It wasn't long ago that the uniform fiduciary standard of care issue was hot. Now it's not. To help rekindle the fire, seven consumer and financial/investment advisor industry organizations this week presented a letter to the Securities and Exchange Commission with what they call a compromise framework for finding a possible solution.
Section 913 of the Dodd-Frank Act mandated the SEC to study the effectiveness of current standards of care for providing personal investment advice, and in January 2011 the SEC staff recommended adopting a uniform fiduciary standard for brokers and advisors that would be no less stringent than the standard currently applied to investment advisors under Investment Advisers Act.
But the issue has stalled since then; hence the letter from the seven groups who favor the creation of a uniform fiduciary standard. "This letter cuts through the rhetoric of 'accommodating industry practices' in setting forth a workable standard that focuses on the rights of investors whose interests financial professionals claim to serve," commented Mercer Bullard, founder and president, Fund Democracy and one of the letter's signatories.
The other groups who signed the letter are the Consumer Federation of America, AARP, Certified Financial Planner Board of Standards Inc., Financial Planning Association, Investment Adviser Association, and the National Association of Personal Financial Advisors.
As a starting point, the compromise proposed in the letter to the SEC cited a July 2011 letter from the Securities Industry and Financial Markets Association outlining what it considers to be an appropriate framework for rulemaking in this area. The seven groups agreed with some of Sifma's points, such as the need for a "new articulation" of the fiduciary standard.
"We appreciate SIFMA's support for a uniform fiduciary standard," wrote the signatories to the letter. "We share their belief that it is possible to develop a regulatory structure for the uniform fiduciary standard of duty that ensures both that investors are protected and that they are able to access the financial services they want and need to achieve their investment goals."
But the groups disagree with some of Sifma's conclusion in its letter regarding specific details of such a regulatory framework, including Sifma's view that the substantive uniform standard articulated through those rules should be "'new' or 'separate and distinct from the general fiduciary duty implied under Section 206 of the Advisers Act.'"
As described in this week's letter to the SEC by the seven organizations, "the goal in writing the new rules should be to extend the existing Advisers Act standard to brokers, while clarifying its applicability in the context of broker-dealer conduct, rather than to replace the Advisers Act standard with something new and different."
Barbara Roper, director of investor protection at the Consumer Federation of America, said "Our letter is intended to help the SEC identify a way forward on rulemaking that can win broad investor and industry support, improve investor protections, and preserve investor choice."
At the very least, the letter from Roper's group and the six other organizations could reignite public debate on this subject once again.