August 31, 2010
August 30, 2010
SENT BY ELECTRONIC MAIL
Ms. Elizabeth M. Murphy, Secretary
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549-1090
RE: 4-606
Dear Ms. Murphy:
The undersigned is General Counsel to the Association of Independent Trust Companies, Inc. (referred to herein at times as the Association or AITCO), a trade group of trust companies throughout the country. Most of the trust companies that are members of the Association are non-depository trust companies that do not make loans. While we do have a number of members that have assets under management in excess of a billion dollars, the typical member of the Association has assets under management of between $100,000,000 and $750,000,000.
I am writing on behalf of the Association, and at the direction of its Board, to support the imposition of a fiduciary standard on brokers and dealers.
Pursuant to Section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Act) the Commission is charged with undertaking a study regarding the obligations of brokers, dealers and investment advisers and specifically reviewing the various standards that exist regarding advice provided to individual retail clients concerning their investments. Currently brokers and dealers are required to determine the suitability of an investment for a customer whereas investment advisers registered under the Investment Advisors Act of 1940 (the Advisers Act) are held to a higher fiduciary standard.
Even though trust companies, like most of the members of AITCO, continue to be exempt from the requirements of the Investment Advisors Act of 1940, their actions are held to a much more rigorous fiduciary standard through the imposition of provisions of 12 C.F.R. Part 9 as applied to national trust companies chartered by the Comptroller of the Currency ("OCC") and to those chartered by the Office of Thrift Supervision ("OTS") and most states through law or regulation. Members of AITCO acknowledge that the imposition of this standard is appropriate, whether they are acting in a true fiduciary capacity or are acting in an agency or managed account setting.
It is frustrating that the lower standard of mere suitability exists for brokers and dealers. These entities and persons provide investment advice similar to that provided to clients of trust companies and investment advisers, but they are not held to the higher fiduciary standard. This is true even though most reports have demonstrated that all but the most highly sophisticated consumers of investment services are unable to understand that the duty owed to them by brokers and dealers is less than that owed to them by investment advisers and certainly less than that required by trust companies. Complete and effective disclosure of all compensation and conflicts of interest is appropriate for any person managing anothers investments.
We trust that the study to be undertaken by the Commission will determine that it is time to put all providers of financial advice on an equal playing field, requiring that all such persons be held to the higher fiduciary standard. We encourage you to recommend to Congress that the fiduciary standard be adopted. Such an action will be a meaningful improvement over the different standards now in place and of significant benefit to all consumers of financial advice. If you have any questions or comments in this regard, please contact me by e-mail at tblank@slk-law.com or by phone at (419)-321-1394. If you would like to learn more about AITCO, please go to the AITCO web site at www.aitco.net. On behalf of the Association, thank you for your consideration of this letter. We look forward to learning of the results of the study.
Sincerely,
Thomas C. Blank
General Counsel to
The Association of Independent Trust Companies, Inc.
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