Consumers who rely on the financial advice of experts are at an information disadvantage that may be exploited by advisers who are not required to make recommendations that are in the best interest of the customer.
An early legislative version of the 2010 Dodd-Frank Act would have eliminated the broker-dealer exception from the definition of investment adviser under the Advisers Act. If enacted, this change would have subjected brokers to a common-law fiduciary standard (like investment advisers), but was postponed to examine the consequences of this policy change.
It has been suggested that the imposition of a fiduciary standard on registered representatives would result in significant changes in how broker-dealers conduct business by limiting a representative’s ability to recommend commission investments, provide advice to middle-market clients, and offer a broad range of financial products.
We take advantage of differences in state broker-dealer common-law standards of care to test whether a relatively stricter fiduciary standard of care affects the ability to provide services to consumers. We find that the number of registered representatives doing business within a state as a percentage of total households does not vary significantly for states with stricter fiduciary standards.
A sample of advisers in states that have either a strict fiduciary standard or no fiduciary standard are asked whether they are constrained in their ability to recommend products or serve lower-wealth clients. We find no statistical differences between the two groups in the percentage of lower-income and high-wealth clients, the ability to provide a broad range of products including those that provide commission compensation, the ability to provide tailored advice, and the cost of compliance.
Financial advisers provide expert assistance selecting financial instruments for retail customers. Registered representatives of broker-dealers facilitate the sale of securities and often provide financial advice to clients who are less knowledgeable about the product. This imbalance of information has led to the imposition of a legal fiduciary standard when an informed agent is hired to make decisions on behalf of a less-informed client (Frankel 1983). In the absence of an informational imbalance between registered representatives (or brokers) and their customers, the primary service provided through broker-dealers is to sell retail financial products demanded by the customer. However, many broker-dealers have suggested through advertising and by referring to registered representatives with terms such as “financial planner” or “financial consultant” that their services include planning or consulting services that involve the provision of expert advice (Hung, Clancy, Dominitz, Talley, Berrebi, and Suvankulov 2008). Most consumers assume that advising services are provided by registered representatives of broker-dealers (Hung et al. 2008).
While consumers are generally unable to distinguish between investment advisers whose primary purpose is to provide investment advice and registered representatives whose advice is considered incidental to the sale of financial products, they are regulated by two different entities that apply different market conduct standards. Investment advisers are regulated by the Securities and Exchange Commission (SEC or Commission) under the Investment Advisers Act of 1940 (Advisers Act) as fiduciaries, and a fiduciary standard of care is applied to the advice given to their clients. Registered representatives of broker-dealers are regulated under the Securities Exchange Act of 1934 through the Financial Industry Regulatory Authority (FINRA), a self-regulatory organization. Registered representatives must meet a standard of suitability when providing information about financial products, and are not assumed to have a fiduciary responsibility toward customers.
The difference in regulation between investment advisers and brokers affects the market for financial advice. The sale of professional advisory services to a less-informed client involves significant potential agency costs that exist when the interests of the client and broker/adviser are not perfectly aligned (Jensen and Meckling 1976). These costs occur when the broker recommends products that benefit the broker to the disadvantage of the customer. Examples of agency costs include recommending products that have higher commissions or not taking the time to consider alternative financial strategies for a customer. It is possible that the application of a suitability standard to investment advice will lead to greater agency costs. A suitability constraint allows brokers to recommend products that are not necessarily in the best interest of the client but may be considered potentially suitable given the customer’s characteristics and needs. This latitude in product recommendation among registered representatives provides a greater opportunity to extract customer rents than would be possible under the constraints of a fiduciary standard (Cummings and Finke 2010). If the suitability standard provides greater opportunities to extract rents from clients, we would expect the broker-dealer industry to defend its ability to maintain this advantage by continuing the existing regulatory regime.
If, however, a fiduciary standard were applied to registered representatives whose sole purpose is to facilitate the sale of financial instruments within a competitive marketplace, the imposition of a fiduciary standard to these sales activities might have a negative impact on the ability of broker-dealers to provide a variety of financial products to consumers. Many consumers may demand products whose appropriate use is difficult for a registered representative to defend as being in the customer’s best interest. For example, there may be mutual funds that pay a commission to the broker that are less efficient than comparable mutual funds that pay no commission. The brokerage industry has argued that since moderate-income clients are less attractive to investment advisers, who are often compensated based on a percentage of assets under management, these clients often seek financial advice from registered representatives compensated through product commissions (Headley 2011). These less-wealthy clients may be less able to receive much-needed financial advice incidental to the sale of commission products if brokers incur increased liability under a fiduciary standard. The application of a standard of care that assumes a fiduciary relationship between registered representative and customer may constrain the ability to make product recommendations and limit the range of available financial products.
