During the past two years, we have written about potential litigation arising under the Department of Labor's, first proposed, then adopted fiduciary rule (see Expect Focus, Vol. II, 2015). In the first of those articles, when the Rule was initially proposed,  we predicted the following as to sales of index and other annuities:

"From a litigation perspective, this change to a fiduciary status for the sales agent is substantial and in many cases will afford litigants unhappy with investment results or the ultimate characteristics of a particular form of annuity, the opportunity to second-guess the original decision applying a significant range of issues."

The fiduciary rule was then struck down by the Fifth Circuit Court of Appeals, and within a month or so of the court's opinion, the SEC proposed a new regulation governing the regulation of broker-dealers in the recommendation and sale of securities. 

This article is the first of several we will write on the potential impact of these events on the recommendation and sale of securities generally, with particular emphasis on insurance company annuities. Upcoming articles will focus on the prospect of future regulatory and litigation activity coupled with a few suggestions on how to prepare for and potentially prevent those actions. To set the stage, we will review key similarities and differences between the fiduciary rule's best interest contract exemption (the "BIC") and the proposed regulation best interest (the "RBI").

Q. What are the key differences between the BIC and the RBI standards?

A. There several differences – based on the types of transactions covered and the requirements for compliance.

1. Different Transactions Covered

The Fiduciary Rule: would impose fiduciary standards on all recommendations and sales of annuities to ERISA plans or IRAs, whether or not the annuities are "securities," (characterizing such recommendations or sales as "Investment Advice") and a violation of those fiduciary standards for sales with commission products absent compliance with the BIC exemption. 

The Regulation Best Interest: The proposed RBI imposes requirements on "recommendations" (a defined term) in connection with the sale of securities  to "retail customers" (a defined term). The RBI applies to all such recommendations, regardless of the amount or type of compensation paid. It applies to both the "purchase" of a security and the "sale" of a security and specifically applies to transactions involving "rollovers" to IRA plans.

Summary of  Transaction Differences: RBI only applies to "recommendations" that involve the sale of a security – thus only variable annuities or other registered security annuities are subject to the RBI requirements.i The fiduciary rule applied to all forms of advice to ERISA plans and IRAs involving the purchase or sale of annuities, mutual funds, and virtually all other forms of investments. Compliance with the BIC was required to render advice or engage in such transactions involving commission sales, regardless of whether the investment advice involved the purchase or sale of a "security."   Also, of course, the two standards would apply to different customers – ERISA plans and IRAs for the fiduciary rule, and all retail customers for the RBI. These general conclusions are subject to possible limitations, described more fully below.

2. Different Standards for What Constitutes 'Best Interest' Under the BIC and the RBI

The BIC Standards:  The  BIC exemption requires entering into a contract with pension and IRA customers that acknowledges the "fiduciary" status of the broker or agent rendering the "investment advice" and establishes a series of best interest requirements for the advice and sale, including the impartial conduct standards that form a part of the BIC. These standards are:

1. Act in the "best Interest" of the customer – defined as acting with prudence and loyalty.

2. Charge only reasonable compensation.

3. Make no misleading statements.

The RBI Standard:  The RBI will require broker-dealers "to act in the best interest of the retail customer at the time a recommendation is made without placing the financial or other interest of the broker-dealer or natural person who is an associated person making the recommendation ahead of the interest of the retail customer."ii It will effectively replace the current broker-dealer "suitability" standard.iii The RBI standard will be met if four component obligations are satisfied:

1. The Disclosure Obligation requires brokers to disclose the "scope and terms of the relationship" and all "material conflicts of interest." The SEC release contains an example of a disclosure format – a client relationship summary (CRS) setting forth the capacity, fees and charges, and type and scope of services, as well as the nature of any conflicts of interest.

2.The Care Obligation requires broker-dealers to exercise reasonable diligence, care, skill and prudence to:

a. Understand the potential risks and rewards of a recommendation and have reasonable basis to believe it is in the best interest of at least some of their retail customers

b. Have reasonable basis to believe the recommendation is in the best interest of the particular retail customer to whom the recommendation is being made, and

c. Have reasonable basis to believe that, if the broker-dealer is making a series of recommended transactions – that such recommendations, even if in the best interest in isolation, are not excessive and are in the best interest when viewed in total.  

