Weekend Reading For Financial Planners (May 21-22)

Court Ruling Darkens Constitutional Cloud Hanging Over SEC Judges

(Jennifer Bennett | Bloomberg)

The Securities and Exchange Commission (SEC) has broad regulatory powers, granted by Congress, covering a wide range of securities investments, and the investment advisers who manage them. Of course, those regulations must be enforced, and to handle some matters in an expedited manner, the agency in the past has had the option to use ‘in-house’ Administrative Law Judges (ALJs) (rather than a ‘traditional’ Federal court with a jury trial) to hear cases. But a court ruling this week suggests that those who want juries to hear their cases might soon be able to do so.

In its recent decision, the U.S. Court of Appeals for the Fifth Circuit ruled that Congress's delegation of power to the SEC to self-determine when to use its own ALJs versus a jury trial was unconstitutional because it failed to “provide an intelligible principle by which the SEC would exercise the delegated power”. The ruling said that the defendants in this case (who were fined and barred from certain activities by the SEC for allegedly misrepresenting investment parameters and safeguards, and overvalued assets to increase the fees they could charge) are guaranteed a jury trial under the Seventh Amendment as the SEC’s “enforcement action is akin to traditional actions at law which the jury-trial right attaches” (i.e., it was not a ‘mere’ administrative matter for an in-house Administrative Law judge). In addition, the ruling said that statutory restrictions on the removal of the SEC’s administrative law judges are also unconstitutional.

An SEC spokesperson said the agency was assessing the decision and working with the Justice Department to determine its next steps, but additional clarity is likely to come from the Supreme Court, which this week agreed to consider a separate, narrower case regarding which courts have jurisdiction to hear challenges to the SEC’s administrative law judges.

And so, given the large number of advisors who are registered with, and regulated by, the SEC and the wide range of regulations to follow, those who do end up in hot water with the SEC could end up with the option to have a jury, rather than the SEC’s judges, adjudicate the claims – which is important as there have been a growing number of complaints in recent years that the SEC’s in-house ALJs favor the SEC and thus may disproportionately rule against advisers (thus the growing number of recent lawsuits regarding ALJs in the first place). Of course, having a strong internal compliance culture can help firms avoid getting into trouble with the SEC in the first place, but a key part of the regulatory system is that advisers must have confidence that if they ever do get accused of wrongdoing, that they will have a fair trial to be heard and make their case about why their behavior was appropriate!

SEC Effort To Give Reg BI More Teeth Has Yet To Bite

(Mark Schoeff | InvestmentNews)

In June 2019, the SEC issued its final version of Regulation Best Interest (Reg BI), which requires brokers to act in their clients’ best interests when making an investment recommendation, by meeting four core obligations: disclosure, care, conflicts of interest, and compliance. In addition to Reg BI itself, the SEC also implemented a newly required “Form CRS” (Customer/Client Relationship Summary) that both broker-dealers and RIAs are now obligated to provide their prospects, to further explain the nature of their services and relationship, their fees and costs, and their standard of conduct and conflicts of interest. And while Reg BI was meant to lift the standards of conduct that historically applied to broker-dealers, this measure was met with opposition from those who argued that it failed to apply a standard for brokers giving advice at least as stringent as that for RIAs providing similar advice.

Because Reg BI was approved and implemented when the SEC had a Republican majority, and has recently followed party lines, some observers thought a new Democratic majority might look to strengthen the measure in order to protect consumers by further curbing brokers’ conflicts of interest. But after more than a year in office, SEC Chairman Gary Gensler has yet to put new teeth in Reg BI. As while the SEC has brought enforcement cases involving financial firms’ deficiencies on Form CRS, it has not brought a major action regarding recommendations brokers make to customers, the substantive heart of the regulation.

Since Reg BI is principles-based (i.e., it doesn’t specify how broker-dealers must mitigate conflicts of interest), some industry observers have been looking for additional guidance – or the results of investigations – to get a better idea of the SEC’s expectations. Without it, firms are largely left to figure out how to do so on their own (potentially leading cautious firms to restrict their activities beyond what the SEC expects, while others might take a limited view that the rules require any real restrictions at all in the absence of enforcement actions).