While the industry has suggested that fiduciary regulation will have an adverse impact on the industry, there are no existing empirical studies that examine the impact of a change in regulatory policy on the marketplace for financial advice. This study takes advantage of heterogeneity in broker-dealer regulation among states to test whether a relatively more strict application of a common-law fiduciary standard of care affects the number of registered representatives doing business within the state. We also conduct a survey to assess differences in perceived ability to provide financial products among states subject to stricter fiduciary standards. We find that the saturation of registered representatives within states does not vary significantly among states with different fiduciary regulation. When registered representatives in states that have a stricter fiduciary standard are asked whether they are constrained in their ability to recommend products, or whether they are unable to serve lower-wealth clients, we find no statistical difference between representatives from states that do and do not apply a common-law fiduciary standard.
On July 15, 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Section 913 of the Dodd-Frank Act required the SEC to conduct a study to evaluate, among other things, (1) the effectiveness of existing legal or regulatory standards of care (imposed by the Commission, a national securities association, and other federal or state authorities) for providing personalized investment advice and recommendations about securities to retail customers; and (2) whether there are legal or regulatory gaps, shortcomings, or overlaps in legal or regulatory standards in the protection of retail customers relating to the standards of care for providing personalized investment advice about securities to retail customers that should be addressed by rule or statute. In one of the early legislative drafts, Dodd-Frank would have eliminated the broker-dealer exception from the definition of investment adviser under the Advisers Act, but the legislation as adopted included a compromise to conduct further study of the issue.
In January 2011, the SEC released its Study on Investment Advisers and Broker-Dealers (Staff of the U.S. Securities and Exchange Commission 2011). In its report, the SEC staff noted that “the regulatory regime that governs the provision of investment advice to retail investors is essential to assuring the integrity of that advice and to matching legal obligations with the expectations and needs of investors,” and found that investors are often confused by differing standards of care that apply to investment advisers and broker-dealers. The SEC study recommended the adoption of a uniform fiduciary standard for investment advisers and broker-dealers that provides:
The standard of conduct for all brokers, dealers, and investment advisers, when providing personalized investment advice about securities to retail customers (and such other customers as the Commission may by rule provide), shall be to act in the best interest of the consumer without regard to the financial or other interest of the broker, dealer, or investment adviser providing the advice.
The SEC study recommends that the Commission, in implementing a uniform fiduciary standard, should engage in rulemaking and provide interpretive guidance addressing the two major components of a uniform fiduciary standard: the duties of loyalty and care. When addressing the duty of loyalty, the report suggests that a uniform fiduciary standard will obligate both investment advisers and broker-dealers to eliminate or disclose conflicts of interest. The report notes, “[t]he Commission should consider whether rulemaking would be appropriate to prohibit certain conflicts, to require firms to mitigate conflicts through specific action, or to impose specific disclosure and consent requirements.” When it comes to duty of care, the study suggests that minimum baseline professional standards should be adopted that could include, for example, specifying what basis a broker-dealer or investment adviser should have in making a recommendation to an investor.
Traditional Standards of Care for Investment Advisers and Broker-Dealers
Investment Advisers. Section 202(a)(11) of the Advisers Act defines an “investment adviser” as:
Any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation as part of a regular business, issues or promulgates analyses or reports concerning securities.
Section 202(a)(11)(C) of the Advisers Act excludes from the definition of an investment adviser any broker or dealer that meets the following requirements: (1) the performance of investment advisory services is “solely incidental” to the conduct of its business as a broker-dealer, and (2) no “special compensation” is received for advisory services.
Investment advisers owe their clients a fiduciary duty of care (SEC v. Capital Gains Research Bureau Inc. 1963; Transamerica Mortgage Advisors Inc. 1979). The fiduciary standard that applies to investment advisers encompasses the adviser’s entire relationship with its clients and prospective clients (SEC v. Capital Gains Research Bureau Inc. 1963) and imposes a duty of loyalty and a duty of care.
