Like the trepidatious characters heading to Oz, many financial advisors on the move have found themselves on the lookout for corporate America’s iteration of lions and tigers and bears: the restrictive contractual clauses known as non-competes, non-solicits and non-accepts. Oh my.
Dealmaking on the part of mega-aggregators and large consolidators has increased steadily over the past decade. Advisors who, seeing the culture they signed up for sold out from beneath them, sometimes had limited options due to contractual limitations of non-competes. These contractual constraints are by no means universal. They have wide variations in degree, and I’ve noted an increasingly conciliatory environment where firms and departing advisors try to work out a mutually beneficial arrangement and navigate the nuances without litigation or a prolonged (and sometimes nasty) fight over clients.
For breakaway advisors leaving a wirehouse, there’s no ambiguity. Clients—and their accounts—belong to the firm. For advisors jumping from one RIA to another, the situation isn’t as clear cut. Anxious to get their foot in the door, financial advisors new to the industry may not read the fine print of their employment agreement. Or they are willing to agree to the non-compete clause, taking a “I’ll worry about it when, or if, I need to down the road.”
I have worked with financial advisor clients who’ve had to contend with long, expensive battles over highly restrictive clauses. I’ve also worked with others who’ve been able to work out a fair compromise. Each scenario is different, dependent largely on the old firm’s stance.
Beyond the question of fairness … are these constraints legal? Maybe not anymore. While some states had outlawed or put restrictions around the practice earlier, the Federal Trade Commission recently announced a ban, arguing such clauses fly in the face of free competition. However, does government injecting itself into the matter fly in the face of free enterprise? That’s a discussion for another time.
In case you are wondering (and I know you are): yes, the rule applies to independent contractors. However, existing non-competes for a firm’s senior executives remain in force under the new FTC rule. When the rule goes into effect, new clauses cannot be put in place for any worker at any level going forward.
It’s important to note that the ban isn’t sitting well with certain constituencies. The U.S. Chamber of Commerce has already filed a lawsuit in U.S. District Court for the Eastern District of Texas seeking injunctive relief. Add the vagaries of politics that come with the upcoming November elections, we may not have seen the last of non-competes.
When advisors consider their next professional move, it’s important they review all the potential scenarios associated with joining their new firm. Working alongside an objective partner that is familiar with the landscape and has the consultative expertise and knowledge to help identify and curate firms can go a long way toward helping you achieve your goals. Ultimately, you should find an experienced attorney before signing any new agreements or review any agreements you may have already signed.
Jeff Nash is chief executive officer and co-founder of Bridgemark Strategies, a national consultancy firm that helps financial advisors evaluate and execute transitions—from changing broker-dealers to starting or joining an RIA – and also provides comprehensive M&A, succession planning and buy/sell guidance within the financial advisory space.