As most of us are shifting to e-everything (work, school, food delivery, medical check-ups, even happy hours) to adapt to the COVID-19 pandemic, the U.S. Department of Labor (DOL) is expected to soon release a rule that as proposed recognizes and maximizes the advantages of electronic modes of communication. It is both a timely rule change, and one that is long overdue.
The rule is expected to give plan fiduciaries flexibility to establish electronic delivery as the default method for communicating with and delivering plan information to their 401(k) or similar plan participants.
The benefits of e-delivery have been well-documented. Disclosure can be available on demand, interactive, current, and easier to navigate. Reducing paper use helps the environment. The visually impaired and savers whose first language is not English can benefit from features of digital communications, including translation options. And for those who want paper delivery, the ability to opt in at any point assures continued access.
The federal government recognizes these advantages: for years it has been using e-delivery for its most important communications with citizens. Since 2015, the Centers for Medicare and Medicaid Services has encouraged Medicare recipients to receive Electronic Medicare Summary Notices. The Social Security Administration and the Federal Employees Retirement System (FERS), the 401(k) administrator for federal workers, both extensively use e-delivery for communicating participant and beneficiary information. Indeed, the Treasury Department in effect used e-delivery to deposit billions of dollars of payments to taxpayers’ accounts pursuant to the Coronavirus Aid, Relief, and Economic Security Act.
As we look forward to the finalization of the DOL rule for retirement plan participants and beneficiaries, it invites the question: Why has the Securities and Exchange Commission (SEC) not more quickly allowed all mutual fund investors the ability to reap the benefits of cost savings and easy, immediate access?
Switching to e-delivery over printed materials has stymied the SEC for years. The agency certainly deserves credit for adopting the “notice and access” rule that finally allows funds to mail a notification postcard to fund shareholders about the electronic availability of annual and semi-annual shareholder reports and then makes available those reports online. However, due to a prolonged compliance date – it will not go into effect until 2021, two and-a-half years after adoption – this option is not yet available.
The Commission could do more to make e-delivery the default option for shareholder communications, while preserving a shareholder’s right to request printed materials at any point, just as FERS offers the SEC’s own employees. As the COVID virus has forced all of us to rise to new challenges, this could be the opportunity for the SEC to finish the job expeditiously when it comes to e-delivery.
The challenge at the heart of the SEC’s e-delivery debate is easy to identify when you follow the money.
The current system for distributing required fund materials to shareholders who invest through intermediaries, such as broker-dealers, is fundamentally flawed. Complex SEC rules have permitted a single company to create a near-monopoly, employing a conflict-riddled system of “remittances” between the vendor and intermediaries that ensures that both receive substantial fees – fees that ultimately are paid by fund shareholders. The system is so convoluted that the vendor charges even more not to mail documents when an investor opts to receive materials by e-mail.
With a vendor and multiple intermediaries who benefit from and thrive on this system’s complexity and overlapping fees, the SEC has been stymied on e-delivery, despite years of study and commentary. But the Commission is supposed to work for investors—and investors are the ones who are paying the fees. For their sake, the SEC needs to tackle both the outmoded delivery system and the fee structure that encourages higher costs and inefficiency.
We are living in a time when due to viral concerns, fewer citizens want to receive paper mail, or handle paper money, or even touch the keyboard of an ATM machine. Such fears may take firmer hold in the months ahead with concerns about “second waves” of contamination. Mandated fund disclosures—including large annual reports and lists of fund securities holdings—have seldom been the first things that investors wanted to grab from their mailboxes to read. Paper reports are going to be even less welcome now.
We have a financial services industry that is constantly innovating around an increasingly digital and virtual economy. In so many respects, we are living in a paperless world. In its rulemaking, the Department of Labor is creating a path that the SEC can and should follow, for the sake of enhanced disclosure and—most important—the benefit of shareholders.