July 31, 2015
2014 was an outstanding year for Canadian financial advisors according to PriceMetrix. It could be termed the year of the Yacht (making reference to the classic takedown of Wall Street Where are the Customers’ Yachts? by Fred Schwed) for advisors. That’s not just figuratively true, it is literally true. Anyone who makes $655,000 in a year is into yacht territory. Yes, that’s right, the PriceMetrix press release crows about that being the average advisor income, not the top 1% or 10%, the average!
Advisors are doing well indeed – their 13% rise in revenue over the previous year contrasts with only an 11% increase in average client assets under their management, all this while advisors have been reducing the number of clients each deals with, i.e. the advisors have been firing clients, and it doesn’t take a rocket scientist to know it is the clients with low assets who provide less revenue bang for each advisor time buck.
There is an increasing shift to fee-based revenue (which probably means a separate charge for assets under management but might include trailing commissions on mutual funds), as opposed to transaction revenue (one-time commission). It’s hard to tell exactly what types of charges are being described – see Preet Banerjee’s more detailed run-through of various terminology for various charges on MoneySense – but the end result is clear, clients of advisors got dinged for more per dollar of invested assets in 2014.
Another interesting figure in the PriceMetrix report is that each advisor served 150 clients on average. In a typical year of 236 on-the-job days (251 working days minus 15 for holidays on the yacht), that gives each client 1.6 days of advisor time per year, discounting anything else the advisor does in his/her business. No wonder $20,000 client accounts don’t pay and advisors want to get rid of such clients (1% of $20k provides only $200 and 150 of such clients is $30,000 of annual revenue).
Finally, perhaps robo-advisors really are the way of the future. The report says advisors and their clients are getting older. Advisors are making no efforts to attract younger clients, who may not be interested anyway since they can get all of what typically passes for financial advice (10 simple questions and your portfolio is determined) plus automatic rebalancing for a lower cost (using lower MER ETFs plus lower robo charges on assets) from the robos.
July 24, 2015
The 2015 version of the Canadian Centre for Policy Alternatives report on CEO pay by Hugh Mackenzie revealed a substantial increase in average pay from the year before. The comparison to the pay of employees and all Canadians, who own shares in all these companies through their pension plans, mutual funds ETFs or directly, is shockingly out of whack. Companies justify this through incredibly complex schemes (got to Sedar.com and download a sample Management Information Circular aka Proxy Circular) that basically use peer comparison to benchmark.
So … let’s benchmark this:
- BBC reports that in 2014 Apple CEO Tim Cook received total compensation of $9.2 million. Apple is the world’s largest company (by far ahead of #2 Exxon), with a market cap of $659.21 billion. His pay was 9.2/659210 = 0.0014% of market cap. Cook is not exactly working for peanuts by CEO standards though. in 2013 he earned $73.9 million US, which is about $81.3 million CAD (mostly from stock options), or 0.0123% of market cap.
- According to the Mackenzie report, the top CEO earner in Canada, Gerry Schwartz of Onex, took in $87.917 million in 2013. Onex’s market cap is $7.67 billion. If we apply the Apple Cook percent as benchmark, Schwartz should have earned roughly 0.0014% x $7670 = $107,000 in 2014. Even at 2013 rates for Cook, Schwartz would deserve only $938,000. We’ll be watching with high expectations in early April when Onex’s 2015 Proxy Circular is filed with 2014 actuals.
Mackenzie is coming at the issue from from an ideologically leftist viewpoint, so those who merely want to invest profitably may want to read investment author and industry insider James Montier’s investor-centered case against CEO pay run amok, which he ascribes to a faulty corporate philosophy of shareholder value maximization. One of his conclusions: “
Firstly, SVM has failed its namesakes: it has not delivered increased returns to shareholders in any meaningful way,
and may actually have led to poorer corporate performance!”
Disclosure: I own zero Onex shares and won’t be buying any soon, given the pathetic earnings history of the company. I own Apple shares inside the PRF ETF.
July 16, 2015
by Bill Sweet
Wanted to take a moment to wish a Happy Mother’s Day to all of the proud moms out there.
Two stand out in particular – my mom, Cindi, whose love and sacrifice made me into the person that I am today, and Patte, my incredible mother-in-law who does so much to keep our family business in-line, organized, and pleasant for everyone who walks in the door.
Happy Mother’s Day!
July 10, 2015
I received the William E. Odom Visionary Leadership Award last Tuesday, April 23, at a ceremony hosted by the Jump$tart Coalition for Personal Financial Literacy. I was a very special evening which will stay forever in my memory.
I had prepared a speech to deliver at the dinner and I provide the text below. Thank you all for your support and for supporting financial literacy.
I am delighted to be here this evening to receive this wonderful honor. When Laura Levine called to tell me about the Odom Award, I was very happy. And contrary to the findings reported in the studies about happiness, I can tell you that my happiness lasted for days and days.
In fact, that happiness lasted until I realized I’d have to give a speech. I was at this event two years ago… sitting at the table of Carrie Schwab when she sang for her award. And I know that John Rogers gave a wonderful speech last year. How do I follow that?
Like every good Italian, I called my mother. Her first recommendation? No singing or dancing on the stage. That killed my plans for arias from Tosca or any pirouettes. But my mother had some good suggestions. She said, “Why don’t you speak about that PISA project you always tell us so much about? Why don’t you talk about your passions, for example the new center that takes so much of your attention?”
