83_FR_21293 83 FR 21203 - Proposed Commission Interpretation Regarding Standard of Conduct for Investment Advisers; Request for Comment on Enhancing Investment Adviser Regulation

83 FR 21203 - Proposed Commission Interpretation Regarding Standard of Conduct for Investment Advisers; Request for Comment on Enhancing Investment Adviser Regulation

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 90 (May 9, 2018)

Page Range21203-21214
FR Document2018-08679

The Securities and Exchange Commission (the ``SEC'' or the ``Commission'') is publishing for comment a proposed interpretation of the standard of conduct for investment advisers under the Investment Advisers Act of 1940 (the ``Advisers Act'' or the ``Act''). The Commission also is requesting comment on: Licensing and continuing education requirements for personnel of SEC- registered investment advisers; delivery of account statements to clients with investment advisory accounts; and financial responsibility requirements for SEC-registered investment advisers, including fidelity bonds.

Federal Register, Volume 83 Issue 90 (Wednesday, May 9, 2018)
[Federal Register Volume 83, Number 90 (Wednesday, May 9, 2018)]
[Proposed Rules]
[Pages 21203-21214]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-08679]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 275

[Release No. IA-4889; File No. S7-09-18]
RIN 3235-AM36


Proposed Commission Interpretation Regarding Standard of Conduct 
for Investment Advisers; Request for Comment on Enhancing Investment 
Adviser Regulation

AGENCY: Securities and Exchange Commission.

ACTION: Proposed interpretation; request for comment.

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SUMMARY: The Securities and Exchange Commission (the ``SEC'' or the 
``Commission'') is publishing for comment a proposed interpretation of 
the standard of conduct for investment

[[Page 21204]]

advisers under the Investment Advisers Act of 1940 (the ``Advisers 
Act'' or the ``Act''). The Commission also is requesting comment on: 
Licensing and continuing education requirements for personnel of SEC-
registered investment advisers; delivery of account statements to 
clients with investment advisory accounts; and financial responsibility 
requirements for SEC-registered investment advisers, including fidelity 
bonds.

DATES: Comments should be received on or before August 7, 2018.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/interp.shtml); or
     Send an email to [email protected]. Please include 
File Number S7-09-18 on the subject line.

Paper Comments

     Send paper comments to Brent J. Fields, Secretary, 
Securities and Exchange Commission, 100 F Street NE, Washington, DC 
20549-1090.

All submissions should refer to File Number S7-09-18. This file number 
should be included on the subject line if email is used. To help the 
Commission process and review your comments more efficiently, please 
use only one method. The Commission will post all comments on the 
Commission's internet website (http://www.sec.gov/rules/interp.shtml). 
Comments also are available for website viewing and printing in the 
Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make publicly available.
    Studies, memoranda or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's website. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: Jennifer Songer, Senior Counsel, or 
Sara Cortes, Assistant Director, at (202) 551-6787 or [email protected], 
Investment Adviser Regulation Office, Division of Investment 
Management, Securities and Exchange Commission, 100 F Street NE, 
Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION: The Commission is publishing for comment a 
proposed interpretation of the standard of conduct for investment 
advisers under the Advisers Act [15 U.S.C. 80b].\1\
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    \1\ 15 U.S.C. 80b. Unless otherwise noted, when we refer to the 
Advisers Act, or any paragraph of the Advisers Act, we are referring 
to 15 U.S.C. 80b of the United States Code, at which the Advisers 
Act is codified, and when we refer to rules under the Advisers Act, 
or any paragraph of these rules, we are referring to title 17, part 
275 of the Code of Federal Regulations [17 CFR 275], in which these 
rules are published.
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Table of Contents

II. Investment Advisers' Fiduciary Duty
    A. Duty of Care
    i. Duty To Provide Advice That Is in the Client's Best Interest
    ii. Duty To Seek Best Execution
    iii. Duty To Act and To Provide Advice and Monitoring Over the 
Course of the Relationship
    B. Duty of Loyalty
    C. Request for Comment
III. Economic Considerations
    A. Background
    B. Economic Impacts
IV. Request for Comment Regarding Areas of Enhanced Investment 
Adviser Regulation
    A. Federal Licensing and Continuing Education
    B. Provision of Account Statements
    C. Financial Responsibility

I. Introduction

    An investment adviser is a fiduciary, and as such is held to the 
highest standard of conduct and must act in the best interest of its 
client.\2\ Its fiduciary obligation, which includes an affirmative duty 
of utmost good faith and full and fair disclosure of all material 
facts, is established under federal law and is important to the 
Commission's investor protection efforts.\3\ The Commission also 
regulates broker-dealers, including the obligations that broker-dealers 
owe to their customers. Investment advisers and broker-dealers provide 
advice and services to retail investors and are important to our 
capital markets and our economy more broadly. Broker-dealers and 
investment advisers have different types of relationships with their 
customers and clients and have different models for providing advice, 
which provide investors with choice about the levels and types of 
advice they receive and how they pay for the services that they 
receive.
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    \2\ SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 
194 (1963) (``SEC v. Capital Gains''). See also infra notes 26-32 
and accompanying text; Investment Adviser Codes of Ethics, 
Investment Advisers Act Release No. 2256 (July 2, 2004); Compliance 
Programs of Investment Companies and Investment Advisers, Investment 
Advisers Act Release No. 2204 (Dec. 17, 2003) (``Compliance Programs 
Release''); Electronic Filing by Investment Advisers; Proposed 
Amendments to Form ADV, Investment Advisers Act Release No. 1862 
(Apr. 5, 2000). We acknowledge that investment advisers also have 
antifraud liability with respect to prospective clients under 
section 206 of the Advisers Act.
    \3\ See SEC v. Capital Gains, supra note 2.
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    Today, the Commission is proposing a rule that would require all 
broker-dealers and natural persons who are associated persons of 
broker-dealers to act in the best interest of retail customers \4\ when 
making a recommendation of any securities transaction or investment 
strategy involving securities to retail customers (``Regulation Best 
Interest'').\5\ We are also proposing to require registered investment 
advisers and registered broker-dealers to deliver to retail investors a 
relationship summary, which would provide these investors with 
information about the relationships and services the firm offers, the 
standard of conduct and the fees and costs associated with those 
services, specified conflicts of interest, and whether the firm and its 
financial professionals currently have reportable legal or disciplinary 
events.\6\ In light of the comprehensive nature of our proposed set of 
rulemakings, we believe it would be appropriate and beneficial to 
address in one release \7\ and reaffirm--and in some cases clarify--
certain aspects of the fiduciary duty that an investment adviser owes 
to its clients under section 206 of the Advisers Act.\8\
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    \4\ An investment adviser has a fiduciary duty to all of its 
clients, whether or not the client is a retail investor.
    \5\ Regulation Best Interest, Exchange Act Release No. 34-83062 
(April 18, 2018) (``Regulation Best Interest Proposal'').
    \6\ Form CRS Relationship Summary; Amendments to Form ADV; 
Required Disclosures in Retail Communications and Restrictions on 
the use of Certain Names or Titles, Investment Advisers Act Release 
No. IA-4888 (April 18, 2018) (``Form CRS Proposal'').
    \7\ This Release is intended to highlight the principles 
relevant to an adviser's fiduciary duty. It is not, however, 
intended to be the exclusive resource for understanding these 
principles.
    \8\ The Commission recognizes that many advisers provide 
impersonal investment advice. See, e.g., Advisers Act rule 203A-3 
(defining ``impersonal investment advice'' in the context of 
defining ``investment adviser representative'' as ``investment 
advisory services provided by means of written material or oral 
statements that do not purport to meet the objectives or needs of 
specific individuals or accounts''). This Release does not address 
the extent to which the Advisers Act applies to different types of 
impersonal investment advice.
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    An investment adviser's fiduciary duty is similar to, but not the 
same as, the proposed obligations of broker-

[[Page 21205]]

dealers under Regulation Best Interest.\9\ While we are not proposing a 
uniform standard of conduct for broker-dealers and investment advisers 
in light of their different relationship types and models for providing 
advice, we continue to consider whether we can improve protection of 
investors through potential enhancements to the legal obligations of 
investment advisers. Below, in addition to our interpretation of 
advisers' existing fiduciary obligations, we request comment on three 
potential enhancements to their legal obligations by considering areas 
where the current broker-dealer framework provides investor protections 
that may not have counterparts in the investment adviser context.
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    \9\ Regulation Best Interest Proposal, supra note 5. In addition 
to the obligations proposed in Regulation Best Interest, broker-
dealers have a variety of existing specific obligations, including, 
among others, suitability, best execution, and fair and reasonable 
compensation. See, e.g., Hanly v. SEC, 415 F.2d 589, 596-97 (2d Cir. 
1969) (``A securities dealer occupies a special relationship to a 
buyer of securities in that by his position he implicitly represents 
that he has an adequate and reasonable basis for the opinions he 
renders.''); and FINRA rules 2111 (Suitability), 5310 (Best 
Execution and Interpositioning), and 2121 (Fair Prices and 
Commissions)).
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II. Investment Advisers' Fiduciary Duty

    The Advisers Act establishes a federal fiduciary standard for 
investment advisers.\10\ This fiduciary standard is based on equitable 
common law principles and is fundamental to advisers' relationships 
with their clients under the Advisers Act.\11\ The fiduciary duty to 
which advisers are subject is not specifically defined in the Advisers 
Act or in Commission rules, but reflects a Congressional recognition 
``of the delicate fiduciary nature of an investment advisory 
relationship'' as well as a Congressional intent to ``eliminate, or at 
least to expose, all conflicts of interest which might incline an 
investment adviser--consciously or unconsciously--to render advice 
which was not disinterested.'' \12\ An adviser's fiduciary duty is 
imposed under the Advisers Act in recognition of the nature of the 
relationship between an investment adviser and a client and the desire 
``so far as is presently practicable to eliminate the abuses'' that led 
to the enactment of the Advisers Act.\13\ It is made enforceable by the 
antifraud provisions of the Advisers Act.\14\
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    \10\ Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 
17 (1979) (``Transamerica Mortgage v. Lewis'') (``Sec.  206 
establishes federal fiduciary standards to govern the conduct of 
investment advisers.'') (quotation marks omitted); Santa Fe 
Industries, Inc. v. Green, 430 U.S. 462, 471, n.11 (1977) (in 
discussing SEC v. Capital Gains, stating that the Supreme Court's 
reference to fraud in the ``equitable'' sense of the term was 
``premised on its recognition that Congress intended the Investment 
Advisers Act to establish federal fiduciary standards for investment 
advisers''); SEC v. Capital Gains, supra note 2; Amendments to Form 
ADV, Investment Advisers Act Release No. 3060 (July 28, 2010) 
(``Investment Advisers Act Release 3060'') (``Under the Advisers 
Act, an adviser is a fiduciary whose duty is to serve the best 
interests of its clients, which includes an obligation not to 
subrogate clients' interests to its own,'' citing Proxy Voting by 
Investment Advisers, Investment Advisers Act Release No. 2106 (Jan. 
31, 2003) (``Investment Advisers Act Release 2106'')).
    \11\ See SEC v. Capital Gains, supra note 2 (discussing the 
history of the Advisers Act, and how equitable principles influenced 
the common law of fraud and changed the suits brought against a 
fiduciary, ``which Congress recognized the investment adviser to 
be'').
    \12\ See SEC v. Capital Gains, supra note 2.
    \13\ See SEC v. Capital Gains, supra note 2 (``The Advisers Act 
thus reflects a congressional recognition `of the delicate fiduciary 
nature of an investment advisory relationship,' as well as a 
congressional intent to eliminate, or at least to expose, all 
conflicts of interest which might incline an investment adviser--
consciously or unconsciously--to render advice which was not 
disinterested.'' and also noting that the ``declaration of policy'' 
in the original bill, which became the Advisers Act, declared that 
``the national public interest and the interest of investors are 
adversely affected when the business of investment advisers is so 
conducted as to defraud or mislead investors, or to enable such 
advisers to relieve themselves of their fiduciary obligations to 
their clients. It [sic] is hereby declared that the policy and 
purposes of this title, in accordance with which the provisions of 
this title shall be interpreted, are to mitigate and, so far as is 
presently practicable to eliminate the abuses enumerated in this 
section'' (citing S. 3580, 76th Cong., 3d Sess., Sec.  202 and 
Investment Trusts and Investment Companies, Report of the Securities 
and Exchange Commission, Pursuant to Section 30 of the Public 
Utility Holding Company Act of 1935, on Investment Counsel, 
Investment Management, Investment Supervisory, and Investment 
Advisory Services, H.R. Doc. No. 477, 76th Cong. 2d Sess., 1, at 
28). See also In the Matter of Arleen W. Hughes, Exchange Act 
Release No. 4048 (Feb. 18, 1948) (``Arleen Hughes'') (discussing the 
relationship of trust and confidence between the client and a dual 
registrant and stating that the registrant was a fiduciary and 
subject to liability under the antifraud provisions of the 
Securities Act of 1933 and the Securities Exchange Act).
    \14\ SEC v. Capital Gains, supra note 2; Transamerica Mortgage 
v. Lewis, supra note 10 (``[T]he Act's legislative history leaves no 
doubt that Congress intended to impose enforceable fiduciary 
obligations.'').
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    An investment adviser's fiduciary duty under the Advisers Act 
comprises a duty of care and a duty of loyalty. Several commenters 
responding to Chairman Clayton's June 2017 request for public input 
\15\ on the standards of conduct for investment advisers and broker-
dealers acknowledged these duties.\16\ This fiduciary duty requires an 
adviser ``to adopt the principal's goals, objectives, or ends.'' \17\ 
This means the adviser must, at all times, serve the best interest of 
its clients and not subordinate its clients' interest to its own.\18\ 
The federal fiduciary duty is imposed through the antifraud provisions 
of the Advisers Act.\19\ The duty follows the contours of the 
relationship between the adviser and its client, and the adviser and 
its client may shape that relationship through contract when the client 
receives full and fair disclosure and provides informed consent.\20\ 
Although the ability to tailor the terms means that the application of 
the fiduciary duty will vary with the terms of the relationship, the 
relationship in all cases remains that of a fiduciary to a client. In 
other words, the investment adviser cannot disclose or negotiate away, 
and the investor cannot waive, the federal fiduciary

[[Page 21206]]

duty.\21\ We discuss our views \22\ on an investment adviser's 
fiduciary duty in more detail below.\23\
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    \15\ Public Comments from Retail Investors and Other Interested 
Parties on Standards of Conduct for Investment Advisers and Broker-
Dealers, Chairman Jay Clayton (June 1, 2017), available at https://www.sec.gov/news/public-statement/statement-chairman-clayton-2017-05-31 (``Chairman Clayton's Request for Public Input'').
    \16\ See, e.g., Comment letter of the Investment Adviser 
Association (Aug. 31, 2017) (``IAA Letter'') (``The well-established 
fiduciary duty under the Advisers Act, which incorporates both a 
duty of loyalty and a duty of care, has been applied consistently 
over the years by courts and the SEC.''); Comment letter of the 
Consumer Federation of America (Sept. 14, 2017) (``an adviser's 
fiduciary obligation `divides neatly into the duty of loyalty and 
the duty of care.' The duty of loyalty is designed to protect 
against `malfeasance,' or wrongdoing, on the part of the adviser, 
while the duty of care is designed to protect against `nonfeasance,' 
such as neglect.'').
    \17\ Arthur B. Laby, The Fiduciary Obligations as the Adoption 
of Ends, 56 Buffalo Law Review 99 (2008). See also Restatement 
(Third) of Agency, Sec.  2.02 Scope of Actual Authority (2006) 
(describing a fiduciary's authority in terms of the fiduciary's 
reasonable understanding of the principal's manifestations and 
objectives).
    \18\ Investment Advisers Act Release 3060, supra footnote 10 
(adopting amendments to Form ADV and stating that ``under the 
Advisers Act, an adviser is a fiduciary whose duty is to serve the 
best interests of its clients, which includes an obligation not to 
subrogate clients' interests to its own,'' citing Investment 
Advisers Act Release 2106 supra note 10); SEC v. Tambone, 550 F.3d 
106, 146 (1st Cir. 2008) (``Section 206 imposes a fiduciary duty on 
investment advisers to act at all times in the best interest of the 
fund and its investors.''); SEC v. Moran, 944 F. Supp. 286 (S.D.N.Y 
1996) (``Investment advisers are entrusted with the responsibility 
and duty to act in the best interest of their clients.'').
    \19\ See supra note 14.
    \20\ See infra note 40 and accompanying text for a discussion of 
informed consent.
    \21\ As an adviser's federal fiduciary obligations are 
enforceable through section 206 of the Act, we would view a waiver 
of enforcement of section 206 as implicating section 215(a) of the 
Act, which provides that ``any condition, stipulation or provision 
binding any person to waive compliance with any provision of this 
title . . . shall be void.'' Some commenters on Chairman Clayton's 
Request for Public Input and other Commission requests for comment 
also stated that an adviser's fiduciary duty could not be disclosed 
away. See, e.g., IAA Letter supra note 16 (``While disclosure of 
conflicts is crucial, it cannot take the place of the overarching 
duty of loyalty. In other words, an adviser is still first and 
foremost bound by its duty to act in its client's best interest and 
disclosure does not relieve an adviser of this duty.''); Comment 
letter of AARP (Sept. 6, 2017) (``Disclosure and consent alone do 
not meet the fiduciary test.''); Financial Planning Coalition Letter 
(July 5, 2013) responding to SEC Request for Data and Other 
Information, Duties of Brokers, Dealers, and Investment Advisers, 
Exchange Act Release No. 69013 (Mar. 1, 2013) (``Financial Planning 
Coalition 2013 Letter'') (``[D]isclosure alone is not sufficient to 
discharge an investment adviser's fiduciary duty; rather, the key 
issue is whether the transaction is in the best interest of the 
client.'') (internal citations omitted). See also Restatement 
(Third) of Agency, Sec.  8.06 Principal's Consent (2006) (``The law 
applicable to relationships of agency as defined in Sec.  1.01 
imposes mandatory limits on the circumstances under which an agent 
may be empowered to take disloyal action. These limits serve 
protective and cautionary purposes. Thus, an agreement that contains 
general or broad language purporting to release an agent in advance 
from the agent's general fiduciary obligation to the principal is 
not likely to be enforceable. This is because a broadly sweeping 
release of an agent's fiduciary duty may not reflect an adequately 
informed judgment on the part of the principal; if effective, the 
release would expose the principal to the risk that the agent will 
exploit the agent's position in ways not foreseeable by the 
principal at the time the principal agreed to the release. In 
contrast, when a principal consents to specific transactions or to 
specified types of conduct by the agent, the principal has a focused 
opportunity to assess risks that are more readily identifiable.''); 
Tamar Frankel, Arthur Laby & Ann Schwing, The Regulation of Money 
Managers, (updated 2017) (``The Regulation of Money Managers'') 
(``Disclosure may, but will not always, cure the fraud, since a 
fiduciary owes a duty to deal fairly with clients.'').
    \22\ In various circumstances, other regulators, including the 
U.S. Department of Labor, and other legal regimes, including state 
securities law, impose obligations on investment advisers. In some 
cases, these standards may differ from the standard imposed and 
enforced by the Commission.
    \23\ The interpretations discussed in this Release also apply to 
automated advisers, which are often colloquially referred to as 
``robo-advisers.'' Robo-advisers, like all SEC-registered investment 
advisers, are subject to all of the requirements of the Advisers 
Act, including the requirement that they provide advice consistent 
with the fiduciary duty they owe to their clients. The staff of the 
Commission has issued guidance regarding how robo-advisers can meet 
their obligations under the Advisers Act, given the unique 
challenges and opportunities presented by their business models. See 
Division of Investment Management, SEC, Staff Guidance on Robo 
Advisers, (February 2017), available at https://www.sec.gov/investment/im-guidance-2017-02.pdf.
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A. Duty of Care

