Parallels Between the SEC Regulation Best Interest and the DOL Best Interest Contract Exemption (Part 2)

This is my 91st article about interesting observations concerning the Department of Labor’s (DOL) fiduciary rule and exemptions. These articles also cover the DOL’s FAQs interpreting the regulation and exemptions and related developments in the securities laws—including the SEC’s “best interest” proposals.

This article continues my discussion of the similarities between the SEC’s proposed Regulation Best Interest (Reg BI) for broker-dealers and the DOL’s Best Interest Contract Exemption (BICE).

In addition to the standard of care (best interest and loyalty), Reg BI also has enhanced protections for conflicts of interest. Interestingly, they closely parallel the DOL’s conditions in BICE. For example, Reg BI proposes to require that material conflicts of interest involving financial incentives be eliminated or, alternatively, be disclosed and mitigated. The key word is “mitigated.” While the SEC guidance refers to “financial incentives” and the DOL refers to “compensation,” the outcome is much the same. ERISA and the Internal Revenue Code prohibit compensation that results from fiduciary recommendations, where the compensation is paid by a third party (for example, insurance commissions or 12b-1 fees) or where the compensation is variable, based on the recommendations (for example, commissions on securities transactions). Those types of payments are, in the view of the SEC, “material conflicts of interest involving financial incentives.”

In BICE, the DOL said that fiduciary advisors (which could include broker-dealers and their representatives) needed to have policies, procedures and practices in place to ensure that the compensation did not incent advisors to make recommendations that were not in the best interest of retirement investors. Similarly, the SEC says that broker-dealers must eliminate, or disclose and mitigate, conflicts of interest that involve financial incentives. As examples of “mitigation,” the SEC and DOL both gave the following:

• Within a particular investment category, compensation could be levelized. For example, the initial compensation and trailing compensation for all mutual fund sales could be set at the same level. As a hypothetical, that might be a 3% initial commission (or load) on all mutual funds, with a uniform 25 basis point trailing 12b-1 fee.
• Among investment categories, a broker-dealer might base differences in compensation on “neutral” factors. For example, if it took twice as much work to explain and sell a variable annuity contract, that would be a neutral factor that would justify twice as much compensation for the sale of an individual variable annuity. Hypothetically, if reasonable and level compensation for mutual fund sales was 3%, then in my hypothetical, first-year compensation of 6% could be justified for the sale of a variable annuity.

Keep in mind, though, that those are just examples about how the mitigation requirement could be satisfied. If the SEC’s Reg BI is finalized in its current form, broker-dealers will need to implement those policies or adopt other practices that are reasonably designed to mitigate the impact of material conflicts of interest arising from financial incentives associated with investment recommendations. (More technically, the SEC proposes that Reg BI would apply to recommendations of securities transactions and investment strategies that involve investment transactions.) Based on the examples used by the SEC, it appears that the Commission is serious about mitigation of the incentive effect of those payments.

As this article suggests, in order to fully appreciate the SEC’s Reg BI, broker-dealers need to understand the development and history of the DOL’s BICE. There are remarkable parallels. In fact, it would be difficult to understand some concepts, such as neutral factors, without having worked on BICE compliance issues.

However, it also means that broker-dealers who are in substantial compliance with the final BICE requirements–as opposed to the transition rules–have already substantially satisfied the SEC’s proposed rules. That’s good news. It means that the hard work put in by those firms, and the costs involved, will have been worth it. It also means that, for broker-dealers who were not close to being in compliance with full BICE, practices and compensation arrangements developed by others can be used to develop compliant practices for the SEC guidance.

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

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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