So let me start with PISA, the Programme for International Student Assessment. As most of you know, in 2012 PISA added financial literacy to the topics it measures, together with math, science, and reading. I chaired the group of experts that the OECD brought together to design PISA’s new financial literacy assessment module.
It was a challenging assignment to design questions to measure financial literacy among 15-year-olds in many different countries. But the group brought a rich level of expertise to the task. We had representatives from Treasury departments and from central banks. We had regulators and representatives from the institutions in charge of financial literacy in their countries.
I want to read to you what PISA gauges:
Are students well prepared for future challenges? Can they analyze, reason, and communicate effectively? Do they have the capacity to continue learning throughout life? Every three years the OECD Programme for International Student Assessment answers these questions and more. It assesses to what extent students near the end of compulsory education have acquired some of the knowledge and skills essential for full participation in society.
This could as well serve as a brief description of financial literacy, a skill essential for full participation in society. And as PISA treats it, it is like the other topics we teach in school, math, reading, science.
Over the last 3 years, the Financial Literacy Experts Groups has met in different cities around the world. Our first meeting was in Boston and since then we have been to Paris, Budapest, Melbourne, and Heidelberg. I’d like to say it was a happy project marked by exotic global travel … but in truth it was one of the hardest projects I have ever undertaken. We spent days locked up in hotel conference rooms designing the Financial Literacy Framework. We wrote – and rewrote – the assessment questions many, many times.
Just so you have a sense of how committed we are: We are the only PISA group that asked for an additional meeting so that we could take a final look at the data, examine the findings and, most importantly, discuss how to disseminate this work. Once the data is out, we hope it will drive a big push for financial literacy in schools. Financial literacy makes a difference in the life of young people and we hope we can make a difference with our work and equip the young generations with the skills they need to for full participation in society.
One good feature about working in financial literacy is that it is not hard to be passionate about it. Working with other people who have a passion for this subject is the most rewarding part of what I do.
My family teases me about the PISA project. I first mentioned it to my parents – and the measurement issues associated with it – during a rather quick phone call while I was on my way to the airport to catch my flight to a PISA meeting. The next day I got two e-mails. My little sister congratulated me … then commented that we are in trouble if an economist is being asked to take measurement of the leaning tower. My older sister, the more pragmatic one, asked if I could please arrange a visit to the tower. They were clearly thinking of a different PISA!
I hope it is clear that in the eyes of my parents I can do anything, even studying or fixing the leaning tower. I think I ended up on the PISA project that was better suited to my skills/talents, but I do believe that one of the reasons why I am here on the podium today is because I was raised in an Italian family with very supportive parents.
And I am grateful to my parents for encouraging me to seek my passion. I found it in financial literacy. I have been working on financial literacy issues for the past 10 years… not only research but also trying to disseminate the results of the research to a much wider audience than academics. I am very proud of the Global Center for Financial Literacy that I am building at the George Washington University School of Business. My collaborators are here today and we are united in this mission to spread financial literacy. I am also working with many people and institutions who are here today, FINRA Investor Education Foundation, the Council for Economic Education, and the Jump$tart Coalition for Personal Financial Literacy.
I received an e-mail a few weeks ago from a bank in Arizona asking for material we have written. I had no idea who these people were. It turns out that the mother of my colleague, Kristen, had been talking about our center to her friends and one of these friends was contacting us to ask how to help.
When your parents talk about what you do and can relate to what you do, I think you are in a good job! And I don’t just mean Italian parents but also American parents.
But we need more than passion for our research. We also need funding. Back in 2005, I submitted a letter of interest to a foundation for a new project on financial literacy. One afternoon, while in my office at Dartmouth, I received a phone call. It was the CEO of that foundation. In all of my time as a professor and in the many grants I had submitted, the CEO of a funding agency had never called me. I thought, “This is an organization I want to work with.”
My wish came true. I have been working with the National Endowment for Financial Education and Ted Beck ever since. We turn to him not just for funding, but also for his advice and wisdom. In keeping with my Italian tradition, I think of him as our godfather!
Thank you very much for this award … and for allowing me to take the stage. It was a good thing that I followed my mother’s advice and did not sing and dance. But, if you are interested in the other PISA, please let me know. I’m pretty sure I can arrange a tour.
July 2, 2015
A reader asks: “Can a series 7/66 rep who works for a regional dually registered (broker-dealer and RIA) firm claim to be fee-only, fee-based, and commission-based at the same time?”
Short Answer: No. The terms “fee-only,” “fee-and-commission” and “commission-and-fee” should be used properly. If a person claiming to be “fee-only” or the person’s firm receives material third-party compensation (in the form of commissions, 12b-1 fees, payment for shelf space, etc.), then the use of the term “fee-only” likely violates one or more federal or state securities laws or other consumer protection laws. Additionally, the term “fee-based” should never be utilized to describe an advisor, as it is inherently misleading.
The term “fee-based” apparently arose to describe “fee-based brokerage accounts” – which were permitted for nearly a decade by the SEC under the ill-fated “Merrill Lynch Rule.” The SEC’s rule was overturned in 2007 by the D.C. U.S. Court of Appeals in Financial Planning Ass’n v. SEC, as violative of the “no special compensation” requirement for brokers to be exempt from registration under the Advisers Act.
