- On April 18, the Securities and Exchange Commission released a proposed regulation to require financial advisors and broker-dealers to operate in the best interest of their customers.
- Consumer advocates argue that the proposed rule — which is different from the Labor Department’s now-killed regulation — isn’t strong enough.
If you thought the regulatory battle over requiring advisors to act in your best interest was over, think again.
Tuesday was the final day for the public to comment on a Securities and Exchange Commission version of the rule to require investment advisors and broker-dealers to operate in the best interest of their clients.
That regulation applied only to retirement accounts. It sought to ensure that advisors don't receive incentives for acting against your interest, and it required advisors to charge no more than reasonable compensation and avoid misleading statements.
Meanwhile, the SEC's proposed rule would apply more broadly to advisors, broker-dealers and the investment recommendations they make.
The SEC proposal is a long way from becoming reality: Once agency staff receives and reviews the public feedback — there are nearly 4,000 comments — it will provide a recommendation to SEC commissioners on how to proceed.
"It's not going to happen overnight," said Barbara Roper, director of investor protection for the Consumer Federation of America.
Here's what you should know about the proposal.
The proposed rule, dubbed Regulation Best Interest, would require broker-dealers to act in the best interest of retail customers when recommending securities transactions.
Firms would have to meet three obligations, according to the SEC.
Disclosure: Broker-dealers must disclose key details of the client-broker relationship, including conflicts of interest.
Diligence and care: Firms must exercise "reasonable diligence, care, skill and prudence" to understand the product they're recommending to clients. They must also have a reasonable basis to believe that this investment, as well as a series of recommended transactions, is in the investor's best interest.
Conflict of interest: Broker-dealers must maintain and enforce policies and procedures to identify and disclose and mitigate — or eliminate — material conflicts of interest stemming from financial incentives.
The SEC also proposed reaffirming the fiduciary duty that advisors owe to their clients.
Further, the agency proposed releasing a new disclosure form that firms can use to detail the relationship investors have with their advisors, as well as new restrictions over who can use the term "advisor" or "adviser" with retail investors.
Associations representing the financial services industry praised the proposed rule.
"Reg BI recognizes that brokerage accounts are the right fit for many investors, where fee-based accounts are not," said Ira Hammerman, executive vice president and general counsel of the Securities Industry and Financial Markets Association.
Consumer advocates, however, argue that the proposed rule did not go far enough to improve on existing regulations that already applies to broker-dealers and their brokers.
They also say that the SEC hasn't defined "best interest" within the context of the rule's language.
"Unfortunately, in its current form, the Commission's proposed Reg BI does not impose a fiduciary standard and further fails to define the contours of the 'best interest' standard," wrote David Certner, legislative counsel and legislative policy director for AARP, in an Aug. 7 letter to the SEC.
"Absent a fiduciary standard, investors will continue to be vulnerable and will not receive the protections they need and deserve," he wrote.
Consumer advocates also argue that the rule allows brokers and their firms to disclose their conflicts to customers, rather than eliminating them altogether.
"Instead of taking this opportunity to make the standard live up to its billing, they have essentially adopted this guidance that enshrines their approach to enforcement, which is 'As long as you disclose it, you're good,'" said Roper of the Consumer Federation of America.
"The regulation has to be dramatically improved to fully protect retail investors," said Andrew Stoltmann, an attorney and president of the Public Investors Arbitration Bar Association.
His suggested updates to the regulation include the barring of additional compensation to advisors for selling investors certain investments and an explanation to investors as to why an advisor recommended a more costly product if cheaper options are available.
It remains to be seen how the SEC rule will ultimately shake out, but for now, investors are their own best line of defense.
"Remember that you're dealing with a licensed salesman," Stoltmann said. "You have to treat those recommendations with the knowledge that these are people who are trying to earn fees or commissions off of you."
See below for a tip sheet on vetting your financial advisor.