire

On Thursday, February 15th, the state of Massachusetts charged Scottrade with dishonest and unethical conduct and a failure to supervise. This is believed to be the first known enforcement action under the Department of Labor’s fiduciary rule.

Where this will end up, nobody knows, but it could be the spark that triggers a fire within the financial industry. According to the regulator’s complaint, Scottrade violated impartial conduct standards by conducting some sort of sales contest with incentives for their employees to bring in new assets.

Let’s talk about the reality of this: anybody who has been in the industry for any length knows this happens all the time. It has been a part of the wirehouse and insurance sales culture for decades. The problem is this: far too many financial professionals (and the firms they associate with) are under the impression that the Fiduciary Rule (or Conflict of Interest rule) isn’t yet in effect.

As somebody who is actively involved the everyday communications with our own affiliated advisors, as well as the daily efforts to attract new professionals to our firm, I can tell you that there is a great amount of confusion surrounding this rule. In many cases, it isn’t confusion; it is flat out ignorance.

This is what advisors need to know: this rule is in effect. Today. Now. The “delay” that was triggered as a result of the Trump administration only impacted the second phase of the rule. Here’s where it gets a little fuzzy – it was assumed (due to statements coming from Washington, D.C.) that there wouldn’t be enforcement action taking place. The state of Massachusetts has proven that assumption to be faulty. And it won’t surprise me one bit if other states follow suit.

What does this mean to you as a financial professional? Much of that depends on the firms with whom you affiliate, the licensure you maintain, and the recommendations you make. Don’t be mistaken, regardless of your answer to the three questions items listed above, the rule still applies to you. The risk/exposure may be different depending upon your response to those items.

It really comes down to operating in an environment where impartial conduct standards are established and ensuring that those standards are adhered to by the institution and the representatives of that institution. For example, if you are affiliated with a broker-dealer or corporate RIA, has there been a process and standard established to review recommendations for best interests, as well as an honest effort to reduce or eliminate major conflicts of interest? If you affiliate with an insurance brokerage entity (FMO/IMO/MGA), do they understand the importance of adhering to this standard? Unfortunately, many are still running sales contests, sales incentives, and offering production-based compensation. Knowingly or not, many of these activities are a direct violation of the portion of the rule that is in effect and they are putting the professionals with whom they work in the cross-hairs of a potentially devastating regulatory mess.

This isn’t just an opinion. It’s a substantiated fact as evidenced by the state of Massachusetts. You may love the rule. You may hate the rule. You may be like me and think there should be a logical compromise to this regulation that could accomplish the goals of putting the interests of clients first without creating such a confusing and complex overhaul to the way business is done within all of the different entities that operate in the financial industry. None of that matters though. Our feelings about the rule today don’t change the fact that we all need to operate in a new environment. Sadly, some professionals aren’t quite there yet. And what’s even worse is that many financial institutions (broker-dealers, RIAs, FMOs, etc.) aren’t there yet either. And ignorance won’t be much of a defense if a regulator knocks on the door.

In the meantime, this Scottrade charge will be an interesting story to keep an eye on. You may not be aware, but TD Ameritrade is in the final stages of its acquisition of Scottrade. I’m sure this is the last thing they wanted to deal with as this thing gets buttoned up. If it turns out that the Massachusetts regulators have a leg to stand on when it comes to enforcement actions, you can bet that it may pave the way for other states to follow suit.

For more information and details on DOL Requirements, you can refer to our DOL Executive Summary and DOL Extension Fact Sheet.

For those of you already affiliated with USA Financial, you can find this information on the dashboard.



All the best,

Mark Mersman