In what seemed an attention-grabbing and worrying story, it appears that the DOL and SEC rules are merging into some sort of hybrid, but not in the way you might think. Despite the DOL rule being effectively dead due to a court ruling, the DOL seems to be pressing ahead and is planning to modify its Conflicts of Interest rule to mirror the SEC’s new language in its BI rule. “It’s the DOL and the SEC trying to end up in the same place in terms of regulation”, says a senior policy official.
FINSUM: While this is not as worrying as if the SEC were trying to mirror the DOL, it does seem like the DOL is pressing ahead with the regulation. Perhaps we have not heard the last of the fiduciary rule?
The SEC received over 6,000 comment letters in its public comment period for its new best interest rule. The regulator is currently reviewing those, but the big question is what is the rule’s implementation timeline? A top director at the SEC recently declined to comment on a timeline, saying “We are in the process of going through comments to see what changes if any we should be recommending”, but refused to give a date.
FINSUM: The anecdotal evidence and chatter we are hearing is that the SEC is going to try to move quickly to finalize and implement this rule. Stay tuned.
The fiduciary rule has been dead for about six months now—much to the delight of most advisors. However, in what we feel was an inevitable development, the rule is starting to make a comeback. With the new SEC best interest rule getting a lot of negative feedback from all sides, it seemed very likely that states would take matters into their own hands and development states-level fiduciary rules. That is exactly what is happening. New Jersey is now working on a fiduciary rule of its own and it seems likely many other states will follow suit. If that transpires, advisors could face a patchwork of national rules that would make compliance a nightmare.
FINSUM: This was inevitable. States feel like the SEC’s rule is not as rigorous in its protections as the DOL rule was, and thus they feel they need to take matters into their own hands.
Brokers pay attention—a major loophole in the SEC’s best interest rule has just become apparent. One of the industry’s big complaints about the BI rule has been that it seeks to govern the use of the “advisor” title. Well, until now it seems that everyone had missed a key loophole in the rule. When the SEC drafted it, it allowed for dually-registered advisors/B-Ds to call themselves advisors even when they are carrying on brokerage business. 61% of registered reps work at dually-registered firms, meaning this aspect of the rule is mostly a moot point for the majority of advisors. According to Michael Kitces, famed advisor and wealth management commentator, “The rule literally doesn’t apply to most advisers”.
FINSUM: This is one of those bombshell realizations that seems to happen when a new rule is 1,000+ pages long—you miss things.
Advisors, don’t hold your breath. Despite widespread criticism from basically every side of the equation, it appears unlikely the SEC is going to do much to correct the major flaws in its current Best Interest Rule. Barbara Roper of the CFA, says that she is “not at all confident” the SEC will make any meaningful changes to the rule “to better protect investors”, pointing out that the SEC had every chance to improve on the DOL rule, but didn’t. “It’s hard to believe that they are going to have a sudden conversion and fix the problems now”, she says.
FINSUM: Brokers, consumer protection groups, and clients all hate this rule (and don’t understand it), and it doesn’t make sense to anybody. Hopefully Roper is wrong and they will change the rule, but we worry they may not.