In a series of three proposed regulations1 with requests for comments, the U.S. Securities and Exchange Commission (SEC) seeks to enhance and clarify the standards of conduct and duties owed by broker-dealers and investment advisers to their customers and clients. This Alert addresses Release No. 34-83062 (Best Interest Release) proposed under the Securities and Exchange Act of 1934, as amended (Exchange Act). In the Best Interest Release, the SEC proposes and requests comment from the public regarding elevating the standard of conduct that broker-dealers owe to their retail customers under the Exchange Act. According to the Best Interest Release, the SEC seeks to make clear that a broker-dealer may not put its own financial interests ahead of its retail customers when making recommendations.

Currently, the Exchange Act and the rules of self-regulatory organizations (SRO)2 govern the conduct of broker-dealers. Under both regulatory schemes, broker-dealers must generally ensure that any securities recommendation to a customer is suitable for that customer.3 Under Proposed Regulation Best Interest (proposed regulation) broker-dealers would have to act in a retail customer’s best interest when recommending securities transactions or investment strategies involving securities without placing the financial or other interest of the broker-dealer or natural person who is an associated person making the recommendation ahead of the interest of the retail customer. This best interest standard goes beyond the existing duty of fair dealing applicable to broker-dealers, which generally requires broker-dealers to make only suitable recommendations to customers and to receive only fair and reasonable compensation. A broker-dealer would be able to meet this new best interest standard by satisfying three primary obligations: the Disclosure Obligation, the Care Obligation, and the Conflict of Interest Obligation.

Disclosure Obligation

The proposed regulation would require broker-dealers to fulfill a Disclosure Obligation in order to meet the elevated standard of conduct. The Disclosure Obligation would specifically require that a broker-dealer prior to or at the time of such recommendation, reasonably disclose to the retail customer, in writing, the material facts relating to the scope and terms of the relationship with the retail customer and all material conflicts of interest that are associated with the recommendation.

The SEC divides the Disclosure Obligation above into relationship disclosures and conflict of interest disclosures. Relationship disclosures encompass (i) the capacity in which the broker-dealer will act with respect to a recommendation (i.e., in a broker-dealer capacity), (ii) the fees the broker-dealer will charge, and (iii) the type and scope of services to be provided. The SEC acknowledges that broker-dealers are already subject to a number of specific disclosure requirements when they affect certain transactions and under antifraud provisions of federal securities law. However, broker-dealers are not currently subject to an explicit disclosure requirement under the Exchange Act. Under the proposed regulation, while a broker-dealer would be required to provide certain general disclosures to retail customers in a Client Relationship Summary,4 the broker-dealer may need to provide additional disclosures to a particular retail customer detailing the specific fees and types of services that will apply to the relationship with the retail customer.

The Disclosure Obligation also requires disclosure of any material conflicts of interest associated with a recommendation of any securities transaction or investment strategy involving securities to a retail customer. In the proposed regulation, the SEC defines material conflict of interest to mean a conflict of interest that a reasonable person would expect might incline a broker-dealer — consciously or unconsciously — to make a recommendation that is not disinterested. The SEC intentionally chose to limit the disclosure of conflicts of interests to only material conflicts so as to avoid lengthy disclosures that obscure the more important disclosures. (See below regarding the Conflict of Interest Obligation, which includes an obligation to establish, maintain, and enforce written policies and procedures regarding conflicts of interest.)

In addition to the proposed regulation, the SEC provides preliminary interpretive guidance regarding disclosure mechanics but ultimately grants broker-dealers flexibility to determine the most appropriate manner, form, and frequency of disclosure. Without providing specific examples, the SEC states that disclosures generally should be in plain English that is concise, clear, and understandable, use short sentences, active voice, and avoid double negatives and legal jargon. The guidance aims to make broker-dealer disclosures readily comprehensible for retail customers.

Under the proposed regulation, broker-dealers must satisfy the Disclosure Obligation before or at the time they give a recommendation. However, the SEC gives broker-dealers broad discretion as to when disclosure would be most effective: whether at the beginning of the relationship in the Relationship Summary, on a periodic regular basis, or at the point of sale before each recommendation. Broker-dealers must time their disclosures to adequately inform the client of their options. A broker-dealer should carefully weigh the timing and frequency of its disclosures to avoid breaching its duty to the client.

Care Obligation

The Care Obligation under the proposed regulation is three-pronged. The broker dealer would be required to exercise reasonable diligence and care to (i) understand the potential risks and rewards of the securities transaction or investment strategy involving securities and have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers; (ii) have a reasonable basis to believe that the product is in the particular retail customer’s best interest; and (iii) have a reasonable basis to believe that a series of transactions, when taken together, is in the retail customer’s best interest.

