August 5, 2010
My insurance and investment practice is highly regulated and I believe that the current suitability standard as set forth by FINRA and the State of Wisconsin, while burdensome, is effective. I am subject to annual audits by my supervisors. I can be audited by FINRA. I am subject to regulation by the State of Wisconsin, both for insurnace and securities.
As I understand it, the fiduciary duty as defined by the Dodd-Frank Act would require that all broker-dealers be held to a legal and vaguely defined standard "to act in the best interest of the customer without regard to the financial or other interest of the broker, dealer, or investment adviser providing the advice."
I vigorously object to the imposition of a vague standard that is impossible to fully comply with in advance. This seems like it is tailor made for lawsuits that will cost consumers money for no benefit.
I believe that when I sell an investment product, I am already acting in the "best interest" of my clients. Since the Act does not define what the rules are for compliance with a legal "best interest" standard I believe that it will result in the potential of unwarranted lawsuits and prevent me from recommending what is best because I have to keep an eye out for some litigating attorney down the road. For example, is "best" the cheapest recommended product? The "best" premium relative to the benefit of the product? The product with the "best" historic underwriting and service standards? Is it the one from the carrier with the "best" rating? The answer depends on the client, my professional judgement and a host of other factors that may not be quantifiable but are justified nonetheless. The fiduciary standard in essence adds a vague legal liability standard that looks back (sometimes after many years) and is enforced after the fact by the SEC or trial lawyers who have perfect vision in hindsight.
This is unreasonable and unfair, and most of all, it will hurt my clients. I urge you to not to impose a "best interest" standard because it is inherently undefinable. How can I be expected to comply with a vague definition?