The duty of loyalty requires a fiduciary to act in the best interests of the client, even if doing so may not be in the financial interests of the fiduciary. Under the duty of loyalty, a fiduciary is required to disclose potential conflicts of interest so that the client is aware of those matters where the adviser, either consciously or unconsciously, might render advice that was not in the best interest of the client (SEC v. Capital Gains Research Bureau Inc. 1963).
The duty of care requires a fiduciary to “make a reasonable investigation to determine that it is not basing its recommendations on materially inaccurate or incomplete information” (U.S. Securities and Exchange Commission 2003). Investment advisers, as fiduciaries, must make suitable and reasonable investment advice to their clients based on the client’s financial situation and investment objectives.
Broker-Dealers. Traditionally, a broker-dealer has acted as an intermediary between a buyer and seller of securities. Unlike investment advisers, who are subject to a fiduciary standard, broker-dealers have traditionally been subject to a less stringent “suitability standard.” The suitability standard requires broker-dealers to provide suitable investments to customers, but does not require the broker-dealer to act in their best interest.
Broker-dealers do, however, have an obligation to deal fairly with customers. Courts have found that broker-dealers make an implicit representation to customers that they will be treated fairly in a manner that is consistent with the standards of the profession (Charles Hughes & Co. v. SEC 1943). Through various rulemaking initiatives, FINRA (and its predecessor organization, the National Association of Securities Dealers, or NASD) has helped define the duties implied by this fair dealing standard. Among these duties are requirements for broker-dealers to have a reasonable basis for recommendations that are made after considering the customer’s financial situation (a “suitability standard”) (NASD Rule 2310); engage in fair and balanced communications with the public (NASD Rule 2210(d)); provide timely and adequate confirmation of transactions; provide account statements (NASD Rule 2340); disclose conflicts of interest (NASD Rule 2720; NASD Rule 3040); receive fair compensation in agency and principal transactions (NASD Rule 2440; FINRA Rule 5110(c)); and give customers an opportunity to resolve disputes through arbitration.
Broker-dealers typically hire agents to provide their services directly to the public. Stockbrokers, for example, are considered agents of a broker-dealer. This agency relationship further complicates matters (and leads to confusion by the public about the varying standards that apply to investment advisers and broker-dealers) because an agent owes his or her primary duty to the principal (which, in this case, would be the broker-dealer). The duty of loyalty owed to the principal (broker-dealer) transcends any duty that the agent may have to a customer while acting in the role of an intermediary.
While broker-dealers are not subject to the fiduciary standard under federal law, state common law may impose a fiduciary standard on broker-dealers providing services within that state in addition to rules and regulations imposed by the federal government for transactions and services. Courts in four states have chosen to impose an unambiguous fiduciary standard on broker-dealers.
As a response to the regulatory problems and perceived fraud in financial markets that contributed to the recent financial crisis, Congress passed, and the president signed into law, the Dodd-Frank Act. Prior to the financial crisis, some private self-regulatory organizations, such as Certified Financial Planner Board of Standards Inc. (CFP Board) sought to distinguish designees from other providers of financial services by holding certificants to a fiduciary standard of care when dealing with clients. These events, along with a perception by lawmakers that higher standards should be applied to providers of financial products and advice, led Congress to call for the completion of a study by the SEC to determine whether it would make sense to impose a unified fiduciary duty of care on both investment advisers and broker-dealers when providing personalized investment advice.
While there has been some recent convergence of the regulatory duties performed by investment advisers and broker-dealers over time, particularly in the area of disclosure, there remain some differences in the scope of services provided by these professionals. Investment advisers have traditionally served higher-income/higher-net-worth clients and are often compensated on an assets under management basis. Depending upon the scope of the engagement, and whether they hold discretion, investment advisers may also hold a duty of care to clients to carefully monitor investment performance. Beginning in the late 1980s and early 1990s, the landscape for the delivery of investment advice began to shift when broker-dealers began to increasingly offer financial advice, relying on the “solely incidental” exemption in the Advisers Act or becoming dually registered as investment advisers to provide fee-based advisory services. The investment advice provided on the brokerage side, however, tends to be episodic and focused on specific products and transactions that are suitable for a given client. Broker-dealer agents are usually compensated on a commission basis, and traditionally do not owe customers an ongoing duty to monitor their client’s financial position. Broker-dealers have claimed to provide lower-cost advisory services, offset by transaction fees, for customers who do not wish to pay, or cannot afford to pay, the higher direct fees charged by investment advisers.
