September 21, 2004
I am requesting that the Commission withdraw the Rule for reasons of obvious violation of both the letter and spirit of the Administrative Procedures Act, to reduce consumer confusion about advisers and to re-adhere to the clear standards of existing federal securities laws.
As a result of the Commissions inaction since the Rule was proposed in 1999, consumer confusion has compounded which may help explain why major consumer groups oppose the Commissions no-action stance. In one fell swoop, the Commission gave the brokerage industry a free pass on mandated disclosure requirements and liability exposure that real advisers, i.e. those subject to the fiduciary standards of the Advisers Act, under the convenient fiction that a brokers advice is solely incidental.
No further away from the Commission than their television is ample proof of the quantity of the brokerage ads that stress how un-incidental their advice is. Please also notice the actors extolling the value of that solely incidental advice in contrast to the real advisers regulated under the existing Act who are strictly prohibited from employing any type of testimonial.
Further evidence of the Commissions lack of oversight with its proposed Rule can be found with the help of a magnifying glass in the allegedly prominent disclosure that fee accounts are in fact brokerage accounts, as seen in countless brokerage ads. By failing to enforce even what minimal standards the Rule does contain, the Commission has further weakened consumer confidence in its protective role.
Compounding a growing frustration with the Commissions handling of its guardianship role, the Rule chooses to completely ignore the application of the Adviser Act to the requirement that real advisers must meet to completely disclose conflicts of interest, if any, disciplinary history and their fiduciary obligation to place their clients interest first -- none of which are required from brokers who may act as if they were advisers under the Rule.
The public must be astonished that despite a veritable fog of scandal, fraud and corruption pouring out of Wall Street for the past several years, the Commission has felt no sense of urgency to withdraw the Rule in order to uniformly re-apply well established federal security standards to protect consumers. Instead, it seems as if the Commission consciously chose inaction which has fostered non-disclosure, lack of application of fiduciary standards and a continuation of the same old conflicts of interest that continue to disadvantage the consumer -- thanks to the proposed Rule.
The Rule as proposed and neglected for four years is a really bad idea if it matters to the Commission that consumers should have more clarity, not less, as they try to make well informed economic choices about how they will obtain financial advice and products.
Withdrawing the Rule will be a step in the right direction to re-establish the Commissions credibility and to serve the public interest ahead of all others.
Thank you for considering my opinion.