After months of speculation, the Securities and Exchange Commission is poised to inject itself in the controversial effort to create a fiduciary duty rule for broker-dealers and investment advisers.
The Commission has scheduled an open meeting on Wednesday, April 18, at 3:30 p.m. The session will include discussions, and potentially action, on:
whether to propose new and amended rules and forms to require registered investment advisers and registered broker-dealers to provide a brief relationship summary to retail investors;
whether to propose a rule to establish a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer when making a recommendation of any securities transaction or investment strategy involving securities to a retail customer;
whether to propose a Commission interpretation of the standard of conduct for investment advisers.
In April 2016, the Labor Department finalized a new rule that creates a fiduciary duty for brokers and registered investment advisers who offer retirement advice. They are held to a higher standard of customer care, one with best practices and prohibitions on conflict of interest.
The rule, from its inception, was under attack. House legislation, now before the Senate, would kill the rule. Lawsuits have also proved a setback, as it the lack of support by the current presidential administration.
Watching from the sidelines, until now, was the SEC, the agency the financial services industry says should be in charge of such a rule.
Chairman Jay Clayton has referred to drafting a Commission rule as a “herculean task.”
In public remarks, Clayton has stressed that he was “respectful” of the Department of Labor’s efforts. It was widely seen as an act of diplomacy and an olive branch passed between agencies that have perpetually bickered about the rule and on whose terms it should be issued.
On June 1, Clayton set the stage for the SEC developing its own rule, cheered on by those who see it as the proper agency to do so. He opened a public comment period to solicit advice and guidance. “The Department of Labor’s Fiduciary rule may have significant effects on retail investors and entities regulated by the SEC,” he wrote at the time. “It also may have broader effects on our capital markets. Many of these matters fall within the SEC’s mission.”
That comment period, it is expected, will help inform any rule proposal that emerged from the Commission. How it will, or will not, dovetail with the Department of Labor’s rulemaking remains to be seen.