Due, in part, to the imposition of the suitability (as opposed to fiduciary) standard on broker-dealers, the current debate over the costs of providing advisory services to retail customers has focused on the potential economic effects of broker-dealers being held to the higher fiduciary standard of care. The brokerage industry argues that the imposition of a fiduciary standard will result in an increased risk of a fiduciary breach that would have the effect of increasing the compliance and liability costs of providing traditional broker-dealer services, and, consequently, may make those services too expensive for many lower- or middle-income clients (Headley 2011).
Further, while imposing a fiduciary standard of care may provide additional protections for brokerage customers, critics assert that the imposition of such a standard may result in some customers losing access to financial advice if the cost of that advice rises because of the imposition of the standard, or, alternatively, some customers may find that they will have to pay more for the investment advice they receive without experiencing a significant change in service resulting from the increased regulatory and liability costs imposed by regulation.
In order to test claims that the brokerage industry and its customers would be adversely affected by the imposition of a stricter fiduciary standard, this study surveyed registered representatives (brokers) of broker-dealers in states that impose a fiduciary duty on the provision of investment advice to retail investors, and in states that do not impose such a duty. The survey avoided brokers who are dually registered as investment adviser agents and who, in that capacity, provide fiduciary investment advice. If the presence of a fiduciary duty for brokers results in higher costs associated with that standard, it would suggest that states that impose the higher fiduciary standard have a lower saturation of brokers to households within that state. This would imply that there is an additional service cost attached to imposition of the fiduciary standard by reducing the number of service providers for lower- or middle-income customers.
Differentiating State Law
States were divided into three categories: (1) states that unambiguously apply a fiduciary standard to brokers in that state, (2) states that unambiguously apply no fiduciary standards to brokers, and (3) states where there is evidence of a limited fiduciary standard applied to brokers.
Four states have imposed an unambiguous fiduciary standard on broker-dealers (fiduciary states): California, Missouri, South Dakota, and South Carolina. California, Missouri, and South Dakota courts expressly impose a fiduciary duty on broker-dealers. California courts, for example, have held that a broker’s fiduciary duty requires that he or she act in the highest good faith toward the customer (Hobbs v. Bateman Eichler, Hill Richards Inc. 1985). Missouri courts have held that “stockbrokers owe customers a fiduciary duty. This fiduciary duty includes at least these obligations: to manage the account as directed by the customer’s needs and objectives, to inform of risks in particular investments, to refrain from self-dealing, to follow order instructions, to disclose any self-interest, to stay abreast of market changes, and to explain strategies” (State ex rel Paine Webber v. Voorhees 1995). South Dakota courts have held that securities brokers owe the same fiduciary duties to customers as those owed by real estate brokers, including a duty of utmost good faith, integrity, and loyalty, and a duty to act primarily for the benefit of another (Dismore v. Piper Jaffray Inc. 1999). While South Carolina courts have not expressly stated that broker-dealers must live up to a fiduciary standard, the courts have imposed duties commensurate with those required when a fiduciary duty applies, including a duty to refrain from acting contrary to a customer’s best interest, avoid fraud, and communicate information to the customer that would be in the customer’s advantage (Cowburn v. Leventis 2005). South Carolina courts have clearly imposed a duty of care commensurate with the duty required by a fiduciary that exceeds the suitability standard that applies under federal law to broker-dealers.
States that do not impose a fiduciary standard on broker-dealers are Arizona, Arkansas, Colorado, Hawaii, Massachusetts, Minnesota, Mississippi, Montana, New York, North Carolina, North Dakota, Oregon, Washington, and Wisconsin. Courts in Arkansas, Hawaii, Massachusetts, Montana, and Washington have expressly stated that, under state law, a fiduciary duty does not exist between a client and a broker-dealer. Courts in Arizona, Colorado, Mississippi, New York, North Carolina, North Dakota, and Oregon have all concluded that broker-dealers do not owe a fiduciary duty to holders of non-discretionary accounts. In Minnesota and Wisconsin, state law provides that a broker does not owe a fiduciary duty to customers absent a special agreement between the parties.
