January 3, 2012

Dodd-Frank: Progress Report on Law’s Key Elements

Of the 400 rulemaking requirements, 86 (21.5%) have been finalized and 155 (38.75%) have been proposed; 159 (39.75%) have not been proposed

President Obama congratulates Sen. Chris Dodd (center) and Rep. Barney Frank after bill signing in 2010. (Photo: AP) President Obama congratulates Sen. Chris Dodd (center) and Rep. Barney Frank after bill signing in 2010. (Photo: AP)

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from The Advisor's Professional Library
  • Conducting Due Diligence of Sub-Advisors and Third-Party Advisors Engaging in due-diligence of sub-advisors isn’t just a recommended best practice— it is part of the fiduciary obligation to a client. An RIA should be extremely reluctant to enter a relationship with a sub-advisor who claims the firm’s strategy is proprietary.
  • 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.

One of the biggest chores for regulators in the New Year will be continued progress in implementing Dodd-Frank, the massive Wall Street reform bill that was passed into law in July 2010.

The law firm Davis Polk & Wardwell released on Tuesday its latest Dodd-Frank “progress report” on where the various regulators stood on their implementation of the act. Following are some highlights from the report:

  • As of the end of 2011, deadlines for half of Dodd-Frank's rulemaking requirements have passed, or 70% of the 286 requirements with specified deadlines. 51 (25.5%) of the passed deadlines have been met with finalized rules.
  • Of these 200 passed deadlines, 149 (74.5%) have been missed. 51 (25.5%) have been met with finalized rules. 25 of the 149 missed rules have not yet had proposals released.
  • Of the 400 total rulemaking requirements, 86 (21.5%) have been finalized and 155 (38.75%) have been proposed. 159 (39.75%) rulemaking requirements have not yet been proposed.
  • Most of the finalized rules in 2011 related to derivatives reform, as most of the CFTC’s and SEC’s derivatives rulemaking requirements fell in July of 2011. The proposed Volcker Rule regulations and the Federal Reserve’s release on prudential standards begin a move toward bank regulator rulemaking, with many rulemaking deadlines falling in 2012.
  • Public input on Dodd-Frank rulemakings remains vigorous. In 2011, the CFTC, FDIC, Federal Reserve and SEC held 1,720 reported meetings with the public on Dodd-Frank. The Progress Report includes each regulator's top five topics of discussion at those meetings, which range from the definitions of swaps and security-based swaps to consumer protection to conflict minerals.

The Securities and Exchange Commission should find its progress run a bit more smoothly this year in tackling its duties under Dodd-Frank given that the House Appropriations Committee recently approved $1.3 billion in funding for the agency, a boost of $136 million more than last year’s level but still shy of the $1.5 billion authorized under the Dodd-Frank Act for 2012.

SEC Chairman Mary Schapiro (Photo: AP)SEC Chairman Mary Schapiro (left) said in December that over the past 16 months, of the more than 90 provisions in Dodd-Frank that require SEC rulemaking, the SEC already has proposed or adopted rules for over three-fourths of those that are required. Additionally, she said, the SEC has finalized 12 of the more than 20 studies and reports that the Act directs the agency to complete.

Dodd-Frank gives the SEC the authority to put brokers under a fiduciary mandate, and Schapiro said in early December that the agency would issue a proposed fiduciary rule in 2012 that would be “business-model neutral.”

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