Statement at the Open Meeting on Regulation Best Interest and Related Actions

The anticipation that led up to this week was almost palpable. We all have been waiting for this moment for a long time. Some people doubted that it would ever come.[1] Many others speculated about when it would happen. Waiting for the day to arrive took every ounce of patience from many spectators. It seemed it would never come. So intense was the interest that news was leaked out early to the press that the day was finally upon us.[2] Was it really true that the wait was over? Yes, the much anticipated event did actually take place. On Monday, James Holzhauer’s amazing 32-game, nearly $2.5 million winning streak on Jeopardy! finally came to an end.[3]

The end of a Jeopardy! winning streak is not, of course, what brings us here today. Yet, in something of a parallel to the game of Jeopardy!, which inspires many armchair guessers, there have been lots of people speculating about what is in the final set of releases and opining on whether what they have guessed is in the releases is good or bad. Indeed, all of this uninformed, impassioned, and conflicting speculation taken together seemed to urge us to enact a complete ban on retail investors getting any professional help at all. We did not heed that call. My plea to speculators—regardless of what you thought you would think of the final product—is that you take a fair look at what it says before you proclaim it a success or failure.

Now, to be fair, doing so will not be an easy endeavor. We are giving you a lot of pages to read. In light of our own aversion to clear and concise language, I choke on the Plain English admonitions to industry included in this rulemaking package.[4] As a Commission, we need to figure out a way to both adequately explain our rules and interpretations and to pare back unnecessary repetition.

In that vein, because you have already heard much about what is in this set of releases, I will make just a handful of observations. First, I want to thank the many commenters who have spent so many hours with my colleagues and me, attended our investor town halls, written thoughtful letters, conducted surveys, and mocked up Forms CRS. The input of such a diverse group of commentators—including investors, other federal and state regulators, broker-dealers, investment advisers, law clinics, and law firms—has been invaluable.

Second, I commend the Chairman and the staff in the Divisions of Investment Management, Trading and Markets, and Economic and Risk Analysis, and Offices of General Counsel and Investor Education and Advocacy for working so tremendously hard on this project. I am grateful to others from across the Commission who also have weighed in. Thank you to each of the rulemaking teams. I have been impressed by your dedication, your patience with my hypotheticals, and your desire to protect investors’ ability to get good financial help in the form they want it.

Third, I want to express this agency’s commitment to monitor the situation to ensure that investors in all income and wealth brackets are able to choose either a broker-dealer or an investment adviser. Today’s package is designed to, among other objectives, encourage investors to ask questions, be skeptical, and seek the information they need to make good decisions. I believe that the balance we have struck is a good one. Regardless of the financial professional investors choose, they will work with someone who is legally obligated to work in their best interest.[5] Broker-dealers will face a new rule with new obligations that are designed to give us the ability to better protect investors from bad actors, while allowing good actors to use their judgment to make recommendations to their clients without fear of being second-guessed in the light of hindsight. The Commission, however, must watch during the implementation process and afterward to see whether we have indeed properly calibrated this rule. The falling number of broker-dealers[6] is a trend we want to arrest, not exacerbate. More competition is better for investors.

Fourth, I am pleased that we made some progress on the customer relationship summary, but there is more work to be done. There is value in getting to investors in a clear, understandable form certain basic information about the financial services a firm offers, the fees it charges, its disciplinary history, and the conflicts of interest it faces.[7] As compared to the proposal, we have afforded firms some more flexibility to meet the investor where she is—to present information in a visually appealing and creative format.[8] Yet we are such creatures of our paper-bound tradition that we cannot bring ourselves to give firms full permission to apply their creativity. As a more general project to improve the way our rules affect firms’ communication with investors, I will continue to urge the Commission to abandon our paper-as-default position and to open avenues for firms to speak more effectively with their clients—which might mean written disclosures in Spanish, video disclosures in American Sign Language, interactive disclosures on a tablet, or something more creative than this hopelessly old-fashioned regulator can envision.

Fifth, the compliance period that we are adopting is a very ambitious one.[9] Firms will need to start their implementation efforts immediately. I want you to update us frequently about how the process is going, what challenges you are facing, where guidance is needed, how we can coordinate effectively with FINRA, and whether you think you will need more time. I will be open to such requests, particularly if they come from people who are working diligently and in good faith to come into compliance with the new standard of conduct and disclosure requirements. I have particular concerns for small firms and broker-dealers who may have to change their names or registration status as a result of the rule we are adopting.[10] We have a tendency to underestimate just how many lawyers, operations people, business people, consultants, IT professionals, and dollars it takes to make our rules a reality. We understand that this is a big undertaking, but we believe it is one that will yield important benefits for investors.

Before I get to my questions, I have a Jeopardy! clue and answer. The category is “SEC Typos.” The clue is “This is the word we have misused repeatedly in our description of an adviser’s duty to its clients.” The question is: “What is ‘subrogate’?”[11] Accordingly, you will note that we have substituted the word “subordinate” for the word “subrogate” in the fiduciary interpretation.[12] I, who did not catch the typo, stand corrected.