Best Interest Standard of Care for Advisors #4

What Does “Best Interest” Mean? (Part 1)

I am writing two series of articles that together are called “The Bests.” One is about Best Practices for plan sponsors, while the other is about the Best Interest Standard of Care for advisors. Each series is numbered separately to make it easier to identify the subject that is most relevant to you.

This is the fourth of the series about the Best Interest Standard of Care.

“Best Interest” has become part of the American lexicon . . . as an aspirational goal or a demanding standard—depending on the point of view. But, what does best interest mean? It may mean different things to different people . . . and perhaps even to different regulators. However, I believe that most people would agree on the definition in this article.

As I read the guidance issued by the Department of Labor (DOL), the Securities and Exchange Commission (SEC), and New York State, there are actually two different best interests. The first is a standard of care and the second is a duty of loyalty. Of the two, the duty of loyalty is the easiest to define because, in all of the guidance it boils down to a requirement that an advisor cannot put his interest ahead of the investor’s.

The best interest duty of care is more complicated. The only agency that has offered a full definition is the DOL in its vacated Best Interest Contract Exemption. That definition was:

Investment advice is in the ‘‘Best Interest’’ of the Retirement Investor when the Adviser and Financial Institution providing the advice act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, based on the investment objectives, risk tolerance, financial circumstances, and needs of the Retirement Investor, without regard to the financial or other interests of the Adviser, Financial Institution or any Affiliate, Related Entity, or other party. [Emphasis added.]

 The SEC provided a partial definition in its proposed Regulation Best Interest, but the definition is, to a degree, circular:

 The best interest obligation . . . shall be satisfied if: The broker, dealer, or natural person who is an associated person of a broker or dealer, in making the recommendation exercises 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; . . . [Emphasis added.]

 New York State has adopted a best interest regulation for insurance and annuity products:

 The producer, or insurer where no producer is involved, acts in the best interest of the consumer when . . . the producer’s or insurer’s recommendation to the consumer reflects the care, skill, prudence, and diligence that a prudent person acting in a like capacity and familiar with such matters would use under the circumstances then prevailing.

If you look closely at the DOL’s best interest standard, you can see that it has three parts. The first is the requirement for a prudent process, that is, that the advisor act carefully, skillfully, diligently and prudently as a knowledgeable professional to develop the recommendation. The second is that the recommendation be based on the needs and circumstances of the investor, which in the case of ERISA, is the plan or participant. The third is a requirement that the advisor be loyal to the investor and not place his interest ahead of the investor’s.

The duty of care in the SEC’s proposed Reg BI and the New York standard also requires that an advisor exercise care, skill, diligence and prudence in developing a recommendation for an investor or, in the case of New York, an insured.

Because of the identical language in all three rules—the requirement to act with care, skill, diligence and prudence, it is likely that the three standards of care will be interpreted similarly. Since ERISA has a developed history through litigation and regulatory guidance, it would likely be the primary source for interpreting and applying that standard. Looking at the ERISA history, a careful, skillful, diligent and prudent advisor would engage in a thoughtful process to gather the information relevant to making a decision (that is, information that would be material to a knowledgeable person) and would then evaluate that information in light of the needs and circumstances of the investor. That process would be measured by the objective standard of a knowledgeable professional.

Stated differently, it appears that these best interest standards require that advisors engage in a thoughtful, professional process to obtain and evaluate the information needed to make a recommendation that is in the best interest of the investor. ERISA calls that a prudent process.

In a nutshell, the best interest standards are more demanding than the current suitability standards. That is particularly true of the weight to be given to costs and compensation. The SEC made that point in its discussion in Regulation Best Interest. However, I believe that it also increases the responsibility of advisors to consider the quality of the products and services being recommended, for example, the quality of the mutual fund managers and the financial stability of insurance companies.

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 The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

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