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Regulation Best Interest: The Broker-Dealer Standard of Conduct

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AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule.

SUMMARY:

The Securities and Exchange Commission (the “Commission”) is adopting a new rule under the Securities Exchange Act of 1934 (“Exchange Act”), establishing a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer (unless otherwise indicated, together referred to as “broker-dealer”) when they make a recommendation to a retail customer of any securities transaction or investment strategy involving securities (“Regulation Best Interest”). Regulation Best Interest enhances the broker-dealer standard of conduct beyond existing suitability obligations, and aligns the standard of conduct with retail customers' reasonable expectations by requiring broker-dealers, among other things, to: Act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealer ahead of the interests of the retail customer; and address conflicts of interest by establishing, maintaining, and enforcing policies and procedures reasonably designed to identify and fully and fairly disclose material facts about conflicts of interest, and in instances where we have determined that disclosure is insufficient to reasonably address the conflict, to mitigate or, in certain instances, eliminate the conflict. The standard of conduct established by Regulation Best Interest cannot be satisfied through disclosure alone. The standard of conduct draws from key principles underlying fiduciary obligations, including those that apply to investment advisers under the Investment Advisers Act of 1940 (“Advisers Act”). Importantly, regardless of whether a retail investor chooses a broker-dealer or an investment adviser (or both), the retail investor will be entitled to a recommendation (from a broker-dealer) or advice (from an investment adviser) that is in the best interest of the retail investor and that does not place the interests of the firm or the financial professional ahead of the interests of the retail investor.

DATES:

Effective date: This rule is effective September 10, 2019.

Compliance date: The compliance date is discussed in Section II.E of this final release.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Lourdes Gonzalez, Assistant Chief Counsel—Office of Sales Practices; Emily Westerberg Russell, Senior Special Counsel; Alicia Goldin, Senior Special Counsel; John J. Fahey, Branch Chief; Daniel Fisher, Branch Chief; Bradford Bartels, Special Counsel; and Geeta Dhingra, Special Counsel, Office of Chief Counsel, Division of Trading and Markets, at (202) 551-5550, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-8549.

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SUPPLEMENTARY INFORMATION:

The Commission is adopting new rule 17 CFR 240.15 l-1 under the Exchange Act to establish a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer when they make a recommendation to a retail customer of any securities transaction or investment strategy involving securities. The Commission is also adopting amendments to rules 17 CFR 240.17a-3 and 17 CFR 240.17a-4 to establish new record-making and recordkeeping requirements for broker-dealers with respect to certain information collected from or provided to retail customers.

Table of Contents

I. Introduction

A. Background

B. Overview of Regulation Best Interest

C. Overview of Modifications to the Proposed Rule Text and Guidance Provided

D. Overview of Key Enhancements

II. Discussion of Regulation Best Interest

A. General Obligation

1. Commission's Approach

2. General Obligation To “Act in Best Interest”

B. Key Terms and Scope of Best Interest Obligation

1. Natural Person Who Is an Associated Person

2. Recommendation of Any Securities Transaction or Investment Strategy Involving Securities

3. Retail Customer

C. Component Obligations

1. Disclosure Obligation

2. Care Obligation

3. Conflict of Interest Obligation

4. Compliance Obligation

D. Record-Making and Recordkeeping

E. Compliance Date

III. Economic Analysis

A. Introduction and Primary Goals of the Regulation, Comments on Market Failure and Quantification, and Broad Economic Considerations

1. Introduction and Primary Goals of the Regulation

2. Broad Economic Considerations

3. Comments on Market Failure of the Principal-Agent Relationship and Quantification; Comments That the Broker-Dealer, Commission-Based Model Should Be Severely Restricted or Eliminated

B. Economic Baseline

1. Providers of Financial Services

2. Regulatory Baseline and Current Market Practices

3. Investment Advice and Evidence of Potential Investor Harm

4. Trust, Financial Literacy, and the Effectiveness of Disclosure

C. Benefits and Costs

1. General

2. Disclosure Obligation

3. Care Obligation

4. Conflict of Interest Obligation

5. Compliance Obligation

6. Record-Making and Recordkeeping

7. Approaches To Quantifying the Potential Benefits

D. Efficiency, Competition, and Capital Formation

1. Competition

2. Capital Formation and Efficiency

E. Reasonable Alternatives

1. Fiduciary Standard for Broker-Dealers

2. Prescribed Format for Disclosure

3. Disclosure-Only

IV. Paperwork Reduction Act

A. Respondents Subject to Regulation Best Interest and Amendments to Rule 17a-3(a)(35) and Rule 17a-4(e)(5)

1. Broker-Dealers

2. Natural Persons Who Are Associated Persons of Broker-Dealers

B. Summary of Collections of Information

1. Disclosure Obligation

2. Care Obligation

3. Conflict of Interest Obligation

4. Compliance Obligation

5. Record-Making and Recordkeeping Obligations

V. Final Regulatory Flexibility Act Analysis

A. Need for and Objectives of the Rule

B. Significant Issues Raised by Public Comments

C. Small Entities Subject to the Rule

D. Projected Reporting, Recordkeeping, and Other Compliance Requirements

1. Disclosure Obligation

2. Care Obligation

3. Conflict of Interest Obligation

4. Compliance Obligation

5. Record-Making and Recordkeeping Obligations

E. Agency Action To Minimize Effect on Small Entities

VI. Statutory Authority and Text of the Rule

I. Introduction

We are adopting a new rule 15 l-1 under the Exchange Act (“Regulation Best Interest”) that will improve investor protection by: (1) Enhancing the obligations that apply when a broker-dealer makes a recommendation to a retail customer and natural persons Start Printed Page 33319who are associated persons of a broker-dealer (“associated persons”) (unless otherwise indicated, together referred to as “broker-dealer”) and (2) reducing the potential harm to retail customers from conflicts of interest that may affect the recommendation. Regulation Best Interest enhances the broker-dealer standard of conduct beyond existing suitability obligations, and aligns the standard of conduct with retail customers' reasonable expectations by requiring broker-dealers, among other things, to: (1) Act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealer ahead of the interests of the retail customer; and (2) address conflicts of interest by establishing, maintaining, and enforcing policies and procedures reasonably designed to identify and fully and fairly disclose material facts about conflicts of interest, and in instances where we have determined that disclosure is insufficient to reasonably address the conflict, to mitigate or, in certain instances, eliminate the conflict. Regulation Best Interest establishes a standard of conduct under the Exchange Act that cannot be satisfied through disclosure alone.

A. Background

Broker-dealers play an important role in helping Americans organize their finances, accumulate and manage retirement savings, and invest toward other important long-term goals, such as buying a house or funding a child's college education. Broker-dealers offer a wide variety of brokerage (i.e., agency) services and dealer (i.e., principal) services and products to both retail and institutional customers.[1] Specifically, the brokerage services provided to retail customers range from execution-only services to providing personalized investment advice in the form of recommendations of securities transactions or investment strategies involving securities to customers.[2]

Investment advisers play a similarly important, though distinct, role. As described in the Fiduciary Interpretation, investment advisers provide a wide range of services to a large variety of clients, from retail clients with limited assets and investment knowledge and experience to institutional clients with very large portfolios and substantial knowledge, experience, and analytical resources.[3]

As a general matter, broker-dealers and investment advisers have different types of relationships with investors, offer different services, and have different compensation models when providing investment recommendations or investment advisory services to customers. Broker-dealers typically provide transaction-specific recommendations and receive compensation on a transaction-by-transaction basis (such as commissions) (“transaction-based” compensation or model). A broker-dealer's recommendations may include recommending transactions where the broker-dealer is buying securities from or selling securities to retail customers on a principal basis or recommending proprietary products.[4] Investment advisers, on the other hand, typically provide ongoing, regular advice and services in the context of broad investment portfolio management, and are compensated based on the value of assets under management (“AUM”), a fixed fee or other arrangement (“fee-based” compensation or model).[5] This variety is important because it presents investors with choices regarding the types of relationships they can have, the services they can receive, and how they can pay for those services. It is also common for a firm to provide both broker-dealer and investment adviser services.

Like many principal-agent relationships—including the investment adviser-client relationship—the relationship between a broker-dealer and a customer has inherent conflicts of interest, including those resulting from a transaction-based (e.g., commission) compensation structure and other broker-dealer compensation.[6] These and other conflicts of interest may provide an incentive to a broker-dealer to seek to increase its own compensation or other financial interests at the expense of the customer to whom it is making investment recommendations.

Notwithstanding these inherent conflicts of interest in the broker-dealer-customer relationship, there is broad acknowledgment of the benefits of, and support for, the continuing existence of the broker-dealer business model, including a commission or other transaction-based compensation structure, as an option for retail customers seeking investment recommendations.[7] For example, retail customers that intend to buy and hold a long-term investment may find that paying a one-time commission to a broker-dealer recommending such an investment is more cost effective than paying an ongoing advisory fee to an investment adviser merely to hold the same investment. Retail customers with limited investment assets may benefit from broker-dealer recommendations when they do not qualify for advisory accounts because they do not meet the account minimums often imposed by investment advisers. Other retail customers who hold a variety of investments, or prefer differing levels of services (e.g., both episodic recommendations from a broker-dealer and continuous advisory services including discretionary asset management from an investment adviser), may benefit from having access to both brokerage and advisory accounts. Nevertheless, concerns exist regarding (1) the potential harm to retail customers resulting from broker-dealer recommendations provided where conflicts of interest exist and (2) the insufficiency of existing broker-dealer regulatory requirements to address these conflicts when broker-dealers make recommendations to retail customers.[8] More specifically, there are concerns that existing requirements do not require a broker-dealer's recommendations to be in the retail customer's best interest.[9]

B. Overview of Regulation Best Interest

On April 18, 2018, we proposed enhancements to the standard of conduct that applies when broker-dealers make recommendations to retail customers.[10] Specifically, the proposal would have established an express best interest obligation that would require all broker-dealers and associated persons, Start Printed Page 33320when making a recommendation of any securities transaction or investment strategy involving securities to a retail customer, to act in the best interest of the retail customer at the time the recommendation is made without placing the financial or other interest of the broker-dealer or associated person making the recommendation ahead of the interest of the retail customer.

The Commission received substantial comment on proposed Regulation Best Interest. We received over 6,000 comment letters in connection with the Proposing Release, of which approximately 3,000 are unique comment letters, from a variety of commenters including individual investors, consumer advocacy groups, financial services firms (including broker-dealers, investment advisers, and insurance companies), investment professionals, industry and trade associations, state securities regulators, bar associations, and others.[11]

The Commission also solicited individual investors' input through a number of forums in addition to the traditional requests for comment in the Proposing Release. Among other things, seven investor roundtables were held in different locations across the country to solicit further comment on the proposed relationship summary,[12] and the Commission and its staff received in-person feedback from almost 200 attendees in total.[13] The Commission also received input and recommendations from a majority of its Investor Advisory Committee (“IAC”) on proposed Regulation Best Interest.[14]

After careful review and consideration of comments received and upon further consideration, the Commission is adopting Regulation Best Interest, with certain modifications as compared to the Proposing Release. As discussed below, while the Commission is generally retaining the overall structure and scope set forth in the Proposing Release, we are making modifications to the text of the rule and also providing interpretations and guidance to address points raised during the comment process.

The Commission has crafted Regulation Best Interest to draw on key principles underlying fiduciary obligations, including those that apply to investment advisers under the Advisers Act, while providing specific requirements to address certain aspects of the relationships between broker-dealers and their retail customers. Regulation Best Interest enhances the existing standard of conduct applicable to broker-dealers and their associated persons at the time they recommend to a retail customer a securities transaction or investment strategy involving securities. This includes recommendations of account types and rollovers or transfers of assets and also covers implicit hold recommendations resulting from agreed-upon account monitoring. When making a recommendation, a broker-dealer must act in the retail customer's best interest and cannot place its own interests ahead of the customer's interests (hereinafter, “General Obligation”).[15] The General Obligation is satisfied only if the broker-dealer complies with four specified component obligations. The obligations are: (1) Providing certain prescribed disclosure before or at the time of the recommendation, about the recommendation and the relationship between the retail customer and the broker-dealer (“Disclosure Obligation”); (2) exercising reasonable diligence, care, and skill in making the recommendation (“Care Obligation”); (3) establishing, maintaining, and enforcing policies and procedures reasonably designed to address conflicts of interest (“Conflict of Interest Obligation”), and (4) establishing, maintaining, and enforcing policies and procedures reasonably designed to achieve compliance with Regulation Best Interest (“Compliance Obligation”).[16]

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First, under the Disclosure Obligation,[17] before or at the time of the recommendation, a broker-dealer must disclose, in writing, all material facts about the scope and terms of its relationship with the customer. This includes a disclosure that the firm or representative is acting in a broker-dealer capacity; the material fees and costs the customer will incur; and the type and scope of the services to be provided, including any material limitations on the recommendations that could be made to the retail customer. Moreover, the broker-dealer must disclose all material facts relating to conflicts of interest associated with the recommendation that might incline a broker-dealer to make a recommendation that is not disinterested, including, for example, conflicts associated with proprietary products, payments from third parties, and compensation arrangements.

Second, under the Care Obligation,[18] a broker-dealer must exercise reasonable diligence, care, and skill when making a recommendation to a retail customer. The broker-dealer must understand potential risks, rewards, and costs associated with the recommendation. The broker-dealer must then consider those risks, rewards, and costs in light of the customer's investment profile and have a reasonable basis to believe that the recommendation is in the customer's best interest and does not place the broker-dealer's interest ahead of the retail customer's interest. A broker-dealer should consider reasonable alternatives, if any, offered by the broker-dealer in determining whether it has a reasonable basis for making the recommendation. Whether a broker-dealer has complied with the Care Obligation will be evaluated as of the time of the recommendation (and not in hindsight). When recommending a series of transactions, the broker-dealer must have a reasonable basis to believe that the transactions taken together are not excessive, even if each is in the customer's best interest when viewed in isolation.

Third, under the Conflict of Interest Obligation,[19] a broker-dealer must establish, maintain, and enforce reasonably designed written policies and procedures addressing conflicts of interest associated with its recommendations to retail customers. These policies and procedures must be reasonably designed to identify all such conflicts and at a minimum disclose or eliminate them. Importantly, the policies and procedures must be reasonably designed to mitigate conflicts of interests that create an incentive for an associated person of the broker-dealer to place its interests or the interest of the firm ahead of the retail customer's interest. Moreover, when a broker-dealer places material limitations on recommendations that may be made to a retail customer (e.g., offering only proprietary or other limited range of products), the policies and procedures must be reasonably designed to disclose the limitations and associated conflicts and to prevent the limitations from causing the associated person or broker-dealer from placing the associated person's or broker-dealer's interests ahead of the customer's interest. Finally, the policies and procedures must be reasonably designed to identify and eliminate sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sale of specific securities or specific types of securities within a limited period of time.

Fourth, under the Compliance Obligation,[20] a broker-dealer must also establish, maintain, and enforce written policies and procedures reasonably designed to achieve compliance with Regulation Best Interest as a whole. Thus, a broker-dealer's policies and procedures must address not only conflicts of interest but also compliance with its Disclosure and Care Obligations under Regulation Best Interest.

The enhancements contained in Regulation Best Interest are designed to improve investor protection by enhancing the quality of broker-dealer recommendations to retail customers and reducing the potential harm to retail customers that may be caused by conflicts of interest. Regulation Best Interest will complement the related rules, interpretations, and guidance that the Commission is concurrently issuing.[21] Individually and collectively, these actions are designed to help retail customers better understand and compare the services offered by broker-dealers and investment advisers and make an informed choice of the relationship best suited to their needs and circumstances, provide clarity with respect to the standards of conduct applicable to investment advisers and broker-dealers, and foster greater consistency in the level of protections provided by each regime, particularly at the point in time that a recommendation is made.[22]

At the time a recommendation is made, key elements of the Regulation Best Interest standard of conduct that applies to broker-dealers will be similar to key elements of the fiduciary standard for investment advisers.[23] Importantly, regardless of whether a retail investor chooses a broker-dealer or an investment adviser (or both), the retail investor will be entitled to a recommendation (from a broker-dealer) or advice (from an investment adviser) that is in the best interest of the retail investor and that does not place the interests of the firm or the financial professional ahead of the interests of the retail investor.

There are also key differences between Regulation Best Interest and the Advisers Act fiduciary standard that reflect the distinction between the services and relationships typically offered under the two business models. For example, an investment adviser's fiduciary duty generally includes a duty to provide ongoing advice and monitoring,[24] while Regulation Best Interest imposes no such duty and instead requires that a broker-dealer act in the retail customer's best interest at the time a recommendation is made. In addition, the new obligations applicable to broker-dealers under Regulation Best Interest are more prescriptive than the obligations applicable to investment advisers under the Advisers Act fiduciary duty and reflect the characteristics of the generally applicable broker-dealer business model.[25]

The Commission has been studying and carefully considering the issues related to the standard of conduct for broker-dealers for many years, which led to the development of Regulation Best Interest.[26] In designing Regulation Best Interest, we considered a number of options to enhance investor protection, while preserving, to the extent possible, retail investor access (in terms of choice and cost) to differing types of investment services and products. There Start Printed Page 33322were several options, including, among others: (1) Applying the fiduciary standard under the Advisers Act to broker-dealers; (2) adopting a “new” uniform fiduciary standard of conduct that would apply equally to both broker-dealers and investment advisers, such as that recommended by the staff in the 913 Study; [27] and (3) the path we ultimately chose, adopting a new standard of conduct specifically for broker-dealers, which draws from key principles underlying fiduciary obligations, including those that apply to investment advisers under the Advisers Act.[28] The standard also provides specific requirements to address certain aspects of the relationships between broker-dealers and their retail customers, including certain conflicts related to compensation of associated persons.[29]

We have declined to subject broker-dealers to a wholesale and complete application of the existing fiduciary standard under the Advisers Act because it is not appropriately tailored to the structure and characteristics of the broker-dealer business model (i.e., transaction-specific recommendations and compensation), and would not properly take into account, and build upon, existing obligations that apply to broker-dealers, including under FINRA rules.[30] Moreover, we believe (and our experience indicates), that this approach would significantly reduce retail investor access to differing types of investment services and products, reduce retail investor choice in how to pay for those products and services, and increase costs for retail investors of obtaining investment recommendations.[31]

We have also declined to craft a new uniform standard that would apply equally and without differentiation to both broker-dealers and investment advisers. Adopting a “one size fits all” approach would risk reducing investor choice and access to existing products, services, service providers, and payment options, and would increase costs for firms and for retail investors in both broker-dealer and investment adviser relationships. Moreover, applying a new uniform standard to advisers would mean jettisoning to some extent the fiduciary standard under the Advisers Act that has worked well for retail clients and our markets and is backed by decades of regulatory and judicial precedent.

Our concerns about the ramifications for investor access, choice, and cost from adopting either of these approaches are not theoretical. With the adoption of the now vacated Department of Labor (“DOL”) Fiduciary Rule,[32] there was a significant reduction in retail investor access to brokerage services,[33] and we believe that the available alternative services were higher priced in many circumstances.[34] Moreover, because key elements of the standard of conduct that Regulation Best Interest applies to broker-dealers at the time that a recommendation is made to a retail customer will be substantially similar to key elements of the standard of conduct that applies to investment advisers pursuant to their fiduciary duty under the Advisers Act, we do not believe that applying the existing fiduciary standard under the Advisers Act to broker-dealers or adopting a new uniform fiduciary standard of conduct applicable to both broker-dealers and investment advisers would provide any greater investor protection (or, in any case, that any benefits would justify the costs imposed on retail investors in terms of reduced access to services, products, and payment options, and increased costs for such services and products).

We acknowledge certain commenters urged the Commission to take additional Start Printed Page 33323or different regulatory actions than the approach we have adopted, including the alternatives discussed above. We do not believe that any rulemaking governing retail investor-advice relationships can solve for every issue presented. After careful consideration of the comments and additional information we have received,[35] we believe that Regulation Best Interest, as modified, appropriately balances the concerns of the various commenters in a way that will best achieve the Commission's important goals of enhancing retail investor protection and decision making, while preserving, to the extent possible, retail investor access (in terms of choice and cost) to differing types of investment services and products.[36]

The Commission's staff will offer firms significant assistance and support during the transition period and thereafter with the aim of helping to ensure that the investor protections and other benefits of the final rule are implemented in an efficient and effective manner. Further, we will continue to monitor the effectiveness of Regulation Best Interest in achieving the Commission's goals.

C. Overview of Modifications to the Proposed Rule Text and Guidance Provided

The vast majority of commenters supported the Commission's rulemaking efforts to address the standards of conduct that apply to broker-dealers when making recommendations, but nearly all commenters suggested modifications to proposed Regulation Best Interest.[37] These suggestions touch on almost every aspect of the proposal, as discussed in more detail below. A variety of commenters offered suggestions on the overall structure and scope of the proposed rule, including: whether the standard should be a fiduciary standard; [38] whether the standard should apply to both investment advisers and broker-dealers; [39] whether the standard should be principles-based or more prescriptive; [40] whether the standard should define “best interest;” [41] whether the standard is or should be a safe harbor; [42] what should be considered a recommendation, including whether Regulation Best Interest should apply to recommendations to roll over or transfer assets or take plan distributions, and to recommendations of particular account types (i.e., brokerage or advisory); [43] whether Regulation Best Interest should apply to account monitoring services provided by a broker-dealer, or impose a continuing duty; [44] and whether Regulation Best Interest's protections should apply to a broader or narrower set of “retail customers.” [45]

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In addition, most commenters from both industry and consumer advocate groups requested modifications to each of the Disclosure, Care, and Conflict of Interest Obligations, and also called for more specific examples of conduct that would—or would not—satisfy these obligations. With respect to the Disclosure Obligation, most commenters generally sought greater clarity or made suggestions regarding what material facts and material conflicts would need to be disclosed, the form and manner (e.g., written versus oral, individualized versus standardized, and the use of electronic and/or layered) and the timing and frequency of the disclosure (e.g., whether the disclosure should be prior to, at the time of, or could be after a recommendation), as well as whether the Disclosure Obligation could be satisfied by complying with other existing disclosure requirements.[46] In particular, several commenters recommended that the Commission require broker-dealers provide “full and fair” disclosure.[47]

Regarding the Care Obligation, commenters from certain investor groups supported incorporating a “prudence” standard,[48] while a number of industry commenters expressed concern about including this standard.[49] Numerous commenters requested further clarity on what would be required to meet the Care Obligation, including what factors a broker-dealer should consider in developing a retail customer's investment profile and when making a recommendation, and in particular the role of cost and other relevant factors when making a recommendation, and also asked for more specific examples of how to weigh costs against other factors when making a recommendation.[50] A majority of the IAC and other commenters requested clarification on how to consider “reasonably available alternatives” when making a recommendation and suggested clarifying the scope of the inquiry into potential reasonably available alternatives when a broker-dealer offers a limited product menu versus when the broker-dealer has an “open architecture” model.[51] Several industry commenters made recommendations regarding the application of proposed Regulation Best Interest to recommendations of specific categories of securities, such as variable annuities or leveraged exchange-traded products.[52]

With respect to the Conflict of Interest Obligation, many commenters questioned the distinction between financial incentives that would have to be mitigated and other conflicts that would only need to be disclosed, and recommended generally that the distinction be eliminated.[53] In addition, some commenters suggested that the obligation to establish policies and procedures to mitigate conflicts should apply to material conflicts at the level of the natural person who is an associated person (as opposed to the firm).[54] Commenters also asked for more clarity and examples of what conflicts must be mitigated versus eliminated and more guidance on appropriate mitigation methods.[55] Some commenters also expressed the view that by requiring mitigation of financial incentives, proposed Regulation Best Interest would require more of broker-dealers than what is required of investment advisers under their fiduciary duty, which could create a competitive disadvantage for broker-dealers that could further encourage migration from the broker-dealer to investment adviser business model and result in a loss of retail investor access (in terms of choice and cost) to differing types of investment services and products.[56]

In addition, a number of commenters agreed with the Commission's statement that it was not intended to create a private right of action, but many requested that the Commission explicitly state in the final rule that Regulation Best Interest does not confer a private right of action.[57] One Start Printed Page 33325commenter requested that the Commission elaborate and make clear the remedies available to investors when broker-dealers violate Regulation Best Interest and emphasize that scienter is not required to establish a violation of Regulation Best Interest.[58]

Finally, numerous commenters urged the Commission to coordinate with other regulators, in particular the DOL [59] and state securities and insurance regulators,[60] and several commenters opined that the Commission should preempt (or avoid preempting) state law.[61]

After carefully reviewing the comments on the proposed rule, we have determined to retain its overall structure and scope. However, we have modified the proposed rule in a number of respects and are also providing additional interpretations and guidance to address and clarify issues raised by commenters. Summarized below are the key modifications from the proposal, as well as the interpretations and guidance provided.

  • Retail Customer Definition: We are modifying the definition of “retail customer” to include any natural person who receives a recommendation from the broker-dealer for the natural person's own account (but not an account for a business that he or she works for), including individual plan participants.[62] We are interpreting “legal representative of such natural person” to include the nonprofessional legal representatives of such a natural person (e.g., nonprofessional trustee who represents the assets of a natural person).
  • Implicit Hold Recommendations: While broker-dealers will not be required to monitor accounts, in instances where a broker-dealer agrees to provide the retail customer with specified account monitoring services, it is our view that such an agreement will result in buy, sell or hold recommendations subject to Regulation Best Interest, even when the recommendation to hold is implicit.[63]
  • Recommendations of account types, including recommendations to roll over or transfer assets from one type of account to another: We are modifying Regulation Best Interest to expressly apply to account recommendations including, among others, recommendations to roll over or transfer assets in a workplace retirement plan account to an IRA, recommendations to open a particular securities account (such as brokerage or advisory), and recommendations to take a plan distribution for the purpose of opening a securities account.[64] We are also providing guidance under the Care Obligation on what factors a broker-dealer generally should consider when making such recommendations.
  • Dual-Registrants: We are providing additional guidance on how dual-registrants can comply with Regulation Best Interest, and confirming that Regulation Best Interest does not apply to advice provided by a broker-dealer that is dually registered as an investment adviser (“dual-registrant”) when acting in the capacity of an investment adviser, and that a dual-registrant is an investment adviser solely with respect to accounts for which a dual-registrant provides advice and receives compensation that subjects it to the Advisers Act.[65]

We are also clarifying the relationship between the General Obligation and the specific component obligations, and in particular, what it means to “act in the best interest” of the retail customer. As is the case with the fiduciary duty applicable to investment advisers under the Advisers Act, we are not expressly defining in the rule text the term “best interest,” and instead are providing in Regulation Best Interest and through interpretations, what “acting in the best interest” means.[66] Whether a broker-dealer has acted in the retail customer's best interest in compliance with Regulation Best Interest will turn on an objective assessment of the facts and circumstances of how the specific components of Regulation Best Interest—including its Disclosure, Care, Conflict of Interest, and Compliance Obligations—are satisfied at the time that the recommendation is made (and not in hindsight). In response to commenters, we are addressing, among other things, what the General Obligation does and does not require (for example, that it does not impose a continuing duty beyond a particular recommendation), providing specific examples of what would violate Regulation Best Interest, and its application to certain scenarios, particularly in the context of satisfying the Care Obligation.

We are also modifying and clarifying the component obligations that a broker-dealer would be required to satisfy in order to meet the General Obligation:

Disclosure Obligation. We are refining the treatment of conflicts of interest by: (1) Defining in the rule text a “conflict of interest” for purposes of Regulation Best Interest (as opposed to interpreting the phrase “material conflict of interest” as in the Proposing Release) as an interest that might incline a broker-dealer—consciously or unconsciously—to make a recommendation that is not disinterested; and (2) revising the Disclosure Obligation to require disclosure of “material facts” regarding conflicts of interest associated with the recommendation.[67] Similar to the proposal, all such conflicts of interest will be covered by Regulation Best Start Printed Page 33326Interest (e.g., subject to the Conflict of Interest Obligation), however, only “material facts” regarding these conflicts would be required to be disclosed under the Disclosure Obligation.

Furthermore, we are modifying the Disclosure Obligation to explicitly require broker-dealers to provide “full and fair” disclosure of material facts, rather than requiring broker-dealers to “reasonably disclose” such information. We are providing the Commission's view regarding what it means to provide “full and fair” disclosure to retail customers, including the level of specificity of disclosure required, and the form and manner and timing and frequency of such disclosure.[68] We are explicitly requiring the disclosure of material facts relating to the scope and terms of the relationship that were specifically identified in the proposal (i.e., capacity, material fees and charges, and type and scope of services).[69] In connection with disclosure requirements regarding the type and scope of services, we are also clarifying that at a minimum, a broker-dealer needs to disclose whether or not account monitoring services will be provided (and if so, the scope and frequency of those services), account minimums, and any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer.[70] Also we conclude that the basis for a broker-dealer's recommendations as a general matter (i.e., what might commonly be described as the firm's investment approach, philosophy, or strategy) and the risks associated with a broker-dealer's recommendations in standardized (as opposed to individualized) terms are material facts relating to the scope and terms of the relationship that should be disclosed.[71] Below, we outline a method to address oral disclosure and written disclosure provided after the fact.[72]

Care Obligation. We are adopting the Care Obligation largely as proposed; however, we are expressly requiring that a broker-dealer understand and consider the potential costs associated with its recommendation, and have a reasonable basis to believe that the recommendation does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer.[73] Nevertheless, we emphasize that while cost must be considered, it should never be the only consideration. Cost is only one of many important factors to be considered regarding the recommendation and that the standard does not necessarily require the “lowest cost option.” Relatedly, we are emphasizing the need to consider costs in light of other factors and the retail customer's investment profile.

We are also providing additional guidance on what it means to make a recommendation in a retail customer's “best interest.” As in the Proposing Release, determining whether a broker-dealer's recommendation satisfies the Care Obligation will be an objective evaluation turning on the facts and circumstances of the particular recommendation and the particular retail customer. We recognize that a facts and circumstances evaluation of a recommendation makes it difficult to draw bright lines around whether a particular recommendation will meet the Care Obligation. Accordingly, we focus on how a broker-dealer could establish a reasonable basis to believe that a recommendation is in the best interest of its retail customer and does not place the broker-dealer's interest ahead of the retail customer's interest, and the circumstances under which a broker-dealer could not establish such a reasonable belief.

We are clarifying that an evaluation of reasonably available alternatives does not require an evaluation of every possible alternative (including those offered outside the firm) nor require broker-dealers to recommend one “best” product, and what this evaluation will require in certain contexts (such as a firm with open architecture). Furthermore, we clarify that, when a broker-dealer materially limits its product offerings to certain proprietary or other limited menus of products, it must still comply with the Care Obligation—even if it has disclosed and taken steps to prevent the limitation from placing the interests of the broker-dealer ahead of the retail customer, as required by the Disclosure and Conflict of Interest Obligation—and thus could not use its limited menu to justify recommending a product that does not satisfy the obligation to act in a retail customer's best interest.

Conflict of Interest Obligation. We are revising the Conflict of Interest Obligation by: (1) Similar to the proposal, establishing an overarching obligation to establish written policies and procedures to identify and at a minimum disclose (pursuant to the Disclosure Obligation), or eliminate, all conflicts of interest associated with the recommendation; [74] and (2) setting forth explicit requirements to establish written policies and procedures reasonably designed to mitigate or eliminate certain identified conflicts of interest, specifically:

  • Mitigation of Associated Person Conflicts of Interest. We are revising the proposal's mitigation requirement to: (1) Eliminate the distinction between financial incentives and all other conflicts of interest; and (2) focus on mitigating conflicts of interest associated with recommendations that create an incentive for the associated person of the broker-dealer to place the interest of the firm or the associated person ahead of the interest of the retail customer.[75] We are providing further guidance regarding the types of incentives covered by this revised obligation, in particular focusing on compensation or employment related incentives and other incentives provided to the associated person (whether by the broker-dealer or third-parties). We are also confirming, clarifying and expanding on the proposal's guidance on potential mitigation methods to further promote compliance with this obligation.
  • Address Any Material Limitations on Recommendations to Retail Customers. To address the conflicts of interest presented when broker-dealers place any material limitations on the securities or investment strategies involving securities that may be recommended to a retail customer (i.e., only make recommendations of proprietary or other limited range of products), we are requiring broker-dealers to establish, maintain and enforce written policies and procedures reasonably designed to: (1) Identify and disclose any material limitations placed on the securities or investment strategies involving securities that may be recommended and any associated conflicts of interest; and (2) prevent the limitations and associated conflicts of Start Printed Page 33327interest from causing the broker-dealer or their associated persons to make recommendations that place the interest of the broker-dealer or associated person ahead of the interest of the retail customer (for example, a broker-dealer could establish product review processes or establish procedures addressing which retail customers would qualify for the product menu).[76]
  • Elimination of Certain Conflicts. We are requiring broker-dealers to establish written policies and procedures reasonably designed to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sale of specific securities or the sale of specific types of securities within a limited period of time.[77] By explicitly focusing on policies and procedures to eliminate these incentives, it does not mean that all other incentives are presumptively compliant with Regulation Best Interest. Rather, such other incentives and practices that are not explicitly prohibited are permitted provided that the broker-dealer establishes reasonably designed policies and procedures to disclose and mitigate the incentive created to the representative, and the broker-dealer and its associated persons comply with the Care Obligation and the Disclosure Obligation.

General Compliance Obligation. We are establishing a new, general “Compliance Obligation” to require broker-dealers to establish policies and procedures to achieve compliance with Regulation Best Interest in its entirety.[78]

Books and Records. In addition to adopting Regulation Best Interest, we are also adopting the record-making and recordkeeping requirements largely as proposed, with certain explanations and clarifications regarding the scope of these requirements and the extent to which new obligations have been created.[79]

Interaction with Other Standards, Waivers and Private Right of Action. Compliance with Regulation Best Interest will not alter a broker-dealer's obligations under the general antifraud provisions of the federal securities laws. Regulation Best Interest applies in addition to any obligations under the Exchange Act, along with any rules the Commission may adopt thereunder, and any other applicable provisions of the federal securities laws and related rules and regulations.[80]

Scienter will not be required to establish a violation of Regulation Best Interest. We note that the preemptive effect of Regulation Best Interest on any state law governing the relationship between regulated entities and their customers would be determined in future judicial proceedings based on the specific language and effect of that state law. We believe that Regulation Best Interest, Form CRS, and the related rules, interpretations and guidance that the Commission is concurrently issuing will serve as focal points for promoting clarity, establishing greater consistency in the level of retail customer protections provided, and easing compliance across the regulatory landscape and the spectrum of investment professionals and products. In addition, under Section 29(a) of the Exchange Act, a broker-dealer will not be able to waive compliance with Regulation Best Interest, nor can a retail customer agree to waive her protections under Regulation Best Interest.

Furthermore, we do not believe Regulation Best Interest creates any new private right of action or right of rescission, nor do we intend such a result.

D. Overview of Key Enhancements

With these modifications and clarifications, Regulation Best Interest is designed to improve investor protection by:

  • Requiring broker-dealers to have a reasonable basis to believe that recommendations are in the retail customer's best interest, which enhances existing suitability obligations by: Requiring compliance not only with the explicit Care Obligation, but also with Disclosure, Conflict of Interest, and Compliance Obligations; expressly requiring consideration of cost in evaluating a recommendation as part of the Care Obligation; expressing our views regarding the consideration of reasonably available alternatives when making a recommendation as part of the Care Obligation; applying Regulation Best Interest to recommendations of account types and rollovers and to any recommendations resulting from agreed-upon account monitoring services (including implicit hold recommendations); and, applying the Care Obligation to a series of recommended transactions (currently referred to as “quantitative suitability”) irrespective of whether a broker-dealer exercises actual or de facto control over a customer's account;
  • requiring broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to mitigate (and in some cases, eliminate) certain identified conflicts of interest that create incentives to make recommendations that are not in the retail customer's best interest; these new requirements are a significant and critical enhancement as existing requirements under the federal securities laws largely center upon conflict disclosure rather than conflict mitigation;
  • requiring disclosure under the Disclosure Obligation of the material facts relating to the scope of terms of a broker-dealer's relationship with the retail customer and the conflicts of interest associated with a broker-dealer's recommendations, which will foster retail customers' understanding of their relationship with the broker-dealer and help them to evaluate the recommendations received; and
  • requiring broker-dealers to establish, maintain and enforce written policies and procedures reasonably designed to achieve compliance with Regulation as a whole, which will further promote broker-dealer compliance with Regulation Best Interest.

Through these new requirements, we believe that Regulation Best Interest will improve investor protection by enhancing the quality of broker-dealer recommendations to retail customers and reducing the potential harm to retail customers that may be caused by conflicted brokerage recommendations. We also believe Regulation Best Interest achieves these enhancements in a manner that is workable for the transaction-based relationship offered by broker-dealers, thus preserving, to the extent possible, retail investor access (in terms of choice and cost) to different types of quality investment services and products. As discussed above, Regulation Best Interest will complement Form CRS and related rules, interpretations, and guidance that the Commission is concurrently issuing.Start Printed Page 33328

II. Discussion of Regulation Best Interest

A. General Obligation

As in the Proposing Release, Regulation Best Interest is set forth in two subparagraphs: (1) An overarching provision setting forth a general best interest obligation (“General Obligation”); and (2) a second provision requiring compliance with specific obligations in order to satisfy the overarching standard (discussed below in Section II.C).[81] Specifically, as in the Proposing Release, the General Obligation requires that a broker-dealer “shall act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of [the broker-dealer] . . . ahead of the interest of the retail customer.” [82]

Most commenters, including a majority of the IAC, expressed opinions on this approach, and in particular on the General Obligation, including whether the obligation should be a “fiduciary” standard, whether it should be a uniform standard for broker-dealers and investment advisers,[83] and whether the standard should be more principles-based or more prescriptive (in particular, whether to define “best interest”).[84]

The views of commenters on the approach to an enhanced standard of conduct for broker-dealers varied widely. A number of commenters supported a broker-dealer specific standard of conduct.[85] Several of these commenters supported the Commission's approach as proposed, with certain modifications to the specific component obligations discussed below.[86] Some commenters urged the Commission to change the standard from what the commenters called “suitability-plus” to what the commenters called a “true best interest standard,” including the avoidance of certain conflicts,[87] and urged the Commission to change the name of Regulation Best Interest unless it required firms to always be responsible for acting in the retail customer's best interest (as opposed to at the time of the recommendation).[88] Other commenters advocated for the adoption of a broker-dealer standard modeled after FINRA suitability rules,[89] and some suggested that the Commission create a safe harbor from liability for compliance with Regulation Best Interest.[90]

By contrast, other commenters recommended that the Commission adopt a uniform standard of conduct for investment advisers and broker-dealers, in varying forms.[91] Commenters expressed differing views on the form of such a uniform standard of conduct, including that the Commission should adopt: a fiduciary standard for broker-dealers similar to, or no less stringent than, the fiduciary duty under the Advisers Act; [92] a uniform fiduciary standard as articulated in Section 913(g) of the Dodd-Frank Act [93] and/or consistent with the recommendations of the staff's Section 913 Study; [94] or a uniform standard similar to the DOL standard as reflected in the BIC Exemption; [95] harmonized requirements and guidance for broker-dealers and investment advisers offering services to retail customers; [96] or a new uniform best interest standard, with common core elements.[97]

In this vein, a number of commenters suggested specific revisions to the text of the General Obligation to clarify what the standard requires with respect to broker-dealer conflicts of interest, including that the Commission change the proposed “without placing the financial or other interest [of the broker-dealer] ahead” language to a standard that requires a recommendation be made “without regard to” a broker-dealer's interest [98] and/or requires the broker-dealer to “place the customer's interest first” or ahead of its own.[99] These commenters stated that changing the proposed language to a “without regard to” and/or “place the customer's interest first” phrasing would result in a stronger standard, whereas the proposed phrasing would allow a broker-dealer to act in its own interests as long as the broker-dealer does not put its interests ahead of its customers' interest.[100] These commenters stated that broker-dealers must put aside their own interest when determining what is best for the retail customer, that broker-dealers must ensure that conflicts do not taint recommendations.[101]

Some commenters challenged the Commission's concern that the “without regard to” language “could be inappropriately construed to require a broker-dealer to eliminate all of its conflicts,” arguing that their position is supported by the plain meaning of the language and the context of 913(g) (which explicitly recognizes conflicts in certain areas), and the interpretations by others (such as the DOL) who have used it.[102] Highlighting what commenters viewed as inconsistencies in the Proposing Release's interpretation of the proposed “without placing . . . ahead” phrasing, such as statements that the obligation would require broker-dealers to “put aside their interests” when Start Printed Page 33329making a recommendation versus others suggesting that a broker-dealer's interests cannot “predominantly motivate” or be the “sole basis” for the recommendation, some commenters suggested we either adopt the “without regard to” phrasing or state that the proposed phrasing requires a broker-dealer to put aside its interests.[103] Some commenters further stated that the “without regard to” phrasing, which is used in Section 913(g) of the Dodd-Frank Act, is the stronger standard of conduct that Congress intended, and challenged the Commission's reliance on the authority provided in Section 913(f).[104] In this vein, some commenters suggested that the Commission should adopt a uniform standard of conduct for broker-dealers and investment advisers that was authorized under Section 913(g), and recommended by the staff in the Section 913 Study.[105]

Other commenters, however, supported the proposal's “without placing . . . ahead” formulation.[106] These commenters expressed concern that a “without regard to” standard would require “conflict free” recommendations, which would limit compensation structures and the offering of certain products.[107] Instead, commenters stated that the appropriate role of a best interest standard is to require disclosure and management of conflicts of interest.[108] Others generally supported, or did not object to, the Commission's decision not to proceed under its 913(g) authority in its current proposal.[109]

A common theme across many comments was the need for additional guidance on what “best interest” means, with some commenters recommending that the Commission codify its interpretation of “best interest” or provide a more specific definition of what it means to act in the “best interest.” [110] Several commenters suggested that the “best interest” standard should require the “best” or most beneficial product available,[111] while others (including a majority of the IAC) requested that the Commission clarify that there is no single “best” recommendation and that the obligation is to adhere to a professional standard of conduct when making a recommendation.[112] Some commenters suggested defining “best interest” as including a duty of loyalty and care.[113] Several also suggested that the Commission incorporate best execution and fair pricing and compensation as factors for determining compliance with the standard.[114]

Several commenters recommended that the Commission adopt a definition of best interest that is consistent with the best interest obligation described by the DOL in the BIC Exemption's Impartial Conduct Standards,[115] and supported a standard which would require a broker-dealer to act “solely” in the interest of the retail customer when making a recommendation.[116] Conversely, other commenters recommended that the “best interest” standard could be satisfied even if the recommendations are in part influenced by “self-promotion.” [117]

Finally, in lieu of a prescribed definition of “best interest,” a number of commenters advocated for a facts-and-circumstances or “totality of the circumstances approach” for determining compliance with the “best interest” standard.[118] A majority of the IAC recommended that the meaning of the best interest obligation should be clarified to require “broker-dealers, investment advisers, and their associated persons to recommend the investments, investment strategies, accounts or services, from among those they have reasonably available to recommend, that they reasonably believe represent the best available options for the investor.” [119]

After careful consideration of these comments, we continue to believe that our proposed approach for enhancing the standards of conduct that apply to broker-dealers' recommendations to retail customers is the appropriate approach, and therefore we are adopting as proposed the structure and scope of Regulation Best Interest, including the phrasing of the General Obligation, and are not expressly defining “best interest” in the rule text.[120] However, in consideration of these comments, we are providing our views on what the standard generally requires, what it is intended to achieve, and its alignment in many respects with fiduciary principles.

1. Commission's Approach

After extensive consideration, and for the reasons discussed in the Proposing Release and further below, we are adopting a rule to enhance the existing broker-dealer conduct obligations when they make recommendations to a retail customer.[121] At the same time, we seek to preserve retail investor access (in terms of choice and cost) to differing types of investment services and products.

The Commission is adopting Regulation Best Interest pursuant to the Start Printed Page 33330express and broad grant of rulemaking authority in Section 913(f) of the Dodd-Frank Act.[122] As some commenters noted, Section 913(g) expressly authorizes the Commission to adopt rules that would hold broker-dealers to the same standard of conduct as investment advisers. However, the availability of overlapping, yet distinct, rulemaking power under Section 913(g) does not negate the grant of authority under Section 913(f). The plain text of Section 913(f) authorizes the Commission to promulgate this rule addressing the legal and regulatory standards of care for broker-dealers, and their associated persons.

The Commission is utilizing its authority under 913(f) in order to adopt an enhanced investor-protection standard for broker-dealers that maintains the availability of both the broker-dealer model and the investment adviser model. The Commission has chosen not to apply the existing fiduciary standard under the Advisers Act to broker-dealers in part because of concerns that such a shift would result in fewer broker-dealers offering transaction-based services to retail customers, which would in turn reduce choice and may raise costs for certain retail customers.

Moreover, the Commission has chosen not to create a new uniform standard applicable to both broker-dealers and investment advisers which, among other things, would discard decades of regulatory and judicial precedent and experience with the fiduciary duty for investment advisers that has generally worked well for retail clients and our markets. We believe that adopting a “one size fits all” approach would not appropriately reflect the fact that broker-dealers and investment advisers play distinct roles in providing recommendations or advice and services to investors, and may ultimately harm retail investors. Instead, the Commission has chosen to enhance existing obligations for broker-dealers when they make recommendations to a retail customer, while, in a separate interpretation, reaffirming and in some cases clarifying an investment adviser's fiduciary duty.[123]

Regulation Best Interest considers and incorporates (to the extent appropriate) obligations that apply to investment advice in other contexts, with the goal of fostering greater consistency and clarity in the level of protection provided to retail customers at the time that a recommendation is made. We are tailoring these principles to the structure and characteristics of the broker-dealer relationship with retail customers and building upon existing regulatory obligations. As a result, Regulation Best Interest protects investors who seek access to the services, products, and payment options offered by broker-dealers.

Although we are not applying the existing fiduciary standard under the Advisers Act to broker-dealers, key elements of the standard of conduct that applies to broker-dealers under Regulation Best Interest will be substantially similar to key elements of the standard of conduct that applies to investment advisers pursuant to their fiduciary duty under the Advisers Act [124] at the time that a recommendation is made. Regulation Best Interest's regulatory structure is unique to broker-dealers—and is tailored to the broker-dealer business model—but regardless of whether a retail investor chooses a broker-dealer or an investment adviser (or both), the retail investor will be entitled to a recommendation (from a broker-dealer) or advice (from an investment adviser) that is in the best interest of the retail investor and that does not place the interests of the firm or the financial professional ahead of the interests of the retail investor.

As discussed in the proposal, and in the discussion below, Regulation Best Interest, as adopted, incorporates Care and Conflict of Interest Obligations substantially similar to the fiduciary duties of care and loyalty under Section 206(1) and (2) of the Advisers Act, even if not in the same manner as the 913 Study recommendations or identical to the duties under the Advisers Act.[125] We extensively considered the 913 Study as part of developing Regulation Best Interest, as discussed in the Proposing Release, and believe that the enhancements to the broker-dealer standard of conduct incorporate, and in many aspects (such as the concept of mitigation, and the detailed Care Obligation), build upon and go beyond the recommendations in the 913 Study.

Although key elements are substantially similar, the Commission notes that the obligations of a broker-dealer under Regulation Best Interest and the obligations of an investment adviser pursuant to its fiduciary duty under the Advisers Act differ in certain respects, taking into account the scope of the services and relationships typically offered by broker-dealers and Start Printed Page 33331investment advisers. For example, an investment adviser's duty of care encompasses the duty to provide advice and monitoring at a frequency that is in the best interest of the client, taking into account the scope of the agreed relationship. This difference reflects the generally ongoing nature of the advisory relationship, and the Commission's view that, within the scope of the agreed adviser-client relationship, investment advisers' fiduciary duty generally applies to the entire relationship. In contrast, the provision of recommendations in a broker-dealer relationship is generally transactional and episodic, and therefore the final rule requires that broker-dealers act in the best interest of their retail customers at the time a recommendation is made and imposes no duty to monitor a customer's account following a recommendation.

As noted above, Regulation Best Interest also generally imposes more specific obligations on broker-dealers under the Disclosure, Care and Conflict of Interest Obligations (each of which is discussed in detail below) than the principles-based requirements of investment advisers' fiduciary duty under the Advisers Act. This approach is intended to tailor the application of principles that have developed in the context of a different business model over the course of almost 80 years. Moreover, this more specific and tailored approach drawing on key fiduciary principles (1) is consistent with the generally rules-based regulatory regime that applies to broker-dealers, (2) acknowledges that certain relevant obligations may already be addressed by existing broker-dealer requirements (e.g., broker-dealers are already subject to a duty of best execution), (3) allows us to impose requirements that we are believe are more appropriately tailored to address the specific conflicts raised by the transaction-based nature of the broker-dealer model, and (4) recognizes that it would be inappropriate to apply to certain generally applicable obligations of investment advisers (e.g., duty to monitor) in the context of a transaction-based relationship.

These specific obligations include express requirements relating to the Care Obligation, requiring that a broker-dealer exercise reasonable diligence, care, and skill to: (1) Understand the risks, rewards and costs of a recommendation; (2) have a reasonable basis to believe that the recommendation is in the best interest of a particular retail customer, based on the retail customer's investment profile, and that the recommendation does not place the broker-dealer's interest ahead of the retail customer's interest; and (3) have a reasonable basis to believe that a series of transactions is in the best interest of the retail customer and does not place the interest of the broker-dealer ahead of the retail customer's interests. Regulation Best Interest imposes a duty of care that enhances existing suitability obligations (as discussed further below). It also includes a requirement under the Care Obligation to specifically address the risk that a broker-dealer's transaction-based recommendations and compensation could result in a series of recommendations that are not in the best interest or a retail customer—a “churning” risk unique to the broker-dealer model of providing recommendations and resulting transaction-based compensation.

Regulation Best Interest also includes a requirement under the Conflict of Interest Obligation for broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to (1) mitigate conflicts of interest at the associated person level, (2) specifically address the conflicts of interest presented when broker-dealers place material limitations on the securities or products that may be recommended (i.e., only make recommendations of proprietary or other limited range of products), and (3) eliminate sales contests, bonuses, and non-cash compensation that are based on the sales of specific securities or specific types of securities within a limited period of time. The conflicts of interest associated with incentives at the associated person level and limitations on the securities or products that may be recommended to retail customers have raised particular concerns in the context of the broker-dealer, transaction-based relationship. Accordingly, the Commission believes specific disclosure and additional mitigation requirements are appropriate to address those conflicts. Sales contests, sales quotas, bonuses and non-cash compensation that are based on the sales of specific securities within a limited period of time create high-pressure situations for associated persons to increase the sales of specific securities or specific types of securities within a limited period of time and thus compromise the best interests of their retail customers. The Commission does not believe such conflicts of interest can be reasonably mitigated and, accordingly, they must be eliminated.

Phrasing of Standard

We are adopting the phrasing “act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the [broker-dealer] ahead of the interest of the retail customer” as it was proposed.[126] In response to comments, we are clarifying our views on what this standard entails and how it compares to the “without regard to” language of Section 913.

By replacing the “without regard to” language of Section 913(g) and the 913 Study with the “without placing the financial or other interest of the [broker-dealer] . . . ahead of the interest of the retail customer” phrasing, we did not intend to create a “lower” or “weaker” standard compared to the language of Section 913(g) and the 913 Study. Rather, we are adopting a standard that reflects that a broker-dealer should not put its interests ahead of the retail customer's interest, and thereby aligns with (and in certain areas imposes more specific obligations than) the investment adviser fiduciary duty, at the time a broker-dealer makes a recommendation to a retail customer.

