FOURTH IN A SERIES
On June 5, 2019, the Securities and Exchange Commission adopted a rulemaking package that applies to investment advisers and broker-dealers. The proposed rulemaking package that the SEC issued for comment in April 2018 included a discussion of the “solely incidental” prong of the broker-dealer exclusion from the definition of investment adviser under the Advisers Act. This portion of Section 202(a)(11)(C) of the Advisers Act provides that a broker-dealer whose performance of advisory services is “solely incidental” to the conduct of business as a broker-dealer is not deemed to be an investment adviser. The final rulemaking package includes an interpretation that clarifies and confirms the SEC’s interpretation of this exclusion (“Interpretation”).
This is the fourth in a series of articles describing the SEC’s rulemaking package. This article addresses the SEC’s Interpretation of the “Solely Incidental” Broker-Dealer Exclusion.
“Solely Incidental” Broker-Dealer Exclusion Interpretation
Section 202(a)(11)(C) of the Investment Advisers Act of 1940 excludes from the definition of “investment adviser” a broker-dealer who provides investment advice that is “solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor” (the “Exclusion”). As summarized by the SEC, this language illustrates that Congress knew when it passed the Advisers Act that it is not uncommon for broker-dealers to provide investment advice in the course of their business. Congress also acknowledged that the provision of such limited advisory services by broker-dealers (under certain circumstances) should not subject them to regulation under the Advisers Act.
As the financial services industry has evolved, it has become less clear when the Exclusion applies. This uncertainty was confirmed by comments the SEC received during the rulemaking process. The SEC issued the Interpretation to confirm and clarify its views about when the provision of investment advice by a broker-dealer is consistent with the Exclusion.
As a starting point, the SEC explains in the Interpretation that “[w]hether advisory services provided by a broker-dealer satisfy the solely incidental prong is assessed based on the facts and circumstances surrounding the broker-dealer’s business, the specific services offered, and the relationship between the broker-dealer and the customer.” In general, a broker-dealer’s advice about the value and characteristics of securities or the advisability of transacting in securities falls within the “solely incidental” Exclusion “if the advice is provided in connection with and is reasonably related to the broker-dealer’s primary business of effecting securities transactions.” While the determination is based on a fact-and-circumstances analysis, the Interpretation provides guidance regarding the application of the Exclusion in the context of: (1) exercising investment discretion over customer accounts, and (2) account monitoring.
In the past, the SEC has cautioned that a broker-dealer’s exercise of investment discretion over customer accounts may not be “solely incidental” to the brokerage business. According to the SEC, “when a broker-dealer exercises investment discretion, it is not providing advice to customers that is in connection with and reasonably related to effecting securities transactions; rather, the broker-dealer is making investment decisions relating to the purchase or sale of securities on behalf of customers on an ongoing basis.” Thus, a broker-dealer’s exercise of unlimited discretion would not be solely incidental to the broker-dealer’s business, and the Exclusion would not apply under such circumstances.
On the other hand, the SEC has also previously determined that a broker-dealer’s exercise of limited discretionary authority could be considered a service that is solely incidental to the brokerage business. Therefore, a broker-dealer’s exercise of temporary or limited discretion may indicate that a specific relationship is not “primarily advisory in nature.”
The SEC identified examples in the Interpretation that it considers to demonstrate a broker-dealer’s temporary or limited discretion. Those examples include transactions to:
- Purchase or sell a security or type of security when a customer is unavailable for a limited period of time, if the purchase or sale occurs on an isolated or infrequent basis;
- Purchase or sell securities to satisfy margin requirements, or other customer obligations that the customer has specified; and
- Sell specific bonds or other securities and purchase similar bonds or other securities in order to permit a customer to realize a tax loss on the original position.
Nevertheless, the Interpretation reminds broker-dealers that “[t]he totality of the facts and circumstances would be relevant to determining whether temporary or limited discretion is consistent with the solely incidental prong.”
The SEC received various comments about the applicability of the Exclusion when broker-dealers monitor the status and performance of a customer’s account. The SEC disagreed with the position of some commenters that any monitoring of customer accounts is inconsistent with the Exclusion. Thus, the Interpretation confirms that a broker-dealer’s review of accounts does not automatically fall outside of the Exclusion.
The SEC declined to establish a threshold about the situations in which monitoring is solely incidental to a broker-dealer’s business. Instead, the Interpretation encourages broker-dealers to implement policies and procedures that will help demonstrate whether any monitoring is related to the primary business of effecting transactions. Such policies and procedures may include information such as: (1) whether a registered representative may agree to monitor a customer’s account at specific time frames for the purpose of determining whether to provide a buy, sell, or hold recommendation to a customer, and (2) for dually-registered firms, the level and type of monitoring the firm provides in advisory and brokerage accounts. Nevertheless, the SEC reminds broker-dealers that if they agree to monitor a customer account, then the review and resulting recommendation is subject to disclosure under Regulation Best Interest.
The purpose of the Interpretation is to clarify when a broker-dealer’s performance of advisory activities causes it to become an investment adviser under the Advisers Act. Because the SEC believes that the Interpretation generally confirms the existing scope of the Exclusion, the Interpretation is effective upon publication in the Federal Register. As applicable, the SEC will consider further comments on the Interpretation and evaluate whether additional guidance is appropriate.
This blog post was drafted by Beth Miller, an attorney in the Spencer Fane LLP Overland Park, KS office. For more information, visit spencerfane.com.