The elevated standard of conduct prescribed by the Care Obligation builds on the current suitability standard for broker-dealers in two principal respects. First, the proposed regulation would not require fraud or deceit to run afoul of a broker-dealer’s duty to its retail customers. As a result, there are instances under the proposed regulation where disclosure, alone, would not satisfy the obligation. Facts and circumstances may demand that the broker-dealer mitigate or even eliminate the material conflict to comply. Second, under the proposed regulation, the cost of a security, strategy, or other associated financial incentives would be a more important factor to consider when evaluating certain recommendations. A broker-dealer may fall short of the Care Obligation under the proposed regulation by failing to adequately consider recommendation costs and other factors that impact customers’ decisions. However, the proposed regulations would not require the broker-dealer to recommend the single best security or strategy or make the least expensive recommendation.

The Care Obligation of the proposed regulation would require a broker-dealer not only to understand the potential risks and rewards of their recommendation but also to have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers. Both components are necessary to satisfy the proposed regulation. In addition, a broker-dealer must have a reasonable basis to believe a specific recommendation is in the best interest of a particular retail customer. The broker-dealer should base its reasonable belief on its understanding of the investment or strategy, in light of the retail customer’s investment profile.5 This standard of conduct not only embraces but also enhances the standard of conduct under the current suitability requirement. Specifically, a broker-dealer should consider whether it has enough information about the retail customer’s investment profile to determine if a recommendation is in that retail customer’s best interest. Facts and circumstances will ultimately determine whether a broker-dealer has undertaken the required reasonable diligence to complete a retail customer’s investment profile.

The final component of the Care Obligation requires broker-dealers to form a reasonable basis to believe that a series of recommendations, as determined by facts and circumstances, is in the retail customer’s best interest when taken in the light of the retail customer’s investment profile. Even if individual recommendations are in the retail customer’s best interest, those recommendations, when viewed in the aggregate, must not be excessive. The SEC has specifically designed this requirement to prevent practices commonly outlawed under federal securities law: churning, switching, and unsuitable recommendations. The proposed regulation offers no single test to identify excessive trading but highlights cost-to-equity ratio, turnover rate, and use of in-and-out trading as potentially useful metrics to evaluate excessiveness. The proposed regulations also enhance the existing standard of conduct by imposing the requirement regardless of whether the broker-dealer has actual or de facto control over a retail customer account. Even where the broker-dealer does not exercise actual or de facto control of the retail customer’s account, they are subject to the proposed regulation. In proposing to eliminate the control requirement, the SEC expresses the sentiment that retail customers with some knowledge and some control should still receive the protections and benefits of the heightened standard of conduct.

Conflict of Interest Obligation

The proposed regulation’s conflict of interest requirement has two components and would require a broker-dealer entity to (i) establish, maintain, and enforce written policies and procedures reasonably designed to identify and disclose or eliminate material conflicts of interest associated with recommendations subject to the proposed regulation; and (ii) establish, maintain, and enforce written policies and procedures reasonably designed to identify and disclose and mitigate, or eliminate, any other material conflicts of interest. Under the proposed regulation, the broker-dealer may reasonably use its discretion to determine if a conflict can be effectively disclosed, what mitigation methods may be appropriate, and how to, if necessary, eliminate a conflict. However, the SEC takes special care to note that simply creating written policies and procedures would not satisfy the obligation under the proposed regulation. Broker-dealers must maintain and faithfully adhere to their rules.

Recognizing the potentially overwhelming scope of the obligation, the SEC provides broker-dealers with additional guidance. To identify material conflicts of interest, the proposed regulation suggests that broker-dealers: define material conflicts in an easily understood way; establish a structure to identify the types of material conflicts a broker-dealer may face; establish a structure to identify material conflicts in the broker-dealer’s business as it evolves; create identification training procedures; and provide for an ongoing and regular review of the system as a whole. In addition, the SEC highlights a risk-based compliance and supervisory system as one potential framework to identify material conflicts. This framework could allow broker-dealers to specifically tailor their compliance systems to their business and focus on those areas that pose the greatest risk of non-compliance. The proposed regulation does not require broker-dealers to eliminate all material conflicts of interest. However, material conflicts of interest related to financial incentives must be disclosed and mitigated. When a broker-dealer cannot disclose the material conflict in a concise, easily understandable manner, mitigation measures should ensue. Where practicable, broker-dealers should eliminate material conflicts of interest to comply with the proposed regulation.

Requests for Comment

In the Best Interest Release, the SEC also requests comments on each aspect of the enhanced best interest standards the SEC proposed be applicable to broker-dealers. The deadline for submitting comments is August 7, 2018.