Following that 2007 decision time was permitted for brokers to change the fee-based accounts to either commission-based brokerage accounts or to investment advisory accounts. Many registered representatives (RRs) of broker-dealer firms converted the accounts to investment advisory accounts, and many of these representatives secured their Series 66 (or 65) licenses in order to be qualified to be an “investment adviser representative” (IAR).
Unfortunately, during this time the term “fee-based” became more widely used to describe the dual registrant (RR/IAR), rather than the account. Some speculate that this was in response to the marketing success fee-only advisors possessed. In particular, hundreds of thousands of consumer inquiries proceed each year through the find-an-advisor web site hosted by the National Association of Personal Financial Advisors (www.NAPFA.org), resulting in many referrals of consumers to its 2,500 or so fee-only members.
The term “fee-only” was apparently coined by NAPFA many, many years ago. Currently NAPFA’s definition of “fee-only” states: “NAPFA defines a Fee-Only financial advisor as one who is compensated solely by the client with neither the advisor nor any related party receiving compensation that is contingent on the purchase or sale of a financial product. Neither Members nor Affiliates may receive commissions, rebates, awards, finder’s fees, bonuses or other forms of compensation from others as a result of a client’s implementation of the individual’s planning recommendations. ‘Fee-offset’ arrangements, 12b-1 fees, insurance rebates or renewals and wrap fee arrangements that are transaction based are examples of compensation arrangements that do not meet the NAPFA definition of Fee-Only practice.”
In contrast, the Certified Financial Planner Board of Standards, Inc. defines a fee-only certificant (i.e., Certified Financial Planner™) as follows: “A certificant may describe his or her practice as ‘fee-only’ if, and only if, all of the certificant’s compensation from all of his or her client work comes exclusively from the clients in the form of fixed, flat, hourly, percentage or performance-based fees.” It should be noted that the CFP Board’s application of this definition takes into account the specific facts and circumstances of the certificant.
While the major online dictionaries don’t apparently yet provide a definition for “fee-only,” “The Free Dictionary by Harlex” defines “fee-only compensation” as “Payment to a financial adviser of a set hourly rate, or an agreed-upon percentage of assets under management, for a financial plan. Under this arrangement, the adviser receives no commissions on any transactions to implement the plan.”
What is the perception of consumers? This is important, because a commonly held understanding by consumers could establish a definition of the term that could result in a securities law violation if the term was misused. However, it is unclear, in my mind, whether consumers would even recognize the “fee-only” term and know what it means, the majority of the time.
But some consumers, whether through readings about fee-only advisors (consumer media writers often caution their readers to seek out “fee-only advisors”) or just through commonly accepted meanings of “fee” and “only” might achieve a understanding of the term “fee-only” in alignment with the definitions provided by either NAPFA or the CFP Board, or both.
(Of course, we must ask how many consumers can articulate the difference between a stock, a mutual fund, and a bond. A low level of financial literacy among consumers excuses neither deceit nor fraud.)
Consumer understanding is not the sole test of the proper use of a term. A commonly held use of the term “fee-only” within the securities industry itself, with dissemination of the term to consumers through marketing and promotional efforts, could also provide the foundational meaning of the term. Any subsequent misuse of the term could then be the foundation for a securities law violation.
Michael Kitces, a widely-respected financial planning industry commentator, summarized past controversies over the term “fee-only” in his recent Nerd’s Eye View blog post (found online at https://www.kitces.com/blog/9-out-of-top-10-cnbc-fee-only-advisory-firms-not-actually-fee-only-according-to-cfp-board-compensation-disclosure-rules/):
Nonetheless, the fact that the companies acknowledged the existence of the commissions and disclose them in the Form ADV means, almost by definition, these firms are not fee-only! In fact, holding out as a “fee-only” advisor while the advisor (or his/her parent firm) has a related entity that is an insurance agent is the exact issue that brought about the complaint with the CFP Board against Jeff and Kim Camarda, and the subsequent Camarda vs CFP Board lawsuit that has ensued. Similarly, an advisor holding out as being “fee-only” while working for a company with a related entity that generates commissions was what led to the resignation and subsequent public admonition of former CFP Board chair Alan Goldfarb. And after an article on this blog pointed out that under the related-party rules, any advisor working for a broker-dealer is in violation of the “fee-only” rules simply by the fact that they work there, the CFP Board had to reset the compensation disclosures on its own website after a follow-up story in Financial Planning magazine revealed hundreds were in violation of the “fee-only” disclosure rules.
As Michael Kitces’ blog also pointed out, the term “fee-only” continues to be a point of controversy and continues to snag advisors and firms, sometimes through no fault of their own. As James Dornbrook reported in the Kansas City Business Journal on June 10, 2015:
Leawood-based Creative Planning was recently named as the nation’s No. 1 fee-only wealth management firm by CNBC for the second year in a row. Creative Planning didn’t apply for the award. It was thrust upon the firm unknowingly, and it ended up in the national media.
Soon after CNBC announced its list, Michael Kitces, a well-known commentator and editor of the Journal of Financial Planning, skewered it by questioning whether nine of the 10 firms recognized truly have a fee-only structure. His criticism included Creative Planning, which Kitces said refers clients to insurance affiliates the firm owns, so it shares in those insurance commissions.
Creative Planning founder Peter Mallouk said that when it comes to making any types of investments, his firm is certainly impartial and fee-only, focused entirely on getting clients into the best investments that fit their risk profile and goals.
