SEC rule merely pays lip service to investor protection

Nearly a decade after getting authority from Congress and a divided vote, the Securities and Exchange Commission (SEC) finalized new rules for financial advice. 

Misleadingly termed Regulation Best Interest, the new brokerage regulations and other changes hand Wall Street a marketing windfall while doing little to address the conflicts and kickbacks that cause bad advice to regularly burn retirement savers. 

Americans unfamiliar with financial services doublespeak may mistakenly believe that these new regulations will actually cause brokers to act in their best interest. The rule’s largely rhetorical protections risk luring Americans into misplaced trust and making the SEC complicit in the new sales pitch. 

It effectively allows fast-talking brokers to tell investors that they have to act in their best interest while protecting Wall Street’s right to sell investors the wrong products.

Consider the economic realities allowed by the rule. Regulation Best Interest allows Wall Street firms to create financial incentives for their brokers to skew their advice toward financial products paying the firm more money. 

It also allows firms to set the menu of options their brokers can recommend to clients, meaning the best funds that pay the least in kickbacks might not be available. The differences can be stark:

Fidelity offers an S&P 500 index fund charging next to nothing at 0.015 percent in expenses. Rydex, on the other hand, sells a fund tracking the same S&P 500 index, which will cost investors over 100 times as much as they would have paid with the cheaper fund. The new rules don’t require brokerage firms to give investors the best options available.

Regulation Best Interest, like the suitability standard before it, seems calculated to reward more ethically flexible financial services professionals.

Most new financial advisers start without a big book of business and must sell to survive. Their ability to feed their families depends on continually generating commissions. This creates an ever-present pressure to move clients to investment options that will generate returns for the firm.

Proving the point, one audit study sent investors with well-crafted, low-fee portfolios in to meet with Wall Street’s brokers. The investors walked out holding higher-cost portfolios, which were more likely underperform.

These dynamics generate toxic business cultures where firms make money not by delivering superior value but instead by luring investors into bad decision.

One recent financial services survey found that about a quarter of financial services employees believe that fellow employees “have engaged in illegal or unethical activity in order to gain an advantage.”  The same survey found that about a fifth believe “industry professionals have to engage in illegal or unethical activity in order to be successful.” 

Despite these problems, the new guidance from the SEC means that with investment advice nearly anything goes so long as Wall Street firms disclose. The new guidance calls for firms to tell customers about their conflicts and operations in documents, which will undoubtedly appear as largely incomprehensible gibberish to ordinary humans. 

This regulatory approach misses the point. Any investor sophisticated enough to read and understand Wells Fargo’s disclosure documents already knows that she should not trust Wells Fargo. Outside groups even studied the SEC’s own mock disclosures and found them largely ineffective at helping investors understand the true state of play.

Disclosure also poses other dangers in this context. Some financial advisers may feel as though they have an ethical license to take advantage of their customers after providing disclosures. It makes it easier to swindle the investor because, after all, she was on fair notice about the conflicts. 

At the margin, the new changes may do some incremental good. Brokerage account opening agreements almost always contain forced arbitration clauses, trapping generations of investors inside the Financial Industry Regulatory Authority (FINRA) arbitration system. 

For decades, arbitrators have been told that the FINRA suitability standard does not mean that a broker has to act in a customer’s best interest. Changing language in rules might change outcomes in cases with the worst abuses.

But the most widespread harms will linger and continually drain Americans’ financial resources. The Obama-era White House Council of Economic Advisers conservatively estimated that conflicted financial advice costs Americans about $17 billion dollars a year in extra fees. This means that retirees will run out of money much sooner than they would have if they had been able to get good advice when it mattered.

Ultimately, the need for untainted advice has never been greater. About $7.5 trillion dollars now sit in defined contribution retirement plans. As these aging savers move into retirement, they will need help transitioning from accumulating money in their 401(k)s to husbanding resources and drawing them down over time.

Many retirees also face cognitive decline, making it especially difficult for them to protect their own interests by reading and understanding conflict disclosures. Sadly, they have to look out for themselves because the current SEC will not.

Benjamin Edwards is an associate professor of law at the William S. Boyd School of Law at the University of Nevada, Las Vegas. He specializes in business and securities law, corporate governance and consumer protection.