August 24, 2004
August 24, 2004
Jonathan G. Katz
Securities and Exchange Commission
Dear Mr. Katz:
As a Registered Investment Advisor, I request that the SEC withdraw the proposed rule entitled, Certain Broker-Dealers Not Deemed To Be Investment Advisors the Rule as proposed on November 4, 1999. As an SEC registered investment advisor who used to be registered individually as an NASD registered representative, it is my conviction that the relationship between a consumer investor and an investment advisor is far different than a relationship with a registered representative or stock broker. The proposed rule would create a great deal of confusion for the investor while also creating an unlevel playing field for investment advisors and registered representatives/stock brokers.
Under the proposed rule, registered representatives/stock brokers can and are misrepresenting their role as fiduciary advisors rather than as sales representatives. As registered representatives/stockbrokers, their sales role is clearly to gather assets. There will be a strong temptation to position market themselves as fiduciaries engaged in an advisory relationship which will be difficult if not impossible for them to uphold in many cases. Most of their training is focused on sales, not in consulting. Simply stated, many are not trained to provide the fiduciary advisory relationship that some investors are looking for. This will contribute to consumer confusion and disappointment.
Investment advisors IAs that have been trained to provide fiduciary advice are required to provide significant disclosures. IAs have taken the required steps to be in compliance with the complicated and burdensome requirements of the Investment Advisors Act of 1940 in order to meet the legitimate demands for investor protection. The proposed rule does not require all investment professionals offering fee-based investment management programs to conduct their sales practices under the same regulations, thereby creating an unlevel playing field.
In the interest of equal, full, and fair disclosure for the consumer, as well as a fair level playing field for all investment professionals, the exemptions for Broker-Dealers under the proposed rule should not be adopted. Full disclosure for the marketing of all fee-based programs is key for promoting investor protection. Investors will benefit by withdrawing the rule.