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A Battle Won, not the War

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It’s hard not to celebrate the Financial Planning Association’s big win over the SEC in a federal appellate court as an instance of David slaying Goliath. After all, the FPA had gone out on a jurisprudential limb in challenging the Commission over its broker/dealer exemption, more popularly known as the “Merrill Lynch” rule. (That’s more popular outside the SEC itself. Once when I used the “Merrill” phrase in a conversation with an SEC attorney, said attorney was oh so quick to correct me.)

Making the playing field more level for all the players, defining what the responsibilities are for people who provide advice to individuals, “bringing clarity to the financial services marketplace,” in the words of FPA Chair Dan Moisand, one of the prime movers behind the suit, that’s what this D.C. Circuit Court decision has made possible. In an interview just before the March 30 court decision, FPA President Nick Nicolette said that the suit–and the second draft of the CFP Board’s ethics code–constituted a move toward defining “one set of standards for everyone who provides advice.” As Bob Clark notes in his column this month, the FPA (and consumers in general) would have won even if it had lost the suit, “in the sense that it would have generated substantial publicity for the fact that stockbrokers are exempt from the duties and responsibilities of advisors, even when they are posing as advisors.” But it won, “reestablishing that brokers who charge a fee for advice have a fiduciary duty to their clients,” Clark notes.

Sure, the SEC could appeal the decision to the Supreme Court, or ask for a rehearing by the District Court, a move recommended by SIFMA, whose president, Marc Lackritz, positioned the issue as one of protecting consumers’ “options for receiving and paying for financial services.” But how likely is an appeal or a rehearing?

Then reality intruded, spurred by interviews I conducted for this month’s cover story on the 2007 IA 25 (page 50). Rudy Adolf of Focus Financial Partners, one of those smart guys and gals who people this year’s list, first used the David and Goliath analogy, calling the ruling a “tremendous win for the investing public,” before delivering the bracing reminder that “a battle has been won, not the war.” Mark Tibergien worried that the FPA might be playing into the hands of the wirehouses, and effectively removing one of the great “competitive advantages RIAs had regarding client advocacy.” Will the victory in the end, he mulled, “negatively impact the businesses” of the FPA’s “primary constituency?”

Then I thought of the AARP, the advocacy group for people my age and older that has spent $88 million on its lobbying efforts over the past four years. What do you think the chances are that AARP will allow Social Security or Medicare reform to happen that includes a reduction in any services for the elderly along with tax increases for younger people? The wirehouses have that kind of lobbying money at the ready. Do you think legislation could be written by Congress that would protect the status quo and override by legislative action what the courts would not allow? An important battle may have been won, but the struggle continues. The CFP Board’s decision to move to Washington from Denver seems like a pretty bright move in that light.


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