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A Look Inside the SEC’s Final RIA Guidance and Its Discussion of “Best Interest”

In light of the significance of the final rules and commission interpretations issued by the Securities and Exchange Commission on June 5, 2019, Drinker Biddle & Reath’s Best Interest Compliance Team is publishing a series of articles on the subject. The first article, “The Final Reg BI Package: What to Know and What’s Next,”  described the final package of rules and interpretations. The second article covered “Form CRS .” The third article, summarized here, will provide a more detailed analysis of strategically selected provisions of the RIA Guidance.

The Securities and Exchange Commission (SEC) Interpretation Regarding Standard of Conduct for Investment Advisers (RIA Guidance) reaffirms, interprets, clarifies, and provides guidance regarding the fiduciary duty an investment adviser owes to its clients under the Investment Advisers Act of 1940 (Advisers Act) as it has been interpreted by common law and SEC guidance. The RIA Guidance also describes the underlying responsibilities that constitute an investment adviser’s fiduciary duties: the Duty of Care and the Duty of Loyalty.

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Seven States and D.C. Aggressively Challenge Reg BI

On September 9, 2019, the states of New York, California, Connecticut, Delaware, Maine, New Mexico and Oregon, and the District of Columbia (collectively, the States) filed a complaint for declaratory and injunctive relief against the SEC challenging Reg BI. By way of background, the SEC finalized Regulation Best Interest: The Broker-Dealer Standard of Conduct (Reg BI or the Final Rule) on June 5, 2019. The SEC also issued a final rule regarding Form CRS and two final Commission Interpretations. The implementation date for Reg BI and Form CRS is June 30, 2020.

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Financial Services Industry’s New Regulation Best Interest Standard of Care

On June 5, 2019, the Securities and Exchange Commission (SEC) approved the Regulation Best Interest Final Package, the new disclosure requirements that accompany the financial services industry’s new Regulation Best Interest standard of care. In light of the significance of Regulation Best Interest (Reg BI) for the financial services industry, Drinker Biddle & Reath’s Best Interest Compliance Team is publishing a series of articles on the SEC’s finalized “Reg BI Package” of rules and guidance.

One of the four parts of that package is Form CRS − a mandate that broker-dealers and investment advisers with retail investors (natural persons, trusts or entities representing natural persons) provide a two-page relationship summary disclosing information about their firm before a new client enters an investment adviser’s agreement or engages the services of a broker-dealer, or in the case of an existing client when there is any material change in the nature and scope of the relationship.

This disclosure must be concise, direct and made in plain language, taking into consideration the level of financial experience of retail investors. The specifics of the disclosures made to the retail investor are prescribed by CRS Form 17-page Instructions, including what must be disclosed − length, order, and even in some circumstances the wording.

It would be impossible to summarize the lengthy requirements here; suffice it to say there are eight items mandated for coverage:

Item 1: Introduction

Item 2: Relationships and Services

Item 3: Standard of Conduct

Item 4: Summary of Fees and Costs

Item 5: Comparisons to be provided by standalone investment advisers and standalone broker-dealers

Item 6: Conflicts of Interest

Item 7: Additional Information

Item 8: Key Questions to Ask

Also, there are 10 questions, “conversation starters” that the SEC requires be placed in a different font to distinguish them from other information. The Instructions direct that the questions that do not apply to a particular firm should not be used and additional questions that are frequently asked of a particular firm may be included, not to exceed 14 questions. If the Form CRS is presented electronically it may include hyperlinks to information described in the firm’s disclosures; therefore, it is actually larger in scope than it first appears.

The content of the disclosures must be filed on Form CRS through IARD by investment advisers and through EDGAR by broker-dealers. Firms also should note that Form CRS’s disclosure requirements are in addition to, not instead of, firms’ disclosure and reporting obligations under federal and state law and self-regulatory organizations’ rules and procedures.

FINRA reminds its Members of their obligation to meet the Form CRS delivery obligations and provides them with SEC Staff names and telephone numbers for assistance.

NOTE For a more complete discussion of the Form CRS guidance, read “Reg BI, Form CRS: The TARDIS of Disclosure Requirements. 

Read a summary of the Final Package in our article “The Final Reg BI Package: What to Know and What’s Next”.

House Looks to Put the Brakes on Reg BI

On the heels of the SEC’s recent approval of the “Reg BI Package,” on June 26, 2019 the U.S. House of Representatives passed a bill that would prevent enforcement of Reg BI.  Specifically, Rep. Maxine Waters included a last minute amendment to an appropriations bill that would prevent any funds from being used to “implement, administer [or] enforce” Reg BI.

While the bill was comfortably passed in the House, its prospects to pass in the Senate seem unlikely.  Senators will have the opportunity to introduce their own version, which will then need to be reconciled with the House’s.  As always, we will continue to closely monitor any developments concerning Reg BI, and will publish any updates.

Recommending Rollovers in the Evolving Regulatory Environment (Part 3)

In Parts 1 and 2 of this post, we talked about the current and proposed rules applicable to rollover recommendations by broker-dealers and RIAs. Part 1 discussed the DOL and FINRA rules that apply now. In Part 2, we explained the SEC proposals. In this post, we talk about how to make a compliant rollover recommendation, regardless of which set of rules applies.

(“Rollover recommendation” refers to advice to a retirement plan participant to take a distribution of his or her account and roll it over to an IRA that is being advised by the broker-dealer or RIA.)

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