Tenth Circuit Court Of Appeals Exempts "Loss Leader" Advice From Fiduciary Rules Hot

The Tenth Circuit Court of Appeals determined a few weeks ago that insurance agents at Met Life are exempt from the definition of "investment advisor" even if their boss mandated that they dispense investment advice for free to all clients.

This means that firms that do not provide affiliates with "special compensation" for advice are effectively not subject to any sort of fiduciary code -- the advice can thus be not necessarily in the client's best interests as long as it is merely "suitable."

Previously, some thought that the fact that the advice was mandatory to meeting a firm's production rules made it central to a rep or agent's relationship with clients, and so would technically need to meet a fiduciary standard.

The appellate ruling negates that theory and even, lawyers point out, fails to give guidance on whether any form of disclosure is necessary.

As it is now, unless an advisor makes money from advice, it seems that the fiduciary standard doesn't apply.

Naturally, the regulators might end up clarifying the question on their own, but in the meantime, for better or worse, that's rule from above.

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