Drip...drip...dr: Slow going on fiduciary duty, adviser oversight

SEP 07, 2012
For investment advisers and many brokers, the first two years of the Dodd-Frank financial reform law amounted to the big wait. Enacted on July 21, 2010, the measure's two provisions that most directly affect the investment advisory world – a universal fiduciary duty rule for retail investment advice and improved adviser oversight, perhaps through a self-regulatory organization – remain stalled. The reason for the slowdown is that the controversial fiduciary-duty and SRO issues are a microcosm of democracy. Every group with a stake in each of them is getting its say, which means that the rulemaking and lawmaking processes are grinding slowly. Let's look first at fiduciary duty. During negotiations over Dodd-Frank, lawmakers came up with a grand bargain on this narrow issue. They agreed to give the Securities and Exchange Commission the authority to promulgate a universal-fiduciary-duty rule but only after it conducted a study of the issue. That report was delivered to Congress in January 2011 with a recommendation that the SEC move forward with a rule. Since then, the SEC has received thousands of comment letters and conducted dozens of meetings with fiduciary-duty skeptics and outright opponents urging it to take its time and think through the economic impact of such a regulation. Those entreaties – petitioning the government in the parlance of the Constitution – along with a federal court ruling last summer that vacated a proxy access rule (over the issue of cost-benefit analysis) have caused the SEC to delay proposing a fiduciary-duty regulation until after it conducts a regulatory-impact assessment. The slowdown has frustrated fiduciary advocates. Yet, they and opponents accept the SEC's measured pace. “It's critically important that we get these [regulations] right,” said Terry Headley, president of Headley Financial Group and former president of the National Association of Insurance and Financial Advisors, which has warned about the consequences of a too-expansive fiduciary duty. One of the leading fiduciary proponents, David Tittsworth, executive director of the Investment Adviser Association, wants the SEC to be careful not to make the rule too weak. “I'd rather have more delay than to see a bad rule finalized,” Mr. Tittsworth said. Investment advisers are dead set against an SRO regulating them, especially if it turns out to be the Financial Industry Regulatory Authority Inc., the broker SRO. Adviser groups say that an SRO represents a costly additional layer of regulation that would hurt small advisory firms. Finra says an SRO would strengthen investor protection by increasing the number of adviser exams that are conducted annually. Legislation that would establish one or more SROs, which responds to a Dodd-Frank-mandated report on adviser oversight, is now stalled in Congress. The slowdown can be attributed in part to the effectiveness of advisers lobbying against the bill. Opponents of the measure are exercising their democratic right to petition lawmakers. “I'm fine with that delay,” Roy Diliberto, chairman of RTD Financial Advisors Inc., said of the SRO bill. “They can delay that forever.” Those who support an SRO are not giving up on the bill in this session of Congress. They want to move it as far in the legislative process as possible to set a precedent for reintroducing the measure next year. “If it takes longer than we originally thought, we're all better off in the long run,” said Dale Brown, chief executive of the Financial Services Institute. Democracy is a winding road that requires a lot of compromise along the way – especially, it turns out, on investment-adviser issues.

Latest News

Treasury hits BofA with $1.2B fine over money laundering violations
Treasury hits BofA with $1.2B fine over money laundering violations

“Today’s actions send a clear message that even the biggest financial institutions are not above the law,” said Treasury Secretary Scott Bessent.

The hidden cost of growing a firm without intention
The hidden cost of growing a firm without intention

To build a truly self-sustaining practice, enterprising advisors have to start with a vision of what they want to be – and accept the realities that come with building toward it.

Waverly, Apella buy $412M in RIA assets across Oregon, Northeast
Waverly, Apella buy $412M in RIA assets across Oregon, Northeast

Serial acquirers add a 35-year-old Oregon wealth manager and a New York practice focused on women navigating life transitions.

&Partners taps two UBS leaders to run its private wealth business
&Partners taps two UBS leaders to run its private wealth business

Mara Glassel and Julie Fox will co-lead the fast-growing hybrid RIA’s ultra-high-net-worth and private wealth businesses.

Citi sees Q3 profit jump as wealth unit books record $38B in net new assets
Citi sees Q3 profit jump as wealth unit books record $38B in net new assets

The banking giant's wealth arm extends its revenue streak as it pushes to exit consent orders weighing on growth since 2020.

SPONSORED Built on insurance experience to deliver on long-term promises

Knighthead Life entered the market with a competitive MYGA. A strong launch earned advisor confidence and paved the way for FIAs.

SPONSORED In the Age of AI, Trust Becomes the Advisor's Greatest Asset

As AI makes financial information more accessible than ever, Lana Hock explains why human judgment, trust, and empathy remain the qualities clients value most in a financial advisor