    As fiduciaries, investment advisers owe their clients a duty of 
care.\24\ The Commission has discussed the duty of care and its 
components in a number of contexts.\25\ The duty of care includes, 
among other things: (i) The duty to act and to provide advice that is 
in the best interest of the client, (ii) the duty to seek best 
execution of a client's transactions where the adviser has the 
responsibility to select broker-dealers to execute client trades, and 
(iii) the duty to provide advice and monitoring over the course of the 
relationship.
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    \24\ See Investment Advisers Act Release No. 2106, supra note 10 
(stating that under the Advisers Act, ``an adviser is a fiduciary 
that owes each of its clients duties of care and loyalty with 
respect to all services undertaken on the client's behalf, including 
proxy voting,'' which is the subject of the release, and citing SEC 
v. Capital Gains supra note 2, to support this point). See also 
Restatement (Third) of Agency, Sec.  8.08 (discussing the duty of 
care that an agent owes its principal as a matter of common law); 
The Regulation of Money Managers, supra note 21 (``Advice can be 
divided into three stages. The first determines the needs of the 
particular client. The second determines the portfolio strategy that 
would lead to meeting the client's needs. The third relates to the 
choice of securities that the portfolio would contain. The duty of 
care relates to each of the stages and depends on the depth or 
extent of the advisers' obligation towards their clients.'').
    \25\ See, e.g., Suitability of Investment Advice Provided by 
Investment Advisers; Custodial Account Statements for Certain 
Advisory Clients, Investment Advisers Act Release No. 1406 (Mar. 16, 
1994) (``Investment Advisers Act Release 1406'') (stating that 
advisers have a duty of care and discussing advisers' suitability 
obligations); Securities; Brokerage and Research Services, Exchange 
Act Release No. 23170 (Apr. 23, 1986) (``Exchange Act Release 
23170'') (``an adviser, as a fiduciary, owes its clients a duty of 
obtaining the best execution on securities transactions.''). We 
highlight certain contexts in which the Commission has addressed the 
duty of care but we note that there are others; for example, voting 
proxies when an adviser undertakes to do so. Investment Advisers Act 
Release 2106, supra note 10.
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i. Duty To Provide Advice That Is in the Client's Best Interest
    We have addressed an adviser's duty of care in the context of the 
provision of personalized investment advice. In this context, the duty 
of care includes a duty to make a reasonable inquiry into a client's 
financial situation, level of financial sophistication, investment 
experience, and investment objectives (which we refer to collectively 
as the client's ``investment profile'') and a duty to provide 
personalized advice that is suitable for and in the best interest of 
the client based on the client's investment profile.\26\
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    \26\ In 1994, the Commission proposed a rule that would make 
express the fiduciary obligation of investment advisers to make only 
suitable recommendations to a client. Investment Advisers Act 
Release 1406, supra note 25. Although never adopted, the rule was 
designed, among other things, to reflect the Commission's 
interpretation of an adviser's existing suitability obligation under 
the Advisers Act. We believe that this obligation, when combined 
with an adviser's fiduciary duty to act in the best interest of its 
client, requires an adviser to provide investment advice that is 
suitable for and in the best interest of its client.
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    An adviser must, before providing any personalized investment 
advice and as appropriate thereafter, make a reasonable inquiry into 
the client's investment profile. The nature and extent of the inquiry 
turn on what is reasonable under the circumstances, including the 
nature and extent of the agreed-upon advisory services, the nature and 
complexity of the anticipated investment advice, and the investment 
profile of the client. For example, to formulate a comprehensive 
financial plan for a client, an adviser might obtain a range of 
personal and financial information about the client, including current 
income, investments, assets and debts, marital status, insurance 
policies, and financial goals.\27\
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    \27\ Investment Advisers Act Release 1406, supra note 25. After 
making a reasonable inquiry into the client's investment profile, it 
generally would be reasonable for an adviser to rely on information 
provided by the client (or the client's agent) regarding the 
client's financial circumstances, and an adviser should not be held 
to have given advice not in its client's best interest if it is 
later shown that the client had misled the adviser.
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    An adviser must update a client's investment profile in order to 
adjust its advice to reflect any changed circumstances.\28\ The 
frequency with which the adviser must update the information in order 
to consider changes to any advice the adviser provides would turn on 
many factors, including whether the adviser is aware of events that 
have occurred that could render inaccurate or incomplete the investment 
profile on which it currently bases its advice. For example, a change 
in the relevant tax law or knowledge that the client has retired or 
experienced a change in marital status might trigger an obligation to 
make a new inquiry.
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    \28\ We note that this would not be done for a one-time 
financial plan or other investment advice that is not provided on an 
ongoing basis. See also infra note 37.
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    An investment adviser must also have a reasonable belief that the 
personalized advice is suitable for and in the best interest of the 
client based on the client's investment profile. A reasonable belief 
would involve considering, for example, whether investments are 
recommended only to those clients who can and are willing to tolerate 
the risks of those investments and for whom the potential benefits may 
justify the risks.\29\

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Whether the advice is in a client's best interest must be evaluated in 
the context of the portfolio that the adviser manages for the client 
and the client's investment profile. For example, when an adviser is 
advising a client with a conservative investment objective, investing 
in certain derivatives may be in the client's best interest when they 
are used to hedge interest rate risk in the client's portfolio, whereas 
investing in certain directionally speculative derivatives on their own 
may not. For that same client, investing in a particular security on 
margin may not be in the client's best interest, even if investing in 
that same security may be in the client's best interest. When advising 
a financially sophisticated investor with a high risk tolerance, 
however, it may be consistent with the adviser's duties to recommend 
investing in such directionally speculative derivatives or investing in 
securities on margin.
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    \29\ We note that Item 8 of Part 2A of Form ADV requires an 
investment adviser to describe its methods of analysis and 
investment strategies and disclose that investing in securities 
involves risk of loss which clients should be prepared to bear. This 
item also requires that an adviser explain the material risks 
involved for each significant investment strategy or method of 
analysis it uses and particular type of security it recommends, with 
more detail if those risks are significant or unusual.
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    The cost (including fees and compensation) associated with 
investment advice would generally be one of many important factors--
such as the investment product's or strategy's investment objectives, 
characteristics (including any special or unusual features), liquidity, 
risks and potential benefits, volatility and likely performance in a 
variety of market and economic conditions--to consider when determining 
whether a security or investment strategy involving a security or 
securities is in the best interest of the client. Accordingly, the 
fiduciary duty does not necessarily require an adviser to recommend the 
lowest cost investment product or strategy. We believe that an adviser 
could not reasonably believe that a recommended security is in the best 
interest of a client if it is higher cost than a security that is 
otherwise identical, including any special or unusual features, 
liquidity, risks and potential benefits, volatility and likely 
performance. For example, if an adviser advises its clients to invest 
in a mutual fund share class that is more expensive than other 
available options when the adviser is receiving compensation that 
creates a potential conflict and that may reduce the client's return, 
the adviser may violate its fiduciary duty and the antifraud provisions 
of the Advisers Act if it does not, at a minimum, provide full and fair 
disclosure of the conflict and its impact on the client and obtain 
informed client consent to the conflict.\30\ Furthermore, an adviser 
would not satisfy its fiduciary duty to provide advice that is in the 
client's best interest by simply advising its client to invest in the 
least expensive or least remunerative investment product or strategy 
without any further analysis of other factors in the context of the 
portfolio that the adviser manages for the client and the client's 
investment profile. For example, it might be consistent with an 
adviser's fiduciary duty to advise a client with a high risk tolerance 
and significant investment experience to invest in a private equity 
fund with relatively high fees if other factors about the fund, such as 
its diversification and potential performance benefits, cause it to be 
in the client's best interest. We believe that a reasonable belief that 
investment advice is in the best interest of a client also requires 
that an adviser conduct a reasonable investigation into the investment 
sufficient to not base its advice on materially inaccurate or 
incomplete information.\31\ We have brought enforcement actions where 
an investment adviser did not independently or reasonably investigate 
securities before recommending them to clients.\32\ This obligation to 
provide advice that is suitable and in the best interest applies not 
just to potential investments, but to all advice the investment adviser 
provides to clients, including advice about an investment strategy or 
engaging a sub-adviser and advice about whether to rollover a 
retirement account so that the investment adviser manages that account.
---------------------------------------------------------------------------

    \30\ See infra notes 48-52 and accompanying text (discussing an 
adviser's duties related to disclosure and consent).
    \31\ See, e.g., Concept Release on the U.S. Proxy System, 
Investment Advisers Act Release No. 3052 (July 14, 2010) (stating 
``as a fiduciary, the proxy advisory firm has a duty of care 
requiring it to make a reasonable investigation to determine that it 
is not basing its recommendations on materially inaccurate or 
incomplete information'').
    \32\ See In the Matter of Larry C. Grossman, Investment Advisers 
Act Release No. 4543 (Sept. 30, 2016) (Commission opinion) (imposing 
liability on a principal of a registered investment adviser for 
recommending offshore private investment funds to clients without a 
reasonable independent basis for his advice).
---------------------------------------------------------------------------

ii. Duty To Seek Best Execution
    We have addressed an investment adviser's duty of care in the 
context of trade execution where the adviser has the responsibility to 
select broker-dealers to execute client trades (typically in the case 
of discretionary accounts). We have said that, in this context, an 
adviser has the duty to seek best execution of a client's 
transactions.\33\ In meeting this obligation, an adviser must seek to 
obtain the execution of transactions for each of its clients such that 
the client's total cost or proceeds in each transaction are the most 
favorable under the circumstances. An adviser fulfills this duty by 
executing securities transactions on behalf of a client with the goal 
of maximizing value for the client under the particular circumstances 
occurring at the time of the transaction. As noted below, maximizing 
value can encompass more than just minimizing cost. When seeking best 
execution, an adviser should consider ``the full range and quality of a 
broker's services in placing brokerage including, among other things, 
the value of research provided as well as execution capability, 
commission rate, financial responsibility, and responsiveness'' to the 
adviser.\34\ In other words, the determinative factor is not the lowest 
possible commission cost but whether the transaction represents the 
best qualitative execution. Further, an investment adviser should 
``periodically and systematically'' evaluate the execution it is 
receiving for clients.\35\
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    \33\ See Commission Guidance Regarding Client Commission 
Practices Under Section 28(e) of the Securities Exchange Act of 
1934, Exchange Act Release No. 54165 (July 18, 2006) (stating that 
investment advisers have ``best execution obligations''); Investment 
Advisers Act Release 3060, supra note 10 (discussing an adviser's 
best execution obligations in the context of directed brokerage 
arrangements and disclosure of soft dollar practices). See also 
Advisers Act rule 206(3)-2(c) (referring to adviser's duty of best 
execution of client transactions).
    \34\ Exchange Act Release 23170, supra note 25.
    \35\ Id. The Advisers Act does not prohibit advisers from using 
an affiliated broker to execute client trades. However, the 
adviser's use of such an affiliate involves a conflict of interest 
that must be fully and fairly disclosed and the client must provide 
informed consent to the conflict.
---------------------------------------------------------------------------

iii. Duty To Act and To Provide Advice and Monitoring Over the Course 
of the Relationship
    An investment adviser's duty of care also encompasses the duty to 
provide advice and monitoring over the course of a relationship with a 
client.\36\ An

[[Page 21208]]

adviser is required to provide advice and services to a client over the 
course of the relationship at a frequency that is both in the best 
interest of the client and consistent with the scope of advisory 
services agreed upon between the investment adviser and the client. The 
duty to provide advice and monitoring is particularly important for an 
adviser that has an ongoing relationship with a client (for example, a 
relationship where the adviser is compensated with a periodic asset-
based fee or an adviser with discretionary authority over client 
assets). Conversely, the steps needed to fulfill this duty may be 
relatively circumscribed for the adviser and client that have agreed to 
a relationship of limited duration via contract (for example, a 
financial planning relationship where the adviser is compensated with a 
fixed, one-time fee commensurate with the discrete, limited-duration 
nature of the advice provided).\37\ An adviser's duty to monitor 
extends to all personalized advice it provides the client, including an 
evaluation of whether a client's account or program type (for example, 
a wrap account) continues to be in the client's best interest.
---------------------------------------------------------------------------

    \36\ See SEC v. Capital Gains, supra note 2 (describing 
advisers' ``basic function'' as ``furnishing to clients on a 
personal basis competent, unbiased, and continuous advice regarding 
the sound management of their investments'' (quoting Investment 
Trusts and Investment Companies, Report of the Securities and 
Exchange Commission, Pursuant to Section 30 of the Public Utility 
Holding Company Act of 1935, on Investment Counsel, Investment 
Management, Investment Supervisory, and Investment Advisory 
Services, H.R. Doc. No. 477, 76th Cong. 2d Sess., 1, at 28)). Cf. 
Barbara Black, Brokers and Advisers-What's in a Name?, 32 Fordham 
Journal of Corporate and Financial Law XI (2005) (``[W]here the 
investment adviser's duties include management of the account, [the 
adviser] is under an obligation to monitor the performance of the 
account and to make appropriate changes in the portfolio.''); Arthur 
B. Laby, Fiduciary Obligations of Broker-Dealers and Investment 
Advisers, 55 Villanova Law Review 701, at 728 (2010) (``Laby 
Villanova Article'') (``If an adviser has agreed to provide 
continuous supervisory services, the scope of the adviser's 
fiduciary duty entails a continuous, ongoing duty to supervise the 
client's account, regardless of whether any trading occurs. This 
feature of the adviser's duty, even in a non-discretionary account, 
contrasts sharply with the duty of a broker administering a non-
discretionary account, where no duty to monitor is required.'') 
(internal citations omitted).
    \37\ See Laby Villanova Article, supra note 36, at 728 (2010) 
(stating that the scope of an adviser's activity can be altered by 
contract and that an adviser's fiduciary duty would be commensurate 
with the scope of the relationship).
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B. Duty of Loyalty

    The duty of loyalty requires an investment adviser to put its 
client's interests first. An investment adviser must not favor its own 
interests over those of a client or unfairly favor one client over 
another.\38\ In seeking to meet its duty of loyalty, an adviser must 
make full and fair disclosure to its clients of all material facts 
relating to the advisory relationship.\39\ In addition, an adviser must 
seek to avoid conflicts of interest with its clients, and, at a 
minimum, make full and fair disclosure of all material conflicts of 
interest that could affect the advisory relationship. The disclosure 
should be sufficiently specific so that a client is able to decide 
whether to provide informed consent to the conflict of interest.\40\ We 
discuss each of these aspects of the duty of loyalty below.
---------------------------------------------------------------------------

    \38\ See Investment Advisers Act Release 3060 (``Under the 
Advisers Act, an adviser is a fiduciary whose duty is to serve the 
best interests of its clients, which includes an obligation not to 
subrogate clients' interests to its own,'' citing Investment 
Advisers Act Release 2106 supra note 9). See also Staff of the U.S. 
Securities and Exchange Commission, Study on Investment Advisers and 
Broker-Dealers As Required by Section 913 of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act (Jan. 2011), available at 
https://www.sec.gov/news/studies/2011/913studyfinal.pdf (``913 
Study'').
    \39\ Investment Advisers Act Release 3060, supra note 6 (``as a 
fiduciary, an adviser has an ongoing obligation to inform its 
clients of any material information that could affect the advisory 
relationship''). See also General Instruction 3 to Part 2 of Form 
ADV (``Under federal and state law, you are a fiduciary and must 
make full disclosure to your clients of all material facts relating 
to the advisory relationship.'').
    \40\ Arleen Hughes, supra note 13, at 4 and 8 (stating, 
``[s]ince loyalty to his trust is the first duty which a fiduciary 
owes to his principal, it is the general rule that a fiduciary must 
not put himself into a position where his own interests may come in 
conflict with those of his principal. To prevent any conflict and 
the possible subordination of this duty to act solely for the 
benefit of his principal, a fiduciary at common law is forbidden to 
deal as an adverse party with his principal. An exception is made, 
however, where the principal gives his informed consent to such 
dealings,'' and adding that, ``[r]egistrant has an affirmative 
obligation to disclose all material facts to her clients in a manner 
which is clear enough so that a client is fully apprised of the 
facts and is in a position to give his informed consent.''). See 
also Hughes v. Securities and Exchange Commission, 174 F.2d 969 
(1949) (affirming the SEC decision in Arleen Hughes).
    See also General Instruction 3 to Part 2 of Form ADV (stating 
that an adviser's disclosure obligation ``requires that [the 
adviser] provide the client with sufficiently specific facts so that 
the client is able to understand the conflicts of interest [the 
adviser has] and the business practices in which [the adviser] 
engage[s], and can give informed consent to such conflicts or 
practices or reject them''); Investment Advisers Act Release 3060, 
supra note 10 (same); Restatement (Third) of Agency Sec.  8.06 
(``Conduct by an agent that would otherwise constitute a breach of 
duty as stated in Sec. Sec.  8.01, 8.02, 8.03, 8.04, and 8.05 
[referencing the fiduciary duty] does not constitute a breach of 
duty if the principal consents to the conduct, provided that (a) in 
obtaining the principal's consent, the agent (i) acts in good faith, 
(ii) discloses all material facts that the agent knows, has reason 
to know, or should know would reasonably affect the principal's 
judgment unless the principal has manifested that such facts are 
already known by the principal or that the principal does not wish 
to know them, and (iii) otherwise deals fairly with the principal; 
and (b) the principal's consent concerns either a specific act or 
transaction, or acts or transactions of a specified type that could 
reasonably be expected to occur in the ordinary course of the agency 
relationship'').
---------------------------------------------------------------------------

    Because an adviser must serve the best interests of its clients, it 
has an obligation not to subordinate its clients' interests to its own. 
For example, an adviser cannot favor its own interests over those of a 
client, whether by favoring its own accounts or by favoring certain 
client accounts that pay higher fee rates to the adviser over other 
client accounts.\41\ Accordingly, the duty of loyalty includes a duty 
not to treat some clients favorably at the expense of other clients. 
Thus, we believe that in allocating investment opportunities among 
eligible clients, an adviser must treat all clients fairly.\42\ This 
does not mean that an adviser must have a pro rata allocation policy, 
that the adviser's allocation policies cannot reflect the differences 
in clients' objectives or investment profiles, or that the adviser 
cannot exercise judgment in allocating investment opportunities among 
eligible clients. Rather, it means that an adviser's allocation 
policies must be fair and, if they present a conflict, the adviser must 
fully and fairly disclose the conflict such that a client can provide 
informed consent.
---------------------------------------------------------------------------

    \41\ The Commission has brought numerous enforcement actions 
against advisers that unfairly allocated trades to their own 
accounts and allocated less favorable or unprofitable trades to 
their clients' accounts. See, e.g., SEC v. Strategic Capital 
Management, LLC and Michael J. Breton, Litigation Release No. 23867 
(June 23, 2017) (partial settlement) (adviser placed trades through 
a master brokerage account and then allocated profitable trades to 
adviser's account while placing unprofitable trades into the client 
accounts.).
    \42\ See also Barry Barbash and Jai Massari, The Investment 
Advisers Act of 1940; Regulation by Accretion, 39 Rutgers Law 
Journal 627 (2008) (stating that under section 206 of the Advisers 
Act and traditional notions of fiduciary and agency law an adviser 
must not give preferential treatment to some clients or 
systematically exclude eligible clients from participating in 
specific opportunities without providing the clients with 
appropriate disclosure regarding the treatment).
---------------------------------------------------------------------------

    An adviser must seek to avoid conflicts of interest with its 
clients, and, at a minimum, make full and fair disclosure to its 
clients of all material conflicts of interest that could affect the 
advisory relationship.\43\ Disclosure of a conflict alone is not always 
sufficient to satisfy the adviser's duty of loyalty and section 206 of 
the Advisers Act.\44\ Any

[[Page 21209]]

disclosure must be clear and detailed enough for a client to make a 
reasonably informed decision to consent to such conflicts and practices 
or reject them.\45\ An adviser must provide the client with 
sufficiently specific facts so that the client is able to understand 
the adviser's conflicts of interest and business practices well enough 
to make an informed decision.\46\ For example, an adviser disclosing 
that it ``may'' have a conflict is not adequate disclosure when the 
conflict actually exists.\47\ A client's informed consent can be either 
explicit or, depending on the facts and circumstances, implicit. We 
believe, however, that it would not be consistent with an adviser's 
fiduciary duty to infer or accept client consent to a conflict where 
either (i) the facts and circumstances indicate that the client did not 
understand the nature and import of the conflict, or (ii) the material 
facts concerning the conflict could not be fully and fairly 
disclosed.\48\ For example, in some cases, conflicts may be of a nature 
and extent that it would be difficult to provide disclosure that 
adequately conveys the material facts or the nature, magnitude and 
potential effect of the conflict necessary to obtain informed consent 
and satisfy an adviser's fiduciary duty. In other cases, disclosure may 
not be specific enough for clients to understand whether and how the 
conflict will affect the advice they receive. With some complex or 
extensive conflicts, it may be difficult to provide disclosure that is 
sufficiently specific, but also understandable, to the adviser's 
clients. In all of these cases where full and fair disclosure and 
informed consent is insufficient, we expect an adviser to eliminate the 
conflict or adequately mitigate the conflict so that it can be more 
readily disclosed.
---------------------------------------------------------------------------

    \43\ See SEC v. Capital Gains, supra note 2 (advisers must fully 
disclose all material conflicts, citing Congressional intent ``to 
eliminate, or at least expose, all conflicts of interest which might 
incline an investment adviser--consciously or unconsciously--to 
render advice which was not disinterested''). See also Investment 
Advisers Act Release 3060, supra note 9.
    \44\ See SEC v. Capital Gains, supra note 2 (in discussing the 
legislative history of the Advisers Act, citing ethical standards of 
one of the leading investment counsel associations, which provided 
that an investment counsel should remain ``as free as humanly 
possible from the subtle influence of prejudice, conscious or 
unconscious'' and ``avoid any affiliation, or any act which subjects 
his position to challenge in this respect'' and stating that one of 
the policy purposes of the Advisers Act is ``to mitigate and, so far 
as is presently practicable to eliminate the abuses'' that formed 
the basis of the Advisers Act). Separate and apart from potential 
liability under the antifraud provisions of the Advisers Act 
enforceable by the Commission for breaches of fiduciary duty in the 
absence of full and fair disclosure, investment advisers may also 
wish to consider their potential liability to clients under state 
common law, which may vary from state to state.
    \45\ See Arlene Hughes, supra at 13 (in finding that registrant 
had not obtained informed consent, citing to testimony indicating 
that ``some clients had no understanding at all of the nature and 
significance'' of the disclosure).
    \46\ See General Instruction 3 to Part 2 of Form ADV. Cf. Arleen 
Hughes, supra note 13 (Hughes acted simultaneously in the dual 
capacity of investment adviser and of broker and dealer and conceded 
having a fiduciary duty. In describing the fiduciary duty and her 
potential liability under the antifraud provisions of the Securities 
Act and the Exchange Act, the Commission stated she had ``an 
affirmative obligation to disclose all material facts to her clients 
in a manner which is clear enough so that a client is fully apprised 
of the facts and is in a position to give his informed consent.'').
    \47\ We have brought enforcement actions in such cases. See, 
e.g., In the Matter of The Robare Group, Ltd., et al., Investment 
Advisers Act Release No. 4566 (Nov. 7, 2016) (Commission Opinion) 
(appeal docketed) (finding, among other things, that adviser's 
disclosure was inadequate because it stated that the adviser may 
receive compensation from a broker as a result of the facilitation 
of transactions on client's behalf through such broker-dealer and 
that these arrangements may create a conflict of interest when 
adviser was, in fact, receiving payments from the broker and had 
such a conflict of interest).
    \48\ See Arleen Hughes, supra note 13 (``Registrant cannot 
satisfy this duty by executing an agreement with her clients which 
the record shows some clients do not understand and which, in any 
event, does not contain the essential facts which she must 
communicate.'') Some commenters on Commission requests for comment 
agreed that full and fair disclosure and informed consent are 
important components of an adviser's fiduciary duty. See, e.g., 
Financial Planning Coalition 2013 Letter, supra note 21 (``[C]onsent 
is only informed if the customer has the ability fully to understand 
and to evaluate the information. Many complex products . . . are 
appropriate only for sophisticated and experienced investors. It is 
not sufficient for a fiduciary to make disclosure of potential 
conflicts of interest with respect to such products. The fiduciary 
must make a reasonable judgment that the customer is fully able to 
understand and to evaluate the product and the potential conflicts 
of interest that it presents--and then the fiduciary must make a 
judgment that the product is in the best interests of the 
customer.'').
---------------------------------------------------------------------------

    Full and fair disclosure of all material facts that could affect an 
advisory relationship, including all material conflicts of interest 
between the adviser and the client, can help clients and prospective 
clients in evaluating and selecting investment advisers. Accordingly, 
we require advisers to deliver to their clients a ``brochure,'' under 
Part 2A of Form ADV, which sets out minimum disclosure requirements, 
including disclosure of certain conflicts.\49\ Investment advisers are 
required to deliver the brochure to a prospective client at or before 
entering into a contract so that the prospective client can use the 
information contained in the brochure to decide whether or not to enter 
into the advisory relationship.\50\ In a concurrent release, we are 
proposing to require all investment advisers to deliver to retail 
investors before or at the time the adviser enters into an investment 
advisory agreement a relationship summary which would include a summary 
of certain conflicts of interest.\51\
---------------------------------------------------------------------------

    \49\ Investment Advisers Act Release 3060, supra note 10; 
General Instruction 3 to Part 2 of Form ADV (``Under federal and 
state law, you are a fiduciary and must make full disclosure to your 
clients of all material facts relating to the advisory relationship. 
As a fiduciary, you also must seek to avoid conflicts of interest 
with your clients, and, at a minimum, make full disclosure of all 
material conflicts of interest between you and your clients that 
could affect the advisory relationship. This obligation requires 
that you provide the client with sufficiently specific facts so that 
the client is able to understand the conflicts of interest you have 
and the business practices in which you engage, and can give 
informed consent to such conflicts or practices or reject them.'').
    \50\ Investment Advisers Act rule 204-3. Investment Advisers Act 
Release 3060, supra note 10 (adopting amendments to Form ADV and 
stating that ``A client may use this disclosure to select his or her 
own adviser and evaluate the adviser's business practices and 
conflicts on an ongoing basis. As a result, the disclosure clients 
and prospective clients receive is critical to their ability to make 
an informed decision about whether to engage an adviser and, having 
engaged the adviser, to manage that relationship.'').
    \51\ Form CRS Proposal, supra note 6.
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C. Request for Comment

    The Commission requests comment on our proposed interpretation 
regarding certain aspects of the fiduciary duty under section 206 of 
the Advisers Act.
     Does the Commission's proposed interpretation offer 
sufficient guidance with respect to the fiduciary duty under section 
206 of the Advisers Act?
     Are there any significant issues related to an adviser's 
fiduciary duty that the proposed interpretation has not addressed?
     Would it be beneficial for investors, advisers or broker-
dealers for the Commission to codify any portion of our proposed 
interpretation of the fiduciary duty under section 206 of the Advisers 
Act?