3. The Conflict of Interest Obligations contain two related requirements as follows:

a. Establish and enforce policies to identify, disclose, or eliminate all material conflicts of interest associated with each recommendation covered by RBI

b. Establish and enforce policies to identify and disclose and mitigate, or eliminate, material conflicts of interest that arise from financial incentives associated with all recommendations covered by RBI.

Material conflicts of interest arising from financial incentives cannot be disclosed alone, but must be disclosed and mitigated, or eliminated. The SEC has requested comment, however, on whether disclosure alone would be sufficient to address certain "material conflicts arising from financial incentives."

Summary of Requirement Differences  

The fiduciary rule's BIC exemption would require acknowledgement of fiduciary status coupled with the impartial conduct standards as described above. Imposing the duties of loyalty and prudence was cast by the DOL as an acknowledgement of fiduciary standards – and the duties were coupled with specific requirements of compensation and disclosure, including the obligation to make no misleading statement and receive no more than reasonable compensation. The BIC does not specifically address a duty of ongoing monitoring. Given the required acknowledgement of fiduciary status under the BIC however, such a duty would, at least arguably, likely be required under existing ERISA precedents.iv 

The RBI, while acknowledging a duty of prudence (see discussion later) makes clear that the SEC is not imposing a fiduciary duty under that standard and it states in several portions of the release that RBI does not anticipate or require a "continuing duty" to monitor.v  As pointed out later in this article, those comments seem inconsistent with other references in footnotes and text in the SEC's proposal.vi In addition to the difference in fiduciary status, the RBI release acknowledges the need for and expectation of compensation, including commission compensation, resulting from the recommendation and sale of all securities. It notes that the RBI does not impose the condition that a recommendation be made "without regard to the financial or other interests" of the broker and makes clear that the level or form of compensation "would not per se prohibit a broker-dealer from transactions involving a conflict of interest."vii 

Having discussed the basic outline of the two "Best Interest" proposals, let's consider their impact on certain aspects of the sales transactions for annuities.

Q. Does the RBI apply to recommendations to retail customers for the purchase of both variable and fixed or fixed index annuity?

A. The RBI only applies to recommendations for the purchase or sale of securities. The recommendation to purchase a variable annuity or one of the newer version of so-called "buffer" annuities which are registered securities products would require compliance with the RBI. The RBI standards should not apply to a broker-dealer's recommendation to purchase a fixed or fixed index annuity. However, we note that the SEC release makes clear that recommendations for a "sale" of securities does trigger the obligations under the RBI. In addition, both ERISA and IRA plans are considered "retail customers" and the SEC's release notes that rollovers from ERISA 401k plans normally involve the sale of securities and the recommendation to rollover and purchase a non-security, including a fixed annuity would, under this analysis, require broker-dealer compliance with the RBI.viii Assume the decision to sell is premised on a comparison of these two options – mutual funds in the ERISA plan and a fixed annuity for the IRA. What analysis would be required for compliance with the RBI? Logically, the answer should be that only the "sale" of the mutual funds (the "security" in the transaction) will be subject to the RBI. Further analysis of this issue will no doubt occur during the comment period. 

Q. Given the SEC's acknowledgement that it does not impose a "reasonable compensation" obligation on broker-dealers, is there any further guidance on what compensation/remuneration standards are expected to be imposed by broker-dealers upon implementation of the RBI standards?

A. Throughout the release, there are comments and cautions regarding what is expected and what would not be considered appropriate compensation under the RBI under both the care and conflict of interest standards.ix The following limited portion of the general guidance appears in the preliminary comments to the SEC's release: 

"Regulation Best Interest would not per se prohibit a broker-dealer from transactions involving conflicts of interest," such as:

1. Charging commissions or other transaction-based fees

2. Differential compensation based on the product sold

3. Receipt of third-party compensationx

However as a cautionary note, there is not yet a complete picture as to what broker-dealers would be expected to provide under the obligation to develop conflict of interest policies in this area, particularly in connection with both compensation practices and financial incentives as further described in the release.xi

Q. Under the care obligation, the broker-dealer must "exercise reasonable diligence, skill, care and prudence in making a "recommendation." How does this differ from the current suitability standard applied to broker-dealer transactions?