As discussed in the Proposing Release, we do not intend for our standard to require a broker-dealer to provide conflict-free recommendations. For example, under Regulation Best Interest, a broker-dealer could recommend a more expensive or more remunerative security or investment strategy if the broker-dealer has a reasonable basis to believe there are other factors about the security or investment strategy that make it in the best interest of the retail customer, based on that retail customer's investment profile.[127]

We also agree with commenters that we do not believe that is the intent behind the “without regard to” phrase, as included in Section 913 of the Dodd-Frank Act or recommended in the 913 Study, as is evident both from other provisions of Section 913 that acknowledge and permit the existence of financial interests under that standard, and how our staff articulated the recommended uniform fiduciary standard in the 913 Study.128 Start Printed Page 33332Nevertheless, we are concerned that there is a risk that the “without regard to” language would be inappropriately construed to require a broker-dealer to eliminate all of its conflicts when making a recommendation (i.e., require recommendations that are conflict free), which we believe could ultimately harm retail investors by reducing their access to differing types of investment services and products and by increasing their costs.

The potential for a range of different meanings to be given to the phrase “without regard to” was heightened by the DOL's use of this same language for purposes of the Impartial Conduct Standards set forth in the BIC Exemption. We recognize, as noted by some commenters, that the DOL interpretation of this phrase does not require “conflict-free” recommendations. Nevertheless, because of the differences in the approach to the treatment of conflicts under ERISA and under the federal securities laws—ERISA starts by prohibiting conflicts and then through exemptions permits certain conflicts, whereas the federal securities laws generally start with disclosure and become more restrictive—we share commenters' concerns that DOL's use of the “without regard to” language could alter the way in which conflicts are viewed and cause a substantial portion of conduct that is currently permitted, and reasonably accepted and desired by retail customers, to be limited or eliminated. Based on market participant experience with the implementation of—and reaction to the subsequent overturning of—the DOL Fiduciary Rule, in particular the BIC Exemption,[129] we continue to believe that it is better to use language that provides similar investor protections, but does not raise these legal ambiguities.

The “without placing the financial or other interest . . . ahead of the interest of the retail customer” phrasing recognizes that while a broker-dealer will inevitably have some financial interest in a recommendation—the nature and magnitude of which will vary—the broker-dealer's interests cannot be placed ahead of the retail customer's interest.[130] Accordingly, we believe this phrasing establishes a standard that enhances investor protection by prohibiting a broker-dealer from placing its interests ahead of the retail customer's interests, and preserves investor access (in terms of both choice and cost) to differing types of investment services and products.

The phrasing also aligns with an investment adviser's fiduciary obligation. As discussed in the Fiduciary Interpretation, an investment adviser's fiduciary duty under the Advisers Act comprises a duty of care and a duty of loyalty.[131] The fiduciary duty requires that an adviser “adopt the principal's goals, objectives, or ends.” [132] This means the adviser must, at all times, serve the best interest of its clients and not subordinate its client's interest to its own. In other words, the investment adviser cannot place its own interests ahead of the interests of its client.[133] This combination of care and loyalty obligations has been characterized as requiring the investment adviser to act in the “best interest” of its client at all times.[134]

Language that would require a broker-dealer to put the retail customer's interest “first” arguably raises many of the same concerns as the “without regard to” language. Accordingly, we are adopting a formulation in Regulation Best Interest that is consistent with how we describe the duty of loyalty for investment advisers in the Fiduciary Interpretation—that is, a requirement not to place the adviser's interests ahead of the interests of its client.[135]

While we are not revising this phrasing of the standard, we appreciate concerns raised by commenters about clarifying whether this standard permits broker-dealers to allow their conflicts to taint their recommendations or to allow broker-dealers to make recommendations that are motivated by their own interests or to put their interests first. We discuss below what it means to “act in the best interests,” particularly in the context of satisfying the Care and Conflict of Interest Obligations. Specifically, we clarify that the obligations set forth in Regulation Best Interest are intended to require broker-dealers to take steps to reduce the effect of (and in some cases eliminate) conflicts that create an incentive to place a broker-dealer's or an associated person's interest ahead of the retail customer's interest when making a recommendation, and to make recommendations in the best interest of the retail customer even where conflicts continue to exist. We believe that this approach will result in a standard of conduct that is consistent with what a reasonable retail customer would expect.[136]

Start Printed Page 33333

Finally, although our standard draws from key fiduciary principles, for various reasons, including to emphasize that Regulation Best Interest is tailored to the broker-dealer relationship and distinct from the investment adviser fiduciary duty, we are not referring to Regulation Best Interest as a “fiduciary” standard, and we emphasize that Regulation Best Interest is separate from any common law analysis of whether a broker-dealer has fiduciary duties.[137] As noted in the proposal, fiduciary standards vary, for example, for investment advisers, banks acting as trustees or fiduciaries, and fiduciaries to ERISA plans. As we have learned through our consideration of the Relationship Summary Proposal, and from various investor studies, using the term “fiduciary” to describe the standard may not sufficiently convey meaning regarding the specific substance of the standard.[138] In addition, we appreciate commenters' concerns that using the term in the context of a different relationship may introduce further legal or compliance ambiguity.[139]

As articulated in the Proposing Release, we appreciate the desire for clarity about the requirements imposed by Regulation Best Interest, and we have sought to provide such clarity by specifying by rule the specific components with which a broker-dealer is required to comply to satisfy its best interest obligation. The changes we are making from the Proposing Release to this final Regulation Best Interest and the additional interpretations and guidance we are providing are intended to further clarify how a broker-dealer could comply with these requirements.

As noted above and discussed in the Fiduciary Interpretation, an investment adviser's fiduciary duty under the Advisers Act requires the adviser to act in the best interests of its clients. We have chosen to describe the standard by referring directly to what the standard requires at the time a recommendation is made.[140] Furthermore, while key elements of the standard of conduct that applies to broker-dealers under Regulation Best Interest will be substantially similar to key elements of the standard of conduct that applies to investment advisers pursuant to their fiduciary duty under the Advisers Act at the time that a recommendation is made, we are concerned that using the term “fiduciary” to describe a broker-dealer's obligations under Regulation Best Interest may create confusion by suggesting that the standards of conduct are identical in all respects, when there are key differences as noted above, including the scope of the of the duty (e.g., the application of the adviser's fiduciary duty to the entire relationship versus Regulation Best Interest's recommendation-specific application, and the application of an adviser's fiduciary duty to all clients as opposed to Regulation Best Interest's application to retail customers).[141]

Similarly, while we are not harmonizing the phrasing of the best interest standard with the DOL's definition of “best interest” as reflected in the BIC Exemption's Impartial Conduct Standards, as suggested by some commenters,[142] or otherwise adopting some or all conditions of the BIC Exemption, we gave careful consideration to the DOL Fiduciary Rule in developing Regulation Best Interest.[143] Regulation Best Interest takes into account both market participant experience with the implementation of—and reaction to the subsequent overturning of the DOL Fiduciary Rule, in particular the BIC Exemption. As discussed in the Proposing Release, we believe Regulation Best Interest is consistent with many of the key components of the DOL's Impartial Conduct Standards. Regulation Best Interest incorporates principles underlying the DOL Fiduciary Rule—such as the concept of conflict mitigation—that, based on our expertise in regulating the broker-dealer industry, we believe would further our goal of reducing the effect of conflicts on recommendations and would promote recommendations in the best interest of the retail customer even where conflicts continue to exist.

2. General Obligation To “Act in Best Interest”

We agree with commenters that further clarity should be provided on what it means to “act in the best interest” of a retail customer and particularly what it means to make a recommendation in a retail customer's “best interest” under the Care Obligation. In the guidance that follows and in the detailed discussion of each of the Disclosure, Care, Conflict of Interest, and Compliance Obligations in Section II.C below, we provide further clarity on how a broker-dealer acts in a retail customer's best interest when making a recommendation.

First, in response to comments, we are clarifying the relationship between the General Obligation and the specific component obligations described in Section II.C. These specific component obligations expressly set forth what it means to “act in the best interest” of the retail customer in accordance with the General Obligation. As articulated in the proposal, and discussed in more detail in the relevant sections specifically addressing these obligations, these specific component obligations draw on principles underlying the fiduciary duties of care and loyalty interpreted under the Advisers Act and as recommended in the 913 Study. However, we believe that adopting specific regulatory obligations for broker-dealers appropriately reflects the structure and characteristics of broker-dealer relationships with retail customers and the extensive existing regulatory regime applicable to broker-dealers. Regulation Best Interest does not establish a “safe harbor.” The specific component obligations of Regulation Best Interest are mandatory, and failure to comply with any of the components would violate the General Obligation. By contrast, compliance with a safe harbor is optional, and failure to comply with the terms of the safe harbor does not necessarily violate the relevant legal requirement.

Second, while we are declining to expressly define “best interest” in the Start Printed Page 33334rule text as suggested by some commenters, we are providing interpretations and guidance regarding the application of the specific component obligations and in particular what it means to make a recommendation in the retail customer's “best interest.” Consistent with the proposal, compliance with each of the specific component obligations of Regulation Best Interest, including the “best interest” requirement in the Care Obligation, will be applied in a principles-based manner. This principles-based approach to determining what is in the “best interest” is similar to an investment adviser's fiduciary duty, which has worked well for advisers' retail clients and our markets. As proposed, whether a broker-dealer has acted in the retail customer's best interest will turn on an objective assessment of the facts and circumstances of how the specific components of Regulation Best Interest are satisfied at the time that the recommendation is made (and not in hindsight). In particular, whether a broker-dealer's recommendation satisfies the requirements of the Care Obligation is an objective evaluation that is not susceptible to a bright line test; rather it turns on the facts and circumstances of the particular recommendation and the particular retail customer, at the time the recommendation is made. This facts-and-circumstances approach recognizes that one size does not fit all, and what is in the best interest of one retail customer may not be in the best interest of another.

We understand that markets evolve and we encourage broker-dealers to have an open dialogue with the Commission and Commission's staff as questions arise.

As a general matter, however, in response to comments, we are changing guidance in the Proposing Release stating that under Regulation Best Interest, a broker-dealer's financial interests cannot be the “predominant motivating factor behind” a recommendation, and that a “broker-dealer would violate proposed Regulation Best Interest's Care Obligation and Conflict of Interest Obligations, if any recommendation was predominantly motivated by the broker-dealer's self-interest.” [144] Many commenters expressed concerns regarding and requested removal of the “predominantly motivated” language, stating that it contradicted statements that there was no scienter requirement under Regulation Best Interest by requiring a consideration of intent, creating ambiguity as to what extent a broker-dealer's interests could influence its recommendations or requiring a weighing of the broker-dealer's interests against the retail customer's interests.[145] Some commenters, however, indicated support for the “predominantly motivated language” in the context of agreeing with the Commission's proposed “without placing the financial or other interest . . . ahead” phrasing of the best interest standard.[146]

In consideration of these comments, we are modifying these statements to remove this language and to clarify our intent. Specifically, Regulation Best Interest recognizes that while a broker-dealer will inevitably have some financial interest in a recommendation—the nature and magnitude of which will vary—the broker-dealer's interests cannot be placed ahead of the retail customer's interest.[147] Accordingly, Regulation Best Interest will not per se prohibit a broker-dealer from making recommendations where conflicts of interest are present.[148] Instead, Regulation Best Interest includes specific requirements for broker-dealers to address their conflicts of interest.[149] These specific requirements are designed to promote recommendations that are in the best interest of the retail customer despite the existence of these conflicts of interest. In other words, recommendations involving conflicts of interest between the broker-dealer and the retail customer will be permissible under Regulation Best Interest only to the extent that the broker-dealer satisfies the specific requirements of Regulation Best Interest.

Further, for the reasons discussed in the proposal, we confirm that Regulation Best Interest is not intended to limit or eliminate recommendations that encourage diversity in a retail customer's portfolio through investment in a wide range of products, including, when appropriate, products that may involve higher risks or cost to the retail customer, as these products may be in the best interest of certain retail customers at certain times or in certain circumstances.[150] Regulation Best Interest will not necessarily obligate a broker-dealer to recommend the “least expensive” or the “least remunerative” security or investment strategy, provided the broker-dealer complies with the specific component obligations.[151] In other words, Regulation Best Interest will allow a broker-dealer to recommend products that entail higher costs or risks for the retail customer, or that result in greater compensation to the broker-dealer, or that are more expensive, than other products, provided that the broker-dealer complies with the specific component obligations detailed below,[152] including the requirement to make these recommendations exercising reasonable diligence, care, and skill to have a reasonable basis to believe that the recommendation is in the retail customer's best interest and does not place the broker-dealer's interest ahead of the retail customer's interest.

Finally, some commenters sought additional clarity whether Regulation Best Interest would extend beyond a particular recommendation, impose a duty to monitor the retail customer's account, or apply to unsolicited orders.[153] We confirm that, consistent with the Proposing Release and as discussed further below, Regulation Best Interest would not: (1) Extend beyond a particular recommendation [154] or generally require a broker-dealer to have a continuous duty to a retail customer or impose a duty to monitor; [155] (2) require the broker-dealer Start Printed Page 33335to refuse to accept a customer's order that is contrary to the broker-dealer's recommendation; or (3) apply to self-directed or otherwise unsolicited transactions by a retail customer, whether or not she also receives separate recommendations from the broker-dealer.

B. Key Terms and Scope of Best Interest Obligation

1. Natural Person Who Is an Associated Person

In the Proposing Release, we stated that a “natural person who is an associated person” is a natural person who is an associated person as defined in Section 3(a)(18) of the Exchange Act: “any partner, officer, or director or branch manager of such broker or dealer (or any person occupying a similar status or performing similar functions); any person directly or indirectly controlling, controlled by, or under common control with such broker or dealer; or any employee of such broker or dealer, except that any person associated with a broker or dealer whose functions are solely clerical or ministerial shall not be included in the meaning of such term for purposes of Section 15(b) of this title (other than paragraph 6 thereof).” [156] In limiting the term to only a “natural person who is an associated person,” we sought to exclude affiliated entities of the broker-dealer that are not themselves broker-dealers, as they are not the intended focus of Regulation Best Interest.[157]

We solicited comment on whether the application of the definition was appropriate, alternative definitions should be considered, or the scope should be broadened or narrowed. We received no comments and, for the reasons discussed in the Proposing Release, are using the term “natural person who is an associated person,” consistent with the definition in Section 3(a)(18) of the Exchange Act.[158]

2. Recommendation of Any Securities Transaction or Investment Strategy Involving Securities

We proposed to apply Regulation Best Interest to broker-dealer recommendations of any securities transaction or investment strategy involving securities to a retail customer. We believed that by applying Regulation Best Interest to a “recommendation,” as that term is currently interpreted under broker-dealer regulation, we would make clear when the obligation applied and would maintain efficiencies for broker-dealers that have already established infrastructures to comply with suitability obligations, which are recommendation-based.[159] Moreover, we believed that focusing on each recommendation would appropriately capture and reflect the various types of recommendations that broker-dealers make to retail customers, whether on an episodic, periodic, or more frequent basis and would help ensure that retail customers receive the protections that Regulation Best Interest is intended to provide. We received numerous comments supporting our general proposed approach to what is a “recommendation,” while several commenters suggested modifications regarding the scope of a recommendation or sought additional clarity regarding particular scenarios.[160]

As we indicated in the Proposing Release, in our view, the determination of whether a broker-dealer has made a recommendation that triggers application of Regulation Best Interest should turn on the facts and circumstances of the particular situation and therefore, whether a recommendation has taken place is not susceptible to a bright line definition. Factors considered in determining whether a recommendation has taken place include whether the communication “reasonably could be viewed as a `call to action'” and “reasonably would influence an investor to trade a particular security or group of securities.” [161] The more individually tailored the communication to a specific customer or a targeted group of customers about a security or group of securities, the greater the likelihood that the communication may be viewed as a “recommendation.” We continue to believe this general framework regarding what is a recommendation is appropriate, and for the reasons discussed in the Proposing Release, are taking this approach.[162]

While certain commenters recommended formally defining the term “recommendation,” including what does not come within that term,[163] other commenters maintained there is no need to define “recommendation” and expressed support for harmonizing the term in accordance with existing broker-dealer guidance and case law.[164] We agree with commenters that clarity is important, and we continue to believe that the current principles-based approach underlying existing Commission precedent and guidance will provide effective clarity. Being more prescriptive could result in a definition that is over inclusive, under inclusive, or both.[165] We believe that what constitutes a recommendation is highly fact-specific and not conducive to an express definition in the rule text. Furthermore, we believe that the existing framework has worked well, that broker-dealers generally are familiar with the existing framework, and therefore, that this approach should continue. Accordingly, we are taking the approach as set forth in the Proposing Release, which we believe provides a workable framework and clarity for broker-dealers regarding the contours of a recommendation. To provide further clarity, in response to comments, we describe below the types of communications that we generally view Start Printed Page 33336as falling outside of the scope of a recommendation.

We are also generally confirming our interpretation in the Proposing Release of the phrase “any securities transaction or investment strategy involving securities.” However, in response to comments regarding the coverage of certain securities or investment strategies, we are providing further clarity regarding our interpretation of this phrase, and in certain instances, refining our interpretation. For example, as discussed more fully below, we are confirming our interpretation that recommendations of “any securities transaction” (purchase, sale, or exchange) and any “investment strategy” involving securities (including an explicit hold recommendation) are recommendations “of any securities transaction or investment strategy involving securities.”

In addition, we are generally confirming our interpretation that a broker-dealer may agree with a retail customer to take on additional obligations beyond those imposed by Regulation Best Interest, for example, by agreeing with a retail customer to provide monitoring of the retail customer's investments on a periodic basis for purposes of recommending changes in investments.[166] In response to comments, it is our position that when a broker-dealer agrees [167] with a retail customer to monitor that customer's account: (1) The broker-dealer is required to disclose the terms of such account monitoring services (including the scope and frequency of those services) pursuant to the Disclosure Obligation [168] and (2) such agreed-upon monitoring involves an implicit recommendation to hold (i.e., recommendation not to buy, sell, or exchange assets pursuant to that securities account review) at the time the agreed-upon monitoring occurs, which is a recommendation “of any securities transaction or investment strategy involving securities” covered by Regulation Best Interest.[169] As discussed further below, in our view, a recommendation of “an investment strategy” includes implicit hold recommendations in this context, where the broker-dealer has agreed to monitor a retail customer's account.[170] We are interpreting the phrase “any security transaction or investment strategy” to include instances where there is an agreement to monitor because in this context there is an implicit recommendation to hold at the time the agreed-upon monitoring occurs when the broker-dealer does not provide an express recommendation to buy, sell, or hold.[171]

We recognize that a broker-dealer may voluntarily, and without any agreement with the customer, review the holdings in a retail customer's account for the purposes of determining whether to provide a recommendation to the customer. We do not consider this voluntary review to be “account monitoring,” nor would it in itself create an implied agreement with the retail customer to monitor the customer's account. Any explicit recommendation made to the retail customer as a result of any such voluntary review would be subject to Regulation Best Interest.

Finally, in response to comments received, we have modified the rule text to provide that an “investment strategy involving securities” includes “account recommendations.” We interpret “account recommendations” to include recommendations of securities account types generally, as well as recommendations to roll over or transfer assets from one type of account to another (e.g., workplace retirement plan to an IRA). As discussed in more detail below, we believe that recommendations of securities account types are consistent with the types of recommendations that have been treated as investment strategies,[172] because the Start Printed Page 33337type of securities account recommended is an investment strategy that has the potential to greatly affect retail customers' costs and investment returns.[173] For example, different types of securities accounts can offer different features, products, or services, some of which may—or may not—be in the best interest of certain retail customers.[174] Our interpretation is consistent with a majority of the IAC and other commenters that stated that such important recommendations relating to securities are “investment strategies involving securities” and thus within the scope of Regulation Best Interest.[175] We note that, although we are specifically identifying “account recommendations” as an investment strategy involving securities in the rule text, an account recommendation is just one example of an investment strategy.

a. Recommendation

We interpret whether a “recommendation” has been made to a retail customer that triggers the best interest obligation consistent with precedent under the anti-fraud provisions of the federal securities laws as applied to broker-dealers, and with how the term has been applied under the rules of self-regulatory organizations (“SROs”).[176] Several commenters supported this approach, and specifically agreed with following the existing facts and circumstances approach as understood under federal securities laws and SRO rules.[177]

Commenters sought additional clarity regarding the scope of a recommendation and in particular whether certain activities or communications would constitute recommendations, and requested that the Commission incorporate or specifically identify exceptions or exclusions such as the exceptions recognized in FINRA Rule 2111.03 (Suitability) or acknowledged by the DOL.[178] Some commenters also sought an explicit carve out or confirmation that certain communications, such as general education materials, general retirement planning materials, or general retirement communications, including “pure distribution recommendations,” are not “recommendations” subject to Regulation Best Interest.[179]

The treatment of certain communications as “education” rather than “recommendations” is well understood by broker-dealers. We generally view the following types of communications as not being recommendations of any securities transaction or investment strategy involving securities as long as they do not include, standing alone or in combination with other communications, a recommendation of a particular security or securities or particular investment strategy involving securities: [180]

  • General financial and investment information, including:

○ Basic investment concepts, such as risk and return, diversification, dollar cost averaging, compounded return, and tax deferred investment,

○ historic differences in the return of asset classes (e.g., equities, bonds, or cash) based on standard market indices,

○ effects of inflation,

○ estimates of future retirement income needs, and

○ assessment of a customer's investment profile;

  • Descriptive information about an employer-sponsored retirement or benefit plan, participation in the plan, the benefits of plan participation, and the investment options available under the plan; [181]
Start Printed Page 33338
  • Asset allocation models that are:

○ Based on generally accepted investment theory,

○ accompanied by disclosures of all material facts and assumptions that may affect a reasonable investor's assessment of the asset allocation model or any report generated by such model, and

○ in compliance with FINRA Rule 2214 (Requirements for the Use of Investment Analysis Tools) if the asset allocation model is an “investment analysis tool” covered by FINRA Rule 2214; [182] and

  • Interactive investment materials that incorporate the above.

Thus, for example, a general conversation about retirement planning, such as providing a company's retirement plan options to a retail customer, would not, by itself, rise to the level of a recommendation. Similarly, where a broker-dealer informs a retail customer that he or she needs to take a required minimum distribution under the Internal Revenue Code, we would not interpret such communication, by itself, to rise to the level of a recommendation. Such a communication would be considered investment education or descriptive information, provided it does not involve, for example, a recommendation regarding specific securities to be sold or a recommendation regarding specific securities to be purchased with the proceeds of any sale.[183] We agree with commenters that Regulation Best Interest should not stifle investment education as a means to encourage financial wellness, or otherwise restrict broker-dealers from disseminating information about, for example, retirement plans, and the approach we are taking to what is or is not considered a “recommendation” achieves this goal.[184]

b. Interpretation of Any Securities Transaction or Investment Strategy Involving Securities

As proposed, Regulation Best Interest would apply to recommendations of “any securities transaction” (purchase, sale, and exchange) and any “investment strategy” involving securities (including explicit recommendations to hold a security or regarding the manner in which it is to be purchased or sold). In addition, the Proposing Release stated that securities transactions or investment strategies involving securities might also include recommendations to roll over or transfer assets from one type of account to another, such as recommendations to roll over or transfer assets from a retirement plan.[185] Finally, although we did not propose to cover account type recommendations generally, we noted that evaluating the appropriateness of the type of account is an issue that relates to both broker-dealers and investment advisers, and requested comment on whether and how we should address this type of recommendation.

In response to the Proposing Release, several commenters supported the Commission's approach; however, several commenters also requested modifications or clarifications regarding products or strategies covered under Regulation Best Interest. For example, a majority of the IAC and numerous commenters highlighted the conflicts of interest associated with account type recommendations, and urged the Commission to apply Regulation Best Interest to account type recommendations generally, and to IRA rollovers.[186] Relatedly, several commenters sought clarity regarding whether and when a rollover or account type recommendation would be a “recommendation” under Regulation Best Interest.[187]

After careful consideration of comments and feedback, the Commission has modified the rule text to state that an “investment strategy involving securities” includes “account recommendations.” We interpret “account recommendations” to include recommendations by broker-dealers of securities account types generally,[188] as well as recommendations to roll over or transfer assets from one type of account to another (e.g., workplace retirement plan account to an IRA).[189] In addition, the Commission is stating its view that “any securities transaction or investment strategy involving securities” not only includes explicit hold recommendations, but also includes implicit hold recommendations that are the result of agreed-upon account monitoring between the broker-dealer and retail customer.[190]

Account Recommendations

The Proposing Release indicated that securities transactions or investment strategies involving securities could include recommendations to roll over or transfer assets from one type of account to another, such as recommendations to roll over or transfer assets in a workplace retirement plan account to an IRA, and requested comment on whether and how to address account type recommendations.

Several commenters suggested expanding Regulation Best Interest to explicitly cover rollover recommendations and recommendations by firms regarding account types. For example, a majority of the IAC explained that rollover recommendations “are frequently provided at a critical juncture in an investor's life—retirement—and are often irrevocable decisions,” and further noted that “[d]ecisions about which type of account to open have the Start Printed Page 33339potential to greatly affect [retail customers'] costs” and that both rollovers and account type recommendations can “have substantial potential long-term impacts on investors.” [191] Another commenter noted that “[r]etirees have no practical ability to recoup lost spending power by returning to work and setting aside additional retirement savings, so they are particularly vulnerable to the adverse consequences of poor advice and high expenses.” [192] Finally, a majority of the IAC and several commenters noted that broker-dealers and investment advisers alike have a strong economic incentive to recommend investors roll over plan assets into an IRA or otherwise transfer assets to open an account with the broker-dealer or investment adviser.[193]

After consideration of comments received, including concerns expressed about the conflicts associated with recommendations of account types, IRA rollovers and retirement advice more broadly, it is our view that Regulation Best Interest should apply broadly to recommendations of securities transactions and investment strategies involving securities. Accordingly, the Commission is including in the rule text account recommendations as recommendations that will be covered by Regulation Best. “Account recommendations” include recommendations of securities account types generally (e.g., to open an IRA or other brokerage account), as well as recommendations to roll over or transfer assets from one type of account to another (e.g., a workplace retirement plan account to an IRA).

Although account recommendations, including recommendations of a securities account type generally, as well as recommendations to roll over assets from a workplace retirement plan account to an IRA or to open an IRA held at the broker-dealer, will almost always involve a “securities transaction” (such as a securities purchase, sale, or exchange), and thus would generally be subject to Regulation Best Interest, we are modifying the rule text to provide that such recommendations are “investment strategies involving securities” for purposes of Regulation Best Interest, regardless of whether they are tied to a specific securities transaction.[194] Existing broker-dealer regulation and guidance stresses that the term “investment strategy” is to be interpreted broadly, and would include, among others, recommendations generally to use a bond ladder, day trading, “liquefied home equity,” or margin strategy involving securities, irrespective of whether the recommendations mention particular securities.[195] This approach appropriately recognizes that customers may rely on firms' and associated persons' investment expertise and knowledge, and therefore the broker-dealer should be responsible for such recommendations, regardless of whether those recommendations result in transactions or generate transaction-based compensation.[196]

Account recommendations, including recommendations of securities account types generally (e.g., to open an IRA or other brokerage account), and recommendations to roll over or transfer assets into an IRA or another securities account, are consistent with the types of recommendations that have been treated as investment strategies under existing suitability rules.[197] Specifically, like other investment strategies, account recommendations are recommendations of an approach or method (i.e., a “strategy”) for how a retail customer should engage in transactions in securities, involve conflicts of interest, and can have long-term effects on investors' costs and returns from their investments.[198] In addition, we believe retail customers rely on broker-dealers' and associated persons' investment expertise and knowledge with respect to such recommendations. As a result, such recommendations must be made consistent with the retail customer's objectives and needs (i.e., investment profile), irrespective of whether those recommendations are tied to a specific securities transaction. Consistent with a majority of the IAC's and other commenters' suggestions, we are modifying the rule text to state that the term “investment strategy involving securities” includes “account recommendations,” which we interpret to include recommendations of securities account types generally, as well as recommendations to roll over or transfer assets.[199]

Thus, such account recommendations will be subject to Regulation Best Interest even if there is not a recommendation of a securities transaction. Although we proposed only covering account type recommendations that are tied to securities transactions, and not account type recommendations generally, we agree with commenters and a majority of the IAC that consistent with other investment strategies involving securities, securities account type recommendations should be covered under Regulation Best Interest regardless of whether those recommendations result in transactions or generate transaction-based compensation.[200] In addition, as discussed in the Fiduciary Interpretation, investment advisers' fiduciary duty applies to advice to clients about account types, which satisfies the concerns about parity set forth in the Proposing Release and protects retail customers of broker-dealers and retail clients of investment advisers alike.[201]

Where a financial professional who is dually registered (i.e., an associated person of a broker-dealer and a supervised person of an investment adviser (regardless of whether the professional works for a dual-registrant, affiliated firm, or unaffiliated firm)) is making an account recommendation to a retail customer,[202] whether Regulation Best Interest or the Advisers Act will apply will depend on the capacity in which the financial professional making Start Printed Page 33340the recommendation is acting.[203] As discussed further in the Care Obligation, if the individual is acting as a broker-dealer or associated person thereof, he or she must comply with Regulation Best Interest and will need to take into consideration all types of accounts offered by the financial professional (i.e., both brokerage and advisory accounts) when making the recommendation of an account that is in the retail customer's best interest.

In the case of an account recommendation by a financial professional who is only registered as an associated person of broker-dealer (regardless of whether that broker-dealer entity is a dual-registrant or affiliated with an investment adviser), Regulation Best Interest will apply to the recommendation. Further, the associated person can only recommend a brokerage account that the broker-dealer offers when the associated person has a reasonable basis to believe that the recommended brokerage account is in the best interest of the retail customer and the broker-dealer otherwise complies with Regulation Best Interest.

Regulation Best Interest would apply to account recommendations by the dual-registrant firm, and consistent with the Conflict of Interest Obligation, the firm would need to, among other things, establish, maintain and enforce policies and procedures to identify, disclose, and mitigate, any incentives for an associated person of the broker-dealer to place the interest of the firm or the associated person ahead of the interests of the retail customer.

In the discussion of the Care Obligation below, we discuss how a broker-dealer and associated persons of a broker-dealer can make recommendations of securities account types, including recommendations to open an IRA or to roll over assets into an IRA, in the best interest of the retail customer.

Hold Recommendations

The Proposing Release stated that Regulation Best Interest would apply to any securities transaction or investment strategy involving securities, including explicit recommendations to hold a security or regarding the manner in which it is to be purchased or sold to retail customers.[204] The Proposing Release also recognized that broker-dealers may agree with a retail customer by contract to take on additional obligations beyond those imposed by Regulation Best Interest, for example, by agreeing with a retail customer to provide periodic or ongoing services, such as ongoing monitoring of the retail customer's investments for purposes of recommending changes in investments.[205] To the extent that a broker-dealer takes on such additional obligations, the Proposing Release indicated that Regulation Best Interest would apply to any recommendations about securities or investment strategies involving securities made to retail customers resulting from such services.

Several commenters agreed that broker-dealers should be able to contract with retail customers for additional services and be able to expand the relationship on their own terms, while other commenters recommended that a duty to monitor apply to broker-dealers depending on the facts and circumstances.[206] Other commenters suggested that the Commission not impose a duty to monitor brokerage accounts.[207]

We are confirming that, consistent with existing broker-dealer regulation, Regulation Best Interest will apply to explicit recommendations to hold a security or securities.[208] We are also confirming that Regulation Best Interest does not impose a duty to monitor a retail customer's account. We agree, however, with commenters that Regulation Best Interest should apply to any recommendations that result from the account monitoring services that a broker-dealer agrees to provide.[209] We believe that any monitoring service agreed to by the broker-dealer, the scope and frequency of which would be required to be disclosed pursuant to the Disclosure Obligation, would be covered by Regulation Best Interest, as these activities will result in a recommendation to purchase, sell, or hold a security, or the manner in which to purchase, sell, or hold a security, at each time the agreed-upon monitoring occurs.[210] Thus, by agreeing to perform account monitoring services, the broker-dealer is taking on an obligation to review and make recommendations with respect to that account (e.g., to buy, sell or hold) on that specified, periodic basis.[211] For example, if a broker-dealer agrees to monitor the retail customer's account on a quarterly basis, the quarterly review and each resulting recommendation to purchase, sell, or hold, will be a recommendation subject to Regulation Best Interest. This is the case even in instances where the broker-dealer does not communicate any recommendation to the retail customer. We believe that such an “implicit” recommendation to hold in this context should be covered under Regulation Best Interest in addition to “explicit” recommendations to hold.[212]

This position differs from FINRA guidance, which generally states that the FINRA suitability rule does not cover an implicit recommendation to hold.[213] We believe that “implicit” hold Start Printed Page 33341recommendations in this context, where the broker-dealer agrees to provide specified account monitoring services, are similar to explicit hold recommendations that are considered “investment strategies” because they would constitute the type of recommendations that retail customers would be expected to rely upon and would be a “call to action” in the sense of a recommendation that the customer stay the course.[214] We believe that, in this context, silence is tantamount to an explicit recommendation to hold, and should be viewed as a recommendation to hold the securities for purposes of Regulation Best Interest.[215] Our interpretation that the term “investment strategy involving securities” includes implicit recommendations to hold that result from an agreement to monitor, at the time the agreed-upon monitoring occurs, is generally consistent with the treatment of similar broker-dealer communications as “investment strategies,” and applies the Regulation Best Interest protections to retail customers relying on a broker-dealer's agreement to monitor the customer's account.[216]

Although for purposes of Regulation Best Interest, implicit hold recommendations will be considered a recommendation of “any securities transaction or investment strategy regarding securities” where a broker-dealer has agreed to provide account monitoring services, we are not otherwise changing the treatment of implicit hold recommendations in other contexts. In other words, unless the broker-dealer has agreed to provide account monitoring services as described, Regulation Best Interest would only apply to explicit—and not to implicit—hold recommendations regarding security positions in an account.[217] This is consistent with the fact that Regulation Best Interest would not impose a duty to monitor customer accounts.[218]

Finally, although certain commenters stated that account monitoring services should only be performed by investment advisers,[219] we reiterate that Regulation Best Interest does not change the scope of account monitoring that broker-dealers may agree to provide, nor does it change the scope of activities that would come within the “solely incidental” prong of the broker-dealer exclusion to the definition of “investment adviser” in the Advisers Act. We recognize that a broker-dealer may voluntarily, and without any agreement with the customer, review the holdings in a retail customer's account for the purpose of determining whether to provide a recommendation to the customer. We view this voluntary review—and any subsequent recommendation to the customer—as in connection with and reasonably related to the broker-dealer's primary business of effecting securities transactions.[220]

Recommendations Involving Retirement Accounts

Furthermore, based on comments, our position is that recommendations to retail customers regarding retirement accounts would also be subject to Regulation Best Interest where they involve securities transactions or investment strategies involving securities. We agree with commenters that recommendations to retail customers to take distributions from proceeds of specific securities or to take in-service loans from an employer-sponsored plan are recommendations of a securities transaction, as they would involve a recommendation to sell a security.[221] However, while such recommendations to take plan distributions are “recommendations” and thereby subject to Regulation Best Interest, we reiterate that general communications by broker-dealers relating to distributions in the context of a required minimum distribution or education regarding a plan's options would not, by themselves, constitute recommendations that would be subject to Regulation Best Interest.[222]

3. Retail Customer

We proposed to define retail customer as: “a person, or the legal representative of such person, who: (1) Receives a recommendation of any securities transaction or investment strategy involving securities from a broker, dealer, or a natural person who is an associated person of a broker or dealer, and (2) uses the recommendation primarily for personal, family or household purposes.” [223] The definition was generally intended to track the definition of “retail customer” under Section 913(a) of the Dodd-Frank Act with some differences, as described in the Proposing Release.[224]

In proposing the definition, we intended to exclude recommendations Start Printed Page 33342related to commercial or business purposes but for the definition to remain sufficiently broad to capture recommendations related to the various reasons retail customers may invest, such as saving for retirement, education expenses and other savings purposes. As such, the proposed definition applied to any persons who receive a recommendation from a broker or dealer or a natural person who is an associated person of a broker or dealer, provided that the recommendation is primarily for personal, family or household purposes. In the case of dual-registrants, the proposed definition was intended to apply only to recommendations made by broker-dealers in their brokerage capacity, based on a facts and circumstances analysis and consistent with existing guidance.[225] The proposed definition differed from the definition of “retail investor” in the Relationship Summary Proposal as the Relationship Summary was intended for a broader range of investors.[226]

The Commission requested comment on the scope and definition of retail customer and received a range of comments requesting: modification of the definition to focus on natural persons; clarification of the “personal, family or household purposes” qualification; harmonization with the definition in Form CRS; and further guidance surrounding the treatment of dual-registrants. In consideration of the comments received, the Commission is modifying the definition of “retail customer” to mean a natural person, or the legal representative of such natural person, who: (A) Receives a recommendation of any securities transaction or investment strategy involving securities from a broker, dealer, or a natural person who is an associated person of a broker or dealer; and (B) uses the recommendation primarily for personal, family, or household purposes.

The revised definition shifts the focus to natural persons, as opposed to any persons, but otherwise it is adopted largely as proposed. However, as discussed below, the Commission is providing additional interpretations, guidance and clarification regarding: The interpretation of the “personal, family, or household purposes” qualifier; the interaction of this definition with the definition of “retail investor” in Form CRS; what it means for a retail customer to “use” the recommendation; and the status of dual-registrants. Furthermore, we are providing guidance on who would be considered to be the legal representative of a natural person for purposes of this definition.

a. Focus on Natural Persons and Legal Representatives of Natural Persons

The Commission proposed to extend the definition of “retail customer” in Regulation Best Interest beyond natural persons to any persons to cover non-natural persons (e.g., trusts that represent the assets of a natural person), which the Commission stated it believed would benefit from the protections of Regulation Best Interest.

Commenters generally suggested that the definition of retail customer be modified to focus on natural persons.[227] To that end, a number of commenters suggested eliminating the “personal, family or household purposes” qualifier from the definition under Dodd-Frank Section 913.[228] Many commenters suggested excluding institutional investors and professional advisers or fiduciaries, including retirement plan representatives [229] and family offices,[230] while a few stated that non-professional plan fiduciaries should have the same protections as retail customers.[231] Many commenters suggested harmonizing the definition with FINRA's definition,[232] in particular, by excluding: (1) Institutional accounts that would be exempted from certain suitability protections under FINRA Rule 2111 (Suitability) [233] or (2) institutional investors as defined in Rule 2210 (Communications with the Public),[234] which is broader [235] and would include, among others, certain workplace retirement plans. Conversely, a few commenters believed that Regulation Best Interest should apply to both retail and institutional customers.[236]

In response to comments, we are modifying the definition to focus on natural persons and their legal representatives, and are clarifying that we interpret “legal representatives” to mean non-professional legal representatives of a natural person, as we discuss below. We believe this change and clarification provides more certainty that institutions and certain professional fiduciaries are not covered for purposes of Regulation Best Interest. It would also retain, however, coverage of certain legal entities (i.e., trusts that represent the assets of a natural person) specifically identified in the Proposing Release as “retail customers” within the scope of Regulation Best Interest, but would not exclude certain high-net-worth natural persons, as was suggested by some commenters [237] to match the current FINRA exclusion of such natural persons from customer-specific suitability requirements.[238]

While the Commission recognizes commenters' concerns regarding compliance costs and burdens if the definition of retail customer does not align with FINRA's exclusion of certain institutional accounts and institutional investors, we have decided not to align our definition with FINRA's exclusion because we believe conflicted recommendations can also result in harm to high net-worth individuals.[239] Start Printed Page 33343We believe the benefits of Regulation Best Interest justify compliance costs as these individuals could benefit from the protections included in Regulation Best Interest regardless of their net worth, which may not necessarily correlate to a particular level of financial sophistication.[240]

In addition, we view a “legal representative” of a natural person to only cover non-professional legal representatives (e.g., a non-professional trustee that represents the assets of a natural person and similar representatives such as executors, conservators, and persons holding a power of attorney for a natural person),[241] thereby excluding certain institutions from Regulation Best Interest's coverage. In capturing non-professional legal representatives within the definition of retail customer, we are providing the protections of Regulation Best Interest to non-professional persons who are acting on behalf of natural persons but who are not regulated financial services industry professionals retained by natural persons to exercise independent professional judgment, such as registered investment advisers and broker-dealers, corporate fiduciaries (e.g., banks, trust companies and similar financial institutions) and insurance companies, and the employees or other regulated representatives of such advisers, broker-dealers, corporate fiduciaries and insurance companies.[242] Our definition is intended to capture natural persons and their legal representatives who rely directly on the broker-dealer for the recommendation. Accordingly, such non-professional legal representatives would not include regulated financial industry professionals. We believe this responds to commenters who stated that it should not be necessary to provide the protections of Regulation Best Interest to regulated professionals.[243] Importantly, however, this will not relieve firms or financial professionals retained to represent the assets of natural persons from their own obligations to retail customers.[244]

We retained the “personal, family, or household purposes” qualifier,[245] but are providing additional guidance and clarification on our interpretation of this phrase to address comments received. In particular, we interpret “personal, family or household purposes” to mean that any recommendation to a natural person for his or her account would be subject to Regulation Best Interest, other than recommendations to natural persons seeking these services for commercial or business purposes. Accordingly, under this interpretation, “personal, family or household purposes” would not include, for example, an employee seeking services for an employer or an individual who is seeking services for a small business or on behalf of another non-natural person entity such as a charitable trust.[246] As discussed above [247] and pursuant to the Care Obligation,[248] we believe broker-dealers are able to obtain sufficient facts to determine the purpose for which a recommendation will be used.

We also confirm that “personal, family or household purposes” would cover retirement accounts, as retirement savings is a personal, household or family purpose. Accordingly, the definition of retail customer will include a natural person receiving recommendations [249] for his or her own retirement account, including but not limited to IRAs and individual accounts in workplace retirement plans, such as 401(k) plans and other tax-favored retirement plans.[250] For example, plan participants receiving recommendations about whether to take a distribution from a 401(k) plan or other workplace retirement plan and how to invest that distribution would be covered as retail customers. Similarly, a plan participant receiving recommendations for the participant's individual account held in a 401(k) plan or other workplace retirement plan would be a retail customer for purposes of Regulation Best Interest.[251]

The Commission acknowledges concerns from some commenters that workplace retirement plans and their representatives (e.g., plan sponsors, trustees, other fiduciaries) and service providers should be included in the definition of retail customer.[252] However, we understand that plan representatives of workplace retirement plans typically are not receiving recommendations for their own account for personal, family or household purposes when they engage a broker-dealer to provide services to a retirement plan established, maintained, Start Printed Page 33344and operated by an employer to provide pension or retirement savings benefits to employees; and further, as a legal representative of a plan participant, must comply with DOL rules.[253] As such, the Commission does not believe that workplace retirement plans or their representatives and service providers generally fall within the definition of retail customer for purposes of Regulation Best Interest because the workplace retirement plan is not a natural person, and therefore the workplace retirement plan representatives are not a non-professional representative of a natural person that is receiving a recommendation directly from a broker-dealer for “personal, family, or household purposes.” [254]

We note, however, that some plan representatives may participate under their employer's workplace plan, for example, in the case of a workplace IRA or other workplace retirement plan that is established and maintained by a sole proprietor or other self-employed individual that includes one or more employees in addition to the plan representative. To the extent that a plan representative who decides service arrangements for a workplace retirement plan is a sole proprietor or other self-employed individual who will participate in the plan, the plan representative would be a retail customer for purposes of Regulation Best Interest to the extent the sole proprietor or self-employed individual receives recommendations directly from a broker-dealer primarily for personal, family or household purposes.

b. Retail Customer Use of the Recommendation

In the Proposing Release, the Commission did not specifically address whether recommendations subject to Regulation Best Interest needed to be for compensation, but did state that the proposed definition of retail customer would only apply to a person who “received a recommendation . . . from a broker or dealer or a natural person who is an associated person of a broker or dealer, and used the recommendation primarily for personal, family, or household purposes.” We stated that this approach was appropriate because it builds upon the guidance provided for FINRA's suitability rule.[255] In response, a few commenters recommended that the Commission limit the application of Regulation Best Interest to recommendations made to retail customers for compensation.[256]

Regulation Best Interest applies to a retail customer that both receives a recommendation of any securities transaction or investment strategy involving securities by a broker-dealer and that uses that recommendation primarily for personal, family, or household purposes, and not simply those recommendations for which a broker-dealer receives compensation.[257] In response to commenters, we interpret that a retail customer “uses” a recommendation of a securities transaction or investment strategy involving securities when, as a result of the recommendation: (1) The retail customer opens a brokerage account with the broker-dealer, regardless of whether the broker-dealer receives compensation,[258] (2) the retail customer has an existing account with the broker-dealer and receives a recommendation from the broker-dealer, regardless of whether the broker-dealer receives or will receive compensation, directly or indirectly, as a result of that recommendation, or (3) the broker-dealer receives or will receive compensation, directly or indirectly as a result of that recommendation, even if that retail customer does not have an account at the firm.[259]

When a retail customer opens or has an existing account with a broker-dealer the retail customer has a relationship with the broker-dealer and is therefore in a position to “use” (i.e., accept or reject) the broker-dealer's recommendation. In this context, tying “use” solely to a broker-dealer's receipt of compensation would inappropriately result in Regulation Best Interest not applying to the broker-dealer's recommendations to hold securities positions or to maintain an investment strategy (such as account type), recommendations to open an account, or recommendations that may Start Printed Page 33345ultimately be rejected by the retail customer.

Whether the recommendation complies with Regulation Best Interest will be evaluated based on the circumstances that existed at the time the recommendation was made to the retail customer. Accordingly, broker-dealers should carefully consider the extent to which associated persons can make recommendations to prospective retail customers (i.e., that have received, but not yet “used” the recommendation as noted above) in compliance with Regulation Best Interest, including having gathered sufficient information that would enable them to comply with Regulation Best Interest at the time the recommendation is made, should the prospective retail customer use the recommendation.[260]

c. Conformity With Form CRS

The proposed definition of “retail customer” differed from the definition of “retail investor” proposed in the Relationship Summary Proposal, which was a prospective or existing client or customer who is a natural person (an individual), regardless of the individual's net worth, including a trust or other similar entity that represents natural persons.[261] The proposed definition was different from the definition of “retail investor” because the Relationship Summary was intended for an earlier state of the relationship between an investor and a financial professional, was intended to be required regardless of whether the investor would receive investment advice primarily for personal, family, or household purposes, and was designed to be delivered by investment advisers as well as broker-dealers.[262] Many commenters recommended that we use the same definition to facilitate compliance for firms and avoid investor confusion.[263]

The Commission agrees with commenters that using a similar definition would provide consistency in the protections, and ease the compliance burden, of the package of rulemakings. Therefore, the definitions in Form CRS and Regulation Best Interest have been revised to generally conform to each other, consistent with our respective goals in each of these rulemakings.[264] As discussed above, the definition of “retail customer” for purposes of Regulation Best Interest has been revised to apply only to natural persons, not all persons, in line with the definition of “retail investor” for purposes of Form CRS. In addition, the definition in Form CRS as adopted now includes the “personal, family or household purposes” qualifier.

While the definitions have generally been harmonized across the package of rulemakings,[265] they differ to reflect differences between the Relationship Summary delivery requirement and the obligations of broker-dealers under Regulation Best Interest, including that the Relationship Summary is required whether or not there is a recommendation and covers any prospective and existing clients and customers (i.e., a person who “seeks to receive or receives services”) of investment advisers as well as broker-dealers.[266] For the reasons discussed in the Proposing Release and in response to commenters who requested clarification on whether Regulation Best Interest applies to prospective customers,[267] we would like to clarify that the definition of “retail customer” does not apply to prospective customers who do not receive and use recommendations from a broker-dealer,[268] as discussed above. This distinction reflects differences between the point in time the Relationship Summary is delivered to an investor and when the obligations of broker-dealers pursuant to Regulation Best Interest attach.

d. Treatment of Dual-Registrants

In the Proposing Release, the Commission stated that Regulation Best Interest applies only in the context of a brokerage relationship with a brokerage customer, and specifically, when a broker-dealer is making a recommendation in the capacity of a broker-dealer. In particular, for dual-registrants (for purposes of this section, a broker-dealer that is dually registered as an investment adviser with the Commission), the obligations associated with Regulation Best Interest were intended to apply only when they are acting in the capacity as a broker-dealer.[269] The Commission recognized the issues surrounding the determination of whether a dual-registrant is acting in the capacity of a broker-dealer or an investment adviser, and asserted that such a determination requires a facts and circumstances analysis, with no one factor being determinative.[270]

Many commenters requested that the Commission clarify the treatment of dual-registrants and what is expected when offering products in both types of accounts.[271] Some commenters asserted that dually registered financial professionals should be held to a fiduciary standard.[272] A few commenters requested clarification on how Regulation Best Interest applies to particular scenarios, some of which involved dual-registrants.[273]

In response, the Commission is reaffirming the guidance provided in the proposal and providing further clarification on when and how Regulation Best Interest would apply to dual-registrants. As stated in the proposal, Regulation Best Interest would not apply to investment advice provided to a retail customer by a dual-registrant when acting in the capacity of an investment adviser, even if the retail customer has a brokerage relationship with the dual-registrant or the dual-registrant executes the transaction in its brokerage capacity.[274] Similarly, as proposed, we are confirming that a dual-registrant is an investment adviser solely with respect to those accounts for which a dual-registrant provides investment advice or receives compensation that subjects it to the Advisers Act.[275]

While we acknowledge that some commenters believe all dual-registrants Start Printed Page 33346should be held to a fiduciary standard, for the reasons discussed in Section II.A, the Commission believes that Regulation Best Interest enhances the obligations that apply when a broker-dealer makes a recommendation to a retail customer by drawing from key principles underlying the fiduciary obligation that applies to investment advisers under the Advisers Act, while being tailored to the broker-dealer model.[276]

As stated in the proposal, determining the capacity in which a dual-registrant is making a recommendation is a facts and circumstances test, with no one factor being determinative, but the Commission considers, among other factors, the type of account, how the account is described, the type of compensation and the extent to which the dual-registrant made clear to the customer or client the capacity in which it was acting.[277]

In addition and in response to a commenter's presentation [278] of particular scenarios in its comment letter,[279] we would like to confirm or correct the commenter's understanding of Regulation Best Interest in practice to provide further guidance to firms as it relates to their examples of dual-registrants.[280] For example, in the commenter's explanation of a scenario related to a recommendation to open a fee-based account, we agree that Regulation Best Interest would not apply when a dually registered financial professional of a dually registered broker-dealer and investment adviser, who is acting in the capacity of an investment adviser, recommends a fee-based account. We note, however, that the dually registered financial professional would need to comply with the Advisers Act as well as the requirements with respect to Form CRS for the firm.[281] In response to another scenario in which a financial professional who is dually registered provides a holistic review of the overall performance of a family's accounts, which are both brokerage and advisory, whether Regulation Best Interest applies depends on a facts and circumstances analysis. Regulation Best Interest would apply if the financial professional in her brokerage capacity (disclosed pursuant to the Disclosure Obligation), provides a recommendation of a securities transaction or investment strategy involving securities to the family in the course of the holistic review.[282]

C. Component Obligations

As proposed Regulation Best Interest's obligation to “act in the best interest of the retail customer . . . without placing the financial or other interest of the [broker-dealer] ahead of the retail customer” would have been satisfied by complying with four specified obligations: A Disclosure Obligation, a Care Obligation, and two Conflict of Interest Obligations.[283] Failure to comply with any of these proposed requirements would have violated Regulation Best Interest.[284]

As discussed above, we have determined to retain the overall structure and scope of the proposed rule, but are modifying and clarifying the component obligations that a broker-dealer must satisfy in order to meet the General Obligation. As adopted, the General Obligation is satisfied only if the broker-dealer complies with four specified component obligations: (1) The Disclosure Obligation; (2) the Care Obligation; (3) the Conflict of Interest Obligation; and (4) the Compliance Obligation. Each of these component obligations is discussed below. Whether a broker-dealer has acted in the retail customer's best interest under the General Obligation will turn on an objective assessment of the facts and circumstances of how these specific components of Regulation Best Interest are satisfied at the time that the recommendation is made (and not in hindsight). The specific component obligations of Regulation Best Interest are mandatory, and failure to comply with any of the components would violate Regulation Best Interest.