III. Economic Considerations

    The Commission is sensitive to the potential economic effects of 
the proposed interpretation provided above.\52\ In this section we 
discuss how the proposed Commission interpretation may benefit 
investors and reduce agency problems by reaffirming and clarifying the 
fiduciary duty an investment adviser owes to its clients. We also 
discuss some potential broader economic effects on the market for 
investment advice.
---------------------------------------------------------------------------

    \52\ The Commission, where possible, has sought to quantify the 
economic impacts expected to result from the proposed 
interpretations. However, as discussed more specifically below, the 
Commission is unable to quantify certain of the economic effects 
because it lacks information necessary to provide reasonable 
estimates.
---------------------------------------------------------------------------

A. Background

    The Commission's interpretation of the standard of conduct for 
investment advisers under the Advisers Act set forth in this Release 
would affect investment advisers and their associated persons as well 
as the clients of those investment advisers, and the market for 
financial advice more broadly.\53\ There are 12,659 investment advisers 
registered with the Commission with over $72 trillion in assets under 
management as well as 17,635 investment advisers registered with states 
and 3,587 investment advisers who submit Form ADV as exempt reporting 
advisers.\54\ As of December

[[Page 21210]]

2017, there are approximately 36 million client accounts advised by 
SEC-registered investment advisers.
---------------------------------------------------------------------------

    \53\ See Form CRS Proposal, supra note 6, at Section IV.A 
(discussing the market for financial advice generally).
    \54\ See Form CRS Proposal, supra note 6, at Section IV.A.1.b 
(discussing SEC-registered investment advisers). Note, however, that 
because we are interpreting advisers' fiduciary duties under section 
206 of the Advisers Act, this interpretation would be applicable to 
both SEC- and state-registered investment advisers, as well as other 
investment advisers that are exempt from registration or subject to 
a prohibition on registration under the Advisers Act.
---------------------------------------------------------------------------

    These investment advisers currently incur ongoing costs related to 
their compliance with their legal and regulatory obligations, including 
costs related to their understanding of the standard of conduct. We 
believe, based on the Commission's experience, that the interpretations 
we are setting forth in this Release are generally consistent with 
investment advisers' current understanding of the practices necessary 
to comply with their fiduciary duty under the Advisers Act; however, we 
recognize that there may be certain current investment advisers who 
have interpreted their fiduciary duty to require something less, or 
something more, than the Commission's interpretation. We lack data to 
identify which investment advisers currently understand the practices 
necessary to comply with their fiduciary duty to be different from the 
standard of conduct in the Commission's interpretation. Based on our 
experience, however, we generally believe that it is not a significant 
portion of the market.

B. Economic Impacts

    Based on our experience as the long-standing regulator of the 
investment adviser industry, the Commission's interpretation of the 
fiduciary duty under section 206 of the Advisers Act described in this 
Release generally reaffirms the current practices of investment 
advisers. Therefore, we expect there to be no significant economic 
impacts from the interpretation. We do acknowledge, however, to the 
extent certain investment advisers currently understand the practices 
necessary to comply with their fiduciary duty to be different from 
those discussed in this interpretation, there could be some potential 
economic effects, which we discuss below.
Clients of Investment Advisers
    The typical relationship between an investment adviser and a client 
is a principal-agent relationship, where the principal (the client) 
hires an agent (the investment adviser) to perform some service 
(investment advisory services) on the client's behalf.\55\ Because 
investors and investment advisers are likely to have different 
preferences and goals, the investment adviser relationship is subject 
to agency problems: That is, investment advisers may take actions that 
increase their well-being at the expense of investors, thereby imposing 
agency costs on investors.\56\ A fiduciary duty, such as the duty 
investment advisers owe their clients, can mitigate these agency 
problems and reduce agency costs by deterring agents from taking 
actions that expose them to legal liability.\57\
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    \55\ See, e.g., James A. Brickley, Clifford W. Smith, Jr., 
Jerold L. Zimmerman, Managerial Economics and Organizational 
Architecture (2004), at 265 (``An agency relationship consists of an 
agreement under which one party, the principal, engages another 
party, the agent, to perform some service on the principal's 
behalf.''). See also Michael C. Jensen and William H. Meckling, 
Theory of the Firm: Managerial Behavior, Agency Costs and Ownership 
Structure, Journal of Financial Economics, Vol. 3, 305-360 (1976).
    \56\ See, e.g., Jensen and Meckling, supra note 55. See also the 
discussion on agency problems in the market for investment advice in 
Section IV.B. of the Regulation Best Interest Proposal, supra note 
5.
    \57\ See, e.g., Frank H. Easterbrook and Daniel R. Fischel, 
Contract and Fiduciary Duty, Journal of Law & Economics, Vol. 36, 
425-46 (1993).
---------------------------------------------------------------------------

    To the extent the Commission's interpretation of investment adviser 
fiduciary duty would cause a change in behavior of those investment 
advisers, if any, who currently interpret their fiduciary duty to 
require something different from the Commission's interpretation, we 
expect a potential reduction in agency problems and, consequently, a 
reduction of agency costs to the client. The extent to which agency 
costs would be reduced is difficult to assess given that we are unable 
to ascertain whether any investment advisers currently interpret their 
fiduciary duty to be something different from the Commission's 
interpretation, and consequently we are not able to estimate the agency 
costs these advisers, if any, currently impose on investors. However, 
we believe that there may be potential benefits for clients of those 
investment advisers, if any, to the extent the Commission's 
interpretation is effective at strengthening investment advisers' 
understanding of their obligations to their clients. For example, to 
the extent that the Commission's interpretation enhances the 
understanding of any investment advisers of their duty of care, it may 
potentially raise the quality of investment advice given and that 
advice's fit with a client's individual profile and preferences or lead 
to increased compliance with the duty to provide advice and monitoring 
over the course of the relationship.
    Additionally, to the extent the Commission's interpretation 
enhances the understanding of any investment advisers of their duty of 
loyalty it may potentially benefit the clients of those investment 
advisers. Specifically, to the extent this leads to a higher quality of 
disclosures about conflicts for clients of some investment advisers, 
the nature and extent of such conflict disclosures would help investors 
better assess the quality of the investment advice they receive, 
therefore providing an important benefit to investors.
    Further, to the extent that the interpretation causes some 
investment advisers to properly identify circumstances in which 
disclosure alone cannot cure a conflict of interest, the proposed 
interpretation may lead those investment advisers to take additional 
steps to mitigate or eliminate the conflict. The interpretation may 
also cause some investment advisers to conclude in some circumstances 
that even if disclosure would be enough to meet their fiduciary duty, 
such disclosure would have to be so expansive or complex that they 
instead voluntarily mitigate or eliminate the conflicts of interest. 
Thus, to the extent the Commission's interpretation would cause 
investment advisers to better understand their obligations as part of 
their fiduciary duty and therefore to make changes to their business 
practices in ways that reduce the likelihood of conflicted advice or 
the magnitude of the conflicts, it may ameliorate the agency conflict 
between investment advisers and their clients and, in turn, may improve 
the quality of advice that the clients receive. This less-conflicted 
advice may therefore produce higher overall returns for clients and 
increase the efficiency of portfolio allocation. However, as discussed 
above, we would generally expect these effects to be minimal. Finally, 
this interpretation would also benefit clients of investment advisers 
to the extent it assists the Commission in its oversight of investment 
advisers' compliance with their regulatory obligations.
Investment Advisers and the Market for Investment Advice
    In general, we expect the Commission's interpretation of an 
investment adviser's fiduciary duty would affirm investment advisers' 
understanding of the obligations they owe their clients, reduce 
uncertainty for advisers, and facilitate their compliance. Furthermore, 
by addressing in one release certain aspects of the fiduciary duty that 
an investment adviser owes to its clients, the Commission's 
interpretation could reduce the costs associated with comprehensively 
assessing their compliance obligations. We acknowledge that, as with 
other

[[Page 21211]]

circumstances in which the Commission speaks to the legal obligations 
of regulated entities, affected firms, including those whose practices 
are consistent with the Commission's interpretation, incur costs to 
evaluate the Commission's interpretation and assess its applicability 
to them. Moreover, as discussed above, there may be certain investment 
advisers who currently understand the practices necessary to comply 
with their fiduciary duty to be different from the standard of conduct 
in the Commission's interpretation. Those investment advisers if any, 
would experience an increase in their compliance costs as they change 
their systems, processes and behavior, and train their supervised 
persons, to align with the Commission's interpretation.
    Moreover, to the extent any investment advisers that understood 
their fiduciary obligation to be different from the Commission's 
interpretation change their behavior to align with this interpretation, 
there could potentially also be some economic effects on the market for 
investment advice. For example, any improved compliance may not only 
reduce agency costs in current investment advisory relationships and 
increase the value of those relationships to current clients, it may 
also increase trust in the market for investment advice among all 
investors, which may result in more investors seeking advice from 
investment advisers. This may, in turn, benefit investors by improving 
the efficiency of their portfolio allocation. To the extent it is 
costly or difficult, at least in the short term, to expand the supply 
of investment advisory services to meet an increase in demand, any such 
new demand for investment adviser services could potentially put some 
upward price pressure on fees. At the same time, however, if any such 
new demand increases the overall profitability of investment advisory 
services, then we expect it would encourage entry by new investment 
advisers--or hiring of new representatives, by current investment 
advisers--such that competition would increase over time. Indeed, we 
recognize that the recent growth in the investment adviser segment of 
the market, both in terms of firms and number of representatives,\58\ 
may suggest that the costs of expanding the supply of investment 
advisory services are currently relatively low.
---------------------------------------------------------------------------

    \58\ See Form CRS Proposal, supra note 6, at Section IV.A.1.d.
---------------------------------------------------------------------------

    Additionally, we acknowledge that to the extent certain investment 
advisers recognize, due to the Commission's interpretation, that their 
obligations to clients are stricter than how they currently interpret 
their fiduciary duty, it could potentially affect competition. 
Specifically, the Commission's interpretation of certain aspects of the 
standard of conduct for investment advisers may result in additional 
compliance costs to meet their fiduciary obligation under the 
Commission's interpretation. This increase in compliance costs, in 
turn, may discourage competition for client segments that generate 
lower revenues, such as clients with relatively low levels of financial 
assets, which could reduce the supply of investment adviser services 
and raise fees for these client segments. However, the investment 
advisers who already are complying with the understanding of their 
fiduciary duty reflected in the Commission's interpretation, and may 
therefore currently have a comparative cost disadvantage, could 
potentially find it more profitable to compete for the customers of 
those investment advisers who would face higher compliance costs as a 
result of the proposed interpretation, which would mitigate negative 
effects on the supply of investment adviser services. Furthermore, as 
noted above, there has been a recent growth trend in the supply of 
investment advisory services, which is likely to mitigate any potential 
negative supply effects from the Commission's interpretation.\59\
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    \59\ Beyond having an effect on competition in the market for 
investment adviser services, it is possible that the Commission's 
interpretation could affect competition between investment advisers 
and other providers of financial advice, such as broker-dealers, 
banks, and insurance companies. This may be the case if certain 
investors base their choice between an investment adviser and 
another provider of financial advice, at least in part, on their 
perception of the standards of conduct each owes to their customers. 
To the extent that the Commission's interpretation increases 
investors' trust in investment advisers' overall compliance with 
their standard of conduct, certain of these investors may become 
more willing, to hire an investment adviser rather than one of their 
non-investment adviser competitors. As a result, investment advisers 
as a group may increase their competitive situation compared to that 
of other types of providers of financial advice. On the other hand, 
if the Commission's interpretation raises costs for investment 
advisers, they could become less competitive with other financial 
services providers.
---------------------------------------------------------------------------

    Finally, to the extent the proposed interpretation would cause some 
investment advisers to reassess their compliance with their disclosure 
obligations, it could lead to a reduction in the expected profitability 
of certain products associated with particularly conflicted advice for 
which compliance costs would increase following the reassessment.\60\ 
As a result, the number of investment advisers willing to advise a 
client to make these investments may be reduced. A decline in the 
supply of investment adviser advice on these investments could 
potentially reduce the efficiency of portfolio allocation of those 
investors who might otherwise benefit from investment adviser advice on 
these investments.
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    \60\ For example, such products could include highly complex, 
high cost products with risk and return characteristics that are 
hard to fully understand for retail investors or mutual funds or 
fund share classes that may pay higher compensation to investment 
advisers that are dual registrants, or that the investment adviser 
and its representatives may receive through payments to an 
affiliated broker-dealer or third party broker-dealer with which 
representatives of the investment adviser are associated.
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IV. Request for Comment Regarding Areas of Enhanced Investment Adviser 
Regulation

    In 2011, the Commission issued the staff's 913 Study, pursuant to 
section 913 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act of 2010, in which the staff recognized several areas for 
potential harmonization of broker-dealer and investment adviser 
regulation.\61\ We have identified a few discrete areas where the 
current broker-dealer framework provides investor protections that may 
not have counterparts in the investment adviser context, and request 
comment on those areas. The Commission intends to consider these 
comments in connection with any future proposed rules or other proposed 
regulatory actions with respect to these matters.
---------------------------------------------------------------------------

    \61\ The staff made two primary recommendations in the 913 
Study. The first recommendation was that we engage in rulemaking to 
implement a uniform fiduciary standard of conduct for broker-dealers 
and investment advisers when providing personalized investment 
advice about securities to retail customers. The second 
recommendation was that we consider harmonizing certain regulatory 
requirements of broker-dealers and investment advisers where such 
harmonization appears likely to enhance meaningful investor 
protection, taking into account the best elements of each regime. In 
the 913 Study, the areas the staff suggested the Commission consider 
for harmonization included, among others, licensing and continuing 
education requirements for persons associated with firms. The staff 
stated that the areas identified were not intended to be a 
comprehensive or exclusive listing of potential areas of 
harmonization. See 913 Study supra note 38.
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A. Federal Licensing and Continuing Education

    Associated persons of broker-dealers that effect securities 
transactions are required to be registered with the Financial Industry 
Regulatory Authority (``FINRA''),\62\ and must meet

[[Page 21212]]

qualification requirements, which include passing a securities 
qualification exam and fulfilling continuing education 
requirements.\63\ The federal securities laws do not require investment 
adviser representatives to become licensed or to meet qualification 
requirements, but most states impose registration, licensing, or 
qualification requirements on investment adviser representatives who 
have a place of business in the state, regardless of whether the 
investment adviser is registered with the Commission or the state.\64\ 
These qualification requirements typically mandate that investment 
adviser representatives register and pass certain securities exams or 
hold certain designations (such as Chartered Financial Analyst 
credential).\65\ The staff recommended in the 913 Study that the 
Commission consider requiring investment adviser representatives to be 
subject to federal continuing education and licensing requirements.\66\
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    \62\ Generally, all registered broker-dealers that deal with the 
public must become members of FINRA, a registered national 
securities association, and may choose to become exchange members. 
See Exchange Act section 15(b)(8) and Exchange Act rule 15b9-1. 
FINRA is the sole national securities association registered with 
the SEC under section 15A of the Exchange Act.
    \63\ See NASD Rule 1021 (``Registration Requirements''); NASD 
Rule 1031 (``Registration Requirements''); NASD Rule 1041 
(``Registration Requirements for Assistant Representatives''); FINRA 
Rule 1250 (``Continuing Education Requirements'').
    \64\ See 913 Study, supra note 38, at 86. See also Advisers Act 
rule 203A-3(a) (definition of ``investment adviser 
representative'').
    \65\ See 913 Study, supra note 38, at 86-87, 138. The North 
American Securities Administrators Association (``NASAA'') is 
considering a potential model rule that would require that 
investment adviser representatives meet a continuing education 
requirement in order to maintain their state registrations. An 
internal survey of NASAA's membership identified strong support for 
such a requirement along with significant regulatory need. NASAA is 
now conducting a nationwide survey of relevant stakeholders to get 
their input and views on such a requirement. For more information, 
see http://www.nasaa.org/industry-resources/investment-advisers/nasaa-survey-regarding-continuing-education-for-investment-adviser-representatives/.
    \66\ Several commenters, cited in the 913 Study, suggested that 
this was a gap that should be addressed. See 913 Study, supra note 
38, at 138 (citing letters from AALU, Bank of America, FSI, 
Hartford, LPL, UBS, and Woodbury).
---------------------------------------------------------------------------

    We request comment on whether there should be federal licensing and 
continuing education requirements for personnel of SEC-registered 
investment advisers. Such requirements could be designed to address 
minimum and ongoing competency requirements for the personnel of SEC-
registered advisers.\67\
---------------------------------------------------------------------------

    \67\ See 913 Study, supra note 38, at 138.
---------------------------------------------------------------------------

     Should investment adviser representatives be subject to 
federal continuing education and licensing requirements?
     Which advisory personnel should be included in these 
requirements? For example, should persons whose functions are solely 
clerical or ministerial be excluded, similar to the exclusion in the 
FINRA rules regarding broker-dealer registered representatives? Should 
a subset of registered investment adviser personnel (such as supervised 
persons, individuals for whom an adviser must deliver a Form ADV 
brochure supplement, ``investment adviser representatives'' as defined 
in the Advisers Act, or some other group) be required to comply with 
such requirements?
     How should the continuing education requirement be 
structured? How frequent should the certification be? How many hours of 
education should be required? Who should determine what qualifies as an 
authorized continuing education class?
     How could unnecessary duplication of any existing 
continuing education requirement be avoided?
     Should these individuals be required to register with the 
Commission? What information should these individuals be required to 
disclose on any registration form? Should the registration requirements 
mirror the requirements of existing Form U4 or require additional 
information? Should such registration requirements apply to individuals 
who provide advice on behalf of SEC-registered investment advisers but 
fall outside the definition of ``investment adviser representative'' in 
rule 203A-3 (because, for example, they have five or fewer clients who 
are natural persons, they provide impersonal investment advice, or ten 
percent or less of their clients are individuals other than qualified 
clients)? Should these individuals be required to pass examinations, 
such as the Series 65 exam required by most states, or to hold certain 
designations, as part of any registration requirements? Should other 
steps be required as well, such as a background check or 
fingerprinting? Would a competency or other examination be a 
meritorious basis upon which to determine competency and proficiency? 
Would a competency or other examination requirement provide a false 
sense of security to advisory clients of competency or proficiency?
     If continuing education requirements are a part of any 
licensing requirements, should specific topics or types of training be 
required? For example, these individuals could be required to complete 
a certain amount of training dedicated to ethics, regulatory 
requirements or the firm's compliance program.
     What would the expected benefits of continuing education 
and licensing be? Would it be an effective way to increase the quality 
of advice provided to investors? Would it provide better visibility 
into the qualifications and education of personnel of SEC-registered 
investment advisers?
     What would the expected costs of continuing education and 
licensing be? How expensive would it be to obtain the continuing 
education or procure the license? Do those costs scale, or would they 
fall more heavily on smaller advisers? Would these requirements result 
in a barrier to entry that could decrease the number of advisers and 
advisory personnel (and thus potentially increase the cost of advice)?
     What would the effects be of continuing education and 
licensing for investment adviser personnel in the market for investment 
advice (i.e., as compared to broker-dealers)?
     What other types of qualification requirements should be 
considered, such as minimum experience requirements or standards 
regarding an individual's fitness for serving as an investment adviser 
representative?

