The wealth management industry will likely find itself pleased today, as many may sense victory in the long battle against the DOL’s fiduciary rule. The SEC has just released its own proposal for a new fiduciary rule, and the rule looks favorable. The new rule would place less onerous restrictions on brokers and advisors. It will not ban any single conflict of interest, but would place a responsibility to disclose certain conflicts of interest to clients and take steps to mitigate their effects. The rule does not contain a specific provision allowing clients to sue their brokers for misbehavior. The SEC would also disallow the use of blurred titles, such as “financial advisor”. The SEC approved the rule by a 4-1 vote and it will now have an official comment period.
FINSUM: The one dissenting vote blasted the rule as a continuation of the status quo. To be honest, the proposal sounds quite favorable to the industry and we were not expecting such a mild rule. We think Congress will likely come down hard on the SEC. This is far from a done deal.
Advisors need to prepare themselves for what could be a harsh reality. While the wealth management business collectively holds a great deal of hope that the SEC will come out with an enlightened rule that makes much more sense than its DOL predecessor, the reality is that the SEC rule is likely to be much more expansive, and potentially much more onerous. The new SEC rule seems poised to cover all types of accounts and all groups—RIAs, B-Ds, and “associated persons”, all under a broad umbrella.
FINSUM: While the industry definitely has a much higher faith in the SEC, there is certainly an element of the “devil you know” going on here. If the rule is much more expansive, it could lead to a higher regulatory burden and yet more disruption to the industry.
Many advisors are hoping the SEC will dive headlong into the fiduciary rule debate and quickly put in place a new fiduciary standard of their own. SEC chairman Jay Clayton has said it is a priority, and hopes got a big boost this week as the SEC is holding a pubic meeting to discuss the specifics of forming a new rule. However, those hoping for a quick resolution will be sorely disappointed, as there are still many steps, and many potential pitfalls, before the rule could become a reality. In particular, the DOL could still challenge its court loss, and many lawsuits could hold up the implementation of any SEC-proposed rule.
FINSUM: When you really take a look at the procedure and the legal risks, the timeline to actually get a new rule in place seems very far away indeed.
Well, after a long wait (but perhaps one shorter than most expected), the SEC is ready to announce its framework for a new fiduciary rule this week. The SEC plans to hold a public meeting to discuss the three components of its new rule: “whether to propose new rules and forms for brokers and RIAs to summarize their relationships with clients; whether to establish a standard of conduct for brokers; and whether to provide an “interpretation” of the fiduciary responsibility of RIAs”. Advocates of the current DOL rule don’t like the approach the SEC is taking because it appears to be disclosure-based, something they think is insufficient to fulfil the need for fiduciary duty.
FINSUM: To be honest we did not think the industry would be able to have this much insight into the new SEC rule this quickly. Stay tuned.
Advisors pay attention. For the last two years, many firms, large and small, have been been moving their clients into fee-based accounts. This mostly started as a response to the fiduciary rule, but had the side benefit of driving more revenue for advisors. However, a new lawsuit against Edward Jones says that doing say may violate reverse churning rules. The case could expose all firms that have undertaken the same practice. Consumer Federation of America head Barbara Roper commented that “We have heard persistent reports that this is happening at a number of firms, and I have heard that from sources I consider reliable”.
FINSUM: This is a tough situation for firms. On the one hand you are being subjected to new rules and guidance saying fee-based accounts are better and safer, but because you are moving to such a model (many big brokers almost did away with commission based accounts), you are being subjected to claims of reverse churning. What a mess.