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Regulation and Compliance > Federal Regulation > SEC

SEC Official: Fiduciary Mandate is Likely, But Harmonization Will Come Later

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A senior Securities and Exchange Commission official said it is likely the agency will propose a rule imposing a uniform fiduciary mandate on the sale of investment products.

But the official, Douglas Scheldt, an associate director and chief counsel in the SEC’s Office of Investment Management, said the SEC will likely hold off on issuing one providing for overall harmonization of advisor and broker rules.

Scheldt made his comments during a panel discussion Monday at the Insured Retirement Institute’s regulatory conference in Washington.

Scheldt’s comments were consistent with recent remarks by SEC Chairman Mary Schapiro that the agency will focus in July on the fiduciary duty issue, as well as 12b-1 reform.

His comments were first carried in an article by Melanie Waddell, in AdvisorOne, the website of sister publication Investment Advisor. Schapiro’s comments were contained in an interview with Waddell in the June issue of Investment Advisor.

Reaction to disclosure of the agency’s plans within the investment sales industry was consistent with current fault lines. An official of the Consumer Federation of America voiced support for dealing with the issues on separate tracks; the president of the National Association of Insurance and Financial Advisors continued to voice concerns about a one-size-fits-all rule.

Barbara Roper, director of investor protection for the Consumer Federation of America, voiced support for proposing a regulation on a uniform fiduciary standard while separating the issue from harmonization. She said it is “is absolutely appropriate” for the SEC to put these proposals on separate tracks.

“The agency has been considering the fiduciary duty proposal, in one form or another, for over two decades–ever since it first rolled out its fee-based brokerage account rule,” she said. “It has received reams of comments and conducted extensive analysis of the issue.”

The other harmonization proposals have not been subject to the same degree of comment and analysis, Roper said, adding that it “would be a real blow to investors” if the agency were to hold up consideration of the fiduciary duty proposal while it gets up to speed on these other proposals.

This is particularly so since, “whatever their merits, none of these other harmonization proposals have the same potential to benefit investors that the fiduciary proposal does,” she said.

Last week, the Financial Planning Coalition delivered a letter to the SEC, accompanied by a petition signed by more than 5,200 financial planners, urging the SEC to apply a uniform fiduciary standard.

But, Terry K. Headley, president of the National Association of Insurance and Finance Advisers, again voiced the concerns of insurance agents, who sell a limited number of financial products, usually as a captive agent of a single insurance company or broker-dealer.

“There are still a number of unanswered questions about how a fiduciary duty imposed on broker-dealers could harm the ability of middle-market consumers to access and afford financial products and services.”

Headley said these questions weren’t adequately addressed in the SEC study. SEC Commissioners Kathleen Casey and Troy Paredes, as well as members of Congress, have also raised these questions.

“It would be a disservice to consumers for the SEC to rush into rule making without examining all the possible consequences just to satisfy an artificial deadline,” Headley said. He added his comments reflect the concerns of broker-dealers who believe that such a rule could reduce investment advisory choices available under current regulations.

Scheldt acknowledged that drafting a fiduciary duty rule for broker-dealers is a “thorny issue.” He added while some broker-dealers “fully support” a uniform fiduciary standard for advisors and brokers, these same broker-dealers have also said that “we will fight you to death on what it actually means.”


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