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SEC Fiduciary Rule Cannot Replace DOL’s: Financial Planning Coalition

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Financial planning groups said Friday that any fiduciary rule considered by the Securities and Exchange Commission “cannot be considered a replacement” to the Department of Labor’s fiduciary rule.

The Financial Planning Coalition — comprising the Certified Financial Planner Board of Standards, the Financial Planning Association and the National Association of Personal Financial Advisors — said in a Friday statement that while the coalition is “pleased that the SEC is open to extending the fiduciary standard to broker-dealers who offer personalized investment advice,” and “are especially encouraged by SEC Chairman Jay Clayton’s particular interest,” any work done by the SEC “should not stymie or undercut” Labor’s fiduciary rule.

Clayton said late Thursday that the agency is seeking comment on a laundry list of issues to inform “possible future actions” by the agency on a fiduciary duty rulemaking.

A rule considered by the SEC “cannot be considered as a replacement of the DOL’s fiduciary rule, which serves as an enforceable standard for advisors to put the interests of Americans who are saving for retirement ahead of their own,” the Coalition stated. “The DOL rule and any proposed SEC rule would fall under different statutes and serve different purposes.”

Many in the financial services industry “have already acknowledged and implemented practices to comply with a standard fiduciary rule” issued by Labor, the Coalition continued.

Dale Brown, president and CEO of the Financial Services Institute, reacted to the SEC’s Thursday announcement by stating that FSI “has long advocated for a uniform fiduciary standard from the SEC, and Chairman Clayton’s request for comment is a promising step toward achieving one.”

While “developing a thoughtful, uniform standard will take time,” Brown said, “we look forward to working with Chairman Clayton and the SEC to create a standard that ensures Main Street investors receive advice that is in their best interest while preserving their access to affordable, objective financial advice and products.”

Brown urged Clayton and the SEC to coordinate with Labor “to ensure the achievement of a true uniform fiduciary standard for the industry.”

Gibson, Dunn & Crutcher partner Eugene Scalia, who’s representing the nine groups appealing their case against the fiduciary rule in a Texas court, urged Labor Secretary R. Alexander Acosta in a Thursday op-ed in The Wall Street Journal to “rethink” his decision to allow the fiduciary rule to kick in on June 9.

Labor “has one week to decide between the trial lawyers and hardworking Americans,” Scalia wrote.

“President Obama’s former Labor Secretary Tom Perez set out to give a great gift to the trial lawyers: the ability to sue all financial institutions whenever the market goes down. And he achieved that goal in designing the so-called fiduciary rule that governs retirement advice.”

Courts “would not look positively on a delay” from the June 9 compliance date, Duane Thompson, senior policy analyst for fi360, said Friday. “The clock is ticking and we have a week; a lot of surprises” have occurred regarding Labor’s fiduciary rule, “but it looks to me the rule is going into effect” on June 9.

Having said that, it’s “very unlikely that they [Labor] are going to leave the rule alone and let it go fully into effect on Jan. 1, 2018,” Thompson added. “But if they are going to make significant changes, [Labor is] really going to have to do its homework; … the rule survived three different courts.”

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