Back to ‘Normal’?

Things are—slowly—getting back to normal. Planes are filling up, commutes are slowing with increased traffic volumes, and in-person meetings are back underway. 

And while for many readers things have been back to “normal” for some time, I’ve had the opportunity over the past two months to participate in three separate advisor events that were the first such in-person gatherings since the onset of the pandemic.

We’ve learned not only how to navigate things like virtual committee meetings and education sessions, but found that in many cases those platforms could be even more effective in extending our reach to individuals who might not have made it to an in-person session, or who might have been more receptive to those messages in the wake of COVID concerns about health and job security. 

While we’re not quite “done” with COVID (and perhaps we never will be), we’ve learned a lot of valuable lessons. The notion that we have to be in a physical office to be productive has been soundly rebuffed. At the same time, in every in-person gathering I have had the opportunity to be part of these past several months, there is an energy, an excitement, an enthusiasm that transcends any I’ve experienced in even the most engaging “virtual” formats. Oh, one day in the distant future we may not need that social connection—or perhaps we’ll simply tell ourselves that whatever is “lost” is more than compensated for by the convenience and cost savings of remote engagement.

But “those” days aren’t yet these days—and in just a couple of weeks we’ll be convening—in person—for our 10th annual NAPA D.C. Fly-In Forum. I still remember attending the first one as a “special guest,” and being struck even then by the quality of the program and speakers. More importantly, the room was full then—as it continues to be—of the nation’s leading retirement plan advisors, networking and engaging not only with each other, but with some of the most influential voices in Washington.

This year looks to be no exception—and as impactful as last year’s “virtual” version surely was, it really can’t compete with the reality of an in-person event—not to mention the opportunity to walk to—and through—our nation’s Capitol. 

We’ll have a lot to talk about—while the Labor Department’s next steps on the so-called fiduciary rule and ESG rules have just been pushed back, the final proscriptions of PTE 2020-02 have just taken hold (notably the requirement to document, in writing, the best interest case for a rollover recommendation), and the controversy regarding the recent compliance assistance release on cryptocurrency is still reverberating. 

This year’s Fly-In Forum will feature comments from Ali Khawar, who has been serving as Acting Assistant Secretary for the EBSA, as well as Zeena Abdul-Rahman, Branch Chief, Investment Company Rulemaking Office, Division of Investment Management at U.S. Securities and Exchange Commission to speak to ESG, as well as a very special panel of Hill staffers for some “inside the Beltway” perspective, and a panel of expert ERISA litigators to discuss recent developments, and provide insights on staying out of court. And no NAPA D.C. Fly-in Forum would be complete without the appearance of key legislators, which this year will include Sens. Ben Cardin (D-MD), John Barrasso (R-WY) and Rob Portman (R-OH) to shed light on the incredible opportunities contained in SECURE 2.0, RISE & SHINE, the EARN Act, and/or the combination/assimilation of all of the foregoing.   

But for me—and for the dozens of advisors who have participated over the past 10 years—the most impressive aspect of our Fly-In Forum is the second day, where delegate-advisors have an opportunity, assisted (and prepped) by the NAPA GAC team, to meet with legislators and their staff on Capitol Hill, to share your perspectives, ideas and concerns, based on your front-line, real-life experiences working with retirement plans, plan sponsors and participants. Heading into a crucial mid-term election cycle, your voice—your insights and perspectives—have never been more critical.

Whether you’ve done this a dozen times, or have never had the opportunity, the NAPA D.C. Fly-In Forum is an amazing “first-hand” experience. For those ready to get off the sidelines and contribute to a real difference in retirement policy, you won’t find a better “ticket” than the NAPA D.C. Fly-In Forum.

Things may be getting back to “normal”—but it’s anything but business as usual.

- Nevin E. Adams, JD

(Too) Great Expectations?

My schedule – and aversion to crowds – means that I rarely see a new movie the first weekend it comes out (a rare exception – Avengers: Infinity War this weekend).

While this means that there are times when I’m the only one in the office the following Monday who hasn’t seen the latest blockbuster (and thus can’t offer an opinion), more often than not, it’s also spared me the time, money (and potential aggravation) of rushing out to see a movie that is more likely to be up for a “Razzie” than an Oscar.

However, I’ve also found myself in situations where the hype surrounding a new blockbuster is so compelling that it builds up my expectations beyond the reality – leaving me… underwhelmed.

Doubtless that was the sense of many in reading the Best Interest Regulation proposal published by the Securities and Exchange Commission last week. Those who had hoped that a uniform fiduciary standard might emerge were surely disappointed, as were those who might have anticipated that the SEC’s proposal might step up and fill a gap potentially created if the 5th Circuit’s ruling was unchallenged. There is, of course, an irony in a Regulation Best Interest that doesn’t define “best interest,” and understandable concerns that a standard that leans so heavily on “reasonable” tests is portrayed as an objective standard.