The remaining states (Alabama, Alaska, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Nebraska, New Hampshire, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wyoming) impose either a limited fiduciary standard, or the courts have interpreted state law to impose duties that appear to be fiduciary in nature. In this study, these states are referred to as quasi-fiduciary states. Quasi-fiduciary states impose standards that exceed the suitability standard set forth under FINRA rules, but do not expressly classify broker-dealers as fiduciaries. The duties imposed, and the manner in which they are imposed, vary among these states. In Alaska, for example, courts have found that fiduciary duties arise “when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence” (Enders v. Parker 2003). While the Enders court did not specifically consider whether a fiduciary duty is imposed on a broker-dealer, the court’s standard for imposing a fiduciary duty could reasonably be interpreted to create a duty for a broker-dealer in some circumstances.
Other states, such as Connecticut, refrain from imposing an express fiduciary duty, but did find an agency relationship between a broker and a client that required the broker to exercise “reasonable skill, care, and diligence” (Precision Mechanical v. T.J.P Fund 2003). Connecticut’s approach is intriguing in that an agency relationship exists with both the registered representative’s employer (the broker-dealer) and with the customer. Connecticut law, as currently expressed, cannot impose a fiduciary duty on registered representatives due to the inherent conflict of interest created by the state’s imposition of a customer-representative agency relationship, which suggests that the registered representative serves two masters, not one. Iowa courts have not traditionally imposed a fiduciary duty on a broker-client relationship, but do so when certain circumstances exist, such as when the client lacks prior investment experience, the advice offered by the broker-dealer is significant, the client relies (to his or her detriment) on the advice provided by the broker-dealer, and the broker-dealer was aware that the client had not read any literature concerning the subject (McCracken v. Edward D. Jones & Co. 1989).
States that impose a limited fiduciary duty include Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Maryland, Michigan, Ohio, Pennsylvania, Tennessee, and Texas. Almost all of these states impose a standard higher than the suitability standard imposed by FINRA for non-discretionary accounts. Louisiana does not expressly impose a standard of conduct higher than the suitability standard, but does require a court to consider a variety of circumstances when determining whether a higher standard should exist. The items that Louisiana courts must consider include the relationship between the broker-dealer and client, the nature of the account, and the sophistication of the customer (Beckstrom v. Parnell 1998).
Criticisms of Imposing a Fiduciary Standard
Differing client characteristics have resulted in different business models used by investment advisers and broker-dealers to deliver cost-effective advice to their clients. Imposing a uniform fiduciary standard on both investment advisers and broker-dealers may have unintended consequences.
Some in the brokerage industry have argued that the imposition of fiduciary regulation will lead to reduced consumer access to financial advice, particularly among middle-class households that may not have access to investment advisers. Many broker-dealers provide financial services other than the sale of securities to their clients, including insurance products and brokerage services to qualified retirement plans. The president of the National Association of Insurance and Financial Advisors (NAIFA) testified before the House Committee on Financial Services that broker-dealers are typically subject to both additional state and federal regulation for these services, and these regulations generally provide constraints on behaviors that may be considered abusive (Headley 2011).
Imposing the higher fiduciary standard that currently applies to investment advisers may increase the compliance costs of broker-dealers. A study conducted by NAIFA in 2010 found that an unintended consequence of imposing a uniform fiduciary standard would be to “negatively impact product access, product choice, and affordability of customer services for those customers who are in most need of these services” (Headley 2011). Specifically, the study indicated that imposition of a uniform fiduciary standard may “create the potential for market disruption and reduced choices for investors when it comes to who they work with and how they pay for services” (National Association of Insurance and Financial Advisors (in Partnership with LIMRA) 2010). The NAIFA study indicated that most of its members are “concerned that the additional regulatory requirements and potential legal implications of a fiduciary standard could significantly increase their compliance costs.” (Headley 2011; National Association of Insurance and Financial Advisors (in Partnership with LIMRA) 2010). In the NAIFA study, 65 percent of NAIFA members indicated that if compliance costs rose by 15 percent, they would limit their practice to affluent clients only (31 percent of those surveyed), would not offer securities to their clients (20 percent of those surveyed), or would increase fees for their clients (14 percent of those surveyed) (Headley 2011).
