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.
The anti-fiduciary rule crusaders have been more successful than anyone could have imagined. Back in 2017, the slew of industry groups fighting the DOL’s rule looked woefully outgunned. But in time, they completely succeeded. They are coming off another fresh victory as well—in Maryland—but the next battle looks to be even bigger. That battle will be in New Jersey, a state that seems to have taken the stage as a leader in the state-level fiduciary rule push growing across the US. Unlike Maryland, New Jersey is committed to a rule, which makes this fight more substantial. The new rule in NJ also has the support of some advisors there, giving the proposal more traction.
FINSUM: In our view, it will likely be harder to stop the spread of these state level fiduciary rules than it was at the national level, if only because it is harder to concentrate opposing resources across the whole US. Also, if a state truly has conviction about the rule, it seems more likely to come to fruition.
The Trump administration has slowly but surely exerted its influence on the SEC. After two and half years, the changes are reaching their zenith. The last Democrat at the SEC is set to step down later this year. He is technically entitled to stay through June 2020, but is likely to leave before the autumn, when he is set head back to academia. The departure will open the door to a more conservative appointment. It would also mean there are only three commissioners left at the SEC, two of whom are Republicans, giving them an advantage in SEC matters.
FINSUM: This could have all sorts of ramifications for policy, including the best interest rule. We expect this may have some significant impacts on the the BI rule plays out.
Most of the industry was hoping that states would back off, or at least slow down, their fiduciary rule efforts after the SEC announced it was working alongside them to craft a more comprehensive Best Interest Rule. The idea is that if the SEC could create a rule satisfactory to states, then it would obviate individual state regulations. However, New Jersey is pressing ahead with its own rule. The state formally put forward a new rule yesterday via the Attorney General Burbir Grewal. The rule is comprehensive and advisors would have serious penalties for not abiding. “Conduct falling short of this fiduciary duty would, under the proposed rule, constitute a dishonest and unethical practice,” says an announcement for the state’s Consumer Affairs Division.
FINSUM: We are still hoping the SEC can make a rule that satisfies states, because the last thing consumers or advisors need is fragmentation.
In what likely comes as frustrating news for a lot of the wealth management industry, it is time to start worrying once again about the return of the fiduciary rule. And we are not talking about state level rules, or new interpretations of the SEC rule, we mean the old DOL rule itself. The DOL announced towards the end of 2018 that it was planning to re-release a new version of the rule in fall of 2019. However, it had been quiet until now. This week, a top industry lawyer has commented that the DOL is again working on new fiduciary regulations and may launch in tandem with the SEC, though specifics are lacking.
FINSUM: So what do we know? Firstly, we know the DOL said it would re-release the rule in the fall of this year. We also know that it seems to be actively working on crafting new fiduciary regulation. We’ll let you put two and two together.