On the other hand, all will surely find comfort in the acknowledgement that “cheapest” isn’t deemed equivalent with “best,” and some will certainly be reassured by the “principles-based” emphasis, not to mention the acknowledgement of the Labor Department’s fiduciary rule and Best Interest Contract Exemption (BICE) and the latter’s stated objectives as consistent with Regulation Best Interest, even if the latter doesn’t create fiduciary status.

Odds are, if you liked the Labor Department’s fiduciary rule and its structures, you won’t be satisfied with the SEC’s take. On the other hand, if you thought the DOL went too far, the SEC’s proposal might well be more in line with your expectations. And yet, the lingering uncertainty as to the when – or if – of the SEC’s response – and the (at last until lately, relative) certainty of the Labor Department’s approach has led many firms to institute processes and procedures suited for the latter, not the possibility of the former.

Arguably, the vast majority of advisors committed to serving workplace retirement plans were well along the path of satisfying ERISA’s compensation strictures, and the Best Interest Contract Exemption (BICE) – with all its shortcomings – provided a means for the rest to work their way there. What many found most confounding about the Labor Department’s fiduciary rule was its extension of oversight to IRAs, notably the enormous IRA rollover market – and, in that regard at least, the SEC proposal seems to be reasserting its authority. Will that be an area of “compromise” between the agencies? Time will tell.

Ultimately, the current SEC proposal – and bear in mind, this is really just a starting point – is bound to disappoint more than it pleases, if only because it introduces an element of uncertainty at a particularly critical time. Many, having waited nearly a decade for the proposal to emerge, doubtless hoped it would be more proscriptive in scope and/or detail. Indeed the industry commentary thus far seems to be a sense that it feels half-finished, rushed to press, perhaps even opportunistic in its timing, what with the ink on the 5th Circuit’s decision still damp. Let’s face it, even the SEC commissioners who supported its publication did so with cautioning commentary, if not outright reluctance.

That said, having waded through the 1,000-plus pages twice and half again, one can’t be help but be struck by the amount of space in those 1,100 pages dedicated to questions from the proposal’s authors – questions that merit consideration and thoughtful response.

The work may be unfinished, it may be unsatisfying in scope or clarity, but we now have a window (albeit a short one) – and an invitation – to comment, inform, and yes, perhaps even remedy those shortfalls.

- Nevin E. Adams, JD

Marshal Law

When a co-worker forwarded to me an e-mail about Eliot Spitzer’s alleged tie with a prostitution ring last week, I thought it was a joke.

It was no joke, of course—though, in incredibly short order, it became something of a circus (one can only hope that with Spitzer’s resignation, we’ll be spared the tiresome details about the personal life of the prostitute(s) whose services he engaged).

Spitzer was touted as a crusader by some—but like the crusaders of old, his motives and actions surely weren’t always pure. And though he reportedly embraced the image of a sheriff, he more accurately brought to mind Henry Fonda’s gunslinger marshal Clay Blaisdell in “Warlock” who, hired to rid the town of terrorizing bandits, soon became an even more ominous threat to the peace and well-being of the citizenry.

Spitzer made a lot of enemies during his career—IMHO, not so much because of what he did, but how he chose to do it. He was, of course, challenging large and powerful interests, but he frequently seemed all too willing to resort to the equivalent of extortion to impose his will on the targets of his investigations.

He may or may not have had the interests of his New York constituency at heart—he may well have merely viewed it as part of a political calculus designed to take him to Albany, and perhaps beyond. However, for the very most part, he wrested acquiescence and money, not guilty verdicts, from his targets. And, mind you, much, if not most, of the financial benefits have wound up in the Empire State’s coffers, not the pockets of those actually injured.

Still, whatever lies ahead for Mr. Spitzer, he has unquestionably left his mark on this industry. Because of his efforts, a number of illegal—and many highly questionable—practices were brought to light, and a new, sharper focus was brought to bear on the fees paid by the investing public, including 401(k) plan participants. I can still remember reading—with much the same incredulity that accompanied the early reporting of Spitzer’s prostitution ties—the arrangements that fund complexes had made to facilitate late trading, the pre-communication about trading movements with hedge funds, and the written agreements that violated both the spirit and letter of these same funds’ commitment to shareholders (see “IMHO: Wrong-Headed”). And let’s not forget that certain other regulatory bodies, given the opportunity to step in, did not (see “IMHO: Between the Devil and the Deep Blue Sea”).

Ultimately, of course, what got most of those firms in trouble was the hypocrisy of saying they did one thing while they did something else altogether. That, and a certain hubris about the application of the law. These are maladies often visited upon those grown too rich and too powerful.

It’s more than mildly ironic that they now appear to have contributed to the downfall of a man who also grew rich - and perhaps too powerful - at the expense of others.

- Nevin E. Adams, JD