Ultimately, the key point is that enforcement of regulatory actions is crucial to ensuring that firms follow the increased standards that Reg BI was meant to establish, so the lack of actions related to Reg BI has potentially left consumers vulnerable to a continuation of the types of practices the regulation was meant to cure. In the meantime, RIAs will continue to be held to the fiduciary standard, but given broker-dealers’ ability to say they are “acting in their clients’ best interest”, this differentiator could be fading in value, even as the SEC has yet to take significant action to enforce whether the brokers really are acting in their clients’ best interests or not!

Consumer Groups Call For SEC Probe Of RIAs' Use Of Mandatory Arbitration

(Mark Schoeff | InvestmentNews)

Investment advisory and broker-dealer firms often include arbitration clauses in their client agreements, which stipulate that any dispute between a client and the firm will be heard not in the court system, but through a third-party arbitrator who hears evidence from both sides and issues a (typically binding) ruling. The financial industry generally favors arbitration because it can be faster and less expensive than the court system; however, unlike a lawsuit heard in court, arbitration hearings do not become public record, which enables firms to save face if found guilty of wrongdoing, and limits the ability of prior cases to become precedent for future plaintiffs. In theory, clients and the advisory firms they’re challenging might try to agree on whether a case will be heard in a court of law or via arbitration (as each weighs both the costs and whether they think they will receive a more favorable outcome in one forum or another), but in practice arbitration clauses are often mandatory with advisory firms, meaning that a client who signs a brokerage or advisory agreement containing the clause loses their right to ever take that firm to court in the event of a dispute. Even if the client believes that might have been the better forum to have their case heard.

Several consumer groups have questioned the practice of mandatory arbitration, and a letter to the SEC submitted this week by a coalition of consumer and investor advocacy groups calls on the regulator to collect data to gauge the impact of these clauses. They ask that the SEC during its examinations of RIAs gather and publish data about their use of pre-dispute arbitration clauses and their key terms, including the arbitration venues they designate to hear cases, whether they allow class actions, and whether there are limitations on the types of claims, among other items.

This letter follows a call earlier this year from the Public Investors Advocate Bar Association (PIABA) for the SEC and NASAA to either prohibit forced arbitration clauses altogether, or require RIAs to pick up a greater portion of the cost of arbitration (which, while often less expensive than court cases, can sometimes still add up to tens of thousands of dollars just to initiate the process). To this end, a bill dubbed the Investor Choice Act is working its way through Congress and would end the practice of mandatory arbitration clauses amongst broker-dealers and RIAs, giving investors the right to choose to sue in court rather than go through arbitration if they wish.

While it remains to be seen whether the SEC or Congress will act on any of these proposed measures, RIAs could consider reviewing their dispute resolution policies, including any mandatory arbitration clauses, to see how they might be affected by a change in law or regulations. And if the SEC responds proactively to the most recent letter, RIAs might have to be prepared to explain their processes and arbitration actions to the SEC during their next examination!

Talking Points For Clients With Markets In Turmoil

(Peter Mallouk | Creative Planning)

The year 2022 is off to a bad start for many investors. With both stocks and bonds performing poorly, even those with diversified portfolios have seen declining balances. Given this situation, advisors have likely heard from some clients worried about whether the situation might get worse and wondering whether changes to their portfolio are appropriate. And while each client's case is different, advisors can help put the current situation into historical context for their clients.

One important factor to note is that the current drawdown has affected assets in different ways. For example, some of the biggest losses have been in the highest-flying assets of the pandemic period, including many cryptocurrencies and growth stocks. In fact, the S&P 500’s current drawdown is not too far beyond the average 14% drawdown it has historically experienced in a given year (of course, further declines are possible).

