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Presented by Marcia S. Wagner, Esq.

The Evolving ERISA Fiduciary Standard What Do You Need To Know? Live ByAllAccounts Webinar - Feb 28, 2PM EST. Presented by Marcia S. Wagner, Esq. . About ByAllAccounts.

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Presented by Marcia S. Wagner, Esq.

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  1. The Evolving ERISA Fiduciary Standard What Do You Need To Know?Live ByAllAccounts Webinar - Feb 28, 2PM EST Presented by Marcia S. Wagner, Esq.

  2. About ByAllAccounts • ByAllAccounts is the only provider of intelligent data aggregation for financial services companies and the platforms on which their businesses depend. • We serve over 1500 clients, including Advisory firms, Wealth managers, Trusts and Asset managers. • We help clients: • Eliminate Manual Data Entry • Drive Back Office Efficiency • Access Hard-to-Get Account Data (retirement accounts) • Provide Holistic View of Client Portfolios • Save Time & Money

  3. Marcia S. Wagner, Principal – Wagner Law • Principal of The Wagner Law Group, one of the nation’s largest boutique law firms, specializing in ERISA, employee benefits and executive compensation • Frequently quoted in The Wall Street Journal, Financial Times, Pension & Investments, many other industry publications • Provides counsel to advisors

  4. The Evolving ERISA Fiduciary Standard What Do You Need To Know? Marcia S. Wagner, Esq.

  5. DOL’s Campaign to Expose Conflicts • DOL Strategy • Roll out new fee disclosure rules. • Impose fiduciary status on more providers. • Force non-fiduciary advisors to make disclaimers. • DOL releases proposed reg’s on Oct. 21, 2010. • Broadens “investment advice fiduciary” definition. • Withdrawn on September 19, 2011. • To be re-proposed with more input from public. • If you provide investment advice, you are automatically deemed a fiduciary. • DOL’s current definition for investment advice is based on 5-factor test.

  6. Overview of DOL’s Initial Proposal • Existing Definition • Advice may be investment advice if it is a primary basis for plan decisions and given on regular basis. • DOL’s Initial Proposal • Include any advice that may be considered by plan. • May include casual advice or one-time advice. • Non-fiduciary advisors must make disclaimer: (1) advisor is acting as seller of securities. (2) advisor’s interests are adverse to client. (3) advice is not impartial.

  7. Broader “Fiduciary” DefinitionPractical Implications • Non-Fiduciary Advisors • Would need to change service model. • Must disclose they are not providing impartial advice. • Or they could accept fiduciary status and become subject to ERISA. • Re-proposed Rule in 2012 • New definition to include individualized advice only. • Will be similar in approach to DOL’s initial proposal. • DOL is coordinating with SEC.

  8. Broader “Fiduciary” DefinitionPractical Implications • DOL proposal likely to pressure advisors to provide fiduciary services for level fees. • Advisors unwilling to serve plan clients on these terms may be forced out of retirement space. • Advisors, especially non-fiduciaries, should re-evaluate business model for plan clients. • Explore working with recordkeeping platforms that have ability to offer level payouts. • Explore use of ERISA fee recapture accounts to ensure advisor retains level fee only. • Consider becoming “dual registrant” and charge level asset-based fee as RIA. • No easy “one size fits all” solution for firms.

  9. TO DO • Speak with recordkeeping platforms regarding potential fee leveling • Explore certain computer models under which investment advice may be provided while the financial advisor still receives variable compensation • Review contracts with clients to ensure no inadvertent prohibited transactions and clarify on what you are and more importantly, are not a fiduciary for • Develop relationship with ERISA/employee benefits counsel – realistically you probably need some assistance in this complex area – not something to do on your own, cost is not prohibitive: $2,000 to a few thousand dollars per year.

  10. The Evolving ERISA Fiduciary Standard Presented by Marcia S. Wagner, Esq. 99 Summer Street, 13th Floor Boston, MA 02110 Tel: (617) 357-5200 Fax: (617) 357-5250 Website: www.wagnerlawgroup.com marcia@wagnerlawgroup.com A0091772

  11. Q&A Thank you! CONTACT ByAllAccounts for 10-minute complimentary phone consultation: Jhan Frias ByAllAccounts Office: (781) 376-0801 ext. 129 Mobile: (401) 780-7119 JFrias@byallaccounts.com

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