B. Provision of Account Statements

    Fees and costs are important to retail investors,\68\ but many 
retail investors are uncertain about the fees they will pay.\69\ The 
relationship summary that we are proposing in a concurrent release 
would discuss certain differences between advisory and brokerage fees 
to provide investors more clarity concerning the key categories of fees 
and expenses they should expect to pay, but would not require more 
complete, specific or personalized disclosures or disclosures about the 
amount of fees and expenses.\70\ We believe that delivery of periodic 
account statements, if they specified the dollar amounts of

[[Page 21213]]

fees and expenses, would allow clients to readily see and understand 
the fees and expenses they pay for an adviser's services. Clients would 
receive account statements close in time to the assessment of periodic 
account fees, which could be an effective way for clients to understand 
and evaluate the cost of the services they are receiving from their 
advisers.
---------------------------------------------------------------------------

    \68\ See Staff of the Securities and Exchange Commission, Study 
Regarding Financial Literacy Among Investors as required by Section 
917 of the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Aug. 2012), at iv, available at https://www.sec.gov/news/studies/2012/917-financial-literacy-study-part1.pdf (``With respect to 
financial intermediaries, investors consider information about fees, 
disciplinary history, investment strategy, conflicts of interest to 
be absolutely essential.'').
    \69\ See Angela A. Hung, et al., RAND Institute for Civil 
Justice, Investor and Industry Perspectives on Investment Advisers 
and Broker-Dealers (2008), at xix, available at https://www.sec.gov/news/press/2008/2008-1_randiabdreport.pdf (``In fact, focus-group 
participants with investments acknowledged uncertainty about the 
fees they pay for their investments, and survey responses also 
indicate confusion about the fees.'').
    \70\ See Form CRS Proposal, supra note 6, at Section II.B.4.
---------------------------------------------------------------------------

    Broker-dealers are required to provide confirmations of 
transactions with detailed information concerning commissions and 
certain other remuneration, as well as account statements containing a 
description of any securities positions, money balances or account 
activity during the period since the last statement was sent to the 
customer.\71\ Broker-dealers generally must provide account statements 
no less than once every calendar quarter. Brokerage customers must 
receive periodic account statements even when not receiving immediate 
trade confirmations.\72\ Although we understand that many advisers do 
provide clients with account statements, advisers are not directly 
required to provide account statements under the federal securities 
laws. Notably, however, the custody rule requires advisers with custody 
of a client's assets to have a reasonable basis for believing that the 
qualified custodian sends an account statement at least quarterly.\73\ 
In addition, in any separately managed account program relying on rule 
3a-4 under the Investment Company Act of 1940, the program sponsor or 
another person designated by the sponsor must provide clients 
statements at least quarterly containing specified information.\74\
---------------------------------------------------------------------------

    \71\ See, e.g., NASD Rule 2340; FINRA Rule 2232; MSRB Rule G-15. 
See also Exchange Act rule 15c3-2 (account statements); Exchange Act 
rule 10b-10 (confirmation of transactions).
    \72\ See Confirmation of Transactions, Securities Exchange Act 
Release No. 34962 (November 10, 1994).
    \73\ Advisers Act rule 206(4)-2(a)(3) (custody rule). The 
Commission also has stated that an adviser's policies and 
procedures, at a minimum, should address the accuracy of disclosures 
made to investors, clients, and regulators, including account 
statements.
    \74\ Investment Company Act of 1940 [15 U.S.C. 80a-1 et seq.] 
(``Investment Company Act'') rule 3a-4(a)(4).
---------------------------------------------------------------------------

    We request comment on whether we should propose rules to require 
registered investment advisers to provide account statements, either 
directly or via the client's custodian, regardless of whether the 
adviser is deemed to have custody of client assets under Advisers Act 
Rule 206(4)-2 or the adviser is a sponsor (or a designee of a sponsor) 
of a managed account program relying on the safe harbor in Investment 
Company Act rule 3a-4.
     To what extent do retail clients of registered investment 
advisers already receive account statements? To what extent do those 
account statements specify the dollar amounts charged for advisory fees 
and other fees (e.g., brokerage fees) and expenses? Would retail 
clients benefit from a requirement that they receive account statements 
from registered investment advisers? If clients are uncertain about 
what fees and expenses they will pay, would they benefit from a 
requirement that, before receiving advice from a registered investment 
adviser, they enter into a written (including electronic) agreement 
specifying the fees and expenses to be paid?
     What information, in addition to fees and expenses, would 
be most useful for retail clients to receive in account statements? 
Should any requirement to provide account statements have prescriptive 
requirements as to presentation, content, and delivery? Should they 
resemble the account statements required to be provided by broker-
dealers, under NASD Rule 2340 with the addition of fee disclosure?
     How often should clients receive account statements?
     How costly would it be to provide account statements? Does 
that cost depend on how those account statements could be delivered 
(e.g., via U.S. mail, electronic delivery, notice and access)? Are 
there any other factors that would impact cost?

C. Financial Responsibility

    Broker-dealers are subject to a comprehensive financial 
responsibility program. Pursuant to Exchange Act rule 15c3-1 (the net 
capital rule), broker-dealers are required to maintain minimum levels 
of net capital designed to ensure that a broker-dealer under financial 
stress has sufficient liquid assets to satisfy all non-subordinated 
liabilities without the need for a formal liquidation proceeding.\75\ 
Exchange Act rule 15c3-3 (the customer protection rule) requires 
broker-dealers to segregate customer assets and maintain them in a 
manner designed to ensure that should the broker-dealer fail, those 
assets are readily available to be returned to customers.\76\ Broker-
dealers are also subject to extensive recordkeeping and reporting 
requirements, including an annual audit requirement as well as a 
requirement to make their audited balance sheets available to 
customers.\77\ Broker-dealers are required to be members of the 
Securities Investor Protection Corporation (``SIPC''), which is 
responsible for overseeing the liquidation of member broker-dealers 
that close due to bankruptcy or financial trouble and customer assets 
are missing. When a brokerage firm is closed and customer assets are 
missing, SIPC, within certain limits, works to return customers' cash, 
stock, and other securities held by the firm. If a firm closes, SIPC 
protects the securities and cash in a customer's brokerage account up 
to $500,000, including up to $250,000 protection for cash in the 
account.\78\ Finally, FINRA rules require that broker-dealers obtain 
fidelity bond coverage from an insurance company.\79\
---------------------------------------------------------------------------

    \75\ See Exchange Act rule 15c3-1.
    \76\ See Exchange Act rule 15c3-3.
    \77\ See Exchange Act rules 17a-3, 17a-4, and 17a-5.
    \78\ See Securities Investor Protection Act of 1970, Public Law 
91-598, 84 Stat. 1636 (Dec. 30, 1970), 15 U.S.C. 78aaa through 15 
U.S.C. 78lll.
    \79\ See FINRA Rule 4360, (``Fidelity Bonds'').
---------------------------------------------------------------------------

    Under Advisers Act rule 206(4)-2, investment advisers with custody 
must generally maintain client assets with a ``qualified custodian,'' 
which includes banks and registered broker-dealers, and must comply 
with certain other requirements.\80\ In 2009 the Commission adopted 
amendments to the custody requirements for investment advisers that, 
among other enhancements, required all registered investment advisers 
with custody of client assets to undergo an annual surprise examination 
by an independent public accountant. SEC-registered investment 
advisers, however, are not subject to any net capital requirements 
comparable to those applicable to broker-dealers, although they must 
disclose any material financial condition that impairs their ability to 
provide services to their clients.\81\ Many investment advisers have 
relatively small amounts of capital, particularly compared to the 
amount of assets that they have under management.\82\ When we discover 
a serious fraud by an adviser, often the assets of the adviser are 
insufficient to compensate clients for their loss. In addition, 
investment advisers are not required to obtain fidelity bonds, unlike

[[Page 21214]]

many other financial service providers that have access to client 
assets.\83\
---------------------------------------------------------------------------

    \80\ See Advisers Act rule 206(4)-2.
    \81\ See Form ADV. Many states have imposed fidelity bonding 
and/or net capital requirements on state-registered investment 
advisers. Rule 17g-1 under the Investment Company Act of 1940 
requires registered investment companies to obtain fidelity bonds 
covering their officers and employees who may have access to the 
investment companies' assets.
    \82\ See Custody of Funds or Securities of Clients by Investment 
Advisers, Investment Advisers Act Release No. 2968 (Dec. 30, 2009).
    \83\ Fidelity bonds are required to be obtained by broker-
dealers (FINRA Rule 4360; New York Stock Exchange Rule 319; American 
Stock Exchange Rule 330); transfer agents (New York Stock Exchange 
Rule Listed Company Manual Sec.  906); investment companies (17 CFR 
270.17g-1); national banks (12 CFR 7.2013); federal savings 
associations (12 CFR 563.190).
---------------------------------------------------------------------------

    In light of these disparities, we request comment on whether SEC-
registered investment advisers should be subject to financial 
responsibility requirements along the lines of those that apply to 
broker-dealers.
     What is the frequency and severity of client losses due to 
investment advisers' inability to satisfy a judgment or otherwise 
compensate a client for losses due to the investment adviser's 
wrongdoing?
     Should investment advisers be subject to net capital or 
other financial responsibility requirements in order to ensure they can 
meet their obligations, including compensation for clients if the 
adviser becomes insolvent or advisory personnel misappropriate clients' 
assets? \84\ Do the custody rule and other rules \85\ under the 
Advisers Act adequately address the potential for misappropriation of 
client assets and other financial responsibility concerns for advisers? 
Should investment advisers be subject to an annual audit requirement?
---------------------------------------------------------------------------

    \84\ We note that Congress and the Commission have considered 
such requirements in the past. In 1973, a Commission advisory 
committee recommended that Congress authorize the Commission to 
adopt minimum financial responsibility requirements for investment 
advisers, including minimum capital requirements. See Report of the 
Advisory Committee on Investment Management Services for Individual 
Investors, Small Account Investment Management Services, Fed. Sec. 
L. Rep. (CCH) No. 465, Pt. III, 64-66 (Jan. 1973) (``Investment 
Management Services Report''). Three years later, in 1976, the 
Senate Committee on Banking, Housing and Urban Affairs considered a 
bill that, among other things, would have authorized the Commission 
to adopt rules requiring investment advisers (i) with discretionary 
authority over client assets, or (ii) that advise registered 
investment companies, to meet financial responsibility standards. S. 
Rep. No. 94-910, 94th Cong. 2d Sess. (May 20, 1976) (reporting 
favorably S. 2849). S. 2849 was never enacted. In 1992, both the 
Senate and House of Representatives passed bills that would have 
given the Commission the explicit authority to require investment 
advisers with custody of client assets to obtain fidelity bonds. S. 
226, 102d Cong., 2d Sess. (Aug. 12, 1992) and H.R. 5726, 102d Cong. 
Ed (Sept. 23, 1992). Differences in these two bills were never 
reconciled and thus neither became law. In 2003, the Commission 
requested comment on whether to require a fidelity bonding 
requirement for advisers as a way to increase private sector 
oversight of the compliance by funds and advisers with the federal 
securities laws. The Commission decided not to adopt a fidelity 
bonding requirement at that time, but noted that it regarded such a 
requirement as a viable option should the Commission wish to further 
strengthen compliance programs of funds and advisers. Compliance 
Programs of Investment Companies and Investment Advisers, Investment 
Company Act Release No. 25925 (Feb. 5, 2003).
    \85\ See, e.g., Advisers Act rule 206(4)-7 (requires each 
investment adviser registered or required to be registered with the 
Commission to adopt and implement written policies and procedures 
reasonably designed to prevent violations of the Advisers Act and 
Advisers Act rules, review those policies and procedures annually, 
and designate an individual to serve as a chief compliance officer).
---------------------------------------------------------------------------

     Should advisers be required to obtain a fidelity bond from 
an insurance company? If so, should some advisers be excluded from this 
requirement? \86\ Is there information or data that demonstrates 
fidelity bonding requirements provide defrauded clients with recovery, 
and if so what amount or level of recovery is evidenced?
---------------------------------------------------------------------------

    \86\ As noted above, the 1992 legislation would have given us 
the explicit authority to require bonding of advisers that have 
custody of client assets or that have discretionary authority over 
client assets. Section 412 of ERISA [29 U.S.C. 1112] and related 
regulations (29 CFR 2550.412-1 and 29 CFR 2580) generally require 
that every fiduciary of an employee benefit plan and every person 
who handles funds or other property of such a plan shall be bonded. 
Registered investment advisers exercising investment discretion over 
assets of plans covered by title I of ERISA are subject to this 
requirement; it does not apply to advisers who exercise discretion 
with respect to assets in an individual retirement account or other 
non-ERISA retirement account. In 1992, only approximately three 
percent of Commission registered advisers had discretionary 
authority over client assets; as of March 31, 2018, according to 
data collected on Form ADV, 91 percent of Commission registered 
advisers have that authority.
---------------------------------------------------------------------------

     Alternatively, should advisers be required to maintain a 
certain amount of capital that could be the source of compensation for 
clients? \87\ What amount of capital would be adequate? \88\
---------------------------------------------------------------------------

    \87\ See supra note 84.
    \88\ Section 412 of ERISA provides that the bond required under 
that section must +be at least ten percent of the amount of funds 
handled, with a maximum required amount of $500,000 (increased to 
$1,000,000,000 for plans that hold securities issued by an employer 
of employees covered by the plan).
---------------------------------------------------------------------------

     What would be the expected cost of either maintaining some 
form of reserve capital or purchasing a fidelity bond? Specifically, in 
addition to setting aside the initial sum or purchasing the initial 
bond, what would be the ongoing cost and the opportunity cost for 
investment advisers? Would one method or the other be more feasible for 
certain types of investment advisers (particularly, smaller advisers)?
     Would the North American Securities Administrators 
Association Minimum Financial Requirements For Investment Advisers 
Model Rule 202(d)-1 \89\ (which requires, among other things, an 
investment adviser who has custody of client funds or securities to 
maintain at all times a minimum net worth of $35,000 (with some 
exceptions), an adviser who has discretionary authority but not custody 
over client funds or securities to maintain at all times a minimum net 
worth of $10,000, and an adviser who accepts prepayment of more than 
$500 per client and six or more months in advance to maintain at all 
times a positive net worth), provide an appropriate model for a minimum 
capital requirement? Why or why not?
---------------------------------------------------------------------------

    \89\ NASAA Minimum Financial Requirements For Investment 
Advisers Model Rule 202(d)-1 (Sept. 11, 2011), available at http://www.nasaa.org/wp-content/uploads/2011/07/IA-Model-Rule-Minimum-Financial-Requirements.pdf.
---------------------------------------------------------------------------

     Although investment advisers are required to report 
specific information about the assets that they manage on behalf of 
clients, they are not required to report specific information about 
their own assets.\90\ Should advisers be required to obtain annual 
audits of their own financials and to provide such information on Form 
ADV? Would such a requirement raise privacy concerns for privately held 
advisers?
---------------------------------------------------------------------------

    \90\ Form ADV only requires that advisers with significant 
assets (at least $1 billion) report the approximate amount of their 
assets within one of the three ranges ($1 billion to less than $10 
billion, $10 billion to less than $50 billion, and $50 billion or 
more). Item 1.O of Part 1A of Form ADV.

---------------------------------------------------------------------------
    By the Commission.

    Dated: April 18, 2018.
Brent J. Fields,
Secretary.
[FR Doc. 2018-08679 Filed 5-8-18; 8:45 am]
 BILLING CODE 8011-01-P



                                                                       Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                  21203




                                                  (4) Before or upon accumulating 12,000               Standards Branch, FAA, has the authority to           Kansas City, Missouri 64106. For information
                                               landings after the reinforcement modification           approve AMOCs for this AD, if requested               on the availability of this material at the
                                               required in paragraph (i)(2) or (3) of this AD,         using the procedures found in 14 CFR 39.19.           FAA, call (816) 329–4148.
                                               replace the reinforced front attachment on              Send information to ATTN: Albert Mercado,               Issued in Kansas City, Missouri, on April
                                               the fuselage side following the Description of          Aerospace Engineer, FAA, Small Airplane               30, 2018.
                                               Accomplishment Instructions in SOCATA                   Standards Branch, 901 Locust, Room 301,
                                               Daher Service Bulletin SB 10–081, Revision              Kansas City, Missouri 64106; telephone:               Melvin J. Johnson,
                                               3, December 2017.                                       (816) 329–4119; fax: (816) 329–4090; email:           Deputy Director, Policy & Innovation Division,
                                                                                                       albert.mercado@faa.gov. Before using any              Aircraft Certification Service.
                                               (j) Replacement of the Reinforced Front
                                               Attachment                                              approved AMOC on any airplane to which                [FR Doc. 2018–09602 Filed 5–8–18; 8:45 am]
                                                                                                       the AMOC applies, notify your appropriate             BILLING CODE 4910–13–P
                                                  Replacement of the reinforced front                  principal inspector (PI) in the FAA Flight
                                               attachment on the wing side and/or                      Standards District Office (FSDO), or lacking
                                               replacement of the reinforced front
                                                                                                       a PI, your local FSDO.
                                               attachment on the fuselage side, does not                                                                     SECURITIES AND EXCHANGE
                                                                                                         (2) Contacting the Manufacturer: For any
                                               terminate the inspections required in                                                                         COMMISSION
                                                                                                       requirement in this AD to obtain corrective
                                               paragraphs (h)(1) and (i)(1) of this AD. After
                                                                                                       actions from a manufacturer, the action must
                                               replacement, the initial and repetitive                                                                       17 CFR Part 275
                                               inspection cycle starts over.                           be accomplished using a method approved
                                                                                                       by the Manager, Small Airplane Standards              [Release No. IA–4889; File No. S7–09–18]
                                               (k) Credit for Previous Actions                         Branch, FAA; or the European Aviation
                                                  This AD allows credit for the initial                Safety Agency (EASA).                                 RIN 3235–AM36
                                               inspection required in paragraphs (g)(1) and            (m) Related Information
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                                               inspection, if done before the effective date           January 31, 2018; and Daher Service Bulletin          Investment Advisers; Request for
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                                                                                                       MCAI on the internet at http://
                                                                                                                                                             Adviser Regulation
                                               1996 or Revision 2, dated January 2017. Any
                                               inspections or replacements done after the              www.regulations.gov by searching for and              AGENCY:  Securities and Exchange
                                               effective date must be done following                   locating Docket No. FAA–2018–0326. For                Commission.
amozie on DSK3GDR082PROD with PROPOSALS




                                               SOCATA Daher Service Bulletin SB 10–081,                service information related to this AD,
                                                                                                       contact SOCATA, Direction des services,               ACTION: Proposed interpretation; request
                                               Revision 3, December 2017 as specified in
                                               the Actions and Compliance of this AD.                  65921 Tarbes Cedex 9, France; phone: +33 (0)          for comment.
                                                                                                       5 62 41 73 00; fax: +33 (0) 5 62 41 76 54;
                                               (l) Other FAA AD Provisions                             email: info@socata.daher.com; internet:               SUMMARY:  The Securities and Exchange
                                                  The following provisions also apply to this          https://www.mysocata.com/login/                       Commission (the ‘‘SEC’’ or the
                                               AD:                                                     accueil.php. You may review copies of the             ‘‘Commission’’) is publishing for
                                                  (1) Alternative Methods of Compliance                referenced service information at the FAA,            comment a proposed interpretation of
                                                                                                                                                                                                              EP09MY18.023</GPH>




                                               (AMOCs): The Manager, Small Airplane                    Policy and Innovation Division, 901 Locust,           the standard of conduct for investment


                                          VerDate Sep<11>2014   17:09 May 08, 2018   Jkt 244001   PO 00000   Frm 00016   Fmt 4702   Sfmt 4702   E:\FR\FM\09MYP1.SGM   09MYP1


                                               21204                   Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               advisers under the Investment Advisers                  6787 or IArules@sec.gov, Investment                    broker-dealers provide advice and
                                               Act of 1940 (the ‘‘Advisers Act’’ or the                Adviser Regulation Office, Division of                 services to retail investors and are
                                               ‘‘Act’’). The Commission also is                        Investment Management, Securities and                  important to our capital markets and our
                                               requesting comment on: Licensing and                    Exchange Commission, 100 F Street NE,                  economy more broadly. Broker-dealers
                                               continuing education requirements for                   Washington, DC 20549–8549.                             and investment advisers have different
                                               personnel of SEC-registered investment                  SUPPLEMENTARY INFORMATION: The                         types of relationships with their
                                               advisers; delivery of account statements                Commission is publishing for comment                   customers and clients and have different
                                               to clients with investment advisory                     a proposed interpretation of the                       models for providing advice, which
                                               accounts; and financial responsibility                  standard of conduct for investment                     provide investors with choice about the
                                               requirements for SEC-registered                         advisers under the Advisers Act [15                    levels and types of advice they receive
                                               investment advisers, including fidelity                 U.S.C. 80b].1                                          and how they pay for the services that
                                               bonds.                                                                                                         they receive.
                                                                                                       Table of Contents                                         Today, the Commission is proposing
                                               DATES: Comments should be received on
                                                                                                       II. Investment Advisers’ Fiduciary Duty                a rule that would require all broker-
                                               or before August 7, 2018.
                                                                                                          A. Duty of Care                                     dealers and natural persons who are
                                               ADDRESSES: Comments may be                                 i. Duty To Provide Advice That Is in the            associated persons of broker-dealers to
                                               submitted by any of the following                             Client’s Best Interest                           act in the best interest of retail
                                               methods:                                                   ii. Duty To Seek Best Execution                     customers 4 when making a
                                                                                                          iii. Duty To Act and To Provide Advice              recommendation of any securities
                                               Electronic Comments                                           and Monitoring Over the Course of the
                                                                                                                                                              transaction or investment strategy
                                                 • Use the Commission’s internet                             Relationship
                                                                                                          B. Duty of Loyalty                                  involving securities to retail customers
                                               comment form (http://www.sec.gov/
                                                                                                          C. Request for Comment                              (‘‘Regulation Best Interest’’).5 We are
                                               rules/interp.shtml); or                                                                                        also proposing to require registered
                                                 • Send an email to rule-comments@                     III. Economic Considerations
                                                                                                          A. Background                                       investment advisers and registered
                                               sec.gov. Please include File Number S7–
                                                                                                          B. Economic Impacts                                 broker-dealers to deliver to retail
                                               09–18 on the subject line.                              IV. Request for Comment Regarding Areas of             investors a relationship summary,
                                               Paper Comments                                                Enhanced Investment Adviser                      which would provide these investors
                                                                                                             Regulation                                       with information about the relationships
                                                  • Send paper comments to Brent J.                       A. Federal Licensing and Continuing
                                               Fields, Secretary, Securities and                                                                              and services the firm offers, the
                                                                                                             Education
                                               Exchange Commission, 100 F Street NE,                                                                          standard of conduct and the fees and
                                                                                                          B. Provision of Account Statements
                                               Washington, DC 20549–1090.                                 C. Financial Responsibility                         costs associated with those services,
                                                                                                                                                              specified conflicts of interest, and
                                               All submissions should refer to File                    I. Introduction                                        whether the firm and its financial
                                               Number S7–09–18. This file number
                                                                                                          An investment adviser is a fiduciary,               professionals currently have reportable
                                               should be included on the subject line                                                                         legal or disciplinary events.6 In light of
                                               if email is used. To help the                           and as such is held to the highest
                                                                                                       standard of conduct and must act in the                the comprehensive nature of our
                                               Commission process and review your                                                                             proposed set of rulemakings, we believe
                                               comments more efficiently, please use                   best interest of its client.2 Its fiduciary
                                                                                                       obligation, which includes an                          it would be appropriate and beneficial
                                               only one method. The Commission will                                                                           to address in one release 7 and
                                               post all comments on the Commission’s                   affirmative duty of utmost good faith
                                                                                                       and full and fair disclosure of all                    reaffirm—and in some cases clarify—
                                               internet website (http://www.sec.gov/                                                                          certain aspects of the fiduciary duty that
                                               rules/interp.shtml). Comments also are                  material facts, is established under
                                                                                                       federal law and is important to the                    an investment adviser owes to its clients
                                               available for website viewing and                                                                              under section 206 of the Advisers Act.8
                                               printing in the Commission’s Public                     Commission’s investor protection
                                                                                                       efforts.3 The Commission also regulates                   An investment adviser’s fiduciary
                                               Reference Room, 100 F Street NE,                                                                               duty is similar to, but not the same as,
                                               Washington, DC 20549, on official                       broker-dealers, including the obligations
                                                                                                       that broker-dealers owe to their                       the proposed obligations of broker-
                                               business days between the hours of
                                               10:00 a.m. and 3:00 p.m. All comments                   customers. Investment advisers and                        4 An investment adviser has a fiduciary duty to

