For Broker-Dealers: SEC Actions
Time to Roll-Up Your Sleeves and Dive into Regulation Best Interest: There are many great resources out there that summarize the newly adopted Securities Exchange Act Rule 15l-1 (“Regulation BI”). Here are a few of my favorites:
- SEC Adopts Regulation Best Interest. Lofchie, S.; Bartlett, M.R.; Patel, N.S.; and Almquist, C. from Cadwalader, Wickersham & Taft LLP, in National Law Review, (2019, June 6).
- SEC Issues Final Regulation BI. The Wagner Law Group (2019, June 7).
- SEC Adopts Regulation Best Interest and Form CRS: Issues Investment Advisers Act Interpretations. Sidley Austin LLP (2019, June 13).
Where do we begin? First, determine whether Regulation BI applies to your firm. Regulation BI applies to any broker-dealer that recommends securities transactions or investment strategies involving securities transactions to retail customers. For purposes of Regulation BI, the SEC defines Retail Customer as, “a natural person, or the legal representative (non-professional) of such natural person who: (1) receives personalized investment advice about securities from a broker or dealer or investment adviser; and (2) uses such advice primarily for personal, family, or household purposes”. This definition includes Accredited Investors and high-net-worth individuals! The SEC did not define the term recommendation but will continue to rely on existing broker-dealer guidance and case law.
To prepare for Regulation BI, broker-dealers should review their products and services, and document the following:
- Identify all securities products, services and strategies offered by your firm;
- For each product, service, and strategy listed:
- Identify all customer-types to whom the products, services, and strategies are made available;
- Identify the associated risks, rewards, and costs for each product, service and strategy;
- Identify any material limitations;
- Identify all compensation programs in which the Firm and each of its registered representatives participate.
- For each product, service, and strategy offered to retail customers and for each compensation program in which the Firm participates, identify and document conflicts of interest that create an incentive for a registered representative to place the interest of the broker-dealer, or themselves, ahead of the interest of the retail customer.
- For each conflict of interest, determine what disclosures are necessary. Existing disclosures may still work, but some conflicts may require a new or amended disclosure document.
NOTE: Form CRS will NOT satisfy all of your Disclosure Obligations under Regulation BI.
We also recommend It is also recommended that, if possible, senior members of Compliance, Risk Management, Legal, and Sales participate on a committee to implement Regulation BI. Over the next several months, we will be dissecting each component of Regulation BI and presenting you with various considerations as you move through the process above. MORE TO COME… Contributed by Rochelle A. Truzzi, Senior Compliance Consultant.
For Investment Advisers and Broker-Dealers: SEC Actions
Form CRS Approved. As part of the regulatory package that includes Regulation BI, the SEC adopted a final version of the Form CRS Relationship Summary (“Form CRS”), a new disclosure document, which applies to retail investors and will become Part 3 of the Form ADV. The SEC took to heart many of the comments on the original Form CRS proposal, dropping much of the required language and adopting a more user-friendly question and answer format. The result is a two-page document with five required topics:
- Introduction (including a link to Investor.gov/CRS, a page on the SEC’s Office of Investor Education website that will offer educational information about investment professionals)
- Relationship and Services
- Fees, Costs, Conflicts and Standard of Conduct
- Disciplinary History
- Additional Information
Firms can use graphics such as charts, hyperlinks and electronic formats. The SEC allows the use of embedded hyperlinks in electronic versions to cross-reference more detailed information on fees, services and conflicts. Firms are also required to disclose how their financial professionals are compensated, along with the conflicts the payments create. Firms must disclose whether the firm and any of its financial professionals have reportable disciplinary history and tell investors where they can find more information about these events instead of including descriptions in the form. The form also requires firms to include “Conversation Starters” throughout the document instead of the proposed “Key Questions to Ask” at the end of the document, as recommended in the initial proposal.
The SEC emphasized the use of “plain English” in Form CRS:
“In a change from the proposal, the instructions will not permit use of legal jargon or technical terms without explaining them in plain English, even if the firm believes that reasonable retail investors will understand those terms.”
Registered firms, or investment advisers with a pending registration application with the SEC before June 20, 2020, have from May 1, 2020, to June 30, 2020, to file the initial Form CRS. After June 30, 2020, any newly registered broker-dealer will need to file a Form CRS by the date its registration becomes effective. Similarly, investment advisers seeking registration after that date will be required to include the Form CRS as part of their application. Stay tuned for more on Form CRS from Hardin Compliance! Contributed by Jaqueline M. Hummel, Partner and Managing Director.
SEC Issues Standard of Conduct for Investment Advisers. The SEC explains what fiduciary duty means for investment advisers. The SEC breaks down an adviser’s fiduciary obligations into two basic duties, a duty of care and a duty of loyalty. The duty of care means an adviser must provide advice in the client’s best interest, seek best execution where the adviser has the responsibility to select broker-dealers to execute trades and monitor the client’s portfolio over the course of the relationship. The duty of loyalty hinges on the adviser making full and fair disclosures of conflicts of interest to its clients so they can make an informed decision about whether to hire the adviser. Check out our blog post for advice on how to comply. Jaqueline M. Hummel, Partner and Managing Director.