An SEC staff study indicated that investors “generally were satisfied with their financial professionals” (Staff of the U.S. Securities and Exchange Commission 2011), but that customers are confused with the varying standards that apply to different types of financial advisers and, based on this conclusion, recommended the adoption of a uniform fiduciary standard. While the industry raised concerns that imposing a uniform standard that increases compliance costs for broker-dealers may result in limited access to suitable investment advice for middle-income clients, the SEC staff noted the possibility that the change in standards might result in reduced administrative and compliance costs.
Opponents of the fiduciary standard are often criticized for having no data to substantiate claims about increased costs that may arise upon imposition of a uniform fiduciary standard (Consumer Federation of America 2011). In particular, proponents of a uniform fiduciary standard assert that “claims about increased liability costs associated with a fiduciary duty are … unsupported and ignore the legal environment in which brokers currently operate” because “the SEC proposal makes clear that it intends to provide extensive guidance to assist brokers in implementing the fiduciary standard” (Consumer Federation of America 2011). Proponents of a uniform standard claim that the SEC proposal “would not require brokers to charge fees,” and that the proposal preserves “the ability of brokers to offer transaction-based advice … [while] at the same time … rais[ing] the standard that applies to those transaction-based recommendations” (Consumer Federation of America 2011).
Imposing a fiduciary standard on transaction-based advice may increase the potential for legal liability of the registered representative, requiring the broker to be compensated for that additional risk. NAIFA members have expressed concern that the increased duties they owe transactional clients under a fiduciary standard may result in potential legal implications that increase their cost of doing business (National Association of Insurance and Financial Advisors (in Partnership with LIMRA) 2010).
In order to estimate how the imposition of a stricter universal fiduciary standard will affect the provision of financial advice within the brokerage industry, we obtained the names and addresses of 544,000 registered representatives active in November 2011, and sorted them into categories based on the application of a fiduciary standard. There are four states that apply a strict fiduciary standard, 14 that apply a limited fiduciary standard, and 32 states (and the District of Columbia) that apply no fiduciary standard.
Our objectives were to assess perceived differences in business conduct among registered representatives sorted by fiduciary regulation and to assess the market saturation (representatives as a proportion of total households) of registered representatives among these states. To assess whether registered representatives’ business conduct differs in states that apply a strict fiduciary standard, we developed a survey among a sample of registered representatives in states that apply no fiduciary standard and states that provide a strict fiduciary standard. The survey was conducted in November and December 2011. Participants were drawn randomly from both categories of states and were asked 12 questions. These questions were based on brokerage industry statements and testimony before Congress suggesting that a stricter fiduciary standard will result in differences in ability to serve moderate-wealth customers, offer a variety of products, and provide product recommendations that are in the best interest of their customers—as well as representatives potentially experiencing a greater compliance burden.
Broker-dealers in fiduciary and non-fiduciary states were asked the following questions:
Are you a registered investment adviser? (If so, survey is over.)
What percentage of your clients have incomes of less than $75,000?
What percentage has investable assets of over $750,000?
Are you able to serve the financial needs of low- to moderate-wealth clients?
Do your state’s security regulations limit your ability to recommend a broad range of financial products?
Do you offer your clients a choice of financial products that meet their financial needs and objectives?
Do you provide advice tailored to the specific needs of your clients?
Do you feel that less-affluent clients avoid obtaining your services due to cost?
Are you able to recommend products that provide a commission?
How significant is the cost of compliance?
Do you feel that you make product recommendations that are in the best interest of your client?
Among the following options, which do you consider to be the most important single factor in pricing your investment advice to clients: competition in the marketplace, firm brand, personal qualifications, legal and compliance burden, or other?
In order to provide insight into whether the imposition of stricter fiduciary standards leads to reduced supply, we compared the saturation of registered representatives within the total population of states sorted into the three fiduciary categories (strict, limited, and no fiduciary standard). Only registered representatives who have completed Series 6 or Series 7 examinations were included in the analysis.1 We provide both a descriptive comparison of saturation among states and a multivariate analysis that includes dummy variables for strict fiduciary and non-fiduciary standards with limited fiduciary as the reference category. Because of the small sample size (50 states and the District of Columbia), we include one control variable to account for the log of mean household income within the state.
