SEC Best Interest Standard Is Major Departure From DOL Fiduciary Guidance

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Eight years after receiving a directive from Congress to consider standards of conduct for investment recommendations, the Securities and Exchange Commission (SEC) has issued proposed guidance for broker-dealers and registered investment advisors who make recommendations to retail clients. This SEC guidance applies only to securities; not to traditional bank, credit union, and insurance investment products. Many had hoped for a uniform standard for brokers and registered investment advisors (RIAs). However this guidance does not take that approach.

Who will regulate investment advising behavior?

This SEC guidance came at a time of uncertainty for oversight of investment advising relationships. The U.S. Department of Labor (DOL) issued final regulations on fiduciary investment advice for retirement savers in 2016, and the Fifth Circuit Court of Appeals ruled in April 2018 that the DOL exceeded its authority and the regulations would be vacated. The DOL released Field Assistance Bulletin 2018-02 on May 7, 2018, confirming that it would not pursue claims against investment advice fiduciaries until other future guidance would be issued. This leaves the SEC regulations—if finalized—as the standard only for broker-dealers who make investment recommendations.

What is in the guidance package?

The SEC has issued two proposed regulations and a proposed interpretation.

SEC Best Interest Standard Not DOL Best Interest Contract

The SEC’s proposed “regulation best interest” is not the same as the “best interest contract” (BIC) in the DOL fiduciary investment advice regulations. Instead, the SEC’s best interest standard would be enforceable under its current arbitration framework. To satisfy the proposed SEC guidance, a broker-dealer must “act in the best interest of the retail customer” when a recommendation is made, and not put his own financial or other interest ahead of the customer. Broker-dealers can accomplish this by meeting the following conditions. 

Disclosure Obligation

Disclose the nature of the broker-dealer/client relationship (which for brokers is not a fiduciary relationship, as it is for RIAs), and any material conflicts-of-interest—including financial incentives that might cause a broker-dealer to put his interests ahead of the customer’s. 

Care Obligation

Exercising reasonable diligence, care, skill and prudence to:

  • Understand the investment product recommended to a customer

  • Determine that this recommendation could be in the interest of some customer

  • Determine that a recommendation is in a particular customer’s best interest based on her investment profile

  • Determine that a proposed series of transactions is also in that customer’s best interest based on her investment profile

Conflict of Interest: Disclosure, Mitigation, and Elimination

Establish, maintain, and enforce written policies and procedures to identify material conflicts-of-interest due to financial incentives tied to investments and either disclose and mitigate such conflicts, or eliminate them.

Contents of the Customer Relationship Summary

While the SEC guidance is primarily directed to broker-dealers and the securities recommendations they make, a new disclosure requirement applies to both broker-dealers and RIAs. These regulations would require both to make clear their roles in a brief “customer relationship summary” (CRS) form that includes the following.

  • An introduction highlighting the types of investment services and accounts offered to retail investors

  • A description of the relationships and services a firm offers to retail investors, including the legal standards of conduct to be expected (e.g., RIAs are fiduciaries, broker dealers are not)

  • A description of the fees and costs a retail investor would pay the firm

  • A comparison of brokerage and RIA services (for firms that are one or the other, but not both)

  • A description of the conflicts-of-interest that may exist, including compensation that differs based on investments chosen

  • How a customer can get additional information, including legal and disciplinary actions involving the firm or representative

  • Key questions a retail investor may want to ask for greater detail about services, specific fees, etc.

In general, the SEC advises representatives to be direct and clear about their status as a broker-dealer or RIA—or dual status—and to refrain from using language or terms formally or informally that may mislead a customer. Form CRS must be filed electronically with the SEC.

Fiduciary Standard Clarifications

While the fiduciary standard is not new for registered investment advisors, the SEC has never before formally included “best interest” obligations as part of their interpretation of the fiduciary obligations for RIAs. They define the prongs of the fiduciary standard of conduct to include:

  • Duty of Care

    • Duty to provide advice that is in the client’s best interest

    • Duty to seek best execution

    • Duty to provide services and to provide advice and monitoring over the course of the relations hip

  • Duty of Loyalty

    • Duty to put its client’s interests first and not favor one client over another

    • Duty to make full and fair disclosure of all material facts relating to its relationship with its client

    • Duty to seek to avoid conflicts of interest and, at a minimum, disclose all material conflicts

Who is covered by the SEC guidance?

The SEC proposed guidance broadens the pool of investors as compared to what was intended with the DOL’s fiduciary investment advice regulations. The SEC’s proposed regulations are not specific to retirement savers, but instead cover the general retail investor. The SEC guidance, however, also narrows the pool of investment recommendation providers covered by the guidance as its proposed rules only apply to broker-dealers and registered investment advisors. The guidance generally does not apply to personnel of banking or insurance organizations.

Which activities fall under the SEC guidance?

The three components address activities with respect to securities investments, such as stocks, bonds, and mutual funds, for retail clients. This includes the purchase, sale, or holding of such investments. By comparison, the DOL fiduciary rules would have applied to a broader class of investments than just securities. The DOL rule included investments in certificates of deposit and certain insurance products that are not governed by the SEC framework.

While the SEC guidance is somewhat ambiguous, it appears to cover retirement plan participants receiving direct investment recommendations, but exclude employer plans as a business exception. The guidance also appears to cover investors in individual tax-advantaged accounts such as IRAs, health savings accounts, and education savings accounts.

Clarifications on these and certain other issues are being sought. 

More to Come

The SEC requests comments from the public on this guidance, during a 90-day period. Based on public comments made by SEC commissioners, these SEC proposed regulations and disclosure guidelines could be just the first elements of more comprehensive guidance from the agency on investment advising relationships. If true, more guidance may be forthcoming.

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