OUR TAKE: We assume that the DoL will consider appealing this decision to the Supreme Court, which could take months/years. In the meantime, our recommendation is to comply with the best interest standard that went into effect last June and see what happens in the courts, in Congress, and at the DoL.
OUR TAKE: Even though he DoL won’t enforce the fiduciary rule, the impartial conduct standard applies to firms that recommend products to retirement accounts. Nevada has already passed its own fiduciary legislation. Now, Massachusetts uses its enforcement powers to compel fiduciary compliance. Expect other states to follow.
SEC Chairman Jay Clayton has solicited public comment concerning the standard of conduct applicable to retail advisers and broker-dealers. The SEC seeks public input on such topics as the preferred standard of care, conflicts of interest, approaches to regulation, disclosure, technologies, and investor confusion. Mr. Clayton asks, “If the Commission were to proceed with a disclosure-based approach to potential regulatory action, what should that be? If the Commission were to proceed with a standards-of-conduct-based approach to potential regulatory action, what should that be? Should the standards for investment advisers and broker-dealers be the same or different? Why?” Mr. Clayton notes that the SEC last solicited such information back in 2013 but that rapidly changing markets, participants, and regulations require updated information. He welcomes coordination with the Department of Labor as it implements and re-considers the Fiduciary Rule. The SEC has set up a webform and email box to receive comments.
OUR TAKE: The SEC should adopt a uniform fiduciary or best interest standard for all retail advisers and broker-dealers, and the DoL should incorporate that standard rather than create a separate regime solely for retirement products. We hope that Mr. Clayton has begun the process to ending this internecine regulatory battle of agencies.
OUR TAKE: Can we stop now? We actually think the current state of affairs makes the most sense i.e. require a best interest standard without specifically mandating how firms must comply. The Investment Advisers Act takes that approach, and it has worked pretty well since 1940.