By By Robert H. Sitkoff — “Whether a financial advisor is an “investment advisor” or a “broker” (or neither) under the federal securities laws, an advisor may be an agent under the common law of agency.”
By Arthur B. Laby — Because investors reasonably expect that brokers will, in fact, operate in a fiduciary capacity, the SEC should impose a fiduciary duty on brokers that give investment advice.
Recent scandals, such as the controvery over Libor and the failure of the brokerage firm Peregrine Financial Group, underscore the severe problems within the financial industry. Such controversies have led savers to withdraw hundreds of billions of dollars from equity mutual funds. Are these events the new normal or are we at a breaking point?
Capitalism has played an important role in world history generally and in American history in particular. Nevertheless, today many Americans view capitalism with suspicion or even hostility. What’s needed is a remaking of the case for capitalism, which itself requires a restatement of capitalism’s old truths.
A discussion of the differences in the standards of investment advisers and brokers is essential amidst the calls for “harmonizing” the two. This paper seeks to highlight how these two standards differ in terms of the legal requirements and duties imposed on advisers and brokers.
On July 14, 2011 SIFMA submitted comments to the SEC on a proposed framework for establishing a uniform fiduciary standard of conduct for broker-dealers. SIFMA’s proposal departs from the fiduciary standard as set forth under the Advisers Act of 1940 and, if adopted, would be particularly harmful to retail investors.