More On Legal & Compliancefrom The Advisor's Professional Library
- Do’s and Don’ts of Advisory Contracts In preparation for a compliance exam, securities regulators typically will ask to see copies of an RIAs advisory agreements. An RIA must be able to produce requested contracts and the contracts must comply with applicable SEC or state rules.
- Advertising Advisor Services and Credentials Section 206 of the Investment Advisers Act contains the anti-fraud provision of the statute and ensures that RIAs advertising and marketing practices are consistent with the fiduciary duty owed to clients and prospective clients.
As the comment period on the SEC's proposal to regulate indexed annuities as securities under the Securities Act of 1933 came to a close on September 10, the Financial Planning Association (FPA) told the SEC it supports federal regulation of indexed annuities.
Such regulation would go a long way in curbing the litany of abuses against seniors that are associated with sales of indexed annuities, the FPA said. Dan Barry, FPA's director of government relations, says he thinks it's highly likely that the proposed rule will be approved, even though there'll be a lot of kicking and screaming from the insurance industry. When such an approval will come is uncertain, however. It remains to be seen if SEC Chairman Christopher Cox will push the rule through before his departure from the Commission in a few months, and the regulator is also still breaking in three new commissioners. The SEC plans to hold its Senior Summit in Washington September 22.
The rule is good in that "it recognizes that indexed annuities have both insurance and securities characteristics, and proposes a system of dual insurance/securities oversight," Barry told the SEC in the FPA's comment letter. He says the proposed rule is also a "significant step forward in ensuring that the people selling annuities fully understand the product they are recommending, and that consumers are making an informed choice."
Under the proposed rule concerning equity-indexed annuities, Section 3(a)(8) of the Securities Act provides an exemption under the Securities Act for certain insurance and annuity contracts, according to the SEC. In releasing the proposed rule, the SEC said it "would provide that an indexed annuity is not an 'annuity contract' under this insurance exemption if the amounts payable by the insurer under the contract are more likely than not to exceed the amounts guaranteed under the contract."
The SEC further states that the proposed rule would address "the manner in which a determination would be made regarding whether amounts payable by the insurance company under a contract are more likely than not to exceed the amounts guaranteed under the contract." The Commission said the proposed rule "is principles-based, providing that a determination made by the insurer at or prior to issuance of a contract would be conclusive if, among other things, both the insurer's methodology and the insurer's economic, actuarial, and other assumptions are reasonable."
The proposed new definition would apply only to indexed annuities issued on or after the effective date of a final rule, if adopted, the SEC said.