1. Disclosure Obligation

We proposed a Disclosure Obligation that would require a broker-dealer “to, prior to or at the time of [a] 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 associated with the recommendation.” The Proposing Release states that, for purposes of the Disclosure Obligation, we would consider the following to be examples of material facts relating to the scope and terms of the relationship with the retail customer: (1) That the broker-dealer was acting in a broker-dealer capacity with respect to the recommendation; (2) fees and charges that would apply to the retail customer's transactions, holdings, and accounts; and (3) type and scope of services provided by the broker-dealer, including, for example, monitoring the performance of the retail customer's account.

As stated in the Proposing Release, we understand that broker-dealers typically provide information about their services and accounts, which may include disclosures concerning the broker-dealer's capacity, fees, services, and conflicts, on their firm websites and in their account opening agreements.[285] Furthermore, while broker-dealers are subject to a number of specific disclosure obligations when they effect certain customer transactions, and are subject to the antifraud provisions of the federal securities laws, broker-dealers are not currently subject to an explicit and broad disclosure requirement under the Exchange Act regarding the scope and terms of the broker-dealer relationship.[286] To promote broker-dealer recommendations that are in the best interest of retail customers, we determined it was necessary to impose a more explicit and broader disclosure obligation on broker-dealers than that which currently exists under the federal securities laws and SRO rules.[287]

We solicited comment on the Disclosure Obligation and commenters addressed several aspects of this proposed obligation, including the interpretation of each required element, as discussed in the relevant sections below.[288] In consideration of these comments, we are revising the Disclosure Obligation to require a broker-dealer, prior to or at the time of the recommendation, to provide to the retail customer, in writing, full and fair disclosure [289] of all material facts related to the scope and terms of the Start Printed Page 33347relationship with the retail customer and all material facts relating to conflicts of interest that are associated with the recommendation.[290] We are explicitly requiring in the rule text the disclosure of examples in the Proposing Release of the “material facts relating to the scope and terms of the relationship with the retail customer:” (1) That the broker, dealer or such natural person is acting as a broker, dealer or an associated person of a broker-dealer with respect to the recommendation; (2) the material fees and costs that apply to the retail customer's transactions, holdings, and accounts; and (3) the type and scope of services provided to the retail customer, including: any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer.

The Disclosure Obligation requires the disclosure of all material facts related to the scope and terms of the relationship with the retail customer. The material facts identified in Regulation Best Interest are the minimum of what must be disclosed. Similar to what was proposed, broker-dealers will need to disclose in writing prior to or at the time of a recommendation any material facts that relate to the “scope and terms of the relationship.” As to what constitutes a “material” fact related to the “scope and terms of the relationship,” the standard for materiality for purposes of the Disclosure Obligation is consistent with the one the Supreme Court articulated in Basic v. Levinson.[291] Specifically, a fact is material if there is “a substantial likelihood that a reasonable shareholder would consider it important.” In the context of Regulation Best Interest, the standard is the retail customer, as defined in the rule.

In response to comments, we are also refining and clarifying the treatment of conflicts of interest under Regulation Best Interest by: (1) Generally consistent with the fiduciary duty under the Advisers Act, adopting for purposes of Regulation Best Interest, the definition of “conflict of interest” associated with a recommendation as “an interest that might incline a broker, dealer, or a natural person who is an associated person of a broker or dealer—consciously or unconsciously—to make a recommendation that is not disinterested”; [292] and (2) revising the Disclosure Obligation to require disclosure of “material facts” relating to such conflicts of interest that are associated with the recommendation. Under this approach, all conflicts of interest as so defined will be covered by Regulation Best Interest (and thus, will be subject to the Conflict of Interest Obligation described below). However, only “material facts” regarding these conflicts of interest are required to be disclosed under the Disclosure Obligation.[293]

As discussed above, we are adopting a new set of disclosure requirements designed to reduce retail investor confusion in the marketplace for brokerage and advisory services and to assist retail investors with the process of deciding whether to engage a particular firm or financial professional and whether to establish an investment advisory or brokerage relationship.[294] Specifically, we are requiring broker-dealers and investment advisers to deliver to retail investors a Relationship Summary.[295] The Relationship Summary will provide succinct information about the relationships and services the firm offers to retail investors, fees and costs that retail investors will pay, specified conflicts of interest and standards of conduct, and disciplinary history, among other things.[296] The Relationship Summary has a distinct purpose: It is intended to summarize information about a particular broker-dealer or investment adviser in a format that allows for comparability among the enumerated items, encourages investors to ask questions, and highlights additional sources of information.

As a general matter, the Relationship Summary reflects an initial layer of disclosure, with the Disclosure Obligation reflecting more specific and additional, detailed layers of disclosure.[297] We believe the Relationship Summary and the Disclosure Obligation, while separate obligations with significant individual value, will complement each other and, consistent with our layered approach to disclosure, are designed to build upon each other to provide different levels of key information and may be required to be delivered at different times. In addition, we believe the Relationship Summary and Disclosure Obligation will improve the quality and consistency of disclosures and thus: (1) Reduce the information asymmetry that may exist between a retail customer and their broker-dealer, and (2) facilitate customer comparisons of different broker-dealers which we expect will, in turn, increase competition among broker-dealers, including with respect to fees and costs.[298]

As discussed below, we have identified those items of information that we consider to be “material facts” under the Disclosure Obligation. Though there are disclosures in the Relationship Summary that could satisfy the Disclosure Obligation, in most instances the Relationship Summary will not be sufficient.[299] Moreover, as discussed below, we believe the Disclosure Obligation can be satisfied to varying degrees with existing documents provided to retail customers, such as account opening documents, with a standalone document, or by some combination. However, we encourage broker-dealers, in deciding whether to rely on such an existing disclosure document or whether to include or repeat information from existing disclosures, to consider the usefulness and ease of understanding for retail customers of any existing disclosure document.

Oral Disclosure or Disclosure After a Recommendation

As discussed in more detail below, a number of commenters highlighted practical difficulties associated with delivering disclosure either in writing, or prior to or at the time of a recommendation in some instances. Although Regulation Best Interest requires that the Disclosure Obligation be made “in writing,” we recognize the challenges associated with providing written disclosure in each instance that disclosure may be required. For example, a broker-dealer may need to supplement, clarify or update written disclosure it has previously made before Start Printed Page 33348or at the time it provides a customer with a recommendation. As we stated in the Proposing Release, we recognized that broker-dealers may provide recommendations by telephone and may need to offer clarifying disclosure orally in some instances subject to certain conditions, such as a dual-registrant informing a retail customer of the capacity in which the dual-registrant is acting in conjunction with a recommendation. We stated that a broker-dealer could orally clarify the capacity in which it is acting at the time of the recommendation if it had previously provided written disclosure to the retail customer beforehand disclosing its capacity as well as the method it planned to use to clarify its capacity at the time of the recommendation.

Similarly, although Regulation Best Interest requires a broker-dealer to disclose, prior to or at the time of a recommendation, all material facts relating to the scope and terms of the relationship with the retail customer and relating to conflicts of interest that are associated with the recommendation, we recognize that in some instances a broker-dealer may not have all the material facts at the time of the recommendation, or that such disclosure is provided to the retail customer pursuant to an existing regulatory obligation, such as the delivery of a product prospectus or a trade confirmation, after the execution of the trade.[300] In the Proposing Release we stated that in circumstances where a broker-dealer determines to provide an initial, more general disclosure (such as a relationship guide) followed by specific information in a subsequent disclosure that is provided after the recommendation (e.g., a trade confirmation) the initial disclosure should address when and how a broker-dealer would provide more specific information regarding the material fact or conflict in a subsequent disclosure (e.g., after the trade in the trade confirmation). We noted also that whether there is sufficient disclosure in both the initial disclosure and any subsequent disclosure would depend on the facts and circumstances.

We continue to believe that some flexibility with respect to the provision by broker-dealers of written and oral disclosure, as well as with respect to the timing that disclosure is made, is appropriate in certain circumstances, such as when a broker-dealer updates its written disclosures orally in order to reflect facts not reasonably known at the time the written disclosure is provided. In such circumstances, a broker-dealer may satisfy its Disclosure Obligation by making supplemental oral disclosure not later than the time of the recommendation, provided that the broker-dealer maintains a record of the fact that oral disclosure was provided to the retail customer.[301] In addition, in the limited instances where existing regulations permit disclosure after the recommendation is made (e.g., trade confirmation, prospectus delivery), a broker dealer may satisfy its Disclosure Obligation regarding the information contained in the applicable disclosure document by providing such document to the retail customer after the recommendation is made. Before supplementing, clarifying or updating written disclosures in the limited circumstances described above, broker-dealers must provide an initial disclosure in writing that identifies the material fact and describes the process through which such fact may be supplemented, clarified or updated.

For example, with regard to product-level fees, a broker-dealer could provide an initial standardized disclosure of product-level fees generally (e.g., reasonable dollar or percentage ranges), noting that further specifics for particular products appear in the product prospectus, which will be delivered after a transaction in accordance with the delivery method the retail customer has selected, such as by mail or electronically.[302] Similarly, with regard to the disclosure of a broker-dealer's capacity, a dual-registrant could disclose that recommendations will be made in a broker-dealer capacity unless otherwise expressly stated at the time of the recommendation, and that any such statement will be made orally. Or, a broker-dealer could disclose that its associated persons may have conflicts of interest beyond than those disclosed by the broker-dealer, and that associated persons will disclose, where appropriate, any additional material conflicts of interest not later than the time of a recommendation, and that any such disclosure will be made orally.

We believe it is in the public interest and consistent with the protection of investors to permit such flexibility in the delivery of information pursuant to the Disclosure Obligation. Providing retail customers written summary information about material facts relating to a recommendation and indicating that additional information will be forthcoming, the point at which the additional information will be delivered, and the method by which it will be conveyed, highlights for retail customers a useful summary of information while allowing for the practical realities of the process by which securities recommendations are made and transactions are executed and leaving longstanding existing disclosure regimes, particularly those relating to product issuer disclosure, undisturbed.

Other Liabilities Under the Federal Securities Laws

Further, the requirements under Regulation Best Interest that particular information be disclosed is not determinative of a broker-dealer or associated person's other potential liabilities under the general antifraud provisions of the federal securities laws for failure to disclose material information to a customer at the time of a recommendation.[303] In addition, we Start Printed Page 33349remind broker-dealers that even full and fair disclosure of the information required by the Disclosure Obligation is not sufficient, standing alone, to satisfy the Care Obligation, and that even sufficient disclosure cannot cure a violation of the Care Obligation.

Disclosures by Natural Persons Associated With a Broker-Dealer

The Disclosure Obligation applies to a broker, dealer, or natural person who is an associated person of a broker or dealer.[304] As stated in the Proposing Release, we are requiring not only the broker-dealer entity, but also individuals who are associated persons of a broker-dealer (e.g., registered representatives) to comply with specified components of Regulation Best Interest when making recommendations to retail customers.[305] One commenter requested guidance on how an associated person should comply with the Disclosure Obligation.[306] In response, we believe that a natural person who is an associated person of a broker-dealer may in many instances rely on the disclosures provided by the broker-dealer with which he or she is associated to satisfy the Disclosure Obligation. However, when an associated person knows or should have known that the broker-dealer's disclosure is insufficient to describe “all material facts,” the associated person must supplement that disclosure. For example, if an associated person of a broker-dealer that offers a full range of securities products is licensed solely as a Series 6 Registered Representative,[307] and can sell only mutual funds, variable annuities and other enumerated products, that limitation on the scope of services provided by the particular associated person must be sufficiently clear in the broker-dealer's disclosures; otherwise additional clarifying disclosure by the associated person would be necessary.

a. Material Facts Regarding Scope and Terms of the Relationship

As discussed above, the proposed Disclosure Obligation would require a broker-dealer to, among other things, “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.” We proposed to consider the following to be examples of material facts relating to the scope and terms of the relationship with the retail customer: (i) That the broker-dealer was acting in a broker-dealer capacity with respect to the recommendation; (ii) fees and charges that would apply to the retail customer's transactions, holdings, and accounts; and (iii) the type and scope of services provided by the broker-dealer, including, for example, monitoring the performance of the retail customer's account.

Commenters requested that we clarify which facts a broker-dealer would be required to disclose about the scope and terms of the relationship it has with a customer under Regulation Best Interest.[308] In particular, several commenters recommended that the Commission clarify how a dual-registrant should disclose its capacity regarding its recommendations.[309] Other commenters recommended that the Commission define the scope of fees a broker-dealer must disclose [310] and the form that disclosure should take.[311] In addition, some commenters requested clarity on the types of services that a broker-dealer would be required to disclose, including limitations on securities offered [312] and account monitoring services.[313]

As discussed below, in response to comments, we have revised the Disclosure Obligation to require disclosure of “all material facts relating to the scope and terms of the relationship with the retail customer, including: (i) That the broker, dealer or such natural person is acting as a broker, dealer or an associated person of a broker-dealer with respect to the recommendation; (ii) the material fees and costs that apply to the retail customer's transactions, holdings, and accounts; and (iii) the type and scope of services provided to the retail customer, including any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer.” [314] In addition, we are clarifying the scope of the obligation.

As we did in the Proposing Release, we emphasize that although we have explicitly identified the capacity in which the broker-dealer is acting, material fees and costs, and the type and scope of services, as what would at a minimum be required to be disclosed as “material facts relating to the scope and terms of the relationship with the retail customer,” the Disclosure Obligation requires broker-dealers and associated persons to disclose “all material facts relating to the scope of the terms of the relationship,” (emphasis added) and broker-dealers and such associated persons thus will need to consider, based on the facts and circumstances, whether there are other material facts relating to the scope and terms of the relationship with the retail customer that need to be disclosed. This analysis generally should include consideration of whether information in the Relationship Summary constitutes a “material fact” that could appropriately be expanded upon in satisfying the Disclosure Obligation. It would be possible, but would be unlikely for most Start Printed Page 33350broker-dealers, for the abbreviated format of the Relationship Summary to sufficiently disclose “all material facts” regarding the scope and terms of the relationship such that no further information would be required to satisfy the Disclosure Obligation.

Capacity In Which the Broker-Dealer Is Acting

In the Proposing Release, the Commission identified that the capacity in which a broker-dealer is acting is a material fact relating to the scope and terms of a customer relationship subject to the Disclosure Obligation.[315] In so identifying this critical element of information, we hoped to promote greater awareness among retail customers of the capacity in which their financial professional or firm acts with respect to recommendations.

Several commenters requested additional guidance on how dual-registrants and their associated persons could comply with the proposed Disclosure Obligation in this respect.[316] Some commenters stated that repeated disclosures of capacity would distract customers from more important disclosures related to a recommendation and could lead to confusion.[317] While we received comments expressing concerns that our proposed approach might lead to investor confusion,[318] many of these commenters were seeking clarity regarding this requirement and not its elimination.[319]

In response to commenters, we are revising Regulation Best Interest to explicitly require disclosure of capacity, which the Proposing Release addressed in guidance. Therefore, Rule 15 l-1(a)(2)(i)(A) requires that the broker, dealer, or natural person who is an associated person of a broker or dealer, prior to or at the time of the recommendation, provide the retail customer, in writing, full and fair disclosure of all material facts relating to the scope and terms of the relationship with the retail customer, including that the broker-dealer or such natural person is acting as a broker-dealer or an associated person of a broker-dealer with respect to the recommendation.

This disclosure is designed to improve awareness among retail customers of the capacity in which their financial professional or broker-dealer acts when it makes recommendations so that the retail customer can more easily identify and understand their relationship, a goal shared with the Relationship Summary.[320] Form CRS requires a firm to state the name of the broker-dealer or investment adviser and whether the firm is registered with the Commission as a broker-dealer, investment adviser, or both.[321] A standalone broker-dealer (i.e., a broker-dealer not also registered as an investment adviser) will generally be able to satisfy the Disclosure Obligation's requirement to disclose the broker-dealer's capacity by delivering the Relationship Summary to the retail customer.

For broker-dealers who are dually registered, and for associated persons who are either dually registered or, who are not dually registered but only offer broker-dealer services through a firm that is dually registered, the information contained in the Relationship Summary will not be sufficient to disclose their capacity in making a recommendation. Although some commenters expressed concerns about potential investor confusion caused by “additional” disclosure regarding a dual-registrant's capacity, we believe that the Disclosure Obligation will not duplicate or confuse, but instead will provide clarifying detail on capacity to supplement the information contained in the Relationship Summary. Accordingly, we are clarifying that dually registered associated persons and associated persons who are not dually registered but only offer broker-dealer services through a firm that is dually registered as an investment adviser with the Commission or with a state, must disclose whether they are acting (or, in the case of the latter, that they are only acting) as an associated person of a broker-dealer to satisfy the Disclosure Obligation.[322] An associated person of a dual-registrant who does not offer investment advisory services must disclose that fact as a material limitation in order to satisfy the Disclosure Obligation.

Furthermore, as discussed in greater detail below, we would presume the use of the terms “adviser” and “advisor” by (1) a broker-dealer that is not also registered as an investment adviser or (2) a financial professional that is not also a supervised person of an investment adviser to be a violation of the Disclosure Obligation under Regulation Best Interest. Disclosure of capacity may, in part, be made orally under the circumstances outlined in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation. For example, a broker-dealer may disclose that: “All recommendations will be made in a broker-dealer capacity unless otherwise expressly stated at the time of the recommendation; any such statement will be made orally.” In this case, no further oral or written disclosure would be required until a recommendation is made in a capacity other than as a broker-dealer. Similarly, a broker-dealer may disclose that: “All recommendations regarding your brokerage account will be made in a broker-dealer capacity, and all recommendations regarding your advisory account will be in an advisory capacity. When we make a recommendation to you, we will expressly tell you orally which account we are discussing”). In this instance, no further disclosure of capacity is necessary.

Capacity in the Context of Names, Titles, and Marketing Practices

The Relationship Summary Proposal included a proposed rule that would have restricted broker-dealers and their associated persons (unless they were registered as, or supervised persons of, an investment adviser), when communicating with a retail investor, Start Printed Page 33351from using the term “adviser” or “advisor” as part of a name or title (“Titling Restrictions”).[323] After further consideration of our policy goals and the comments we received, and in light of the disclosure requirements under Regulation Best Interest, we do not believe that adopting a separate rule restricting these terms is necessary, because we presume that the use of the term “adviser” and “advisor” in a name or title by (1) a broker-dealer that is not also registered as an investment adviser or (2) an associated person that is not also a supervised person of an investment adviser, to be a violation of the capacity disclosure requirement under the Disclosure Obligation as discussed further below.[324]

We received several comments on the proposed Titling Restrictions, which we have also considered when determining to presume use of such names and titles to be a violation of the capacity disclosure.[325] Some commenters supported a restriction on the terms “adviser” and “advisor,” noting, for example, that these particular terms are often associated with the statutory term “investment adviser,” [326] or that investors “typically associate” these terms with registered investment advisers.[327] A few commenters generally noted that the title “financial advisor” prevents investors from understanding whether they are engaging a financial professional who provides advisory services or who sells brokerage services.[328] Moreover, other commenters generally stated that names and titles containing “adviser” or “advisor” create investor confusion and/or could mislead investors about the differences between broker-dealers and investment advisers including the applicable standard of care [329] and the services to be provided.[330]

Other commenters did not support the proposed Titling Restrictions, believing that the terms “adviser” and “advisor” are more generically used and understood, and refer to financial professionals who provide advice and financial services more generally.[331] Several of these commenters stated that the restriction adds little additional investor protection when taken together with Regulation Best Interest and Form CRS (i.e., it is duplicative).[332] Additionally, some commenters stated that Form CRS alone provides similar investor protections that alleviate the need for the restriction.[333] Along similar lines, one commenter stated that certain fraud-based securities laws and FINRA rules provide the same protections that the proposed restriction seeks to add, making it unnecessary.[334]

We also received several comments on the following alternative approaches to the Titling Restrictions on which we sought comment: (i) A broker-dealer that used the terms “adviser” or “advisor” as part of a name or title would not be considered to provide investment advice solely incidental to the conduct of its business as a broker-dealer, and (ii) a broker-dealer would not be providing investment advice solely incidental to its brokerage business if it “held itself out” as an investment adviser to retail investors.[335] This second alternative approach would have resulted in a restriction generally broader in scope than the Titling Restrictions, as it would also have encompassed communications and sales practices in addition to the use of names and titles.

In response to these alternatives, several commenters stated that the Titling Restrictions were too narrow in meeting the Commission's intended objective of mitigating the risk that investors could be misled by the use of certain names and titles because the Titling Restrictions did not address other confusing names or titles,[336] and, Start Printed Page 33352more specifically, because the Titling Restrictions did not address the broker-dealers who “hold themselves out” as investment advisers.[337] Several of these commenters instead advocated for precluding reliance on the solely incidental prong by any broker-dealer that holds itself out as an investment adviser.[338] Some commenters stated that certain marketing practices indicate that advice is the main function of the broker-dealer's service.[339] Additionally, one commenter stated that “the potential for investor confusion is at its greatest when dealing with broker-dealers and dual-registrants that routinely market their services as advisory in nature. . . .” [340]

Use of Terms “Adviser” or “Advisor”

Financial firms and their professionals, including broker-dealers and investment advisers, seek to acquire new customers and to retain existing customers by marketing their services, including through the use of particular terms in names and titles. Firms often spend time and money to market, brand, and create intellectual property by using these terms in an effort to shape investor expectations.[341] A name or title is generally used, and is designed to have significance, on its own without any additional context as to what it means. Given that the titles “adviser” and “advisor” are closely related to the statutory term “investment adviser,” their use by broker-dealers can have the effect of erroneously conveying to investors that they are regulated as investment advisers, and have the business model, including the services and fee structures, of an investment adviser.[342] Such potential effect undermines the objective of the capacity disclosure requirement under Regulation Best Interest to enable a retail customer to more easily identify and understand their relationship.

As discussed above, the Disclosure Obligation requires broker-dealers to make full and fair disclosure of all material facts relating to the scope and terms of the relationship with a retail customer, including the capacity in which they are acting with respect to a recommendation. The capacity disclosure requirement is designed to improve awareness among retail customers of the capacity in which their firm and/or financial professional acts when it makes recommendations so that a retail customer can more easily identify and understand their relationship.[343] We believe that in most cases broker-dealers and their financial professionals cannot comply with the capacity disclosure requirement by disclosing that they are a broker-dealer while calling themselves an “adviser” or “advisor.” Under the Disclosure Obligation, a broker-dealer, or an associated person, must, prior to or at the time of the recommendation, disclose that the broker-dealer or that associated person is acting as a broker or dealer with respect to the recommendation.[344] When a broker-dealer or an associated person uses the name or title “adviser” or “advisor” there are few circumstances [345] in which that broker-dealer or associated person would not violate the capacity disclosure requirement because the name or title directly conflicts with the information that the firm or professional would be acting in a broker-dealer capacity.[346] Therefore, use of the titles “adviser” and “advisor” by broker-dealers and their financial professionals would undermine the objectives of the capacity disclosure requirement by potentially confusing a retail customer as to type of firm and/or professional they are engaging, particularly since “investment adviser” is defined by statute separately from “broker” or “dealer.”

As a result,[347] we presume that the use of the terms “adviser” and “advisor” in a name or title by (i) a broker-dealer that is not also registered as an investment adviser or (ii) an associated person that is not also a supervised person of an investment adviser to be a violation of the capacity disclosure requirement under Regulation Best Interest.[348]

Start Printed Page 33353

Although using these names or titles creates a presumption of a violation of the Disclosure Obligation in Regulation Best Interest, we are not expressly prohibiting the use of these names and titles by broker-dealers because we recognize that some broker-dealers use them to reflect a business of providing advice other than investment advice to retail clients. A clear example is a broker-dealer (or associated person) that acts on behalf of a municipal advisor [349] or commodity trading adviser,[350] or as an advisor to a special entity,[351] as these are distinct advisory roles specifically defined by federal statute that do not entail providing investment advisory services. We also recognize that a broker-dealer may provide advice in other capacities outside the context of investment advice to a retail customer that would present a similarly compelling claim to the use of these terms. In these circumstances, firms and their financial professionals may in their discretion use the terms “adviser” or “advisor.” [352] In most instances, however, when a broker-dealer uses these terms in its name or title in the context of providing investment advice to a retail customer, they will generally violate the capacity disclosure requirement under Regulation Best Interest.

Marketing Communications

As discussed above, several commenters on the Titling Restrictions raised concerns that restricting the use of names and titles would be insufficient to address what they viewed as the larger issue of broker-dealer marketing communications where a broker-dealer and/or its financial professional appears to be holding itself out as an investment adviser. Marketing communications provide additional context to investors and are designed to persuade potential customers to obtain and pay for the firm's services and products.[353] They communicate to customers what services firms understand themselves to be providing—including, for broker-dealers, recommendations in connection with and reasonably related to effecting securities transactions.

The way in which a broker-dealer markets itself may have regulatory consequences. As noted above, Form CRS requires, among other items, broker-dealers (and investment advisers) to state clearly key facts about their relationship, including their registration status and the services they provide.[354] Broker-dealers (and investment advisers) will also be required through Form CRS to provide information to assist retail investors in deciding whether to engage in an investment advisory or brokerage relationship.[355] Additionally and as discussed above, we are adopting the capacity disclosure requirement under Regulation Best Interest, which requires broker-dealers and their financial professionals to affirmatively disclose the capacity (e.g., brokerage) in which they are acting with respect to their recommendations.[356] These obligations are designed to improve awareness among retail customers of the capacity in which their firm or financial professional acts when it makes recommendations so that the retail customer can more easily identify and understand their relationship.

As noted above, we are not adopting the Commission's proposed alternative holding out approach that would have addressed broker-dealer marketing communications through the lens of the solely incidental exclusion.[357] However, under our interpretation of the solely incidental prong of the broker-dealer exclusion from the definition of investment adviser, a broker-dealer's investment advisory services do not fall within that prong if the broker-dealer's primary business is giving investment advice or if its investment advisory services are not offered in connection with and are not reasonably related to the broker-dealer's business of effecting securities transactions.[358] By more clearly delineating when a broker-dealer's performance of advisory activities renders it an investment adviser, this interpretation provides guidance that may be informative to broker-dealers when designing marketing communications that accurately reflect their activities.

Broker-dealers, dual-registrants, and affiliated broker-dealers of investment advisers that market their services together should consider whether modifications are needed in their marketing communications in light of these new obligations. As we noted in the Relationship Summary Proposal, broker-dealers can, and do, provide investment advice so long as such advice comports with the broker-dealer exclusion under Advisers Act section 202(a)(11)(C). While broker-dealers and their financial professionals may state that they provide “advice” in their marketing communications, those and other statements should not be made in a manner that contradicts the disclosures made pursuant to Regulation Best Interest and Form CRS, and should be reviewed in light of the Solely Incidental Interpretation.[359] We believe that the combination of new disclosure obligations and requirements and firms' implementation of these new obligations will appropriately address commenters' concerns regarding broker-dealers that hold themselves out as Start Printed Page 33354investment advisers, particularly those who can change capacities when serving retail investors in a dual capacity.[360]

In addition to these new obligations, FINRA Rule 2210 (regarding its members' communications with the public) is designed to ensure that broker-dealer communications with the public are fair, balanced, and not misleading.[361] This rule includes general standards, such as a requirement to not make any false or misleading statements, and specific content standards, such as requirements on how to disclose the broker-dealer's name in marketing communications.[362] Accordingly, we anticipate that FINRA will be reviewing the application of these rules in light of these new disclosure obligations. The Commission staff also will evaluate broker-dealer marketing communications to consider whether additional measures may be necessary.

Fees and Costs

In the Proposing Release, we stated that fees and charges applicable to the retail customer's transactions, holdings, and accounts would also be examples of “material facts relating to the terms and scope of the relationship” [363] As such, these fees and charges would generally have needed to be disclosed in writing prior to, or at the time of, the recommendation. While we did not propose to mandate the form, specific content, or method for delivering fee disclosure, we stated that we would generally expect that, to meet the Disclosure Obligation, broker-dealers would build upon the proposed Relationship Summary by disclosing, among other things, additional detail regarding the types of fees and charges described in the proposed Relationship Summary.[364]

We received a number of comments on the proposed Disclosure Obligation relating to fees and charges. As discussed in more detail in the relevant sections below, these comments generally sought clarity on the scope of fees and charges to be disclosed, including the particularity of the fees and charges to be disclosed (i.e., whether standardized or individualized disclosure would be required). In consideration of the comments received, and in light of the obligations being imposed by the Relationship Summary, we are revising Regulation Best Interest to explicitly require the disclosure of fees and costs, and are providing additional clarifying guidance. In addition, we are revising the Regulation Best Interest rule text to refer to “fees and costs” instead of “fees and charges,” consistent with the approach taken in the Relationship Summary. Specifically, we are revising the Disclosure Obligation to require disclosure of “all material facts relating to the scope and terms of the relationship with the retail customer, including [. . .] the material fees and costs that apply to the retail customer's transactions, holdings and accounts.” [365]

We are also providing additional guidance addressing the scope of fees and costs to be disclosed. Namely, the Disclosure Obligation requires disclosure of material fees and costs relating to the retail customer's transactions, holdings and accounts. This obligation would not require individualized disclosure for each retail customer. Rather, the use of standardized numerical and other non-individualized disclosure (e.g., reasonable dollar or percentages ranges) is permissible, as discussed below.[366]

Scope of Fees and Costs To Be Disclosed

Several commenters asked for clarification about whether all fees and charges must be disclosed, or only those that are “material.” [367] In response, we are revising Regulation Best Interest to make explicit that a material fact regarding the scope and terms of the relationship includes material fees and costs that apply to the retail customer's transactions, holdings and accounts. As noted above, the standard for materiality for purposes of the Disclosure Obligation is consistent with the one the Supreme Court articulated in Basic v. Levinson; fees and costs are material and must be disclosed, if there is “a substantial likelihood that a reasonable shareholder would consider it important.” [368] As noted above, in the context of this Regulation Best Interest, the standard of materiality is based on the retail customer, as defined in the rule.

We would generally expect that, to satisfy the Disclosure Obligation, broker-dealers would build upon the material fees and costs identified in the Relationship Summary, providing additional detail as appropriate. These descriptions could include, for example, an explanation of how and when the fees are deducted from the customer's account (e.g., such as on a per-transaction basis or quarterly). Although the fees and costs identified in the Relationship Summary may provide a useful starting point for the identification of the material fees and costs that may be disclosed pursuant to the Disclosure Obligation, there may be other categories of fees and costs that are material under the facts and circumstances of a broker-dealer's business model that must be disclosed pursuant to the Disclosure Obligation.

Particularity of Fees and Costs Disclosed; Individualized Disclosure

Several commenters recommended that the Commission not require that broker-dealers provide individualized fee disclosures to retail customers. Specifically, they recommended that the Commission clarify that broker-dealers could meet the Disclosure Obligation if they provide a range of fees and costs or use standardized and hypothetical amounts rather than requiring disclosure of actual dollar amounts based on proposed amounts to be invested (i.e., individualized fees).[369] These commenters cited concerns about cost and practicality associated with generating individualized disclosures.[370] With regard to product-level fees in particular, several commenters expressed concern that Start Printed Page 33355broker-dealers could not easily calculate individualized fees and charges associated with the securities about which they provide recommendations and that doing so might lead to inadvertently providing inconsistent or inaccurate fee estimates to their retail customers.[371] In this vein, several commenters recommended that broker-dealers should be able to satisfy the Disclosure Obligation regarding product-level fees by providing retail customers with or referring them to an issuer's offering materials, such as a prospectus.[372] Other commenters, on the other hand, stated that the Commission should not allow the use of percentages or ranges because such a presentation does not adequately inform investors of the fees and charges they will incur.[373]

As adopted, the Disclosure Obligation does not mandate individualized fee disclosure particular to each retail customer. Instead, broker-dealers may disclose “material facts” about material fees and costs in terms of more standardized numerical and narrative disclosures, such as standardized or hypothetical amounts, dollar or percentage ranges, and explanatory text where appropriate. The disclosure should accurately convey why a fee is being imposed and when the fee is to be charged. Further, as discussed below,[374] a broker-dealer will need to supplement this standardized disclosure with more particularized information if the broker-dealer concludes that such information is necessary to fully and fairly disclose the material facts associated with the fee or charge. For example, a broker-dealer might initially disclose a range of product fees, and later supplement that information with more particularized information by delivering the product prospectus.[375]

Consistent with this approach, and also in response to comments, we are further clarifying that a broker-dealer recommending a securities transaction or an investment strategy involving securities can meet the Disclosure Obligation regarding fees and costs assessed at the product level by describing those fees and costs in initial, standardized terms and providing subsequent particularized disclosure as necessary. To the extent that such subsequent information regarding product-level fees and costs appears in a currently mandated disclosure document, such as a trade confirmation or a prospectus, delivery of that information in accordance with existing regulatory obligations will be deemed to satisfy the Disclosure Obligation, even if delivery occurs after the recommendation is made, under the circumstances outlined in Section II.C.1. Although it is not required by Regulation Best Interest, broker-dealers may refer the customer to any issuer disclosure of the security being recommended, such as a prospectus, private placement memorandum, or offering circular, where more particular information may be found.

We acknowledge that the desire for greater fee transparency was a consistent theme of our investor engagement and we believe that the Disclosure Obligation, in conjunction with the Relationship Summary, significantly advances that goal. Individualized fee disclosure may be helpful to some retail customers, but it can also be costly, prone to errors, and cause delays in trade execution. In addition, in some cases the precise amount of the fee may be based on the dollar value of the transaction, and would not be known prior to or at the time of the recommendation, meaning that it could only be expressed in more general terms, such as a percentage value or range, as an initial matter. We believe that adopting the Disclosure Obligation that allows for the use of standardized disclosure furthers our goal of informing investors about fees and costs by the time of a recommendation in a workable manner. Nothing in Regulation Best Interest prevents a broker-dealer from providing such individualized disclosure to its customers should it wish to do so, and we encourage firms to assist retail customers in understanding the specific fees and costs that apply, and to provide more individualized disclosure where appropriate, or in response to a retail customer's request. As a best practice, firms may also consider reviewing with their retail customers the effect of fees and costs on the retail customer's account(s) on a periodic basis.[376] The costs, errors, delays, and other practical obstacles to individualized fee disclosure are likely to fall over time. We will continue to consider whether to require more personalized fee disclosure, particularly as technology evolves to address operational and technological costs.

With regard to the disclosure of product-level fees in particular, while we support the goal of bringing greater transparency to all fees incurred, we are seeking to supplement, not supplant, the existing regulatory regime currently applicable to product-level fees with the adoption of Regulation Best Interest. We acknowledge that if a broker-dealer highlights such fees with particularity, it may raise a customer's awareness of them, and we encourage as a best practice that broker-dealers do so.[377] We acknowledge also that the nature and extent of product-level disclosures may vary. However, we do not believe that requiring broker-dealers to deliver product disclosures earlier than is currently required, to generate fee disclosure not currently required of issuers, or to recalculate or highlight specific product-level fees already disclosed in an issuer's offering materials will meaningfully improve fee disclosure and it may, in fact, be unduly burdensome and raise the possibility of errors if broker-dealers were to be obligated to project or calculate product fees based on product issuer information. Accordingly, we believe that allowing broker-dealers to meet the Disclosure Obligation with regard to product-level fees by describing those fees in standardized terms with further detailed, particularized information related to the recommendation provided either prior to or at the time of the recommendation or afterwards under the circumstances outlined in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation, strikes an Start Printed Page 33356appropriate balance between costs to firms and benefits to retail customers.[378]

We believe this approach is bolstered by the existence of complementary obligations protective of retail customers that are imposed by Regulation Best Interest. For example, to the extent fees and costs incurred related to these products create conflicts of interest associated with a recommendation, we believe they are appropriately highlighted and addressed in the context of the conflicts and incentives they create to make a recommendation, and must be addressed as part of the obligation to disclose material facts about conflicts of interest associated with a recommendation, as discussed below.[379]

Moreover, under the Care Obligation, a broker-dealer recommending a securities transaction or investment strategy involving securities to a retail customer must consider costs associated with that recommendation when determining whether it is in the best interest of that retail customer. As a result, disclosure of product-level fees and costs to satisfy the Disclosure Obligation will be supplemented by other aspects of Regulation Best Interest.

While the Disclosure Obligation provides broker-dealers with flexibility in describing the material fees and costs that apply, the disclosure should accurately convey why the fee or charge is being imposed and when the fee or charge is to be assessed. For example, describing a commission or markup as a fee for “handling services” could inappropriately disguise the fee's true nature. Furthermore, while using a percentage or dollar range to describe a fee can be appropriate, that range should be designed to reasonably reflect the actual fee to be charged. For example, a statement that a charge may be “between 5 and 100 basis points” would not be accurate if the fee is in almost all instances between 85 and 100 basis points. However, in this case, a broker-dealer could accurately describe the fee, for example, as “generally being between 85 and 100 basis points, sometimes lower, but never above.” In some cases, actual dollar values based on a hypothetical transaction may facilitate customer understanding.

A material fact about fees and costs could also include informing a retail customer of a fee's triggering event, such as a fee imposed because an account minimum falls below a threshold and whether fees are negotiable or waivable.

Type and Scope of Services Provided

In the Proposing Release, we provided guidance that the type and scope of services a broker-dealer provides its retail customers would also be an example of what typically would be “material facts relating to the terms and scope of the relationship,” that would require disclosure pursuant to the Disclosure Obligation.[380] Specifically, we stated that broker-dealers should build upon their disclosure in the Relationship Summary, and provide additional information regarding the types of services that will be provided as part of the relationship with the retail customer and the scope of those services.[381]

In particular, we noted that under proposed Form CRS broker-dealers would provide high-level disclosures concerning services offered to retail investors, including, for example, recommendations of securities, assistance with developing or executing an investment strategy, monitoring the performance of the retail investor's account, regular communications, and limitations on selections of products.[382] We recognized that a broker-dealer that offers different account types, or offers varying additional services to the retail customer may not be able, within the content and space constraints of the Relationship Summary, to provide “all material facts relating to the scope and terms of the relationship” with the retail customer.[383] Thus, we stated that pursuant to the proposed Disclosure Obligation, we would have generally expected broker-dealers to disclose these types of material facts concerning the actual services offered as part of the relationship with the retail customer separately from the Relationship Summary.

Commenters generally agreed that it was important for broker-dealers to disclose to their customers material facts about the type and scope of services they provide to their customers.[384] However, commenters sought clarity regarding the application of this proposed guidance, and raised questions about whether firms would be specifically required to disclose certain services (e.g., monitoring account performance and providing financial education) pursuant to Regulation Best Interest,[385] as discussed below, and the level of disclosure required under Regulation Best Interest.[386]

Consistent with our approach in the Proposing Release, we continue to believe that the type and scope of services a broker-dealer provides to its retail customers are “material facts relating to the scope and terms of the relationship.” Accordingly, we are revising the rule text to explicitly require the disclosure of the “type and scope of services provided to the retail customer, including any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer,” as part of the “material facts relating to the scope and terms of the relationship” that must be disclosed pursuant to the Disclosure Obligation.[387]

We are interpreting the Disclosure Obligation to only require disclosure of material facts relating to the type of services provided (e.g., the fact that the broker-dealer monitors securities transactions and investment strategies) and the scope of services (e.g., information about the frequency and duration of the services). In response to comments, we are also specifically addressing the disclosure of information regarding whether or not the broker-dealer provides account monitoring services and whether the broker-dealer has account minimums or similar requirements.

In addition, in response to comments, we are clarifying that pursuant to the Disclosure Obligation, broker-dealers need to disclose only material information relating to the “type and scope of services provided.” As discussed in the context of the disclosure of fees and costs above, the standard for materiality of the type and scope of services to be disclosed is consistent with the standard articulated in Basic v. Levinson: Information related to the type and scope of services provided is material, and must be disclosed, if there is “a substantial likelihood that a reasonable shareholder Start Printed Page 33357would consider it important.” [388] As noted above, in the context of Regulation Best Interest, this standard would apply in the context of retail customers, as defined.

We believe the information included in the Relationship Summary may provide a useful starting point for the identification of the type and scope of services that must be disclosed pursuant to the Disclosure Obligation. For example, in the Relationship Summary a broker-dealer must describe its principal brokerage services offered, including buying and selling securities, and whether or not it offers recommendations to retail investors.[389] Additionally, in the Relationship Summary, if applicable, the broker-dealer must address whether or not the firm offers monitoring of investments.

We believe that broker-dealers will generally need to build upon the disclosures made in the Relationship Summary as appropriate, and to provide additional information regarding the types of services that will be provided as part of the relationship with the retail customer and the scope of those services (e.g., the frequency and duration of the services), as necessary, in order to meet the Disclosure Obligation's requirement to disclose “all material facts” regarding the type and scope of services provided. Broker-dealers may be able to satisfy this aspect of the Disclosure Obligation by relying on their existing disclosures about the type and scope of their services, typically reflected in their account opening agreement or other account opening related documentation, so long as the disclosure as a whole addresses the material facts relating to the type and scope of services offered to the retail customer.

Disclosure of Material Limitations on Securities and Investment Strategies

In the Proposing Release, we included any limitations on the products and services offered as an example of a material fact relating to the terms and scope of the relationship that would need to be disclosed pursuant to the Disclosure Obligation. We agree with commenters who advocated for helping investors to understand whether a broker-dealer limits its product offerings, and to what extent, before entering into a relationship with a broker-dealer.[390] We continue to believe that broker-dealers that place material limitations on the securities or investment strategies involving securities that may be recommended to retail customers—such as recommending only proprietary products or a specific asset class—need to describe the material facts relating to those limitations.[391]

Therefore, in response to comments, we are revising Regulation Best Interest to explicitly require that, as part of the disclosure of the type and scope of services provided to the retail customer, a broker-dealer must include “any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer.” [392] For purposes of this requirement, a “material limitation” placed on the securities or investment strategies involving securities could include, for example, recommending only proprietary products (e.g., any product that is managed, issued, or sponsored by the broker-dealer or any of its affiliates), a specific asset class, or products with third-party arrangements (e.g., revenue sharing, mutual fund service fees).[393] Similarly, the fact that the broker-dealer recommends only products from a select group of issuers, or makes IPOs available only to certain clients, could also be considered a material limitation. To cite another example, if an associated person of a dually registered broker-dealer only offers brokerage services, and is not able to offer advisory services, the fact that the associated person's services are materially narrower than those offered by the broker-dealer would constitute a material limitation.

We recognize that, as a practical matter, all broker-dealers limit their offerings of securities and investment strategies to a greater or lesser degree. We do not believe that disclosing the fact that a broker-dealer does not offer the entire possible range of securities and investment strategies would convey useful information to a retail customer, and therefore we would not consider this fact, standing alone, to constitute a material limitation.[394]

In addition, we believe that there are a number of reasonable practices by which appropriate limitations are determined, including processes for the selection of a “menu” of products that will be available for recommendations to retail customers. We further recognize that these limitations can be beneficial, such as by helping ensure that a broker-dealer and its associated persons understand the securities they are recommending, as required by paragraph (a)(2)(ii)(A) of the Care Obligation. We have also explicitly stated that Regulation Best Interest would not prohibit a broker-dealer from recommending, for example, a limited range of products, or only proprietary products, provided the broker-dealer satisfies the component obligations of Regulation Best Interest. Nonetheless, because these firm-wide threshold decisions have such a significant effect on the subsequent recommendations ultimately made to a retail customer, we are requiring disclosure of the material limitations on the securities or investment strategies involving securities that may be recommended—by the broker-dealer and its associated persons—as well as any associated conflicts of interest.

Explicitly requiring disclosure of these limitations is also consistent with our approach in the Care and Conflict of Interest Obligations. As discussed below, despite the potential beneficial aspects of some limitations, we are concerned that such limitations and any associated conflicts of interest can negatively affect the securities or investment strategies recommended to a retail customer.[395] In recognition of this concern, we have revised the Conflict of Interest Obligation to specifically require the establishment of policies and procedures to identify, disclose, and address that risk.[396] Furthermore, we reiterate that even if a broker-dealer discloses and addresses any material limitations on the securities or investment strategies involving securities recommended to a retail customer, and any associated conflicts of interest, as required by the Disclosure Start Printed Page 33358and Conflict of Interest Obligations, it would nevertheless need to satisfy the Care Obligation in recommending such products.[397]

Account Monitoring Services

In the Proposing Release, we identified as a material fact relating to the scope and terms of the relationship with the retail customer the type and scope of services provided by the broker-dealer, including, for example, monitoring the performance of the retail customer's account.[398] Additionally, the Proposing Release stated that to the extent that the broker-dealer agrees with a retail customer by contract to provide periodic or ongoing monitoring of the retail customer's investments for purposes of recommending changes in investments, Regulation Best Interest would apply to, and a broker-dealer would be liable for not complying with the proposed rule with respect to, any recommendations about securities or investment strategies made to retail customers resulting from such services.[399]

Commenters suggested that broker-dealers should be required to clearly define the nature of account monitoring services offered, with some commenters pointing to retail customer confusion on this topic.[400] One commenter stated that disclosure will not help a retail customer of a dual-registrant who has both brokerage and advisory accounts, who is unlikely to remember which accounts his or her financial advisor is responsible for monitoring, and for which accounts the customer bears that responsibility. Accordingly, the commenter recommends that we require broker-dealers to monitor all retail customers' accounts.[401]

As discussed in the Solely Incidental Interpretation, we disagree with commenters who suggested that any monitoring of customer accounts would require a broker-dealer to register as an investment adviser and we believe that it is important for retail customers to understand: (1) The types of account monitoring services (if any) a particular broker-dealer provides, and (2) whether or not the broker-dealer will be providing monitoring services for the particular retail customer's account. Accordingly, we believe that whether or not the broker-dealer will monitor the retail customer's account and the scope and frequency of any account monitoring services that a broker-dealer agrees to provide are material facts relating to the type and scope of services provided to the retail customer and must be disclosed pursuant to the Disclosure Obligation. This disclosure could indicate, for example, that the broker-dealer will monitor the account or investments at a stated frequency in light of the retail customer's investment objectives for the purpose of recommending an asset reallocation where appropriate, or that the broker-dealer will monitor the account periodically to determine whether a brokerage account continues to be in the retail customer's best interest. Or, broker-dealers that offer no account monitoring services could disclose that they will not monitor the account or consider whether any recommendations may be appropriate unless the retail customer specifically requests that they do so.[402]

The Relationship Summary requires broker-dealers to explain whether or not they monitor retail investors' investments, including the frequency and any material limitations.[403] However, as noted above, because the Relationship Summary provides high-level disclosure, in most cases it generally would not be sufficiently specific to inform investors about the scope and frequency of any account monitoring services applicable to the particular retail customer's account. The Disclosure Obligation is designed to provide investors with an expanded description of the material information relating to such services. Furthermore, as discussed in Section 2.B.2.b., Regulation Best Interest applies to recommendations resulting from agreed-upon account monitoring services (including implicit hold recommendations). Requiring disclosure of whether or not the broker-dealer will monitor the retail customer's account, and the scope and frequency of such monitoring, will help retail customers understand the terms applicable to the particular retail customer's account. While retail customers with multiple accounts will have to keep track of the accounts for which their broker-dealer has agreed to monitor, we believe that requiring disclosure of this service will provide those retail customers with sufficient clarity about the monitoring services they may expect. Requiring all broker-dealers to monitor all retail customer accounts, as one commenter suggested, would diminish the options available to retail customers, who may wish to have their accounts monitored to a greater or lesser degree (including not at all).

Account Balance Requirements

The Proposing Release did not address whether a broker-dealer offering brokerage accounts subject to account balance requirements is a “material fact relating to the scope and terms of the relationship.” However, several commenters to the Form CRS proposal suggested that the Commission require firms to disclose any account balance requirements in the Relationship Summary.[404] We believe that account balance requirements are a material fact relating to the terms and scope of the relationship. Consequently, we are interpreting the Disclosure Obligation to include disclosure of whether a broker-dealer has any requirements for retail customers to open or maintain an account or establish a relationship, such as a minimum account size. We believe that if a broker-dealer will only open a brokerage account for a retail customer with a specific account minimum, such a basic operational aspect of the account is a material fact relating to the type and scope of services provided. If dollar thresholds or other requirements apply to a retail customer's ability to maintain an existing account, or to avoid additional fees when the threshold is crossed (for example, a “low account balance” fee), such requirements also would likely be of importance to a retail customer.[405] We further believe retail customers can use facts about different account size requirements for both current and future planning and decision-making purposes. Accordingly, Start Printed Page 33359the Commission believes this information constitutes a “material fact” that must be disclosed pursuant to the Disclosure Obligation.

Other Material Facts Related to the Scope and Terms of the Relationship

In the Proposing Release, although we identified the broker-dealer's capacity, fees and charges, and type and scope of services provided as examples of what would generally be considered “material facts relating to the scope and terms of the relationship with the retail customer,” we noted that the Disclosure Obligation would also require broker-dealers and their associated persons to determine, based on the facts and circumstances, whether there are other material facts relating to the scope and terms of the relationship that would need to be disclosed.[406] We also asked for comment on whether examples of other information relating to scope and terms of the relationship should be highlighted by the Commission as likely to be considered a material fact relating to the scope and terms of the relationship that would need to be disclosed.[407]

A number of commenters provided suggestions of additional examples of such material facts that the Commission should highlight or explicitly require to be disclosed as a “material fact relating to the scope and terms of the relationship.” Specifically, commenters raised whether a broker-dealer's basis for,[408] and risks associated with,[409] a recommendation, or the standard of conduct applicable to a broker-dealer making a recommendation,[410] should be material facts relating to the scope and terms of the relationship.

Basis for and Risks Associated With the Recommendation

The Proposing Release did not address whether a broker-dealer's basis for a recommendation is a “material fact relating to the scope and terms of the relationship.” However, several commenters requested that the Commission treat a broker-dealer's basis for a recommendation as a “material fact relating to the scope and terms of the relationship” that would likely need to be disclosed prior to, or at the time of the recommendation, pursuant to the Disclosure Obligation.[411] Similarly, several commenters suggested that the Commission should treat risks associated with a broker-dealer's recommendation as “material facts relating to the scope and terms of the relationship” that would likely need to be disclosed prior to, or at the time of the recommendation.[412] Other commenters opposed requiring particularized disclosure of the basis of individual recommendations, stating that it is sufficient to disclose that different products are available with different features rather than require firms specify why the broker-dealer recommended one product over another.[413]

Our view is that the general basis for a broker-dealer's or an associated person's recommendations (i.e., what might commonly be described as the firm's or associated person's investment approach, philosophy, or strategy) is a material fact relating to the scope and terms of the relationship with the broker-dealer that must be disclosed pursuant to the Disclosure Obligation. The process by which a broker-dealer and an associated person develop their recommendations to retail customers is of fundamental importance to the retail customer's understanding of what services are being provided, and whether those services are appropriate to the retail customer's needs and goals. We believe that such a description can be made in standardized or summary form; however the disclosure should also address circumstances of when the standardized disclosure does not apply and how the broker-dealer will notify the customer when that is the case. For example, if an associated person has a distinct investment approach, as may be the case with persons associated with an independent contractor broker-dealer, the broker-dealer's standardized disclosure should indicate how its associated persons will notify retail customers of their own investment approach.

