A Changing Mosaic in SEC Regulation and Enforcement : Broker-Dealers and Investment Advisers

The 2010 Dodd-Frank Act directed the SEC to study the issue of whether the Commission should, by regulation, decree broker-dealers (“registered representatives”) subject to the same fiduciary standards applicable to investment advisers, applicable at least since SEC v. Capital Gains Research Bureau, 385 U.S. 180 (1963). The SEC completed such a study in 2011, predictably recommending that the Commission exercise the authority Dodd-Frank had given it, namely, waving its wand, declaring brokers fiduciaries. Many able academics and regulators have adumbrated the pros and the cons of such a regulatory step. To date, however, the SEC has done nothing, undoubtedly overtaxed with implementing both the JOBS Act (April 2012) and other Dodd-Rank schemata. No matter what the result, however, on the fiduciary duty issue, the purposes of this article are two in number: one, to point out the reasons, such as holding themselves out as financial advisers (“FAs”), that run-of-the mill brokers already may be fiduciaries, and two, the small upgrades that will result from such a regulatory action, such as a duty to recommend securities based upon the customer's best interests rather than just what is suitable