The Legal Record
VOL. 121, NO. 25 ONLINE EDITION June 18, 2019
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SEC to require that brokers reveal conflicts
Stockbrokers will have to divulge their potential conflicts of interest to clients when they give them investment advice under action taken by federal regulators.  

The regulation adopted by the Securities and Exchange Commission will also require brokerages to eliminate sales contests and quotas that reward brokers who generate the highest sales of certain investment products.  

Still, critics say the SEC’s new measure, which the financial industry supports, doesn’t go far enough to protect investors from abuses. They say a stricter standard that advanced under the Obama administration should apply to brokers. This standard, called a “fiduciary duty rule” required all financial professionals, including brokers, to act as trustees who must put their clients’ interests above their own.  

A fiduciary standard for brokers was opposed by President Donald Trump in early 2017, and the financial industry helped defeat it in federal court. Now, under the new SEC rule, brokers will be required to disclose and in some cases reduce their financial conflicts of interest, not eliminate them entirely.  

Americans increasingly seek financial advice to help navigate an often-dizzying array of options for retirement, college savings and more. Many financial pros provide investment advice. But only some are registered advisers, who are legally required not only to divulge their potential conflicts but also to put their clients’ interests above their own. For example, an adviser who might be inclined to place a client’s money into an investment that would generate a high commission for the adviser must weigh whether that investment is in the client’s best interest.  

Critics of the current system say investors lose billions of dollars a year because of advice from brokers who face conflicts of interest at odds with their clients’ best interests.  

The changes the SEC adopted by a 3-1 vote could affect how hundreds of billions of dollars in Americans’ retirement and other investments are handled by brokers. About 43 million American households have a retirement or brokerage account. Brokers sell stocks, bonds, mutual funds, annuities and other investments, which they may recommend to clients, and they often receive commissions for selling specific products.  

The dissenting vote came from Commissioner Robert Jackson, the sole Democrat. Under the new regulation, conflicts of interest “will continue to taint the advice that consumers receive from brokers,” Jackson contended.  

The new SEC regulation, first proposed over a year ago, will require brokers to tell clients how much they collect from recommended products. They will have to provide clients with a new disclosure document with key facts about the broker-client relationship, including potential conflicts of interest.  

SEC Chairman Jay Clayton said the regulation “is designed to enhance the quality and transparency” of the retail investor’s relationship with the financial professional. Clayton said the two key objectives are to bring standards of conduct for financial professionals “in line with reasonable investor expectations” and “preserve retail investor access” to investment services.  

Brokers won’t be allowed to use the term “adviser” as part of their name or title in dealing with retail investors.  

Brokerage firms won’t be able to offer their clients menus of products that are limited to the firm’s in-house products because doing so would give the firm and its brokers a financial incentive to sell them that could conflict with the clients’ best interest.  

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