While the general basis for the recommendation is a material fact for purposes of the Disclosure Obligation, we decline to require disclosure of the basis for each recommendation, an approach that could involve significant costs and in many cases may simply repeat the more standardized disclosure that we are already requiring. With regard to how conflicts of interest may affect the basis for a particular recommendation, we note that the Disclosure Obligation requires disclosure of the material facts relating to the conflicts of interest associated with the recommendation, which will help retail customers evaluate the incentives a broker-dealer or associated person may have in making a recommendation; and the Conflict of Interest Obligation requires a broker-dealer to have policies and procedures to mitigate, and in certain instances, eliminate, specified conflicts of interest. Accordingly, to the extent the basis for any recommendation is subject to any conflicts of interest, the Commission believes that the Care Obligation's substantive requirement to have a reasonable basis for the recommendation, combined with the Disclosure, Conflict of Interest and Compliance Obligations, provides sufficient protections to broker-dealers' retail customers.

Similarly, we are interpreting disclosure of the risks associated with a broker-dealer's or associated person's recommendations in standardized terms as a material fact related to the scope and terms of the relationship that needs to be disclosed. For example, a broker-dealer could disclose: “While we will take reasonable care in developing and making recommendations to you, securities involve risk, and you may lose money. There is no guarantee that you will meet your investment goals, or that our recommended investment strategy will perform as anticipated. Please consult any available offering documents for any security we recommend for a discussion of risks associated with the product. We can provide those documents to you, or help you to find them.” This example is purely illustrative. Whether any Start Printed Page 33360particular disclosure by a broker-dealer is sufficient to meet the Disclosure Obligation will depend on the facts and circumstances.

The risks associated with a particular recommendation would be relevant to a retail customer. However, we believe that broker-dealers may rely on the existing disclosure regime governing securities issuers to disclose the risks associated with any issuer, security or offering,[414] and it is not our intent to require the broker-dealer to duplicate or expand on those disclosures. Consistent with our approach, discussed above, to disclosure of product-level fees and costs, we believe that describing product-level risks in standardized terms, with additional information in any available issuer disclosure documents delivered in accordance with existing regulatory requirements would satisfy the Disclosure Obligation. As noted above, we are not seeking to supplant the developed regulatory regime currently applicable to offering disclosure with the adoption of Regulation Best Interest.

While we believe that a standardized discussion of risks is a material fact that must be disclosed to satisfy the Disclosure Obligation, we decline to impose a disclosure requirement specific to each recommendation. As with regard to the disclosure of the individualized basis for each recommendation, we believe that such specific disclosure could involve significant costs and in many cases simply repeat the more standardized disclosure that we are requiring, which we believe will sufficiently inform retail customers, in broad terms, of the nature of the risks associated with a recommendation.

In addition, under the Care Obligation, a broker-dealer making a recommendation of a securities transaction or investment strategy involving securities to a retail customer must consider the risks when determining whether it has a reasonable basis for believing that the recommended transaction or investment strategy could be in the best interest of at least some retail customers, and is in the best interest of a particular retail customer. Moreover, under paragraph (a)(2)(B) of Regulation Best Interest, discussed below, broker-dealers need to disclose “all material facts relating to conflicts of interest that are associated with the recommendation,” which will require disclosure of what we believe to be a significant risk associated with a broker-dealer's recommendations—the broker-dealer's conflicts of interest. For these reasons, we believe that standardized written disclosure of this information in general terms is sufficient.

Consistent with the Compliance Obligation, broker-dealers should consider developing policies and procedures that address the circumstances under which the basis for a particular recommendation would be disclosed to a retail customer. As a best practice, firms also should encourage their associated persons to discuss the basis for any particular recommendation with their retail customers, including the associated risks, particularly where the recommendation is significant to the retail customer. For example, the decision to roll over a 401(k) into an IRA may be one of the most significant financial decisions a retail investor could make. Thus, a broker-dealer should discuss the basis of such recommendations with the retail customer. Similarly, we encourage broker-dealers to record the basis for their recommendations, especially for more complex, risky or expensive products and significant investment decisions, such as rollovers and choice of accounts, as a potential way a broker-dealer could demonstrate compliance with the Care Obligation.

Standard of Conduct [415]

As stated in the Proposing Release, the Commission intended the Relationship Summary to touch on issues that are also contemplated under the Disclosure Obligation, such as facilitating greater awareness of key aspects of a relationship with a firm or financial professional, such as the applicable standard of conduct.[416] Several commenters on Regulation Best Interest also requested that the Commission treat the standard of conduct applicable to a broker-dealer making the recommendation to its retail customer as a “material fact relating to the scope and terms of the relationship” that would likely need to be disclosed prior to, or at the time of the recommendation under the Disclosure Obligation.[417] Specifically, these commenters requested that the Commission require a firm to disclose whether it is providing a recommendation subject to Regulation Best Interest or advice subject to a fiduciary duty.[418]

The Commission also carefully considered numerous comments concerning the standard of conduct disclosure in proposed Form CRS, along with the results of investor testing and the Commission's Feedback Form.[419] As discussed more fully in the Relationship Summary Adopting Release, we are adopting a requirement in Form CRS for a description of a firm's applicable standard of conduct using prescribed wording.[420] This “standard of conduct” disclosure (as modified from proposed Form CRS) both eliminates technical words, such as “fiduciary,” and describes the legal obligations of broker-dealers, investment advisers, or dual-registrants using similar terminology in plain English. The prescribed wording Start Printed Page 33361also highlights when a firm must satisfy its legal obligation—specifically, in the case of a broker-dealer, when making a recommendation.

We believe the standard of conduct owed to a retail customer under Regulation Best Interest is a material fact relating to the scope and terms of the relationship. However, given that Form CRS requires firms to disclose in prescribed language the applicable standard of conduct and, as discussed above, the Disclosure Obligation requires broker-dealers to disclose the capacity (i.e., brokerage) in which they are acting with respect to a recommendation, we believe this disclosure to be sufficient and thus requiring any additional disclosure would be duplicative.

b. Material Facts Regarding Conflicts of Interest

As noted above, in addition to requiring disclosure of the “material facts relating to the scope and terms of the relationship,” the proposed Disclosure Obligation would have required a broker-dealer to disclose “all material conflicts of interest associated with the recommendation.” We proposed to interpret a “material conflict of interest” as 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.” [421] We generally modeled this proposed interpretation on the Advisers Act approach to identifying conflicts of interest for which investment advisers may face antifraud liability in the absence of full and fair disclosure.[422] We expressed our preliminary belief that a material conflict of interest that generally should be disclosed would include material conflicts associated with recommending: Proprietary products, products of affiliates, or a limited range of products, or one share class versus another share class of a mutual fund; securities underwritten by the broker-dealer or an affiliate; the rollover or transfer of assets from one type of account to another (such as a recommendation to roll over or transfer assets in an ERISA account to an IRA); and allocation of investment opportunities among retail customers (e.g., IPO allocation).[423]

While commenters supported the disclosure of conflicts of interest, some sought clarity on the standard for determining which conflicts should be disclosed,[424] and others requested clarity on whether conflicts involving certain actions (e.g., rollovers) [425] and products (e.g., proprietary products) [426] should be disclosed.[427]

Several commenters urged the Commission to define “conflicts of interest” without a reference to the terms “consciously or unconsciously.” [428] These commenters claim that discerning a broker's conscious or unconscious state of mind is “confusing and inherently unknowable.” [429] Similarly, one commenter stated that a broker-dealer would be unable to draft adequate policies and procedures that address an individual's mindset, noting that it would be impossible for a broker-dealer to anticipate an individual's unconscious conflicts.[430] Instead, these commenters suggested revised language that eliminates the notion of conscious or unconscious inclination.[431] Similarly, several commenters opposed the Commission's use of the term “not disinterested.” [432] These commenters believe that the term is not clear and could, among other things, suggest the elimination of all conflicts.[433] One of these commenters recommended that the Commission eliminate the term “not disinterested” [434] while another suggested that the Commission clarify whether “material” and “not disinterested” are intended to be identical or different standards for brokers and advisers.[435] Other commenters opposed the proposed standard, arguing that it was not as broad as the disclosure obligation applicable to investment advisers. In particular, some commenters urged the Commission to apply the standard for disclosure applicable to investment advisers as articulated by the Supreme Court in SEC. v. Capital Gains Research Bureau.[436] Specifically, commenters requested that the Commission require disclosure of not only material conflicts but also the material facts related to a recommendation.[437]

We are adopting the obligation to disclose conflicts of interest, with several modifications and clarifications to the Proposing Release. Specifically, Paragraph (a)(2)(i)(B) of Regulation Best Interest requires that broker-dealers disclose “material facts relating to conflicts of interest that are associated with the recommendation.” [438]

Start Printed Page 33362

However, as discussed in more detail below, in response to comments and in the light of the Relationship Summary, we are: (1) Adopting for purposes of Regulation Best Interest a definition of “conflict of interest” associated with a recommendation “as an interest that might incline a broker, dealer, or a natural person who is an associated person of a broker or dealer—consciously or unconsciously—to make a recommendation that is not disinterested;” and (2) revising the Disclosure Obligation to require disclosure of “material facts” regarding such conflicts of interest. Under this approach, all conflicts of interest as interpreted under the Proposing Release will be covered by Regulation Best Interest.

We believe distinguishing between “conflicts of interest” and “material facts” regarding such conflicts that would be disclosed would make the Disclosure Obligation more consistent with the proposal's intent. In the Proposing Release, the Commission discussed limiting the disclosure of conflicts under the Disclosure Obligation “consistent with case law under the antifraud provisions, which limit disclosure obligations to “material facts.”

After considering the comments, we have determined to retain the proposed approach to conflicts of interest as described in Capital Gains. In particular, we acknowledge commenter concerns about discerning a broker's conscious or unconscious state of mind. However, the description of conflicts of interest in Capital Gains is well established, familiar to many in the industry, particularly dual-registrants, and guidance already exists regarding what constitutes a conflict of interest under this standard. To provide clarity that this interpretation is limited to Regulation Best Interest, however, we are revising Regulation Best Interest to explicitly provide that a “conflict of interest” “means an interest that might incline a, broker, dealer, or natural person who is an associated person of a broker-dealer—consciously or unconsciously—to make a recommendation that is not disinterested,” [439] consistent with the scope of the meaning of “conflict of interest” for investment advisers under Capital Gains.[440]

Several commenters also made suggestions regarding the Commission's interpretation of the term “material” as used in the proposed Disclosure Obligation (i.e., the proposed requirement to disclose “all material conflicts of interest that are associated with the recommendation”).[441] Many commenters agreed with the Commission's decision to use a “materiality” standard to determine those facts about conflicts of interest that must be disclosed.[442] However, several other commenters asked the Commission to clarify the meaning of “material.” [443] These latter commenters stated, among other things, that the term “material” in proposed Regulation Best Interest was not clearly defined and would be subjectively interpreted.[444] Accordingly, many of these commenters recommended that the Commission adopt a materiality standard based on the standard articulated in Basic v. Levinson.[445]

The Supreme Court in Basic articulated a standard for materiality, stating that information is material if there is “a substantial likelihood that a reasonable shareholder would consider it important.” [446] This definition of “material” is well established and thus limiting disclosure to material facts in the Disclosure Obligation will eliminate confusion and reduce the compliance burden on broker-dealers in fulfilling the Disclosure Obligation. It will also help focus the information made available to retail customers.[447] Accordingly, we interpret “material facts” consistent with the Basic standard. Moreover, while the Regulation Best Interest definition of “conflict of interest” is modeled on the regulatory regime applicable to investment advisers, and is not by its terms explicitly limited to “material” conflicts of interest, it would be difficult to envision a “material fact” that must be disclosed pursuant to the Disclosure Obligation that is not related to a conflict of interest that is also material under the Basic standard.[448]

Interpretation of Disclosure of Material Facts Relating to Conflicts of Interest

In response to comments, we are providing our view regarding what we would consider “material facts relating to conflicts of interest that are associated with a recommendation” that would need to be disclosed under the Disclosure Obligation. We believe the conflicts of interest identified in the Relationship Summary may provide a useful starting point for the identification of material facts that need to be disclosed pursuant to the Disclosure Obligation.[449] In addition, we also view how a broker-dealer's investment professionals are compensated, and the conflicts associated with those arrangements, as material facts relating to conflicts of interest that are associated with a recommendation.[450] While these conflicts of interest must be summarized in the Relationship Summary to the extent they are applicable, we believe that additional details regarding many of these conflicts need to be disclosed under the Disclosure Obligation as “material facts” relating to conflicts of interest associated with a recommendation.

Disclosure of Compensation

Broker-dealers receive compensation that typically varies depending on what securities transaction or investment strategy involving securities is being recommended. The source of the compensation may also vary, for example being paid directly by the investor, or by a product sponsor, or a combination of both. A broker-dealer may also pay its associated persons different rates of compensation depending on the type of security they sell.[451] Similarly, broker-dealers can receive different payments from Start Printed Page 33363different product providers (e.g., mutual funds) for a variety of reasons, such as payments for inclusion on a broker-dealer's menu of products offered (sometimes referred to as shelf space). These compensation arrangements create a variety of conflicts of interest that must be addressed under both Form CRS and the Disclosure Obligation.

We believe that compensation associated with recommendations to retail customers and related conflicts of interest—whether at the broker-dealer or the associated person level—is a conflict of interest about which material facts must be disclosed as part of the Disclosure Obligation. This disclosure should summarize how the broker-dealer and its financial professionals are compensated for their recommendations and, as importantly, the conflicts of interest that such compensation creates. This summary should include the sources and types of compensation received, and may include the fact that fees and costs disclosed pursuant to Paragraph (a)(2)(i)(A) of Regulation Best Interest that a retail customer may pay directly or indirectly are a source of compensation, if that is the case. For example, if a broker-dealer receives compensation derived from the sale of securities or other investment products held by retail customers of the firm, including asset-based sales charges or service fees on mutual funds, that fact and the conflicts associated with the receipt of such compensation should be fully and fairly described.

Broker-dealers could meet the Disclosure Obligation by making certain required disclosures of information regarding conflicts of interest to their customers at the beginning of a relationship, and this form of disclosure may be standardized. However, if standardized disclosure, provided at such time, does not sufficiently identify the material facts relating to conflicts of interest associated with any particular recommendation, the disclosure would need to be supplemented so that such disclosure is tailored to the particular recommendation. For example, with regard to mutual fund transactions and holdings, a broker-dealer might disclose broadly that it is compensated by funds out of product fees or by the funds' sponsors, and that such compensation gives it an incentive to recommend certain products over other products for which the broker-dealer receives less compensation; later, when a broker-dealer recommends a particular fund, it could provide more specific detail about compensation arrangements, for example revenue sharing associated with the fund family. In the alternative, so long as the “material facts” regarding the conflicts associated with a recommendation of a mutual fund were disclosed at the outset of the relationship, no further disclosure need be made at the time of recommendation; we are not requiring that information regarding conflicts be disclosed on a recommendation-by-recommendation basis.

The Disclosure Obligation also does not require specific written disclosure of the amounts of compensation received by the broker-dealer or the financial representative. For example, we are not requiring broker-dealers to disclose the amount, if any, they compensate their financial professionals per transaction, or for year-end bonuses. We believe that disclosure of the material facts regarding conflicts of interest associated with a recommendation need not entail such individualized numerical disclosure, and that in any event such a level of detail may be difficult and costly to calculate with accuracy, and also confusing to investors in many instances. Instead, disclosure regarding conflicts must reasonably inform investors so that the investor may use the information to evaluate the recommendation, and that can be done without specific disclosure of the amount of the compensation. Although disclosure of specific compensation amounts is not required, depending on facts and circumstances, full and fair disclosure may require disclosure of the general magnitude of the compensation.[452]

We are also clarifying that while product fees and costs can be a significant source of compensation received by broker-dealers and associated persons, no disclosure regarding the particular amounts of these fees and costs is required under Regulation Best Interest with regard to conflicts of interest. Instead, what must be disclosed under Paragraph (a)(2)(i)(B) of Regulation Best Interest are the “material facts relating to conflicts of interest” created by compensation sourced from product fees and costs, rather than the fees and costs themselves.

Differences in Compensation and Proprietary Products

Several commenters recommended that required conflict disclosure address recommendations where a less expensive alternative is available, or condition the ability to recommend a more expensive product on the adequacy of a broker-dealer's conflict disclosures.[453] Similarly, several commenters expressed differing views on how payment of varying compensation should be handled under the “best interest” standard of Regulation Best Interest and how related conflicts should be disclosed.[454] For example, one commenter identified compensation differences within product lines as an example of a conflict that should be disclosed.[455] Several commenters also recommended that the Commission require disclosure of conflicts of interest related to use of proprietary products, and whether the broker-dealer offers alternatives to proprietary products.[456] Similarly, several commenters requested that the Commission clarify that broker-dealers can limit their offerings to proprietary products or products that make revenue sharing payments if, among other Start Printed Page 33364things, appropriate disclosure is made.[457]

As discussed above, we agree with commenters who stated that it may be compatible with the Care Obligation to recommend a more expensive product that is otherwise in a retail customer's best interest when there are less expensive alternatives available, to receive compensation that varies among products, and to recommend proprietary products.[458] However, we also believe that the conflicts of interest associated with such practices constitute “material facts” relating to conflicts of interest that must be disclosed under the Disclosure Obligation.

The receipt of higher compensation for recommending some products rather than others, whether received by the broker-dealer, the associated person, or both, is a fundamental and powerful incentive to favor one product over another.[459] While we are requiring firms to establish policies and procedures reasonably designed to mitigate the conflicts of interest that create an incentive for financial professionals to place the interest of the professional or broker-dealer ahead of the interest of the retail customer, we believe also that full and fair disclosure of the material facts concerning conflicts raised by variable compensation schemes is of particularly critical importance for an investor seeking to evaluate a recommendation under such circumstances, a concern further underscored by our approach under the Conflict of Interest Obligation of requiring policies and procedures to mitigate or eliminate certain conflicts.[460]

The benefits that accrue to a broker-dealer and its financial professionals from recommending proprietary products also raise conflicts of interest that must be disclosed. Material facts relating to the conflicts of interest associated with recommending proprietary products could include, as relevant, that the broker-dealer owns the product, and that in addition to any commission associated with purchasing the product, the broker-dealer or an affiliate may receive additional fees and compensation [461] related to that product.[462]

c. Full and Fair Disclosure

As proposed, the Disclosure Obligation would have required broker-dealers to “reasonably disclose” material facts relating to the scope and terms of the relationship with the retail customer, including all material conflicts of interest associated with the recommendation. The Commission used this formulation in order to give flexibility to broker-dealers in determining the most appropriate way to meet the proposed Disclosure Obligation depending on their individual business practices. The Commission also provided preliminary guidance on what it believed would be to “reasonably disclose” in accordance with the Disclosure Obligation by setting forth the aspects of effective disclosure, including the form and manner of disclosure and the timing and frequency of disclosure.

In this regard, the Commission requested comment on whether broker-dealers should be required to “reasonably disclose” and whether additional guidance as to how broker-dealers could meet this standard should be provided. The Commission also requested comment on whether disclosure should explicitly be required to be “full and fair.” In response, some commenters raised questions about using the term “reasonably disclose” [463] and whether broker-dealers should be subject to less rigorous disclosure obligations for recommendations made to retail customers than investment advisers.[464] These commenters recommended that the Commission explicitly require broker-dealers to provide full and fair disclosure of material facts.[465] One commenter reasoned that the Commission should not make Regulation Best Interest any more stringent than in the Proposing Release, stating that “full and fair” is both inapplicable and unnecessary given the proposed standard under the Disclosure Obligation.[466]

After careful consideration of the comments received, the Commission is adopting the Disclosure Obligation with revisions to require “full and fair disclosure” of all material facts relating to the scope and terms of the relationship with the retail customer and all material facts relating to conflicts of interest associated with the recommendation for the reasons described below.

While we do not believe that adopting a “full and fair disclosure” standard is significantly different from the proposed requirement to “reasonably disclose,” we believe that the Regulation Best Interest serves the Commission's goal of facilitating disclosure to assist retail customers in making informed investment decisions.[467] In addition, Start Printed Page 33365Regulation Best Interest will more closely align the Disclosure Obligation with existing requirements for investment advisers [468] and is consistent with disclosure standards in other contexts under the federal securities laws.[469]

The full and fair disclosure standard that the Commission is adopting for broker-dealers under the Disclosure Obligation is generally similar to the disclosure standard applicable to investment advisers under the Advisers Act.[470] Similar to the Proposing Release's interpretation of the phrase “reasonably disclose,” broker-dealers' obligation to provide full and fair disclosure should give sufficient information to enable a retail investor to make an informed decision with regard to the recommendation.[471]

We disagree with commenters who believe the “full and fair” standard is too stringent. While the general standard for broker-dealers under the Disclosure Obligation will be generally similar to the disclosure requirements applicable to investment advisers, the scope of the required disclosure is not as broad. For example, the Disclosure Obligation only requires disclosure of material facts relating to the scope and terms of the relationship with the broker-dealer, and material facts relating to conflicts of interest associated with a broker-dealer's recommendations, and not of all material facts relating to the relationship. In addition, the Disclosure Obligation only applies to retail customers. In contrast, the disclosure requirements imposed by the fiduciary duty under the Advisers Act generally and Form ADV in particular are broader (e.g., Form ADV requires disclosure of the adviser's principal owner(s) and certain financial industry activities and affiliations, which are not explicitly required under the Disclosure Obligation; Form ADV and the fiduciary duty also go to disclosure of the entire relationship while the Disclosure Obligation is tailored to the recommendation and also given at relevant points in time). We designed our approach to avoid having retail customers receive overwhelming amounts of information.[472]

Some commenters suggested that disclosure and informed consent should be required in order to comply with the obligations under Regulation Best Interest, similar to the approach taken under the fiduciary duty under the Advisers Act.[473] We have carefully considered these comments. As noted above, under the Disclosure Obligation, broker-dealers are required to provide full and fair disclosure such that a retail customer can make an informed decision with regard to the recommendation (i.e., whether to accept (or reject) that recommendation). In making such an informed decision after being provided with full and fair disclosure, we believe that the retail customer has provided “informed consent” in a manner that is analogous to the informed consent required to be provided by a client in the context of an investment adviser-client relationship.[474] An investment advisory client must provide informed consent to the adviser's conflicts of interest in the context of the entire relationship, which can be broader than the informed consent provided by a retail customer when making an informed decision to accept or reject a particular recommendation by a broker-dealer. We believe this is appropriate because the investment-adviser client relationship is generally broader and can include, for example, unlimited investment discretion by the investment adviser to conduct securities transactions on behalf of the client. The broker-dealer customer relationship on the other hand is generally transaction-based and the retail customer must accept (or reject) each recommendation by a broker-dealer after the broker-dealer has provided full and fair disclosure as required under the Disclosure Obligation. Thus, in this regard, Regulation Best Interest will more closely align the Disclosure Obligation with the existing requirements for investment advisers, as noted above, but is tailored to the broker-dealer relationship.[475] The Commission believes that the final Disclosure Obligation along with the protections provided by the requirements of Regulation Best Interest, including the Care Obligation and Conflict of Interest Obligation, will further serve to enhance the protections available to retail customers.

One commenter recommended that the Commission clarify what a broker-dealer is required to deliver to a retail customer in order to permit the retail customer to make an “informed decision,” and asked the Commission to confirm that it does not require a case-by-case analysis of what is reasonable to permit the retail customer to make an informed decision.[476] In addition, other commenters underscored the importance of providing retail customers with sufficient time to review and comprehend the disclosed information prior to making an informed decision about a recommendation.[477] Other commenters Start Printed Page 33366questioned whether providing “sufficient information” to enable a retail customer to make an informed decision broadens the Disclosure Obligation beyond “material facts” and “material conflicts.” [478]

We have considered the issues raised by the commenters and in the sections that follow are providing guidance on what we believe constitutes “full and fair disclosure” for purposes of the Disclosure Obligation, including the form and manner, and the timing and frequency, of the disclosure. Similar to the proposal, in lieu of setting explicit requirements by rule for what constitutes full and fair disclosure of all material facts, we are providing broker-dealers flexibility in determining the most appropriate way to meet the Disclosure Obligation depending on each broker-dealer's specific business practices.

As we noted in the Proposing Release, while we are providing flexibility to broker-dealers to meet the Disclosure Obligation, we continue to be sensitive to the potential that broker-dealers could opt to disclose all facts, including those that do not meet the materiality threshold.[479] We are cognizant of the likelihood that some broker-dealers could provide lengthy disclosures that do not meaningfully convey the material facts regarding the scope and terms of the relationship and material facts regarding conflicts of interest, an outcome that could undermine the Commission's goal of facilitating disclosure to assist retail customers in making an informed investment decision. To this end, broker-dealers will only be required to disclose material facts about the scope and terms of the relationship or conflicts of interest.

Although we are adopting the requirement with revisions to require full and fair disclosure of all material facts, we still believe it is important to clarify that broker-dealers' compliance with the Disclosure Obligation will be measured against a negligence standard, not against a standard of strict liability, consistent with the Proposing Release. The Commission has taken this position in other contexts where full and fair disclosure is required, including under the fiduciary duty under the Advisers Act.[480]

Form and Manner

In the Proposing Release, the Commission noted that it was not proposing to specify by rule the form (e.g., narrative v. graphical/tabular) or manner (e.g., relationship guide or other written communications) of disclosure required under the Disclosure Obligation. The Commission stated that disclosure should be concise, clear and understandable to promote effective communication between a broker-dealer and a retail customer.[481] We also stated that broker-dealers would be able to deliver disclosure required pursuant to Regulation Best Interest consistent with the Commission's guidance regarding electronic delivery of documents.[482] Although we preliminarily believed that broker-dealers should have the flexibility to make disclosures by any means, as opposed to requiring a standard written document at the outset of the relationship, we stated our belief that any such disclosure should be provided in writing.[483]

Commenters sought further guidance in a number of areas relating to disclosure, including the extent to which the Relationship Summary or other disclosures may satisfy the Disclosure Obligation,[484] the circumstances under which standardized disclosure could be sufficient, as well as how, and the extent to which, disclosures made pursuant to the Disclosure Obligation should be made in writing.[485] In response to comments we are providing additional guidance. We are also reaffirming guidance that we provided in the Proposing Release.

Prescribed Form of Disclosure

As noted in the Proposing Release, we believe it is important to provide broker-dealers with flexibility in determining the most appropriate and effective way to meet the Disclosure Obligation to reflect the structure and characteristics of their relationships with retail customers.[486] Many commenters agreed with this reasoning, arguing that there was a need to preserve flexibility for broker-dealers to comply with the Disclosure Obligation as proposed.[487] Other commenters believed, however, that the proposed Disclosure Obligation gave broker-dealers too much discretion.[488]

After careful consideration of these comments, the Commission has decided not to require any standard written disclosures (other than the Relationship Summary) at this time. Although we recognize the potential value to retail customers of standardizing the disclosures required pursuant to the Disclosure Obligation, we believe that retail customers can derive value from disclosures that accommodate the structure and characteristics of the particular broker-dealer. On balance, we recognize the wide variety of business models and practices and we continue to believe it is important to provide broker-dealers with flexibility to enable them to better tailor disclosure and information that their retail customers can understand and may be more likely to read at relevant points in time, rather Start Printed Page 33367than, for example, mandating a standardized all-inclusive (and likely lengthy) disclosure.[489]

We disagree that flexibility will prevent investors from obtaining information necessary to make an informed investment decision and do not believe that requiring a standard written disclosure beyond the Relationship Summary is necessary at this time. We emphasize, however, that the adequacy of the disclosure will depend on the facts and circumstances. We intend to evaluate broker-dealer disclosure practices in response to Regulation Best Interest over time to determine whether additional disclosure initiatives may be appropriate.

Relying on Other Disclosures and Standardized Documents

In the Proposing Release, we described how the Disclosure Obligation builds upon the requirements of Form CRS and the disclosures in the Relationship Summary.[490] We also stated that we anticipated that broker-dealers may elect to use other documents to satisfy elements of the Disclosure Obligation, such as an account agreement, a relationship guide, or a fee schedule.[491]

Several commenters requested guidance on their ability to use other documents to meet the requirements of the Disclosure Obligation. For example, some commenters recommended that the Commission harmonize the Disclosure Obligation with the broad, firm-level disclosure obligations of Form CRS so that firms can use the Relationship Summary to help satisfy the Disclosure Obligation.[492] Commenters also recommended that broker-dealers should be permitted to satisfy the Disclosure Obligation by using standardized language generally to describe the broker-dealer's products and services available to their retail customers and related conflicts of interest, including the ranges of remuneration payable to a broker-dealer in connection with its recommendation of different products.[493] Several commenters also suggested that the Commission should clarify that the Disclosure Obligation should not apply where an existing disclosure regime already exists.[494] Similarly, other commenters recommended that the Commission clarify whether broker-dealers could meet the Disclosure Obligation by referencing information required to be disclosed pursuant to other regulatory requirements such as FINRA disclosure rules.[495]

After careful consideration of the comments, the Commission is providing guidance to permit a broker-dealer to utilize existing disclosures and standardized documents, such as a product prospectus, relationship guide, account agreement, or fee schedule to help satisfy the Disclosure Obligation. The Commission recognizes that broker-dealers are subject to disclosure requirements other than the Disclosure Obligation and Form CRS, and believes utilizing such existing disclosures where appropriate is a reasonable and cost-effective way to satisfy the requirements of the Disclosure Obligation, and can also help avoid duplicative or voluminous disclosure by not requiring the creation of new disclosure documents.[496] We recognize also that in many instances, information necessary to satisfy the Disclosure Obligation may be broadly applicable to a broker-dealer's retail customers, and therefore the use of standardized disclosure may be appropriate.

However, while broker-dealers may choose to standardize certain forms of their disclosure, whether such materials would be sufficient to satisfy the Disclosure Obligation will depend on the facts and circumstances.[497] For example, disclosures may need to be tailored to a particular recommendation if the standardized disclosure does not sufficiently identify the material facts about a conflict of interest presented by a particular recommendation. Accordingly, a broker-dealer remains responsible for disclosing all material facts relating to the scope and terms of the relationship with the retail customer (as discussed above), as well as all material facts relating to conflicts of interest that are associated with a recommendation whether or not the firm relies on other materials to fulfill that obligation.

With regard to commenters' request that the Relationship Summary be considered sufficient to satisfy the Disclosure Obligation, we note that the Relationship Summary will provide succinct information and is designed to assist retail investors with the process of deciding whether to engage, or to continue to engage, a particular firm or financial professional, deciding whether to establish or continue to maintain a brokerage or investment advisory relationship, and asking questions and easily finding additional information. Start Printed Page 33368We recognize that additional details regarding many of the topics (e.g., services, fees and conflicts of interest) would in many cases be necessary to satisfy the Disclosure Obligation. Thus, although a broker-dealer could use a Relationship Summary and other standardized disclosures about its products and services to help satisfy the Disclosure Obligation, these disclosures may not be sufficient to satisfy the Disclosure Obligation. Whether the Relationship Summary standing alone, or any additional or existing disclosures, satisfy any of these required disclosures in full would depend on the facts and circumstances. In most instances, broker-dealers will need to provide additional information beyond that contained in the Relationship Summary in order to satisfy the Disclosure Obligation.

In Writing

We proposed requiring that disclosures be provided in writing.[498] We also stated that requiring written disclosures would help facilitate investor review of the disclosure, promote compliance by firms, facilitate effective supervision, and facilitate more effective regulatory oversight to help ensure and evaluate whether the disclosure complies with the requirements of Regulation Best Interest.[499] We also stated that the “in writing” requirement could be satisfied either through paper or electronic means consistent with existing Commission guidance on electronic delivery of documents. We also provided guidance on how broker-dealers could comply with the “in writing” requirement when recommendations are given over the telephone.[500]

A number of commenters supported the “in writing” requirement.[501] Other commenters, however, recommend that the Commission also permit the use of oral disclosure.[502] For example, several commenters recommend that the Commission permit broker-dealers to orally disclose information to their customers provided they later follow-up in writing.[503] Other commenters highlighted concerns associated with such oral disclosure.[504]

After carefully considering the comments, we are adopting the “in writing” requirement as proposed, subject to discussion in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation. As stated above, we believe that retail customers would benefit from receiving a written disclosure to assist their investment decisions and form the basis of an informed investment decision.[505] However, we also believe that broker-dealers require flexibility to make proper written disclosures to their customers. Accordingly, the Commission is not requiring a specific form or method of written disclosure.

Although we are requiring that disclosure be made “in writing,” we recognize that a broker-dealer may need to supplement, clarify or update written disclosure it has previously made before it provides a retail customer with a recommendation. For instance, as we stated in the Proposing Release, we recognized that broker-dealers may provide recommendations by telephone and offer clarifying disclosure orally in some instances subject to certain conditions,[506] such as a dual-registrant informing a retail customer of the capacity in which the dual-registrant is acting in conjunction with a recommendation.[507] In such instances, we believe that it may be necessary as a practical matter to provide oral disclosure of a material fact to supplement, clarify, or update written disclosure made previously.[508] Therefore, firms may make oral disclosures under the circumstances outlined in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation.[509]

When making such an oral disclosure, firms must maintain a record of the fact that oral disclosure was provided to the retail customer.[510] We are not explicitly requiring broker-dealers to create a record documenting the substance of the oral disclosure itself, but rather a record of the fact that such oral disclosure was made.[511] This record should include documentation sufficient to demonstrate that disclosure was made to the retail customer, which could include, for example, recordings of telephone conversations or contemporaneous written notations. Nonetheless, although it is not required by Regulation Best Interest, as a best practice we encourage broker-dealers that make oral disclosures to subsequently provide to their retail customers in a timely manner written disclosure summarizing the information conveyed orally.

Plain English

In the Proposing Release, we stated that broker-dealers should apply plain English principles to written disclosures including, among other things, the use of short sentences and active voice, and avoidance of legal jargon, highly technical business terms, or multiple negatives.[512] Similarly, several commenters recommended that whatever format broker-dealers use for their disclosure, they should be written in plain English and easy to understand.[513] Accordingly, although it Start Printed Page 33369is not required, the Commission encourages broker-dealers to use plain English in preparing any disclosures they make in satisfaction of the Disclosure Obligation.

Electronic Delivery

In the Proposing Release, we took the position that broker-dealers could deliver written disclosures required by Regulation Best Interest in accordance with the Commission's existing guidance regarding electronic delivery of documents.[514] This framework consists of the following elements: (1) Notice to the investor that information is available electronically; (2) access to information comparable to that which would have been provided in paper form and that is not so burdensome that the intended recipients cannot effectively access it; and (3) evidence to show delivery (i.e., reason to believe that electronically delivered information will result in the satisfaction of the delivery requirements under the federal securities laws).[515] We have furthermore clarified that one method to satisfy the evidence of delivery element is to obtain informed consent from investors.[516]

Several commenters agreed with this approach.[517] These commenters typically supported the use of electronic disclosure and recommended various methods (e.g., hyperlinks to web-based documents) but recommended paper delivery as the default option.[518] Other commenters recommended permitting electronic delivery for required disclosures.[519] While investor testing on the proposed Relationship Summary indicated that some retail investors generally support some form of electronic copies, most participants in the study “generally liked having a paper version of the Relationship Summary.” [520] Similarly, as stated in the Form CRS adopting release, the IAC has cited one study indicating that nearly half of investors (49%) still prefer to receive paper disclosures through the mail, compared with only 33% who prefer to receive disclosures electronically, either through email (27%) or accessing them online (6%).[521]

After considering investor testing results and commenters' concerns and recommendations, the Commission reaffirms the application of existing Commission guidance relating to paper and electronic delivery of disclosure documents to broker-dealers in meeting the Disclosure Obligation. Specifically, we believe that broker-dealers should be able to satisfy the Disclosure Obligation by using electronic delivery.[522] However, if a broker-dealer is providing its customers with electronic delivery (upon their consent) it cannot solely offer electronic delivery and must make paper delivery available, upon request. Both Regulation Best Interest and Form CRS require firms to provide electronic delivery of documents within the framework of the Commission's existing guidance regarding electronic delivery.[523]

d. Timing and Frequency

We proposed requiring broker-dealers to provide the disclosures required by the Disclosure Obligation “prior to or at the time of” the recommendation. We noted the importance of determining the appropriate timing and frequency of disclosure that may be effectively provided “prior to or at the time of” the recommendation.[524] In cases where a broker-dealer determines that disclosure may be more effectively be provided in an initial, more general disclosure (such as a relationship guide) followed by specific information in a subsequent disclosure that is provided at a later time, the initial disclosure would address when and how a broker-dealer would provide more specific information regarding the material fact or conflict in a subsequent disclosure. We stated also that in circumstances where a broker-dealer determines to provide an initial, more general disclosure (such as a relationship guide) followed by specific information in a subsequent disclosure that is provided after the recommendation (such as a trade confirmation), the initial disclosure must address when and how a broker-dealer would provide more specific information regarding the material fact or conflict in a subsequent disclosure (e.g., after the trade in the trade confirmation).[525] We also stated Start Printed Page 33370that disclosure after the recommendation, such as in a trade confirmation for a particular recommended transaction would not, by itself, satisfy the Disclosure Obligation, because the disclosure would not be “prior to, or at the time of the recommendation.” We noted also that whether there is sufficient disclosure in both the initial disclosure and any subsequent disclosure would depend on the facts and circumstances.[526]

Several commenters supported the Commission's proposal to require broker-dealers to make disclosure prior to or at the time of the recommendation, but disagreed about the precise timing with which disclosure should be provided.[527] For example, some commenters recommended that the Commission require or allow broker-dealers to meet the Disclosure Obligation prior to or at account opening.[528] Similarly, several commenters recommended that the Commission require broker-dealers to provide disclosure prior to a recommendation or investment decision.[529] Specifically, commenters recommended that the Commission require disclosures to be made with enough time prior to a recommendation that a retail customer has sufficient time to review and understand them, as well as ask questions.[530]

Several other commenters, however, recommended that the Commission clarify whether broker-dealers could meet the Disclosure Obligation at the point of sale [531] or after a recommendation is made.[532] Conversely, several commenters recommended that the Commission clarify that it will not require point of sale or point of recommendation disclosure obligations.[533]

After carefully considering the comments received, we are providing our view on what it means for broker-dealers to provide the required disclosures in writing “prior to or at the time of” the recommendation. As with the “form and manner” of making disclosures, the Commission continues to believe that broker-dealers should have flexibility with respect to the “timing and frequency” of providing disclosure to determine the most appropriate and effective way to meet the Disclosure Obligation. Accordingly, the Commission has decided not to provide any prescriptive requirements for the timing and frequency of written disclosures, other than requiring disclosure prior to or at the time of the recommendation.

In order to make an informed decision about a securities recommendation, retail customers must have appropriate information at the time or before a recommendation is made. Being in possession of relevant information gives investors the tools with which to judge the merits of acting on a particular recommendation. As stated in the Proposing Release, the Commission believes that broker-dealers should provide retail customers information early enough in the process to give them adequate time to consider the information and promote the investor's understanding in order to make informed investment decisions.[534] Similarly, the Commission believes that broker-dealers should not provide information so early that the disclosure fails to provide meaningful information (e.g., does not sufficiently identify material conflicts presented by a particular recommendation, or overwhelms the retail customer with disclosures related to a number of potential options that the retail customer may not be qualified to pursue).[535] Nevertheless, in order to provide broker-dealers the flexibility to determine how and when to make relevant disclosures pursuant to the Disclosure Obligation, we are not mandating a requirement that disclosures be made within a certain timeframe preceding a recommendation. However, we continue to encourage broker-dealers to consider whether it would be helpful to repeat or highlight disclosures already made pursuant to the Disclosure Obligation at the time of the recommendation.

We are also clarifying the ability of a broker-dealer to supplement, clarify, or update information after making a recommendation.[536] In particular, if a broker-dealer determines to disclose information, in part, after the recommendation, such as in a prospectus or trade confirmation, that disclosure may be used to supplement, clarify, or update the initial, general disclosure. For example, any necessary Start Printed Page 33371information in a product offering document, such as information about product risks or fees, may be provided in accordance with existing disclosure mechanisms that occur after a transaction, such as the delivery of a trade confirmation or a prospectus, private placement memorandum, or offering circular.[537] However, the broker-dealer must comply with the circumstances outlined in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation, in order to make any such disclosure after the recommendation.

Layered Disclosure

We proposed to require broker-dealers to provide disclosure prior to or at the time of the recommendation but gave guidance on a number of approaches they could take to achieve this requirement, including providing layered disclosure, in which more general information is supplemented by more detailed information provided either at the same time or subsequently.[538] We received a number of comments supporting our proposed guidance concerning a layered approach to the Disclosure Obligation.[539] In addition, investor testing illustrates that many retail investors support a layered approach as well.[540]

We have considered these comments and results of investor testing and will continue to permit broker-dealers to use a layered approach to disclosure. We acknowledge that different investors have different preferences for the type and length of disclosures they receive, and that some investors may not read additional information provided in any particularized disclosure that supplements initial, standardized disclosure. Nonetheless, we believe that permitting broker-dealers to provide their retail customers with a standardized summary of information supplemented by more particularized information will help avoid the likelihood that retail customers receive a single, potentially voluminous disclosure document, and enable the many investors who prefer a shorter, summary document to have it available to them, with additional information available should they wish to have it. This approach to layering information is also consistent with our concurrent effort in Form CRS to provide retail investors with high level information and context concerning key material facts, supplemented by additional layers of information regarding their relationship.

We also continue to believe that broker-dealers should have flexibility in determining when to make disclosures and whether, in light of their retail customer base, certain material facts would be more effectively conveyed in a more general manner in an initial written disclosure accompanied or followed by more specific information in a separate disclosure. Similarly, we believe that providing broker-dealers with flexibility to best target their disclosures to their particular retail customer base will increase the likelihood that investors will view them.

The Commission is not prescribing specific procedures obligating broker-dealers to fulfill the Disclosure Obligation in a particular way. Rather, Regulation Best Interest as adopted provides broker-dealers with flexibility to provide disclosures that are consistent with the various ways in which broker-dealers may already provide disclosure to their customers.[541] This could include, for example, providing multiple or “layered” disclosures either initially or over time, but that in total constitute full and fair disclosure of the information required by the Disclosure Obligation. While we are not setting forth a prescriptive approach regarding exactly when disclosures should be made as suggested by some commenters, we believe that a broker-dealer may determine that certain disclosures are most effective if they are made at multiple points of the relationship, or alternatively, certain material facts may be conveyed in a more general manner in an initial written disclosure accompanied or followed by more specific information.[542]

Updating Disclosures

Several commenters recommend that the Commission clarify under what circumstances a broker-dealer would be required to update prior disclosures made pursuant to the Disclosure Obligation.[543] Among the suggestions are to only require broker-dealers to update their disclosures when there are material changes to the disclosed Start Printed Page 33372information; [544] require broker-dealers to update their disclosures at least 30 days before raising or imposing new fees; [545] and require broker-dealers to update their disclosures when changes are made, as well as annually.[546]

The Commission has carefully considered the commenters' suggestions and is providing guidance on a broker-dealer's duty to update disclosures made to customers under Regulation Best Interest. The Disclosure Obligation requires broker-dealers to provide their retail customers with full and fair disclosure of material facts related to several aspects of their relationship with their customers. Therefore, a broker-dealer cannot provide customers with full and fair disclosure if the disclosures contain materially outdated, incomplete, or inaccurate information. Additional disclosure will be necessary when any previously provided information becomes materially inaccurate, or when there is new relevant material information (e.g., a new material conflict of interest has arisen that is not addressed by the standardized disclosure).[547] Therefore, a broker-dealer's duty to update disclosures made to its customers under Regulation Best Interest is based on the facts and circumstances.

While we are not prescribing an explicit timeframe in which required updates must be made, generally the Commission encourages broker-dealers to update their disclosures to reflect material changes or inaccuracies as soon as practicable, and thus generally should be no later than 30 days after the material change; in the meantime, broker-dealers are encouraged to provide, supplement, or correct any written disclosure with oral disclosure as necessary prior to or at the time of the recommendation.[548] However, if updated information is to be provided either orally, or after a recommendation, such disclosure must be made under the circumstances outlined in Section II.C.1, Oral Disclosure or Disclosure After a Recommendation.

2. Care Obligation

We proposed the Care Obligation to require a broker-dealer, when making a recommendation of any securities transaction or investment strategy involving securities to a retail customer, to exercise reasonable diligence, care, skill, and prudence to: (1) Understand the potential risks and rewards associated with the recommendation, and have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers; (2) have a reasonable basis to believe that the recommendation is in the best interest of a particular retail customer based on that retail customer's investment profile and the potential risks and rewards associated with the recommendation; and (3) have a reasonable basis to believe that a series of recommended transactions, even if in the retail customer's best interest when viewed in isolation, is not excessive and is in the retail customer's best interest when taken together in light of the retail customer's investment profile. As we indicated in the Proposing Release, the Care Obligation was intended to incorporate and enhance existing suitability requirements applicable to broker-dealers under the federal securities laws by, among other things, imposing a “best interest” requirement that will require a broker-dealer to not place its own interest ahead of the retail customer's interest, when making recommendations.[549]

Commenters generally supported the proposed Care Obligation, including its principles-based approach, but many commenters requested additional guidance or clarification on how a broker-dealer could satisfy the Care Obligation under different circumstances and regarding specific products.[550] Relatedly, several commenters requested further guidance regarding the role of costs and other relevant factors when making a best interest determination,[551] while other commenters expressed concern over the usage of the term “prudence” [552] or expressed concern that Regulation Best Interest is not a major change from FINRA's suitability rule.[553] Numerous commenters also requested clarification on the meaning and scope of “reasonably available alternatives” and “otherwise identical securities,” including how the phrase “reasonably available alternatives” would apply in situations where a broker-dealer operated in an open architecture environment,[554] or maintained a limited product menu such as where broker-dealers limited available offerings to proprietary products.[555] Finally, several commenters recommended the Commission include other factors in building a retail customer's investment profile, such as longevity risk,[556] market risk,[557] or income profile.[558]

We are adopting the Care Obligation substantially as proposed, but with certain modifications and additional guidance to address comments. As discussed in more detail below, in response to comments, we are revising the Care Obligation to remove the term “prudence,” as we have concluded that its inclusion creates legal uncertainty and confusion, and it is redundant of what we intended in requiring a broker-dealer to exercise “diligence, care, and skill,” and its removal does not change the requirements under the Care Obligation. Accordingly, the Care Obligation will require broker-dealers to “exercise reasonable diligence, care, and skill” to meet the three components of the Care Obligation.

In addition, after careful consideration of the comments received, we are expressly adding cost to the rule text as a factor that a broker-dealer must consider in fulfilling the Care Obligation. While certain commenters expressed concerns about the prominence of cost and how cost would be balanced against other factors under the Care Obligation,[559] other Start Printed Page 33373commenters supported incorporating cost into the rule text.[560] As noted in the Relationship Summary Adopting Release, participants in investor testing and roundtables also overwhelmingly supported including fees in the Relationship Summary, and believed that the “fees and costs” section was the most important for determining which type of investment accounts and services are right for that person.[561] We believe that while the factors that a broker-dealer should understand and consider when making a recommendation may vary depending upon the particular product or strategy recommended, cost—along with potential risks and rewards—will always be a relevant factor that will bear on the return of the security or investment strategy involving securities.[562] This would include, for example, both costs associated with the purchase of the security, as well as any costs that may apply to the future sale or exchange of the security, such as deferred sales charges or liquidation costs. Elevating cost to the rule text clarifies that this factor must always be considered when making a recommendation. Thus, a broker-dealer, in fulfilling its obligation to make a recommendation in the best interest of its retail customer, must exercise reasonable diligence, care, and skill to understand the “potential risks, rewards, and costs” associated with the recommendation and have a reasonable basis to believe that the recommendation is in the best interest of the retail customer based on these factors.

Importantly, however, while cost, like potential risks and rewards, is always a factor that a broker-dealer must consider in making a recommendation, it is not a dispositive factor and its inclusion in the rule text is not meant to limit or foreclose the recommendation of a more costly or complex product that a broker-dealer has a reasonable basis to believe is in the best interest of a particular retail customer.[563] Moreover, we are reiterating that the standard does not necessarily require the lowest cost option, and that while cost is an important factor that always needs to be taken into consideration in making a recommendation, it is not the only one.[564] Rather, as explained more fully below, the evaluation of cost would be more analogous to a broker-dealer's best execution analysis, which does not require the lowest possible cost, but rather looks at whether the transaction represents the best qualitative execution for the customer using cost as one factor.[565]

Several commenters expressed concern over the emphasis of “cost” and suggested that, for example, more emphasis be placed on additional or subjective factors beyond specific product attributes.[566] Those commenters stated that the emphasis on cost may discourage certain products or investment strategies. Our intent is not to discourage or otherwise limit the recommendation of products or investment strategies where a broker-dealer concludes that the recommendation is in the best interest of the retail customer. Instead, we believe that cost will always be relevant to a recommendation and accordingly should be a required consideration as set forth in the rule text. It should never be the only consideration. Additional factors such as those cited by commenters also should be taken into consideration as the broker-dealer formulates a recommendation consistent with the best-interest standard.[567]

Though we are declining to expressly define “best interest” in the rule text, as discussed above,[568] we are providing guidance regarding the application of the Care Obligation and in particular what it means to make a recommendation in the retail customer's “best interest.” In addition, to emphasize the importance of determining that each recommendation is in the best interest of the retail customer and that it does not place the broker-dealer's interests ahead of the retail customer's interests, we are expressly incorporating into the rule text of Paragraph (a)(2)(ii)(B) and Paragraph (a)(2)(ii)(C) of Regulation Best Interest that a broker-dealer must have a reasonable basis to believe that the recommendation “does not place the financial or other interest of the [broker-dealer] . . . ahead of the interest of the retail customer.” While we acknowledge that a broker-dealer and an associated person can and will have some financial interest in a recommendation, as noted above, this addition to the Care Obligation makes clear these interests cannot be placed ahead of the retail customer's interests when making a recommendation.[569]

Finally, we believe that by explicitly requiring in the rule text that the broker-dealer have a reasonable basis to believe that a recommendation is both in the retail customer's “best interest” and Start Printed Page 33374does “not place the financial or other interest” of the broker-dealer ahead of the retail customer's interests, we are enhancing the Care Obligation by imposing obligations beyond existing suitability obligations. Under existing suitability requirements, a broker-dealer is required to make recommendations that are “suitable” for the customer. While certain cases and guidance have interpreted FINRA's suitability rule to require that “a broker's recommendations must be consistent with his customers' best interests,” and FINRA has further interpreted the requirement to be “consistent with the customer's best interest” to prohibit a broker-dealer from placing his or her interests ahead of the customer's interests, this obligation is not explicitly required by FINRA's rule (or its supplementary material), nor does the interpretation require recommendations to be in the best interest (as opposed to “consistent with the best interest”) of a retail customer.[570] We believe that requiring recommendations to be in the best interest is declarative of what must be done, and therefore stronger than, requiring recommendations to be “consistent with” the best interest of the retail customer, which we believe at a minimum creates ambiguity as to whether the recommendation must be in the retail customer's best interest or something less.[571]

The Care Obligation significantly enhances the investor protection provided as compared to current suitability obligations by: (1) Explicitly requiring in Regulation Best Interest that recommendations be in the best interest of the retail customer and do not place the broker-dealer's interests ahead of the retail customer's interests; (2) explicitly requiring by rule the consideration of costs when making a recommendation; and (3) applying the obligations relating to a series of recommended transactions (currently referred to as “quantitative suitability”) irrespective of whether a broker-dealer exercises actual or de facto control over a customer's account.[572] In addition, it is our view that a broker-dealer should consider “reasonably available alternatives” as part of having a “reasonable basis to believe” that the recommendation is in the best interest of the retail customer, which we also believe is an enhancement beyond existing suitability expectations.[573]

a. Exercise Reasonable Diligence, Care, and Skill

A broker-dealer is required to “exercise reasonable diligence, care, and skill” to satisfy the three components of the Care Obligation set forth in Regulation Best Interest. In the Proposing Release, we included “prudence,” and explained that “prudence” “conveys the fundamental importance of conducting a proper evaluation of any securities or investment strategy recommendation in accordance with an objective standard of care.” [574] Further, we solicited comment on all aspects of the Care Obligation, and also asked specifically whether there was adequate clarity and understanding regarding the term “prudence,” or whether other terms were more appropriate in the context of broker-dealer regulation.