That said, Creative Planning does have affiliates that offer insurance coverage. However, most of the coverage is group coverage, such as health insurance and property and casualty insurance for businesses. The company does offer insurance policies for individuals, such as term life, health, home and auto, but the offerings do not include any insurance that could be considered an investment vehicle, such as variable life or variable annuities.
The CNBC list required that all firms be fee-only when it comes to investments. It also required that the firms on its list be able to advise on insurance because it wanted to recognize firms that offered a full suite of wealth management services. Creative Planning offers money management, financial advice, legal and tax services, and insurance. So it’s got the full package and serves clients well in each area, which is why it got recognized.
Should Creative Planning and similar firms be considered a pure “fee-only” firm when only a small part of their business makes commissions on clients for insurance sales? CNBC thinks so …
It should be noted that in a 2007 state securities administrator proceeding involving an investment adviser representative who also sold insurance products, the use of the term “fee-only” was found to be misleading and violative of state securities anti-fraud laws. See IN THE MATTER OF: MICHAEL G. GRIMES; and FINANCIAL SOLUTIONS & ASSOCIATES, INC., Case No. AP-07-04 (State of Missouri, Office of the Secretary of State) (available at http://www.sos.mo.gov/securities/orders/AP-07-04a.asp). The State Securities Administrator’s sanctions were upheld on appeal to the Missouri Court of Appeals (Financial Solutions and Associates v. Carnahan (Case No. WD71332 (July 20, 2010). I provide this extended excerpt from the appellate decision:
At the time of the investigation, Grimes [licensed as an insurance agent, not as an investment adviser representative] was acting as a solicitor for Barrington and had his own business, FSI. Grimes was licensed to sell life insurance, variable contracts, accident, and health insurance coverage. Barrington was a federally covered investment adviser. Between March 31, 2005, and June 30, 2006, Grimes received over $150,000 in compensation from Barrington. FSI’s website, maintained by Grimes, contained a section called “Fee-Only Planner.” That section clearly stated:
“[FSI] is a fee-only planning firm committed to assisting client[s] to reach their financial goals. Fee only planners, like us, are compensated solely by fees paid by their clients and do not accept commissions or compensation from any other source.”
“The main difference between a Stockbroker and us is that they make a living by charging their clients commissions.”
“We do not earn any money from commissions, trailers, or markups.”
At the hearing before the Commissioner, Janet Ellingson, an account manager for LiveOffice, who Grimes used to build and house his website, testified that when Grimes gave the information for his initial questionnaire, he stated that he was a fee-only investment advisor. Grimes testified that it was his responsibility, knowing what licenses they had, to build the site and select the proper pages that would equal the services they were licensed to offer. Grimes also admitted that he was a solicitor for Barrington at the same time he maintained his website and would receive 60% of the management fee that Barrington received when they managed the clients Grimes brought to them.
After a review of the record on appeal, particularly the evidence presented regarding the website and the commissions the Appellants received at the same time the website proclaimed they were “fee-only,” we conclude the Commission’s finding is supported by competent and substantial evidence.
Moreover, to the extent Grimes contends that the Commissioner erred in finding the statements constitute fraud or deceit under § 409.5-502(a), that argument also fails … “[i]t is recognized in Missouri, as well as generally, that the primary purpose of legislation similar to that of the Missouri Uniform Securities Act is that of protecting the buyers of securities.” Garbo v. Hilleary Franchise Sys., Inc., 479 S.W.2d 491, 499 (Mo.App.E.D.1972) (internal quotation and asterisks omitted). To fulfill that purpose, we “embod[y] a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.”Id. (internal quotation omitted). As noted supra, under § 409.5-502(a):
It is unlawful for a person that advises others for compensation, either directly or indirectly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as part of a regular business, issues or promulgates analyses or reports relating to securities: (1) To employ a device, scheme, or artifice to defraud another person; or (2) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.
The Appellants contend that fraud and deceit under the Missouri Securities Act require the making of a false or misleading statement of material fact, or the failure to disclose a material fact necessary to avoid making another statement not misleading. They contend that the statements from FSI’s website do not meet this definition. Fraud and deceit are not defined in the Missouri Securities Act. However, the terms “ ‘[f]raud,” “deceit,” and “defraud” are not limited to common law deceit.” § 409.1-102(9).
When interpreting the meaning of words used in the Missouri Securities Act, we look to other states’ interpretations of their securities law as well as federal interpretations. Moses, 186 S.W.3d at 904 (“Missouri courts have often looked to cases decided by courts from other jurisdictions to aid in comprehending the definitional limitations of the Act, particularly when the language of the federal and state securities statutes involved is nearly identical.”); State v. Dumke, 901 S.W.2d 100, 102 (Mo.App.W.D.1995) (“[W]hen construing uniform acts, it must be remembered that the fundamental purpose of a uniform law is to eliminate uncertainty and provide plain and certain the controlling rules of law. It is fitting, therefore, to turn to our sister jurisdictions and examine their solutions to the problem.” (Internal citation and quotation omitted)).
Similar to federal securities legislation, Missouri securities legislation makes it unlawful for persons to engage in practices or a course of business that “operates or would operate as fraud or deceit.” § 409.5-502(a) (emphasis added); cf. 17 C.F.R. § 240.10b-5(c). This language “quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible.” Aaron v. Sec. & Exch. Comm’n, 446 U.S. 680, 697, 100 S.Ct. 1945, 1955, 64 L.Ed.2d 611 (1980). This same approach has been followed in other states, as these states have also relied on the Aaron decision. See, e.g., Secretary of State v. Tretiak, 22 P.3d 1134, 1141 (Nev.2001).