Another factor impacting clients is the current high inflation rate. Given that inflation rates have not been this high in decades, some clients might wonder how long it could last. One factor will be the Federal Reserve’s actions. So far this year, the Fed has raised interest rates twice and will increase rates by a total of 1% by the end of the year in an attempt to control inflation. While interest rate hikes typically lead to a slowing of the economy, it does not necessarily mean stock prices are destined to fall further. In fact, since 1983, the S&P 500 has been higher every time one year later after the Fed’s first rate hike (though with a sample of 8 hikes, it’s possible that this time could be an outlier!).

Going forward, the Fed is likely to balance its interest rate increases (which tend to slow the economy down) against the potential for a recession. If it is successful in engineering a ‘soft landing’ where inflation comes down without significant damage to the economy, equity markets could respond positively, though if economic conditions deteriorate, corporate profits (and potentially stock prices) could fall further (though in this case, bonds could perform well if the Fed is forced to later reduce interest rates).

In the end, investors and their advisors have no way of knowing which direction the market will go in the coming months. The key point is that advisors can help clients put the current environment into perspective and ensure the things that can be controlled, such as a client’s asset allocation and withdrawal rate, are appropriate for their particular situation. In addition, it could be a good time for advisory firms to look inward and assess whether they are prepared to weather a prolonged market downturn, even if the markets do improve soon!

Why Everyone's Bearish

(Michael Batnick | The Irrelevant Investor)

It’s hard to find an investor with a positive outlook for the stock market these days. From the comparatively moderate decline in the S&P 500 to the sharper drops in more speculative assets, many investors have likely seen declines in their portfolios so far this year. But while the picture might look bleak, this does not necessarily mean market returns will be weak going forward.

According to a Bank of America survey, fund managers’ average cash levels are the highest they've been since 2001 (perhaps reflecting a desire to hold cash in the current weak market), and those expecting a stronger economy are at their lowest level since the Great Recession. And on the consumer side, the University of Michigan Consumer Sentiment Index is at its lowest point since 2011, likely due in major part to persistently high inflation. Even some of the largest companies have not been immune to negative effects in the current environment, with Walmart’s stock posting its largest daily decline since 1987 and Target’s stock falling more than 20% after both reported weaker-than-expected earnings.

But while there are many potential reasons to be concerned about the state of the economy and markets, what has happened in the past does not necessarily predict the future. For example, given that many observers expect economic conditions to deteriorate significantly, if the economy does better than expected, markets could potentially respond positively. It could also be helpful to recall that while markets tanked with the onset of the pandemic, they began to recover soon after, at a time when much business had ground to a halt and well before there was certainty about vaccines or other mitigation measures.

The key point is that it is hard to predict where markets will be headed in the future and that turnarounds often come when investors are the most pessimistic. In the meantime, it could be a good time for advisors to assess client risk composure to gauge how they have reacted in the current downturn and assess whether their asset allocation and withdrawal strategies remain appropriate!

Roth Conversions Get More Attractive As Market Slides Toward Bear Territory

(Tracey Longo | Financial Advisor)

With both the stock and bond markets down sharply so far this year, there might not seem to be much positive news in the world of investment management. But while a prolonged market downturn can present risks for advisory and especially retired clients (e.g., sequence of return risk), it can also provide financial (and especially tax) planning opportunities. And one potential opportunity for certain clients is to take advantage of Roth conversions after their portfolio has seen a decline.

Roth accounts are popular with many investors because they offer the promise of tax-free qualified withdrawals (at the cost of using after-tax money for the contributions). And while many investors make Roth contributions to IRAs and workplace retirement accounts throughout their careers, Roth conversions offer the opportunity to move money from a traditional account to a Roth account, thereby benefiting from tax-free growth going forward. The converted amount represents ordinary income, but those with little earned income (perhaps because they retired early and are living off of their assets before taking Social Security) could find themselves in a low tax bracket and have to pay little tax on the conversion.