Several commenters supported adopting a principles-based obligation, thus requiring the broker-dealer to assess the adequacy of a recommendation based on the facts and circumstances of each recommendation.[575] We also received numerous comments asking for further guidance relating to recommendations of specific securities or asking how the Care Obligation applies to certain factual scenarios.[576] With respect to the term “prudence,” a number of comments requested removal of the term, stating that such language is unnecessary given the other requirements to satisfy the Care Obligation, as well as the fact that the term introduces legal confusion and uncertainty.[577] Other commenters supported the use of the term “prudence” because they believed that Regulation Best Interest's component obligations generally rested on a “prudence” standard or maintained that the Care Obligation “echoes elements found in the common law `prudent person rule,' ” and thus thought its addition was appropriate to capture, or describe, these obligations.[578]

After careful consideration of comments, we are revising the Care Obligation to remove the term Start Printed Page 33375“prudence.” Accordingly, the Care Obligation will require broker-dealers to “exercise reasonable diligence, care, and skill” to meet the three components of the Care Obligation. We are persuaded by commenters that its inclusion in the proposed rule text to satisfy the components of the Care Obligation is superfluous and unnecessarily presents the possibility for confusion and legal uncertainty.[579] We believe requiring broker-dealers “to exercise reasonable diligence, care, and skill” conveys “the fundamental importance of conducting a proper evaluation of any securities recommendation in accordance with an objective standard of care” [580] that was intended by the inclusion of “prudence.” Removing “prudence” does not lessen nor otherwise change the requirements or our expectations under the Care Obligation, or Regulation Best Interest more broadly as it was duplicative of the phrase “diligence, care, and skill.” [581] The revised obligation, in requiring the broker-dealer to “exercise[ ] reasonable diligence, care and skill” and to have a “reasonable basis to believe that the recommendation is in the best interest . . . and does not place” the interest of the broker-dealer ahead of the interest of the retail customer, will continue to require an analysis that is comparable to the notion of “prudence” as described in other regulatory frameworks,[582] but does so using the terms “diligence, skill, and care”—terminology with which broker-dealers are familiar and that is well understood under the federal securities laws.[583] As such, we believe that the revised language will minimize the potential confusion and legal uncertainty created by using a term that is predominantly interpreted in other legal regimes,[584] and will aid broker-dealers in achieving compliance with Regulation Best Interest as well as permit broker-dealers to utilize existing compliance and supervisory systems that already rely on this language.

Moreover, we note that certain commenters' support for the term “prudence” was based on our interpretation of the Care Obligation in the Proposing Release.[585] As noted above, the removal of the term “prudence” does not change the obligations or our interpretation of the Care Obligation, which we believe are addressed by the “diligence, care, and skill” language and through Regulation Best Interest more broadly. In light of concerns regarding legal uncertainty associated with the term “prudence,” and our view that its inclusion or removal would not change the requirements or expectations of Regulation Best Interest, we have determined to remove it from the rule text.

Finally, in response to comments, we are retaining the facts-and-circumstances determination for the reasons set forth in the Proposing Release,[586] and providing additional guidance on the application of the components of the Care Obligation with respect to certain securities and under certain scenarios. As we noted in the Proposing Release, such an approach is consistent with how broker-dealers are currently regulated with respect to the suitability of their recommendations and would allow broker-dealers to utilize and incorporate pre-existing compliance systems. In addition, this approach is generally consistent with the principles-based approach applicable to the duty of care of investment advisers.[587]

b. Understand Potential Risks, Rewards, and Costs Associated With Recommendation, and Have a Reasonable Basis To Believe That the Recommendation Could Be in the Best Interest of at Least Some Retail Customers

Under the proposed “reasonable basis” component of the Care Obligation, broker-dealers would be required to understand the potential risks and rewards of the recommendation and have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers. Although potential costs were not specifically included in the proposed rule text as a factor to be considered as part of a recommendation, the Proposing Release identified potential costs associated with a recommendation as an important factor to understand and consider as part of making a recommendation, and likewise as a key factor to consider when evaluating whether or not a broker-dealer had a reasonable basis to believe it was acting in the best interest of the retail customer when making the recommendation.[588]

After careful consideration of comments, the Commission is adopting, for the reasons set forth in the Proposing Release, Paragraph (a)(2)(ii)(A) of the Care Obligation substantially as proposed. However, as discussed above, in addition to requiring broker-dealers to understand the potential risks and rewards associated with the recommendation, we are also expressly requiring them to understand and consider the potential costs associated with a recommendation. Elevating costs to the rule text is consistent with a number of commenters' recommendations and, importantly, stresses that cost will always be a salient factor to be considered when making a recommendation.[589] Additionally, this requirement that the broker-dealer understands and considers costs is a distinct enhancement over existing reasonable basis suitability obligations, which do not expressly require this consideration.[590] Nevertheless, we recognize—and emphasize—that cost is one important factor among many factors, and thus provide additional guidance below regarding the importance of weighing and considering costs in light of other relevant factors and the retail customer's investment profile.

Paragraph (a)(2)(ii)(A) of Regulation Best Interest is intended to incorporate and build upon broker-dealer's existing “reasonable-basis suitability” obligations and would relate to the broker-dealer's understanding of the particular security or investment strategy recommended, rather than to any particular retail customer. Without establishing such a threshold understanding of its particular Start Printed Page 33376recommended security or investment strategy involving securities, we do not believe that a broker-dealer could, as required by Regulation Best Interest, have a reasonable basis to believe that it is acting in the best interest of a retail customer when making a recommendation.[591]

In order to meet the requirement under Paragraph (a)(2)(ii)(A), a broker-dealer would need to undertake reasonable diligence, care, and skill to understand the nature of the recommended security or investment strategy involving a security or securities, as well as the potential risks, rewards—and now costs—of the recommended security or investment strategy, and have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers based on that understanding. A broker-dealer must adhere to both components of Paragraph (a)(2)(ii)(A). For example, a broker-dealer could violate the obligation by not understanding the potential risks, rewards, or costs of the recommended security or investment strategy, even if the security or investment strategy could have been in the best interest of at least some retail customers. Conversely, even if a broker-dealer understands the recommended security or investment strategy, the broker-dealer must still have a reasonable basis to believe that the security or investment strategy could be in the best interest of at least some retail customers.

What would constitute reasonable diligence, care, and skill under Paragraph (a)(2)(ii)(A) will vary depending on, among other things, the complexity of and risks associated with the recommended security or investment strategy and the broker-dealer's familiarity with the recommended security or investment strategy.[592] While every inquiry will be specific to the particular broker-dealer and the recommended security or investment strategy, broker-dealers generally should consider important factors such as the security's or investment strategy's investment objectives, characteristics (including any special or unusual features), liquidity, volatility, and likely performance in a variety of market and economic conditions; the expected return of the security or investment strategy; as well as any financial incentives to recommend the security or investment strategy. Together, this inquiry should allow the broker-dealer to develop a sufficient understanding of the security or investment strategy and to be able to reasonably believe that it could be in the best interest of at least some retail customers.

This “reasonable-basis” component of the Care Obligation is especially important when broker-dealers recommend securities and investment strategies that are complex or risky.[593] For example, in recent years, the Commission staff and FINRA have addressed broker-dealer sales practice obligations under existing law relating to complex products, such as inverse or leveraged exchange-traded products.[594] These products, which may be useful for some sophisticated trading strategies, are highly complex financial instruments and are typically designed to achieve their stated objectives on a daily basis.[595] However, because of the effects of compounding, the performance of these products over longer periods of time can differ significantly from their stated daily objectives. Thus, broker-dealers recommending such products should understand that inverse and leveraged exchange-traded products that are reset daily may not be suitable for, and as a consequence also not in the best interest of, retail customers who plan to hold them for longer than one trading session, particularly in volatile markets.[596] Without understanding the terms, features, and risks of inverse and leveraged exchange-traded products—as with the potential risks, rewards, and costs of any security or investment strategy—a broker-dealer could not establish a reasonable basis to recommend these products to retail customers.[597] Further, these products may not be in the best interest of a retail customer absent an identified, short-term, customer-specific trading objective. Similarly, when a broker-dealer recommends a potentially high risk product to a retail customer—such as penny stocks or other thinly-traded securities—the broker-dealer should generally apply heightened scrutiny to whether such investments are in a retail customer's best interest.[598]

Finally, several commenters expressed concern about the applicability of Regulation Best Interest to variable annuities and variable life insurance products.[599] Variable annuities and variable life insurance products have generated special attention from regulators and their staff, such as statements regarding sales practice obligations and specific FINRA rules relating to the recommendation of variable annuities.[600] These variable insurance products are often unique and have different features depending on the company providing the product, as well as depending on the chosen investment options, benefits, fees and expenses, liquidity restrictions, and other considerations.[601] Consistent with Start Printed Page 33377existing FINRA rules and existing suitability obligations under the federal securities laws and SRO rules, regulators and their staffs have stated that recommendations of these products would require careful attention and a specific understanding of certain factors, such as whether the product provides tax-deferred growth, or a death or living benefit, before a broker-dealer could establish an understanding of the product, and apply that understanding to a retail customer's investment profile in making a recommendation.

While we stress the importance of understanding the potential risks, rewards, and costs associated with a recommended security or investment strategy, as well as other factors depending on the facts and circumstances of each recommendation, we do not intend to limit or foreclose broker-dealers from recommending complex or more costly products or investment strategies where the broker-dealer has a reasonable basis to believe that a recommendation could be in the best interest of at least some retail customers and the broker-dealer has developed a proper understanding of the recommended product or investment strategy. As discussed below, once a broker-dealer develops an appropriate understanding of a securities product or investment strategy, including its potential costs, and believes it could be in the best interest of at least some retail customers, the broker-dealer will then need to apply that understanding to reasonably determine that the recommended product or investment strategy is in the particular retail customer's best interest at the time of the recommendation.

c. Have a Reasonable Basis To Believe the Recommendation Is in the Best Interest of a Particular Retail Customer Based on That Retail Customer's Investment Profile and the Potential Risks, Rewards, and Costs Associated With the Recommendation and Does Not Place the Interest of the Broker-Dealer Ahead of the Interest of the Retail Customer

In the Proposing Release, we stated that beyond establishing an understanding of the recommended securities transaction or investment strategy, in order to act in the best interest of the retail customer, a broker-dealer would be required to have a reasonable basis to believe that a specific recommendation is in the best interest of the particular retail customer based on its understanding of the investment or investment strategy under Paragraph (a)(2)(ii)(A), and in light of the retail customer's investment objectives, financial situation, and needs. Accordingly, under proposed paragraph (a)(2)(ii)(A), the second sub-component of the Care Obligation would require a broker-dealer to “exercise reasonable diligence, care, skill, and prudence to . . . have a reasonable basis to believe that the recommendation is in the best interest of a particular retail customer based on that retail customer's investment profile and the potential risks and rewards associated with the recommendation.” In the Proposing Release, the Commission further articulated that under this standard, a broker-dealer could not have a reasonable basis to believe that the recommendation is in the “best interest” of the retail customer, if the broker-dealer put its interest ahead of the retail customer's interest. This was intended to incorporate a broker-dealer's existing well-established obligations under “customer-specific suitability,” but also to enhance these obligations by requiring that the broker-dealer have a reasonable basis to believe that the recommendation is in the “best interest” of (rather than “suitable for”) the retail customer.

Commenters largely supported the Commission's proposed approach, but several commenters requested clarifying guidance regarding the importance of costs and other specific factors in a “best interest” evaluation, as well as more broadly how “best interest” was to be determined.[602] For example, several commenters requested additional guidance on the role of costs and other “relevant factors,” including subjective and qualitative factors such as shareholder support services, redemption procedures, or qualifications of the investment adviser.[603] Similarly, several commenters asked for clarification that “best interest” does not necessarily mean the lowest cost option or require the broker-dealer to look at every single possible security.[604] Commenters also requested further direction regarding guidance in the Proposing Release related to the consideration of “reasonably available alternatives” and “otherwise identical securities,” and requested certain modifications to the definition of “Retail Customer Investment Profile.” [605]

After careful consideration of these comments, for the reasons set forth in the Proposing Release, the Commission is adopting the “customer specific” component of the Care Obligation substantially as set forth in the Proposing Release. However, as included under the reasonable basis component of the Care Obligation and for the reasons discussed above, the Commission is expressly incorporating “costs” into the rule text to emphasize that broker-dealers must consider the potential costs associated with a recommendation to a particular retail customer.

As noted above, the Commission is also incorporating into the rule text that broker-dealers must have a reasonable basis to believe that the recommendation “does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer.” [606] This addition is intended to make clear that while a broker-dealer typically will have some interest in a recommendation, the broker-dealer cannot put that interest ahead of the retail customer's interest when making the recommendation.

To address feedback from commenters, the Commission is also providing further interpretations and guidance regarding the application of the Care Obligation, and in particular, what it means to make a recommendation in a retail customer's best interest and not place the broker-dealer's interest ahead of the retail customer's interest. Specifically, recognizing that a facts and circumstances evaluation of a recommendation makes it difficult to draw bright lines around whether a particular recommendation would meet the Care Obligation, the Commission is providing further interpretations and guidance on how a broker-dealer could have a “reasonable basis to believe” that a recommendation is in the best interest of its retail customer and does not place the broker-dealer's interest ahead of the retail customer's interest, as well as circumstances when we believe that a broker-dealer could not have such a reasonable belief.Start Printed Page 33378

Factors To Consider Regarding a Recommendation to a Particular Retail Customer and Relevance of Cost

Consistent with paragraph (a)(2)(ii)(A) of the Care Obligation, we are incorporating “costs” in the rule text of paragraph (a)(2)(ii)(B) of Regulation Best Interest as a relevant factor that, in addition to risks and rewards, must always be understood and considered by the broker-dealer prior to recommending a particular securities transaction or investment strategy involving securities to a particular retail customer. As discussed above, under paragraph (a)(2)(ii)(A) of the Care Obligation, a broker-dealer will be required to exercise reasonable diligence, care, and skill to understand the potential risks, rewards, and costs of a recommended security or investment strategy and have a reasonable basis to believe that it could be in the best interest of at least some retail customers.[607] Paragraph (a)(2)(ii)(B) of the Care Obligation builds on this obligation and will require a broker-dealer to have a reasonable basis to believe, based on its understanding of the potential risks, rewards, and costs of the recommendation, and in light of the retail customer's investment profile, that the recommendation is in the best interest of a particular retail customer and does not place the broker-dealer's interest ahead of the retail customer's interest. Accordingly, when making a recommendation to a particular retail customer, broker-dealers must weigh the potential risks, rewards, and costs of a particular security or investment strategy, in light of the particular retail customer's investment profile. As discussed above,[608] a broker-dealer's diligence, care, and skill to understand the potential risks, rewards, and costs of a security or investment strategy should generally involve a consideration of factors, depending on the facts and circumstances of the particular recommendation and the particular retail customer's investment profile, as discussed below.

While the factors noted above are examples of important factors to consider based on the particular security or investment strategy, this list is not exhaustive and additional factors, including those raised by commenters, could be relevant depending on the particular security or investment strategy being recommended and depending on the particular retail customer's investment profile. For example, prior to recommending a variable annuity to a particular retail customer, broker-dealers should generally develop a reasonable basis to believe that the retail customer will benefit from certain features of deferred variable annuities, such as tax-deferred growth, annuitization, or a death or living benefit.[609]

As stated in the Proposing Release, the importance of each factor in determining the customer-specific component of the Care Obligation will depend on the facts and circumstances of each recommendation. Thus, one or more factors may have more or less relevance—or may not be obtained or analyzed at all—if the broker-dealer has a reasonable basis for determining that the factors are not relevant. Regardless of which factors are evaluated—and equally important, which factors are not evaluated—a broker-dealer must have a reasonable basis to believe that the particular recommendation is in the best interest of the particular retail customer and does not place the broker-dealer's interest ahead of the retail customer's interest, consistent with the interpretations and guidance provided. For example, recommendations of the “lowest cost” security or investment strategy, without consideration of other factors, could violate Regulation Best Interest. In the same vein, it is important to consider that a recommendation may be considered to be in a retail customer's best interest when viewed in the context of the retail customer's portfolio even if seemingly not in a retail customer's best interest when viewed in isolation (e.g., inclusion of what otherwise might be seen as a risky investment in the portfolio of a risk-adverse customer, such as including hedging instruments in a conservative portfolio).

The customer-specific component of the Care Obligation will rest on whether a broker-dealer had a reasonable basis to believe that the recommendation was in the best interest of the particular retail customer at the time of the recommendation, based on that retail customer's investment profile and the potential risks, rewards, and costs associated with the recommendation, and did not place the financial or other interest of the broker, dealer, or such natural person ahead of the interest of the retail customer. Thus, as discussed further below, the importance of each factor, and which factors to consider, will depend on the facts and circumstances of each recommendation, as well as the specific security or investment strategy.

While the Care Obligation does not require broker-dealers to document the basis for a recommendation, broker-dealers may choose to take a risk based approach when deciding whether or not to document certain recommendations. For example, broker-dealers may wish to document an evaluation of a recommendation and the basis for the particular recommendation in certain contexts, such as the recommendation of a complex product, or where a recommendation may seem inconsistent with a retail customer's investment objectives on its face.[610] Similarly, broker-dealers may consider using existing compliance measures, such as generating and reviewing exception reports that identify transactions that fall outside of firm-specified parameters to help evaluate and review for compliance with the Care Obligation. These measures are not meant to be exhaustive, but rather are examples of the sorts of compliance tools and methods broker-dealers should generally consider using in evaluating whether recommendations are consistent with a retail customer's best interests.

Retail Customer Investment Profile

The Proposing Release would have required a “Retail Customer Investment Profile” to include, but not be limited to, “the retail customer's age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs, risk tolerance, and any other information the retail customer may disclose to the broker, dealer, or a natural person who is an associated person of a broker or dealer in connection with a recommendation.” [611] The Proposing Release also explained that broker-dealers would be required to exercise “reasonable diligence” to ascertain the Start Printed Page 33379retail customer's investment profile as part of satisfying proposed paragraph (a)(2)(i)(B), and that when retail customer information is unavailable despite a broker-dealer's reasonable diligence to obtain such information, a broker-dealer should consider whether it has sufficient understanding of the retail customer to properly evaluate whether the recommendation is in the retail customer's best interest.[612] Furthermore, under the proposed rule, a broker-dealer would not meet its Care Obligation if it made a recommendation to a retail customer for whom it lacks sufficient information to have a reasonable basis to believe that the recommendation is in the best interest of that retail customer based on such customer's investment profile.

In response to this definition and the related discussion, commenters identified several additional factors that they believed should be included or discussed as part of a retail customer's investment profile. For example, several commenters suggested adding “longevity risk,” “retirement income needs,” or “lifetime income needs” as factors that should be included as part of an investor's investment profile.[613] Other commenters suggested additional factors, such as, for trust accounts, considering the profile of trust beneficiaries and not the trustee, or adding a retail customer's “income profile.” [614]

While we agree that many of these factors will likely be relevant to a broker-dealer's recommendation of various securities or investment strategies involving securities, we are adopting the definition of “retail customer investment profile” as proposed. We believe that the list of factors under “retail customer investment profile” is widely understood and importantly, offers broker-dealers the flexibility to consider additional factors as deemed necessary.[615] Although many of the additional factors cited by commenters may be relevant to securities or investment strategy recommendations under certain facts and circumstances, we are not persuaded that we should add any specific factor or factors to the existing list of profile factors, particularly given that the list of factors is non-exhaustive and broker-dealers can consider additional factors as appropriate under the unique facts and circumstances of each recommendation. Thus, for example, where a broker-dealer making a variable annuity recommendation believes that longevity risk is an important factor for a particular retail customer and that such factor is necessary to develop a reasonable basis to believe that the product is in the best interest of that retail customer, that broker-dealer should consider and utilize that factor.[616] We believe that this approach appropriately provides broker-dealers with a well-understood starting framework, but also gives broker-dealers the ability to consider additional factors based on the unique nature of its particular securities products, investment strategies, and retail customers.

Broker-dealers must obtain and analyze enough customer information to have a reasonable basis to believe that the recommendation is in the best interest of the particular retail customer. The significance of specific types of customer information generally will depend on the facts and circumstances of the particular case, including the nature and characteristics of the product or strategy at issue. Where retail customer information is unavailable despite a broker-dealer's reasonable diligence, the broker-dealer should carefully consider whether it has a sufficient understanding of the retail customer to properly evaluate whether the recommendation is in the best interest of that retail customer.[617] In addition, a broker-dealer generally should make a reasonable effort to ascertain information regarding an existing customer's investment profile prior to the making of a recommendation on an “as needed” basis—that is, where a broker-dealer knows or has reason to believe that the customer's investment profile has changed.[618] The reasonableness of a broker-dealer's efforts to collect information regarding a customer's investment profile information depends on the facts and circumstances of a given situation, and the importance of each factor may vary depending on the facts and circumstances of the particular case.[619] Under Regulation Best Interest, as with the approach under FINRA's suitability rule, broker-dealers may generally rely on a retail customer's responses absent “red flags” indicating that the information is inaccurate.[620]

Moreover, as noted in the Proposing Release, one or more factors may have more or less relevance, or may not be obtained or analyzed at all if the broker-dealer has a reasonable basis for determining that the factor is irrelevant to that particular best interest determination. However, consistent with existing obligations, where a broker-dealer determines not to obtain or analyze one or more of the factors specifically identified in the definition of “Retail Customer Investment Profile,” the broker-dealer should document its determination that the factor(s) are not relevant components of a retail customer's investment profile in light of the facts and circumstances of the particular recommendation.[621]

Regulation Best Interest, as noted above, does not require documentation of the basis for believing a particular recommendation was in a particular retail customer's best interest.[622] Nevertheless, broker-dealers may wish to consider documenting the basis for determining that the recommendation is in the best interest of the retail customer when it is not evident from the recommendation itself.[623] Documentation by itself will not cure a recommendation in circumstances in which a broker-dealer could not have reasonably believed the recommendation was in the best interest of the retail customer at the time the recommendation was made.[624]

Start Printed Page 33380

Application of the Care Obligation—Reasonably Available Alternatives and Otherwise Identical Securities

In the Proposing Release, we provided guidance on what types of recommendations would or would not be in the best interest of a particular retail customer. In particular, the Proposing Release stated that where a broker-dealer is choosing among identical securities available to the broker-dealer, it would be inconsistent with the Care Obligation to recommend the more expensive alternative for the customer.[625] Similarly, in the Proposing Release, we noted our belief that it would be inconsistent with the Care Obligation if the broker-dealer made a recommendation to a retail customer in order to: Maximize the broker-dealer's compensation, further the broker-dealer's business relationships, satisfy firm sales quotas or other targets, or win a firm-sponsored sales contest.[626]

We also stated that under the Care Obligation a broker-dealer generally should consider reasonable alternatives, if any, offered by the broker-dealer in determining whether it has a reasonable basis for making the recommendation.[627] The Proposing Release explained that this approach would not require a broker-dealer to analyze all possible securities, all other products, or all investment strategies to recommend the single “best” security or investment strategy for the retail customer, nor necessarily require a broker-dealer to recommend the least expensive or least remunerative security or investment strategy. Further, the Proposing Release indicated that under the Care Obligation, when a broker-dealer recommends a more expensive security or investment strategy over another reasonably available alternative offered by the broker-dealer, the broker dealer would need to have a reasonable basis to believe that the higher cost is justified (and thus nevertheless is in the retail customer's best interest) based on other factors (e.g., the product's or strategy's investment objectives, characteristics (including any special or unusual features), liquidity, risks and potential benefits, volatility and likely performance in a variety of market and economic conditions), in light of the retail customer's investment profile.[628] Relatedly, we stated that a broker-dealer could not meet the Care Obligation through disclosure alone.[629]

The Commission received numerous comments relating to the Proposing Release's discussion of “reasonably available alternatives” and regarding recommendations of “otherwise identical securities.” [630] For example, commenters sought clarification regarding what factors need to be considered in the evaluation, and also how the evaluation could be performed in certain contexts, such as where a broker-dealer operates with an open architecture framework, recommends only a limited menu of products, or recommends only proprietary products.[631] A majority of the IAC recommended that Regulation Best Interest should be clarified to require recommendations of “the investments, investment strategies, accounts, or services, from among those that [the broker-dealers, investment advisers, and their associated persons] have reasonably available to recommend, that they reasonably believe represent the best available options for the investor” and that a “determination regarding the best reasonably available options should be based on a careful review of the investor's needs and goals, as well as the full range of the reasonably available products', strategies', accounts', or services' features, including, but by no means limited to cost.” [632] Several other commenters recommended that the Commission confirm that Regulation Best Interest will not require broker-dealers to offer an unlimited number of securities or investment strategies.[633] Commenters also expressed concern over whether the consideration of “reasonably available alternatives” would effectively require a broker-dealer to document the basis of any recommendation, as well as concerns about disclosure's role in satisfying the Care Obligation.[634] Finally, a majority of the IAC and other commenters sought clarification on whether broker-dealers were required to recommend only the single “best” product.[635]

The Care Obligation will require a broker-dealer to have a reasonable basis to believe, based on its understanding of the potential risks, rewards, and costs of the recommended security or investment strategy involving securities, and in light of the retail customer's investment profile, that the recommendation is in the best interest of a particular retail customer and does not place the broker-dealer's interest ahead of the retail customer's interest. As noted above, determining what is in a retail customer's best interest is an objective evaluation turning on the facts and circumstances of the particular recommendation and the particular retail customer at the time the recommendation is made.[636]

Accordingly, as noted above, a broker-dealer would not satisfy the Care Obligation by simply recommending the least expensive or least remunerative Start Printed Page 33381security without any further analysis of these other factors and the retail customer's investment profile. A broker-dealer could recommend a more expensive security or investment strategy if there are other factors about the product that reasonably allow the broker-dealer to believe it is in the best interest of the retail customer, based on that retail customer's investment profile. Similarly, a broker-dealer could recommend a more remunerative security or investment strategy if the broker-dealer has a reasonable basis to believe that there are other factors about the security or investment strategy that make it in the best interest of the retail customer, in light of the retail customer's investment profile.

We also continue to have the view that, as part of determining whether a broker-dealer has a reasonable basis to believe that a recommendation is in the best interest of the retail customer, a broker-dealer generally should consider reasonably available alternatives offered by the broker-dealer. It is our view that such a consideration is an inherent aspect of making a “best interest” recommendation, and is a key enhancement over existing broker-dealer suitability obligations, which do not necessarily require a comparative assessment among such alternatives.[637] Similarly, this concept has been applied in the context of guidance regarding suitability and heightened supervision of complex products, stating that when broker-dealers are recommending complex or costly products, they should first consider whether less complex or costly products could achieve the same objectives for their retail customers.[638]

In terms of conducting such an evaluation, a broker-dealer does not have to conduct an evaluation of every possible alternative, either offered outside of the firm (such as where the firm offers only proprietary or other limited range of products) or available on the firm's platform. We appreciate commenter concerns about the impracticality and potential impossibility of such a comparative evaluation, particularly where the firm offers numerous different products, many of which may have similar strategies but with other varying characteristics, including cost structures, that may apply differently based on the particular retail customer.[639] We also recognize that different products are rarely perfectly equal, and that differences will be both quantitative and qualitative in nature. A broker-dealer will not be required to recommend the single “best” of all possible alternatives that might exist, in part because many different options may in fact be in the retail customer's best interest.[640] We are sensitive to commenters' concern that this determination, to the extent it can be made at all, may be judged in hindsight even though Regulation Best Interest applies at the time of the recommendation.[641]

In particular, we are not requiring a natural person who is an associated person of the broker-dealer to be familiar with every product on a broker-dealer's platform, particularly where a broker-dealer operates in an open architecture framework or otherwise operates a platform with a large number of products or options.[642] Such a requirement might not allow an associated person of a broker-dealer to develop a proper understanding of every security or investment strategy's potential risks, rewards, or costs, and thus it might not be possible to fulfill the obligation set forth in paragraph (a)(2)(ii)(A). Furthermore, such a requirement could encourage broker-dealers to limit their product menus or otherwise restrict access to products and services currently available to retail customers, which is contrary to the purpose and goals of Regulation Best Interest.[643]

As discussed above, the determination of whether a recommendation is in the “best interest” of the retail customer and does not place the interests of the broker-dealer ahead of the retail customer's interest must be based on information reasonably known to the associated person (based on her reasonable diligence, care, and skill) at the time the recommendation is made. Accordingly, in fulfilling the Care Obligation, the associated person should exercise reasonable diligence, care, and skill to consider reasonably available alternatives offered by the broker-dealer. This exercise would require the associated person to conduct a review of such reasonably available alternatives that is reasonable under the circumstances. Consistent with the Compliance Obligation discussed below, a broker-dealer should have a reasonable process for establishing and understanding the scope of such “reasonably available alternatives” that would be considered by particular associated persons or groups of associated persons (e.g., groups that specialize in particular product lines) in fulfilling the reasonable diligence, care, and skill requirements under the Care Obligation.

What will be a reasonable determination of the scope of alternatives considered will depend on the facts and circumstances, at the time of the recommendation, including both the nature of the retail customer and the retail customer's investment profile, and the particular associated persons or groups of associated persons that are providing the recommendations. With respect to broker-dealers that materially limit the range of products or services that they recommend to retail customers (e.g., limits its product offerings to only proprietary or other limited menus of products), the Conflict of Interest Start Printed Page 33382Obligation provision requires broker-dealers to have reasonably designed policies and procedures to identify and disclose the material limitations and any conflicts of interest associated with such limitations, and to prevent such limitations and associated conflicts of interest from causing the broker-dealer or associated person to make recommendations that place the interest of the broker-dealer or associated person ahead of the interest of the retail customer.[644] Similarly, where a broker-dealer offers numerous products on its platform, a broker-dealer or an associated person could reasonably limit the universe of “reasonably available alternatives” if there is a reasonable process or methodology for limiting the scope of alternatives or the universe considered for a particular retail customer, particular category of retail customers, or the retail customer base more generally.[645]

In addition to the particular retail customer's investment profile, we believe the scope of reasonably available alternatives considered could depend upon a variety of factors, including but not limited to, the associated person's customer base (including the general investment objectives and needs of the customer base), the investments and services available to the associated person to recommend (including limitations due to licensing of the associated person), and other factors such as specific limitations on the available investments and services with respect to certain retail customers (e.g., product or service income thresholds; product geographic limitations; or product limitations based on account type, such as those only eligible for IRA accounts). A reasonable process would not need to consider every alternative that may exist (either outside the broker-dealer or on the broker-dealer's platform) or to consider a greater number of alternatives than is necessary in order for the associated person to exercise reasonable diligence, care, and skill in providing a recommendation that complies with the Care Obligation.

Importantly, where all reasonably available alternatives considered would be inconsistent with a retail customer's investment profile, a broker-dealer would not be able to form a reasonable belief that the best of these options is in the best interest of that retail customer. All recommendations to retail customers of securities or investment strategies are required to satisfy the Care Obligation, and broker-dealers cannot use a limited product menu or a process to determine the scope of reasonably available alternatives considered to justify a recommendation that is not in the best interest of the retail customer.

We recognize that the process by which a broker-dealer and its associated persons develop and make recommendations to retail customers, including the scope of reasonably available alternatives considered, will depend upon a variety factors, including the nature of the broker-dealer's business.[646] The disclosure of this process pursuant to the Disclosure Obligation will provide critical information to retail customers and underscores our acknowledgment that we do not expect every broker-dealer or associated person to follow the same process. Instead, consistent with the Compliance Obligation, broker-dealers and their associated persons must have a reasonable process for developing and making recommendations to retail customers in compliance with the Care Obligation, including the consideration of reasonably available alternatives, which will depend on the facts and circumstances.

We emphasize that what is in the “best interest” of a retail customer depends on the facts and circumstances of a recommendation at the time it is made, including matching the recommended security or investment strategy to the retail customer's investment profile at the time of the recommendation, and the process for coming to that conclusion. Whether a broker-dealer has complied with the Care Obligation will be evaluated based on the facts and circumstances at the time of the recommendation (and not in hindsight) and will focus on whether the broker-dealer had a reasonable basis to believe that the recommendation is in best interest of the retail customer.

Finally, broker-dealers or their associated persons are not required to prepare and maintain documentation regarding the basis for each specific recommendation, including an evaluation of a recommended securities transaction or investment strategy against similar available alternatives. In circumstances where the “match” between the retail customer profile and the recommendation appears less reasonable on its face (for example, where a retail customer's account objective is preservation of income and the recommendation involves higher risk, or where there are more significant conflicts of interest present), the more important the process will likely be for a broker-dealer to establish that it had a reasonable belief that the recommendation was in the best interest of the retail customer and did not place the broker-dealer's interest ahead of the retail customer. This could include reasonably designed policies and procedures to establish compliance with the Care Obligation, as required by the new Compliance Obligation, and could include maintaining supporting documentation for certain recommendations.[647]

Application of Care Obligation to Account Type Recommendations

As discussed above, Regulation Best Interest will apply to recommendations by a broker-dealer of a securities account type. Thus, the Care Obligation will require a broker-dealer to have a reasonable basis to believe that a recommendation of a securities account type (e.g., brokerage or advisory, or among the types of accounts offered by the firm) is in the retail customer's best interest at the time of the recommendation and does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer.[648]

We believe broker-dealers would need to consider various factors in determining whether a particular account is in a particular retail customer's best interest. For example, broker-dealers generally should consider: (1) The services and products provided in the account (ancillary Start Printed Page 33383services provided in conjunction with an account type, account monitoring services, etc.); (2) the projected cost to the retail customer of the account; (3) alternative account types available; (4) the services requested by the retail customer; and (5) the retail customer's investment profile. Moreover, retail customer-specific factors, such as those identified in the definition of “Retail Customer Investment Profile,” may not be applicable or available in every context, and would depend on the facts and circumstances at the time of account type recommendation. For example, one or more factors may have more or less relevance, or information about those factors may not be obtained or analyzed at all where the broker-dealer has a reasonable basis for believing that a particular factor is or is not relevant.[649] In addition, as discussed above, we recognize that factors other than cost may properly be considered when determining whether an account is in a retail customer's best interest.[650]

Where the financial professional making the recommendation is dually registered (i.e., an associated person of a broker-dealer and a supervised person of an investment adviser (regardless of whether the professional works for a dual-registrant, affiliated firms, or unaffiliated firms)) the financial professional would need to make this evaluation taking into consideration the spectrum of accounts offered by the financial professional (i.e., both brokerage and advisory taking into account any eligibility requirements such as account minimums), and not just brokerage accounts. For example, all other things being equal, it may be in the retail customer's best interest to recommend a brokerage account to the retail customer who intends to buy and hold a long-term investment (e.g., maintain an account primarily composed of bonds or mutual funds and has a stated buy-and-hold strategy), as opposed to an advisory account (i.e., it may not be in the retail customer's best interest in this context to pay an ongoing fee for a security that he or she plans to hold to maturity).[651] On the other hand, it may not be in the retail customer's best interest to recommend a brokerage account where the retail customer plans to engage in at least a moderate level of trading and prefers to pay for advice in connection with such trading on the basis of a consistent recurring monthly or annual charge.[652] Furthermore, where a retail customer holds a variety of investments, or prefers differing levels of services (e.g., both episodic recommendations from a broker-dealer and continuous advisory services including discretionary asset management from an investment adviser), it may be in the retail customer's best interest to recommend both a brokerage and an advisory account.

Similarly, where the financial professional is only registered as an associated person of a broker-dealer (regardless of whether that broker-dealer entity is a dual-registrant or affiliated with an investment adviser), he or she would need to take into consideration only the brokerage accounts available.[653] However, even if a broker-dealer only offered brokerage accounts, the associated person would nevertheless need to have a reasonable basis to believe that the recommended account was in the best interest of the retail customer. For example, if the retail customer were seeking a relationship where the financial professional would have unlimited investment discretion (i.e., having responsibility for a customer's trading decisions),[654] the associated person would not have a reasonable basis to believe that a brokerage account was in the best interest of the retail customer. Thus, as with limited product menus, a limited selection of account types would not excuse a broker-dealer from making a recommendation not in the best interest of the retail customer.

Application of Care Obligation to IRA Rollovers and Related Recommendations

Regulation Best Interest also applies to recommendations to open an IRA or to roll over assets into an IRA. Thus, the Care Obligation will require a broker-dealer to have a reasonable basis to believe that the IRA or IRA rollover is in the best interest of the retail customer at the time of the recommendation and does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer, taking into consideration the retail customer's investment profile and other relevant factors, as well as the potential risks, rewards, and costs of the IRA or IRA rollover compared to the investor's existing 401(k) account or other circumstances.[655]

When making a recommendation to open an IRA, or to roll over workplace retirement plan assets into an IRA rather than keeping assets in a previous employer's workplace retirement plan (or rolling over assets to a new employer's workplace retirement plan), broker-dealers should consider a variety of factors, the importance of which will depend on the particular retail customer's needs and circumstances. In addition to the Factors to Consider Regarding a Recommendation to a Particular Retail Customer discussed above, as well as the Retail Customer's Investment Profile, broker-dealers should consider a variety of additional factors specifically salient to IRAs and workplace retirement plans, in order to compare the retail customer's existing account to the IRA offered by the broker-dealer. These factors should generally include, among other relevant factors: Fees and expenses; level of service available; available investment options; ability to take penalty-free withdrawals; application of required minimum distributions; protection from creditors and legal judgments; holdings of employer stock; and any special features of the existing account.[656] With respect to available investment options, we caution broker-dealers not to rely on, for example, an IRA having “more investment options” as the basis for recommending a rollover. Rather, as with other factors, broker-dealers should consider available investment options in an IRA, among other relevant factors, in light of the retail customer's current situation and needs in order to develop a reasonable basis to believe that the rollover is in the retail customer's best interest.

While these examples may be relevant to an analysis of available options, this list is not meant to be exhaustive. Furthermore, each factor generally should be analyzed with respect to a particular retail customer in order for a broker-dealer to form a reasonable belief that the recommendation is in the best Start Printed Page 33384interest of that retail customer and does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer. Finally, as described above, certain factors may have more or less relevance, or not be relevant at all, depending on the particular facts and circumstances of each recommendation.

d. Have a Reasonable Basis To Believe That a Series of Recommended Transactions, Even if in the Retail Customer's Best Interest When Viewed in Isolation, Is Not Excessive and Is the Retail Customer's Best Interest When Taken Together in Light of the Retail Customer's Investment Profile and Does Not Place the Interest of the Broker-Dealer Ahead of the Interest of the Retail Customer

As proposed, the third component of the Care Obligation would require a broker-dealer to exercise reasonable diligence, care, skill, and prudence to have a reasonable basis to believe that a series of recommended transactions, even if in the retail customer's best interest when viewed in isolation, is not excessive and is in the retail customer's best interest when taken together in light of the retail customer's investment profile.[657] The Proposing Release noted that this requirement is intended to incorporate and enhance a broker-dealer's existing “quantitative suitability” obligation by applying the requirement irrespective of whether a broker-dealer exercises actual or de facto control over a customer's account, thereby making the obligation consistent with the current requirements for “reasonable basis suitability” and “customer specific suitability.” [658]

We received a few comments suggesting modifications to this component of the obligation. For example, one commenter recommended the Commission clarify the meaning of “series of transactions,” while a second commenter requested a carve-out for “active traders” who are “interested in trading individual stocks . . . with a great degree of regularity.” [659] Another commenter maintained that the quantitative suitability obligations should only apply to those accounts over which the member firm has “control,” and that if the Commission does not include the control element of FINRA Rule 2111 as part of the Care Obligation, that the Commission “should at a minimum confirm that this requirement applies only to recommendations by a single associated person, not across multiple associated persons at the firm who act independently.” [660]

After considering these comments, the Commission is adopting the proposed “quantitative care” component of the Care Obligation as proposed. As noted in the Proposing Release, we believe that imposing the quantitative care obligation without a “control” element would provide consistency in the investor protections provided to retail customers by requiring a broker-dealer to always form a reasonable basis as to the recommended frequency of trading in a retail customer's account—irrespective of whether the broker-dealer “controls” or exercises “de facto control” over the retail customer's account.[661] This would also be consistent with the other components of the Care Obligation, which apply regardless of whether a broker-dealer “controls” or exercises “de facto control” over the retail customers' account.

While the Commission appreciates the concern raised about “active traders” and the concern relating to a retail customer that could maintain several accounts at the same firm, we nevertheless believe that retail customers could, and should, benefit from the protections of this requirement, namely the protection from a broker-dealer recommending a level of trading that is so excessive that the resulting cost-to-equity ratio or turnover rate makes a positive return virtually impossible.[662] As we indicated in the Proposing Release, the fact that a customer may have some knowledge of financial markets or some “control” should not absolve the broker-dealer of the ultimate responsibility to have a reasonable basis to believe that any recommendations it makes are in the best interest of the retail customer.[663] Where a retail customer expresses a desire for “active trading,” [664] a broker-dealer may take this factor into consideration when evaluating a recommendation; however, the broker-dealer will nevertheless need to reasonably believe that a series of recommended transactions is in the best interest of the retail customer. We further note that Regulation Best Interest does not require a broker-dealer to refuse to accept a customer's order that is contrary to the broker-dealer's recommendation. Nor does Regulation Best Interest apply to self-directed or otherwise unsolicited transactions by a retail customer, whether or not he or she also receives separate recommendations from the broker-dealer.

With respect to the concern about applying the requirement “only to recommendations by a single associated person, not across multiple associated persons at the firm who act independently,” [665] we note that both the firm and their associated persons have to comply with the Care Obligation. If we took this commenter's suggestion, we are concerned we would potentially create a loophole and a perverse outcome that would allow for avoidance of the Care Obligation, and permit potentially excessive trading, by encouraging recommendations across a number of associated persons. We reiterate our position that, consistent with the other components of the Care Obligation under the Care Obligation, when a series of transactions is recommended to a retail customer, a broker-dealer must evaluate whether the series of recommended transactions places the broker-dealer's interest ahead of the retail customer's—this is true for both the associated person making the recommendation, as well as for the firm.[666] This will necessarily depend on the facts and circumstances of each particular recommendation, and of each particular series of transactions; however, we note that, as part of developing a retail customer's investment profile, a broker-dealer is required to exercise reasonable diligence to ascertain the retail customer's investment profile, which would include seeking to obtain and analyze a retail customer's other investments.[667]

Finally, with respect to the meaning of series of recommended transactions, what would constitute a “series” of recommended transactions would depend on the facts and circumstances, and would need to be evaluated with respect to a particular retail customer. In other words, a broker-dealer would need to reasonably believe that the level of trading (series of recommended transactions) is appropriate for a particular retail customer, and thus a bright line definition across all retail Start Printed Page 33385customers would be unworkable. Moreover, providing a bright line definition could encourage firms to focus on a particular number of transactions rather than focusing on ensuring that a series of recommendations, taken together, are in the best interest of the retail customer. Finally, a “series” of recommended transactions is an established term under the federal securities laws and SRO rules that is evaluated in concert with existing guideposts, such as turnover rate,[668] cost-to-equity ratio,[669] and use of in-and-out trading,[670] which have been developed over time and which serve as indicators of excessive trading.

3. Conflict of Interest Obligation

We proposed the Conflict of Interest Obligation to require a broker-dealer entity [671] to: (1) Establish, maintain, and enforce written policies and procedures reasonably designed to identify, and disclose, or eliminate all material conflicts of interest associated with recommendations covered by Regulation Best Interest; and (2) establish, maintain and enforce written policies and procedures reasonably designed to identify and disclose and mitigate, or eliminate, material conflicts of interest arising from financial incentives associated with such recommendations. This proposed approach reflected our view that establishing reasonably designed policies and procedures is critical to identifying and addressing conflicts of interest. In addition, the proposed approach would serve the Commission's goal of addressing conflicts of interest that may harm investors while providing flexibility to establish systems tailored to broker-dealers' business models.

The Commission solicited comment on the Conflict of Interest Obligation, including the specific requirements to create policies and procedures with respect to disclosure, mitigation, and elimination of conflicts of interest. Commenters requested changes to several aspects of the Conflict of Interest Obligation, including providing more clarity and guidance surrounding when specific conflicts need to be disclosed, mitigated or eliminated.[672]

In consideration of these comments, we are adopting the Conflict of Interest Obligation with revisions to: (1) Create an overarching obligation to establish written policies and procedures to identify and at a minimum disclose, pursuant to the Disclosure Obligation, or eliminate all conflicts of interest associated with the recommendation; and (2) require broker-dealers to establish policies and procedures to be reasonably designed to mitigate or eliminate certain identified conflicts of interest.

In addition to the overarching obligation, we specifically require broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to: (i) Identify and mitigate any conflicts of interest associated with recommendations that create an incentive for a natural person who is an associated person of a broker or dealer to place the interest of the broker or dealer, or such natural person making the recommendation, ahead of the interest of the retail customer; (ii)(A) identify and disclose any material limitations placed on the securities or investment strategies involving securities that may be recommended (i.e., only make recommendations of proprietary or other limited range of products) to a retail customer and any conflicts of interest associated with such limitations, in accordance with the Disclosure Obligation, and (B) prevent such limitations and associated conflicts of interest from causing the broker, dealer, or a natural person who is an associated person of the broker or dealer to make recommendations that place the interest of the broker, dealer, or such natural person ahead of the interest of the retail customer; and (iii) identify and eliminate any conflicts of interest associated with sales contests, bonuses, and non-cash compensation that are based on the sales of specific securities or specific types of securities within a limited period of time.[673]

Each of these changes and the requirements pursuant to the Conflict of Interest Obligation is discussed in more detail below.

a. Reasonably Designed Policies and Procedures

We proposed to require broker-dealers to establish reasonably designed policies and procedures as we believe they are critical to identifying and addressing conflicts of interest [674] and helping ensure compliance with the requirements to disclose conflicts of interest pursuant to the Disclosure Obligation.[675] In addition, policies and procedures may minimize compliance costs that may be passed on to retail customers.[676] As discussed in the Proposing Release, it would be reasonable for broker-dealers to use a risk-based compliance and supervisory system rather than requiring a detailed review of each recommendation and to have flexibility to tailor policies and procedures to their specific business models. The Commission also provided guidance on components a broker-dealer should consider including in its program with regard to the Conflict of Interest Obligation.[677]

In response to the proposed policies and procedures requirement, some Start Printed Page 33386commenters asserted that it was an effective means of addressing conflicts [678] while others were concerned that the Commission was providing too much flexibility in addressing conflicts of interest.[679] A few commenters expressed agreement with allowing a flexible risk-based approach tailored to a broker-dealer's business model as opposed to a detailed review of each recommendation.[680] A few commenters expressed concern with the Commission's assertion that policies and procedures may minimize compliance costs that may be passed on to retail customers, noting the uncertainty surrounding how conflicts of interest should be addressed by policies and procedures.[681] One commenter suggested that the Commission should adopt a safe harbor for the Conflicts of Interest Obligation by demonstrating compliance with certain existing FINRA rules.[682] As discussed below under the new Compliance Obligation, some commenters suggested that the policies and procedures requirement should apply to aspects of the entire rule.[683]

In consideration of the comments received, we are adopting the approach with respect to reasonably designed policies and procedures to identify and address conflicts of interest set forth in the proposal substantially as proposed. As stated in the Proposing Release, we believe that broker-dealers should have flexibility to tailor their policies and procedures to their particular business model, focusing on specific areas of their business that pose the greatest risk of noncompliance and greatest risk of potential harm to retail customers as opposed to a detailed review of each recommendation.[684]

While we recognize a commenter's statement [685] that policies and procedures should be “actually designed” to address conflicts of interest, we do not believe that the design of policies and procedures should be measured against a standard of strict liability, but should instead be measured against a standard of reasonableness. In addition, we believe that policies and procedures are an effective tool to identify and address conflicts of interest, and would allow the Commission to identify and address potential compliance deficiencies or failures (such as inadequate or inaccurate policies and procedures, or failure to follow the policies and procedures) early on, reducing the chance of retail customer harm.[686] We also believe that there is no one-size-fits all framework, and, as such, broker-dealers should have flexibility to reasonably design their policies and procedures to tailor them to account for their business model, given the structure and characteristics of their relationships with retail customers, including the varying levels and frequency of recommendations provided and the types of conflicts that may be presented. This requirement of “reasonably designed” policies and procedures is also consistent with Commission rules and regulations in other contexts, including under the Advisers Act.[687] Further, the Commission continues to believe that while not required components, as an effective practice, broker-dealers should consider including in their supervisory and compliance programs the components listed in the Proposing Release, which may be relevant in considering whether policies and procedures are reasonably designed.[688]

The Commission is not providing a safe harbor to Regulation Best Interest for broker-dealers who demonstrate compliance with FINRA rules [689] because, while FINRA rules may address specific conflicts of interest, Regulation Best Interest establishes a broader obligation to address conflicts both at the firm level and at the associated person level.[690] As to commenters' concerns that the policies and procedures requirement provides too much flexibility and as discussed in more detail below, the Commission has changed the specific requirements to be addressed by the policies and procedures pursuant to the Conflict of Interest Obligation to provide more certainty to firms on which conflicts of interest should be addressed through disclosure, mitigation or elimination. While the Commission also understands concerns related to compliance costs, we believe that the revisions to the Conflict of Interest Obligation, including the greater specificity in the rule text, as well as the guidance provided below, will ease the adjustment of broker-dealers' existing supervisory and compliance systems and streamline compliance with Regulation Best Interest.

b. Conflicts of Interest

The Proposing Release distinguished between material conflicts of interest in general and material conflicts of interest arising from financial incentives. Under the Proposing Release, broker-dealers would be required to establish, maintain, and enforce policies and procedures to identify and, in the case of material conflicts of interest, disclose or eliminate, and in the case of financial incentives, disclose and mitigate, or eliminate material conflicts of interest arising from financial incentives.[691]

The Commission proposed to interpret a material conflict of interest as a conflict of interest that a reasonable person would expect might incline a broker—consciously or unconsciously—to make a recommendation that is not disinterested.[692] For material conflicts of interest arising from financial incentives associated with a recommendation, the Proposing Release discussed compensation practices established by the broker-dealer, including fees and other charges for the services provided and products sold; employee compensation or employment incentives (e.g., quotas, bonuses, sales contests, special awards, differential or variable compensation, incentives tied to appraisals or performance reviews); compensation practices involving third-parties, including both sales Start Printed Page 33387compensation and compensation that does not result from sales activity, such as compensation for services provided to third-parties (e.g., sub-accounting or administrative services provided to a mutual fund); receipt of commissions or sales charges, or other fees or financial incentives, or differential or variable compensation, whether paid by the retail customer or a third-party; sales of proprietary products or services, or products of affiliates; and transactions that would be effected by the broker-dealer (or an affiliate thereof) in a principal capacity.[693]

In addition, the Commission proposed to limit conflicts of interest to those associated with recommendations as broker-dealers may provide a range of services not involving a recommendation, and such services are subject to general antifraud liability and specific requirements to address associated conflicts of interest.[694]

Recognizing the phrase “financial incentives” could be interpreted broadly, the Commission solicited comment on the proposed requirement and the distinction between the different requirements under the Conflict of Interest Obligation. In response, many commenters suggested that the scope of the description of financial incentives be narrowed as it was too broad and requested guidance or examples of material conflicts of interest that would not fall within the description of financial incentives.[695] Specifically, a number of commenters suggested that the mitigation obligation should focus on financial incentives at the registered representative level as opposed to the firm level.[696] A number of commenters suggested that the distinction between material conflicts and financial incentives should be removed altogether.[697] Commenters also stated that the mitigation requirement is a higher standard of conduct than the investment adviser fiduciary duty which allows for conflicts to be addressed through disclosure sufficient for informed consent.[698]

In consideration of comments and as discussed in more detail below, the Commission has restructured the Conflict of Interest Obligation to: (1) Create an overarching obligation to establish, maintain and enforce written policies and procedures that are reasonably designed to identify and at a minimum disclose (pursuant to the Disclosure Obligation), or eliminate, all conflicts of interest associated with the recommendation; and (2) adopt specific requirements with respect to such policies and procedures for the mitigation and elimination of identified conflicts of interest.

