Until Reg BI enforcement starts, we’ll have to take brokers’ word it’s working

On the journey toward stronger investor protection surrounding investment advice, one major milestone has been passed. Regulation Best Interest, the Securities and Exchange Commission’s new broker standard, was implemented on June 30.

But the next indication of whether any progress has been made is somewhere much farther down the road. That will come when we start to see how the SEC will enforce Reg BI. For now, the agency is looking for "good faith" efforts to comply with the rule.

In the meantime, we’ll have to take the word of brokerage firms and their representatives that we’re headed in the right direction. That amorphous situation raised tension at a hearing last Thursday about the Department of Labor’s investment advice proposal for retirement accounts.

One of the highlights of the all-day session was the starkly different points of view about whether Reg BI is making a difference so far. The efficacy of the measure is crucial because the DOL’s proposal would work hand-in-hand with Reg BI.

If brokers comply with Reg BI, they are assumed to be in compliance with the DOL rule, which allows financial advisers to receive compensation, such as 12b-1 fees and commissions, that would otherwise be prohibited under retirement law as long as they act in the best interests of their clients in retirement accounts.

The Securities Industry and Financial Markets Association, a major Wall Street trade group, praised the DOL for aligning its advice rule with Reg BI, which they said is already proving its mettle in protecting investors.

Kevin Carroll, SIFMA managing director and associate general counsel, testified that the organization has surveyed 50 member firms and found that more than half plan to eliminate certain conflicts of interest.

The steps firms have taken include removing from their product lineups high-fee mutual funds, eliminating third-party revenue, equalizing compensation for mutual fund categories, modifying commission and fee schedules and changing adviser compensation practices.

“The collective requirements of Reg BI have compelled our members to implement such fundamental changes to their systems, policies and procedures such that it is fair to say that Reg BI and the requirements of the department’s proposed exemption are ‘functionally equivalent,’” Carroll said.

Carroll acknowledged that some of the operational changes he outlined were spurred by the now-defunct Obama administration DOL fiduciary rule.

That’s also what I reported in a cover story about a month before Reg BI implementation. What I found was that the earth wasn’t shaking in terms of major broker operational reforms the way it had trembled in advance of the Obama-era rule going final.

In contrast to SIFMA’s enthusiasm for the DOL proposal, state regulators are asking the agency to put it on hold until there is a better understanding of whether Reg BI is curbing broker conflicts of interest.

Ohio Securities Commissioner Andrea Seidt testified that the North American Securities Administrators Association conducted a survey of 2,000 brokerage and advisory firms that showed they “have a lot of work to do to effectively manage their conflict.”

The organization plans to go out in the field again next year to see how financial firms are adapting to Reg BI. Seidt urged the DOL not to advance its advice proposal until the results are in.

“The department should defer final rulemaking until it has received a factual record validating the effectiveness of the SEC’s approach,” she said.

Of course, the effectiveness of the SEC’s approach will depend on the SEC itself.

“The door has been left open on how [Reg BI] is going to be interpreted and applied,” said Knut Rostad, president of the Institute for the Fiduciary Standard.

Until the SEC decides what Reg BI really means for investment advice reform, we’re on our own in determining where we are on the journey. You can turn to either the brokerage industry or state regulators for your investor protection GPS.