The nation's largest financial planners association today sued the Securities and Exchange Commission, arguing that stock brokers who act like financial planners should not be exempt from federal standards requiring them to put client interests ahead of their own. The lawsuit is supported by the consumer groups, Consumer Federation of American, Consumers Union, Consumer @ction and Fund Democracy, an advocacy group of mutual fund shareholders. In its lawsuit, the Financial Planning Association argues that brokerage firms that hold themselves out to the public as advisers should be subject to the fiduciary duties and disclosure requirements of the Advisers Act, just as financial planners are. "The SEC has given brokers a wholesale exemption from the Advisers Act that Congress never intended," said Barbara Roper of Consumer Federation. "The recent mutual fund scandals provide ample evidence of the enormous gap between the advisory image brokers promote and the seamy reality of their conduct. This is the predictable result of allowing advisory services to be offered under a sales-oriented standard of conduct." Since the mid-1990s, stock brokerage firms, which sell securities and other products, have been adapting their services to more closely resemble those of financial planners, who offer comprehensive financial plans and also sell or recommend investments. Financial planners are regarded as advisers and regulated under the Investment Advisers Act of 1940, which mandates a fiduciary duty to place the client's interests ahead of their own, to insure that investments are suitable, to provide full disclosure about their services, compensation and any conflicts of interests. In 1999, the SEC proposed a rule that would have exempted brokers who appeared to be crossing into financial planning territory -- even those who offered investment advice, assets managed for a fee and other services -- from the Advisors Act and to continue operating under the less-stringent Exchange Act. Under that act, the advice given to the investor is considered "solely incidental" to the investment products sold.
The agency sent the proposed rule out for comment and in five years has yet to act. "Clearly, consumers, financial planners, and compliance professionals still do not know what the SEC meant under the rule proposal," said Elizabeth Jetton, CFP, president of the FPA. "However, instead of attempting to define a difficult legal concept, we believe the public would be better served by requiring brokers to operate under the higher standards of investor protection afforded by the Advisers Act." SEC officials were unavailable for comment.