In particular, we have revised the proposed policies and procedures requirement for mitigation to focus on conflicts of interest that create an incentive for an associated person to place his or her interests ahead of the interest of the retail customer as described below, by eliminating the distinction between material conflicts of interest and material conflicts of interest arising from financial incentives, and removing the affirmative mitigation requirement at the firm level. However, in light of this change, we are adding a new provision requiring broker-dealers to establish, maintain, and enforce written policies and procedures to specifically require broker-dealers to identify and disclose material limitations, and any associated conflicts of interest a broker-dealer places on the securities or investment strategies involving securities that may be recommended to the retail customer, such as recommendations being based on limited product menus (i.e., only make recommendations of proprietary or other limited range of products) and prevent such limitations and associated conflicts of interest from causing the broker-dealer to make recommendations that place its interest ahead of the retail customer. We believe the policies and procedures need to address those certain conflicts of interest inherent in the broker-dealer business model by heightened measures in order to prevent recommendations that are not in the best interest of the retail customer. Therefore, we are adding a provision requiring broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to identify and to eliminate any conflicts of interest associated with sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sale of specific securities or specific types of securities within a limited period of time.

For purposes of Regulation Best Interest, and for the reasons described in more detail in the context of the Disclosure Obligation, we have also amended the rule text by eliminating “material” from “conflict of interest” and codified the definition of a conflict of interest [699] to mean an interest that might incline a broker-dealer—consciously or unconsciously—to make a recommendation that is not disinterested.[700] While “material” has been eliminated, pursuant to the Disclosure Obligation, broker-dealers are required to disclose all material facts relating to conflicts of interest associated with recommendations, consistent with the Proposing Release's intent of facilitating disclosure to assist retail customers in making informed investment decisions.[701]

Regarding the application of the Conflict of Interest Obligation only to those conflicts of interest associated with recommendations, one commenter stated that given the lack of detail in the Proposing Release, broker-dealers may have difficulty determining whether material conflicts are associated with a recommendation and how to adequately address such conflicts, which could create inconsistent application of Regulation Best Interest.[702] We continue to believe this approach is appropriate, for the reasons discussed in the Proposing Release [703] and also believe Start Printed Page 33388that our revised Conflict of Interest Obligation provides more specificity about how to address specific conflicts of interest, in conjunction with our Disclosure Obligation, which should address commenters' concerns.

c. Identifying Conflicts of Interest

In the Proposing Release, the Commission stated that having a process to identify and appropriately categorize conflicts of interest is a critical first step to ensure that broker-dealers have reasonably designed policies and procedures to address conflicts of interest in order to comply with the Conflict of Interest Obligation. As stated in the Proposing Release, reasonably designed policies and procedures to identify conflicts of interest generally should do the following: (i) Define such conflicts in a manner that is relevant to a broker-dealer's business (i.e., conflicts of both the broker-dealer entity and the associated persons of the broker-dealer), and in a way that enables employees to understand and identify conflicts of interest; (ii) establish a structure for identifying the types of conflicts that the broker-dealer (and associated persons of the broker-dealer) may face; (iii) establish a structure to identify conflicts in the broker-dealer's business as it evolves; (iv) provide for an ongoing (e.g., based on changes in the broker-dealer's business or organizational structure, changes in compensation incentive structures, and introduction of new products or services) and regular, periodic (e.g., annual) review for the identification of conflicts associated with the broker-dealer's business; and (v) establish training procedures regarding the broker-dealer's conflicts of interest, including conflicts of natural persons who are associated persons of the broker-dealer, how to identify such conflicts of interest, as well as defining employees' roles and responsibilities with respect to identifying such conflicts of interest.[704] Most commenters did not express a view on such guidance relating to the process of identifying conflicts of interest. Therefore, for the reasons discussed in the Proposing Release, we are reiterating this guidance here.

d. Overarching Obligation Related to Conflicts of Interest

As proposed, the first component of the Conflict of Interest Obligation would have required a broker-dealer to establish, maintain, and enforce written policies and procedures reasonably designed to identify, and disclose, or eliminate, all material conflicts of interest that are associated with recommendations covered by Regulation Best Interest. In guidance, the Commission stated that reasonably designed policies and procedures should establish a clearly defined and articulated structure for: determining how to effectively address material conflicts of interest identified (i.e., whether to eliminate or disclose (and mitigate, as required) the material conflict); and setting forth a process to help ensure that material conflicts are effectively addressed as required by the policies and procedures.

As such, the requirement was intended to provide flexibility to broker-dealers regarding how to address conflicts of interest, whether through disclosure pursuant to the Disclosure Obligation, or elimination. The Commission also indicated that there may be situations in which disclosure alone is not sufficient, and broker-dealers may need to establish policies and procedures designed to eliminate the conflict or both disclose and mitigate it.[705] The Commission also provided examples of how a broker-dealer could eliminate a conflict.[706]

As discussed above, we received many comments generally on the Conflict of Interest Obligation, requesting clarification on which conflicts needed to be disclosed, versus those that should be mitigated or eliminated.[707] Some commenters suggested that disclosure and informed consent should be considered to effectively address conflicts, similar to the approach taken under the Advisers Act.[708] Some commenters suggested that disclosure alone was sufficient to address conflicts arising from financial incentives.[709] For example, a few commenters identified specific types of conflicts they believed could be addressed by appropriate disclosure, such as third-party payments.[710] A few commenters requested that the examples of how to eliminate conflicts of interest in the Proposing Release be removed.[711]

After carefully considering comments, we are adopting, similar to the Proposing Release, an overarching requirement to establish, maintain, and enforce reasonably designed policies and procedures to identify and, at a minimum, disclose, in accordance with the Disclosure Obligation, or eliminate all conflicts of interest associated with the recommendation. However, as discussed in the following sections, we are otherwise revising the Conflict of Interest Obligation in response to these comments. Subparagraphs (a)(2)(iii)(B)-(D) of the rule text will now require policies and procedures that are reasonably designed to address specific conflicts of interest in areas that we believe create greater incentives for, and increased risk that, the broker-dealer or associated person may place its or his or her own interest ahead of the retail customer's interest, specifically conflicts of interest that: (1) Create certain incentives to associated persons; (2) conflicts of interest associated with material limitations on the securities or investment strategies involving securities, such as, limited product menus; and (3) sales contests, sales quotas, bonuses, and non-cash compensation based on the sales of specific securities or type of security within a limited period of time.

In adopting this overarching requirement, we are reaffirming guidance in the Proposing Release on establishing a process to identify and determine how to address a conflict, as discussed above.[712] Further, similar to the Proposing Release, while we are not requiring broker-dealers to develop policies and procedures to disclose and mitigate all conflicts of interest, we are requiring that broker-dealers develop policies and procedures reasonably designed to “at a minimum disclose, or eliminate” all conflicts.[713] We continue to believe that where a broker-dealer cannot fully and fairly disclose a conflict of interest in accordance with the Disclosure Obligation, the broker-dealer should eliminate the conflict or adequately mitigate (i.e., reduce) the Start Printed Page 33389conflict such that full and fair disclosure in accordance with the Disclosure Obligation is possible. In some cases, conflicts of interest may be of a nature and extent that it would be difficult to provide disclosure that adequately conveys to a retail customer the material facts or the nature, magnitude and potential effect of the conflict for informed decision-making or where disclosure may not be sufficiently specific or comprehensible for the retail customer to understand whether and how the conflict will affect the recommendations he or she receives.[714] Also, in certain situations, a broker-dealer, even if not required, may determine that in addition to addressing a conflict through disclosure, to take additional steps beyond disclosure to also mitigate the conflict of interest.

The Commission acknowledges commenters' concerns regarding the examples of how to eliminate conflicts of interest that were provided in the Proposing Release. The Commission's intent was not to prevent firms from offering certain products to the extent that they are in a retail customer's best interest. In order to avoid confusion and to respond to commenters, we are not including these examples as final guidance here as we have instead decided to focus the rule text on specific conflicts of interest associated with certain sales practices based on the sale of specific securities that we require to be eliminated and thus such examples are not necessary. In discussing the separate mitigation and elimination requirements below, we provide guidance on the specific conflicts for which we are requiring these heightened measures beyond disclosure. However, while we have removed the examples of potential conflicts of interest that may be more appropriately avoided, we emphasize that pursuant to the overarching obligation, elimination of conflicts of interest is one method of addressing the conflict, in lieu of disclosure, which broker-dealers may find appropriate in certain circumstances even when not required by Regulation Best Interest.

e. Mitigation of Certain Incentives to Associated Persons

We proposed to require firms to establish, maintain, and enforce written policies and procedures reasonably designed to identify and disclose and mitigate, or eliminate, material conflicts of interest arising from financial incentives with such recommendations. In proposing this requirement, we recognized the importance of the brokerage model as a potentially cost-effective option for investors, acknowledging that the compensation structures and arrangements within the business model create inherent conflicts [715] but that such compensation may be appropriate in light of the time and experience necessary to understand investments. As such, we aimed to promote investor choice and access to products and instead of requiring broker-dealers to establish policies and procedures to eliminate compensation structures and arrangements,[716] required policies and procedures to mitigate those conflicts of interest.

We proposed a principles-based approach to provide flexibility to firms to develop and tailor policies and procedures that included conflict mitigation measures based on each firm's circumstances, for example, the size, retail customer base, nature and significance of the conflict, and complexity of the product.[717] We stated that, depending on the conflict and the firm's assessment, more or less demanding measures may be appropriate.[718] We provided examples of situations in which heightened mitigation measures may be appropriate and also suggested that broker-dealers assess their policies and procedures as they may be reasonably designed at the outset but may later cease to be reasonably designed based on subsequent events or information.[719] Finally, we provided a non-exhaustive list of potential practices that we believe broker-dealers should consider including in their policies and procedures, and as discussed above, suggested that some practices may be more appropriately avoided as they may be difficult to mitigate.[720]

As discussed above, many commenters expressed concern with the breadth of the mitigation requirement and requested that mitigation be limited to certain types of compensation [721] or solely to financial incentives to the individual registered representative.[722] Many commenters were also concerned about what they described as ambiguities in the Proposing Release, including the lack of a definition of the term “mitigate” [723] and requested further guidance surrounding conflicts that needed to be mitigated versus those that can be disclosed.[724] Some commenters suggested that supervision should be adequate mitigation and requested clarification on whether their existing supervisory practices, if compliant, were sufficient.[725] As discussed above under Section II.C.3.b, a number of commenters expressed concern that the mitigation requirement is a higher standard of conduct than the investment adviser fiduciary duty and requested that it be aligned with the fiduciary duty.[726]

Many commenters expressed concern over some of the examples, and in particular neutral compensation factors, described as a potential mitigation measure.[727] Similarly, some Start Printed Page 33390commenters suggested that the Commission should take more of a principles-based approach as they viewed the Proposing Release as too prescriptive because it incorporated examples from the DOL Fiduciary Rule.[728] One commenter expressed concern over the suggestion that heightened mitigation may be appropriate if a retail customer has a less sophisticated understanding, stating that it is unclear how mitigation would be measured and could create heightened costs and risks for firms.[729] Finally, some commenters requested confirmation that certain practices are permissible such as use of compensation grids,[730] receipt of revenue sharing,[731] differential compensation,[732] recommendations based on a limited range of products and proprietary products,[733] and use of employment benefits.[734]

In response to commenters, we have revised the Proposing Release's requirement with respect to mitigation to require broker-dealers to establish policies and procedures reasonably designed to identify and mitigate any conflicts of interest associated with such recommendations that create an incentive for a natural person who is an associated person of a broker- dealer to place the interest of the broker-dealer, or such natural person ahead of the interest of the retail customer.

We agree with commenters that it is appropriate to focus on the incentives that directly affect the associated person making a recommendation, because we believe those conflicts are most likely to undermine the associated person's ability to make a recommendation that is in the best interest of the retail customer, and thus present heightened risk of recommendations that are not in a retail customer's best interest and that place the associated person's or firm's interests ahead of the retail customer's interest.

While disclosure can be an effective tool for retail customers to increase awareness of a conflict of interest,[735] in certain cases, we do not believe that disclosure alone sufficiently reduces the potential effect that these conflicts of interest may have on recommendations made to retail customers.[736] Instead, we believe that broker-dealers are most capable of identifying and addressing the conflicts that may affect the obligations of their associated persons with respect to the recommendations they make, and therefore are in the best position, to affirmatively reduce the potential effect of these conflicts of interest such that they do not taint the recommendation.

We are persuaded by commenters [737] that expressed concern that requiring broker-dealers to establish policies and procedures reasonably designed to mitigate all financial incentives, including any compensation, may result in broker-dealers narrowing their product shelf and compensation practices which would be inconsistent with the Commission's stated goal.[738] As stated in the Proposing Release, while the Commission's goal in adopting Regulation Best Interest is to enhance investor protection by reducing the potential harm to retail customers from conflicts of interest that may affect broker-dealer recommendations, we want to do so while preserving, to the extent possible, access and choice for investors who prefer to pay for investment recommendations on a transaction-by-transaction basis, which is the “pay as you go” model that broker-dealers generally provide, as well as preserving retail customer choice of the level and types of advice provided and the products available.[739] As such, transaction based-compensation need not be eliminated pursuant to Regulation Best Interest.

Accordingly, rather than requiring mitigation of all firm-level financial incentives, we have determined to refine our approach by generally allowing firm-level conflicts to be generally addressed through disclosure.[740] At the same time, we are persuaded by commenters [741] that there are some conflicts that should be addressed through mitigation at the firm level due to the potential impact that we believe certain conflicts of interest (either at the associated person or firm level) may have on recommendations to retail customers; therefore we are requiring policies and procedures for mitigation or elimination of those conflicts (as identified in the rule text) and are not leaving it to the broker-dealer to determine whether disclosure alone is sufficient.[742] We believe that this approach appropriately balances our goal of reducing the potential harm conflicts of interest may have on broker-dealers' recommendations to retail customers and preserving retail access (in terms of choice and cost) to brokerage products and services.

i. Guidance on Covered Incentives

The Commission interprets this requirement to establish, maintain, and enforce reasonably designed policies and procedures to identify and mitigate Start Printed Page 33391any conflicts of interest that create an incentive for the associated person to place the interest of the broker-dealer or such associated person ahead of the interest of the retail customer, to only apply to incentives provided to the associated person, whether by the firm or third-parties that are within the control of or associated with the broker-dealer's business.[743] It would not cover external interests of the associated person not within the control of or associated with the broker-dealer's business.[744] In the case of a dually registered individual, this requirement would generally only apply to incentives provided to the associated person when making a recommendation in a brokerage capacity and not when making a recommendation in an investment advisory capacity as the investment adviser fiduciary duty would apply to the advice given in that instance.[745]

The Commission generally considers the following as examples of incentives to an associated person that would need to be addressed under this revised provision: (i) Compensation from the broker-dealer or from third-parties, including fees and other charges for the services provided and products sold; (ii) employee compensation or employment incentives (e.g., incentives tied to asset accumulation and not prohibited under (a)(2)(iii)(D), as discussed below, special awards, differential or variable compensation, incentives tied to appraisals or performance reviews); and (iii) commissions or sales charges, or other fees or financial incentives, or differential or variable compensation, whether paid by the retail customer, the broker-dealer or a third-party. These examples focus on compensation that varies based on the advice given, such as commissions, markups/markdowns, loads, revenue sharing, and Rule 12b-1 fees.

ii. Guidance on Mitigation Methods

By requiring that a broker-dealer establish policies and procedures reasonably designed to “mitigate” these conflicts of interest, we mean the policies and procedures must be reasonably designed to reduce the potential effect such conflicts may have on a recommendation given to a retail customer. Thus, whether or not a broker-dealer's policies and procedures are reasonably designed to mitigate such conflicts will be based on whether they are reasonably designed to reduce the incentive for the associated person to make a recommendation that places the associated person's or firm's interests ahead of the retail customer's interest.

As noted in the Proposing Release, in lieu of mandating specific mitigation measures or a “one-size fits all” approach, we are providing broker-dealers with flexibility to develop and tailor reasonably designed policies and procedures that include conflict mitigation measures, based on each firm's circumstances.[746] Reasonably designed policies and procedures should include mitigation measures that depend on the nature and significance of the incentives provided to the associated person and a variety of factors related to a broker-dealer's business model (such as the size of the broker-dealer, retail customer base (e.g., diversity of investment experience and financial needs), and the complexity of the security or investment strategy involving securities that is being recommended), some of which may be weighed more heavily than others. For example, more stringent mitigation measures may be appropriate in situations where the characteristics of the retail customer base in general displays less understanding of the incentives associated with particular securities or investment strategies; [747] where the compensation is less transparent (for example, an incentive from a third-party or charge built into the price of the product or a transaction versus a straight commission); or in a situation involving a complex security or investment strategy.[748] A broker-dealer could reasonably determine through its policies and procedures that the same mitigation measures could apply to a particular type of retail customer, type of security or investment strategy, or type of incentive across the board; or in some instances a broker-dealer may reasonably determine that some conflicts create incentives that may be more difficult to mitigate, and are more appropriately avoided in their entirety or for certain categories of retail customers.[749]

As noted in the Proposing Release, policies and procedures may be reasonably designed at the outset, but may later cease to be reasonably designed based on subsequent events or information obtained (for example, such as through supervision (e.g., exception testing) of associated person recommendations), and the actual experience of a broker-dealer should be used to revise the broker-dealer's measures as appropriate.[750] Further, what are considered reasonable mitigation measures may vary based on the size of the firm.[751] While many broker-dealers have programs currently in place to manage conflicts of interest, each broker-dealer will need to carefully consider whether its existing framework complies with this provision.[752]

In response to commenters' concerns regarding the potential mitigation Start Printed Page 33392methods described in the Proposing Release, and, in particular, the references to neutral factors,[753] we would like to emphasize that this non-exhaustive list of factors is purely illustrative and the factors are not required elements.[754] In providing these examples, we did not intend to take a prescriptive approach, as suggested by some commenters, but a principles-based approach designed to provide flexibility to broker-dealers, depending on their business model, level of conflicts, and the retail customers they serve.[755]

Among other things, firms may adopt a range of reasonable alternatives to meet the mitigation requirement of the Conflict of Interest Obligation. As noted above, we recognize that there are a number of different kinds of incentives and that, depending on the specific characteristics of an incentive, different levels and types of mitigation measures may be necessary. For example, incentives tied to asset accumulation generally would present a different risk and require a different level or kind of mitigation, than variable compensation for similar securities, which in turn may present a different level or kind of risk and may require different mitigation methods than differential or variable compensation or financial incentives tied to firm revenues. In certain instances, we believe that compliance with existing supervisory requirements and disclosure may be sufficient, for example, where a firm may develop a surveillance program to monitor sales activity near compensation thresholds.[756]

As discussed above, while not required elements, the Commission believes the following non-exhaustive list of practices could be used as potential mitigation methods for firms to comply with (a)(2)(iii)(B) of Regulation Best Interest:

  • Avoiding compensation thresholds that disproportionately increase compensation through incremental increases in sales;
  • minimizing compensation incentives for employees to favor one type of account over another; or to favor one type of product over another, proprietary or preferred provider products, or comparable products sold on a principal basis, for example, by establishing differential compensation based on neutral factors; [757]
  • eliminating compensation incentives within comparable product lines by, for example, capping the credit that an associated person may receive across mutual funds or other comparable products across providers;
  • implementing supervisory procedures to monitor recommendations that are: Near compensation thresholds; near thresholds for firm recognition; involve higher compensating products,[758] proprietary products or transactions in a principal capacity; or, involve the roll over or transfer of assets from one type of account to another (such as recommendations to roll over or transfer assets in an ERISA account to an IRA) or from one product class to another; [759]
  • adjusting compensation for associated persons who fail to adequately manage conflicts of interest; and
  • limiting the types of retail customer to whom a product, transaction or strategy may be recommended.[760]

While the Commission is providing flexibility so that broker-dealers can determine the nature and extent of mitigation, whether a broker-dealer has developed policies and procedures reasonably designed to mitigate a conflict is not measured against industry practice (although such practice could be a useful point of reference). Each firm must look at the facts and circumstances surrounding the mitigation methods, the particular broker-dealer's business model, and whether or not the policies and procedures were reasonably designed for the particular firm to reduce the impact of the incentive in a manner to prevent the incentive from causing the associated person to place the broker-dealer's or the associated person's interest ahead of the retail customer's interest.

In response to a commenter's concern that we suggested in the Proposing Release that some compensation conflicts may be more appropriately avoided for certain categories of retail customers,[761] we would like to clarify that such a suggestion is an example and not a requirement. Nevertheless, we are adopting a requirement to establish, maintain, and enforce written policies and procedures reasonably designed to eliminate the incentives that we believe create the most problematic conflicts, namely incentives to associated persons that are tied to recommendations of specific securities or specific types of securities within a limited period of time as we believe these incentives cannot be adequately mitigated, and are likely to result in recommendations that place the interest of the broker-dealer or associated person ahead of the interests of the retail customer. Furthermore, in accordance with the Care Obligation, a broker-dealer, when making a recommendation, is required to, among other things, have a reasonable basis to believe that the recommendation is in the best interest of the particular retail customer.[762] In particular, and consistent with existing suitability obligations, a broker-dealer is required to exercise “reasonable diligence” to ascertain (and consider) the retail customer's investment profile which, among other things, includes the retail customer's investment experience and risk tolerance.[763] A broker-dealer that has established reasonably designed policies and procedures to mitigate the conflicts associated with the incentives provided to the associated person would nevertheless violate Regulation Best Interest if the recommendation does not comply with the Care Obligation.

Finally, in response to commenters' questions regarding the permissibility of specific practices, the Commission believes the revised, explicit requirements related to: Mitigation of incentives to associated persons as discussed herein; mitigation of any material limitations placed on the securities or investment strategies that may be recommended to retail customers; and elimination of certain Start Printed Page 33393practices, as discussed below, sufficiently address these comments. To the extent the Commission has not identified a practice that needs to be eliminated, it would be permitted, subject to compliance with the requirements of Regulation Best Interest.

f. Mitigation of Material Limitations on Recommendations to Retail Customers

As part of the proposed requirement to manage conflicts of interest arising from financial incentives through mitigation, firms would have been required to establish policies and procedures reasonably designed to mitigate the conflicts of interest associated with offering a limited range of products and proprietary products.

We also solicited comment on information related to the magnitude of conflicts of interest when broker-dealers recommend, among other things, proprietary products and a limited range of products. In response, several commenters requested that the Commission confirm that a product menu limited to appropriate alternative investments offered by the broker-dealer would not violate Regulation Best Interest.[764] Some commenters requested we clarify that, for certain customers, a firm can limit its offerings to proprietary products or products for which the firm receives revenue sharing payments if the limitation is properly disclosed and appropriate to meet the retail customer's needs.[765]

In consideration of these comments, and our revisions to remove firm-level conflicts from the proposed mitigation provision discussed above, we are adopting a new requirement to specifically address the conflicts of interest presented when broker-dealers place any material limitations on the securities or investment strategies that may be recommended to a retail customer (i.e., only make recommendations of proprietary or other limited ranges of products). While we generally believe that most firm-level conflicts of interest can be addressed through appropriate disclosure, this new provision focuses on the specific firm-level conflicts—namely, the conflicts associated with the establishment of a product menu—which we believe are most likely to affect recommendations made to retail customers and have the greatest potential to result in recommendations that place the interest of the broker-dealer or associated person ahead of the interest of the retail customer.[766] Given the potential impact on recommendations to retail customer, we believe these conflicts should not be left to the broker-dealer to determine whether disclosure alone is sufficient, and are requiring broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to (1) identify and disclose any material limitations broker-dealers place on their securities offerings or investment strategies involving securities and any associated conflicts of interest and (2) prevent such limitations and associated conflicts of interest from causing the broker-dealer to make recommendations that place the broker-dealer's interest ahead of the interest of the retail customer.

While we believe broker-dealers should be permitted to limit their product offerings from which they make recommendations to retail customers, provided that they comply with Regulation Best Interest,[767] we are also concerned that without requiring a broker-dealer to have a process in place to disclose and address negative effects of such limitations, retail customers may be unaware that a broker-dealer offers only a limited set of products and therefore would be unable to make an informed investment decision.[768] We are also concerned that retail customers may be harmed by such limitations if they are more likely to result in recommendations that are not in the best interest of the retail customer.[769]

Broker-dealers will be required to establish, maintain and enforce written policies and procedures reasonably designed to: (i) Identify and disclose any material limitations placed on the securities or investment strategies involving securities that may be recommended to a retail customer and any conflicts of interest associated with such limitations, in accordance with the Disclosure Obligation, and (ii) prevent such limitations and associated conflicts of interest from causing the broker, dealer, or a natural person who is an associated person of the broker or dealer to make recommendations that place the interest of the broker, dealer, or such natural person ahead of the interest of the retail customer.

As discussed in the context of the Disclosure Obligation and the Relationship Summary, for purposes of this requirement, a “material limitation” [770] placed on the securities or investment strategies involving securities would include, for example, recommending only proprietary products (i.e., any product that is managed, issued, or sponsored by the financial institution or any of its affiliates), a specific asset class, or products with third-party arrangements (i.e., revenue sharing).[771] In addition, the fact that the broker-dealer recommends only products from a select Start Printed Page 33394group of issuers could also be a material limitation.

We recognize, however, that, as a practical matter, almost all broker-dealers limit their offerings of securities and investment strategies to some degree. We do not believe that disclosing the fact that a broker-dealer does not offer the entire possible range of securities and investment strategies would convey useful information to a retail customer, and therefore we would not consider this fact, standing alone, to constitute a material limitation.[772] Rather, consistent with the examples of a “material limitation” provided above, whether the limitation is material will depend on the facts and circumstances of the extent of the limitation.

Adopting this revised requirement is critical to ensuring that retail customers are aware of any material limitations associated with a broker-dealer's recommendation and associated conflicts of interest and that broker-dealers, through their policies and procedures, establish processes to evaluate whether or not such a limited range of products is consistent with making recommendations that are in the retail customer's best interest and that do not place the interests of the broker-dealer or associated person ahead of the retail customer's interest, consistent with Care Obligation.[773] Broker-dealers would be able to satisfy paragraph (a)(2)(iii)(C)(1) by identifying any material limitations and complying with the Disclosure Obligation which, as discussed above, requires disclosure of “the type and scope of services provided to the retail customer, including any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer.” [774]

Similar to the requirement to establish, maintain, and enforce written policies and procedures reasonably designed to mitigate certain incentives to associated persons, firms will have flexibility to develop and tailor reasonably designed policies and procedures to prevent such limitations and the associated conflicts from causing the broker-dealer or associated person from placing their interest ahead of the retail customer's interest. In developing such policies and procedures, the Commission believes that firms should, for example, consider establishing product review processes for products that may be recommended, including establishing procedures for identifying and mitigating the conflicts of interests associated with the product, or declining to recommend a product where the firm cannot effectively mitigate the conflict, and identifying which retail customers would qualify for recommendations from this product menu.[775] As part of this process, firms may consider evaluating the use of “preferred lists,” [776] restricting the retail customers to whom a product may be sold, prescribing minimum knowledge requirements for associated persons who may recommend certain products,[777] and conducting periodic product reviews to identify potential conflicts of interest, whether the measures addressing conflicts are working as intended, and to modify the mitigation measures or product selection accordingly.[778] The Commission's intent is not to prevent firms from offering proprietary products or other limited range of products so long as firms comply with the Disclosure, Care,[779] and Conflict of Interest Obligations. In fact, we believe that these limitations can be beneficial, such as by helping ensure that a broker-dealer and its associated persons understand the securities they are recommending, as required by the Care Obligation.[780] This requirement is designed to allow firms to determine whether and how to restrict their menu of investment options based, among other things, on their retail customer base and area of expertise, while protecting the interests of retail customers when recommendations are made from such limited menus by requiring firms have a reasonably designed process to identify, disclose, and prevent the conflicts of interest associated with such limitations from resulting in recommendations that place the broker-dealer's interests ahead of the retail customer's interest.

We also note that the risk that limited product menus result in recommendations that are not in the retail customer's best interest is also addressed through the Care Obligation [781] and required disclosure pursuant to the Disclosure Obligation.[782]

g. Elimination of Certain Conflicts of Interest

Under Section 15(l)(2) of the Exchange Act, the Commission may examine and, where appropriate, promulgate rules prohibiting or restricting certain sales practices, conflicts of interest, and compensation schemes for brokers, dealers, and investment advisers that the Commission deems contrary to the public interest and protection of investors. As discussed below, the Commission finds that it is in the public interest and consistent with the protection of investors to require that broker-dealers establish, maintain, and enforce written policies and procedures reasonably designed to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sales of specific securities or specific types of securities within a limited period of time.Start Printed Page 33395

In the Proposing Release, the Conflict of Interest Obligation would have required the establishment of policies and procedures reasonably designed to at a minimum disclose or eliminate all material conflicts of interest related to the recommendation (or to disclose and mitigate or eliminate those material conflicts of interest arising from financial incentives). We did not mandate the absolute elimination of, or policies and procedures reasonably designed to eliminate any particular conflicts.[783] We were concerned that the absolute elimination of specified particular conflicts could mean a broker-dealer may not receive compensation for its services.[784] Our intent, rather, was to identify certain practices that may be more appropriately avoided for certain categories of retail customers, including, for example, sales contests, trips, prizes, and other similar bonuses based on sales of certain securities or accumulation of AUM.[785]

We also provided examples of how a broker-dealer could eliminate conflicts of interest.[786] We requested comment on elimination, including suggestions of whether certain conflicts should be required to be eliminated and how broker-dealers could eliminate conflicts of interest. Specifically, we requested comment on whether the Commission should explicitly prohibit receipt of certain non-cash compensation (e.g., sales contests, trips, prizes, and other bonuses based on sales of certain securities, accumulation of AUM or any other factor).[787]

In response, several commenters requested greater certainty as to whether certain conflicts of interest should be eliminated and if so, which ones.[788] Some commenters generally requested that certain sales contests and financial incentives be prohibited.[789] Of these commenters, many expressed concern that product-based incentives could lead to recommendations that are not in a customer's best interest, with some commenters stating that firms could find ways to mitigate these conflicts [790] and others advocating that they should be prohibited in their entirety.[791] Other commenters requested clarification that incentives not tied to a particular investment product would be permitted and would not need to be eliminated.[792] A number of commenters requested clarification that incentives based on asset growth would be permitted as they do not raise the same types of conflicts present with product-based sales.[793] A number of commenters expressed concern that provisions requiring elimination of certain conflicts could be in conflict with current treatment under the Internal Revenue Code governing certain employee benefits.[794]

After considering comments, we are modifying the rule text of the Conflict of Interest Obligation to include new paragraph (a)(2)(iii)(D), which requires the broker or dealer to establish, maintain, and enforce written policies and procedures reasonably designed to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sales of specific securities or specific types of securities within a limited period of time. In adopting this new requirement, the Commission believes it will provide certainty to broker-dealers regarding the types of practices where conflicts of interest are so pervasive such that they cannot be reasonably mitigated and must be Start Printed Page 33396eliminated in their entirety, as we believe they create too strong of an incentive for the associated persons to make a recommendation that places their financial or other interest ahead of the interest of retail customers' interests and therefore would be inconsistent with Regulation Best Interest.[795]

The requirement is designed to eliminate sales contests, sales quotas, bonuses and non-cash compensation that are based on the sales of specific securities and specific types of securities within a limited period of time. We believe that these practices, particularly when coupled with a time limitation, create high-pressure situations for associated persons to engage in sales conduct contrary to the best interest of retail customers. For purposes of this requirement, we interpret non-cash compensation to mean any form of compensation received in connection with the sale and distribution of specific securities or specific types of securities that is not cash compensation, including but not limited to merchandise, gifts and prizes, travel expenses, meals and lodging except we do not intend it to cover certain employee benefits, including healthcare and retirement benefits.[796] We recognize that some associated persons may focus their business on certain general categories of securities (e.g., mutual funds, variable annuities, bonds, or equities) and that broker-dealers may provide compensation or other incentives related to such sales. As discussed further herein, this requirement is not designed to prohibit broker-dealers from providing such incentives, provided that they do not create high-pressure situations to sell a specifically identified type of security (e.g., stocks of a particular sector or bonds with a specific credit rating) within a limited period of time, such that the associated person cannot make a recommendation in the retail customer's best interest.

We believe the conflicts created by these practices are in direct opposition to our goal of reducing the effect of conflicts of interest on broker-dealer recommendations to retail customers.[797] We agree with many commenters that broker-dealers cannot reasonably be expected to make recommendations in a particular retail customer's best interest consistent with the requirements of the Care Obligation, if they are motivated to “push” certain securities or types of securities in order to win a contest or reach a target in order to receive a bonus or other non-cash compensation. We are also persuaded that it would be difficult, if not impossible, for a firm to establish reasonably designed policies and procedures to sufficiently mitigate the incentive created to put the broker-dealer's interest ahead of the retail customer's interest, as discussed above, as the point of these practices is simply to increase the sale a particular security or type of security, for example, in the context where a broker-dealer is attempting to reduce its inventory of or exposure to that security. Accordingly, we believe that these practices should be eliminated in order to enhance investor protection [798] and achieve the goals of Regulation Best Interest.

By explicitly requiring broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to eliminate certain practices, we believe we are responding to commenters who requested certainty as to which specific incentives are prohibited.[799] Also in response to commenters requesting clarification as to what practices would be permitted, the requirement to have reasonably designed written policies and procedures to eliminate sales contests, sales quotas, bonuses, and non-cash compensation applies only to those that are based on the sales of specific securities or types of securities, and does not apply to compensation practices based on, for example, total products sold, or asset growth or accumulation,[800] and customer satisfaction. In addition, this elimination requirement would not prevent firms from offering only proprietary products, placing material limitations on the menu of products, or incentivizing the sale of such products through its compensation practices, so long as the incentive is not based on the sale of specific securities or types of securities within a limited period of time.[801] While conflicts of interest are also associated with sales contests, sales quotas, bonuses and non-cash compensation that apply to, among other things, total products sold, or asset accumulation and growth, we agree with commenters [802] these conflicts present less risk that the incentive would compromise compliance with the Care Obligation and Conflict of Interest Obligation such that a recommendation could be made that is in a retail customer's best interest and that does not place the place the interest of the broker-dealer or associated person ahead of the interest of the retail customer.

We also recognize that certain production requirements may exist for other reasons, specifically to maintain a contract of employment.[803] As discussed above, we do not intend to prohibit the receipt of certain employee benefits by statutory employees, and do not believe this provision would apply, as we do not consider these benefits to be non-cash compensation for purposes of Regulation Best Interest. In addition, we do not intend to prohibit training or education meetings, including attendance at company-sponsored meetings such as annual conferences,[804] provided that these meetings are not based on the sale of specific securities Start Printed Page 33397or type of securities within a limited time period.

We emphasize that prohibiting certain incentives does not mean that all other incentives are presumptively compliant with Regulation Best Interest. As discussed above, such other incentives and practices that are not explicitly prohibited are permitted provided that the broker-dealer establishes reasonably designed policies and procedures to disclose and mitigate the incentive created, and the broker-dealer and its associated persons comply with the Care Obligation. Nevertheless, if the firm determines that the conflicts associated with these practice are too difficult to disclose and mitigate, the firm should consider carefully assessing whether it is able to satisfy its best interest obligation in light of the identified conflict and in certain circumstances, may wish to avoid such practice entirely.

4. Compliance Obligation

As proposed, under the Conflict of Interest Obligation, a broker-dealer entity [805] would be required to: (1) Establish, maintain, and enforce written policies and procedures reasonably designed to identify, and disclose, or eliminate all material conflicts of interest associated with recommendations covered by Regulation Best Interest; and (2) establish, maintain and enforce written policies and procedures reasonably designed to identify and disclose and mitigate, or eliminate, material conflicts of interest arising from financial incentives associated with such recommendations. As discussed above, in response to commenters, we have made modifications to the Conflict of Interest Obligation to more appropriately focus on the conflicts of interest that create an incentive for broker-dealers and their associated persons to place the interest of the broker-dealer or the associated person ahead of the interest of the retail customer.

We solicited comment on the proposed requirement to establish, maintain, and enforce certain policies and procedures as part of the Conflict of Interest Obligation, including whether we should require policies and procedures specifically to assist compliance with Regulation Best Interest. While commenters generally viewed the requirement to adopt policies and procedures as an effective means of addressing conflicts of interest,[806] some commenters suggested broadening this requirement to a general policies and procedures obligation that would be reasonably designed to ensure that recommendations are made in the customer's best interest or reasonably designed to ensure compliance with Regulation Best Interest as a whole.[807]

After considering the comments received, we are adopting the Compliance Obligation, which requires, in addition to the policies and procedures required by the Conflict of Interest Obligation, that broker-dealer entities [808] establish, maintain and enforce written policies procedures reasonably designed to achieve compliance with Regulation Best Interest. The Compliance Obligation creates an affirmative obligation under the Exchange Act with respect to the rule as a whole,[809] while providing sufficient flexibility to allow broker-dealers to establish compliance policies and procedures that accommodate a broad range of business models.[810] The Commission believes that the Compliance Obligation is important to help ensure that broker-dealers have strong systems of controls in place to prevent violations of Regulation Best Interest, including the component Disclosure and Care Obligations, in addition to the policies and procedures required pursuant to the Conflict of Interest Obligation, and to protect the interests of retail customers.[811]

As with the policies and procedures requirement included in the Conflict of Interest Obligation, whether policies and procedures are reasonably designed to comply with Regulation Best Interest will depend on the facts and circumstances of a given situation.[812] As such, the Compliance Obligation does not enumerate specific requirements that broker-dealers must include in their policies and procedures as broker-dealers are too varied in their operations for rules to impose a single set of universally applicable specific required elements. Each broker-dealer when adopting policies and procedures should consider the nature of that firm's operations and how to design such policies and procedures to prevent violations from occurring, detect violations that have occurred, and to correct promptly any violations that have occurred.[813]

A firm's compliance policies and procedures should be reasonably designed to address and be proportionate to the scope, size, and risks associated with the operations of the firm and the types of business in which the firm engages.[814] As such, the Commission is not mandating specific requirements pursuant to the Compliance Obligation. In addition to the required policies and procedures, depending on the size and complexity of the firm, we believe a reasonably designed compliance program generally Start Printed Page 33398would also include: [815] Controls; remediation of non-compliance; [816] training; [817] and periodic review and testing.[818]

D. Record-Making and Recordkeeping

In connection with proposed Regulation Best Interest, we proposed new record-making and recordkeeping requirements for broker-dealers with respect to certain information collected from or provided to retail customers. Specifically, we proposed amendments to Exchange Act Rules 17a-3 and 17a-4, which specify minimum requirements with respect to the records that broker-dealers must make, and how long those records and other documents must be kept, respectively. We received several comments on the proposed new requirements and are adopting them substantially as proposed with additional clarifications and guidance to address commenters' concerns.

We proposed amending Rule 17a-3 [819] to add a new paragraph (a)(25), which would require, for each retail customer to whom a recommendation of any securities transaction or investment strategy involving securities is or will be provided, a record of all information collected from and provided to the retail customer pursuant to Regulation Best Interest, as well as the identity of each natural person who is an associated person of a broker or dealer, if any, responsible for the account. The new paragraph would specify that the neglect, refusal, or inability of a retail customer to provide or update any such information would excuse the broker-dealer from obtaining that information.

We are adopting the provision substantially as proposed but redesignating it as new paragraph (a)(35) of Rule 17a-3.[820] We are also amending the text of paragraph (ii) of the amendment as adopted to refer to “any information described in paragraph (a)(35)(i) of this section” rather than the proposed “any information required under paragraph (a)(25)(i) of this section.” This is a non-substantive change reflecting the fact that paragraph (i) of the new provision requires a record of the information collected from a retail customer by the broker-dealer pursuant to Regulation Best Interest; it does not require the information itself directly as implied by the original wording of paragraph (i) of the proposed amendment. It is therefore more accurate to refer in paragraph (ii) to the information “described in,” rather than “required under,” paragraph (i), as well as to update the reference in paragraph (ii) to “paragraph (a)(35)(i) of this section.”

Several commenters expressed concern that the proposed rule amendment would significantly expand recordkeeping requirements.[821] One commenter expressed concern that the record retention requirements of the proposed new paragraph to Rule 17a-3 would apply to each recommendation made by the broker-dealer rather than to each account (as required by existing paragraph (a)(17) of Rule 17a-3, which operates on a per-account basis). Another commenter requested clarification that “the current books and records requirement is sufficient to meet record-keeping requirements to satisfy Reg BI,” adding that the Commission should “affirm that Reg BI does not create new record-keeping requirements to prove that an advisor acted in a client's best interest.” [822]

The Commission notes that the proposed new requirements of Rule 17a-3 are not designed to create additional, standalone burdens for broker-dealers but instead to provide a means by which they can demonstrate, and Commission examiners can confirm, their compliance with the new substantive requirements of Regulation Best Interest. In response to commenter concerns that the proposed requirements would significantly expand their recordkeeping obligations, we reiterate that, as stated in the Proposing Release, broker-dealers should already be attempting to collect much of the information that would be required under Regulation Best Interest pursuant to the FINRA suitability rule and existing Exchange Act books and records rules. For example, we note that under existing Rule 17a-3(a)(17), broker-dealers that make recommendations for accounts with a natural person as customer or owner are already required to create and periodically update customer account information, although as part of developing a “retail customer's investment profile,” Regulation Best Interest may require broker-dealers to seek to obtain certain retail customer information that is currently not required by Rule 17a-3(a)(17).[823] In addition, Regulation Best Interest would require broker-dealers to disclose in writing the material facts relating to the scope and terms of their relationship with the retail customer and the material facts relating to conflicts of interest that are associated with the investment recommendations provided to the retail customer. As such, it would not be accurate to state, as suggested by the commenter, that the Commission's current books and records requirements for broker-dealers are sufficient to meet recordkeeping requirements to satisfy Regulation Best Interest. The additional books and records requirements the Commission is adopting today are designed to allow firms to demonstrate compliance with the substantive requirements of Regulation Best Interest.

We further note that the new record-making requirements would not require the duplication of existing records. Rather, if a broker-dealer relied upon previously existing records to demonstrate its compliance with Regulation Best Interest for a given recommendation, it would not be required to create and preserve duplicate copies but instead could create a new record noting which pre-existing documents were provided to the customer, or what customer information already being preserved by the broker-dealer was relied upon, to meet the obligations of Regulation Best Interest. However, reliance upon previously existing records would only be permissible so long as such records are preserved—a record noting that a document was relied upon would no longer meet the recordkeeping obligations of Regulation Best Interest if such document was no longer preserved by the broker-dealer.

Commenters also requested that the Commission limit new recordkeeping requirements to customer profile information itself, not the “related and Start Printed Page 33399underlying communications.” [824] In response to these concerns, the Commission clarifies that new paragraph (a)(35) of Rule 17a-3 as adopted requires a record of all information collected from and provided to the retail customer pursuant to Regulation Best Interest. Regulation Best Interest does not reference, and the Commission does not intend that it require, “related and underlying communications”—rather, it applies only to the information that is actually provided to or obtained from the customer pursuant to Regulation Best Interest. Once again, the purpose of the new record-making provision is to allow broker-dealers to demonstrate their compliance with the substantive requirements of Regulation Best Interest. Complying with those substantive requirements will require broker-dealers to obtain from and provide to customers certain information, and new paragraph (a)(35) of Rule 17a-3 requires a record of such information. In response to comments received requesting clarification as to whether information provided to or obtained from a customer orally would be covered by the new record-making requirements,[825] the Commission clarifies that the requirements of new paragraph (a)(35) of Rule 17a-3 apply to all information collected from or provided to a retail customer pursuant to Regulation Best Interest, whether provided orally or in writing (electronically or otherwise).[826]

Several commenters requested clarification that, except with respect to the specific recordkeeping requirements in the rule text, Regulation Best Interest does not require additional records (e.g., records to evidence best interest determinations on a recommendation-by-recommendation basis).[827] One commenter also stated that, as drafted, there are significant obstacles and costs, including increased privacy and cybersecurity risks, that would result from implementing the proposed new rule, in particular with respect to the “all information collected from . . . . the retail customer” requirement.[828]

In response, the Commission clarifies that while the substantive requirements of Regulation Best Interest apply on a recommendation-by-recommendation basis, consistent with our approach elsewhere, we are not requiring that broker-dealers create and maintain records to evidence best interest determinations on a recommendation-by-recommendation basis. Nor have we determined to require broker-dealers to provide information to retail customers relating to the basis for each particular recommendation (i.e., disclose such information), and thus did not envision this information to come within the scope of Rule 17(a)(35).

Rather, in order to demonstrate compliance with Regulation Best Interest, a broker-dealer must be able to demonstrate that it had a reasonable basis to believe that each particular recommendation made to a retail customer was in the best interest of the customer at the time of the recommendation based on the customer's investment profile and the potential risks, rewards, and costs associated with the recommendation. As noted above, the Commission does not intend this to require, in practice, the creation of extensive new and potentially duplicative records for each and every recommendation to a retail customer. Instead, broker-dealers should be able to explain in broad terms the process by which the firm determines what recommendations are in its customers' best interests, and similarly to explain how that process was applied to any particular recommendation to a retail customer. However, we are not mandating that broker-dealers create and maintain a record of each such determination. Nonetheless, as noted above we are providing guidance suggesting that firms may wish to adequately document an evaluation of a recommendation and the basis for that recommendation in particular contexts, such as the recommendation of a complex product, or where a recommendation may seem inconsistent with a retail customer's investment objectives on its face.[829]

In addition, in response to requests from commenters for confirmation that the proposed record-making requirements do not contemplate broker-dealers needing to create and maintain records of why certain products were recommended over others on a recommendation-by-recommendation basis,[830] we confirm that broker-dealers are not expected to maintain records comparing potential investments to one another so long as they are able to demonstrate that each individual recommendation actually made to a customer meets the requirements of Regulation Best Interest on its own. Regulation Best Interest applies to recommendations made to a retail customer, rather than to potential recommendations considered by the broker-dealer but not actually made to the customer.

In response to the commenter's privacy and cybersecurity concerns with respect to the proposed requirement to make a record of all information collected from the customer pursuant to Regulation Best Interest, as noted in the Proposing Release [831] and Section II.C above, although a broker-dealer's customer obligations under Regulation Best Interest (e.g., the Care Obligation) go beyond those set forth in the FINRA's suitability rule, the concept of the “customer's investment profile” that a broker-dealer would be required to compile—that is, the customer information it would be required to obtain—pursuant to Regulation Best Interest is consistent with that under FINRA's suitability rule. As such, we believe that since broker-dealers are already required to seek to obtain identical types of retail customer information pursuant to the FINRA suitability rule, broker-dealers should already have in place policies and procedures, including training programs, to address such privacy and cybersecurity concerns.

We also proposed an amendment to paragraph (e)(5) of Rule 17a-4, which currently requires broker-dealers to maintain and preserve in an easily accessible place all account information required by paragraph (a)(17) of Rule 17a-3 for at least six years after the earlier of the date the account was closed or the date on which the information was replaced or updated.[832] The proposed amendment would require broker-dealers to retain any information that the retail customer provides to the broker-dealer or the broker-dealer provides to the retail customer pursuant to the proposed amendment to Rule 17a-3 being adopted today as Rule 17a-3(a)(35), in addition to the existing requirement to retain information obtained pursuant to Rule 17a-3(a)(17). As a result, broker-dealers would be required to retain all records of the information collected from or provided to each retail customer pursuant to Regulation Best Interest for at least six years after the earlier of the date the account was closed or the date Start Printed Page 33400on which the information was replaced or updated. The Commission is adopting this amendment to Rule 17a-4(e)(5) substantially as proposed, with the proposed reference to paragraph (a)(25) of Rule 17a-3 replaced with a reference to paragraph (a)(35) to reflect the redesignation of the latter new rule provision as discussed above.

The Commission received several comments regarding the proposed amendment to Rule 17a-4 requesting clarification as to what communications would be required to be retained pursuant to the proposed rule amendment beyond those already required to be retained by existing paragraph (b)(4) of Rule 17a-4.[833] Rule 17a-4(b)(4) requires broker-dealers to retain originals of all communications received and copies of all communications sent by the broker-dealer relating to its business as such for a period of not less than three years, the first two in an easily accessible place.

In response, the Commission notes that while the records that a broker-dealer would be required to make in connection with Regulation Best Interest under new paragraph (a)(35) of Rule 17a-3 may be “business as such” records, the Commission believes it is important, including for examination purposes, that broker-dealers separately retain records that specifically demonstrate compliance with Regulation Best Interest and new paragraph (a)(35) of Rule 17a-3 rather than simply including them in the much broader “business as such” category required to be retained under Rule 17a-4(b)(4). Rule 17a-3(e)(5) currently serves the purpose of allowing broker-dealers to demonstrate compliance with the customer information records required to be made pursuant to Rule 17a-3(a)(17), and the amendment to Rule 17a-3(e)(5) being adopted today will serve the same purpose with respect to records required to be retained by broker-dealers to demonstrate compliance with Regulation Best Interest and new paragraph (a)(35) of Rule 17a-3.

Finally, as noted in the Proposing Release, the written policies and procedures that broker-dealers will be required to create pursuant to Regulation Best Interest are already currently required to be retained pursuant to Exchange Act Rule 17a-4(e)(7),[834] which requires broker-dealers to retain compliance, supervisory, and procedures manuals (and any updates, modifications, and revisions thereto) describing the policies and practices of the broker-dealer with respect to compliance with applicable laws and rules, and supervision of the activities of each natural person associated with the broker-dealer, for a specified period of time. As such, we did not propose, and are not adopting, any additional recordkeeping requirements with respect to the written policies and procedures that broker-dealers will be required to create pursuant to Regulation Best Interest.

E. Compliance Date

We are providing a compliance date of June 30, 2020, consistent with the transition provisions described in the Relationship Summary Adopting Release.[835] In light of the importance of the protections provided by Regulation Best Interest, we believe that this compliance date will provide adequate notice and opportunity for broker-dealers to comply with Regulation Best Interest, including by creating or updating the necessary disclosures and to developing, updating or establishing their policies and procedures and systems, as appropriate, to achieve compliance with Regulation Best Interest. On and after the Compliance Date, broker-dealers that provide recommendations of securities transactions or investment strategies that register with the Commission would be required to comply with Regulation Best Interest as of the date of registration.

While most commenters requested an implementation period of 18-24 months,[836] one commenter requested an implementation period of 12-18 months.[837] We believe the operational capability needed to develop processes to comply with Regulation Best Interest is sufficiently established by firms of all sizes and resources. While we understand commenters' requests for periods longer than 12 months after effectiveness, the Commission has determined, in light of the importance of the protections afforded by Regulation Best Interest to retail customers, that a Compliance Date of one year after effectiveness is an appropriate timeframe for firms to conduct the requisite operational changes to their systems to establish internal processes to comply with Regulation Best Interest.[838]

The Commission also believes that it is important to coordinate the transition dates of the Relationship Summary requirements with those of Regulation Best Interest to ensure that all retail investors receive the full suite of protections and benefits afforded by the amended and new rules. Finally, the Commission staff intends to offer firms significant assistance and support during the transition period and thereafter with the aim of helping to ensure that the investor protections and other benefits of the final rule are implemented in an efficient and effective manner.