Moreover, when a definition is not present in the statute, “the plain and ordinary meaning is derived from the dictionary.” Cox v. Dir. Of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003). “Fraud” is defined as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Black’s Law Dictionary731 (9 th ed.2009). “Deceit” is defined as “[t]he act of intentionally giving a false impression.” Id. at 465. It is also defined as “[a] false statement of fact made by a person knowingly or recklessly with the intent that someone else will act upon it.” Id. The evidence presented in the record on appeal demonstrates that the FSI website’s language meets these definitions.
The Commissioner did not err in determining that Grimes’s statements on the FSI website constituted fraud or deceit under the Missouri Securities Act. The Commissioner’s decision is in line with other state and federal decisions and meets the definitions given to these terms. We attempt to construe the Missouri Securities Act in a manner that is consistent with the Commissioner’s interpretation, Moses, 186 S.W.3d at 899, and we do not find that the Commissioner’s interpretation was unreasonable or arbitrary. Point denied.
The Commissioner’s decision finding that Appellants engaged in an act, practice, or course of business that operated as fraud or deceit upon persons under § 409.5-502(a) is affirmed.
As seen, representations regarding “fee-only” by a person who does not meet the generally accepted definition of that term (whether such definition is promulgated by industry organizations or has achieved more widespread use in the public jargon) is likely to constitute “fraud” or “deceit” under federal and state securities laws.
Permit me to offer my own opinion as to the likelihood of organizational rules or securities / insurance law violations. Of course, each situation is fact-specific; nevertheless, some general legal conclusions can be offered.
If a Certified Financial Planner™ or her/his firm receives any commission-based compensation, 12b-1 fees, or other material third-party compensation, and the certificant uses the term “fee-only” (either on the CFP Board’s find-an-advisor web site, or in any other marketing or promotional materials, or verbally) to describe either: (1) the certificant; (2) the nature of the certificant’s practice; or (3) the nature of her or his firm, then the certificant has probably violated the CFP Board’s rules. If you, the reader, spot such occurring, I would urge you to first contact the certificant, suggest that she or he review the CFP Board’s rules, and permit a reasonable time for corrective action to occur. The appropriate characterization of the practice and/or the advisor and/or the firm should be either “fee-and-commission” or “commission-and-fee” (depending upon which predominates, as a percentage of total revenue). If corrective action by the certificant or the certificant’s firm does not occur, I would urge the reader to file a written complaint with the CFP Board about the certificant.
Regardless of whether the dual registrant (RR/IAR), or perhaps an IAR with an insurance license, possesses status as a CFP®, another issue is whether fraud is occurring under the federal or state securities laws, or common law fraud occurs under state common law. Given the long-standing use of the term “fee-only” within the industry, by both NAPFA and the CFP Board, and given that a significant minority of consumers would likely understand the term “fee-only” as connoting arrangements other than third-party compensation, I would opine that the use of the term “fee-only” would be fraudulent to describe the individual Series 65/66 license holder if that license holder received third-party compensation (such as commissions, 12b-1 fees, etc.).
If the advisor is a registered representative, then FINRA Rule 2210(d)(1)(B) prohibits a firm from making any false, exaggerated, unwarranted or misleading statement or claim in any communication, and prohibits the publication, circulation or distribution of any communication that the firm knows or has reason to know contains any untrue statement of a material fact or is otherwise false or misleading. I would opine that the inappropriate use of the term “fee-only” by a registered representative who also receives commissions or other material third-party compensation, whether from sales of securities or insurance products, is not “fee-only” and that any use of the term “fee-only” would likely violate of FINRA Rule 2210(d)(1)(B). Again, I would urge the reader to contact the registered representative and or her/his firm, and seek that they undertake corrective action within a reasonable period of time. If appropriate action is not appropriately undertaken, I would urge the reader to file a written complaint with FINRA.
If the advisor is not a registered representative, but holds as Series 65/66 license and an insurance licenses, and if the advisor inappropriately use of the term “fee-only” due to receipt of commissions or other material third-party compensation from insurance products, whether through the same firm or through an affiliated insurance firm or even a non-affiliated insurance agency, then I would opine that the advisor is again not “fee-only.” I would note that any use of the term “fee-only” would likely be considered an “advertisement” (any communication addressed to more than one person that offers any investment advisory service with regard to securities) under “the Advertising Rule” — Rule 206(4)-1). Note that an advertisement could include both a written publication (such as a website, newsletter or marketing brochure) as well as oral communications. Under the Advisers Act, advertising must not be false or misleading and must not contain any untrue statement of a material fact. Regardless of whether an “advertisement” exists, all statements made to advisory clients and prospective clients, is subject to the general prohibition on fraud (Section 206 as well as other anti-fraud provisions under the federal securities laws). Again, I would opine that it is likely that a Sect. 206 violation has taken place. I would urge the reader to contact the investment adviser representative and or her/his firm, and seek that they undertake corrective action within a reasonable period of time. If appropriate action is not appropriately undertaken, I would urge the reader to file a written complaint with either the SEC (if the advisor’s firm is registered with the SEC) or with the home state of the advisor’s firm (if the advisor’s firm is not “SEC-registered”).