                                               received will be posted without change.                                                                        all of its clients, whether or not the client is a retail
                                                                                                         1 15  U.S.C. 80b. Unless otherwise noted, when we
                                               Persons submitting comments are                                                                                investor.
                                                                                                       refer to the Advisers Act, or any paragraph of the        5 Regulation Best Interest, Exchange Act Release
                                               cautioned that we do not redact or edit                 Advisers Act, we are referring to 15 U.S.C. 80b of     No. 34–83062 (April 18, 2018) (‘‘Regulation Best
                                               personal identifying information from                   the United States Code, at which the Advisers Act      Interest Proposal’’).
                                               comment submissions. You should                         is codified, and when we refer to rules under the         6 Form CRS Relationship Summary; Amendments

                                               submit only information that you wish                   Advisers Act, or any paragraph of these rules, we      to Form ADV; Required Disclosures in Retail
                                                                                                       are referring to title 17, part 275 of the Code of     Communications and Restrictions on the use of
                                               to make publicly available.                             Federal Regulations [17 CFR 275], in which these       Certain Names or Titles, Investment Advisers Act
                                                  Studies, memoranda or other                          rules are published.                                   Release No. IA–4888 (April 18, 2018) (‘‘Form CRS
                                               substantive items may be added by the                      2 SEC v. Capital Gains Research Bureau, Inc., 375
                                                                                                                                                              Proposal’’).
                                               Commission or staff to the comment file                 U.S. 180, 194 (1963) (‘‘SEC v. Capital Gains’’). See      7 This Release is intended to highlight the
                                                                                                       also infra notes 26–32 and accompanying text;          principles relevant to an adviser’s fiduciary duty. It
                                               during this rulemaking. A notification of               Investment Adviser Codes of Ethics, Investment         is not, however, intended to be the exclusive
                                               the inclusion in the comment file of any                Advisers Act Release No. 2256 (July 2, 2004);          resource for understanding these principles.
                                               such materials will be made available                   Compliance Programs of Investment Companies and           8 The Commission recognizes that many advisers
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                                               on the Commission’s website. To ensure                  Investment Advisers, Investment Advisers Act           provide impersonal investment advice. See, e.g.,
                                                                                                       Release No. 2204 (Dec. 17, 2003) (‘‘Compliance         Advisers Act rule 203A–3 (defining ‘‘impersonal
                                               direct electronic receipt of such                       Programs Release’’); Electronic Filing by Investment   investment advice’’ in the context of defining
                                               notifications, sign up through the ‘‘Stay               Advisers; Proposed Amendments to Form ADV,             ‘‘investment adviser representative’’ as ‘‘investment
                                               Connected’’ option at www.sec.gov to                    Investment Advisers Act Release No. 1862 (Apr. 5,      advisory services provided by means of written
                                               receive notifications by email.                         2000). We acknowledge that investment advisers         material or oral statements that do not purport to
                                                                                                       also have antifraud liability with respect to          meet the objectives or needs of specific individuals
                                               FOR FURTHER INFORMATION CONTACT:                        prospective clients under section 206 of the           or accounts’’). This Release does not address the
                                               Jennifer Songer, Senior Counsel, or Sara                Advisers Act.                                          extent to which the Advisers Act applies to
                                               Cortes, Assistant Director, at (202) 551–                  3 See SEC v. Capital Gains, supra note 2.           different types of impersonal investment advice.



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                                                                         Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                              21205

                                               dealers under Regulation Best Interest.9                  specifically defined in the Advisers Act                    conduct for investment advisers and
                                               While we are not proposing a uniform                      or in Commission rules, but reflects a                      broker-dealers acknowledged these
                                               standard of conduct for broker-dealers                    Congressional recognition ‘‘of the                          duties.16 This fiduciary duty requires an
                                               and investment advisers in light of their                 delicate fiduciary nature of an                             adviser ‘‘to adopt the principal’s goals,
                                               different relationship types and models                   investment advisory relationship’’ as                       objectives, or ends.’’ 17 This means the
                                               for providing advice, we continue to                      well as a Congressional intent to                           adviser must, at all times, serve the best
                                               consider whether we can improve                           ‘‘eliminate, or at least to expose, all                     interest of its clients and not
                                               protection of investors through potential                 conflicts of interest which might incline                   subordinate its clients’ interest to its
                                               enhancements to the legal obligations of                  an investment adviser—consciously or                        own.18 The federal fiduciary duty is
                                               investment advisers. Below, in addition                   unconsciously—to render advice which
                                                                                                                                                                     imposed through the antifraud
                                               to our interpretation of advisers’                        was not disinterested.’’ 12 An adviser’s
                                                                                                                                                                     provisions of the Advisers Act.19 The
                                               existing fiduciary obligations, we                        fiduciary duty is imposed under the
                                                                                                                                                                     duty follows the contours of the
                                               request comment on three potential                        Advisers Act in recognition of the
                                               enhancements to their legal obligations                   nature of the relationship between an                       relationship between the adviser and its
                                               by considering areas where the current                    investment adviser and a client and the                     client, and the adviser and its client
                                               broker-dealer framework provides                          desire ‘‘so far as is presently practicable                 may shape that relationship through
                                               investor protections that may not have                    to eliminate the abuses’’ that led to the                   contract when the client receives full
                                               counterparts in the investment adviser                    enactment of the Advisers Act.13 It is                      and fair disclosure and provides
                                               context.                                                  made enforceable by the antifraud                           informed consent.20 Although the
                                                                                                         provisions of the Advisers Act.14                           ability to tailor the terms means that the
                                               II. Investment Advisers’ Fiduciary Duty                                                                               application of the fiduciary duty will
                                                                                                            An investment adviser’s fiduciary
                                                  The Advisers Act establishes a federal                 duty under the Advisers Act comprises                       vary with the terms of the relationship,
                                               fiduciary standard for investment                         a duty of care and a duty of loyalty.                       the relationship in all cases remains that
                                               advisers.10 This fiduciary standard is                    Several commenters responding to                            of a fiduciary to a client. In other words,
                                               based on equitable common law                             Chairman Clayton’s June 2017 request                        the investment adviser cannot disclose
                                               principles and is fundamental to                          for public input 15 on the standards of                     or negotiate away, and the investor
                                               advisers’ relationships with their clients                                                                            cannot waive, the federal fiduciary
                                               under the Advisers Act.11 The fiduciary                     12 See   SEC v. Capital Gains, supra note 2.
                                               duty to which advisers are subject is not                   13 See   SEC v. Capital Gains, supra note 2 (‘‘The        Chairman Jay Clayton (June 1, 2017), available at
                                                                                                         Advisers Act thus reflects a congressional                  https://www.sec.gov/news/public-statement/
                                                  9 Regulation Best Interest Proposal, supra note 5.     recognition ‘of the delicate fiduciary nature of an         statement-chairman-clayton-2017-05-31
                                                                                                         investment advisory relationship,’ as well as a             (‘‘Chairman Clayton’s Request for Public Input’’).
                                               In addition to the obligations proposed in
                                               Regulation Best Interest, broker-dealers have a           congressional intent to eliminate, or at least to              16 See, e.g., Comment letter of the Investment

                                               variety of existing specific obligations, including,      expose, all conflicts of interest which might incline       Adviser Association (Aug. 31, 2017) (‘‘IAA Letter’’)
                                               among others, suitability, best execution, and fair       an investment adviser—consciously or                        (‘‘The well-established fiduciary duty under the
                                               and reasonable compensation. See, e.g., Hanly v.          unconsciously—to render advice which was not                Advisers Act, which incorporates both a duty of
                                               SEC, 415 F.2d 589, 596–97 (2d Cir. 1969) (‘‘A             disinterested.’’ and also noting that the ‘‘declaration     loyalty and a duty of care, has been applied
                                               securities dealer occupies a special relationship to      of policy’’ in the original bill, which became the          consistently over the years by courts and the
                                               a buyer of securities in that by his position he          Advisers Act, declared that ‘‘the national public           SEC.’’); Comment letter of the Consumer Federation
                                               implicitly represents that he has an adequate and         interest and the interest of investors are adversely        of America (Sept. 14, 2017) (‘‘an adviser’s fiduciary
                                               reasonable basis for the opinions he renders.’’); and     affected when the business of investment advisers           obligation ‘divides neatly into the duty of loyalty
                                               FINRA rules 2111 (Suitability), 5310 (Best                is so conducted as to defraud or mislead investors,         and the duty of care.’ The duty of loyalty is
                                               Execution and Interpositioning), and 2121 (Fair           or to enable such advisers to relieve themselves of         designed to protect against ‘malfeasance,’ or
                                               Prices and Commissions)).                                 their fiduciary obligations to their clients. It [sic] is
                                                                                                                                                                     wrongdoing, on the part of the adviser, while the
                                                  10 Transamerica Mortgage Advisors, Inc. v. Lewis,      hereby declared that the policy and purposes of this
                                                                                                                                                                     duty of care is designed to protect against
                                                                                                         title, in accordance with which the provisions of
                                               444 U.S. 11, 17 (1979) (‘‘Transamerica Mortgage v.                                                                    ‘nonfeasance,’ such as neglect.’’).
                                               Lewis’’) (‘‘§ 206 establishes federal fiduciary           this title shall be interpreted, are to mitigate and,          17 Arthur B. Laby, The Fiduciary Obligations as
                                               standards to govern the conduct of investment             so far as is presently practicable to eliminate the
                                                                                                         abuses enumerated in this section’’ (citing S. 3580,        the Adoption of Ends, 56 Buffalo Law Review 99
                                               advisers.’’) (quotation marks omitted); Santa Fe                                                                      (2008). See also Restatement (Third) of Agency,
                                               Industries, Inc. v. Green, 430 U.S. 462, 471, n.11        76th Cong., 3d Sess., § 202 and Investment Trusts
                                                                                                         and Investment Companies, Report of the Securities          § 2.02 Scope of Actual Authority (2006) (describing
                                               (1977) (in discussing SEC v. Capital Gains, stating                                                                   a fiduciary’s authority in terms of the fiduciary’s
                                               that the Supreme Court’s reference to fraud in the        and Exchange Commission, Pursuant to Section 30
                                                                                                         of the Public Utility Holding Company Act of 1935,          reasonable understanding of the principal’s
                                               ‘‘equitable’’ sense of the term was ‘‘premised on its                                                                 manifestations and objectives).
                                               recognition that Congress intended the Investment         on Investment Counsel, Investment Management,
                                                                                                                                                                        18 Investment Advisers Act Release 3060, supra
                                               Advisers Act to establish federal fiduciary               Investment Supervisory, and Investment Advisory
                                                                                                         Services, H.R. Doc. No. 477, 76th Cong. 2d Sess.,           footnote 10 (adopting amendments to Form ADV
                                               standards for investment advisers’’); SEC v. Capital
                                                                                                         1, at 28). See also In the Matter of Arleen W.              and stating that ‘‘under the Advisers Act, an adviser
                                               Gains, supra note 2; Amendments to Form ADV,
                                                                                                         Hughes, Exchange Act Release No. 4048 (Feb. 18,             is a fiduciary whose duty is to serve the best
                                               Investment Advisers Act Release No. 3060 (July 28,
                                                                                                         1948) (‘‘Arleen Hughes’’) (discussing the                   interests of its clients, which includes an obligation
                                               2010) (‘‘Investment Advisers Act Release 3060’’)
                                               (‘‘Under the Advisers Act, an adviser is a fiduciary      relationship of trust and confidence between the            not to subrogate clients’ interests to its own,’’ citing
                                               whose duty is to serve the best interests of its          client and a dual registrant and stating that the           Investment Advisers Act Release 2106 supra note
                                               clients, which includes an obligation not to              registrant was a fiduciary and subject to liability         10); SEC v. Tambone, 550 F.3d 106, 146 (1st Cir.
                                               subrogate clients’ interests to its own,’’ citing Proxy   under the antifraud provisions of the Securities Act        2008) (‘‘Section 206 imposes a fiduciary duty on
                                               Voting by Investment Advisers, Investment                 of 1933 and the Securities Exchange Act).                   investment advisers to act at all times in the best
                                               Advisers Act Release No. 2106 (Jan. 31, 2003)                14 SEC v. Capital Gains, supra note 2;                   interest of the fund and its investors.’’); SEC v.
                                               (‘‘Investment Advisers Act Release 2106’’)).              Transamerica Mortgage v. Lewis, supra note 10               Moran, 944 F. Supp. 286 (S.D.N.Y 1996)
                                                                                                                                                                     (‘‘Investment advisers are entrusted with the
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                                                  11 See SEC v. Capital Gains, supra note 2              (‘‘[T]he Act’s legislative history leaves no doubt that
                                               (discussing the history of the Advisers Act, and          Congress intended to impose enforceable fiduciary           responsibility and duty to act in the best interest of
                                               how equitable principles influenced the common            obligations.’’).                                            their clients.’’).
                                                                                                            15 Public Comments from Retail Investors and                19 See supra note 14.
                                               law of fraud and changed the suits brought against
                                               a fiduciary, ‘‘which Congress recognized the              Other Interested Parties on Standards of Conduct               20 See infra note 40 and accompanying text for a

                                               investment adviser to be’’).                              for Investment Advisers and Broker-Dealers,                 discussion of informed consent.




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                                               21206                     Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               duty.21 We discuss our views 22 on an                      A. Duty of Care                                             An adviser must, before providing any
                                               investment adviser’s fiduciary duty in                        As fiduciaries, investment advisers                   personalized investment advice and as
                                               more detail below.23                                       owe their clients a duty of care.24 The                  appropriate thereafter, make a
                                                                                                          Commission has discussed the duty of                     reasonable inquiry into the client’s
                                                  21 As an adviser’s federal fiduciary obligations are
                                                                                                          care and its components in a number of                   investment profile. The nature and
                                               enforceable through section 206 of the Act, we             contexts.25 The duty of care includes,                   extent of the inquiry turn on what is
                                               would view a waiver of enforcement of section 206
                                                                                                          among other things: (i) The duty to act                  reasonable under the circumstances,
                                               as implicating section 215(a) of the Act, which                                                                     including the nature and extent of the
                                               provides that ‘‘any condition, stipulation or              and to provide advice that is in the best
                                               provision binding any person to waive compliance           interest of the client, (ii) the duty to seek            agreed-upon advisory services, the
                                               with any provision of this title . . . shall be void.’’    best execution of a client’s transactions                nature and complexity of the
                                               Some commenters on Chairman Clayton’s Request              where the adviser has the responsibility                 anticipated investment advice, and the
                                               for Public Input and other Commission requests for
                                                                                                          to select broker-dealers to execute client               investment profile of the client. For
                                               comment also stated that an adviser’s fiduciary duty                                                                example, to formulate a comprehensive
                                               could not be disclosed away. See, e.g., IAA Letter         trades, and (iii) the duty to provide
                                               supra note 16 (‘‘While disclosure of conflicts is          advice and monitoring over the course                    financial plan for a client, an adviser
                                               crucial, it cannot take the place of the overarching       of the relationship.                                     might obtain a range of personal and
                                               duty of loyalty. In other words, an adviser is still                                                                financial information about the client,
                                               first and foremost bound by its duty to act in its         i. Duty To Provide Advice That Is in the                 including current income, investments,
                                               client’s best interest and disclosure does not relieve     Client’s Best Interest                                   assets and debts, marital status,
                                               an adviser of this duty.’’); Comment letter of AARP
                                                                                                             We have addressed an adviser’s duty                   insurance policies, and financial
                                               (Sept. 6, 2017) (‘‘Disclosure and consent alone do
                                               not meet the fiduciary test.’’); Financial Planning        of care in the context of the provision                  goals.27
                                               Coalition Letter (July 5, 2013) responding to SEC          of personalized investment advice. In                       An adviser must update a client’s
                                               Request for Data and Other Information, Duties of          this context, the duty of care includes a                investment profile in order to adjust its
                                               Brokers, Dealers, and Investment Advisers,                 duty to make a reasonable inquiry into                   advice to reflect any changed
                                               Exchange Act Release No. 69013 (Mar. 1, 2013)                                                                       circumstances.28 The frequency with
                                               (‘‘Financial Planning Coalition 2013 Letter’’)             a client’s financial situation, level of
                                               (‘‘[D]isclosure alone is not sufficient to discharge an    financial sophistication, investment                     which the adviser must update the
                                               investment adviser’s fiduciary duty; rather, the key       experience, and investment objectives                    information in order to consider
                                               issue is whether the transaction is in the best            (which we refer to collectively as the                   changes to any advice the adviser
                                               interest of the client.’’) (internal citations omitted).   client’s ‘‘investment profile’’) and a duty              provides would turn on many factors,
                                               See also Restatement (Third) of Agency, § 8.06                                                                      including whether the adviser is aware
                                               Principal’s Consent (2006) (‘‘The law applicable to
                                                                                                          to provide personalized advice that is
                                               relationships of agency as defined in § 1.01 imposes       suitable for and in the best interest of                 of events that have occurred that could
                                               mandatory limits on the circumstances under                the client based on the client’s                         render inaccurate or incomplete the
                                               which an agent may be empowered to take disloyal           investment profile.26                                    investment profile on which it currently
                                               action. These limits serve protective and cautionary                                                                bases its advice. For example, a change
                                               purposes. Thus, an agreement that contains general            24 See Investment Advisers Act Release No. 2106,      in the relevant tax law or knowledge
                                               or broad language purporting to release an agent in
                                               advance from the agent’s general fiduciary
                                                                                                          supra note 10 (stating that under the Advisers Act,      that the client has retired or experienced
                                                                                                          ‘‘an adviser is a fiduciary that owes each of its        a change in marital status might trigger
                                               obligation to the principal is not likely to be            clients duties of care and loyalty with respect to all
                                               enforceable. This is because a broadly sweeping            services undertaken on the client’s behalf,              an obligation to make a new inquiry.
                                               release of an agent’s fiduciary duty may not reflect       including proxy voting,’’ which is the subject of the       An investment adviser must also have
                                               an adequately informed judgment on the part of the         release, and citing SEC v. Capital Gains supra note      a reasonable belief that the personalized
                                               principal; if effective, the release would expose the      2, to support this point). See also Restatement
                                               principal to the risk that the agent will exploit the
                                                                                                                                                                   advice is suitable for and in the best
                                                                                                          (Third) of Agency, § 8.08 (discussing the duty of
                                               agent’s position in ways not foreseeable by the            care that an agent owes its principal as a matter of     interest of the client based on the
                                               principal at the time the principal agreed to the          common law); The Regulation of Money Managers,           client’s investment profile. A reasonable
                                               release. In contrast, when a principal consents to         supra note 21 (‘‘Advice can be divided into three        belief would involve considering, for
                                               specific transactions or to specified types of             stages. The first determines the needs of the            example, whether investments are
                                               conduct by the agent, the principal has a focused          particular client. The second determines the
                                               opportunity to assess risks that are more readily          portfolio strategy that would lead to meeting the        recommended only to those clients who
                                               identifiable.’’); Tamar Frankel, Arthur Laby & Ann         client’s needs. The third relates to the choice of       can and are willing to tolerate the risks
                                               Schwing, The Regulation of Money Managers,                 securities that the portfolio would contain. The         of those investments and for whom the
                                                                                                          duty of care relates to each of the stages and
                                               (updated 2017) (‘‘The Regulation of Money
                                                                                                          depends on the depth or extent of the advisers’
                                                                                                                                                                   potential benefits may justify the risks.29
                                               Managers’’) (‘‘Disclosure may, but will not always,
                                               cure the fraud, since a fiduciary owes a duty to deal      obligation towards their clients.’’).
                                                                                                             25 See, e.g., Suitability of Investment Advice        adviser’s existing suitability obligation under the
                                               fairly with clients.’’).                                                                                            Advisers Act. We believe that this obligation, when
                                                  22 In various circumstances, other regulators,          Provided by Investment Advisers; Custodial
                                                                                                          Account Statements for Certain Advisory Clients,         combined with an adviser’s fiduciary duty to act in
                                               including the U.S. Department of Labor, and other                                                                   the best interest of its client, requires an adviser to
                                                                                                          Investment Advisers Act Release No. 1406 (Mar. 16,
                                               legal regimes, including state securities law, impose                                                               provide investment advice that is suitable for and
                                                                                                          1994) (‘‘Investment Advisers Act Release 1406’’)
                                               obligations on investment advisers. In some cases,                                                                  in the best interest of its client.
                                                                                                          (stating that advisers have a duty of care and
                                               these standards may differ from the standard               discussing advisers’ suitability obligations);              27 Investment Advisers Act Release 1406, supra
                                               imposed and enforced by the Commission.                    Securities; Brokerage and Research Services,             note 25. After making a reasonable inquiry into the
                                                  23 The interpretations discussed in this Release
                                                                                                          Exchange Act Release No. 23170 (Apr. 23, 1986)           client’s investment profile, it generally would be
                                               also apply to automated advisers, which are often          (‘‘Exchange Act Release 23170’’) (‘‘an adviser, as a     reasonable for an adviser to rely on information
                                               colloquially referred to as ‘‘robo-advisers.’’ Robo-       fiduciary, owes its clients a duty of obtaining the      provided by the client (or the client’s agent)
                                               advisers, like all SEC-registered investment               best execution on securities transactions.’’). We        regarding the client’s financial circumstances, and
                                               advisers, are subject to all of the requirements of the    highlight certain contexts in which the Commission       an adviser should not be held to have given advice
                                               Advisers Act, including the requirement that they          has addressed the duty of care but we note that          not in its client’s best interest if it is later shown
                                               provide advice consistent with the fiduciary duty                                                                   that the client had misled the adviser.
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                                                                                                          there are others; for example, voting proxies when
                                               they owe to their clients. The staff of the                an adviser undertakes to do so. Investment Advisers         28 We note that this would not be done for a one-