III. Economic Analysis

A. Introduction and Primary Goals of the Regulation, Comments on Market Failure and Quantification, and Broad Economic Considerations

1. Introduction and Primary Goals of the Regulation

Regulation Best Interest enhances the broker-dealer standard of conduct beyond existing suitability obligations and aligns the standard of conduct with retail customers' reasonable expectations.

Under Regulation Best Interest, broker-dealers and their associated persons will be required to act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealer or an associated person making the recommendation ahead of the interests of the retail customer. They also will be required to address conflicts of interest by establishing, maintaining, and enforcing policies and procedures reasonably designed to identify and fully and fairly disclose material facts about conflicts of interest, and in instances where the Commission has determined that disclosure is insufficient to reasonably address the conflict, to mitigate or, in certain instances, eliminate the conflict. As a result, Regulation Best Interest should enhance the efficiency [839] of recommendations that broker-dealers provide to retail customers, allow retail customers to better evaluate the recommendations received, improve retail customer protection when Start Printed Page 33401receiving recommendations from broker-dealers, and, ultimately, reduce agency costs [840] and other costs. Importantly, Regulation Best Interest is designed to preserve, to the extent possible, (1) access and choice for investors who may prefer the transaction-based model that broker-dealers generally provide, or the fee-based model that investment advisers generally provide, or a combination of both types of arrangements, and (2) retail customer choice of the level and types of services provided and the securities available. For example, retail customers who intend to buy and hold a long-term investment on a non-discretionary basis may find that paying a one-time commission to a broker-dealer who recommends such an investment is more cost effective than paying an ongoing advisory fee to an investment adviser merely to hold the same investment.[841] Retail customers who would prefer advisory accounts but have not yet accumulated sufficient assets to qualify for investment advisory accounts, which may require customers to have a minimum amount of assets, may similarly benefit from recommendations from broker-dealers. Other retail customers who hold a variety of investments, or prefer different levels of services from financial professionals, may benefit from having access to both brokerage and advisory accounts.

The Commission is mindful of the costs imposed by, and the benefits obtained from our rules. Whenever the Commission engages in rulemaking under the Exchange Act and is required to consider or determine whether an action is necessary or appropriate in the public interest. Section 3(f) of the Exchange Act also requires the Commission to consider, in addition to the protection of investors, whether the action would promote efficiency, competition, and capital formation.[842] Also, when making rules pursuant to the Exchange Act, S the Commission is required under Section 23(a)(2) to consider, among other matters, the impact any rule would have on competition and is prohibited from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.[843] The following analysis considers, in detail, the economic effects that the Commission believes are likely to or may result from Regulation Best Interest. The analysis includes consideration of the benefits and costs to retail investors and broker-dealers, and also takes into account the broader implications of Regulation Best Interest for efficiency, competition, and capital formation.

Where possible, the Commission has sought to quantify the likely economic effects of Regulation Best Interest. The Commission is providing both a qualitative assessment and quantified estimates of the potential effects of Regulation Best Interest, where feasible. The Commission has incorporated data and other information provided by commenters to assist it in the analysis of the economic effects of Regulation Best Interest.[844] However, as explained below in more detail, because the Commission does not have, has not received, and, in certain cases, does not believe it can reasonably obtain data that may inform on certain economic effects, the Commission is unable to quantify certain economic effects. The Commission further notes that even in cases where it has some data or it has received some data regarding certain economic effects, the quantification of these effects is particularly challenging due to the number of assumptions that it would need to make to forecast how broker-dealers will respond to Regulation Best Interest, and how those responses will, in turn, affect the broader market for investment advice and the retail customers' participation in financial markets.

2. Broad Economic Considerations

Investors generally derive utility from consuming goods and services over their lifetime and from bequeathing wealth to others.[845] The amount of goods and services that an investor can consume or the amount of wealth the investor can bequeath is limited by the value of the resources available to the investor over his or her lifetime. These resources generally vary across market and economic conditions and over time. An investor generally seeks to allocate his or her resources across market and economic conditions and over time to achieve the highest expected utility possible over his or her lifetime. For example, an investor may decide to save, and therefore allocate, a proportion of his or her wages to maximize his or her expected utility from bequeathing wealth toward his or her children's future education.

Capital markets facilitate this allocation and reallocation of resources. An investor can allocate available resources across financial assets available to them in the capital markets, such that these resources become available to the investor at the times, and in the market and economic conditions, when he or she needs them. There may be many combinations of financial assets or investment strategies that achieve an investor's allocation goals, but each of these strategies may not necessarily provide the investor with the same benefits or cause the investor to bear the same costs. The expected benefit of allocating resources to an investment strategy depends on the expected utility to the investor from the expected payoff of the strategy and from whether this strategy pays off in the market and economic conditions and at the times that the investor cares about. Importantly, the various costs of allocating resources to any strategy reduce the resources available for consumption and saving.

A rational investor seeks out investment strategies that are efficient in the sense that they provide the investor with the highest possible expected net benefit, in light of the investor's investment objective that maximizes expected utility.[846] From the discussion above, an efficient investment strategy may depend on the investor's utility from consumption, including: (1) His or her risk tolerance; (2) time available for the funds to be invested, and not consumed; (3) the resources that the investor has currently available (e.g., current wealth) or anticipates to become available at some point in the future (e.g., future income); and (4) the cost to the investor of implementing the strategy. An investor's efficient investment strategy may change over time because the investor's preferences, as well as market conditions and investment performance, may change over time.

In general, a typical investor may not have the knowledge or the time to identify efficient strategies on his or her own. In addition, investors may be limited in their access to information and their human computational capacity when evaluating choices.[847] As Start Printed Page 33402an alternative to attempting to identify efficient strategies on his or her own, an investor may solicit advice from financial professionals.

While there are many types of financial professionals [848] that can provide advice related to a retail customer's finances, we focus here (and in Regulation Best Interest) on a type of professional that retail customers commonly access, namely broker-dealers and their associated persons.

A broker is any person engaged in the business of effecting transactions in securities for the account of others.[849] A dealer is any person engaged in the business of buying and selling securities for its own account, through a broker or otherwise.[850] Within the scope of these definitions, a “broker-dealer” (or, a firm that fits both definitions) may offer a wide variety of services to retail customers. These services include buying and selling securities for the retail customer as well as providing limited personalized investment advice in the form of recommendations of whether or not to engage in securities transactions or investment strategies involving securities.[851]

Federal securities laws and SRO rules govern broker-dealers' conduct of business. Among other things, they require that a broker-dealer or associated person “have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through the reasonable diligence of the [firm] or associated person to ascertain the customer's investment profile.” [852] While a suitable recommendation must take into account the elements of a retail customer's investment profile that make securities transactions or an investment strategy efficient for that particular retail customer, this requirement for suitability may not lead to an efficient result for the retail customer.

The efficiency of a recommendation to a retail customer may depend on: (1) The menu of securities transactions and investment strategies the broker-dealer or its associated persons considers and makes available to the retail customer; (2) the return distribution and the costs of these securities transactions and strategies; (3) the associated person's understanding of these investment options and the retail customer's objectives, such as the retail customer's risk tolerance and time preference; and (4) the retail customer's resource constraints.

A recommendation provided by an associated person of the broker-dealer may be influenced by the conflicts of interest that the associated person may have or the conflicts of interest that the broker-dealer may have at the time of the recommendation. These conflicts can arise as a result of how broker-dealers generate revenue from various securities or investment strategies that they make available to retail customers and how broker-dealers compensate their associated persons for providing recommendations to retail customers. In the United States, broker-dealers may earn transaction-based compensation that is commonly paid either directly by the retail customer (e.g., commissions and markups or markdowns) or indirectly through the investment sponsor (e.g., 12b-1 fees or revenue sharing). Broker-dealers may compensate their associated persons that provide recommendations to retail customers with a portion of the commissions and markups or markdowns these persons generate through their recommendations. Such financial incentives can vary depending on the investment product line, account type, or other factors (e.g., amount of customer assets brought into the broker-dealer or revenue generated from customer accounts).

A retail customer generally chooses to accept or reject a recommendation supplied by the associated person of the broker-dealer.[853] Some retail customers may base their decisions on an assessment of whether the recommendations they receive would result in securities transactions or investment strategies that are efficient for them. These customers' assessment may depend on factors such as their perception of the associated person's ability to properly understand and account for the customer's objectives, any information they have about the associated person's or firm's conflicts of interest with respect to that recommendation, and the extent to which these conflicts are expected to result in less than efficient recommendations for the retail customer. However, other retail customers may rely in full or in part on factors less directly related to the recommendation at hand. Instead, they might rely on factors such as their level of trust with the associated person or firm, and in certain circumstances might be inclined to simply accept all of the associated person's recommendations without evaluating for themselves whether the recommendations are efficient.[854]

As noted above, broker-dealers or their associated persons may have conflicts of interest that could influence their recommendations to retail customers at the time when they are provided.

A retail customer's choice to accept a particular recommendation often directly affects the compensation that an associated person or broker-dealer itself receives. For example, an associated person may receive greater compensation from selling certain securities or strategies relative to other securities or strategies. Differences in compensation across the securities or strategies offered by a broker-dealer may add complexity to an associated person's incentives and may create conflict between the interests of the associated person, who desires to maximize his or her compensation, and the interests of the retail customer, who expects the recommended transaction to be efficient for him or her.

In general, this conflict of interest may result in a broker-dealer recommending securities or investment strategies that are less efficient for the retail customer. For instance, the recommended securities or strategies may be enhancing the associated person's compensation at the expense of the retail customer. Put another way, because of the financial incentives, broker-dealers and their associated Start Printed Page 33403persons may be motivated to recommend certain types or quantities of securities or strategies, and those recommendations may place the interests of the broker-dealer or its associated persons ahead of the interests of the retail customer, which may not result in the retail customer maximizing his or her expected net benefit. An inefficient recommendation may lead to various results for the retail customer, including inferior investment outcomes, such as risk-adjusted expected returns that are lower relative to other similar investments or investment strategies.

A retail customer may accept a recommendation that is less efficient if he or she is unable to assess correctly the efficiency of the recommendation.

The difference between the net benefit to the retail customer from accepting a less than efficient recommendation about a securities transaction or investment strategy, where the associated person or broker-dealer puts its interests ahead of the interests of the retail customer, and the net benefit the retail customer might expect from a similar securities transaction or investment strategy that is efficient for him or her, as defined above, is an agency cost.[855] As discussed in the Proposing Release and above, this agency cost arises because of the conflicts of interest of the broker-dealer and its associated persons, and the differences between the information sets available to the broker-dealer and the retail customer at the time of the recommendation.

In certain principal-agent relationships, the principal may be able to reduce the agency costs that he or she is facing in various ways, including by structuring the agent's compensation in a way that better aligns the interest of the agent with that of the principal.[856] A feature of the agency relationship between a retail customer (the principal) and a broker-dealer (the agent) that is common in many principal-agent relationships (including the investment adviser-client relationship) is that the retail customer generally does not have full transparency about the agent's compensation for providing advice and the sources of the agent's compensation. Thus, the retail customer, through the decision to accept or reject a recommendation received, has generally limited understanding of and control over the compensation that the broker-dealer and its associated person obtains from providing the recommendation. These limitations restrict the retail customer's ability to reduce the agency costs that he or she is facing.

We also recognize that even if the retail customer were to have full transparency about the broker-dealer's and its associated person's compensation from providing advice, the retail customer's ability to reduce the agency costs may be constrained in other ways. For example, if the menu of securities from which the associated person of the broker-dealer offers recommendations is limited, the retail customer's and the associated person's ability to identify and select a more efficient investment may be constrained.

Different retail customers may face different agency costs depending on whether they base their decision to act on a recommendation on an assessment of the efficiency of the recommendation. Specifically, as noted above, a retail customer that evaluates and uses a recommendation received based on an assessment about the efficiency of that recommendation may be more successful in identifying and controlling, albeit in a limited fashion, the compensation that the broker-dealer and its associated person receive from the recommendation—such as by being more likely to reject a less than efficient recommendation—compared to a retail customer that makes this decision without forming an assessment of the efficiency of the recommendation. Thus, the agency costs may be higher for those retail customers that make their decision of whether to act on a recommendation received without an assessment of the efficiency of the recommendation.

While the discussion above focuses on the actions that the principal (i.e., the retail customer) can take to reduce the agency costs that he or she is facing, the agent can also take actions to reduce the agency costs to the principal. For example, in the agency paradigm, when the principal may forgo sharing a potentially large surplus with the agent because of the high agency costs, the agent may have an incentive to structure the terms of the relationship in a way that reduces the agency costs to the principal.[857] In the agency relationship between a retail customer and a broker-dealer, given the features of the compensation that the broker-dealer and its associated persons receive for providing recommendations (e.g., this compensation does not depend on the value of the assets in a principal's account), the broker-dealer and its associated persons may not have sufficient incentive to take actions voluntarily that would reduce agency costs to the retail customer, such as voluntarily increasing transparency with respect to compensation.[858]

Although the dynamics of the agency relationship between a retail customer and a broker-dealer may not cause the broker-dealer to take steps to increase transparency, competitive factors in the broker-dealer industry such as steps toward transparency taken by other broker-dealers may cause increased transparency in that relationship. Competitive dynamics are more effective in areas where comparisons can be more easily made. For example, in the market for mutual funds —particularly index funds—comparability and competition, among other factors, have driven down fees significantly.[859]

Start Printed Page 33404

While we do not have evidence to establish the degree to which broker-dealers can extract large informational rents from retail customers under the current legal and regulatory regime that governs the broker-dealers' standard of conduct, the existing agency costs of the relationship between the retail customer and the broker-dealer would likely be larger, absent the current legal and regulatory regime.[860] In general, standards and regulation are effective means of reducing agency costs when principals (e.g., retail customers) and agents (e.g., broker-dealers) cannot reduce the agency costs on their own by negotiating to address the market frictions in their relationship through mechanisms available to them, such as bilateral contracting [861] or “side payments.” [862]

Regulation Best Interest enhances the current standard of conduct for broker-dealers and codifies it in an Exchange Act rule. Regulation Best Interest is designed to: (1) Enhance the current standard of conduct applicable to broker-dealers and associated persons when they make a recommendation to a retail customer of any securities transaction or investment strategy involving securities; (2) reduce conflicts of interest that currently exist between retail customers and broker-dealers and their associated persons; and (3) reduce information asymmetries that currently limit the ability of retail customers to evaluate the efficiency of recommendations they receive from broker-dealers and their associated persons. In each of these three ways, Regulation Best Interest is designed to reduce the agency costs in the relationship between broker-dealers and their retail customers, including in situations where the existing legal and regulatory regime that governs broker-dealers' standard of conduct has had limited effectiveness.

3. Comments on Market Failure of the Principal-Agent Relationship and Quantification; Comments That the Broker-Dealer, Commission-Based Model Should Be Severely Restricted or Eliminated

The economic analysis in the Proposing Release characterized the relationship between a retail customer and a broker-dealer as one between a principal (the retail customer) and an agent (the broker-dealer).[863] The analysis noted that the potential conflict between interests and the differences between the information sets available to the agent and the principal may result in agency costs. It further noted that the inability of the broker-dealers and retail customers to overcome the market frictions underlying these agency costs may result in inefficient allocations of resources. An inability of the principal and the agent to efficiently negotiate around the frictions that produce agency costs and take actions that would increase the efficiency of their allocations is what economists refer to as a “market failure” of the principal-agent relationship,[864] generally, and of the agency relationship between the retail customer and the broker-dealer, specifically.[865]

The analysis in the Proposing Release recognized that while the Commission cannot provide a quantified estimate of the magnitude of this agency cost, the existence of these costs and their persistence justifies regulatory intervention.[866]

A number of commenters questioned this approach. Certain of these commenters stated that the Commission needs to more fully identify the market failure that needs to be addressed, and certain commenters stated that the Commission did not provide a quantitative assessment of the severity of the market failure that would prompt the need for regulatory intervention.[867] We address these concerns below.

With respect to the issue of appropriately identifying the market failure, one commenter questioned whether the relationship between the retail customer and the broker-dealer is a principal-agent relationship.[868] This commenter stated that in many instances, a broker-dealer's provision of recommendations to a retail customer resembles an arm's length transaction (e.g., purchasing a car) that benefits the more informed broker-dealer at the expense of the less informed retail customer. This commenter disagreed with the Commission's broader view that the market failure stems from the agency costs of the relationship between Start Printed Page 33405a broker-dealer and a retail customer,[869] and instead stated that the market failure is due to conflicts of interest caused by the way broker-dealers and their associated persons are generally compensated for providing recommendations to retail customers.[870] Similarly, another commenter stated that the Commission failed to discuss how the current compensation practices associated with providing recommendations to retail customers creates incentives for the broker-dealer and its associated persons to favor one securities transaction or investment strategy over another when making recommendations to retail customers.[871] This commenter further questioned whether the information asymmetry and the discrepancy in the level of financial sophistication between broker-dealers and their retail customers constitute a market failure.[872] One commenter noted that the poor performance of actively managed funds that are being recommended by broker-dealers to small retail customers reflects a principal-agent problem that causes an “enormous” wealth transfer from retail customers to the financial industry, including broker-dealers.[873] This commenter stated that this problem arises because of the broker-dealer's commission-based compensation for providing recommendations and because of the information asymmetries between the broker-dealer and the retail customer at the time of the recommendation.[874] This commenter also stated that recommendations subject to conflicts of interest may have no value for retail customers.[875]

As an initial matter, in response to comments regarding the need to discuss fully the existing market failure, it is important to recognize that the Commission has been studying and carefully considering the issues related to the broker-dealer-client relationship and the related standard of conduct for broker-dealers for many years, which led to the development of the Proposing Release and the economic analysis therein.[876] In light of the comments on the Proposing Release, the extensive outreach by the Commission and staff, as well as investor testing, the Commission has more specifically and fully described the relationship between the broker-dealer and the client, the related market failure, and the resulting potential economic effects of Regulation Best Interest in addressing the market failure.[877]

The Commission continues to believe that agency costs are at the root of existing allocative inefficiencies in the market for broker-dealer advice. Moreover, this economic analysis recognizes that a proper understanding of the economic fundamentals of an investor's decision to allocate resources across market and economic conditions and over time is central to identifying the frictions that cause inefficiencies in the agency relationship between a broker-dealer and a retail customer.

In response to the commenter that stated that in a principal-agent relationship agents do not receive compensation from third parties (e.g., investment sponsors), the Commission notes that the compensation that the investment sponsor provides to the agent is ultimately funded by the principal (i.e., the retail customer).[878] In addition, in response to the commenter's concern that a broker-dealer's provision of recommendations to retail customers resembles an arm's length transaction that is “no different from a car dealer soliciting interest in inventory,” [879] the Commission notes that under the current regulatory regime broker-dealers and their associated persons are subject to a suitability standard of conduct that has been interpreted to “be consistent with [the] customer's best interests.” [880] In contrast, in an arm's length transaction, the parties involved are generally not subject to a standard of conduct that would constrain the more informed party from acting solely in its own interest.[881] Finally, in response to the commenter's concern with respect to the identification of the market failure,[882] the Commission notes that while conflicts of interest arise in many types of transactions, in certain instances the parties involved can negotiate an arrangement between themselves that would reduce the effect of conflicts of interest on the allocation of resources across the parties and improve the efficiency of this allocation. The Commission further notes that agency costs may deter the parties from engaging in privately negotiated arrangements that would improve the efficiency of the allocation of resources between the parties. From this perspective, the Commission believes that it is the agency costs rather than the conflicts of interest themselves that should be viewed as the source of the market failure.

In response to the commenter that noted that the Commission did not discuss how the compensation received by the broker-dealer and its associated persons creates incentives to favor one security or investment strategy over another when making recommendations to retail customers,[883] the Commission has incorporated into this economic analysis a detailed discussion of the incentives created by the current compensation practices associated with providing recommendations to retail customers.[884] In addition, in response to the commenter's concerns about whether the information asymmetry and the discrepancy in the level of financial sophistication between retail customers and a broker-dealer and its associated persons are the source of market failure, the Commission notes that this economic analysis establishes a more Start Printed Page 33406clear link between bounded rationality, including access to information and financial literacy of retail customers, and agency costs, and reflects our conclusion that the agency costs are at the root of the market failure.

The Commission further notes that the so-called “informational rent” that a broker-dealer may be incentivized to extract from a retail customer to take advantage of the information asymmetry or the discrepancy in the level of financial sophistication is one component of the agency costs associated with the relationship between a retail customer and a broker-dealer. In addition, the Commission notes that the evidence on the size of the agency costs associated with such informational rents is limited.[885] This evidence is not generally supportive of a commenter's assessment that the wealth transfer from retail customers to broker-dealers is “enormous.” [886] The Commission agrees with this commenter, who stated that the way broker-dealers are compensated for providing recommendations and the information asymmetry between retail customers and broker-dealers are important determinants of the agency costs. However, based on the evidence discussed below, the Commission disagrees with this commenter's assessment that the advice provided by the associated persons of the broker-dealer has no value.[887]

With respect to the issue of measuring the severity of the market failure, some commenters stated that the Commission failed to take into account existing academic literature that provides evidence of investor harm caused by accepting advice from the associated persons of the broker-dealer. A subset of these commenters believed that the evidence provided in some of these academic studies is compelling and that the Commission should use it to quantify the severity of the market failure.[888] One commenter also urged the Commission to supplement the academic evidence on investor harm with evidence from data available to the Commission from regulatory oversight.[889]

In response to these comments, the Commission maintains that the existence of misconduct that commenters requested the Commission to document does not render the approach taken in Regulation Best Interest irrational, inappropriate, or unreasonable, nor does it suggest that an alternative approach would be more effective in fulfilling the Commission's mission. The Commission is aware and understands the concerns raised by the commenters with regards to the evidence on investor harm and the extent to which such evidence can inform on our understanding of the severity of the market failure in the market for broker-dealer advice. As discussed in the Proposing Release and reiterated in this economic analysis, the Commission believes that retail investors can be harmed when they accept recommendations from a broker-dealer that places the financial or other interest of the broker-dealer or its associated persons ahead of the interests of the retail customers. In addition, this economic analysis engages more fully with the economic literature on financial advice and considers these studies in analyzing the costs and benefits associated with Regulation Best Interest.[890]

B. Economic Baseline

This section discusses, as it relates to this rulemaking, the current state of the broker-dealer and investment adviser markets; the current regulatory environment and market practices surrounding the provision of recommendations by broker-dealers; evidence on the potential value and harm of investment advice; and how issues related to trust, financial literacy, and disclosure effectiveness affect conflicts between investors and financial professionals. The economic baseline has been revised and expanded relative to the Proposing Release to address comments, discussed more fully below.

1. Providers of Financial Services [891]

a. Broker-Dealers

Regulation Best Interest will affect the market for broker-dealer services, including firms that are dually registered as broker-dealers and investment advisers [892] and broker-dealers affiliated with an investment adviser.[893] The market for broker-dealer services encompasses a small set of large and medium sized broker-dealers and thousands of smaller broker-dealers competing for niche or regional segments of the market.[894] The market for broker-dealer services includes many different markets for a variety of services, including (1) managing orders for customers and routing them to various trading venues; (2) providing advice to customers that is in connection with and reasonably related to their primary business of effecting securities transactions; [895] (3) holding retail customers' funds and securities; (4) handling clearance and settlement of trades; (5) intermediating between retail customers and carrying/clearing brokers; (6) dealing in corporate debt and equities, government bonds, and municipal bonds, among other securities; (7) privately placing securities; and (8) effecting transactions in mutual funds that involve transferring funds directly to the issuer. Some broker-dealers may specialize in just one narrowly defined service, while Start Printed Page 33407others may provide a wide variety of services.

As of December 2018, there were approximately 3,764 registered broker-dealers with over 140 million customer accounts. In total, these broker-dealers have over $4.3 trillion in total assets, which are total broker-dealer assets as reported on Form X-17a-5.[896] More than two-thirds of all brokerage assets and close to one-third of all customer accounts are held by the 17 largest broker-dealers, as shown in Table 1, Panel A.[897] Of the broker-dealers registered with the Commission as of December 2018, 563 broker-dealers were dually registered as investment advisers.[898] These firms hold over 90 million (63%) customer accounts. Approximately 539 broker-dealers (14%) report at least one type of non-securities business, including insurance, retirement planning, mergers and acquisitions, and real estate, among others.[899] Approximately 73.5% of registered broker-dealers report retail customer activity.[900]

Panel B of Table 1 is limited to the broker-dealers that report some retail investor activity. As of December 2018, there were approximately 2,766 broker-dealers that served retail investors, with over $3.8 trillion in total assets (89% of total broker-dealer assets) and almost 139 million (97%) customer accounts.[901] Of those broker-dealers serving retail investors, 452 were dually registered as investment advisers.[902] The number of broker-dealers that serve retail customers (i.e., 2,766) likely overstates the number of broker-dealers that will be subject to Regulation Best Interest, because not all broker-dealers that serve retail investors provide recommendations to retail investors. We do not have reliable data to determine the precise number of broker-dealers that provide recommendations (and the extent to which broker-dealers that provide recommendations do so, as opposed to executing unsolicited trades), and as a result, we have assumed, for purposes of this Section III and Sections IV (Paperwork Reduction Act Analysis) and V (Final Regulatory Flexibility Act Analysis) that 2,766 broker-dealers will be subject to Regulation Best Interest.

Table 1—Panel A: Registered Broker-Dealers as of December 2018 903

[Cumulative broker-dealer total assets and customer accounts] 904

Size of broker-dealer (total assets)Total number of BDsNumber of dually registered BDsCumulative total assets (billion)Cumulative number of customer accounts 905
>$50 billion1710$2,87940,550,200
$1 billion to $50 billion114231,36396,037,591
$500 million to $1 billion35723397,814
$100 million to $500 million10520231,603,818
$10 million to $100 million490115174,277,432
$1 million to $10 million1,0211823.6460,748
<$1 million1,9822060.55,675
Total3,7645634,309143,333,278
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Table 1—Panel B: Registered Retail Broker-Dealers as of December 2018

[Cumulative broker-dealer total assets and customer accounts]

Size of broker-dealer (total assets)Total number of BDsNumber of dually registered BDsCumulative total assets (billion)Cumulative number of customer accounts
>$50 billion168$2,80640,545,792
$1 billion to $50 billion751899091,991,118
$500 million to $1 billion21513365,632
$100 million to $500 million8417181,603,818
$10 million to $100 million37896143,762,620
$1 million to $10 million7831532.8450,132
<$1 million1,4091550.45,672
Total BDs 9062,7664523,844138,724,784

Table 2 reports information on brokerage commissions,[907] fees, and selling concessions from the fourth quarter of 2018 for all broker-dealers, including dual-registrants.[908] We observe significant variation in the sources of revenues for broker-dealers, with large broker-dealers, on average, generating substantially higher levels of aggregate commission and fee revenues (on a nominal basis) than smaller broker-dealers. On average, broker-dealers, including those that are dually registered as investment advisers, earn about $5.1 million per quarter in revenue from commissions and nearly four times that amount in fees,[909] although the Commission notes that fees encompass various types of fees, not just fees for advisory services.[910] The level of revenues earned by broker-dealers (including dually registered firms) for commissions and fees increases with broker-dealer size, but also tends to be more heavily weighted toward commissions for broker-dealers with less than $10 million in assets and is weighted more heavily toward fees for broker-dealers with assets in excess of $10 million. For example, for the 114 broker-dealers with assets between $1 billion and $50 billion, average revenues from commissions are approximately $45 million, while average revenues from fees are approximately $225 million.[911]

In addition to revenue generated from commissions and fees, broker-dealers may also receive revenues from other sources, including margin interest, underwriting, research services, and third-party selling concessions, such as from sales of investment company (“IC”) shares. As shown in Table 2, Panel A, these selling concessions are generally a smaller fraction of broker-dealer revenues than either commissions or fees, except for broker-dealers with total assets between $10 million and $100 million. For these broker-dealers, revenue from third-party selling concessions is the largest category of revenues and constitutes approximately 42% of total revenues earned by these firms.

Table 2, Panel B below provides aggregate revenues by revenue type (commissions, fees, or selling concessions from sales of IC shares) for broker-dealers delineated by whether the broker-dealer is also a dual-registrant. Broker-dealers dually registered as investment advisers have a significantly larger fraction of their revenues from fees compared to commissions or selling concessions, whereas broker-dealers that are not dually registered generate approximately 42% of their advice-related revenues as commissions and only 33% of their advice-related revenues from fees, although we lack granularity to determine whether advisory services, in addition to supervision and administrative services, contribute to fees at standalone broker-dealers.

Table 2—Panel A: Average Broker-Dealer Revenues From Revenue Generating Activities 912

Size of broker-dealer in total assetsNCommissionsFees 913Sales of IC shares
>$50 billion17$170,336,258$414,300,268$23,386,192
$1 billion-$50 billion11445,203,225225,063,25753,671,602
500 million-1 billion358,768,54730,141,2705,481,248
100 million-500 million10512,801,88933,726,33616,610,013
10 million-100 million4903,428,8438,950,8929,092,971
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1 million-10 million1,021996,1301,037,825652,905
<1 million1,982197,907269,45985,219
Average of All Broker-Dealers3,7645,092,80821,948,5514,368,823

Table 2—Panel B: Aggregate Total Revenues From Revenue Generating Activities for Broker-Dealers Based on Dual-Registrant Status

Broker-dealer typeNCommissions (billion)Fees 914 (billion)Sales of IC shares (billion)
Dually Registered as IAs563$4.62$17.56$2.65
Standalone Registered BDs3,2014.073.222.55
All3,7648.6920.785.20

As shown in Table 3, based on responses to Form BD, broker-dealers' most commonly provided business lines include private placements of securities (62.7% of broker-dealers); retail sales of mutual funds (55.4%); acting as a broker or dealer retailing corporate equity securities over the counter (52.0%); acting as a broker or dealer retailing corporate debt securities (47.2%); acting as a broker or dealer selling variable contracts, such as life insurance or annuities (41.0%); acting as a broker of municipal debt/bonds or U.S. government securities (39.8% and 37.4%, respectively); acting as an underwriter or selling group participant of corporate securities (31.2%); and investment advisory services (26.4%), among others.[915]

Table 3—Lines of Business at Retail Broker-Dealers as of December 2018

Line of businessTotal
Number of broker-dealersPercent of broker-dealers
Private Placements of Securities1,73562.70
Mutual Fund Retailer1,53355.40
Broker or Dealer Retailing:
Corporate Equity Securities OTC1,43851.97
Corporate Debt Securities1,30647.20
Variable Contracts1,13240.91
Municipal Debt/Bonds Broker1,10139.79
U.S. Government Securities Broker1,03537.41
Put and Call Broker or Dealer or Options Writer99335.89
Underwriter or Selling Group Participant—Corporate Securities86231.15
Non-Exchange Member Arranging For Transactions in Listed Securities by Exchange Member78528.37
Investment Advisory Services73026.38
Broker or Dealer Selling Tax Shelters or Limited Partnerships—Primary Market61922.37
Trading Securities for Own Account61422.19
Municipal Debt/Bonds Dealer47517.17
U.S. Government Securities Dealer33912.25
Solicitor of Time Deposits in a Financial Institution30811.13
Underwriter—Mutual Funds2378.57
Broker or Dealer Selling Interests in Mortgages or Other Receivables2167.81
Broker or Dealer Selling Oil and Gas Interests2077.48
Broker or Dealer Making Inter-Dealer Markets in Corporate Securities OTC2077.48
Broker or Dealer Involved in Networking, Kiosk, or Similar Arrangements (Banks, Savings Banks, Credit Unions)1977.12
Internet and Online Trading Accounts1926.94
Exchange Member Engaged in Exchange Commission Business Other than Floor Activities1716.18
Broker or Dealer Selling Tax Shelters or Limited Partnerships—Secondary Market1645.93
Commodities1625.85
Executing Broker1073.87
Day Trading Accounts893.22
Broker or Dealer Involved in Networking, Kiosk, or Similar Arrangements (Insurance Company or Agency)883.18
Real Estate Syndicator943.40
Broker or Dealer Selling Securities of Non-Profit Organizations712.57
Start Printed Page 33410
Exchange Member Engaged in Floor Activities612.20
Broker or Dealer Selling Securities of Only One Issuer or Associate Issuers431.55
Prime Broker210.76
Crowdfunding FINRA Rule 4518(a)210.76
Clearing Broker in a Prime Broker140.51
Funding Portal80.29
Crowdfunding FINRA Rule 4518(b)50.18
Number of Retail-Facing Broker-Dealers2,766

b. Investment Advisers

Other parties that could be affected by Regulation Best Interest are SEC- or state-registered investment advisers, because Regulation Best Interest could affect the competitive landscape in the market for the provision of financial advice.[916] This section first discusses SEC-registered investment advisers, followed by a discussion of state-registered investment advisers.

As of December 2018, there were approximately 13,300 investment advisers registered with the Commission. The majority of SEC-registered investment advisers report that they provide portfolio management services for individuals and small businesses.[917]

Of all SEC-registered investment advisers, 359 identify themselves as dually registered broker-dealers.[918] Further, 2,421 investment advisers (18%) report an affiliate that is a broker-dealer, including 1,878 investment advisers (14%) that report an SEC-registered broker-dealer affiliate.[919] As shown in Panel A of Table 4 below, in aggregate, investment advisers have over $84 trillion in AUM. A substantial percentage of AUM at investment advisers is held by institutional clients, such as investment companies, pooled investment vehicles, and pension or profit sharing plans; therefore, the total number of accounts for investment advisers is only 29% of the number of customer accounts for broker-dealers.

Based on staff analysis of Form ADV data, approximately 62% of registered investment advisers (8,235) have some portion of their business dedicated to retail investors, including both high net worth and non-high net worth individual clients,[920] as shown in Panel B of Table 4.[921] In total, these firms have approximately $41.4 trillion of AUM.[922] Approximately 8,200 registered investment advisers (61%) serve almost 32 million non-high net worth individual clients and have approximately $4.8 trillion in AUM, while approximately 8,000 registered investment advisers (60%) serve approximately 4.8 million high net worth individual clients with $6.15 trillion in AUM.[923]

Table 4—Panel A: Registered Investment Advisers (RIAs) as of December 2018

[Cumulative RIA AUM and accounts]

Size of investment adviser (AUM)Number of RIAsNumber of dually registered RIAsCumulative AUM (billion)Cumulative number of accounts
>$50 billion27015$59,26420,655,756
$1 billion to $50 billion3,45312122,74913,304,154
$500 million to $1 billion1,635471,1511,413,099
$100 million to $500 million5,9271191,3975,135,070
$10 million to $100 million1,0702459310,031
$1 million to $10 million16230.869,664
<$1 million782300.0213,976
Total13,29935984,62141,081,750
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Table 4—Panel B: Retail Registered Investment Advisers (RIAs) as of December 2018

[Cumulative RIA AUM and accounts]

Size of investment adviser (AUM)Number of RIAsNumber of dually registered RIAsCumulative AUM (billion)Cumulative number of accounts
>$50 billion11914$30,29120,592,326
$1 billion to $50 billion1,6141119,57013,224,188
$500 million to $1 billion1,007447001,392,842
$100 million to $500 million4,5481131,0265,287,584
$10 million to $100 million7062340308,285
$1 million to $10 million10230.569,534
<$1 million169100.0213,946
Total IAs 9248,23531841,43440,887,325

In addition to SEC-registered investment advisers, other investment advisers are registered with state regulators.[925] As of December 2018, there are 17,268 state-registered investment advisers,[926] of which 125 are also registered with the Commission. Of the state-registered investment advisers, 204 are dually registered as broker-dealers, while approximately 4.6% (786) report a broker-dealer affiliate. In aggregate, state-registered investment advisers have approximately $334 billion in AUM. Eighty-two percent of state-registered investment advisers report that they provide portfolio management services for individuals and small businesses, compared to 63% for Commission-registered investment advisers.

Approximately 81% of state-registered investment advisers (13,927) have some portion of their business dedicated to retail investors,[927] and in aggregate, these firms have approximately $324 billion in AUM.[928] Approximately 13,910 (81%) state-registered advisers serve 14 million non-high net worth retail clients and have approximately $137 billion in AUM, while over 11,497 (67%) state-registered advisers serve approximately 170,000 high net worth retail clients with $169 billion in AUM.[929]

c. Trends in the Relative Numbers of Providers of Financial Services

Over time, the relative number of broker-dealers and investment advisers has changed. Figure 1 presented below shows the time series trend of growth in broker-dealers and SEC-registered investment advisers between 2005 and 2018. Over the last 14 years, the number of broker-dealers has declined from over 6,000 in 2005 to less than 4,000 in 2018, while the number of investment advisers has increased from approximately 9,000 in 2005 to over 13,000 in 2018. This change in the relative numbers of broker-dealers and investment advisers over time likely is a reflection of the market for investment advice, and potentially of the choices available to retail investors regarding how to receive or pay for such advice, the nature of the advice, and the attendant conflicts of interest.

Start Printed Page 33412

Increases in the number of investment advisers and decreases in the number of broker-dealers could have occurred for a number of reasons, including changes in regulation and the enforcement of regulation, anticipation of possible regulatory changes, technological innovation (e.g., the increase in automated advisers, which are often colloquially referred to as “robo-advisors” and online trading platforms), product proliferation (e.g., index mutual funds and exchange-traded products), and industry consolidation driven by economic and market conditions, particularly among broker-dealers.[930] Commission staff has observed the transition by broker-dealers from traditional brokerage services to also providing investment advisory services (often under an investment adviser registration, whether federal or state), and many firms have been more focused on offering fee-based accounts because they provide a more steady source of revenue than accounts that charge commissions and are dependent on transactions.[931] Broker-dealers have indicated that the following factors have contributed to this migration: Provision of revenue stability or increase in profitability,[932] perceived lower regulatory burden, and provisions of more services to retail customers.[933] Some firms have reported record profits as a result of moving clients into fee-based accounts, and cite that it provides “stability and high returns.” [934]

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Further, there has been a substantial increase in the number of retail clients at investment advisers, both high net worth clients and non-high net worth clients as shown in Figure 2. Although the number of non-high net worth retail customers of investment advisers dipped between 2010 and 2012, it increased by more than 12 million new non-high net worth retail clients between 2012 and 2017, and has declined since 2017. With respect to AUM, we observe a similar, albeit more pronounced pattern for non-high net worth retail clients as shown in Figure 3. For high net worth retail clients, there has been a pronounced increase in AUM since 2012, although AUM has leveled off since 2015 and there also has been leveling and subsequent reduction in AUM for non-high net worth retail clients over a similar time period.

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BILLING CODE 8011-01-C

d. Registered Representatives of Broker-Dealers, Investment Advisers, and Dually Registered Firms

We estimate the number of associated natural persons of broker-dealers through data obtained from Form U4, which generally is filed for individuals who are engaged in the securities or investment banking business of a broker-dealer that is a member of an SRO (“registered representatives”).[935] Similarly, we approximate the number of supervised persons of registered investment advisers through the number of registered investment adviser representatives (or “registered IARs”), who are supervised persons of investment advisers who meet the definition of investment adviser representatives in Advisers Act rule 203A-3 and are registered with one or more state securities authorities to solicit or communicate with clients.[936]

We estimate the number of registered representatives and registered IARs, including dually-registered representatives, (together “registered financial professionals”) at broker-dealers, investment advisers, and dual-registrants by considering only the employees of those firms that have Series 6 or Series 7 licenses or are registered with a state as a registered representative or investment adviser representative.[937] We only consider employees at firms who have retail-facing business, as defined previously.[938] We observe in Table 5 that approximately 60% of registered financial professionals are employed by dually registered entities. The percentage varies by the size of the firm. For example, for firms with total assets between $1 billion and $50 billion, 67% of all registered financial professionals in that size category are employed by dually registered firms. Focusing on dually registered firms only, approximately 60.5% of total registered financial professionals at these firms are dually registered representatives; approximately 39.1% are only registered representatives; and less than one percent are only registered investment adviser representatives.

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Table 5—Total Registered Representatives at Broker-Dealers, Investment Advisers, and Dually Registered Firms With Retail Investors 939

Size of firm (total assets for standalone BDs and dually registered firms; AUM for standalone IAs)Total number of reps.% of reps. in dually registered firms% of reps. in standalone BD w/an IA affiliate% of reps. in standalone BD w/o an IA affiliate% of reps. in standalone IA w/a BD affiliate% reps. in standalone IA w/o a BD affiliate
>$50 billion84,4617370191
$1 billion to $50 billion170,25667110157
$500 million to $1 billion29,8747151716
$100 million to $500 million66,92451270418
$10 million to $100 million106,1785542211
$1 million to $10 million33,79035541100
<$1 million12,5228523631
Total Licensed Representatives504,0056023296

In Table 6 below, we estimate the number of employees who are registered representatives, registered investment adviser representatives, or dually registered representatives.[940] Similar to Table 5, we calculate these numbers using Form U4 filings. Here, we also limit the sample to employees at firms that have retail-facing businesses as discussed previously.[941]

In Table 6, approximately 25% of registered employees at registered broker-dealers or investment advisers are dually registered representatives. However, this proportion varies significantly across size categories. For example, for firms with total assets between $1 billion and $50 billion,[942] approximately 35% of all registered employees are dually registered representatives. In contrast, for firms with total assets below $1 million, 13% of all employees are dually registered representatives.

Table 6—Number of Employees at Retail-Facing Firms Who Are Registered Representatives, Investment Adviser Representatives, or Both 943

Size of firm (total assets for standalone BDs and dually registered firms; AUM for standalone IAs)Total number of employeesPercentage of dually registered representativesPercentage of registered representatives onlyPercentages of IARs only
>$50 billion218,53919161
$1 billion to $50 billion328,84235124
$500 million to $1 billion43,211184010
$100 million to $500 million119,21423249
$10 million to $100 million176,55920391
$1 million to $10 million56,23017391
<$1 million18,33413463
Total Employees at Retail-Facing Firms960,92925234

Approximately 87% of investment adviser representatives are dually registered representatives. This percentage is relatively unchanged from 2010. According to information provided in a FINRA comment letter in connection with the 913 Study, 87.6% of registered investment adviser representatives were dually registered as registered representatives as of mid-October 2010.[944] In contrast, approximately 52% of registered representatives were dually registered as investment adviser representatives at the end of 2018.[945]

e. Investor Account Statistics

Investors seek financial advice and services to achieve a number of different goals, such as saving for retirement or children's college education. Approximately 73% of adults live in a Start Printed Page 33416household that invests.[946] The OIAD/RAND survey indicates that non-investors are more likely to be female, to have lower family income and educational attainment, and to be younger than investors.[947] Approximately 35% of households that do invest do so through accounts such as broker-dealer or advisory accounts.[948]

As shown above in Figures 2 and 3, the number of retail investors and their AUM associated with investment advisers has increased significantly, particularly since 2012. As of December 2016, nearly $24.2 trillion is invested in retirement accounts, of which $7.5 trillion is in IRAs.[949] A total of 43.3 million U.S. households have either an IRA or a brokerage account; an estimated 20.2 million U.S. households have a brokerage account, and 37.7 million households have an IRA (including 72% of households that also hold a brokerage account).[950] With respect to IRA accounts, one commenter documents that 43 million U.S. households own either traditional or Roth IRAs and that approximately 70% are held with financial professionals, with the remainder being direct market.[951] Further, this commenter finds that approximately 64% of households have aggregate IRA (traditional and Roth) balances of less than $100,000, and approximately 36% of investors have balances below $25,000. As noted in one study, the growth of assets in traditional IRAs comes from rollovers from workplace retirement plans; for example, 58% of traditional IRAs consist of rollover assets, and contributions due to rollovers exceeded $460 billion in 2015 (the most recently available data).[952]

While the number of retail investors obtaining services from investment advisers and the aggregate value of associated AUM has increased, the OIAD/RAND study also suggests that the general willingness of investors to use planning or to take financial advice regarding strategies, securities, or accounts is relatively fixed over time.[953] With respect to the account assets associated with retail investors, the OIAD/RAND survey also estimates that approximately 10% of investors who have brokerage or advisory accounts hold more than $500,000 in assets, while approximately 47% hold $50,000 in assets or less. Altogether, investors who have brokerage or advisory accounts typically trade infrequently, with approximately 31% reporting no annual transactions and an additional approximately 30% reporting three or fewer transactions per year.[954]

With respect to particular securities, commenters have provided us with additional information about ownership of mutual funds and IRA account statistics. For example, one commenter stated that 56 million U.S. households and nearly 100 million individual investors own mutual funds, of which 80% are held through 401(k) and other work-based retirement plans, while 63% of investors hold mutual funds outside of those plans.[955] Of those investors who own mutual funds outside of workplace retirement plans, approximately 50% use financial professionals, while nearly one-third purchase direct-sold funds either directly from the fund company or through a discount broker.[956]

Table 7 below provides an overview of account ownership segmented by account type (e.g., IRA, brokerage, or both) and investor income category based on the SCF Survey.[957]

Table 7—Ownership by Account Type in the U.S. by Income Group

[As reported by the 2016 SCF Survey]

Income category% Brokerage only% IRA only% Both brokerage and IRA
Bottom 25%1.27.62.4
25%-50%3.214.55.4
50%-75%4.121.411.4
75%-90%7.533.416.5
Top 10%12.024.743.9
Average4.418.311.6

With respect to the nature of the accounts held by investors and whether they are managed by financial professionals, the OIAD/RAND survey finds that 36% of its sample of participants report that they currently use a financial professional and approximately 33% receive some kind of recommendation service.[958] Of the Start Printed Page 33417subset of those investors who report holding a brokerage, advisory, or similar account, approximately 33% self-direct their own account, 25% have their account managed by a financial professional, and 10% have their account advised by a financial professional.[959] For those investors who take financial advice, the OIAD/RAND study suggests that they may differ in characteristics from other investors. The survey further finds that investors who take financial advice are generally older, retired, and have a higher income than other investors, but also may have lower educational attainment (e.g., high school or less) than other investors.[960]

Similarly, one question in the SCF Survey asks what sources of information households' financial decision-makers use when making decisions about savings and investments. Respondents can list up to fifteen possible sources from a preset list that includes “Broker” or “Financial Planner” as well as “Banker,” “Lawyer,” “Accountant,” and a list of non-professional sources.[961] Panel A of Table 8 below presents the breakdown of where households who have brokerage accounts seek advice about savings and investments. The table shows that of those respondents with brokerage accounts, 23% (4.7 million households) use advice services of broker-dealers for savings and investment decisions, while 49% (7.8 million households) take advice from a “financial planner.” Approximately 36% (7.2 million households) seek advice from other sources such as bankers, accountants, and lawyers. Almost 25% (5.0 million households) do not use advice from the above sources.

Panel B of Table 8 below presents the breakdown of advice received by households who have an IRA. Approximately 15% (5.7 million households) rely on advice services of their broker-dealers and 48% (18.3 million households) obtain advice from financial planners. Approximately 41% (15.5 million households) seek advice from bankers, accountants, or lawyers, while the 25% (9.5 million households) use no advice or seek advice from other sources.

Table 8—Panel A: Sources of Advice for Households Who Have a Brokerage Account in the U.S. by Income Group 962

Income category% Taking advice from brokers% Taking advice from financial planners% Taking advice from lawyers, bankers, or accountants% Taking no advice or from other sources
Bottom 25%20.5553.8935.6424.30
25%-50%22.9838.0343.9232.36
50%-75%20.7552.0031.4223.61
75%-90%22.5648.9432.2528.10
Top 10%25.2950.5338.4721.06
Average23.0249.0235.9924.94

Table 8—Panel B: Sources of Advice for Households Who Have an IRA in the U.S. by Income Group 963

Income category% Taking advice from brokers% Taking advice from financial planners% Taking advice from lawyers, bankers, or accountants% Taking no advice or from other sources
Bottom 25%12.1438.3043.6931.85
25%-50%9.7943.8240.6732.74
50%-75%14.9345.2041.2325.23
75%-90%14.6852.1441.6524.26
Top 10%21.4055.4040.0318.56
Average15.2548.4541.1725.28

The OIAD/RAND survey notes that for survey participants who reported working with a specific individual for investment advice, 70% work with a dual-registrant, 5.4% with a broker-dealer, and 5.1% with an investment adviser.[964]

f. Financial Incentives of Firms and Financial Professionals

Commission experience indicates that there is a broad range of financial incentives provided by standalone broker-dealers and dually registered firms to their financial professionals.[965] While some firms provide base pay for their financial professionals ranging from approximately $45,000 to $85,000 per year, many firms provide compensation only through a percentage of commissions, plus performance-Start Printed Page 33418based awards, such as individual or team bonuses based on production.[966] Commission-based compensation to financial professionals range from 30% to 95% of total commissions paid to the firm on a particular transaction, although this compensation is generally reduced by various costs and expenses attributable to the financial professional (e.g ., clearing costs associated with some securities, charges related to an SRO or the Securities Investor Protection Corporation (“SIPC”), and insurance, among others).

Several firms have varying commission-based compensation rates depending on the investment type being sold. For example, compensation ranges from 76.5% for stocks, bonds, options, and commodities to 90% for open-ended mutual funds, private placements, and unit investment trusts. Several firms charge varying commissions on securities depending on the amount of security sold (e.g., rates on certain proprietary mutual funds range from 0.75% to 5.75% depending on the share class), but do not provide those rates to financial professionals based on investment type. Some firms also provide incentives for their financial professionals to recommend proprietary securities and services over third-party or non-proprietary securities. Commission rates for some firms, however, decline as the dollar amount sold increases, and such rates vary across asset classes as well (e.g., within a given share class, rates range from 1.50% to 5.75% depending on the dollar amount of the fund sold). With respect to compensation to individual financial professionals, if compensation rates for mutual funds are approximately 90% (as discussed above, for example), financial professionals can earn between 0.68% and 5.18%, depending on the type and amount of security sold.

For financial professionals who do not earn commission-based compensation, some firms charge retail customers flat fees ranging from $500 to $2,500, depending on the level of service required, such as financial planning, while others charge hourly rates ranging from $150 to $350 per hour. For dually registered firms that charge clients based on a percentage of AUM, the average percentage charge varies based on the size of the account: The larger the AUM, the lower the percentage fee charged. Percentage-based fees for the sample firms range from approximately 1.5% for accounts below $250,000 to 0.5% for accounts in excess of $1 million.[967] If compensation rates range between 30% and 95%, a firm charging a customer $500 can provide compensation to the financial professional between $150 and $475 for each financial plan provided. For fee-based accounts, assuming that a retail customer has an account worth $250,000, the firm will charge account-level fees of $3,750 ($250,000 × 1.5%), and the financial professional can earn between $1,170 and $3,560 annually for each account. However, accounts may also be subject to additional fees beyond those described here and the financial professionals also may receive additional compensation.

