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Posts Tagged ‘suitability standard versus fiduciary standard of care’

We certainly don’t need another case to justify the mistrust that consumers have of all things financial.  There’s been no shortage of scams, lawsuits and perp walks over the past couple of years.

Here is a recent example of a slew of cases involving broker-dealers selling either private placements or other illiquid securities that have ended up burning investors.

As reported in the Wall Street Journal and Financial Advisor magazine earlier this week (June 1), an independent brokerage firm with representatives across the country, has been accused of misleading elderly and unsophisticated investors without proper consideration of whether the investments were suitable.

The article reports that the brokerage firm sold billions of dollars of non-traded Real Estate Investment Trusts (REITs) to individuals since 1992 and pocketed more than $600 million in fees. Sales of these investments generated more than 60% of the firm’s total revenues.

Now there is nothing wrong with a REIT per se. They are great ways to buy into a diversified portfolio of real estate. And there’s nothing wrong with illiquid investments either.  They serve a purpose and have a place in a portfolio assuming that it makes sense for the individual.

The problem comes from the way these investments are sold by some in the industry who do not have the best interests of the client at heart. When there is a profit motive involved, there is the potential for misbehavior arising from this basic conflict of interest.

Brokerage firms are held to a certain standard called “suitability” which is a sort of legal test to see if a particular investment makes sense for an investor.  Presumably, a broker working for a brokerage firm will ask a range of questions about the investor’s income, other assets, investment goals and time frame.  Then a brokerage firm’s compliance department will review the information and the application for the investment before the purchase.

Red flags would be if an investor has a large chunk of money to be tied up in any one type of investment or asset class.  Another might be if the investor indicates that they need the cash for some specific goal on a certain date but the investment is tied up longer than that and thus subject to an early redemption penalty.

Apparently in this case, the brokerage firm did not even do this type of “due diligence” on the investors buying into the REIT.  For many who were not knowledgeable of things like asset allocation or reading complex investment documents, they allegedly simply relied on marketing materials provided by the brokerage firm.

In previous cases, we have seen how there has been an incentive by brokerage firms to not complete any significant due diligence on an investment product that is sold by their representatives. Investors who think that they are protected by a firm’s “compliance department” have often found that no one was really checking on the investments being offered.  And like the fox guarding the hen-house, there is the potential for hanky-panky.

And the one who pays is the investor.  In many cases, the brokerage firm gets paid twice:  A 1 to 2% “due diligence” fee paid by the investment’s sponsor and then from the 5% to 10% commission paid by the investor. And in some cases the brokerage only pocketed the fee instead of hiring the team of due diligence analysts.

There is a battle going on in the financial industry especially since the passage of the Dodd-Frank financial regulation reform bill.  While not the greatest, it did offer change.  And one key change was to implement a universal “fiduciary” standard on those working with clients.

Right now, stand-alone registered investment advisers (RIAs) and specifically fee-only financial planner and advisers already subscribe to a “fiduciary” standard.  The standard is a higher legal duty to do what is “best” and “right” for the client and not what is the highest profit option for the adviser’s firm.

In the recent David Lerner Associates case as well as many others, the inherent conflict of interest between profit for the firm and the products sold to the consumer is glaring.

In all likelihood, consumers searching for higher yields heard the sales pitches from brokers.  And remember that when it comes to investing, the motivations are either fear or greed. In this case, the “greed” of the consumers looking for higher rates of return met the “greed” of the brokers looking to sell the product.  It should be no surprise that supply met demand.

But it also clearly shows how the most vulnerable need special help.  While they may go to a broker or agent thinking that the nice guy is going to do what’s right by them, they end up paying a price because they don’t realize who is representing them in the transaction.

As investors search for yield they need to do more due diligence.  And they should not be afraid to be working with a fiduciary who can help them with a second opinion.

Brokers are not all bad.  They serve a valuable role in our financial system.  But consumers really need to know that not all financial professionals are alike and the help of a fiduciary may keep them from getting burned by their fear or their greed.

Now’s as good a time as any to once again get back to basics:  Protect yourself from scams with this guide from the CFP Board of Standards.

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