What is a 'Best-Interest Contract Exemption (BICE)'

The best-interest contract exemption (BICE) allowed fiduciaries to be paid in ways that were otherwise prohibited, such as commissions or revenue sharing. The rule was passed as part of a new, more stringent definition of fiduciary by the Department of Labor in a ruling that was subsequently vacated in June 2018. As such, the exemption is no longer applicable. The BICE allowed individuals, such as financial advisors who are subject to the fiduciary provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code, to accept compensation from selling proprietary products, as well as earn money based on commissions from recommending certain products. As a fiduciary, such compensation would normally be prohibited. The BICE was a key part of the rollout of the now-dead fiduciary rule.

Breaking Down 'Best-Interest Contract Exemption (BICE)'

The new fiduciary rule was meant to be applied to far more investment advisors and planners into the role of fiduciary investment advisors, meaning that they would have to follow more stringent rules and avoid conflicts of interest. Consequently, advisors who receive additional commissions if a client picked a particular product may be in conflict if similar products that do not pay a commission are deemed to be comparable. BICE allowed the advisor to still receive that commission if they enter a contractual agreement stating that he will act in the best interest of the client and avoid any misrepresentation of the options. The best interest contract exemption (also known as "BIC exemption") provided a prohibited transaction exemption, as per the Department of Labor (DOL). This exemption was to be applied to any transactions that occurred on or after June 9, 2017. 

Best-Interest Contract Exemption: Advisor Perspective

The Department of Labor’s (DOL) fiduciary rule was not scheduled to come into full force until January 2018. President Trump, as part of a widespread effort to reduce government regulations, delayed its implementation, which was meant to start on April 10, 2017. As of June 21, 2018, the U.S. 5th Circuit Court of Appeals officially vacated the rule, effectively killing it. The rule, and the cost and burden of complying with it, was the source of much anxiety among financial advisors. In the original draft, there was a requirement of ongoing disclosure of compensation over the life of a product, no clear limits on liability which would be decided by the plaintiffs’ bar.

Best-Interest Contract Exemption and Financial Services

During the lead-up to the fiduciary rule's implementation date, financial services companies had warned that it would limit professional investment advice for middle- and low-income savers. This is because such investors are not profitable enough for advisors and advisory firms to justify the costs of pursuing a BICE. Instead, these clients would likely need to turn to robo-advisors or other low-cost options for investment advice. Given that the compliance costs of any new rule are not fully understood until after implementation, advisors and companies were anxious about meeting a new compliance burden. Financial service firms had intended to run cost benefit analyses on the BIC exemption to see whether it would be a practical alternative.  

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