If the advisor is only an insurance agent, and advertises as a “fee-only” financial or investment advisor, then violations of the anti-fraud provisions of state insurance laws, and/or state consumer laws against unfair or deceptive practices, may have occurred. While this will depend upon that state’s laws, again I would urge the reader to seek corrective action by contacting the insurance agent first, then if correction action is not timely undertaken then filing an appropriate report with either the state insurance commissioner’s office, or the state trade commission, or both.
I believe the term “fee-based” to describe an advisor is intentionally misleading, when utilized. Where both fee revenue (AUM, fixed fees, hourly fees) or commissions (or other third-party compensation) is received, an advisor is properly characterized as either “fee-and-commission-based” or “commission-and-fee-based,” depending upon where the majority of the revenue of the advisor is derived. The omission of “and-commission” in either instance, an attempt to obfuscate and gain the consumer’s trust inappropriately, and hence in my view constitutes deceit under federal and state securities laws.
These are my conclusions only. Again, these conclusions are based upon the general understanding of the law, and varying sets of facts might lead, in particular cases, to different results. Additionally, while one reported decision exists as to the use of the term “fee-only,” other decisions may exist, and/or new cases may arise, which result in different decisions. Nevertheless, I would caution that only advisors which meet the definition of “fee-only” use that term to describe themselves in any communications with any client or any group of clients, or in any other communication.
June 24, 2015
The Economist posted a recent “Where Do you Stand?” feature that goes like this:
Here is a question: Suppose you had $100 in a savings account that paid an interest rate of 2% a year. If you leave the money in the account, how much would you have accumulated after five years: more than $102, exactly $102, or less than $102. . . . A survey found that only half of Americans aged over 50 gave the correct answer. . . . The solution seems obvious: provide more financial education. . . . A survey by the Federal Reserve Bank of Cleveland reported that: ‘Unfortunately, we do not find conclusive evidence that, in general, financial education programmes do lead to greater financial knowledge and ultimately to better financial behaviour.’ So should we give up on financial education? Please vote.
A friend had forwarded me the link to this feature (http://www.economist.com/economist-asks/should-we-give-up-financial-education), and when I read it, I had a good laugh. What a way to frame a question: Here is some medicine that does not work. Would you take it? Please vote, because we are really interested in publishing your opinion.
I was nevertheless very pleased with the feature. The question that was cited was one that I designed (with Olivia Mitchell) for the Health and Retirement Study, a US survey that covers respondents 50 and older. However, it appears that whoever authored the feature forgot to read my paper because the statistic that is reported is, in fact, wrong. Not half but 67% of older Americans gave the correct answer. This does not mean that financial literacy is high. Nevertheless, it is good to check sources.
I went and searched for the Federal Reserve Bank of Cleveland survey to check it out. The link to the survey report is noted below. I mean this in a friendly way, but it’s worth noting that the Economist’s citation is from an unpublished paper written five years ago and covering only a handful of financial education programs. While the title of the paper may look attractive, I am not sure I would consider it the authoritative source on financial education. (I Googled the authors and it appears they have not written any other papers on this topic nor published that paper.) There are more recent and published papers, some of them pointing to the same result. I would have quoted those.
I voted, of course. (In case you want to know, I voted that we should not give up on financial education; I have read a lot more papers on financial education than the one reported here.) After casting my vote, I was able to see percentage of votes in favor of and opposing financial education. Even before seeing the result, however, I could have made an educated guess as to the outcome. The ING Financial Competence Survey asked “Do you think financial education should be taught in school?” In all of the 11 countries that were surveyed, about 90% of respondents answered yes (the report’s link is noted below). Notably the UK ranked second, with 94% of respondents answering yes. After I voted on the Economist’s question, I could see that 84% had voted in favor of financial education.
By the way, methodologically it is not very useful to ask about choices without mentioning costs. Decisions depend both on preferences and budget constraints. Would I give up cable? No. Would I give up a land-line phone? No. Would I give up on financial education? No. Why should we give up on anything without knowing the costs of doing so? We cannot learn much from asking these types of questions. It is Economics 101.
June 18, 2015
I read the obituary of Ray Williams in the March 25, 2013, issue of the New York Times. A talented basketball player, Ray Williams started his career playing for the New York Knicks and later for the New Jersey Nets. He also played for the Celtics, the Atlanta Hawks, and the San Antonio Spurs. As the article mentioned, “he had an outstanding shooting touch, he possessed superb body control, and had dazzled the crowds at Madison Square Garden in the late 1970s and early 1980s.” By the time his NBA career ended, he had accumulated impressive statistics. His private life after he stopped playing is another story. While Williams had earned millions during his career, he declared bankruptcy in the mid-1990s, his marriage broke up, and by the summer of 2010 he was homeless, living in his car in Florida. After he talked about his problems in an interview with the Boston Globe, he received an offer from the mayor of his native Mount Vernon, New York, to work with youngsters at a recreational center. A former teammate interviewed for the article noted that “Williams flourished on the court but, like many athletes, was not prepared for life after the game.”
Williams’s story is surprisingly similar to that of many other athletes. Successful, skillful, and with impressive records, many athletes end up in bankruptcy courts, sometimes as soon as two years after they stop playing. Money mismanagement seems to be the norm, even if players, as in the case of Williams, had earned millions of dollars in their career. But the career of a professional athlete is short; they are lucky to be active past age 35. Their professional skills are many but do not necessarily translate into opportunities for jobs after they stop playing.
