These Firms Are Lying to Either the Government or Their Investors, and Elizabeth Warren Just Called Them Out

Shots fired.

Brendan Smialowski/Getty Images

Pretty soon, the Obama administration plans to change the rules on the advice financial professionals can give to anyone seeking guidance on managing the investments in their retirement accounts. This seemingly narrow matter has pitted politicians, like Sen. Elizabeth Warren, against the financial services industry, which says the regulatory fix would make it too costly for it to advise some clients. One problem: That’s not what some companies are saying when they’re not addressing Washington—which is why this week, Warren called them out on it.

On Thursday, Warren released a letter asking the Securities and Exchange Commission to investigate whether some insurance companies ran afoul of securities laws that prohibit them from misleading investors.

Yes, it’s another salvo in the long-running but incredibly important battle over expanding the fiduciary standard to cover individual retirement accounts. Warren’s action highlights not only the financial services industry’s continuing fight for the right to not do their best by their customers—that’s you and me, people!—but how even within the federal government, this dispute is a lot more tangled than it might seem.

A quick review: Most of us believe that when we seek advice on handling our money, our adviser is duty-bound to act in our best interests (that’d be the fiduciary standard). This is often untrue. Instead, many financial advisers adhere to something called the suitability standard, which allows them to offer less-than-gold-standard advice that can boost their own bottom line. It just can’t be out-and-out unsuitable.

The Obama administration says this sort of behavior costs consumers $17 billion in retirement savings annually and is pushing for changes. Needless to say, the industry doesn’t want to give up that money. All sorts of claims have been made. (Including a rather ridiculous one I wrote about last month—that the expanded fiduciary standard would put television personal finance gurus out of business. No, it wouldn’t.)

In her letter to SEC head Mary Jo White, Warren highlighted a number of contradictory statements insurance company executives have made about the impact of the upcoming changes on their business and bottom lines. For example, last July, executives at Prudential Financial told politicians and regulators in Washington that the proposed standards “will significantly increase” expenses. But almost simultaneously, they were informing investors monitoring the company’s performance that they didn’t foresee an issue making their financial offerings available to investors “on terms that work for everybody,” referring specifically to the expanded fiduciary standard.

Prudential wasn’t alone. That same month, Jackson National Life Insurance Co. whined in an official comment letter submitted in opposition to the change that the new regulation would be “very difficult, if not impossible for financial professional and firms to comply” with. But barely a month later, an official at the company said that similar regulations in Great Britain led to an increase in financial sales, and that the company would not only be able to offer up services under the new regs, it would “adapt faster and more effectively than competitors,” though the exec didn’t say how.

Warren also highlighted statements that don’t appear to square with one another made by TransAmerica and Lincoln National. As Warren pointed out, it is all but impossible for the dire and optimistic scenarios described by these companies to both be true.

This is hardly Warren’s first salvo in the battle to expand the fiduciary standard. She’s issued a report showing how insurance companies are offering financial advisers gimmes like trips to exclusive resorts in the Bahamas and Mexico in return for selling their wares. She’s also highlighted how researchers putting together supposedly objective reports against the fiduciary standard are actually not only taking money from the financial services companies opposed to it for their work but are also allowing them what I described last year as “the traditional privileges of an editor,” permitting them to review the findings and make suggestions on them before publication.

Keep in mind, the upcoming change only impacts retirement accounts. Why? Well, regulatory authority over our financial investments is something of a bureaucratic morass. Retirement accounts are regulated by the Department of Labor, which has aggressively pushed this change for the better part of Obama’s two terms in office. Investments held in regular old brokerage accounts are under the purview of the Securities and Exchange Commission.

And just where is the SEC in this battle? That’s a really good question. The SEC, ordered to study the fiduciary standard under the mandates of the Dodd-Frank Act, has been slow to complete the task. Earlier this month, Mark Schoeff Jr. reported at Investment News that White told a congressional committee that “there’s no guarantee the agency will propose its own rule.”*

In other words, nothing doin’. The Department of Labor is more aggressively protecting investors than the SEC, a federal agency whose raison d’être is to protect Americans from the financial services sector.

So Warren’s asking the SEC to investigate companies for possibly making misleading statements to their investors, something that is a violation of securities law. But she’s specifically asking the SEC to determine if these financial services firms should be disciplined for violating regulations in an attempt to fight back a rule that the SEC itself is a laggard on.

Brilliant. Just brilliant.

*Correction, April 1, 2016: This post originally misspelled reporter Mark Schoeff Jr.’s last name.