New York housed five of the 17 largest broker-dealer firms in the United States in 2011 (InvestmentNews 2012). The saturation of brokers within New York is more than three times the national average and 44 percent higher than the second largest state (Connecticut). Because New York is the traditional center of the brokerage industry and may include a large number of registered representatives not primarily engaged in selling securities directly to individual clients, we include descriptive statistics with and without New York state and include an additional multivariate analysis with a dummy variable to control for the New York effect.
We also estimate the possibility that representatives living within fiduciary states will see less benefit to regulation under the Securities Exchange Act, and subsequently register as investment advisers through the Securities and Exchange Commission. We collect registered investment adviser (RIA) assets by state using publicly available data through SEC filings and compute mean assets per household by state fiduciary status and run a multivariate analysis using the natural log of RIA assets per household as the dependent variable.
Descriptive statistics summarizing the responses received from a random survey of 207 registered representatives in the four strict fiduciary states and the 14 non-fiduciary states are presented in Table 1. The percentage of clients who have an income of less than $75,000 is statistically equal between both groups, and there is no statistically significant difference in either the percentage of high-wealth clients or in the percentage of brokers who believe they serve the needs of low- and moderate-wealth clients. Nearly all respondents believe they are able to provide products and advice that meet the needs of customers. The percentage who respond that they are able to recommend commission products is 88.5 percent in strict fiduciary states and 88.2 percent in non-fiduciary states. The largest percentage point difference among any of the questions is whether the cost of compliance is significant. Nearly 71 percent of respondents in fiduciary states felt the costs were significant compared to nearly 62 percent in non-fiduciary states. This difference, and that of all other questions in the survey, was not statistically significant.
Mean rates of broker saturation calculated as the number of registered representatives divided by the number of households within the state are presented in Table 2. There is a wide range in saturation rates among states, from a low of 1.31 per 1,000 households in New Mexico to a high of 13.41 in New York. Average saturation rates are lowest among states with a limited fiduciary standard (3.81) and highest among states with no fiduciary standard (6.33). However, the saturation rates were nearly identical among fiduciary categories when New York is excluded from the non-fiduciary states. Saturation rates are 3.96 for strict fiduciary states, 3.81 for limited fiduciary, and 4.04 for non-fiduciary states.
We then take Missouri, an average-size state with a fiduciary standard, and compare it with other states that have a population between 2 million and 3 million households (Table 3). The broker saturation rate in Missouri (2.65) is equal to that of Tennessee (a limited fiduciary state) and comparable to non-fiduciary states with similar income levels (Arizona is 3.12, Washington is 2.54). Other states with higher incomes have higher saturation rates.
In order to control for state saturation differences that may be caused by differences in income within states, we run a regression modeling individual state saturation rate as a function of fiduciary status and log household income. Results in Table 4 show that there is no statistical difference in saturation rates among fiduciary and non-fiduciary states relative to the reference group of limited fiduciary states. When a dummy variable is included to account for the elevated saturation within New York, the coefficient suggests that the saturation rate in New York is 8.3 points higher than the predicted rate. Fiduciary status variables remain statistically insignificant. There is no evidence that the average amount of assets managed by investment advisers is greater in states with either weaker or stronger fiduciary standards, which suggests that representatives within stricter fiduciary states (or representatives with greater assets under management) are no more likely to switch regulatory regimes.
This study explores the regulation of registered representatives of broker-dealers in order to estimate whether the proposed application of a universal fiduciary standard will have a significant impact on the financial adviser industry. We take advantage of differences in the application of a fiduciary standard to representatives among states in order to test whether representatives already subject to a stricter fiduciary requirement are affected by the higher standard. We conducted a survey of 207 representatives within the four states that apply a strict fiduciary standard and the 14 states that apply no fiduciary standard and find no statistical differences between the two groups in the percentage of lower-income and high-wealth clients, the ability to provide a broad range of products including those that provide commission compensation, the ability to provide tailored advice, and the cost of compliance.
We then compare the ratio of registered representatives to total households among states within the three fiduciary regimes. When New York (which houses a disproportionate proportion of broker-dealer firms) is excluded from the non-fiduciary states, the saturation rate is almost identical between fiduciary, limited fiduciary, and non-fiduciary states. A comparison of a moderate-size state with strict fiduciary regulation (Missouri) with non-fiduciary and limited-fiduciary states of a similar population suggests a strong similarity among states with similar incomes.
