After the landmark Dodd-Frank financial reform bill and continued calls for tighter scrutiny of the financial sector, 2012 brought a flurry of congressional hearings, public comments on rule proposals, and lobbying and public posturing by various stakeholders. Scores of new rules and regulations that could affect the advisory industry made their way through varying stages of development.
But for all the noise this year, what actually changed?
At a high level, enforcement actions at the hands of the feds continued to soar and thanks to new registration requirements, the SEC is now overseeing a larger portion of assets managed by the advisor sector. Elsewhere, a host of rulemaking proceedings were on the move in the SEC, FINRA and the treasury and labor departments, while debates continued in various congressional committees of jurisdiction.
Here are a few of the highlights from the regulatory front in 2012:
NEW REPORTING REQUIREMENTS
The implementation of some Dodd-Frank rules brought an influx of private-fund advisors registering with the SEC and shedding their previous exemption. And fund advisors who remained exempt -- including those advising venture-capital funds or small private funds -- had to file a Form ADV with the SEC for the first time.
Advisors to hedge funds, liquidity funds and private-equity funds also faced new reporting requirements; they now must report risks to the SEC (on Form PV), in accordance with the agency's new definition of "regulatory assets under management."
For midsize advisors, another new rule provided for a switch away from the SEC to state regulation if they managed less than $100 million in assets.
FINRA SUITABILITY RULE
In July, the Financial Industry Regulatory Authority implemented its new suitability guidelines, putting into place a framework stipulating that advisors only offer advice on transactions or investment strategies they believe to be in the best interest of their customers. That rule, which first won approval by the Securities and Exchange Commission in 2010, led to a surge in enforcement actions, but many industry stakeholders objected that some of the terms -- specifically, "customer" and "investment strategy" -- were overly broad.
In December, FINRA revised its guidance to clarify and limit the scope of the rule. Under the new interpretation, the term "customer" excludes certain potential investors and other brokers, effectively narrowing the definition to active account holders or those who buy a product on which the advisor receives commission. The term "investment strategy" still applies to recommendations on many specific asset classes, but was modified to exclude advice concerning non-security investments extended through the broker's outside activities.
MONEY MARKET FUND REFORMS
Outgoing SEC Chairman Mary Schapiro has been an enduring advocate for structural reforms to money market mutual funds, aimed at improving their resiliency and avoiding another situation when a government bailout might become necessary to backstop the industry and prevent broad destabilization. But her proposal -- that the value of funds should be allowed to float in accordance with the value of the underlying assets -- prompted widespread opposition among the fund industry, and in August, Schapiro tabled the issue.
But that action was hardly the last word on fund reform. The Financial Security Oversight Council, organized under the Treasury Department, is now overseeing the issue, and is still considering letting fund valuations float; alternative proposals include implementing a mandatory capital buffer. The FSOC began collecting comments on a menu of reform proposals in November, with the SEC on track to promulgate final rules next year.
UNIFORM FIDUCIARY STANDARD
As head of the SEC, Schapiro had also strongly supported extending the rules already in place for investment advisors to cover broker-dealers. But the push for a uniform fiduciary standard -- which counts broad support from both Wall Street and consumer advocates -- ran aground this year, pending further study.
Efforts to enact that measure, authorized (but not mandated) by the Dodd-Frank Act, are expected to resume under Schapiro's successor, Elisse Walter.
Meanwhile, a debate broke out on Capitol Hill midyear that involved dueling proposals for how to strengthen oversight of investment advisors. Two bills appeared -- one that would authorize the SEC to designate one or more self-regulatory organizations (or SROs) to conduct examinations of advisors, and another that would allow the SEC to collect user fees to expand its own review process. Earlier in the year, the agency acknowledged that it had only examined 8% of advisors in 2011, and 40% of registrants had never been examined.
But like so many other proceedings in Washington this year, the SRO debate flared up and ultimately petered out, with both legislative proposals resting in the House Financial Services Committee waiting to be revived another day. For now, the oversight regime for investment advisors -- which advocates of both bills agree is weak -- remains unchanged at the macro level.
RETIREMENT PLAN RULES
The Department of Labor continued to work on developing a rule that would apply a fiduciary duty to advisors who provide advice to retirement plans. The effort dates to an October 2010 proposed draft rule intended to guard against potential conflicts of interest in advisory services provided to IRAs and other plans.
Labor has been coordinating with the SEC and industry groups (not altogether successfully) to develop its rule, but has met with some fierce opposition. The Financial Services Institute, for one, warns the framework the department has advanced would ban the commission-based model. Despite delays in the drafting process, a reconstituted rule will likely materialize next year.
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