This blog post continues my series on SEC Regulation Best Interest ("RBI") and the DOL Rule.
Knowing the Client and the Investment
As I’ve written previously, a Registered Representative must know both the client and the investment in order to make a Best Interest recommendation under the proposed SEC rules. (This is also true under the existing FINRA Suitability Rule 2111.)
Under RBI, the SEC addresses this directly, writing: 
... we believe acting in the best interest of the retail customer would require a broker-dealer to have a reasonable basis to believe that a specific recommendation is in the best interest of the particular retail customer based on its understanding of the investment or investment strategy under proposed paragraph (a)(2)(ii)(A), and in light of the retail customer's investment objectives, financial situation, and needs. (Emphasis added)
Additionally, the SEC believes the principals that underlie the RBI requirements are the same as those under the DOL’s Best Interest Standard (which was a fiduciary standard):
We believe that the principles underlying our proposed best interest obligation as discussed above, and the specific Disclosure, Care, and Conflict of Interest Obligations described in more detail below, generally draw from underlying principles similar to the principles underlying the DOL's best interest standard, as described by the DOL in the BIC Exemption. (Emphasis added)
Although RBI does not impose a fiduciary duty, the SEC refers to the DOL Rule (as well as obligations under RBI) regarding how Registered Representatives will be held to a prudent expert standard:
(The DOL Rule) defines advice to be in the "best interest" if the person providing the advice acts "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with the such (sic) matter would use... without regard to the financial or other interests" of the person.
Further, the proposed Disclosure Obligation, Care Obligation and Conflict of Interest Obligations described in more detail below, establish standards of professional conduct that, among other things, would require the broker-dealer to employ reasonable care when making a recommendation. (Emphasis added)
An important question, then, is what constitutes “reasonable care”? (I am here only focusing on the reasonable care obligation concerning investments, not those regarding the obligation to know the client.)
At a minimum, reasonable care requires the Registered Representative to undertake an analysis of the potential recommended investments to express her investment thesis and choose one that is in the best interest of the client.
In short, reasonable care requires that the Registered Representative do her homework. Additionally, the diligence undertaken will need to be evidenced in writing so that it can be supervised, and for the broker’s own protection, should litigation ensue.
Choosing Between Investments
The SEC has provided guidance on the analysis of investments in RBI, writing: 
We reiterate that we recognize that it may be consistent with a retail customer's investment objectives - and in many cases, in a retail customer's best interest - for a retail customer to allocate investments across a variety of investment products, or to invest in riskier or more costly products, such as some actively managed mutual funds, variable annuities, and structured products.
However, in recommending such products, a broker-dealer must satisfy its obligations under proposed Regulation Best Interest. Such recommendations would continue to be evaluated under a fact specific analysis based on the security or investment strategy recommended in connection with the retail customer's investment profile, consistent with the proposed best interest obligation. (Emphasis added)
Fact Specific Analysis
The “fact specific analysis” is a new requirement and, as mentioned above, will need to be evidenced for each recommendation and supervised by the broker-dealer (“BD”).
The SEC mentions variable annuities as an example of a “more costly product”. A fact specific analysis would need to show that a variable annuity was in the client’s best interest after accounting for those costs and compared to other available options. For most variable annuities, this will be exceedingly difficult.
In a typical variable annuity contract the client is charged two to four percent per year in total fees. These consist of asset management fees, mortality and expense fees, administrative fees, and riders. Academic literature has shown a typical death benefit guaranteeing the principal to be worth between one and 10 basis points per year. However, most variable annuity contracts charge 100 to 125 basis points for the guarantee.
Such a high markup is very difficult to justify (as are all the other fees).
The advantage of tax-deferred growth inside a variable annuity is overwhelmed by these extremely high fees and the net investment returns will likely never overcome them when compared to a similar allocation into index funds, which typically distribute no capital gains.
Furthermore, most variable annuities require the sacrifice of liquidity, a risk that is completely uncompensated.
In order to justify the recommendation of a variable annuity under RBI, a Registered Representative would have to show, in a fact specific analysis, how it is in her client’s best interest to buy the variable annuity versus a similar allocation in index funds.
I have yet to see such an analysis and am highly skeptical that one could pass the prudent expert standard.
The Importance of Costs
The SEC recognizes the importance of costs when undertaking a fact specific analysis, writing:
… we emphasize that the costs and financial incentives associated with a recommendation would generally be one of many important factors...