A. While broker-dealers, in carrying out their duty to comply with the suitability obligation, have generally been required to be sufficiently knowledgeable about a particular security to insure that it is "suitable" for the  transaction at issue, there has never been such a sweeping requirement for knowledge and judgement to be exercised by the broker-dealer as to both the customer's needs and the risks and rewards of the security. The use of the term "prudence" is particularly meaningful and potentially a litigation trap for the unwary. As the SEC has noted, in several places, this RBI standard borders very closely on a description of  "fiduciary" obligations. While eschewing that it intends to specifically impose fiduciary obligationsxii by footnote, it asserts "[u]nder Regulation Best Interest...a broker-dealer's duty to exercise reasonable diligence, care, skill and prudence is designed to be similar to the standard of conduct that has been imposed on broker-dealers found to be acting in a fiduciary capacity."xiii In particular, the SEC is well aware that "prudence" is "not a term frequently used in the federal securities laws."xiv The SEC seeks comment on the use of this term as an element of the RBI, and we encourage our readers to suggest it not be included as it may cause confusion and possible unintended consequences in potential litigation over the broker-dealers' otherwise entirely reasonable conduct in a typical retail securities transaction.xv  

Q. What are the parameters of the disclosure obligation and how will it impact the broker-dealer's sale of annuity products to its customers?

A. Under the disclosure obligation, the broker-dealer must disclose both the scope and terms of the relationship and all material conflicts of interest. The release describes the "key material facts" to be disclosed as follows:

1. That the broker-dealer is acting in a broker-dealer capacity – (this is presumably to distinguish the conduct from that of an investment adviser)

2. The fees and charges that apply to the transactions, holdings and accounts of the customer

3. The type and scope of services provided by the broker-dealer

4. All material conflicts of interest.

An important note regarding this abbreviated list: in the footnote accompanying this description, the SEC notes that "[u]nder Regulation Best Interest, as proposed, a broker-dealer's obligation to disclose material conflicts of interest would resemble the duty to disclose material conflicts that has been imposed on broker-dealers found to be acting in a fiduciary capacity." xvi We also note that the Supreme Court has, in the case of ERISA fiduciaries, concluded that to satisfy the obligation of prudence in the investment world imposes an obligation at the time of purchase, as well as ongoing monitoring, supervision, and management of an investment transaction.xvii  Thus, in yet another context, the SEC is referencing a "fiduciary" standard as the touchstone for the implementation of the RBI.

Q. What constitutes a "material conflict of interest" and a "material conflict of interest arising from financial incentives?"

A. The SEC proposes "to interpret" the term "material conflict of interest" as "a conflict of interest that a reasonable person would expect might incline a broker-dealer—consciously or unconsciously —to make a recommendation that is not disinterested."xviii While it considered the definition of "material conflict of interest" used in BIC, the SEC chose this "interpretation" based on its review of "well-established" precedent under the Investment Advisers Act of 1940, under which advisers can face liability for fraud if they do not fully disclose material information to customers.xix While precedent under the Advisers Act may provide further guidance, in-and-of-itself, this is almost a meaningless definition — little better than saying a broker-dealer should know a material conflict of interest when it sees one.  It is notable, however, that the definition is derived from the Advisers Act, which regulates fiduciary advisers.  Accompanying this further reference to a fiduciary standard, the SEC states that "a broker-dealer's obligation to disclose material conflicts of interest would resemble the duty to disclose material conflicts that have been imposed on broker-dealers found to be acting in a fiduciary capacity."xx 

The SEC does more to define "material conflicts of interest from financial incentives" by providing a non-exhaustive list of what it considers this term to cover. The SEC's list includes:

  • Broker-dealer compensation practices, including fees and other charges for the services provided and products sold;
  • Employee compensation and employment incentives (e.g., quotas, bonuses, sales contests, special awards, differential or variable compensation, incentives tied to appraisals or performance reviews);
  • Compensation practices involving third-parties, including both sales compensation and compensation that does not result from sales;
  • Receipt of commissions, sales charges, other fees and financial incentives, whether paid by the retail customer or a third-party; and
  • Sales of proprietary products or services, or products of affiliates.

