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The Securities and Exchange Commission's lawsuit against Goldman Sachs may well be the catalyst for setting a universal fiduciary standard for the financial advisory industry.
The case adds new urgency to the debate over whether legislators should establish a single fiduciary standard for everyone who dispenses financial advice, according to legal experts.
Knut Rostad, chairman of the Committee for the Fiduciary Standard, said during a conference call: "It is concrete and specific as to what it is, as opposed to the pitchfork-storming-Wall Street view of this."
Rostad said the government's civil case, as it reveals Goldman's practices, could provide a clear contrast between the fiduciary standard and the suitability standard-something that has been a source of confusion.
For its part, Goldman maintains that it isn't a fiduciary. In testimony before the Financial Crisis Inquiry Commission on Jan. 13, Goldman Sachs CEO and chairman Lloyd Blankfein said the investment firm was instead a "market maker" that sells products as a principal.
Chip Roame, managing principal of Tiburon Strategic Advisors, says that investors need to clearly understand whether their advisors are acting in their best interests or "just selling them." Roame also notes that there will now certainly be more regulation, not less.
Indeed, if the law doesn't change Goldman's responsibility, then investors can do it themselves, says Tamar Frankel, a professor of law at Boston University. "There comes a point when the investors have to make a decision and exercise some pressure," she says.
James Cox, a Duke University law professor believes a universal fiduciary standard "would roll away some of the mist of what Goldman and others are hiding behind." He adds: "Why not have a fiduciary standard where you have to have the cards turned up on the table when selling a product?"
Even if Goldman walks away unscathed-and in the days just after the case was filed there was a spreading sentiment among the chattering classes that the company had done nothing illegal-there still will be changes in the world of advisors.
The SEC, in its civil suit filed last month, accuses Goldman of securities fraud, saying that the financial powerhouse made "materially misleading statements and omissions" regarding a structured product that was tied to the performance of subprime residential mortgages.
The SEC alleged that investors were not told that hedge fund Paulson & Co. had a hand in the selection of residential mortgages that were part of the structured product.
Paulson had begun taking a bearish view on subprime mortgages in 2006 and came to believe there would be significant losses in this market.
The suit also names Goldman employee Fabrice Tourre for devising the transaction, preparing the materials and communicating directly with investors. Tourre, 31, was a registered representative and vice president on the structured product correlation desk in New York. According to the suit, Tourre knew of Paulson's undisclosed short interest and its role in the selection process.
But Goldman appears to be losing in the court of public opinion. Consider the findings of this survey released by Argyle Executive Forum. It found that 55.2% of business leaders feel Goldman Sachs is guilty of the charges, 20.7% feel the firm is innocent, and 24.1% of business leaders are currently unsure.
Still, the actual case may not be very strong, Roame says. He predicted that the SEC will either lose or possibly extract a small settlement from Goldman in order to claim some measure of victory. The case here involves an "email by some 31-year-old overpaid vice president. There is not much evidence, if any, of a conspiracy," Roame says.
John Jay, senior analyst at Aite Group who formerly worked on Wall Street structuring securitized deals, agrees that despite the flashy headlines, there just isn't much of legal case. It's being positioned by the SEC as striking a victory for the little guy, but the fact is, Jay says, every party involved was an institutional investor that had access to the details of this deal. "For those professional investors to throw their hands up and try to put themselves on the same side as Joe Average is just so... I'm just speechless," Jay says.
Those professional investors had access to the details of this deal even if they did not make the right moves to educate themselves before they bought into it. "This is the same as if I sell you a lemon," Jay says. "I have a lemon, it cost fifty bucks, you buy it. End of story."
Davia Temin, a crisis management expert, cautions advisors to not fall victim to the same trap as Goldman. She says that by acting with a lot of hubris over the years, the storied firm did not build up any goodwill, or what she terms "reputational equity," which, like a real equity cushion, can be drawn upon in times of crisis.
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