And a market downturn could represent a good time to engage in Roth conversions, as assets that have fallen in price can be moved to a Roth account at the then-reduced value, and then subsequently grow tax free when the market recovers. Which presents a market downturn as an opportunity to convert IRA dollars at a ‘temporarily discounted’ rate (from the market decline that is presumed to bounce back in the future).

Of course, other strategies could be appropriate as well. For example, clients with low taxable income could consider taking advantage of capital gains harvesting (selling assets that have appreciated in years of low income), as those in the 10% and 12% tax brackets can pay 0% in federal taxes on capital gains. The market decline also presents an opportunity for tax-loss harvesting, as clients are more likely to have assets that have fallen in value below their purchase price.

The key point is that while the current market downturn could be a good time for Roth conversions, it is important to compare its benefits to other potential strategies for a given client. Nonetheless, while clients might be unhappy about the current market downturn, such scenarios give advisors an opportunity to demonstrate value by implementing a number of tax-management strategies that can save clients money this year and in the future!

Trying To Lure Advisors? Give Them An Equity Stake

(Sam Del Rowe | Financial Advisor IQ)

In the current tight labor market, companies are looking for ways to attract and retain talent. From improved salaries to flexible work schedules, there are a range of options to make a firm more attractive. And one option that many advisory firms have chosen is to offer equity compensation to employees.

Offering equity ownership can potentially bring advantages to both the firm and its employees. For the firm, having employees with a stake in the company serves to link their compensation with the performance of the firm, creating an alignment of interests. And firms have a variety of options for implementing a program, whether it is requiring employees to have worked at the firm for a certain number of years (to demonstrate their commitment to the firm) and whether to include equity in a compensation package, offer shares at a discount, or give the opportunity for employees to purchase shares at cost.

Of course, sharing equity in the firm can be a major logistical endeavor (and perhaps an emotional commitment for a solo owner), so there are several considerations for firm owners to keep in mind before starting an equity ownership program. On the administrative side for the firm, these hurdles include: increased challenges managing cash flow and distributions; providing required financial statements and other documents to new owners; and potentially increasing the liability to the CEO and other executives from having additional minority shareholders who could potentially sue them. And on the employee’s side, getting ownership comes with potential legal costs (from reviewing the operating or shareholder agreement) as well as tax burdens (from managing K-1 forms and potentially making estimated tax payments). Given these potential costs, firm owners might want to consider whether the benefits are worth the costs before creating an equity ownership program.

In the end, having employees with equity in the company can be a useful way to attract new talent, retain the current workforce, and align the interests of employees and management. At the same time, implementing such a program is not a simple endeavor, so firm owners can consider whether doing so is addressing a short-term problem or is in the long-term interests of the firm and its current owners!

The Best Question To Ask A Job Applicant

(Tyler Cowen | Bloomberg)

If you were interviewing candidates for a job and only had one question to ask, what would you choose? Perhaps you might turn to a question about their work ethic or performance in previous jobs. Or you might ask about how they handle interpersonal relationships or about their career goals. While there are many options (and most interviews aren’t limited to one question!) Cowen suggests that a potentially useful question to ask in your next interview is “What are the open tabs in your browser right now”?

This question is useful because it can reveal a significant amount of information about the candidate. For starters, it gives the interviewer insight into the candidate’s personal and work interests. Because individuals typically only leave a website open in a browser tab if they plan to return to it, it can show the person’s primary interests. The interviewer can also gauge the candidate’s enthusiasm by having them discuss some of the tabs and their interest in those subjects. And while it might seem to some like a sensitive question, the interviewee can always elect to discuss some of the tabs but not others.

In addition, the question can give the interviewer information about how the candidate works and processes information. For example, someone with 50 open browser tabs could be intensely curious, but also have major problems with prioritization. Also, because the question is uncommon, it is unlikely that an interviewee will have a pre-prepared response or fake an answer. And given that the interviewer can choose to follow up on any of the subjects raised in the tabs, it’s probably unwise for the candidates to mention a topic that they know nothing about.