There are powerful lessons in these stories. First, skill, talent, and intelligence are not enough to manage finances. Incredibly successful athletes are able to do things that are unimaginable for the rest of us (I, for one, am so inept in basketball that I once fell on my face while trying to dunk a ball; I was alone on the court, so I could not even blame a teammate!) but they cannot necessarily be expected to be as skillful at managing money. While many people believe managing money is not rocket science (I am afraid it is), we need more than general skills to deal with high earnings, especially when those earnings last for only a few years. Second, while we recognize the importance of training to success in the game (and in any job, really), we tend to give less thought to how be successful in other parts of our life, such as managing our finances, which is equally important given that at a certain point we will stop working at our successful (or unsuccessful) jobs and need to support ourselves.
There is a little bit of Ray Williams in all of us. How many of us have planned for the future so as to be able to support ourselves after we stop working? This is something that most people don’t start to think about until they reach middle-age. Fortunately, regular jobs last for a long time and we can earn income over a long career. But for professional athletes whose careers are very short, a lot more preparation is needed for “life after the game.” Three suggestions come to mind. Let’s make sure that athletes graduate from college so they have a degree they can rely on after they stop playing (Ray Williams did not graduate from Minnesota, where he studied after a year at San Jacinto Junior College in Texas). Let’s add money management to their courses before they go pro. We all need those courses, but the athletes even more! Finally, let’s create programs for professional athletes so that when they stop playing they can use their fame, skills, discipline, outstanding shooting touch, and superb body control to dazzle in their new jobs.
All of us who cannot dunk without being hurt would enjoy seeing our heroes do well both on andoff the basketball court.
June 10, 2015
Tomorrow will likely be the last game where we will see Ray Lewis play, the unforgettable number 52, who sometimes seems to fly. Even for a person like me, born and raised in Italy, with little knowledge of American football until some years ago, Ray Lewis represents what is special about the game.
Ray Lewis has been considered one of the best defense players, a linebacker who can put up an insurmountable barrier for the rival team, who can tackle like no one else. Watching him play, you forget he is often one of the oldest players on the field, as his age is not apparent from the way he runs, jumps, and catches. But perhaps because he has played for so many years, he knows spectators are there to see a good game, and he makes the game special. On the field, he dances, he screams, he prays, but in particular, he gives it his all.
What is special about Ray Lewis is not just his talent, but his passion, his motivation, his iron will. We have seen him motivate the Ravens before a game and console them after a loss. We can hear his screams when he comes onto the field, when he goes back into the locker room. We can hear the passion in his voice.
What I like the most about Ray is the message he has been delivering throughout the years. You want success? You have to work hard, very hard. You have to stay focused; do not take your eye off what you are doing. You have got to practice, get better every day. And most importantly, do not give up, never give up.
It is a message I like to tell my students (including the MBAs), my nieces (even if they do not play football), and, sometimes, myself, too. It turns out that Ray Lewis is also passionate about financial literacy, and about promoting financial literacy among underprivileged children. Imagine combining passion with knowledge: what a combination that would be!
But tomorrow is a big game, an ending game, it is Super Bowl. Good luck tomorrow, and thank you, Ray Lewis!
June 3, 2015
Should I or should I not buy an annuity? (An annuity is financial product in which an insurance company, in exchange for a lump sum today, pays the investor a pre-determined cash amount for life.)
Why am I even considering this step?
First, I’m in my early 60s and no longer earning appreciable employment income. Yup, I’m retired and I would rather not un-retire if I can avoid it.
Second, I’m getting CPP but OAS is a few years off. I do not have any defined benefit pension so my investments in various registered plans, a TFSA and a non-registered account are the only possible sources of living expenses for the rest of my life, though at some point I am likely to receive a lump sum inheritance. Probably I am fairly typical of a growing number of Canadians, for whom the comfort of DB pensions providing assured lifetime income is no longer a possibility.
Third, I aim to follow a couple of simple financial management principles that make intuitive sense:
- Guiding principle #1 – Match spending liabilities with income assets.
To the extent possible I want my various spending needs for food, housing, recreation, health to align with income sources in terms of timing, amounts, regularity and certainty aka riskiness. Grocery money, electricity and property taxes are essentials and must be matched by equally reliable income. On the other hand, I can put off or reduce travel.
This means matching the characteristics of income-producing assets with retirement financial risks and desired benefits, many of which are unique or especially important to the withdrawal phase of investing and to later life. The following chart summarizes the nature of the two main categories of financial products – i) stock & bond portfolios in the various types of investment accounts like RRSPs, RRIFs, LIFs, LIRAs, LRIFs and Defined Contribution pension savings plans and ii) annuities, CPP & OAS and Defined Benefit pensions.
(click on image to enlarge)
The striking feature of the chart is how well the two categories complement each other. Neither ticks a Yes in every box but where one category falls short with a No, the other in almost every case has a Yes. The two exceptions are inflation protection and tax minimization, where each category can only offer partial protection.
The obvious conclusion is that every retiree needs to have some of both types of products, except perhaps for those lucky or wise few whose 70% of final salary fully CPI-indexed DB pensions are more than adequate and who are net savers in retirement.
- Guiding principle #2 – Take only as much risk as necessary.
Given that my objective is to maintain the lifestyle I have been happy with through the pre-retirement part of my life, if I can see that risk-free income sources will suffice to fund that lifestyle, why should I take any more risk?
