The Department of Labor’s fiduciary rule has died in the courtroom. The Insured Retirement Institute and the Securities Industry and Financial Markets Association along with the Chamber of Commerce brought suit to protect the financial service companies who would prefer not to act as your fiduciary partner. After a three-judge panel ruled the DOL had exceeded their authority the DOL chose not to appeal the ruling. Despite 17 states and the AARP’s pleas to be allowed to continue the case the 5th circuit court denied their request, leaving investors once again on their own to determine who they can trust with their life savings.
To make matters worse, the SEC has proposed new rules that provides cover to those not willing to act as a fiduciary. They call it the “Regulation” Best Interest rule. Best interest sounds much like fiduciary to most folks, but as with many things written by attorneys it might not mean what you think it means.
While the Regulation Best Interest is an improvement over the suitability standard, the name alone is deceptive. Unlike the fiduciary standard that has a long history of common law and case law definition, ‘best interest’ is undefined and subject to future court rulings to grow the teeth needed to provide needed protections.
The SEC proposal also requires both brokers and advisors to provide a four-page disclosure document to help define how they will behave in the client relationship. It seems to me a simple check a box form would be clearer and simpler for all parties. One box would say, “yes, I will always act as a fiduciary in our relationship” and the other would simply say “No, I will not act as a fiduciary at all times”.
A rose is a rose is a rose, unless we are talking about your retirement nest egg, then it’s more “buyer beware”.