In addition to “base” compensation, most firms also provide bonuses (based on either individual or team performance) or variable compensation, ranging from approximately 10% to 83% of base compensation. These bonuses could be awarded based on either commissions generated or AUM. While the majority of firms base at least some portion of their bonuses on production, usually in the form of total gross revenue, other forms of bonus compensation are derived from customer retention, customer experience, and manager assessment of performance. Moreover, some firms use a tiered system within their compensation grids depending on firm experience and production levels. Financial professionals' variable compensation can also increase when they enroll retail customers in advisory accounts versus other types of accounts, such as brokerage accounts. Some firms also provide transition bonuses for financial professionals with prior work experience based on historical trailing production levels and AUM. Although many firms do not have any incentive-based contests or programs, some firms award non-cash incentives for meeting certain performance, best practices, or customer service goals, including trophies, dinners with senior officers, and travel to annual meetings with other award winners.[968]

2. Regulatory Baseline and Current Market Practices

Broker-dealers' current standards of conduct are governed by federal and state law and regulation as well as the rules and guidance of SROs,[969] particularly, for the purposes of this rulemaking, those related to the suitability of recommendations and disclosure of conflicts of interest. In response to comment letters that stated the Proposing Release did not fully consider the current market practices, we have provided an overview of these practices reported by commenters and from industry studies.[970] Together, these laws and regulations comprise the regulatory baseline.

a. Federal and State Securities Laws

Under the antifraud provisions of the federal securities laws and SRO rules, broker-dealers are required to deal fairly with their customers.[971] In addition, broker-dealers must comply with a wide Start Printed Page 33419range of specific obligations specified in the Exchange Act and the rules thereunder. Moreover, there is a body of case law holding that broker-dealers that exercise discretion or control over customer assets, or have a relationship of trust and confidence with their customers, may owe customers a fiduciary duty, depending on the circumstances.[972] Additionally, some states provide through statute or regulation, among other requirements such as minimum requirements for sales practices, that broker-dealers have some form of state-specific fiduciary duty to their customers in at least some circumstances. Substantial variation exists among states' fiduciary standards, ranging from states with express fiduciary standards that apply to broker-dealers to those with limited or no such standards.[973]

b. FINRA Rule 2111: Suitability

FINRA Rule 2111 (the “Suitability Rule”) requires that a broker-dealer or associated person have a reasonable basis to believe that a recommended securities transaction or investment strategy involving securities is suitable for the retail customer.[974] A broker-dealer cannot disclaim away its suitability obligation under the Suitability Rule.[975] We reviewed the Suitability Rule and drew upon it and enhanced the suitability requirement in developing Regulation Best Interest.[976] FINRA also requires additional specific suitability obligations with respect to certain types of securities or transactions, such as variable insurance products and derivatives securities, including options and securities-based futures.[977]

As discussed by several commenters,[978] the regulatory baseline also includes FINRA guidance on best practices, such as guidance regarding suitability, which provides guidance on how broker-dealers and associated persons should comply with suitability obligations when making recommendations to customers. FINRA guidance regarding suitability includes Regulatory Notice 12-25, which states that under the Suitability Rule, “a broker's recommendations must be consistent with his customers' best interests,” [979] as well as other regulatory notices that provide guidance on the suitability of specific securities or investment strategies involving securities, including, but not limited to, mutual funds, variable contracts including annuities, structured and complex securities, leveraged and inverse exchange-traded products, and IRA rollovers.[980]

c. FINRA Report on Conflicts of Interest

In 2013, FINRA published as guidance a Report on Conflicts of Interest (“FINRA Conflicts Report”) to provide an overview of effective practices that broker-dealers could employ to manage and mitigate conflicts of interest.[981] In the report, FINRA provides suggestions for broker-dealers for addressing conflicts of interest related to three broad areas: A firm-level approach to identify and manage conflicts of interest; the production and distribution of new securities; and compensation and other financial incentives of associated persons.[982] With respect to new securities, the FINRA Conflicts Report recommends, among other things, new security review committees and disclosure of conflicts related to recommendations of new securities to customers.[983] The FINRA Conflicts Report also provides guidance to broker-dealers on managing conflicts of interest that arise from compensation and financial incentives of broker-dealers. For example, the FINRA Conflicts Report recommends increased surveillance of recommendations near compensation thresholds and capping compensation credits across similar Start Printed Page 33420investment types to prevent representatives from preferentially recommending securities that yield the largest compensation.[984]

d. Other Broker-Dealer Obligations: Disclosure, Supervision, and Compensation

Broker-dealers are subject to other disclosure obligations under the federal securities laws and SRO rules. For instance, under existing antifraud provisions of the Exchange Act, a broker-dealer has a duty to disclose material adverse information to its customers.[985] Broker-dealers found to be acting as fiduciaries also have a duty to disclose material conflicts of interest.[986] Broker-dealers are also prohibited from making misleading statements.[987] Courts have found that broker-dealers, in making recommendations, should have disclosed that they were: Acting as a market maker for the recommended security; trading as a principal with respect to the recommended security; engaging in revenue sharing with a recommended mutual fund; or “scalping” a recommended security.[988]

Broker-dealers are also currently subject to supervisory obligations under Section 15(b)(4)(E) of the Exchange Act and SRO rules, including the establishment of policies and procedures reasonably designed to prevent and detect violations of, and to achieve compliance with, the federal securities laws and regulations, as well as applicable SRO rules.[989] Specifically, the Exchange Act authorizes the Commission to sanction a broker-dealer or any associated person that fails to reasonably supervise another person subject to the firm's or the person's supervision that commits a violation of the federal securities laws.[990] The Exchange Act provides an affirmative defense against a charge of failure to supervise where reasonable procedures and systems for applying the procedures have been established and effectively implemented without reason to believe those procedures and systems are not being complied with. Further, under the federal securities laws and FINRA rules, prices for securities and broker-dealer compensation are required to be fair and reasonable, taking into consideration all relevant circumstances.[991]

Broker-dealers also register with and report information, including about their business and affiliates, to the Commission, the SROs, and other jurisdictions through Form BD.[992] Form BD requires information about the background of the applicant, its principals, controlling persons, and employees, as well as information about the type of business in which the broker-dealer proposes to engage and all control affiliates engaged in the securities or investment advisory business.[993] Once a broker-dealer is registered, it must keep its Form BD current by amending it promptly when the information is or becomes inaccurate for any reason.[994] In addition, firms report similar information and additional information—such as written customer complaints and other disciplinary matters— to FINRA pursuant to FINRA Rule 4530 (Reporting Requirements).

e. DOL Fiduciary Rule as It Relates to Current Market Practice

This section discusses the recently vacated DOL Fiduciary Rule,[995] the implications for broker-dealers, and the industry response to the DOL Fiduciary Rule. Although the DOL Fiduciary Rule was vacated by the Fifth Circuit Court of Appeals in June, we discuss the DOL Fiduciary Rule as part of the baseline because certain broker-dealers and other industry participants may have adjusted their practices in order to plan for the implementation of the requirements of this rule. It is possible that some of these broker-dealers may continue to operate their business using these adjusted practices, while other may have reverted to the pre-DOL Fiduciary Rule practices. Below, we discuss actual and potential costs, as well as changes in services and securities offerings, in response to the DOL Fiduciary Rule as reported by industry participants through surveys. We also describe how, following the Fifth Circuit Court of Appeals decision vacating the DOL Fiduciary Rule, certain of those costs have been reduced and the trend toward reduction in retail investor access to services and securities offerings that may have been caused in part by the DOL Fiduciary Rule appears to have ended and may be reversing.

i. Department of Labor's Fiduciary Rule and Temporary Enforcement Policy

As noted above, prior to the Fifth Circuit decision, many firms took steps to come into compliance with the DOL Fiduciary Rule, and in particular, the BIC Exemption and other PTEs, including changes to business practices.[996]

Following the decision by the Fifth Circuit, the DOL acknowledged that uncertainty about fiduciary obligations and the scope of exemptive relief under the prohibited transaction provisions of ERISA and the Internal Revenue Code following the court's decision could temporarily disrupt existing investment advice arrangements during the transition period, and also that financial institutions had devoted significant resources to comply with PTEs issued in connection with the DOL Fiduciary Rule, including the BIC Exemption.[997] Based on these concerns, the DOL issued a temporary enforcement policy stating that it would not pursue claims against fiduciaries working in good faith to comply with the BIC Exemption's Impartial Conduct Standards for transactions that would have been exempted by the BIC Exemption or treat such fiduciaries as violating applicable Start Printed Page 33421prohibited transactions rules.[998] Prior to the Fifth Circuit decision, some broker-dealers that offered services to IRAs and other retirement accounts may have implemented changes to services and securities to comply with and meet the conditions of the BIC Exemption and other PTEs, including the Impartial Conduct Standards.[999] Although the Commission does not currently have data on the number of firms that may have devoted resources to comply with the PTEs,[1000] the Commission can broadly estimate the maximum number of broker-dealers that could have undertaken changes in order to comply with requirements of the PTEs from the number of broker-dealers that have retail customer accounts. Approximately 73.5% (2,766) of registered broker-dealers report sales to retail customers.[1001] Similarly, approximately 8,235 (62% of) investment advisers serve high net worth and non-high net worth individual clients. The Commission understands that these numbers are an upper bound and likely overestimate the broker-dealers and investment advisers that provide retirement account services and began compliance with the requirements of the PTEs.[1002]

ii. Industry Response to DOL Fiduciary Rule

Although the DOL Fiduciary Rule became effective in June 2017, the DOL provided transitional relief through July 2019,[1003] which is now indefinitely extended under the temporary enforcement policy put in place in June 2018 following the Fifth Circuit decision. As described above, a significant subset of broker-dealers have retail customers with retirement accounts and would have been affected by the DOL Fiduciary Rule, and at least some broker-dealers began taking steps to effectuate compliance with the DOL Fiduciary Rule. A number of commenters stated that we did not sufficiently consider the existing regulatory environment and the current market practices of firms and financial professionals in light of the DOL's Fiduciary Rule and other existing rules and regulations.[1004] Below, we discuss the industry response to the DOL Fiduciary Rule and the effect of the Fifth Circuit decision on broker-dealers.

In the Proposing Release, we predominantly based our discussion of the industry and customer effects of the DOL Fiduciary Rule on information from a single industry study.[1005] Commenters provided additional citations to industry studies,[1006] which describe changes in market practices across a broader-sample of broker-dealers in response to the DOL Fiduciary Rule.[1007] In these studies, certain of the survey participants reported that they responded to the DOL Fiduciary Rule and the BIC Exemption by reducing certain services and access to advice to small retirement accounts. Certain participants further reported that they encouraged customers toward self-directed accounts and/or advisory accounts, including robo-advisors. Certain other participants reported that they reduced or eliminated certain securities within certain types of retirement accounts that they offered. Finally, certain participants reported that they increased certain fees for some of their customers. However, as it is generally the case with survey analysis, the surveys in the aforementioned studies are subject to potential selection biases (i.e., the sample of respondents is not necessarily random) and methodological limitations (e.g., the design of the questionnaire may influence the choices made by the respondents). Given these limitations, it is generally not clear whether the results of these studies capture significant or marginal changes in broker-dealer practices, and whether these changes are indicative of broader trends in the market for advice in response to the DOL Fiduciary Rule.

Changes to Services and Securities

A number of studies indicated that, as a result of the DOL Fiduciary Rule, certain industry participants had already or were planning to alter their menu of services and securities that they made available to retail customers. For example, of the 21 SIFMA members that participated in the SIFMA Study, 53% eliminated or reduced access to certain brokerage advice services and 67% migrated away from open choice to fee-based or limited brokerage services.[1008] Another study also discussed a shift from commission-based accounts to fee-based accounts but offered no details about the sample or the methodology employed to arrive Start Printed Page 33422at the estimates.[1009] Finally, another study documented that at least 29% of their survey participants expected to move clients, particularly those with low account balances, to robo-advisors.[1010] In addition, a number of media articles describe several cases of broker-dealers that have adjusted their practices with respect to the range of accounts offered as a result of the DOL Fiduciary Rule.[1011]

Further, industry studies noted that certain of their respondents changed their securities offerings as a result of the DOL Fiduciary Rule.[1012] For example, 95% of the SIFMA Study participants altered their securities offerings by reducing or eliminating certain asset or share classes; 86% of the respondents reduced the number or type of mutual funds (e.g., 29% eliminated no-load funds, while 67% reduced the number of mutual funds), and 48% reduced annuity securities offerings.[1013] Similarly, another study found that nearly 30% of survey participants eliminated or reduced securities or services available to retirement investors in response to the DOL Fiduciary Rule,[1014] while the Chamber Study noted that 13.4 million accounts of the companies surveyed had limited access to certain securities, including mutual funds, variable annuities, and exchange-traded funds.[1015] Finally, the SIFMA Study states that although the DOL Fiduciary Rule applied only in connection with services for retirement accounts, certain of the survey participants had implemented the changes to both retirement and non-retirement accounts.[1016] These studies do not discuss the attributes of the securities that the participants chose to no longer offer. In addition, as noted above, survey analysis is subject to certain limitations that, generally, complicate the interpretation of their results. For instance, it is not generally clear whether the results of these studies capture significant or marginal changes in broker-dealer practices, and whether these changes are indicative of broader trends in the market for advice in response to the DOL Fiduciary Rule.

Besides the studies mentioned above, a number of media articles provide anecdotal evidence of broker-dealers that chose to no longer offer certain securities.[1017] Some commenters also provided data about historical trends in certain product markets.[1018] For example, one commenter provided data for the market of mutual funds and showed that between 2007 and 2018, the percentage of assets in load mutual funds declined from 27% to 12%, while no-load share classes increased from 51% to 71% over the same time period.[1019] Further, this commenter stated that this shift has occurred because of the growth in assets in 401(k) plans and other retirement accounts, as well as the increase in the number of advisory accounts, both of which tend to invest in no-load share classes.

However, the DOL Fiduciary Rule may have caused certain product markets to adjust.[1020] For example, innovations, including the introduction of T and clean share classes of mutual funds, can be regarded as a paradigm shift in terms of how product sponsors compensate broker-dealers for distribution services. One commenter noted that these products may reduce the expected fund underperformance net of costs for retail investors relative to A shares by nearly 50 basis points annually.[1021]

The Effect of Costs and Fees

Some firms may have responded to the DOL Fiduciary Rule by either presenting customers with the option to enter into different and potentially more costly advice relationships compared to a brokerage advice relationship or by passing some of the compliance costs to customers.[1022] However, one study observed that 63% of the responding firms that limited or eliminated access to advised brokerage services stated that they had at least some customers who chose to move to self-directed accounts rather than fee-based accounts and cited the reasons that customers provided as (1) “did not want to move to a fee-based account,” (2) “was not in the retirement investor's best interest to move to a fee-Start Printed Page 33423based account,” (3) “did not meet the account minimums,” or (4) “wished to maintain positions in certain asset classes which were not eligible for a fee-based account.” [1023] Another study further observed that nearly 40% of the responding firms believed that the relationship with their customers had been altered as a result of the DOL Fiduciary Rule and that customers with smaller account balances were nearly ten times more likely to have been negatively affected by the DOL Fiduciary Rule than customers with larger account balances.[1024] Further, another study observed that 68% of the responding firms were less likely to provide services to smaller accounts, and 46% anticipated that they may service fewer clients overall.[1025]

One study observed that, generally, based on the numbers provided by the respondents, a fee-based account can be more costly than a brokerage account; however, such comparison is generally hard to make without knowing the securities in the two types of accounts, and it is not clear that the survey made this clear to respondents.[1026] One study [1027] observed that approximately 52% of its survey participants indicated that they may pass on the costs associated with complying with the DOL Fiduciary Rule to clients in the form of higher fees, while another study stated that more than 6 million client accounts of the survey participants may be subject to higher costs and fees as a result of the DOL Fiduciary Rule, although it is not clear whether this estimate assumes full adoption of the DOL Fiduciary Rule.[1028]

Estimated Costs of Compliance and Effects on Compensation Structures

One study observed that survey respondents were expecting to incur compliance costs as a result of the DOL Fiduciary Rule that would vary by the size of the respondent.[1029] For instance, large firms with net capital in excess of $1 billion were expected to have start-up and ongoing compliance costs of $55 million and $6 million, respectively, while firms between $50 million and $1 billion in net capital were expected to have start-up and ongoing compliance costs of $16 million and $3 million, respectively. The study further estimated that the total start-up compliance costs for large and medium-size firms combined would have been approximately $4.7 billion, while ongoing costs would have been approximately $700 million per year.

Another study observed that the costs of complying with DOL Fiduciary Rule would encompass technology, legal, process changes, educational, and training costs for firms.[1030] This study forecasted that the DOL Fiduciary Rule may cause a $2 trillion redistribution in assets from broker-dealers to investment advisers, robo-advisors, and self-directed accounts, and a nearly $20 billion decrease in revenues to the entire financial services industry, including broker-dealers.

The study further forecasted that as a result of the DOL Fiduciary Rule product sponsors “will be incentivized to streamline product offerings, lower fees, and improve performance,” and investor would pay $7.5 billion less in mutual fund and ETF expenses by the end of 2010. However, as noted above, this study does not provide details about how it obtained its estimates.

Several media articles provide some anecdotal evidence suggesting that as a response to the DOL Fiduciary Rule some broker-dealers began to alter the compensation structures of their registered representatives.[1031] For example, some broker-dealers have indicated that they adjusted their compensation structures by equalizing commissions and deferred sales charges across similar securities.[1032] Other broker-dealers banned sales quotas, contests, special awards, and bonuses,[1033] including deferred bonuses as part of recruitment efforts.[1034] However, following the decision by the Fifth Circuit to vacate the DOL Fiduciary Rule, some firms reinstated back-end recruiting bonuses.[1035]

iii. Additional Evidence of Current Market Practices

In this section, we include information on Commission observations on the broker-dealer industry. Commission experience indicates that there have been a number of changes to the broker-dealer industry and its business practices over time.[1036] Consistent with the trend baseline provided in Section III.B.1.c and industry studies and anecdotal evidence described above, we have observed firms choosing to do business with retail investors as investment advisers, not as broker-dealers, by either migrating existing brokerage accounts to advisory accounts or directing new retail customers to advisory accounts.

Beyond broker-dealer trends in business practices, Commission experience also indicates that some broker-dealers have responded to the DOL Fiduciary Rule and the Fifth Circuit decision vacating the DOL Fiduciary Rule by modifying their existing business practices. For example, some firms, consistent with anecdotal evidence discussed above, eliminated brokerage IRA accounts in response to the DOL Fiduciary Rule; however, upon the Fifth Circuit decision, the firms reinstituted Start Printed Page 33424brokerage IRAs. Other examples of changes following the Fifth Circuit decision include changes to incentive-based compensation in certain types of accounts and principal trading restrictions.

3. Investment Advice and Evidence of Potential Investor Harm

A number of commenters expressed the view that the Proposing Release did not fully document the problems attributed to potential conflicts of interest stemming from the broker-dealer model and the resulting harm to retail customers.[1037] In order to address these commenters' concerns, we analyze academic and industry studies to present an overview of the market for advice for retail customers.[1038] Below, we discuss which types of investors seek investment advice; the benefits attained through investment advice for retail investors; limitations to the value of that advice that stem from agency costs, particularly those related to conflicts of interest arising from financial professional compensation; and evidence of potential investor harm. Where appropriate, we note limitations to the application of various academic studies that form the basis of other economic analyses, which investigate potential investor harm attributed to recommendations received from financial professionals.

a. Who Seeks Investment Advice [1039]

Approximately 37% of U.S. households currently engage with financial professionals according to OIAD/RAND; however, households who hire these professionals are not uniformly distributed among the U.S. population.[1040] In addition to OIAD/RAND, a number of academic studies, provided with comment letters, examine characteristics of investors and their propensity for seeking (and following) investment advice. Older, wealthier, more educated, and financially more literate retail investors are more likely to seek and act on advice obtained from financial professionals, suggesting that investors who may benefit most from advice (younger, less educated, and less financially sophisticated) are least likely to obtain it.[1041] Several studies examine the choice by retail investors to select into broker-sold or direct-sold mutual funds. These studies find less financially sophisticated investors are more likely to purchase “broker-sold” funds and therefore more likely to receive advice from a financial professional.[1042]

As we detail below, retail investors bear costs associated with obtaining advice from financial professionals, which may deter some investors, especially those with limited wealth or income, from seeking investment advice. However, an investor's lack of sophistication may also prevent the investor from obtaining or using investment advice even when advice is provided at no cost. One paper examines the outcomes from a large sample of active retail investors of a large broker-dealer.[1043] These retail investors received unsolicited and unbiased advice from the broker-dealer at no cost. Although the advice was designed to improve the efficiency of the investors' portfolios, only 5% of investors accepted the offer to receive the free advice. Moreover, those that did accept the advice rarely followed the advice. Investors who participated in the study had only minimal improvements to their portfolio efficiency. The authors cite lack of financial sophistication and lack of familiarity or trust as reasons why the unsolicited advice was not followed.[1044]

Start Printed Page 33425

b. Benefits and Limitations of Investment Advice

A number of commenters provided academic studies of benefits that investors may obtain from hiring financial professionals.[1045] One benefit of hiring a firm or financial professional is that professional advice can help the average retail investor overcome common “investment mistakes” that he or she may make when investing.[1046] Common “investment mistakes” made by retail investors include limited allocation of assets to equities, under-diversification, excessive trading, and home bias.[1047] These studies also attempt to identify reasons why retail investors persistently make inefficient investment choices.

Beyond correcting potential “investment mistakes,” academic studies document a multitude of other benefits that accrue to retail investors as a result of seeking investment advice, including, but not limited to: Higher household savings rates, setting long-term goals and calculating retirement needs, more efficient portfolio diversification and asset allocation, increased confidence and peace of mind, improvement in financial situations, and improved tax efficiency.[1048] For example, one study notes that investors who engaged financial professionals for at least 15 years had approximately 173% more assets on average than investors who did not hire financial professionals, driven by higher household savings rates and increased asset allocation to non-cash instruments.[1049] Further, financial professionals may be able to help retail investors overcome information asymmetries that exist between firms that supply securities and their customers that retail investors would not be able to disentangle on their own.[1050]

Commenters also provided academic studies which discussed the limitations of the advice received from financial professionals, including how both direct and indirect costs of advice can reduce returns earned by investors.[1051] How financial professionals are compensated can erode the value of advice in two primary ways: (1) The direct costs associated with purchasing advice detract from returns over time; [1052] and (2) the indirect costs to retail investors that arise from conflicts of interest between financial professionals and investors. Financial professionals are generally compensated directly by retail investors in three principal ways: Commission-based (e.g., broker-dealers), fee-based on AUM (e.g., investment advisers), and flat or hourly fees (e.g., financial planners), although some financial professionals may receive compensation in multiple ways for providing advice to the same investor.[1053]

One study estimates that the average annual costs associated with commission-based accounts are approximately 75 bps, while the average fee-based account costs 130 bps.[1054] We acknowledge that in addition to the fees charged for particular types of services, other expenses may be incurred that reduce returns earned by investors, some of which may be earned by the financial professional or the firm and paid by the firm's product or service providers (e.g., fund loads, 12b-1 fees, and shareholder servicing fees).

Some commenters expressed the view that certain investors (e.g., buy-and-hold investors) may prefer to pay a single commission relative to an ongoing fee-Start Printed Page 33426based obligation that is tied to AUM in their account.[1055] We note that this choice may be dependent on the investor's holding period and other ongoing expenses that affect an investor's net return over time. For example, a buy-and-hold investor that chooses an account where fees are based on AUM may pay more over time than a similar buy-and-hold investor that pays a single commission. Further, some commission-based securities, such as mutual funds, may have ongoing expenses, including 12b-1 fees, which could lead to an erosion of net returns over time.[1056] Such ongoing expenses, however, may not be adequately accounted for by investors when making investment decisions about the type of account to open and what type of security to purchase.[1057] Several commenters provided analyses to show the expected effect of one-time costs and ongoing expenses (e.g., operating costs or advisory fees) to investors from both commission-based and fee-based perspectives, conditional on the investor's holding period.[1058]

Separately, investors may face indirect costs that are a result of agency problems that emerge when financial professionals seek to maximize their own compensation and take actions that place their own interests ahead of the investors that they are supposed to serve.[1059] A number of commenters and academic studies have stated that commission-based compensation is more likely to contribute to conflicts of interest between financial professionals and retail investors than fee-based compensation.[1060] Other commenters, however, indicated that commission-based compensation provides benefits to investors.[1061] One study finds that conflicts of interest are likely to be present in all forms of compensation earned by financial professionals. For example, fee-based compensation could result in so-called “reverse churning” and a disincentive to reduce AUM, even if that would be in the investor's best interest, while flat-fee models can lead to shirking and overbilling.[1062] However, due to limitations on the data available regarding fee-based advice, most of the academic studies to date regarding conflicts of interest focus on commission-based compensation models. As such, the potential conflicts associated with the fee-based compensation models, including fee-based compensation earned by broker-dealers, have not been subject to as much analysis. Studies show that commission-based compensation potentially leads to biased advice, including excessive trading in accounts and recommendations to purchase high-commission securities, both of which benefit the financial professional and may lead to lower net returns.[1063]

Financial professionals also may benefit from other forms of transaction-based payment from customers, such as mark-ups and mark-downs; for instance, one study documents that the size of the mark-up or mark-down is significantly positively related to whether the broker-dealer solicits the transaction and whether the broker-dealer acts in a principal capacity.[1064] Because mark-ups and mark-downs are payments from the customer to the broker-dealer, they give rise to conflicts of interest between a broker-dealer and his or her customer at the time of a recommendation, particularly if they are opaque to the customer, at the time of the recommendation. Mechanisms, including regulation,[1065] disclosure, and reputation,[1066] may be able to mitigate the risk of financial professionals acting on conflicts of interest to the detriment of their customers.[1067] In addition to direct payments of commissions from retail investors, financial professionals may receive payments from third parties, such as securities issuers, which can increase costs to investors through higher management fees and reduced net returns, and provide incentives to recommend these securities over those that do not provide such incentives.[1068]

While a number of studies suggest that conflicts of interest may lead to investor harm, one study, which provides a survey of the literature on conflicts of interest, states that “although conflicts of interest are omnipresent when contracting is costly and parties are imperfectly informed, there are important factors that mitigate their impact and, strikingly, it is possible for customers of financial institutions to benefit from the existence of such conflicts . . . The existence of a conflict of interest . . . does not mean that . . . the customers of that Start Printed Page 33427institution will be harmed . . . [A] variety of mechanisms help control conflicts of interest and their impact [e.g., a financial institution's reputation].” [1069] Another study of commission-based compensation in the United Kingdom indicates that commission-based compensation leads to significant bias in certain types of securities (e.g., with profit bonds or distribution bonds) and financial professionals and when bias exists, retail investors are harmed and the costs associated with such harm are significant; however, the study also states that the advice market in the United Kingdom is not overrun with bias (“adviser recommendations are not dominated by self-interest”) and the market for advice generally works well.[1070]

Although financial professionals may aid retail investors in correcting common investing mistakes and overcoming informational hurdles associated with securities transactions or investment strategies, the average retail investor may not be able to assess the quality of advice received from financial professionals.[1071] The difficulty in assessment can arise from several sources, including a large degree of heterogeneity in the quality of advice, insufficient financial literacy on the part of investors, and information asymmetry between the financial professional and investors.[1072] Information asymmetry arises when information necessary to assess the quality of the advice received may not be available to the retail investor, even when it is available to the financial professional. For example, a financial professional may disclose conflicts of interest that could affect the advice provided, but the information may not be sufficiently precise to help a retail investor gauge how those conflicts affect the advice provided.

Conflicts of interest, therefore, can erode the benefits of advice provided to retail investors, particularly if investors are unaware that the conflicts exist or if they do not understand the implications of conflicts.[1073] Financial professionals may use this information asymmetry, particularly with unsophisticated investors, to capture economic rents for themselves, and this could exacerbate biases that investors sometimes exhibit, such as return chasing or under-diversification.[1074] One experimental study sent “mystery shoppers” to broker-dealers and investment advisers in several large cities in the United States and found that financial professionals provided recommendations that benefited themselves and exacerbated behavioral biases on the part of investors, including return chasing or recommendations of high-cost actively managed funds.[1075]

Although financial professionals may be hired to help overcome “investment mistakes” made by investors,[1076] a number of studies show that financial professionals themselves may be subject to the same behavioral biases as unadvised retail investors, such as return chasing and overconfidence.[1077] One study, using data on Canadian investors and their financial professionals, observes that financial professionals appear to have the same “misguided beliefs” as their investors, and therefore do not correct, and may even exacerbate common investment mistakes.[1078] In that study, financial professionals invested in the same manner that they recommended to their Start Printed Page 33428clients; they traded excessively, chased returns, bought expensive actively managed funds, under-diversified their portfolios, and earned similar net returns. Further, these financial professionals continued to follow similar investment strategies as those they recommended to their clients, even after they had left the industry, suggesting that they believed their own investment advice.[1079]

c. Evidence of Potential Investor Harm

A number of commenters provided citations to academic studies that analyze the evidence of potential investor harm driven by conflicts of interest of financial professionals.[1080] A number of these studies, including Bergstresser et al. (2009), Del Guercio and Reuter (2014), and Christoffersen, Evans, and Musto (2013), underpinned the economic analyses of the Council of Economic Advisors 2015 Study (“CEA Study”) and the DOL RIA assessment of the aggregate harm borne by retail investors in retirement plans due to conflicts of interest.[1081] Below we discuss evidence of potential investor harm attributable to recommendations of certain investments by financial professionals, including mutual funds, 401(k) plans, corporate bonds, and non-traded REITs. We then discuss the aggregate measures of investor harm estimated by the CEA Study and the DOL RIA and the limitations of those estimates.

Directly addressing the question of whether and how brokerage customers or advisory clients are affected by conflicts of interest (e.g., through quantification) requires measurement of the effect of advice, subject to different levels of conflict, received from broker-dealers or investment advisers. Most data currently available to researchers does not make distinctions between types of firms or financial professionals, and generally aggregates all firms or financial professionals into a single category of financial professionals (e.g., “adviser” or “financial adviser”). Further, an investor's propensity to choose a particular type of relationship may be correlated with the investor's skill or choice of investment and, therefore, may introduce bias into studies that are able to differentiate between types of advice relationships. Despite these limitations, by examining the existing academic literature, discussed below, we are able to gain qualitative insight into, and address commenter concerns, about conflicts of interest in the market for financial advice and the potential harm to investors.

The majority of studies to date that investigate the potential harm to investors arising from potential conflicts of interest have generally centered on findings based on analysis of investments in mutual funds. Due to the readily available data for mutual funds, the literature is rich with studies exploring various aspects of those securities, including the performance of funds, relationships between flows and performance or expenses, and differences in performance of funds depending on the distribution channel. These studies have further been used by commenters and other providers of economic analyses to estimate the magnitude of investor harm potentially stemming from conflicts of interest as it relates to mutual fund investments.[1082]

Evidence suggests that there is a strong relationship between past performance and subsequent fund flows, even when funds do not persistently outperform, suggesting that investors and/or their financial professionals may engage in return-chasing behavior.[1083] Several studies also examine the effect of mutual fund costs, and find that (1) fund flows are negatively related to front-end loads, but are relatively insensitive to fund-level operating expenses (e.g., 12b-1 fees), indicating that investors may be aware of upfront costs when selecting funds, but may be less attuned to the effect on net returns of ongoing operating expenses; [1084] and (2) unsophisticated investors are more likely to pay higher fees than sophisticated investors and are less likely to expend search costs to look for lower-fee funds.[1085] Retail investors, however, can benefit when funds commence operation of an institutional “twin” fund as overall expenses decrease and managerial effort increases, suggesting that retail investors may not be able to monitor fund managers as effectively as institutional investors.[1086]

Analyses in the CEA Study and the DOL RIA focus on the underperformance of certain broker-sold funds, potentially driven by conflicts of interest and a misalignment of incentives between financial professionals and investors.[1087] A number of studies document that actively managed load mutual funds purchased by investors through a financial professional underperform Start Printed Page 33429other types of mutual funds.[1088] For example, several studies find that actively managed load funds underperform a buy-and-hold strategy by between 1.56% and 2.28% annually, while other studies show that actively managed load funds underperform no-load funds by between 1% and 1.5% per year.[1089] This underperformance could be driven by poor market timing of investors (e.g., return chasing),[1090] or because increased expenditures by the funds on marketing and advertising successfully attract retail flows, and such expenses decrease net returns to investors over time.[1091] Fees and expenses, as documented by several studies, are two of the most reliable predictors of future returns, and fees should reflect performance (e.g., funds with high fees hypothetically should have better ex post performance in order to justify the fees), as at least some portion of the fees are dedicated to portfolio management; however, these studies consistently find a negative relationship between fees and performance—lower cost funds on average are more likely to generate higher performance net of fees than high cost funds.[1092]

A number of studies, also cited by the DOL RIA and the CEA Study, explore the distinction between broker-sold funds and direct-sold funds, and the effect of the distribution channel on fund flows and performance. When examining a sample of only broker-sold funds, one study shows that funds that pay higher fees to financial professionals or charge higher excess loads generate greater fund inflows.[1093] Moreover, broker-sold funds, on average, underperform direct-sold funds by between 23 bps and 255 bps per annum, with most studies observing average underperformance of approximately 100 bps (1%) per year.[1094]

Further, conflicts of interest appear to depend upon the choice of investment (e.g., broker-sold versus direct-sold funds) as well as the magnitude of the costs (e.g., mutual fund loads). One study suggests that the market for funds is segmented: More financially sophisticated investors select direct-sold funds, which unbundle portfolio management from advice of financial professionals, while less financially sophisticated investors purchase broker-sold funds, which combine portfolio management and advice.[1095] Another study focuses exclusively on broker-sold funds, but segments those funds into groups that depend on the size of excess loads and whether the funds are sold by affiliated or unaffiliated brokers.[1096] That study observes that funds with a one-standard deviation increase in excess loads are related to a reduction in future performance of between 34 bps and 49 bps in the following year. As detailed in Bergstresser et al. (2009), the broker-sold channel is likely to include funds sold through both broker-dealers and investment advisers; however, the data provided to the authors is not granular enough to be able to distinguish the performance characteristics of the two distinct channels.[1097]

A number of commenters stated that the Proposing Release did not appropriately account for existing economic analyses produced by the CEA Study and the DOL RIA to measure the potential harm to investors from conflicts of interest.[1098] The CEA Study and the DOL RIA use the literature on underperformance of broker-sold mutual funds as the foundation for their analyses on the potential harm of retail investors, focusing on harm specifically directed at retirement savings. Applying an estimate of approximately 1% underperformance to broker-sold funds, which is consistent with estimates of underperformance provided by several studies,[1099] the CEA Study and the DOL Start Printed Page 33430RIA apply different methods and approaches to calculate the aggregate dollar harm for retail investors in their retirement accounts.[1100] Based on $1.7 trillion invested in potentially conflicted funds, the CEA Study estimates annual harm to retirement investors of approximately $17 billion.[1101] Similarly, the DOL RIA, which estimates potential loss due to conflicts of interest of between 50 bps and 100 bps per year, produces ten-year aggregate estimates of investor harm of between $95 billion and $189 billion stemming from the underperformance of broker-sold mutual funds.

The level of underperformance due to fund selection is highly sensitive to the data sample, including the sample period, as well as the methodology employed to calculate performance. Many of the studies used to support the analyses underlying the CEA Study and the DOL RIA rely on data obtained prior to 2011. However, since 2011 there have been a number of advances in the market for mutual funds (e.g., shifts from load to no-load funds and increase in no-load funds without 12b-1 fees), likely leading some of the inferences drawn from those studies to be dated and not reflective of the current market environment.[1102] A number of commenters indicated potential flaws associated with the approach and interpretation of the analyses used by the CEA Study and the DOL RIA.[1103] One study updates the Del Guercio and Reuter (2014) sample using data from between 2003 and 2012 and tests the robustness of the methodology by examining the underperformance of broker-sold funds relative to direct-sold funds.[1104] While underperformance of broker-sold funds still existed, depending on the methodology and empirical approach used, the underperformance of these funds was reduced to between 20 bps and 70 bps, with the majority of the estimation approaches falling to between 20 bps and 50 bps, indicating a reduction in the underperformance of broker-sold funds relative to earlier studies.[1105] Another study replicates the Christoffersen et al. (2013) analysis of excess loads on underperformance using data from between 2010 and 2017, and finds that after 2010, funds with high excess loads did not underperform funds with low excess loads, which the authors interpret as evidence that financial professionals have improved their recommendations over time.[1106] Taken together, these recent studies on fund selection suggest that the magnitude of potential investor harm likely is not as large as that estimated by the CEA Study and the DOL RIA when more recent data is used to compute the underperformance of broker-sold mutual funds.

Another recent study replicates and extends the Friesen and Sapp (2007) and Bullard et al. (2008) analyses of market timing ability by investors in mutual fund sales and purchases to newer data (2007 through 2016).[1107] The study shows that the difference between dollar returns and buy-and-hold returns (“performance gap”) declined from 1.56% between 1991 and 2004 to 1.01% between 2007 and 2016 for a combined sample of load and no-load funds, suggesting a moderation in market timing errors in the most recent period. However, the excess performance gap (the difference between the performance gap on load funds and no load funds) has slightly increased between 2007 and 2016, from approximately 1% to 1.12%, indicating that, to the extent that load funds are sold by financial professionals and that all inflows and outflows are due solely to market timing motivations, investors who hold load funds are more prone to market timing errors than investors in no-load funds, and these errors are not being corrected by financial professionals. The studies discussed above acknowledge that interpretation of the empirical result that broker-sold funds underperform direct-sold funds is subject to another caveat because there is likely to be a selection bias in the type of investor that utilizes the direct-sold fund channel relative to those investors who rely on financial professionals for advice and recommendations about which funds to purchase. A similar selection bias is likely to exist for investors who purchase no-load funds versus those that purchase load funds from financial professionals. For example, although numerous studies discussed above suggest that financial advice is more likely to be obtained by older, more financially sophisticated, and wealthier investors,[1108] Chalmers and Reuter (2015) observe that younger, less financially experienced, and less wealthy investors are more likely to buy broker-sold funds.[1109]

Beyond mutual funds, a nascent literature is emerging on other securities that may be prone to conflicts of interest by financial professionals.[1110] Recent Start Printed Page 33431studies have examined potential conflicts of interest in markets for more complex investments, including reverse convertible corporate bonds and non-traded REITs. One study uses a sample of reverse convertible corporate bonds that differ only in the financial incentives provided to financial professionals and the coupon rate, and finds that investors are more likely to purchase—based on the advice given—the inferior bond (lower coupon, all else equal) with the higher “kick-back” to the broker-dealer, which appears to be driven by conflicts of interest between the financial professional and the investors.[1111] In an examination of non-traded REITs, one study documents that retail investors in non-traded REITs underperformed by over $45 billion relative to a portfolio of traded REITs, and that nearly one-third of that underperformance was driven by upfront fees used to compensate broker-dealers.[1112]

Finally, although a significant amount of empirical evidence suggests that there may be investor harm due to conflicts of interest between financial professionals and investors, because of changes to the mutual fund industry (e.g., shifts from load to no-load funds and the introduction of new share classes),[1113] increased competition,[1114] and the anticipation of regulation designed to ameliorate potential conflicts of interest, several new studies indicate that potential harm to investors arising from conflicts of interest may be declining.[1115] One survey paper concludes that although the empirical evidence is consistent with financial professionals having conflicts of interest that may harm consumers, “none of the articles concludes that clients would have been better off by foregoing advice. Even if people receive lower returns . . . consulting with an advisor may provide intangible benefits that consumers value,” and “it is important to bear in mind that these studies may have data limitations and in general cannot account for selection issues and the intangible benefits that investors receive from financial advisors.” [1116]

4. Trust, Financial Literacy, and the Effectiveness of Disclosure

A number of commenters stated that the Proposing Release did not sufficiently address how issues related to trust in financial professionals, investors' level of financial literacy or sophistication, and limitations on the effectiveness of disclosure likely exacerbate the problems of information asymmetry and potential conflicts of interest between retail investors and financial professionals.[1117] In order to address commenters' concerns, we examined and discuss below both academic and industry research on how trust and financial literacy could affect the recommendations provided by financial professionals to retail investors, as well as the effectiveness and limitations of disclosure in ameliorating potential conflicts of interest.

a. Trust in Investment Advice

In seeking financial advice, a retail investor places not only money but also trust in a financial professional. Commenters stated that retail investors will follow the advice of their “trusted advisors,” because they believe “financial professional[s] will place the investor's financial interest before his or her own.” [1118] Moreover, one industry study of over 800 investors notes that “96% of U.S. investors report that they trust their financial professional and 97% believe their financial professional has their best interest in mind.” [1119] Academic studies have explored the issue of trust and how it affects financial decisions of investors. Studies in this strand of academic literature find that higher levels of trust increase investors' propensity to seek investment advice and hire financial professionals,[1120] increase levels of stock market participation,[1121] and increase willingness to take on higher-risk investments.[1122] Regarding the importance of trust in established advice relationships, some studies find that trust in financial professionals is greater when investors have lower financial literacy or when purchasing complex products, such as insurance products.[1123] Further, as trust in Start Printed Page 33432financial professionals grows, investors may be more likely to delegate all investment decisions to the financial professional, irrespective of their level of financial education.[1124]

Several commenters stated that some financial professionals respond to the trust that retail investors place in them by acting on their conflicts of interest, which could benefit the financial professional at the expense of the investor.[1125] In addition, some studies have shown that higher levels of trust by retail investors can provide incentives for financial professionals to provide conflicted investment advice or undertake actions that benefit themselves at the expense of their customers. For example, one study found that because investors trust their financial professionals to provide higher ex ante expected returns on their risky investments, firms employing those professionals increased fees above levels that, in the author's view, were consistent with a competitive equilibrium, resulting in lower ex post net returns to investors.[1126] Further, this study documents that, although a relationship with a trusted professional can encourage investors to invest in financial markets when it is efficient for them to do so, in some cases financial professionals may instead provide more conflicted investment advice or inefficient advice in order to satisfy the desires of investors who trust them (e.g., undertaking lottery-like behavior by investing in the riskiest securities).[1127] Although trust in financial professionals can help alleviate certain behavioral biases and encourage participation in the securities markets, one commenter stated that “[r]etail customers who place their trust in salespeople that market services as acting in their best interest can end up paying excessively high costs for higher risk or underperforming investments that only satisfy a suitability standard, not a fiduciary standard.” [1128]

b. Financial Literacy and Investment Advice

As discussed above, financial literacy affects those who seek investment advice from financial professionals. One commenter noted that “[a]s consumers move closer to retirement, they may be more vulnerable to the negative impact of advice that is not in their best interest for three reasons: (1) The assets they have to invest are larger; (2) they may lack strong financial literacy skills; and (3) reduced cognition may affect financial decision making.” [1129] A number of studies have shown that financial literacy is significantly related to retirement planning and wealth accumulation by retail investors.[1130] Generally, studies find that investors who are more financially literate or sophisticated are more likely to seek investment advice and are more likely to follow that advice than less financially sophisticated investors.[1131] Further, one study shows that investors with lower financial literacy who do not seek investment advice underperform investors with higher financial literacy who seek investment advice by more than 50 bps on average, and these losses are predominantly driven by under-diversification of their portfolios.[1132]

A number of studies link retail investor demographic characteristics to financial literacy and document that financial illiteracy, although widespread, is most significant among investors with lower levels of educational attainment, women, and minorities.[1133] Moreover, many studies have examined the relationship between age, cognition, and financial literacy, and have shown that older investors, on average, are the least likely to be financially literate, and that financial literacy degrades as investors age.[1134] A number of these studies show, however, that investors with low levels of financial literacy are likely to be over-confident in their financial abilities. For example, several studies that explore the relationship between age and financial literacy show that confidence in financial decision making does not decline with age, and potentially leads to poor decisions (e.g., paying higher mortgage rates).[1135] Although over-confident investors with low levels of financial literacy could potentially benefit most from seeking and following investment advice, one study shows that over-confident investors are less likely to seek advice and perceive it as less valuable.[1136]

One potential problem, however, for investors with lower financial literacy is that they may not be able to distinguish the quality of their financial professional or the advice that they receive.[1137] One study documents that small traders, relative to large institutional investors, are unable to recognize biases in recommendations Start Printed Page 33433provided by securities analysts, and therefore follow analyst recommendations to buy and sell securities without considering other information produced by the analyst.[1138] Additionally, financial literacy may influence the quality of advice that financial professionals are willing to provide their clients. Some financial professionals appear to be more likely to provide superior information to more financially literate investors, who may be able to discern the quality of the advice, and more likely to provide inferior and potentially more conflicted information to investors who are less financially literate.[1139]

c. Evidence on the Effectiveness and Limitations of Disclosure

Regulation Best Interest relies in part on disclosure of certain material facts to retail customers.[1140] A number of commenters, however, stated that we failed to sufficiently account for limitations of disclosure in the Proposing Release of Regulation Best Interest.[1141] One commenter stated that “studies show that regulation by disclosure alone can actually undermine investor protection by emboldening advisers to ignore the client's best interest once they have `checked the disclosure box,' and by rendering investors even more vulnerable to conflicted advice once they receive disclosures.” [1142] Another commenter asserted that the ineffectiveness of disclosure arises because of investors' failure to understand the disclosure, inadequate time to read and process the information, cognitive dissonance, and trust in financial professionals' oral representations over written disclosures, among others.[1143] Below, we discuss studies that have identified characteristics that make disclosure effective as well as limitations to the effectiveness of disclosure to investors, in particular focusing on issues related to disclosure of conflicts of interest and how disclosure could inflate potential conflicts between financial professionals and investors.

Characteristics of effective disclosures include saliency of information, clear and concise information delivered in a transparent manner, and increased use of visual and interactive design, among others.[1144] One study, examining the effect of disclosure of fees and costs for mutual funds, observes that disclosures that prominently feature fees are more effective than others, but do not appear to reduce the importance that investors place on other fund characteristics, such as performance or risk.[1145] Other studies, however, have found that disclosures may be ineffective, particularly if the intended audience does not read the disclosure documents or does not understand the material presented to them. One study, for example, notes that as the length and complexity of the disclosure document increases, so does the time that it takes for investors to read and understand the material contained within; therefore, investors are more likely to prefer shorter, simpler, and more straightforward language in disclosures.[1146]

Many studies have explored the effect of revealing conflicts of interest to consumers and note that disclosure of conflicts may produce undesirable behavior by the disclosing party, or that receivers of the information provided by disclosures may fail to appropriately account for the implications.[1147] A series of studies documents that consumers do not account for conflicts of interest revealed through disclosures, and that such disclosures of conflicts can have the perverse effect of increasing bias and moral licensing in the provision of advice.[1148] Moral licensing arises when the discloser of information “take[s] an ethical action that validates [her] self-image as a good person” so she feels as though she “may well give [herself] permission to play fast and loose with the rules for a while.” [1149] Disclosure may also lead to a decrease in trust of biased advice because consumers feel pressured to satisfy the discloser's self-interest (“panhandler effect”); [1150] however, the panhandler effect can be mitigated if the disclosure is provided from an external source, the disclosure is not common knowledge between the discloser and the receiver of the information, the receiver can change his or her mind at a later date, and the receiver can change his or her mind in private.[1151] One Start Printed Page 33434study notes that, beyond conflicts disclosures, disclosures of actual bias lead to an improvement in performance of portfolios relative to investors who only receive conflict disclosures.[1152]

From the perspective of the investor, conflicts disclosures may lead to under- or over-reaction by investors. According to one study, investors may not know how to appropriately respond to information about conflicts (e.g., estimating the effects on the quality of advice or knowing how to search for an unbiased second opinion) and therefore may fail to adequately adjust their behaviors when conflicts are disclosed.[1153] Alternatively, some investors may overreact to disclosures of conflicts of interest, and may instead forgo valuable investment advice.[1154]

C. Benefits and Costs

1. General

In formulating Regulation Best Interest, the Commission has considered the potential benefits of establishing a best interest standard of conduct for broker-dealers, as well as the potential costs.

Regulation Best Interest enhances the broker-dealer standard of conduct beyond existing suitability obligations, and aligns the standard of conduct with retail customers' reasonable expectations. Under Regulation Best Interest, broker-dealers and their associated persons will be required, among other things, to: (1) Act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealer ahead of the interests of the retail customer; and (2) address conflicts of interest by establishing, maintaining, and enforcing policies and procedures reasonably designed to identify and fully and fairly disclose material facts about conflicts of interest, and in instances where we have determined that disclosure is insufficient to reasonably address the conflict, to mitigate or, in certain instances, eliminate the conflict. As a result, Regulation Best Interest should enhance the efficiency of recommendations that broker-dealers provide to retail customers, help retail customers evaluate the recommendations received, and improve retail customer protection when receiving recommendations from broker-dealers. The four component obligations of Regulation Best Interest's work together to enhance the current standard of conduct for broker-dealers and improve disclosure of material facts relating to the scope and terms of the relationship and conflicts of interest. Both on its own and together with the other new rules and forms we are adopting,[1155] we anticipate that Regulation Best Interest will reduce the agency costs of the relationship between the associated persons of the broker-dealer and their retail customers, while preserving access to financial advice and choice in the scope of services and how to pay for them.

In this section, we discuss broader themes associated with the costs and benefits of Regulation Best Interest, including general comments we received on our analysis of the costs and benefits in the Proposing Release. Following this more general discussion, we discuss the specific costs and benefits associated with Regulation Best Interest's four component obligations.

While the Commission has considered the potential benefits and costs of Regulation Best Interest, the Commission notes that generally it is difficult to quantify such benefits and costs with meaningful precision.[1156] Where possible, the Commission has provided an estimate of specific costs; however, several factors make the quantification of many of the effects of Regulation Best Interest difficult. With respect to costs to broker-dealers, there is a lack of data on the extent to which broker-dealers with different business practices engage in disclosure and conflict mitigation activities to comply with existing requirements, and therefore how costly it would be to comply with the proposed requirements. Also, the final rule will provide broker-dealers flexibility in complying with Regulation Best Interest, and, as a result, there could be multiple ways in which broker-dealers will satisfy this obligation, although broker-dealers must comply with each of the elements of the obligation. In addition, Regulation Best Interest may affect broker-dealers differently depending on their business model (e.g., full service broker-dealer, broker-dealer that uses independent contractors, insurance-affiliated broker-dealer) and size. More generally, estimates of the magnitude of such benefits and costs depend on assumptions about (1) the extent to which broker-dealers currently engage in disclosure and conflict mitigation activities, (2) how broker-dealers currently develop recommendations for their customers, (3) how broker-dealers choose to comply with Regulation Best Interest, (4) whether and how broker-dealers change investments and share classes offered as a result of Regulation Best Interest, (5) whether and how product manufacturers change their investment offerings as a result of Regulation Best Interest, (6) whether broker-dealers restrict access to brokerage accounts by raising minimum account sizes or adding additional qualification requirements, (7) whether broker-dealers try to shift customers to advisory accounts as a result of Regulation Best Interest, (8) how retail customers perceive the risk and return of their portfolios, (9) how likely retail investors are to act on a recommendation that complies with Regulation Best Interest, (10) how the risk and return of retail customer portfolios change as a result of how they act on the recommendation, and (11) how investment advisers, including dually registered advisers, react to the adoption of Regulation Best Interest and the other regulatory developments, including the rules we are adopting and interpretations we are issuing simultaneously with Regulation Best Interest. Because many of these factors are firm-specific and thus inherently difficult to quantify, even if it were possible to calculate a range of potential quantitative estimates, that range would be so wide as to not be informative about the magnitude of the Start Printed Page 33435benefits or costs associated with Regulation Best Interest.

Broader economic forces, beyond broker-dealer and retail customer behavioral responses to Regulation Best Interest, also make meaningful estimates of economic impacts difficult to develop. The market for investment advice and services is complex and vast, and as history demonstrates, is dynamic and affected by market-specific facts (including product developments and regulatory changes) as well as macroeconomic factors (including general economic conditions). For example, the introduction of indexation to the retail investment market and the subsequent increase in index products (and providers) and reduction in the costs of indexing for retail investors have had substantial effects on the market for retail investment advice and services. The more recent introduction of ETFs has had similar unanticipated and underestimated effects, including, in general, reducing investor costs and increasing tax efficiency, as well as increasing the array of product offerings. Developments such as the employer-driven shift from defined benefit plans to defined contribution plans also have had significant effects on the market for investment advice. We expect these and other factors, including factors not currently identified, will continue to affect the market and, accordingly, may change the economic effects of the rule. These sources of uncertainty and complexity make meaningfully quantifying many of the costs and benefits of the rule difficult and, particularly over long time periods, inherently speculative.

a. Broad Commenter Concerns With Respect to Costs and Benefits

We received many comments regarding our analysis in the Proposing Release of the benefits and costs.