Since my present CPP and even including my eventual OAS fall far short of my essential needs, the above considerations naturally lead me to plan for an annuity.
The next steps, for future posts to explore, is to decide:
- how much to annuitize
- when – now or later, when I’m 65, 70 or later, or whether to buy today a deferred annuity that only starts paying (how many?) years hence
- which bells and whistles to buy, like guaranteed minimum payout periods, annual payout increases, death benefits
- whether to use money from a registered account, which offers a higher payout, or a non-reg / TFSA account, where a prescribed annuity offers a tax advantage
May 27, 2015
An Open Letter to the U.S. Chamber of Commerce
Feb. 26, 2015
Tom Donahue, CEO
U.S. Chamber of Commerce
Mr. David Hirschmann
President, U.S. Chamber’s Center for Capital Markets Employee Benefits Competiveness
Mr. Randel Johnson
Senior Vice-President, U.S. Chamber of Commerce Labor Immigration and Benefits
Dear Mr. Donahue, Mr. Hischmann and Mr. Johnson:
I have observed the U.S. Chamber of Commerce undertake actions recently in apparent opposition to the U.S. Department of Labor’s (DOL’s) (via its Employee Benefit Security Administration) (EBSA) re-proposal of its “Definition of Fiduciary” rule (a.k.a. “Conflicts of Interest” rule). The Chamber has suggested that the DOL should not redefine the fiduciary definition, and instead seek a more narrow approach. I believe the Chamber’s position is contrary to the concerns of the vast majority of the U.S. Chamber of Commerce’s members.
The fact of the matter is that the DOL/EBSA re-proposal of the “fiduciary” definition is critical to all businesses, and their owners, that sponsor a qualified retirement plan. Far too often, plan sponsors have been sued for “relying” upon the advice of non-fiduciary “retirement consultants.” Yet, these “consultants” escape liability as they hide behind the low “suitability” standard for the “recommendations” they provided.
The burden on plan sponsors – business owners attuned to running their own businesses but rarely possessing a sophisticated knowledge of investments – is quite high. ERISA demands that fiduciaries act with the type of “care, skill, prudence, and diligence under the circumstances” not of a lay person, but of one experienced and knowledgeable with these matters. 29 U.S.C. § 1104(a)(1)(B). The purpose of this statute is for the protection of plan participants (including business owners and managers themselves). Yet, business owners and managers seldom possess the expertise to select investments for their defined contribution plans. Hence, they must turn to, and rely upon, expert advisors.
The real tragedy for plan sponsors occurs when private litigation arises against plan sponsors [including class action litigation by plan participants, made easier by recent court decisions. A perfect example is the Tibble v. Edison case currently before the U.S. Supreme Court. In this case the plan sponsor – a large business – faces immense liability (as well as litigation costs) due to its stated reliance on a non-fiduciary retirement plan consultant.
Additionally, largely in response to complaints by plan participants, a DOL audit is increasingly likely – and this can result in an enforcement action and/or restitution to plan participants. In both instances, the plan sponsor – businesses both large and small – are held to account.
Yet – here is the rub. In either instance, the plan sponsor has great difficulty holding the “retirement plan consultant” to account, given the low standard of conduct applicable to measure the potential liability of a non-fiduciary consultant. The plan sponsor is the victim of poor (and non-fiduciary) advice, in such cases, and has no effective remedy for the conflict-ridden recommendations it received. And most business owners don’t even realize that they cannot rely upon such non-fiduciary advisors.
Several other class action cases of this nature have already been settled, and more are pending. In each instance, if the U.S. Chamber of Commerce were to contact its member (the subject of the litigation, often bearing millions if not tens of millions of potential liability), that member would likely say: “The primary reason I, the plan sponsor, am subject to this suit, is because I did not work with a fiduciary retirement plan consultant. Although I thought I could rely upon the recommendations of this ‘consultant,’ and that they would be held to account for their recommendations, I came to find out that the ‘consultant’ is able to hide behind the low standard of ‘suitability’ for its recommendations. I am on the hook, while they escape liability for their conflict-ridden, poor advice.”
While the Chamber’s position appears to reflect Wall Street’s fervent opposition to the DOL’s proposed rule to broaden the applicability of fiduciary status, if the Chamber were to investigate it would find that many of Wall Street’s views don’t withstand scrutiny. See my prior blog post.
The U.S. Chamber of Commerce needs to rethink its position. Does the Chamber represent all business owners (many, if not most, of whom, are plan sponsors)? Or does the Chamber represent only a slim minority of the business world – who so often prey upon all of the other businesses? Does the Chamber want to assist its members – business owners and plan sponsors large and small?
American business owners desire to provide for the retirement security of their workers in the best way possible. The DOL’s fiduciary rule-making is a huge step forward toward this goal. The DOL’s fiduciary rule will empower plan sponsors – each of whom truly deserves expert, trusted fiduciary advisors who are, in turn, held accountable for their recommendations.
Ron A. Rhoades, JD, CFP®
Ron A. Rhoades is an attorney, investment adviser, Certified Financial Planner(tm), and professor of business law and finance. He will be joining the faculty of the Western Kentucky University Department of Finance in July 2015, where he will serve as Program Chair for its Financial Planning Program.
This blog post represents Ron’s personal views, and are not necessarily those of any firm or organization or institution with whom he is associated. Ron may be reached via email@example.com.
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