This list seems to encompass virtually all financial incentives that would be associated with a recommendation to purchase a security. It is important to remember that, under RBI, a broker-dealer will need to "disclose and mitigate, or eliminate" material conflicts of interest "arising from financial incentives." The SEC requests comment, however, regarding "what financial incentives might appropriately be addressed" through disclosure alone and "for which additional mitigation is unnecessary."xxi

Q. What "policies and procedures" must be developed to meet RBI's conflict of interest obligations? 

A. Whether a broker-dealer's policies and procedures are "reasonably designed to meet its conflict of interest obligations" will depend on "the facts and circumstances of a given situation."xxii The policies and procedures, however, must be "aimed at mitigating, in addition to disclosing, material conflicts of interest arising from financial incentives."xxiii  It's not exactly clear what the SEC means by "mitigation," however, the SEC provides the example of "enhanced supervision" as being a "heightened mitigation measure."xxiv  The SEC also makes a point of stating that merely establishing the policies and procedures, without enforcing them, will not comply with RBI.xxv

Broker-dealers will have the "flexibility to tailor" their policies and procedures based on their business practices, size and complexity, the range of services and products they provide, and the types of conflicts involved.xxvi  They can comply with RBI's policies and procedures requirements by modifying existing supervisory systems, as opposed to creating new ones, which is in keeping with the SEC's stated goal of minimizing additional compliance costs that might be passed on to retail customers.xxvii   

The SEC urges broker-dealers to employ "a risk-based compliance and supervisory system" that would "focus on specific areas of their business that pose the greatest risk of noncompliance ... as well as the greatest risk of potential harm to retail customers."xxviii Because this process will involve self-identifying risky areas, broker-dealers should be very careful in how they approach this process to avoid unnecessarily highlighting potential areas that might be targeted by regulators or the plaintiffs' bar down the road. Broker-dealers should take care to maintain the attorney-client privilege with respect to communications surrounding the development of certain policies and procedures.

The SEC also leaves it to broker-dealers to tailor their mitigation measures based on their business models, focusing on "areas where heightened concern may be warranted."xxix The SEC suggests that "heightened mitigation measures, including enhanced supervision" are warranted where less sophisticated customers are concerned, where the compensation is less transparent, and where products are more complex.xxx

Q. Does the SEC flag any particular compensation practices as being of greater concern?

A. Yes, the SEC provides a non-exhaustive list of six "policies and practices" relating to "material conflicts arising from financial incentives" that broker-dealers should take particular care to address. These include avoiding compensation thresholds that disproportionately increase compensation, and minimizing compensation incentives to favor one type of product over another.xxxi 

The SEC also states that certain "material conflicts arising from financial incentives may be more appropriately avoided in their entirety" for retail customers or categories of retail customers, such as those who are less sophisticated. In particular, the SEC identifies as problematic the "payment or receipt of certain non-cash compensation" such as "sales contests, trips, prizes, and other similar bonuses that are based on sales of certain securities."xxxii

Footnotes

i See Regulation Best Interest, SEC Release No. 34-83062 (April 18, 2018) (the "release") at 1.
ii Id.
 iii Id. at 40-43 ("we are proposing to enhance existing broker-dealer conduct obligations").
iv See, e.g., Tibble v. Edison Int'l, 135 S. Ct. 1823, 1828–29 (2015) ("a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones").
v See, e.g., release at 79, 81.
vi See, e.g., id. at 134, 134 n. 222.
vii Id. at 53.
viii Id. at 82-83.
ix See, e.g., id. at 140, 148, 151, 169, 172 n. 298, 174-184.
x Id. at 53.
xi Id. at 169-170, 174-184, 189-196.
xii See, e.g., id. at 62-63 (discussing RBI's departure from the 913 study's recommendation for a uniform fiduciary standard of conduct for investment advisers and broker-dealers).
xiii Id. at 134 n. 222.
xiv Id. at 134. As noted by the SEC, however, under Section 11(c) of the Securities Act, the adequacy of an underwriter's due diligence defense is determined by reference to what is "required of a prudent man in the management of his own property." Id. at n. 224.
 xv See id. at 162 ("Is 'prudence' a sufficiently clear term when referring to the broker-dealer's care obligation?").
xvi Id. at 98 n. 173.
xvii See Tibble, 135 S. Ct. at 1828–29.
xviii Release at 110-111, 111 n. 198, 169.
xix Id. at 110-111, 111 n. 198.
xx Id. at 98 n. 173.
xxi Id. at 170.
xxii Id. at 168.
xxiii Id. at 168.
xxiv Id. at 179.
xxv Id. at 168.
xxvi Id. at 171.
xxvii Id. at 167-168.
xxviii Id. at 171.
xxix Id. at 179.
xxx Id. at 179-180.
xxxi Id. at 181-182.
xxxii Id. at 183.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.