                                               Commission has issued guidance regarding how               Act Release 2106, supra note 10.                         time financial plan or other investment advice that
                                               robo-advisers can meet their obligations under the            26 In 1994, the Commission proposed a rule that       is not provided on an ongoing basis. See also infra
                                               Advisers Act, given the unique challenges and              would make express the fiduciary obligation of           note 37.
                                               opportunities presented by their business models.          investment advisers to make only suitable                   29 We note that Item 8 of Part 2A of Form ADV

                                               See Division of Investment Management, SEC, Staff          recommendations to a client. Investment Advisers         requires an investment adviser to describe its
                                               Guidance on Robo Advisers, (February 2017),                Act Release 1406, supra note 25. Although never          methods of analysis and investment strategies and
                                               available at https://www.sec.gov/investment/im-            adopted, the rule was designed, among other things,      disclose that investing in securities involves risk of
                                               guidance-2017-02.pdf.                                      to reflect the Commission’s interpretation of an         loss which clients should be prepared to bear. This



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                                                                        Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                         21207

                                               Whether the advice is in a client’s best                 consent to the conflict.30 Furthermore,                  transactions.33 In meeting this
                                               interest must be evaluated in the context                an adviser would not satisfy its                         obligation, an adviser must seek to
                                               of the portfolio that the adviser manages                fiduciary duty to provide advice that is                 obtain the execution of transactions for
                                               for the client and the client’s investment               in the client’s best interest by simply                  each of its clients such that the client’s
                                               profile. For example, when an adviser is                 advising its client to invest in the least               total cost or proceeds in each
                                               advising a client with a conservative                    expensive or least remunerative                          transaction are the most favorable under
                                               investment objective, investing in                       investment product or strategy without                   the circumstances. An adviser fulfills
                                               certain derivatives may be in the client’s               any further analysis of other factors in                 this duty by executing securities
                                               best interest when they are used to                      the context of the portfolio that the                    transactions on behalf of a client with
                                               hedge interest rate risk in the client’s                 adviser manages for the client and the                   the goal of maximizing value for the
                                               portfolio, whereas investing in certain                  client’s investment profile. For example,                client under the particular
                                               directionally speculative derivatives on                 it might be consistent with an adviser’s                 circumstances occurring at the time of
                                               their own may not. For that same client,                 fiduciary duty to advise a client with a                 the transaction. As noted below,
                                               investing in a particular security on                    high risk tolerance and significant                      maximizing value can encompass more
                                               margin may not be in the client’s best                   investment experience to invest in a                     than just minimizing cost. When
                                               interest, even if investing in that same                 private equity fund with relatively high                 seeking best execution, an adviser
                                               security may be in the client’s best                     fees if other factors about the fund, such               should consider ‘‘the full range and
                                               interest. When advising a financially                    as its diversification and potential                     quality of a broker’s services in placing
                                               sophisticated investor with a high risk                  performance benefits, cause it to be in                  brokerage including, among other
                                               tolerance, however, it may be consistent                 the client’s best interest. We believe that              things, the value of research provided as
                                               with the adviser’s duties to recommend                   a reasonable belief that investment                      well as execution capability,
                                               investing in such directionally                          advice is in the best interest of a client               commission rate, financial
                                               speculative derivatives or investing in                  also requires that an adviser conduct a                  responsibility, and responsiveness’’ to
                                               securities on margin.                                    reasonable investigation into the                        the adviser.34 In other words, the
                                                                                                        investment sufficient to not base its                    determinative factor is not the lowest
                                                  The cost (including fees and
                                                                                                        advice on materially inaccurate or                       possible commission cost but whether
                                               compensation) associated with                            incomplete information.31 We have                        the transaction represents the best
                                               investment advice would generally be                     brought enforcement actions where an                     qualitative execution. Further, an
                                               one of many important factors—such as                    investment adviser did not                               investment adviser should ‘‘periodically
                                               the investment product’s or strategy’s                   independently or reasonably investigate                  and systematically’’ evaluate the
                                               investment objectives, characteristics                   securities before recommending them to                   execution it is receiving for clients.35
                                               (including any special or unusual                        clients.32 This obligation to provide
                                               features), liquidity, risks and potential                                                                         iii. Duty To Act and To Provide Advice
                                                                                                        advice that is suitable and in the best
                                               benefits, volatility and likely                                                                                   and Monitoring Over the Course of the
                                                                                                        interest applies not just to potential
                                               performance in a variety of market and                                                                            Relationship
                                                                                                        investments, but to all advice the
                                               economic conditions—to consider when                     investment adviser provides to clients,                     An investment adviser’s duty of care
                                               determining whether a security or                        including advice about an investment                     also encompasses the duty to provide
                                               investment strategy involving a security                 strategy or engaging a sub-adviser and                   advice and monitoring over the course
                                               or securities is in the best interest of the             advice about whether to rollover a                       of a relationship with a client.36 An
                                               client. Accordingly, the fiduciary duty                  retirement account so that the
                                               does not necessarily require an adviser                  investment adviser manages that
                                                                                                                                                                    33 See Commission Guidance Regarding Client

                                               to recommend the lowest cost                                                                                      Commission Practices Under Section 28(e) of the
                                                                                                        account.                                                 Securities Exchange Act of 1934, Exchange Act
                                               investment product or strategy. We                                                                                Release No. 54165 (July 18, 2006) (stating that
                                               believe that an adviser could not                        ii. Duty To Seek Best Execution                          investment advisers have ‘‘best execution
                                               reasonably believe that a recommended                       We have addressed an investment                       obligations’’); Investment Advisers Act Release
                                               security is in the best interest of a client                                                                      3060, supra note 10 (discussing an adviser’s best
                                                                                                        adviser’s duty of care in the context of                 execution obligations in the context of directed
                                               if it is higher cost than a security that                trade execution where the adviser has                    brokerage arrangements and disclosure of soft dollar
                                               is otherwise identical, including any                    the responsibility to select broker-                     practices). See also Advisers Act rule 206(3)–2(c)
                                               special or unusual features, liquidity,                  dealers to execute client trades                         (referring to adviser’s duty of best execution of
                                               risks and potential benefits, volatility                                                                          client transactions).
                                                                                                        (typically in the case of discretionary                     34 Exchange Act Release 23170, supra note 25.
                                               and likely performance. For example, if                  accounts). We have said that, in this                       35 Id. The Advisers Act does not prohibit advisers
                                               an adviser advises its clients to invest in              context, an adviser has the duty to seek                 from using an affiliated broker to execute client
                                               a mutual fund share class that is more                   best execution of a client’s                             trades. However, the adviser’s use of such an
                                               expensive than other available options                                                                            affiliate involves a conflict of interest that must be
                                               when the adviser is receiving                                                                                     fully and fairly disclosed and the client must
                                                                                                           30 See infra notes 48–52 and accompanying text
                                                                                                                                                                 provide informed consent to the conflict.
                                               compensation that creates a potential                    (discussing an adviser’s duties related to disclosure       36 See SEC v. Capital Gains, supra note 2
                                               conflict and that may reduce the client’s                and consent).                                            (describing advisers’ ‘‘basic function’’ as
                                                                                                           31 See, e.g., Concept Release on the U.S. Proxy
                                               return, the adviser may violate its                                                                               ‘‘furnishing to clients on a personal basis
                                                                                                        System, Investment Advisers Act Release No. 3052         competent, unbiased, and continuous advice
                                               fiduciary duty and the antifraud                         (July 14, 2010) (stating ‘‘as a fiduciary, the proxy     regarding the sound management of their
                                               provisions of the Advisers Act if it does                advisory firm has a duty of care requiring it to make    investments’’ (quoting Investment Trusts and
                                               not, at a minimum, provide full and fair
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                                                                                                        a reasonable investigation to determine that it is not   Investment Companies, Report of the Securities and
                                               disclosure of the conflict and its impact                basing its recommendations on materially                 Exchange Commission, Pursuant to Section 30 of
                                                                                                        inaccurate or incomplete information’’).                 the Public Utility Holding Company Act of 1935, on
                                               on the client and obtain informed client                    32 See In the Matter of Larry C. Grossman,            Investment Counsel, Investment Management,
                                                                                                        Investment Advisers Act Release No. 4543 (Sept.          Investment Supervisory, and Investment Advisory
                                               item also requires that an adviser explain the           30, 2016) (Commission opinion) (imposing liability       Services, H.R. Doc. No. 477, 76th Cong. 2d Sess.,
                                               material risks involved for each significant             on a principal of a registered investment adviser for    1, at 28)). Cf. Barbara Black, Brokers and Advisers-
                                               investment strategy or method of analysis it uses        recommending offshore private investment funds to        What’s in a Name?, 32 Fordham Journal of
                                               and particular type of security it recommends, with      clients without a reasonable independent basis for       Corporate and Financial Law XI (2005) (‘‘[W]here
                                               more detail if those risks are significant or unusual.   his advice).                                                                                         Continued




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                                               21208                    Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               adviser is required to provide advice                   full and fair disclosure to its clients of                   accounts.41 Accordingly, the duty of
                                               and services to a client over the course                all material facts relating to the advisory                  loyalty includes a duty not to treat some
                                               of the relationship at a frequency that is              relationship.39 In addition, an adviser                      clients favorably at the expense of other
                                               both in the best interest of the client and             must seek to avoid conflicts of interest                     clients. Thus, we believe that in
                                               consistent with the scope of advisory                   with its clients, and, at a minimum,                         allocating investment opportunities
                                               services agreed upon between the                        make full and fair disclosure of all                         among eligible clients, an adviser must
                                               investment adviser and the client. The                  material conflicts of interest that could                    treat all clients fairly.42 This does not
                                               duty to provide advice and monitoring                   affect the advisory relationship. The                        mean that an adviser must have a pro
                                               is particularly important for an adviser                disclosure should be sufficiently                            rata allocation policy, that the adviser’s
                                               that has an ongoing relationship with a                 specific so that a client is able to decide                  allocation policies cannot reflect the
                                               client (for example, a relationship where               whether to provide informed consent to                       differences in clients’ objectives or
                                               the adviser is compensated with a                       the conflict of interest.40 We discuss                       investment profiles, or that the adviser
                                               periodic asset-based fee or an adviser                  each of these aspects of the duty of                         cannot exercise judgment in allocating
                                               with discretionary authority over client                loyalty below.                                               investment opportunities among eligible
                                               assets). Conversely, the steps needed to                   Because an adviser must serve the                         clients. Rather, it means that an
                                               fulfill this duty may be relatively                     best interests of its clients, it has an                     adviser’s allocation policies must be fair
                                               circumscribed for the adviser and client                obligation not to subordinate its clients’                   and, if they present a conflict, the
                                               that have agreed to a relationship of                   interests to its own. For example, an                        adviser must fully and fairly disclose
                                               limited duration via contract (for                      adviser cannot favor its own interests                       the conflict such that a client can
                                               example, a financial planning                           over those of a client, whether by                           provide informed consent.
                                               relationship where the adviser is                       favoring its own accounts or by favoring                        An adviser must seek to avoid
                                               compensated with a fixed, one-time fee                  certain client accounts that pay higher                      conflicts of interest with its clients, and,
                                               commensurate with the discrete,                         fee rates to the adviser over other client                   at a minimum, make full and fair
                                               limited-duration nature of the advice                                                                                disclosure to its clients of all material
                                               provided).37 An adviser’s duty to                          39 Investment Advisers Act Release 3060, supra
                                                                                                                                                                    conflicts of interest that could affect the
                                               monitor extends to all personalized                     note 6 (‘‘as a fiduciary, an adviser has an ongoing
                                                                                                       obligation to inform its clients of any material             advisory relationship.43 Disclosure of a
                                               advice it provides the client, including
                                                                                                       information that could affect the advisory                   conflict alone is not always sufficient to
                                               an evaluation of whether a client’s                     relationship’’). See also General Instruction 3 to Part      satisfy the adviser’s duty of loyalty and
                                               account or program type (for example, a                 2 of Form ADV (‘‘Under federal and state law, you
                                                                                                                                                                    section 206 of the Advisers Act.44 Any
                                               wrap account) continues to be in the                    are a fiduciary and must make full disclosure to
                                               client’s best interest.                                 your clients of all material facts relating to the
                                                                                                                                                                       41 The Commission has brought numerous
                                                                                                       advisory relationship.’’).
                                               B. Duty of Loyalty                                         40 Arleen Hughes, supra note 13, at 4 and 8               enforcement actions against advisers that unfairly
                                                                                                       (stating, ‘‘[s]ince loyalty to his trust is the first duty   allocated trades to their own accounts and allocated
                                                  The duty of loyalty requires an                      which a fiduciary owes to his principal, it is the           less favorable or unprofitable trades to their clients’
                                               investment adviser to put its client’s                  general rule that a fiduciary must not put himself           accounts. See, e.g., SEC v. Strategic Capital
                                                                                                       into a position where his own interests may come             Management, LLC and Michael J. Breton, Litigation
                                               interests first. An investment adviser                                                                               Release No. 23867 (June 23, 2017) (partial
                                                                                                       in conflict with those of his principal. To prevent
                                               must not favor its own interests over                   any conflict and the possible subordination of this          settlement) (adviser placed trades through a master
                                               those of a client or unfairly favor one                 duty to act solely for the benefit of his principal,         brokerage account and then allocated profitable
                                               client over another.38 In seeking to meet               a fiduciary at common law is forbidden to deal as            trades to adviser’s account while placing
                                               its duty of loyalty, an adviser must make               an adverse party with his principal. An exception            unprofitable trades into the client accounts.).
                                                                                                                                                                       42 See also Barry Barbash and Jai Massari, The
                                                                                                       is made, however, where the principal gives his
                                                                                                       informed consent to such dealings,’’ and adding              Investment Advisers Act of 1940; Regulation by
                                               the investment adviser’s duties include                 that, ‘‘[r]egistrant has an affirmative obligation to        Accretion, 39 Rutgers Law Journal 627 (2008)
                                               management of the account, [the adviser] is under       disclose all material facts to her clients in a manner       (stating that under section 206 of the Advisers Act
                                               an obligation to monitor the performance of the                                                                      and traditional notions of fiduciary and agency law
                                                                                                       which is clear enough so that a client is fully
                                               account and to make appropriate changes in the                                                                       an adviser must not give preferential treatment to
                                                                                                       apprised of the facts and is in a position to give his
                                               portfolio.’’); Arthur B. Laby, Fiduciary Obligations                                                                 some clients or systematically exclude eligible
                                                                                                       informed consent.’’). See also Hughes v. Securities
                                               of Broker-Dealers and Investment Advisers, 55                                                                        clients from participating in specific opportunities
                                                                                                       and Exchange Commission, 174 F.2d 969 (1949)
                                               Villanova Law Review 701, at 728 (2010) (‘‘Laby                                                                      without providing the clients with appropriate
                                               Villanova Article’’) (‘‘If an adviser has agreed to     (affirming the SEC decision in Arleen Hughes).
                                                                                                          See also General Instruction 3 to Part 2 of Form          disclosure regarding the treatment).
                                               provide continuous supervisory services, the scope                                                                      43 See SEC v. Capital Gains, supra note 2
                                               of the adviser’s fiduciary duty entails a continuous,   ADV (stating that an adviser’s disclosure obligation
                                               ongoing duty to supervise the client’s account,         ‘‘requires that [the adviser] provide the client with        (advisers must fully disclose all material conflicts,
                                               regardless of whether any trading occurs. This          sufficiently specific facts so that the client is able       citing Congressional intent ‘‘to eliminate, or at least
                                               feature of the adviser’s duty, even in a non-           to understand the conflicts of interest [the adviser         expose, all conflicts of interest which might incline
                                               discretionary account, contrasts sharply with the       has] and the business practices in which [the                an investment adviser—consciously or
                                               duty of a broker administering a non-discretionary      adviser] engage[s], and can give informed consent            unconsciously—to render advice which was not
                                               account, where no duty to monitor is required.’’)       to such conflicts or practices or reject them’’);            disinterested’’). See also Investment Advisers Act
                                               (internal citations omitted).                           Investment Advisers Act Release 3060, supra note             Release 3060, supra note 9.
                                                  37 See Laby Villanova Article, supra note 36, at     10 (same); Restatement (Third) of Agency § 8.06                 44 See SEC v. Capital Gains, supra note 2 (in

                                               728 (2010) (stating that the scope of an adviser’s      (‘‘Conduct by an agent that would otherwise                  discussing the legislative history of the Advisers
                                               activity can be altered by contract and that an         constitute a breach of duty as stated in §§ 8.01, 8.02,      Act, citing ethical standards of one of the leading
                                               adviser’s fiduciary duty would be commensurate          8.03, 8.04, and 8.05 [referencing the fiduciary duty]        investment counsel associations, which provided
                                               with the scope of the relationship).                    does not constitute a breach of duty if the principal        that an investment counsel should remain ‘‘as free
                                                  38 See Investment Advisers Act Release 3060          consents to the conduct, provided that (a) in                as humanly possible from the subtle influence of
                                               (‘‘Under the Advisers Act, an adviser is a fiduciary    obtaining the principal’s consent, the agent (i) acts        prejudice, conscious or unconscious’’ and ‘‘avoid
                                               whose duty is to serve the best interests of its        in good faith, (ii) discloses all material facts that the    any affiliation, or any act which subjects his
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                                               clients, which includes an obligation not to            agent knows, has reason to know, or should know              position to challenge in this respect’’ and stating
                                               subrogate clients’ interests to its own,’’ citing       would reasonably affect the principal’s judgment             that one of the policy purposes of the Advisers Act
                                               Investment Advisers Act Release 2106 supra note         unless the principal has manifested that such facts          is ‘‘to mitigate and, so far as is presently practicable
                                               9). See also Staff of the U.S. Securities and           are already known by the principal or that the               to eliminate the abuses’’ that formed the basis of the
                                               Exchange Commission, Study on Investment                principal does not wish to know them, and (iii)              Advisers Act). Separate and apart from potential
                                               Advisers and Broker-Dealers As Required by              otherwise deals fairly with the principal; and (b) the       liability under the antifraud provisions of the
                                               Section 913 of the Dodd-Frank Wall Street Reform        principal’s consent concerns either a specific act or        Advisers Act enforceable by the Commission for
                                               and Consumer Protection Act (Jan. 2011), available      transaction, or acts or transactions of a specified          breaches of fiduciary duty in the absence of full and
                                               at https://www.sec.gov/news/studies/2011/               type that could reasonably be expected to occur in           fair disclosure, investment advisers may also wish
                                               913studyfinal.pdf (‘‘913 Study’’).                      the ordinary course of the agency relationship’’).           to consider their potential liability to clients under



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                                                                         Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                          21209

