The courtroom’s choice “is instrumentally helpful for advocates of stronger fiduciary protections in funding recommendation to make that case,” Tierney mentioned.
Certainly, Ron Rhoades, affiliate professor of finance at Western Kentucky College and director of its private monetary planning program, mentioned in a latest e-mail that Reg BI “doesn’t impose a fiduciary obligation of loyalty” however “a brand new ‘greatest curiosity’ obligation that’s nonetheless within the means of being outlined and utilized.”
With a brand new DOL fiduciary rule on the horizon, he mentioned, “the fiduciary battlegrounds will proceed to be energetic spheres the place pro-fiduciary advocates might be pitted towards companies whose financial fashions are threatened by the fiduciary commonplace.”
Fiduciary Battleground
The Massachusetts Supreme Judicial Court docket choice “provides extra traction to the continuing motion within the market, aided by fiduciary advocates and federal and state securities regulators, to maneuver towards a bona fide fiduciary commonplace,“ in keeping with Rhoades.
A very powerful side of the Massachusetts choice, in keeping with Rhoades, “is that states should not preempted from adopting fiduciary commonplace by federal securities legal guidelines,“ nor by the SEC’s adoption of Reg BI.
Whereas the Massachusetts choice “just isn’t binding upon different state courts, nor on the federal courts, its precedent could nicely give impetus to a minimum of just a few different states to undertake fiduciary requirements for broker-dealers when offering funding recommendation to retail purchasers.“
An alert from the legislation agency Ropes & Grey concurred that the Massachusetts ruling “leaves the door open for different state regulators to set extra demanding requirements relevant to broker-dealers working of their states,“ and “raises a considerable menace of the very ‘patchwork of inconsistent state-level requirements’“ of which former SEC Chairman Jay Clayton warned.
Additional litigation in different state or federal jurisdictions could search to problem this reasoning.
Web Recommendation
The Ropes & Grey alert additionally warns that the Massachusetts ruling additionally applies to funding suggestions or recommendation supplied from exterior the state through the web.
For nationwide broker-dealers, together with these working web platforms, the choice “additional complicates compliance and will increase related prices in states that impose obligations, just like the Massachusetts Fiduciary Rule, that stretch past Regulation BI’s obligations,” the alert mentioned.
“Specific consideration might be required to evaluate what types of communications by broker-dealers concerning funding alternatives to retail traders may be construed as funding suggestions or recommendation topic to heightened state-level requirements,” the agency wrote.
For instance, in Robinhood’s case, Galvin “claimed Robinhood had inspired frequent, dangerous, and unsuitable buying and selling by retail traders, printed funding classes like ‘100 Most Well-liked’ or ‘High Movers,’ carried out methods to incentivize buyer engagement with its buying and selling platform, and that every of those practices was tantamount to creating funding suggestions to clients,” the alert mentioned.
Robinhood’s defenses to those arguments, the agency wrote, “have but to be addressed by the trial courtroom or within the Secretary’s administrative proceedings — because the litigation up to now has targeted on the legality of the Massachusetts Fiduciary Rule itself, not its utility to Robinhood’s enterprise.”
