The Fiducial Disclosure Act of 2010 requires the disclosure of financial advisers who engage in any “financial transaction or investment activity” in which they make a profit or are required to disclose an interest in any company or other entity.
The act also requires the Department of Labor to create a “Financial Disclosure Review Task Force” to advise on how to implement the disclosure requirements.
The Task Force was formed by President Barack Obama and Labor Secretary Tom Perez, a former Citigroup executive.
The task force has received bipartisan support from Republicans and Democrats, including the chairman of the House Ways and Means Committee, Rep. Paul Ryan, R-Wis.
“This is a bipartisan effort to ensure that financial advisors do not profit from their relationships,” Ryan said in a statement.
“Financial advisers are essential to our economy and should not be allowed to profit from the transactions that they conduct with our clients.
We urge the Obama Administration to take immediate action to update this law and put an end to financial advisor profiteering in the United States of America.”
But, as a financial services industry leader, the Obama administration has faced opposition from other regulators who argue that the law does not require financial advisers to disclose their investment in companies.
In February, a panel of federal appeals courts upheld the financial advisers’ right to practice law as long as they did not make a “material contribution” to any corporation.
The panels decision is likely to affect other financial adviser-related regulations that are pending before the U.S. Supreme Court.
In a March ruling, a three-judge panel of the 9th U.P. Circuit Court of Appeals said that the federal law does require financial advisors to disclose any investment in a corporation or partnership.
“The fiduciary duty to disclose the financial interests of a client to his or her fiduciaries, regardless of the relationship, does not prohibit financial advisors from making a profit from investments in their own firms,” the court wrote.
“As long as the fiduciers do not make any material contribution to the corporation or its subsidiary, they are not required to identify those investments and to disclose them.”
The appeals court ruled that the fiducial disclosure requirements do not require a financial advisor to make a material contribution, however.
“A fiduciaire, not a lawyer, is not required, in the ordinary course of his or any other business, to disclose to his client’s fiduciars any financial transaction or other investment,” the panel said in its opinion.
“But a fiduciar is obligated to disclose a financial transaction to his clients and to the public, and he must also make a disclosure in writing of the transaction.
That disclosure, and the fiduistic duty to identify the investment in question, does require a fiducian to disclose in writing to his fiduciari’s client and to his public relations firm.”
Fiduities that are not disclosed on their forms, however, are subject to the disclosure requirement.
Under the Financial Services Investment Act, financial advisors are required by law to disclose all transactions with clients, including investments in stocks and mutual funds.
In December, the Justice Department filed a petition with the U,S.
Court of Federal Claims seeking to overturn a judge’s decision that the disclosure obligations of financial advisors apply to all financial institutions, including brokers, dealers and other financial intermediaries.
The case is S.W.A.R. v.
The City of New York, No. 08-1629, U.s.
District Court, Southern District of New Jersey (N.J.).
The government filed a request for the rehearing of the case in April, and it was granted.
“If the court concludes that the financial disclosure obligations applicable to broker-dealers, dealers, mutual fund dealers, and other non-financial entities apply to financial advisors, then the government would be required to provide disclosures in all financial transactions to all customers,” according to a government press release.
The government’s petition also seeks to overturn Judge Peter C. Crenshaw’s order in the Fiduity Disclosure Task Force’s May ruling that said the disclosure provisions did not apply to brokers, financial advisers, dealers or other financial entities.
“It is imperative that the administration follow the law, not the law’s will, and not take the path of least resistance in this matter,” said Sen. Elizabeth Warren, D-Mass., in a March interview with CNBC.
“I think it is important for people to understand that there are fiduciarial duties that need to be met by all of us.”
“Financial advisors who engage the kind of unethical behavior that they are accused of doing in their employment should be held to a higher standard of conduct than those who do not engage in these practices,” said Senate Finance Committee Chairman Max Baucus, D of Montana.
“And that includes financial advisors who do engage in unethical conduct.”