                                               disclosure must be clear and detailed                     example, in some cases, conflicts may                      before or at the time the adviser enters
                                               enough for a client to make a reasonably                  be of a nature and extent that it would                    into an investment advisory agreement
                                               informed decision to consent to such                      be difficult to provide disclosure that                    a relationship summary which would
                                               conflicts and practices or reject them.45                 adequately conveys the material facts or                   include a summary of certain conflicts
                                               An adviser must provide the client with                   the nature, magnitude and potential                        of interest.51
                                               sufficiently specific facts so that the                   effect of the conflict necessary to obtain
                                                                                                                                                                    C. Request for Comment
                                               client is able to understand the adviser’s                informed consent and satisfy an
                                               conflicts of interest and business                        adviser’s fiduciary duty. In other cases,                     The Commission requests comment
                                               practices well enough to make an                          disclosure may not be specific enough                      on our proposed interpretation
                                               informed decision.46 For example, an                      for clients to understand whether and                      regarding certain aspects of the
                                               adviser disclosing that it ‘‘may’’ have a                 how the conflict will affect the advice                    fiduciary duty under section 206 of the
                                               conflict is not adequate disclosure when                  they receive. With some complex or                         Advisers Act.
                                               the conflict actually exists.47 A client’s                extensive conflicts, it may be difficult to                   • Does the Commission’s proposed
                                               informed consent can be either explicit                   provide disclosure that is sufficiently                    interpretation offer sufficient guidance
                                               or, depending on the facts and                            specific, but also understandable, to the                  with respect to the fiduciary duty under
                                               circumstances, implicit. We believe,                      adviser’s clients. In all of these cases                   section 206 of the Advisers Act?
                                               however, that it would not be consistent                  where full and fair disclosure and                            • Are there any significant issues
                                               with an adviser’s fiduciary duty to infer                 informed consent is insufficient, we                       related to an adviser’s fiduciary duty
                                               or accept client consent to a conflict                    expect an adviser to eliminate the                         that the proposed interpretation has not
                                               where either (i) the facts and                            conflict or adequately mitigate the                        addressed?
                                               circumstances indicate that the client                    conflict so that it can be more readily                       • Would it be beneficial for investors,
                                               did not understand the nature and                         disclosed.                                                 advisers or broker-dealers for the
                                               import of the conflict, or (ii) the material                 Full and fair disclosure of all material                Commission to codify any portion of our
                                               facts concerning the conflict could not                   facts that could affect an advisory                        proposed interpretation of the fiduciary
                                               be fully and fairly disclosed.48 For                      relationship, including all material                       duty under section 206 of the Advisers
                                                                                                         conflicts of interest between the adviser                  Act?
                                               state common law, which may vary from state to            and the client, can help clients and                       III. Economic Considerations
                                               state.                                                    prospective clients in evaluating and
                                                  45 See Arlene Hughes, supra at 13 (in finding that                                                                   The Commission is sensitive to the
                                                                                                         selecting investment advisers.
                                               registrant had not obtained informed consent, citing                                                                 potential economic effects of the
                                               to testimony indicating that ‘‘some clients had no        Accordingly, we require advisers to
                                                                                                                                                                    proposed interpretation provided
                                               understanding at all of the nature and significance’’     deliver to their clients a ‘‘brochure,’’
                                                                                                                                                                    above.52 In this section we discuss how
                                               of the disclosure).                                       under Part 2A of Form ADV, which sets
                                                  46 See General Instruction 3 to Part 2 of Form                                                                    the proposed Commission interpretation
                                                                                                         out minimum disclosure requirements,
                                               ADV. Cf. Arleen Hughes, supra note 13 (Hughes                                                                        may benefit investors and reduce agency
                                                                                                         including disclosure of certain
                                               acted simultaneously in the dual capacity of                                                                         problems by reaffirming and clarifying
                                               investment adviser and of broker and dealer and           conflicts.49 Investment advisers are
                                                                                                                                                                    the fiduciary duty an investment adviser
                                               conceded having a fiduciary duty. In describing the       required to deliver the brochure to a                      owes to its clients. We also discuss
                                               fiduciary duty and her potential liability under the      prospective client at or before entering
                                               antifraud provisions of the Securities Act and the                                                                   some potential broader economic effects
                                               Exchange Act, the Commission stated she had ‘‘an          into a contract so that the prospective                    on the market for investment advice.
                                               affirmative obligation to disclose all material facts     client can use the information contained
                                               to her clients in a manner which is clear enough          in the brochure to decide whether or not                   A. Background
                                               so that a client is fully apprised of the facts and is    to enter into the advisory relationship.50
                                               in a position to give his informed consent.’’).                                                                         The Commission’s interpretation of
                                                  47 We have brought enforcement actions in such         In a concurrent release, we are                            the standard of conduct for investment
                                               cases. See, e.g., In the Matter of The Robare Group,      proposing to require all investment                        advisers under the Advisers Act set
                                               Ltd., et al., Investment Advisers Act Release No.         advisers to deliver to retail investors                    forth in this Release would affect
                                               4566 (Nov. 7, 2016) (Commission Opinion) (appeal
                                               docketed) (finding, among other things, that                                                                         investment advisers and their associated
                                                                                                         the product is in the best interests of the                persons as well as the clients of those
                                               adviser’s disclosure was inadequate because it
                                                                                                         customer.’’).
                                               stated that the adviser may receive compensation
                                                                                                            49 Investment Advisers Act Release 3060, supra
                                                                                                                                                                    investment advisers, and the market for
                                               from a broker as a result of the facilitation of                                                                     financial advice more broadly.53 There
                                               transactions on client’s behalf through such broker-      note 10; General Instruction 3 to Part 2 of Form
                                               dealer and that these arrangements may create a           ADV (‘‘Under federal and state law, you are a              are 12,659 investment advisers
                                               conflict of interest when adviser was, in fact,           fiduciary and must make full disclosure to your            registered with the Commission with
                                               receiving payments from the broker and had such           clients of all material facts relating to the advisory     over $72 trillion in assets under
                                               a conflict of interest).                                  relationship. As a fiduciary, you also must seek to
                                                  48 See Arleen Hughes, supra note 13 (‘‘Registrant      avoid conflicts of interest with your clients, and, at     management as well as 17,635
                                               cannot satisfy this duty by executing an agreement        a minimum, make full disclosure of all material            investment advisers registered with
                                               with her clients which the record shows some              conflicts of interest between you and your clients         states and 3,587 investment advisers
                                               clients do not understand and which, in any event,        that could affect the advisory relationship. This          who submit Form ADV as exempt
                                               does not contain the essential facts which she must       obligation requires that you provide the client with
                                                                                                         sufficiently specific facts so that the client is able
                                                                                                                                                                    reporting advisers.54 As of December
                                               communicate.’’) Some commenters on Commission
                                               requests for comment agreed that full and fair            to understand the conflicts of interest you have and
                                                                                                         the business practices in which you engage, and can          51 Form  CRS Proposal, supra note 6.
                                               disclosure and informed consent are important
                                               components of an adviser’s fiduciary duty. See, e.g.,     give informed consent to such conflicts or practices         52 The  Commission, where possible, has sought to
                                               Financial Planning Coalition 2013 Letter, supra           or reject them.’’).                                        quantify the economic impacts expected to result
                                               note 21 (‘‘[C]onsent is only informed if the customer        50 Investment Advisers Act rule 204–3.                  from the proposed interpretations. However, as
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                                               has the ability fully to understand and to evaluate       Investment Advisers Act Release 3060, supra note           discussed more specifically below, the Commission
                                               the information. Many complex products . . . are          10 (adopting amendments to Form ADV and stating            is unable to quantify certain of the economic effects
                                               appropriate only for sophisticated and experienced        that ‘‘A client may use this disclosure to select his      because it lacks information necessary to provide
                                               investors. It is not sufficient for a fiduciary to make   or her own adviser and evaluate the adviser’s              reasonable estimates.
                                                                                                                                                                       53 See Form CRS Proposal, supra note 6, at
                                               disclosure of potential conflicts of interest with        business practices and conflicts on an ongoing
                                               respect to such products. The fiduciary must make         basis. As a result, the disclosure clients and             Section IV.A (discussing the market for financial
                                               a reasonable judgment that the customer is fully          prospective clients receive is critical to their ability   advice generally).
                                               able to understand and to evaluate the product and        to make an informed decision about whether to                 54 See Form CRS Proposal, supra note 6, at

                                               the potential conflicts of interest that it presents—     engage an adviser and, having engaged the adviser,         Section IV.A.1.b (discussing SEC-registered
                                               and then the fiduciary must make a judgment that          to manage that relationship.’’).                                                                       Continued




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                                               21210                    Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               2017, there are approximately 36                         investors and investment advisers are                    advisers of their duty of loyalty it may
                                               million client accounts advised by SEC-                  likely to have different preferences and                 potentially benefit the clients of those
                                               registered investment advisers.                          goals, the investment adviser                            investment advisers. Specifically, to the
                                                 These investment advisers currently                    relationship is subject to agency                        extent this leads to a higher quality of
                                               incur ongoing costs related to their                     problems: That is, investment advisers                   disclosures about conflicts for clients of
                                               compliance with their legal and                          may take actions that increase their                     some investment advisers, the nature
                                               regulatory obligations, including costs                  well-being at the expense of investors,                  and extent of such conflict disclosures
                                               related to their understanding of the                    thereby imposing agency costs on                         would help investors better assess the
                                               standard of conduct. We believe, based                   investors.56 A fiduciary duty, such as                   quality of the investment advice they
                                               on the Commission’s experience, that                     the duty investment advisers owe their                   receive, therefore providing an
                                               the interpretations we are setting forth                 clients, can mitigate these agency                       important benefit to investors.
                                               in this Release are generally consistent                 problems and reduce agency costs by                        Further, to the extent that the
                                               with investment advisers’ current                        deterring agents from taking actions that                interpretation causes some investment
                                               understanding of the practices necessary                 expose them to legal liability.57                        advisers to properly identify
                                               to comply with their fiduciary duty                         To the extent the Commission’s                        circumstances in which disclosure
                                               under the Advisers Act; however, we                      interpretation of investment adviser                     alone cannot cure a conflict of interest,
                                               recognize that there may be certain                      fiduciary duty would cause a change in                   the proposed interpretation may lead
                                               current investment advisers who have                     behavior of those investment advisers, if                those investment advisers to take
                                               interpreted their fiduciary duty to                      any, who currently interpret their                       additional steps to mitigate or eliminate
                                               require something less, or something                     fiduciary duty to require something                      the conflict. The interpretation may also
                                               more, than the Commission’s                              different from the Commission’s                          cause some investment advisers to
                                               interpretation. We lack data to identify                 interpretation, we expect a potential                    conclude in some circumstances that
                                               which investment advisers currently                      reduction in agency problems and,                        even if disclosure would be enough to
                                               understand the practices necessary to                    consequently, a reduction of agency                      meet their fiduciary duty, such
                                               comply with their fiduciary duty to be                   costs to the client. The extent to which                 disclosure would have to be so
                                               different from the standard of conduct                   agency costs would be reduced is                         expansive or complex that they instead
                                               in the Commission’s interpretation.                      difficult to assess given that we are                    voluntarily mitigate or eliminate the
                                               Based on our experience, however, we                     unable to ascertain whether any                          conflicts of interest. Thus, to the extent
                                               generally believe that it is not a                       investment advisers currently interpret                  the Commission’s interpretation would
                                               significant portion of the market.                       their fiduciary duty to be something                     cause investment advisers to better
                                                                                                        different from the Commission’s                          understand their obligations as part of
                                               B. Economic Impacts
                                                                                                        interpretation, and consequently we are                  their fiduciary duty and therefore to
                                                 Based on our experience as the long-                   not able to estimate the agency costs                    make changes to their business practices
                                               standing regulator of the investment                     these advisers, if any, currently impose                 in ways that reduce the likelihood of
                                               adviser industry, the Commission’s                       on investors. However, we believe that                   conflicted advice or the magnitude of
                                               interpretation of the fiduciary duty                     there may be potential benefits for                      the conflicts, it may ameliorate the
                                               under section 206 of the Advisers Act                    clients of those investment advisers, if                 agency conflict between investment
                                               described in this Release generally                      any, to the extent the Commission’s                      advisers and their clients and, in turn,
                                               reaffirms the current practices of                       interpretation is effective at                           may improve the quality of advice that
                                               investment advisers. Therefore, we                       strengthening investment advisers’                       the clients receive. This less-conflicted
                                               expect there to be no significant                        understanding of their obligations to                    advice may therefore produce higher
                                               economic impacts from the                                their clients. For example, to the extent                overall returns for clients and increase
                                               interpretation. We do acknowledge,                       that the Commission’s interpretation                     the efficiency of portfolio allocation.
                                               however, to the extent certain                           enhances the understanding of any                        However, as discussed above, we would
                                               investment advisers currently                            investment advisers of their duty of                     generally expect these effects to be
                                               understand the practices necessary to                    care, it may potentially raise the quality               minimal. Finally, this interpretation
                                               comply with their fiduciary duty to be                   of investment advice given and that                      would also benefit clients of investment
                                               different from those discussed in this                   advice’s fit with a client’s individual                  advisers to the extent it assists the
                                               interpretation, there could be some                      profile and preferences or lead to                       Commission in its oversight of
                                               potential economic effects, which we                     increased compliance with the duty to                    investment advisers’ compliance with
                                               discuss below.                                           provide advice and monitoring over the                   their regulatory obligations.
                                               Clients of Investment Advisers                           course of the relationship.
                                                                                                           Additionally, to the extent the                       Investment Advisers and the Market for
                                                 The typical relationship between an                    Commission’s interpretation enhances                     Investment Advice
                                               investment adviser and a client is a                     the understanding of any investment                         In general, we expect the
                                               principal-agent relationship, where the                                                                           Commission’s interpretation of an
                                               principal (the client) hires an agent (the               and Organizational Architecture (2004), at 265 (‘‘An     investment adviser’s fiduciary duty
                                               investment adviser) to perform some                      agency relationship consists of an agreement under       would affirm investment advisers’
                                               service (investment advisory services)                   which one party, the principal, engages another
                                                                                                        party, the agent, to perform some service on the
                                                                                                                                                                 understanding of the obligations they
                                               on the client’s behalf.55 Because                        principal’s behalf.’’). See also Michael C. Jensen and   owe their clients, reduce uncertainty for
                                                                                                        William H. Meckling, Theory of the Firm:                 advisers, and facilitate their compliance.
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                                               investment advisers). Note, however, that because        Managerial Behavior, Agency Costs and Ownership          Furthermore, by addressing in one
                                               we are interpreting advisers’ fiduciary duties under     Structure, Journal of Financial Economics, Vol. 3,
                                               section 206 of the Advisers Act, this interpretation     305–360 (1976).                                          release certain aspects of the fiduciary
                                               would be applicable to both SEC- and state-                56 See, e.g., Jensen and Meckling, supra note 55.      duty that an investment adviser owes to
                                               registered investment advisers, as well as other         See also the discussion on agency problems in the        its clients, the Commission’s
                                               investment advisers that are exempt from                 market for investment advice in Section IV.B. of the     interpretation could reduce the costs
                                               registration or subject to a prohibition on              Regulation Best Interest Proposal, supra note 5.
                                               registration under the Advisers Act.                       57 See, e.g., Frank H. Easterbrook and Daniel R.
                                                                                                                                                                 associated with comprehensively
                                                  55 See, e.g., James A. Brickley, Clifford W. Smith,   Fischel, Contract and Fiduciary Duty, Journal of         assessing their compliance obligations.
                                               Jr., Jerold L. Zimmerman, Managerial Economics           Law & Economics, Vol. 36, 425–46 (1993).                 We acknowledge that, as with other


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                                                                       Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                          21211

                                               circumstances in which the Commission                   interpretation, that their obligations to                  reassessment.60 As a result, the number
                                               speaks to the legal obligations of                      clients are stricter than how they                         of investment advisers willing to advise
                                               regulated entities, affected firms,                     currently interpret their fiduciary duty,                  a client to make these investments may
                                               including those whose practices are                     it could potentially affect competition.                   be reduced. A decline in the supply of
                                               consistent with the Commission’s                        Specifically, the Commission’s                             investment adviser advice on these
                                               interpretation, incur costs to evaluate                 interpretation of certain aspects of the                   investments could potentially reduce
                                               the Commission’s interpretation and                     standard of conduct for investment                         the efficiency of portfolio allocation of
                                               assess its applicability to them.                       advisers may result in additional                          those investors who might otherwise
                                               Moreover, as discussed above, there                     compliance costs to meet their fiduciary                   benefit from investment adviser advice
                                               may be certain investment advisers who                  obligation under the Commission’s                          on these investments.
                                               currently understand the practices                      interpretation. This increase in                           IV. Request for Comment Regarding
                                               necessary to comply with their fiduciary                compliance costs, in turn, may                             Areas of Enhanced Investment Adviser
                                               duty to be different from the standard of               discourage competition for client                          Regulation
                                               conduct in the Commission’s                             segments that generate lower revenues,
                                               interpretation. Those investment                        such as clients with relatively low levels                    In 2011, the Commission issued the
                                               advisers if any, would experience an                                                                               staff’s 913 Study, pursuant to section
                                                                                                       of financial assets, which could reduce
                                               increase in their compliance costs as                                                                              913 of the Dodd-Frank Wall Street
                                                                                                       the supply of investment adviser
                                               they change their systems, processes                                                                               Reform and Consumer Protection Act of
                                                                                                       services and raise fees for these client
                                               and behavior, and train their supervised                                                                           2010, in which the staff recognized
                                                                                                       segments. However, the investment
                                               persons, to align with the Commission’s                                                                            several areas for potential
                                                                                                       advisers who already are complying                         harmonization of broker-dealer and
                                               interpretation.                                         with the understanding of their
                                                  Moreover, to the extent any                                                                                     investment adviser regulation.61 We
                                                                                                       fiduciary duty reflected in the                            have identified a few discrete areas
                                               investment advisers that understood
                                                                                                       Commission’s interpretation, and may                       where the current broker-dealer
                                               their fiduciary obligation to be different
                                                                                                       therefore currently have a comparative                     framework provides investor protections
                                               from the Commission’s interpretation
                                               change their behavior to align with this                cost disadvantage, could potentially                       that may not have counterparts in the
                                               interpretation, there could potentially                 find it more profitable to compete for                     investment adviser context, and request
                                               also be some economic effects on the                    the customers of those investment                          comment on those areas. The
                                               market for investment advice. For                       advisers who would face higher                             Commission intends to consider these
                                               example, any improved compliance may                    compliance costs as a result of the                        comments in connection with any
                                               not only reduce agency costs in current                 proposed interpretation, which would                       future proposed rules or other proposed
                                               investment advisory relationships and                   mitigate negative effects on the supply                    regulatory actions with respect to these
                                               increase the value of those relationships               of investment adviser services.                            matters.
                                               to current clients, it may also increase                Furthermore, as noted above, there has
                                                                                                       been a recent growth trend in the supply                   A. Federal Licensing and Continuing
                                               trust in the market for investment                                                                                 Education
                                               advice among all investors, which may                   of investment advisory services, which
                                               result in more investors seeking advice                 is likely to mitigate any potential                           Associated persons of broker-dealers
                                               from investment advisers. This may, in                  negative supply effects from the                           that effect securities transactions are
                                               turn, benefit investors by improving the                Commission’s interpretation.59                             required to be registered with the
                                               efficiency of their portfolio allocation.                  Finally, to the extent the proposed                     Financial Industry Regulatory Authority
                                               To the extent it is costly or difficult, at             interpretation would cause some                            (‘‘FINRA’’),62 and must meet
                                               least in the short term, to expand the                  investment advisers to reassess their                         60 For example, such products could include
                                               supply of investment advisory services                  compliance with their disclosure                           highly complex, high cost products with risk and
                                               to meet an increase in demand, any                      obligations, it could lead to a reduction                  return characteristics that are hard to fully
                                               such new demand for investment                          in the expected profitability of certain                   understand for retail investors or mutual funds or
                                               adviser services could potentially put                                                                             fund share classes that may pay higher
                                                                                                       products associated with particularly                      compensation to investment advisers that are dual
                                               some upward price pressure on fees. At                  conflicted advice for which compliance                     registrants, or that the investment adviser and its
                                               the same time, however, if any such                     costs would increase following the                         representatives may receive through payments to an
                                               new demand increases the overall                                                                                   affiliated broker-dealer or third party broker-dealer
                                               profitability of investment advisory                                                                               with which representatives of the investment
                                                                                                         59 Beyond having an effect on competition in the
                                                                                                                                                                  adviser are associated.
                                               services, then we expect it would                       market for investment adviser services, it is possible        61 The staff made two primary recommendations
                                               encourage entry by new investment                       that the Commission’s interpretation could affect          in the 913 Study. The first recommendation was
                                               advisers—or hiring of new                               competition between investment advisers and other          that we engage in rulemaking to implement a
                                                                                                       providers of financial advice, such as broker-             uniform fiduciary standard of conduct for broker-
                                               representatives, by current investment                  dealers, banks, and insurance companies. This may          dealers and investment advisers when providing
                                               advisers—such that competition would                    be the case if certain investors base their choice         personalized investment advice about securities to
                                               increase over time. Indeed, we recognize                between an investment adviser and another                  retail customers. The second recommendation was
                                               that the recent growth in the investment                provider of financial advice, at least in part, on their   that we consider harmonizing certain regulatory
                                                                                                       perception of the standards of conduct each owes           requirements of broker-dealers and investment
                                               adviser segment of the market, both in                  to their customers. To the extent that the                 advisers where such harmonization appears likely
                                               terms of firms and number of                            Commission’s interpretation increases investors’           to enhance meaningful investor protection, taking
                                               representatives,58 may suggest that the                 trust in investment advisers’ overall compliance           into account the best elements of each regime. In
                                               costs of expanding the supply of                        with their standard of conduct, certain of these           the 913 Study, the areas the staff suggested the
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                                                                                                       investors may become more willing, to hire an              Commission consider for harmonization included,
                                               investment advisory services are                        investment adviser rather than one of their non-           among others, licensing and continuing education
                                               currently relatively low.                               investment adviser competitors. As a result,               requirements for persons associated with firms. The
                                                  Additionally, we acknowledge that to                 investment advisers as a group may increase their          staff stated that the areas identified were not
                                               the extent certain investment advisers                  competitive situation compared to that of other            intended to be a comprehensive or exclusive listing
                                                                                                       types of providers of financial advice. On the other       of potential areas of harmonization. See 913 Study
                                               recognize, due to the Commission’s                      hand, if the Commission’s interpretation raises            supra note 38.
                                                                                                       costs for investment advisers, they could become              62 Generally, all registered broker-dealers that
                                                 58 See Form CRS Proposal, supra note 6, at            less competitive with other financial services             deal with the public must become members of
                                               Section IV.A.1.d.                                       providers.                                                                                             Continued