A multivariate analysis of broker saturation that controls for fiduciary and non-fiduciary regulation as well as state mean income yields no significant fiduciary effect, even with New York included as a non-fiduciary state. The addition of a dummy variable to account for the New York effect suggests that New York’s saturation rate is inflated by 8.3 representatives per thousand households.
Empirical results provide no evidence that the broker-dealer industry is affected significantly by the imposition of a stricter legal fiduciary standard on the conduct of registered representatives. The opposition of the industry to the application of stricter regulation suggests that agency costs that exist when brokers are regulated according to suitability are significant. Imposition of a universal fiduciary standard among financial advisers may result in a net welfare gain to society, and in particular to consumers who are ill-equipped to reduce agency costs on their own by more closely monitoring an adviser with superior information, although this will likely occur at the expense of the broker-dealer industry. These results provide evidence that the industry is likely to operate after the imposition of fiduciary regulation in much the same way it did prior to the proposed change in market conduct standards that currently exist for brokers.
This constraint excludes less than 5 percent of the original sample and has no impact on the empirical results.
Beckstrom v. Parnell, 730 So2d 932 (Louisiana Appellate Court 1998).
Charles Hughes & Co. v. SEC, 139 F.2d 434 (2d Cir. 1943), cert denied, 321 U.S. 786 (1944) (U.S. Court of Appeals for the Second Circuit 1943).
Consumer Federation of America. 2011. Response to Arguments About Fiduciary Duty ‘Unintended Consequences.’
Cowburn v. Leventis, CCH Par 75,542 (South Carolina Court of Appeals May 16, 2005).
Cummings, B., and M. Finke. 2010. “The Economics of Fiduciary Investment Advice.” Available at SSRN: http://ssrn.com/abstract=1701181.
Dismore v. Piper Jaffray Inc., 593 N.W.2d 41 (S.D. 1999).
Enders v. Parker, 66 P.3d 11 (Alaska 2003).
Frankel, T. 1983. “Fiduciary Law.” 71 California Law Review 795 (May).
Headley, T. 2011. “Ensuring Appropriate Regulatory Oversight of Broker-Dealers and Legislative Proposals to Improve Investment Adviser Oversight.” Testimony offered to the House Committee on Financial Services, Subcommittee on Capital Markets and Government Sponsored Enterprises (Sept. 13).
Hobbs v. Bateman Eichler, Hill Richards Inc., 165 Cal. App. 3d 174, 210 Cal. Rptr. 387 (California Court of Appeals 1985).
Hung, A. A., N. Clancy, J. Dominitz, E. Talley, C. Berrebi, and F. Suvankulov. 2008. Investor and Industry Perspectives on Investment Advisers and Broker-Dealers. Santa Monica, California: RAND Corporation.
InvestmentNews. Broker-Dealer Rankings. www.investmentnews.com/section/broker-dealer-data-rankings.
Jensen, M., and W. Meckling. 1976. “Theory of the Firm: Managerial Behavior, Agency Costs, and Ownership Structure.” Journal of Financial Economics 3, 4: 305–360.
McCracken v. Edward D. Jones & Co., 445 N.W.2d 375 (Iowa Appellate Court 1989).
National Association of Insurance and Financial Advisors (in Partnership with LIMRA). 2010. “Facts at a Glance: Results from a LIMRA Survey of NAIFA Members.”
Precision Mechanical v. T.J.PFund, CA 90-0416692, 2003 Ct. Sup. 14518 (Connecticut Superior Court December 22, 2003).
SEC v. Capital Gains Research Bureau Inc., 375 U.S. 180 (U.S. Supreme Court 1963).
Staff of the U.S. Securities and Exchange Commission. 2011. Study on Investment Advisers and Broker-Dealers (January).
State ex rel Paine Webber v. Voorhees, 891 S.W.2d 126 (Mo. 1995) en banc (1995).
Transamerica Mortgage Advisors Inc., 444 U.S. 11 (U.S. Supreme Court 1979).
U.S. Securities and Exchange Commission. 2003. Proxy Voting by Investment Advisers, Investment Advisers Act Release No. 2106 (Jan. 31).