In the end, advisory firms looking to make their next hire have many potential questions that they can ask. And while many of them are likely to do with the interviewee’s experience, interest in financial planning, and why the specific position is attractive, asking about their open browser tabs could provide useful information about both their personal interests and their work style!

How To Find (And Be) A Good Partner

(Philip Palaveev and Stuart Silverman | Financial Advisor)

While some financial advisory firm owners decide to go it alone as a solo owner, others decide to enter a partnership with one or more individuals. And while a partnership can offer many benefits − from increased brainpower and experience to additional financial resources − the relationship between the partners needs to be nurtured in order for the relationship, and the business, to thrive.

According to Palaveev and Silverman (who were business partners for five years before selling their firm), there are three necessary and sufficient conditions for a successful partnership: trust, respect, and honest communication. Building and maintaining trust is not something that can be done quickly, but rather it is a series of ‘deposits and withdrawals’ of selfless acts (deposits into the trust ‘account’) and selfish acts or behaviors (that result in a withdrawal from the ‘account’). Respect means having confidence in one’s partners and seeing their decisions through with the underlying assumption they know what they’re doing. And good communication means the ability among partners to be transparent and raise concerns when they arise to prevent distrust and pent-up anger.

Beyond these three conditions, Palaveev and Silverman recommend that partners develop several skills that can contribute to a solid partnership. Among others, these include a spirit of camaraderie, a commitment to follow through on decisions that are made (even if one partner disagrees with the choice), and clearly defining parameters for which partner does what and who the ultimate decision-makers should be in different areas.

The key point is that it is not only important to pick the ‘right’ person as a business partner, but also to purposefully and regularly cultivate the relationship. Because while conflicts are inevitable in any partnership, having a strong foundation of trust and communication can allow partners to manage them more effectively, potentially leading not only to a better relationship between the partners but also to a more successful business!

The Rich Are Not Who We Think They Are. And Happiness Is Not What We Think It Is, Either.

(Seth Stephens-Davidowitz | The New York Times)

When thinking about who makes up the top 0.1% of income earners in the United States (the 140,000 Americans who earn more than $1.58 million per year), you might think of famous movie stars or professional athletes. But while it turns out that while some of the highest earners are in that group, a large chunk of those with significant incomes are business owners in more mundane businesses.

In fact, there were three times as many business owners than wage earners among the wealthiest Americans. According to a 2019 study, the typical American in the top 0.1% is the owner of a “regional business”, such as an auto dealer or a beverage distributor. Owners of these businesses typically avoid ruthless price competition to build a local monopoly; for example, state franchising laws often give auto dealers exclusive rights to sell cars in a certain territory.

And while we now know what type of person makes up the 0.1% of income earners, further research has shed light on whether having significant income makes an individual happy. According to a 2021 study of more than 30,000 adults, happiness does rise with income (even beyond the $75,000 level that was previously thought to be the ‘limit’ of happiness), but there are diminishing returns to happiness as income moves significantly higher.

So, given that greater income provides somewhat of a boost, what else contributes to happiness? Researchers in the United Kingdom from the Mappiness project found that the activities that make people the happiest include sex, exercise, and gardening. People also get a big boost of happiness from being with a romantic partner or friends, as well as from being in nature, particularly near a body of water. Separate research found that out of 40 activities, being sick in bed made people the least happy, but work is the second-most unhappy activity.

So while financial advisors might not be looking for a career change into beer distribution (although that does sound like fun?), Kitces Research On Advisor Wellbeing has found that the median income of an established financial advisor is almost 3X the median household income, suggesting that many advisors are well into the ‘happiness’ zone when it comes to income. This is further confirmed by data showing that advisors outscore the general population in all 18 subscales of the Comprehensive Inventory of Thriving, which evaluates wellbeing across a range of domains. That said, advisor wellbeing does decline as the number of hours worked each week increases, so by setting a healthy schedule, and perhaps taking some time to get out into nature, advisors can have the best of both worlds − significant income and the time to pursue the activities and relationships that make them the happiest!

