Regulation Best Interest: The Focus on Costs (Part 2)

The SEC has issued its final Regulation Best Interest (Reg BI), Form CRS Regulation, RIA Interpretation and Solely Incidental Interpretation. I am discussing the SEC’s guidance in a series of articles entitled “Best Interest Standard of Care for Advisors.”

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The SEC’s Reg BI establishes a best interest standard of care for investment recommendations to retail customers by broker-dealers and their registered representatives. In addition, Reg BI requires new disclosures and mitigation of advisor’s financial conflicts of interest. The SEC also issued an Interpretation of the Standard of Conduct for Investment Advisers, which clarified the SEC’s position on a number of issues related to the fiduciary standard and conflicts of interest for RIAs. There were two other pieces of guidance: the Form CRS Regulation (which requires a simplified front-end disclosure by broker-dealers and investment advisers); and the Solely Incidental Interpretation for limited discretion and monitoring of accounts by broker-dealers.

In my last article in this series, I pointed out that the SEC has explicitly included the consideration of costs in the text of Reg BI and stated that broker-dealers must consider costs for every recommendation (beginning on Reg BI’s compliance date of June 30, 2020). That doesn’t mean that the lowest-cost investment or investment strategy must be recommended (e.g., where the customer’s investment profile indicates that a more expensive alternative would be better serve the investor), but it does mean that costs must be part of that analysis, and that higher-cost alternatives must be justified by the retail customer’s investment profile. Picking up with where the last article left off, here is the SEC’s thinking:

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