In Reform Bill, Fiduciary Duty, EIA Regulation Face Vote on June 22

Proposal to give states oversight of more advisors also in play

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  • Risk-Based Oversight of Investment Advisors Even if the SEC had a larger budget and more resources, it is doubtful that the Commission would have the resources to regularly examine all RIAs. Therefore, the SEC is likely to continue relying on risk-based oversight to fulfill its mission of protecting investors.
  • Client Commission Practices and Soft Dollars RIAs should always evaluate whether the products and services they receive from broker-dealers are appropriate. The SEC suggested that an RIA’s failure to stay within the scope of the Section 28(e) safe harbor may violate the advisor’s fiduciary duty to clients, so RIAs must evaluate their soft dollar relationships on a regular basis to ensure they are disclosed properly and that they do not negatively impact the best execution of clients’ transactions.

As the Senate and House conferees get back to work on Tuesday, June 22, the critical vote on whether to apply a fiduciary standard to brokers is expected. The conferees will also vote on whether to approve an amendment offered by Senator Tom Harkin (D-Iowa) that would classify equity indexed annuities (EIAs) as insurance products, and therefore preempt having EIAs regulated as securities by the Securities and Exchange Commission (SEC).

Senator Christopher Dodd (D-Connecticut) has said that Senator Tim Johnson (D-South Dakota) is working on a compromise to the House's language calling for a fiduciary duty for brokers. Johnson drafted the original language calling for an SEC study of gaps in regulation for advisors and brokers, instead of imposing a fiduciary duty on brokers, as set out in the House bill.

The North American Securities Administrators Association (NASAA) is also pleased that the conferees have agreed to raise the state investment advisor asset threshold from $25 million to $100 million in assets under management (AUM) and permit state advisors within $25 million to $100 million in AUM that are required to be registered in 15 or more states to remain being examined by the SEC.

But SEC Chairman Mary Schapiro has raised concerns about whether the states would have adequate means to regulate the onslaught of new advisory firms to examine; raising the asset threshold would shift about 4,200 SEC-registered advisors to state jurisdiction. Denise Voigt Crawford, president of NASAA and the Texas Securities Commissioner, said in a recent conference call with reporters that the SEC has failed to examine about 3,000 advisory firms, so if the states win jurisdiction over more firms "that would be an improvement." The SEC, Crawford continued, has stated that the agency plans to focus its examination efforts on the larger advisory firms.

Other critics worry that with state budgets in turmoil, the states will lack the adequate resources to exam advisory firms. But Crawford said during the conference call that while it's true that some "states are experiencing major resource problems; states are not actively cutting budgets for securities related efforts." Crawford also pointed out that the states have entered into a Memorandum of Understanding (MOU) in which they will combine their resources when examining advisors.

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