When is a Broker-Dealer Not a Broker-Dealer; SEC defines the Scope of the “Solely Incidental” Exclusion. Broker-dealers can rely on an exemption from registration as investment advisers for providing advisory services that are “solely incidental” to their brokerage business under Section 202(a)(11)(C) of the Advisers Act, as long as they do not receive any special compensation for this advice. In light of the passage of Regulation BI, the Commission decided to weigh in on the meaning of the “solely incidental” exclusion from the definition of investment adviser in this new interpretation “Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion from the Definition of Investment Adviser.” The Commission discusses two situations where broker-dealers can cross the line: where they exercise investment discretion, and when they provide ongoing monitoring of client accounts. A broker-dealer that has unlimited discretion to effect securities transactions in a customer’s account has crossed the “solely incidental” line. The SEC considers the exercise of limited discretion as acceptable in situations where a broker-dealer engages in trading activity based on specific parameters established by the customer.
Similarly, the SEC views a broker-dealer that agrees to provide continuous account monitoring to clients as crossing the solely incidental line. A broker that occasionally reviews a client’s account to provide buy, sell or hold recommendations would not.
Broker-dealers that want to avoid registration as investment advisers should review their written supervisory procedures to ensure that investment discretion and account monitoring are limited and are reasonably related to the firm’s primary business of effecting securities transactions. Contributed by Jaqueline M. Hummel, Partner and Managing Director.
For Investment Advisers
GIPS 2020 adopted June 30. The CFA Institute issued its much-anticipated update to the Global Investment Performance Standards for Firms on June 30, 2019. Public comment on the 2020 GIPS Standards Exposure Draft and 2020 GIPS Standards for Verifiers Exposure Draft closed on December 31, 2018. The 2020 GIPS standards are effective January 1, 2020. The CFA Institute will be hosting a webinar on the key concepts of the 2020 edition applicable to investment managers on August 7, 2019, at 11 a.m. EST and again on August 7, 2019, at 8 p.m. EST.
The 2020 GIPS Standards are divided into three separate documents, one for asset owners, one for investment management firms, and one for verifiers. According to the adopting release, the 2020 GIPS Standards for Firms include nine sections and a glossary. Sections 1 through 7 are the same as in the 2020 Exposure Draft. Section 8 includes the GIPS Advertising Guidelines applicable to asset managers. The GIPS Standards for Asset Owners include the same content as sections 8 through 12 of the 2020 Exposure Draft (renumbered 21 through 25). Section 26 includes the GIPS Advertising Guidelines applicable to asset owners.
The 2020 GIPS Standards include changes intended to improve the accessibility and appeal of GIPS to alternative and pooled fund managers: (1) new report formats for traditional GIPS-compliant presentations, pooled fund and asset owners reports, (2) options for limited distribution and broadly distributed funds to present pooled fund report or composite reports in certain situations, and (3) options for alternative managers to satisfy the external valuation requirement associated with private market investments. Additionally, GIPS compliant firms would gain flexibility through new options to report Internal Rate of Return rather than Time Weighted Return (TWR) in certain circumstances and a return to the acceptable use of carve-outs.
Looking for more information in the meantime? The CFA Institute has grouped its materials related to GIPS 2020 on a dedicated webpage and summarized the top 10 FAQs raised by firms, service providers and others in the industry during the open comment period. Watch for additional information from Hardin once finalized, and see our October 2018 issue of the Compliance Informer for additional exposure draft details. Contributed by Cari A. Hopfensperger, Senior Compliance Consultant.
Pennsylvania Communicates Custody Requirements for RIAs with Standing Letters of Authorization Arrangements Established by Clients and Qualified Custodians. Following inquiries from industry, the Pennsylvania Department of Banking and Securities recently issued a Bureau Position memorializing its current requirements for custody for investment advisers with standing letter of authorization arrangements (“SLOA”) established by a client and qualified custodian.
Pennsylvania’s position piggybacks on the SEC’s guidance on SLOAs outlined in the Commission’s February 2017 no-action letter to the Investment Adviser Association (IAA). It’s no surprise that Pennsylvania believes arrangements where an investment adviser is authorized to withdraw client funds or securities held with a qualified custodian constitutes custody and triggers disclosure of custody on Item 9 of Form ADV Part 1A. Fortunately, just as the SEC states in its no-action letter to the IAA, so long as an investment adviser meets certain conditions with those arrangements, it can escape the more cumbersome obligations for custody.
The conditions identified by the SEC and now by Pennsylvania are designed to eliminate an investment adviser’s ability to exercise discretion in disbursing client funds. Pennsylvania adopts the same seven requirements identified by the SEC in the IAA no-action letter:
- a client must provide a custodian with written instructions including account numbers or name of the third party for disbursements;
- a client must control the timing for third-party disbursements;
- a custodian must verify the client’s instructions;
- a client can end or alter the disbursement instructions;
- an investment adviser cannot alter the disbursement instructions;
- a custodian maintaining client assets is an unrelated party to the investment adviser; and
- the custodian involved in the SLOA provides initial and ongoing notice to the client regarding the instructions.
Pennsylvania-registered investment advisers meeting these seven conditions will not be required to maintain a net worth of $35,000, file an audited balance sheet, complete an internal control report or be subject to an annual surprise examination of clients’ funds or securities by an independent certified public accountant. Pennsylvania gives affected investment advisers six months to comply with its Position and to amend their Form ADVs. Contributed by Carolyn W. Mendelson, Esq., Senior Compliance Consultant.
Photo Credits: Photo by Paolo Nicolello on Unsplash