SEC Adopts Best Interest Standard For Broker-Dealers And Fiduciary Duty Guidance For Investment Advisers

Author:Ms Robin M. Bergen, Carl F. Emigholz, Zachary L. Baum, Jim Wintering, Richard S. Lincer and Colin D. Lloyd
Profession:Cleary Gottlieb Steen & Hamilton LLP

New Standards Seek to Maintain Flexibility But Leave Open Questions About Scope and Enforcement

On June 5, 2019, the Securities and Exchange Commission ("SEC") finalized Regulation Best Interest ("Reg BI" or the "Final Rule") under the Securities Exchange Act of 1934 ("Exchange Act") to establish a new "best interest" standard of conduct for broker-dealers when making a recommendation of any transaction or investment strategy involving securities to a retail customer.

The SEC also finalized its interpretation of the fiduciary duty applicable to investment advisers (the "Guidance") under the Investment Advisers Act of 1940 ("Advisers Act") and a disclosure form for investment advisers and broker-dealers to provide to retail investors ("Form CRS"). Finally, the SEC issued an interpretation on the scope of the "solely incidental" prong of the broker-dealer exclusion from the Advisers Act.

In finalizing Reg BI and the Guidance, the SEC has more closely aligned the standards of conduct applicable to broker-dealers and investment advisers while noting that it recognizes the fundamental differences between the services each provide. It also stressed a goal of maintain investors' ability to choose between the two.

Reg BI and Form CRS have a June 30, 2020 compliance date; the interpretations are effective upon publication in the Federal Register.

Regulation Best Interest: The Final Rule largely maintained the obligations initially proposed, establishing a new standard of conduct for broker-dealers when recommending any securities transaction or investment strategy to a retail customer that requires a broker-dealer and its associated persons to (1) act in the retail customer's best interest and (2) not place their own interests ahead of the customer's interests ("General Obligation"). While the Final Rule significantly overlaps with existing Financial Industry Regulatory Authority ("FINRA") suitability rules and related guidance, it includes specific disclosures and only requires mitigation or elimination of certain conflicts of interest. The Final Rule did not fully harmonize the standard of conduct applicable to broker-dealers and investment advisers, reflecting the SEC's goal of preserving retail investor access to different types of investor services and products and its acknowledgment of the differences between the two business models...

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