FINRA Chief: Fiduciary Standard Will Take Time, Finesse
February 7, 2011
PHOENIX-Exactly who will create and enforce a new, uniform fiduciary standard for not just brokers, but investment advisers, as well?
That's not clear yet, nearly eight months after passage of the Dodd-Frank Wall Street Reform Act. It could be self-regulatory organizations. It could be the Securities and Exchange Commission. Or it could be the Financial Industry Regulatory Authority, which already oversees brokers.
And FINRA President and CEO Rick Ketchum Monday night in Phoenix said creating and enforcing a uniform standard won't come easily or quickly.
During his keynote address opening the OneVision 2011: FSI Broker-Dealer conference Monday night, Ketchum did his best to assuage the fears of independent financial advisors in the wake of two recent SEC studies birthed from the controversial Dodd-Frank law and provide a little insight into what they can expect from Washington in the near future.
The studies, both released within the past two weeks, made two things clear, he said: consumers need more protection in the form of increased regulation of brokers and dealers-independent or not-and the SEC doesn't have the cash, resources or institutional knowledge to do it itself.
Ketchum, who presides over the agency responsible for overseeing more than 4,500 brokerage firms and some 162,000-plus branch offices, told attendees the recent SEC developments were predictable and signal the beginning of what will be a long and complex journey toward implementing any new regulations-a process that Financial Services Institute members will take an active role in defining.
"We're still at the beginning," Ketchum said. "There's no way to understate the critical importance of these years. For better or worse, we're going to make history."
And that history, in the view of the most prominent advocacy and lobbying organization for independent broker-dealers and financial advisors, should be written with FINRA at the center of whatever regulatory policies are derived from impending legislation.
But how exactly will this be accomplished in an industry that grows more complex and cluttered with ever-more-imaginative products each day just as a tidal wave of retirement-ready and understandable circumspect Baby Boomers are starting to hit the magical age of 65 in unprecedented numbers?
For its part, the SEC has posited a trio of options to protect consumers both from themselves and from unscrupulous advisors.
One option, panned by FSI President and CEO Dale Brown, would have the SEC take on the task itself and charge fees from investment advisors.
The second option, which the FSI officially endorses even though Brown acknowledged that some members may disagree, would have the SEC grant oversight of all advisors to FINRA.
The third option and perhaps least palatable option in the opinion of the FSI would allow the SEC to designate one or more self-regulated organizations (SROs) to oversee advisors.
"There's a good deal of care throughout the study and the effort is there to insure the recommendations will be in the best interest of investors, Brown said. "But solutions shouldn't be driven in a rigid way that discourages competition."
Ketchum said FINRA has "no intentional of front-running" the SEC process but does want to "get out in front" to provide a forum and mechanism to discuss the issues-down to subtleties as basic but important as what constitutes "personalized investment advice"-and "rethink the way information is disclosed to customers.
"It will be collegial effort with the SEC," he added. "We're in an environment where nobody likes disclosure. Advisors are not good about delivering it and we need to get to a better place."
Ketchum told attendees he prefers the idea of layered disclosure delivered from the Internet but recognizes that a one-size-fits-all approach won't work for every client, advisor and transaction.
"Frankly, the only way it's going to work is for everyone, including regulators and advocates, to work together."
Thanks in no small part to the radical reshaping of Congress in the November election, Ketchum said whatever new legislation and enforcement apparatus created will be rolled out "carefully and in pieces."
"It's difficult for me to imagine a legislative process playing out any time before September or October and that's extremely ambitious," he said. "I would expect it won't be until the latter half of 2012 before an exam program is replaced."
Meanwhile, LPL Financial, the largest independent broker-dealer, announced Monday that it supports the application of a uniform fiduciary standard for financial advisors.
"We welcome the clarity that the January SEC staff report brings to the retail financial advice industry," said Mark Casady, LPL's chairman and CEO. " In particular, we agree with the report's recommendation for a uniform fiduciary standard, as we believe this is right for investors, financial advisors and the industry."
Casady said this new standard would "drive greater consistency and evenhandedness in the supervision of the broker-dealer and advisory sides of our industry."
"This would be positive for financial advisors and their clients, the vast majority of whom are neither cognizant of, nor concerned with, different definitions for the standard of care between financial advisor business models," he said.