How Investors Define 'Wealthy' Might Surprise You

(Cheryl Winokur Munk | Barron’s)

Being ‘wealthy’ is a relative term. For example, an individual with significant income and lavish tastes might require more assets to feel wealthy than someone with more modest means. Similarly, feeling ‘financially comfortable’ is also subjective and has major financial planning implications, as someone with $5 million might not feel financially comfortable while another client might feel comfortable with $500,000.

To gauge how Americans as a whole feel about what it takes to be wealthy or financially comfortable, Charles Schwab conducts an annual survey of 1,000 individuals between the ages of 21 and 75 and asks them what net worth a person in their area would have to have to be either wealthy or financially comfortable. And for 2022, the average net worth to be considered wealthy was $2.2 million, up from $1.9 million in 2021, though notably below the $2.6 million reported in Schwab’s 2020 survey, taken before the pandemic. Further, those surveyed estimated that someone would need $774,000 to be financially comfortable, up from $624,000 in 2021, but down from $934,000 in 2020 (and down significantly from $1.4 million in 2018).

In addition, the survey asked respondents about how their values guide their investment choices. According to the survey, 73% of respondents said their values or affinities guide their investment choices, while 69% said they invest in companies that align with their personal values. Both of these figures were higher for respondents from Gen Z (ages 21-24) than for older generations, though 63% of Boomers (ages 57-75) said they invest in companies that align with their personal values.

In the end, Schwab’s survey provides advisors with an idea of how the average American views wealth and values-based investing. And while it is unclear whether the composition of these individuals’ portfolios reflects their stated preferences, there appears to be more momentum for values-based investing. Which suggests that in addition to wanting to invest in companies and funds that match their values, advisors could consider leveraging direct indexing solutions that allow clients to invest in a broad index while removing companies that do not meet their personal values criteria. Using this tool, interested clients can meet their goal of growing their wealth in a way that aligns with their values!

The Rich And The Wealthy

(Morgan Housel | Collaborative Fund)

Business magnate Cornelius Vanderbilt was one of the richest people on Earth and left his heirs the inflation-adjusted equivalent of approximately $300 billion. One might think that kind of money would last for many generations, but Vanderbilt’s heirs blew through this money quickly, and by all accounts used it to try to one-up each other with ostentatious purchases that did not bring them much happiness rather than growing the wealth or donating it to worthy causes.

People often use the terms ‘rich’ and ‘wealthy’ synonymously, but Housel suggests that the example of the Vanderbilts shows that there is a significant difference. For Housel, ‘rich’ means having enough cash to buy what you want, but wealth means having unspent savings and investments that provide some level of intangible and lasting pleasure. Features of being wealthy could include independence, autonomy, and controlling your time. So while the Vanderbilts were undoubtedly rich, they weren’t wealthy by Housel’s definition, as the money was more of a social liability that led them to happiness-sapping status chasing.

And while most financial planning clients are not the heirs of tycoons, the difference between being rich and wealthy can still apply. For example, a client with a $10 million portfolio can likely buy almost everything they want, but if they have excessive expenses, they might not have as much freedom as someone with fewer assets but a less expensive lifestyle. This latter individual is in fact more ‘wealthy’ in terms of having the independence to do what they want.

And so, because one of the most valuable services that financial advisors bring to the table is helping clients align how they use their resources with the things that are most important to them, advisors can play an important role in helping clients become truly wealthy. Whether that is by helping clients align their spending on the things that are more likely to make them happy (e.g., experiences, buying time, and spending on others), or by supporting the creation of an estate plan that is likely to bring happiness to both the client and their heirs, an advisor’s value can extend well beyond helping clients grow their assets!

---

We hope you enjoyed the reading! Please leave a comment below to share your thoughts, or make a suggestion of any articles you think we should highlight in a future column!

In the meantime, if you're interested in more news and information regarding advisor technology, we'd highly recommend checking out Craig Iskowitz's "Wealth Management Today" blog, as well as Gavin Spitzner's "Wealth Management Weekly" blog.