More On Legal & Compliancefrom The Advisor's Professional Library
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- Anti-Fraud Provisions of the Investment Advisers Act RIAs and IARs should view themselves as fiduciaries at all times, whether they meet the legal definition or not. Deviating from the fiduciary standard of full disclosure while courting clients may cause the advisor significant problems.
If you read Melanie Waddell’s story on AdvisorOne last Friday (“House Passes SEC Cost-Benefit Bill”), you know that, well, the U.S. House of Representatives passed a bill that same day, which, should it become law, would require the SEC to conduct rigorous cost-benefit analyses on all of its future, and possibly some of its current, rules and regulations.
While the SEC Regulatory Accountability Act was passed largely by House Republicans (the 54% yeas comprised 218 Republicans along with only 17 Democrats), it might be construed as a “bipartisan” bill in that it’s an attempt to make President Barack Obama’s Executive Order 13563 into law—underscoring Wall Street’s influence with the Republicans and the administration, if not most Democrats, in Congress.
Those of us who closely follow the SEC's drawn-out deliberations over Dodd-Frank Sec. 913, which requires the commission to establish a fiduciary standard for brokers that is “no less stringent than the existing standard for Investment Advisors,” will recognize the Accountability Act as yet another attempt by the securities industry to shift attention away from the consumer protections of requiring brokers to put the interests of their clients ahead of their own, by focusing solely on the “costs” of doing so. It’s a curious argument, to say the least, and yet one that seems to resonate in the halls of Congress as well as the White House.
As I and many others have written, one would think SIFMA, and NAIFA, and the SIA would be reluctant to admit that the brokerage business model would have a hard time surviving if brokers had to act in the interests of their clients; or that they currently don’t do what’s best for their clients because it would cost too much. And yet, that’s exactly what they’ve argued, and now have the White House and a majority of congressmen arguing the same. I suppose they hope that if they can get a bunch of politicians to echo this silliness, the public and the media might start to believe that it makes some sense.
As for me, I’m holding out hope that the American people have more common sense than to go along with this thinking. The bottom line is that if doing the right things by other people was truly more profitable, we wouldn’t need the SEC at all, nor most of our other federal and state regulatory agencies—and many of our existing laws. And resorting to a “cost-benefit analysis” only serves to illustrate this point.
Cost-benefit analyses are great business tools in cases where both the costs of a given product or service under consideration and the potential benefits (the anticipated profits) are readily quantifiable. But when it comes to ethical—or public policy—considerations, the “benefits” are often hard to quantify, rendering cost-benefit comparisons misleading. Didn’t the legal tide turn against cigarette companies when internal documents revealed some of them did cost/benefit analyses which showed paying off smokers’ lawsuits was cheaper than making their products safer? And do we really want health insurance companies calculating the financial advantages of delaying treatment to terminally ill insureds?
On the government side, is the FBI really cost effective? How about Social Security: Does that really pencil out? Or what about the FAA: Does it really prevent enough plane crashes to justify its budget? The list could go on and on.
These are ridiculous, right? Are they any more ridiculous than asking if protecting financial consumers is really worth the potential hit to brokerage firms’ bottom lines? Particularly when the pension industry, private banks and RIAs all seem to thrive while putting their clients’ interests first? To paraphrase Oscar Wilde: It’s seems the securities industry is far more interested in the price of sound advice than in its value.