Furthermore, the SEC states clearly that when choosing among identical securities, RBI requires the less expensive security be recommended:
Thus, where, for example, a broker-dealer is choosing among identical securities available to the broker-dealer, it would be inconsistent with the Care Obligation to recommend the more expensive alternative for the customer…
If a broker-dealer recommends a more expensive security or strategy over another reasonably available alternative offered by the broker-dealer, they must have a reasonable basis to believe the higher cost is justified and that the recommendation is in the customer's best interest.
A key word in the quote above is “identical”. Very few investments are likely to be identical in the literal sense. However, many are certain to be highly comparable with differences that are essentially trivial. For instance, in the variable annuity example, a large cap blend sub-account inside the variable annuity is likely to be highly comparable to an S&P 500 Index fund.
A simple correlation analysis would almost certainly reveal that the differences were small, as would an analysis of the holdings and the sub-accounts active share. Indeed, most funds (or sub-accounts) in the same size and style category are likely to be close to identical, although none would likely meet the literal meaning of “identical”.
The more comparable two investments are, the more important it will be to choose the less expensive option. For products that have insurance or other features such as principal protection, an additional analysis of the costs, liquidity, guarantor risk, and other factors will be required.
Importantly, the case of identical investments isn’t the only standard the SEC sets out, indeed, it is only a special case.
Comparable Product Factors
The SEC has provided guidance on what a BD must consider when undertaking their fact specific analysis for comparable products or strategies offered by the firm:
While every inquiry will be specific to the broker-dealer and the investment or investment strategy, broker-dealers may wish to consider questions such as:
- Can less costly, complex, or risky products available at the broker-dealer achieve the objective of the product?
- What assumptions underlie the product, and how sound are they? What market or performance factors determine the investor’s return?
- What are the risks specific to retail customers? If the product was designed mainly to generate yield, does the yield justify the risk to principal?
- What costs and fees for the retail customer are associated with this product? Why are they appropriate? Are all of the costs and fees transparent? How do they compare with comparable products offered by the firm?
- What financial incentives are associated with the product, and how will costs, fees and compensation relating to the product impact an investor’s return?
- Does the product present any novel legal, tax, market, investment, or credit risks?
- How liquid is the product? Is there a secondary market for the product?
As described above, the broker-dealer's diligence and understanding of the risks and rewards would generally involve consideration of factors, such as the costs; the investment objectives and characteristics associated with a product or strategy (including any special or unusual features, liquidity, risks and potential benefits, volatility and likely performance in a variety of market and economic conditions), as well as the financial and other benefits to the broker-dealer.
Fact Specific Analysis Supervision
Perhaps most important is that Registered Representatives will have to undertake their fact specific analysis before the recommendation is made. As discussed above, that analysis would need to be in writing and show how the recommendation is in the client’s best interest and comports with all their particular facts and circumstances, including risk tolerance and investment objectives.
If there was no analysis, or the analysis was deficient, then the recommendation would likely fail to meet the RBI standard (or might only meet it by chance) and would certainly have failed to have been supervised.
The requirement of a fact specific analysis will necessitate additional supervisory systems and oversight, and BDs will need to implement policies and procedures to make sure they comply with RBI.
 SEC Regulation Best Interest; Release No. 34-83062; File No. S7-07-18; Available at: https://www.sec.gov/rules/proposed/2018/34-83062.pdf; Accessed September 12, 2018.
 Id. at 58.
 Id. at 108.
 Id. at 59.
 Id. at 147.
 Mose Arye Milevsky and Steven E. Posner; The Titanic Option: Valuation of the Guaranteed Minimum Death Benefit in Variable Annuities and Mutual Funds; The Journal of Risk and Insurance, 2001; Vol. 68; No. 1, 93-128. Available at: http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.178.1519&rep=rep1&type=pdf; Accessed September 12, 2018.
 Many variable annuities allow the withdrawal of up to 10 percent of the original investment on a penalty-free basis every year. However, withdrawals above that amount often have eight to 10 percent penalties in the first year and decline each year after that.
Typically, investors in illiquid investments such as hedge funds and private equity funds demand an illiquidity premium of three percent per year for the loss of liquidity. Variable annuities provide no such return premium. Indeed, because of their fee structure, they are likely to return three percent less than the benchmark each year.
 RBI at 147.
 Id. at 148.
 Id. at 139-40 and 143.
 An interesting question arises about firms that only offer one type of product, such as insurance carriers that only sell insurance or variable products. I will address this in later posts.
To learn more about fiduciary expert Jack Duval, click here.