(New York)

The current plan for a new New Jersey fiduciary rule is of a new breed. The proposal goes to lengths never seen in the fiduciary regulation world, far exceeding both the SEC best interest rule and the defunct DOL fiduciary rule. The proposal is officially called the “Fiduciary Duty of Broker-Dealers, Agents, Investment Advisers, and Investment Adviser Representatives” and includes an expansive definition of a “recommendation”, imposes a uniform duty on both advisors and brokers, and importantly, “creates presumptive breaches if brokers and advisors do not recommend the best reasonably available option and fee arrangement”. Unlike Maryland, the state doesn’t need an internal Senate vote to enact the rule.

FINSUM: This is a very strong rule that would set an alarming, and in our view, misguided precedent for other states, or even the DOL’s update of its own rule. A presumptive breach based on single recommendations sounds ludicrous to us. Almost all decisions can be made to look poor in hindsight. Further, defining what the “best” investment selection is at one point is nearly impossible.