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                                               21212                   Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               qualification requirements, which                       continuing education and licensing                    regulatory requirements or the firm’s
                                               include passing a securities                            requirements?                                         compliance program.
                                               qualification exam and fulfilling                          • Which advisory personnel should                     • What would the expected benefits
                                               continuing education requirements.63                    be included in these requirements? For                of continuing education and licensing
                                               The federal securities laws do not                      example, should persons whose                         be? Would it be an effective way to
                                               require investment adviser                              functions are solely clerical or                      increase the quality of advice provided
                                               representatives to become licensed or to                ministerial be excluded, similar to the               to investors? Would it provide better
                                               meet qualification requirements, but                    exclusion in the FINRA rules regarding                visibility into the qualifications and
                                               most states impose registration,                        broker-dealer registered representatives?             education of personnel of SEC-
                                               licensing, or qualification requirements                Should a subset of registered investment              registered investment advisers?
                                               on investment adviser representatives                   adviser personnel (such as supervised                    • What would the expected costs of
                                               who have a place of business in the                     persons, individuals for whom an                      continuing education and licensing be?
                                               state, regardless of whether the                        adviser must deliver a Form ADV                       How expensive would it be to obtain the
                                               investment adviser is registered with the               brochure supplement, ‘‘investment                     continuing education or procure the
                                               Commission or the state.64 These                        adviser representatives’’ as defined in               license? Do those costs scale, or would
                                               qualification requirements typically                    the Advisers Act, or some other group)                they fall more heavily on smaller
                                               mandate that investment adviser                         be required to comply with such                       advisers? Would these requirements
                                               representatives register and pass certain               requirements?                                         result in a barrier to entry that could
                                               securities exams or hold certain                           • How should the continuing                        decrease the number of advisers and
                                               designations (such as Chartered                         education requirement be structured?                  advisory personnel (and thus potentially
                                               Financial Analyst credential).65 The                    How frequent should the certification                 increase the cost of advice)?
                                               staff recommended in the 913 Study                      be? How many hours of education                          • What would the effects be of
                                               that the Commission consider requiring                  should be required? Who should                        continuing education and licensing for
                                               investment adviser representatives to be                determine what qualifies as an                        investment adviser personnel in the
                                                                                                       authorized continuing education class?                market for investment advice (i.e., as
                                               subject to federal continuing education
                                                                                                          • How could unnecessary duplication                compared to broker-dealers)?
                                               and licensing requirements.66
                                                                                                       of any existing continuing education                     • What other types of qualification
                                                  We request comment on whether                                                                              requirements should be considered,
                                                                                                       requirement be avoided?
                                               there should be federal licensing and                      • Should these individuals be                      such as minimum experience
                                               continuing education requirements for                   required to register with the                         requirements or standards regarding an
                                               personnel of SEC-registered investment                  Commission? What information should                   individual’s fitness for serving as an
                                               advisers. Such requirements could be                    these individuals be required to disclose             investment adviser representative?
                                               designed to address minimum and                         on any registration form? Should the
                                               ongoing competency requirements for                                                                           B. Provision of Account Statements
                                                                                                       registration requirements mirror the
                                               the personnel of SEC-registered                         requirements of existing Form U4 or                      Fees and costs are important to retail
                                               advisers.67                                             require additional information? Should                investors,68 but many retail investors
                                                  • Should investment adviser                          such registration requirements apply to               are uncertain about the fees they will
                                               representatives be subject to federal                   individuals who provide advice on                     pay.69 The relationship summary that
                                                                                                       behalf of SEC-registered investment                   we are proposing in a concurrent release
                                               FINRA, a registered national securities association,
                                               and may choose to become exchange members. See
                                                                                                       advisers but fall outside the definition              would discuss certain differences
                                               Exchange Act section 15(b)(8) and Exchange Act          of ‘‘investment adviser representative’’              between advisory and brokerage fees to
                                               rule 15b9–1. FINRA is the sole national securities      in rule 203A–3 (because, for example,                 provide investors more clarity
                                               association registered with the SEC under section       they have five or fewer clients who are               concerning the key categories of fees
                                               15A of the Exchange Act.
                                                  63 See NASD Rule 1021 (‘‘Registration
                                                                                                       natural persons, they provide                         and expenses they should expect to pay,
                                               Requirements’’); NASD Rule 1031 (‘‘Registration         impersonal investment advice, or ten                  but would not require more complete,
                                               Requirements’’); NASD Rule 1041 (‘‘Registration         percent or less of their clients are                  specific or personalized disclosures or
                                               Requirements for Assistant Representatives’’);          individuals other than qualified                      disclosures about the amount of fees
                                               FINRA Rule 1250 (‘‘Continuing Education                 clients)? Should these individuals be                 and expenses.70 We believe that
                                               Requirements’’).
                                                  64 See 913 Study, supra note 38, at 86. See also
                                                                                                       required to pass examinations, such as                delivery of periodic account statements,
                                               Advisers Act rule 203A–3(a) (definition of              the Series 65 exam required by most                   if they specified the dollar amounts of
                                               ‘‘investment adviser representative’’).                 states, or to hold certain designations, as
                                                  65 See 913 Study, supra note 38, at 86–87, 138.
                                                                                                       part of any registration requirements?                   68 See Staff of the Securities and Exchange

                                               The North American Securities Administrators            Should other steps be required as well,               Commission, Study Regarding Financial Literacy
                                               Association (‘‘NASAA’’) is considering a potential                                                            Among Investors as required by Section 917 of the
                                               model rule that would require that investment           such as a background check or                         Dodd-Frank Wall Street Reform and Consumer
                                               adviser representatives meet a continuing education     fingerprinting? Would a competency or                 Protection Act (Aug. 2012), at iv, available at
                                               requirement in order to maintain their state            other examination be a meritorious basis              https://www.sec.gov/news/studies/2012/917-
                                               registrations. An internal survey of NASAA’s            upon which to determine competency                    financial-literacy-study-part1.pdf (‘‘With respect to
                                               membership identified strong support for such a                                                               financial intermediaries, investors consider
                                               requirement along with significant regulatory need.     and proficiency? Would a competency                   information about fees, disciplinary history,
                                               NASAA is now conducting a nationwide survey of          or other examination requirement                      investment strategy, conflicts of interest to be
                                               relevant stakeholders to get their input and views      provide a false sense of security to                  absolutely essential.’’).
                                               on such a requirement. For more information, see        advisory clients of competency or                        69 See Angela A. Hung, et al., RAND Institute for
                                               http://www.nasaa.org/industry-resources/
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                                                                                                                                                             Civil Justice, Investor and Industry Perspectives on
                                               investment-advisers/nasaa-survey-regarding-             proficiency?                                          Investment Advisers and Broker-Dealers (2008), at
                                               continuing-education-for-investment-adviser-               • If continuing education                          xix, available at https://www.sec.gov/news/press/
                                               representatives/.                                       requirements are a part of any licensing              2008/2008-1_randiabdreport.pdf (‘‘In fact, focus-
                                                  66 Several commenters, cited in the 913 Study,
                                                                                                       requirements, should specific topics or               group participants with investments acknowledged
                                               suggested that this was a gap that should be            types of training be required? For                    uncertainty about the fees they pay for their
                                               addressed. See 913 Study, supra note 38, at 138                                                               investments, and survey responses also indicate
                                               (citing letters from AALU, Bank of America, FSI,        example, these individuals could be                   confusion about the fees.’’).
                                               Hartford, LPL, UBS, and Woodbury).                      required to complete a certain amount                    70 See Form CRS Proposal, supra note 6, at
                                                  67 See 913 Study, supra note 38, at 138.             of training dedicated to ethics,                      Section II.B.4.



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                                                                        Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules                                                       21213

                                               fees and expenses, would allow clients                  relying on the safe harbor in Investment              balance sheets available to customers.77
                                               to readily see and understand the fees                  Company Act rule 3a–4.                                Broker-dealers are required to be
                                               and expenses they pay for an adviser’s                     • To what extent do retail clients of              members of the Securities Investor
                                               services. Clients would receive account                 registered investment advisers already                Protection Corporation (‘‘SIPC’’), which
                                               statements close in time to the                         receive account statements? To what                   is responsible for overseeing the
                                               assessment of periodic account fees,                    extent do those account statements                    liquidation of member broker-dealers
                                               which could be an effective way for                     specify the dollar amounts charged for                that close due to bankruptcy or financial
                                               clients to understand and evaluate the                  advisory fees and other fees (e.g.,                   trouble and customer assets are missing.
                                               cost of the services they are receiving                 brokerage fees) and expenses? Would                   When a brokerage firm is closed and
                                               from their advisers.                                    retail clients benefit from a requirement             customer assets are missing, SIPC,
                                                  Broker-dealers are required to provide               that they receive account statements                  within certain limits, works to return
                                               confirmations of transactions with                      from registered investment advisers? If               customers’ cash, stock, and other
                                               detailed information concerning                         clients are uncertain about what fees                 securities held by the firm. If a firm
                                               commissions and certain other                           and expenses they will pay, would they                closes, SIPC protects the securities and
                                               remuneration, as well as account                        benefit from a requirement that, before               cash in a customer’s brokerage account
                                               statements containing a description of                  receiving advice from a registered                    up to $500,000, including up to
                                               any securities positions, money                         investment adviser, they enter into a                 $250,000 protection for cash in the
                                               balances or account activity during the                 written (including electronic) agreement              account.78 Finally, FINRA rules require
                                               period since the last statement was sent                specifying the fees and expenses to be                that broker-dealers obtain fidelity bond
                                               to the customer.71 Broker-dealers                       paid?                                                 coverage from an insurance company.79
                                               generally must provide account
                                                                                                          • What information, in addition to                    Under Advisers Act rule 206(4)–2,
                                               statements no less than once every
                                                                                                       fees and expenses, would be most useful               investment advisers with custody must
                                               calendar quarter. Brokerage customers
                                                                                                       for retail clients to receive in account              generally maintain client assets with a
                                               must receive periodic account
                                                                                                       statements? Should any requirement to                 ‘‘qualified custodian,’’ which includes
                                               statements even when not receiving
                                                                                                       provide account statements have                       banks and registered broker-dealers, and
                                               immediate trade confirmations.72
                                                                                                       prescriptive requirements as to                       must comply with certain other
                                               Although we understand that many
                                                                                                       presentation, content, and delivery?                  requirements.80 In 2009 the Commission
                                               advisers do provide clients with account
                                                                                                       Should they resemble the account                      adopted amendments to the custody
                                               statements, advisers are not directly
                                                                                                       statements required to be provided by                 requirements for investment advisers
                                               required to provide account statements
                                                                                                       broker-dealers, under NASD Rule 2340                  that, among other enhancements,
                                               under the federal securities laws.
                                                                                                       with the addition of fee disclosure?                  required all registered investment
                                               Notably, however, the custody rule
                                               requires advisers with custody of a                        • How often should clients receive                 advisers with custody of client assets to
                                               client’s assets to have a reasonable basis              account statements?                                   undergo an annual surprise examination
                                               for believing that the qualified                           • How costly would it be to provide                by an independent public accountant.
                                               custodian sends an account statement at                 account statements? Does that cost                    SEC-registered investment advisers,
                                               least quarterly.73 In addition, in any                  depend on how those account                           however, are not subject to any net
                                               separately managed account program                      statements could be delivered (e.g., via              capital requirements comparable to
                                               relying on rule 3a–4 under the                          U.S. mail, electronic delivery, notice                those applicable to broker-dealers,
                                               Investment Company Act of 1940, the                     and access)? Are there any other factors              although they must disclose any
                                               program sponsor or another person                       that would impact cost?                               material financial condition that impairs
                                               designated by the sponsor must provide                                                                        their ability to provide services to their
                                                                                                       C. Financial Responsibility                           clients.81 Many investment advisers
                                               clients statements at least quarterly
                                               containing specified information.74                        Broker-dealers are subject to a                    have relatively small amounts of capital,
                                                  We request comment on whether we                     comprehensive financial responsibility                particularly compared to the amount of
                                               should propose rules to require                         program. Pursuant to Exchange Act rule                assets that they have under
                                               registered investment advisers to                       15c3–1 (the net capital rule), broker-                management.82 When we discover a
                                               provide account statements, either                      dealers are required to maintain                      serious fraud by an adviser, often the
                                               directly or via the client’s custodian,                 minimum levels of net capital designed                assets of the adviser are insufficient to
                                               regardless of whether the adviser is                    to ensure that a broker-dealer under                  compensate clients for their loss. In
                                               deemed to have custody of client assets                 financial stress has sufficient liquid                addition, investment advisers are not
                                               under Advisers Act Rule 206(4)–2 or the                 assets to satisfy all non-subordinated                required to obtain fidelity bonds, unlike
                                               adviser is a sponsor (or a designee of a                liabilities without the need for a formal
                                               sponsor) of a managed account program                   liquidation proceeding.75 Exchange Act                     77 See   Exchange Act rules 17a–3, 17a–4, and 17a–
                                                                                                       rule 15c3–3 (the customer protection                  5.
                                                 71 See, e.g., NASD Rule 2340; FINRA Rule 2232;                                                                 78 See Securities Investor Protection Act of 1970,
                                                                                                       rule) requires broker-dealers to segregate            Public Law 91–598, 84 Stat. 1636 (Dec. 30, 1970),
                                               MSRB Rule G–15. See also Exchange Act rule
                                               15c3–2 (account statements); Exchange Act rule          customer assets and maintain them in a                15 U.S.C. 78aaa through 15 U.S.C. 78lll.
                                               10b–10 (confirmation of transactions).                  manner designed to ensure that should                    79 See FINRA Rule 4360, (‘‘Fidelity Bonds’’).
                                                 72 See Confirmation of Transactions, Securities       the broker-dealer fail, those assets are                 80 See Advisers Act rule 206(4)–2.

                                               Exchange Act Release No. 34962 (November 10,            readily available to be returned to                      81 See Form ADV. Many states have imposed
                                               1994).
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                                                                                                       customers.76 Broker-dealers are also                  fidelity bonding and/or net capital requirements on
                                                 73 Advisers Act rule 206(4)–2(a)(3) (custody rule).                                                         state-registered investment advisers. Rule 17g–1
                                               The Commission also has stated that an adviser’s        subject to extensive recordkeeping and                under the Investment Company Act of 1940
                                               policies and procedures, at a minimum, should           reporting requirements, including an                  requires registered investment companies to obtain
                                               address the accuracy of disclosures made to             annual audit requirement as well as a                 fidelity bonds covering their officers and employees
                                               investors, clients, and regulators, including account   requirement to make their audited                     who may have access to the investment companies’
                                               statements.                                                                                                   assets.
                                                 74 Investment Company Act of 1940 [15 U.S.C.                                                                   82 See Custody of Funds or Securities of Clients
                                                                                                        75 See   Exchange Act rule 15c3–1.
                                               80a–1 et seq.] (‘‘Investment Company Act’’) rule 3a–                                                          by Investment Advisers, Investment Advisers Act
                                               4(a)(4).                                                 76 See   Exchange Act rule 15c3–3.                   Release No. 2968 (Dec. 30, 2009).



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                                               21214                    Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Proposed Rules

                                               many other financial service providers                  Act adequately address the potential for                to maintain at all times a minimum net
                                               that have access to client assets.83                    misappropriation of client assets and                   worth of $35,000 (with some
                                                  In light of these disparities, we                    other financial responsibility concerns                 exceptions), an adviser who has
                                               request comment on whether SEC-                         for advisers? Should investment                         discretionary authority but not custody
                                               registered investment advisers should                   advisers be subject to an annual audit                  over client funds or securities to
                                               be subject to financial responsibility                  requirement?                                            maintain at all times a minimum net
                                               requirements along the lines of those                      • Should advisers be required to                     worth of $10,000, and an adviser who
                                               that apply to broker-dealers.                           obtain a fidelity bond from an insurance                accepts prepayment of more than $500
                                                  • What is the frequency and severity                 company? If so, should some advisers be                 per client and six or more months in
                                               of client losses due to investment                      excluded from this requirement? 86 Is                   advance to maintain at all times a
                                               advisers’ inability to satisfy a judgment               there information or data that                          positive net worth), provide an
                                               or otherwise compensate a client for                    demonstrates fidelity bonding                           appropriate model for a minimum
                                               losses due to the investment adviser’s                  requirements provide defrauded clients                  capital requirement? Why or why not?
                                               wrongdoing?                                             with recovery, and if so what amount or                    • Although investment advisers are
                                                  • Should investment advisers be                      level of recovery is evidenced?                         required to report specific information
                                               subject to net capital or other financial                  • Alternatively, should advisers be                  about the assets that they manage on
                                               responsibility requirements in order to                 required to maintain a certain amount of                behalf of clients, they are not required
                                               ensure they can meet their obligations,                 capital that could be the source of                     to report specific information about
                                               including compensation for clients if                   compensation for clients? 87 What                       their own assets.90 Should advisers be
                                               the adviser becomes insolvent or                        amount of capital would be adequate? 88                 required to obtain annual audits of their
                                               advisory personnel misappropriate                          • What would be the expected cost of                 own financials and to provide such
                                               clients’ assets? 84 Do the custody rule                 either maintaining some form of reserve                 information on Form ADV? Would such
                                               and other rules 85 under the Advisers                   capital or purchasing a fidelity bond?                  a requirement raise privacy concerns for
                                                                                                       Specifically, in addition to setting aside              privately held advisers?
                                                 83 Fidelity bonds are required to be obtained by      the initial sum or purchasing the initial
                                               broker-dealers (FINRA Rule 4360; New York Stock         bond, what would be the ongoing cost                      By the Commission.
                                               Exchange Rule 319; American Stock Exchange Rule         and the opportunity cost for investment                   Dated: April 18, 2018.
                                               330); transfer agents (New York Stock Exchange          advisers? Would one method or the                       Brent J. Fields,
                                               Rule Listed Company Manual § 906); investment
                                               companies (17 CFR 270.17g–1); national banks (12        other be more feasible for certain types                Secretary.
                                               CFR 7.2013); federal savings associations (12 CFR       of investment advisers (particularly,                   [FR Doc. 2018–08679 Filed 5–8–18; 8:45 am]
                                               563.190).                                               smaller advisers)?                                      BILLING CODE 8011–01–P
                                                 84 We note that Congress and the Commission
                                                                                                          • Would the North American
                                               have considered such requirements in the past. In       Securities Administrators Association
                                               1973, a Commission advisory committee
                                               recommended that Congress authorize the                 Minimum Financial Requirements For
                                                                                                       Investment Advisers Model Rule                          DEPARTMENT OF HOMELAND
                                               Commission to adopt minimum financial
                                               responsibility requirements for investment advisers,    202(d)–1 89 (which requires, among                      SECURITY
                                               including minimum capital requirements. See             other things, an investment adviser who
                                               Report of the Advisory Committee on Investment                                                                  Coast Guard
                                               Management Services for Individual Investors,           has custody of client funds or securities
                                               Small Account Investment Management Services,                                                                   33 CFR Part 151
                                               Fed. Sec. L. Rep. (CCH) No. 465, Pt. III, 64–66 (Jan.   Advisers Act and Advisers Act rules, review those
                                               1973) (‘‘Investment Management Services Report’’).      policies and procedures annually, and designate an      [Docket No. USCG–2018–0245]
                                               Three years later, in 1976, the Senate Committee on     individual to serve as a chief compliance officer).
                                               Banking, Housing and Urban Affairs considered a            86 As noted above, the 1992 legislation would
                                                                                                                                                               RIN 1625–AC45
                                               bill that, among other things, would have               have given us the explicit authority to require
                                               authorized the Commission to adopt rules requiring      bonding of advisers that have custody of client
                                               investment advisers (i) with discretionary authority    assets or that have discretionary authority over
                                                                                                                                                               Ballast Water Management—Annual
                                               over client assets, or (ii) that advise registered      client assets. Section 412 of ERISA [29 U.S.C. 1112]    Reporting Requirement
                                               investment companies, to meet financial                 and related regulations (29 CFR 2550.412–1 and 29
                                               responsibility standards. S. Rep. No. 94–910, 94th      CFR 2580) generally require that every fiduciary of     AGENCY:   Coast Guard, DHS.
                                               Cong. 2d Sess. (May 20, 1976) (reporting favorably      an employee benefit plan and every person who           ACTION:   Notice of proposed rulemaking.
                                               S. 2849). S. 2849 was never enacted. In 1992, both      handles funds or other property of such a plan shall
                                               the Senate and House of Representatives passed          be bonded. Registered investment advisers
                                               bills that would have given the Commission the          exercising investment discretion over assets of
                                                                                                                                                               SUMMARY:  The Coast Guard proposes to
                                               explicit authority to require investment advisers       plans covered by title I of ERISA are subject to this   amend its regulations on ballast water
                                               with custody of client assets to obtain fidelity        requirement; it does not apply to advisers who          management by eliminating the
                                               bonds. S. 226, 102d Cong., 2d Sess. (Aug. 12, 1992)     exercise discretion with respect to assets in an        requirement for vessels operating on
                                               and H.R. 5726, 102d Cong. Ed (Sept. 23, 1992).          individual retirement account or other non-ERISA
                                               Differences in these two bills were never reconciled    retirement account. In 1992, only approximately
                                                                                                                                                               voyages exclusively between ports or
                                               and thus neither became law. In 2003, the               three percent of Commission registered advisers         places within a single Captain of the
                                               Commission requested comment on whether to              had discretionary authority over client assets; as of   Port Zone to submit an Annual Ballast
                                               require a fidelity bonding requirement for advisers     March 31, 2018, according to data collected on          Water Summary Report for calendar
                                               as a way to increase private sector oversight of the    Form ADV, 91 percent of Commission registered
                                               compliance by funds and advisers with the federal       advisers have that authority.                           year 2018. The Coast Guard views this
                                               securities laws. The Commission decided not to             87 See supra note 84.                                current reporting requirement as
                                               adopt a fidelity bonding requirement at that time,         88 Section 412 of ERISA provides that the bond       unnecessary to analyze and understand
                                               but noted that it regarded such a requirement as a      required under that section must +be at least ten       ballast water management practices.
amozie on DSK3GDR082PROD with PROPOSALS




                                               viable option should the Commission wish to             percent of the amount of funds handled, with a
                                               further strengthen compliance programs of funds
                                                                                                                                                               This proposal would also serve to
                                                                                                       maximum required amount of $500,000 (increased
                                               and advisers. Compliance Programs of Investment         to $1,000,000,000 for plans that hold securities        reduce the administrative burden on the
                                               Companies and Investment Advisers, Investment           issued by an employer of employees covered by the
                                               Company Act Release No. 25925 (Feb. 5, 2003).           plan).                                                    90 Form ADV only requires that advisers with
                                                 85 See, e.g., Advisers Act rule 206(4)–7 (requires       89 NASAA Minimum Financial Requirements For          significant assets (at least $1 billion) report the
                                               each investment adviser registered or required to be    Investment Advisers Model Rule 202(d)–1 (Sept. 11,      approximate amount of their assets within one of
                                               registered with the Commission to adopt and             2011), available at http://www.nasaa.org/wp-            the three ranges ($1 billion to less than $10 billion,
                                               implement written policies and procedures               content/uploads/2011/07/IA-Model-Rule-Minimum-          $10 billion to less than $50 billion, and $50 billion
                                               reasonably designed to prevent violations of the        Financial-Requirements.pdf.                             or more). Item 1.O of Part 1A of Form ADV.



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Document Created: 2018-05-09 03:17:55
Document Modified: 2018-05-09 03:17:55
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed interpretation; request for comment.
DatesComments should be received on or before August 7, 2018.
ContactJennifer Songer, Senior Counsel, or Sara Cortes, Assistant Director, at (202) 551-6787 or [email protected], Investment Adviser Regulation Office, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-8549.
FR Citation83 FR 21203 
RIN Number3235-AM36

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