Commission Guidance Regarding Client Commission Practices Under Section 28(e) of the Securities Exchange Act of 1934, 41978-41996 [06-6410]
Download as PDF
<![CDATA[
41978
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Part 241
[Release No. 34–54165; File No. S7–13–06]
Commission Guidance Regarding
Client Commission Practices Under
Section 28(e) of the Securities
Exchange Act of 1934
Securities and Exchange
Commission.
ACTION: Interpretation; solicitation of
comment.
AGENCY:
SUMMARY: The Securities and Exchange
Commission is publishing this
interpretive release with respect to the
scope of ‘‘brokerage and research
services’’ and client commission
arrangements under Section 28(e) of the
Securities Exchange Act of 1934
(‘‘Exchange Act’’). The Commission is
soliciting further comment on client
commission arrangements under
Section 28(e).
DATES: Effective Date: July 24, 2006.
Comment Due Date: Comments
should be received on or before
September 7, 2006.
Other Date: Market participants may
continue to rely on the Commission’s
prior interpretations of Section 28(e)
until January 24, 2007.
ADDRESSES: Comments may be
submitted by any of the following
methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/interp.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number S7–13–06 on the subject line;
or
• Use the Federal eRulemaking Portal
(https://www.regulations.gov). Follow the
instructions for submitting comments.
rwilkins on PROD1PC63 with RULES_2
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number S7–13–06. This file number
should be included on the subject line
if e-mail is used. To help us process and
review your comments more efficiently,
please use only one method. The
Commission will post all comments on
the Commission’s Internet Web site
(https://www.sec.gov/rules/
interp.shtml). Comments are also
available for public inspection and
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
copying in the Commission’s Public
Reference Room, 100 F Street, NE.,
Washington, DC 20549. All comments
received will be posted without change;
we do not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT: Jo
Anne Swindler, Assistant Director, at
(202) 551–5750; Patrick M. Joyce,
Special Counsel, at (202) 551–5758;
Stanley C. Macel, IV, Special Counsel, at
(202) 551–5755; or Marlon Quintanilla
Paz, Special Counsel, at (202) 551–5756,
in the Office of Enforcement Liaison and
Institutional Trading, Division of Market
Regulation, United States Securities and
Exchange Commission, 100 F Street,
NE., Washington, DC 20549–6628.
SUPPLEMENTARY INFORMATION:
I. Introduction and Summary
Section 28(e) 1 of the Exchange Act 2
establishes a safe harbor that allows
money managers to use client funds to
purchase ‘‘brokerage and research
services’’ for their managed accounts
under certain circumstances without
breaching their fiduciary duties to
clients. In this release, the Commission
is issuing interpretive guidance with
respect to the safe harbor, with the
particular goal of clarifying the scope of
‘‘brokerage and research services’’ in the
light of evolving technologies and
industry practices.
Fiduciary principles require money
managers to seek the best execution for
client trades, and limit money managers
from using client assets for their own
benefit.3 Use of client commissions to
pay for research and brokerage services
presents money managers with
significant conflicts of interest, and may
give incentives for managers to
disregard their best execution
obligations when directing orders to
obtain client commission services as
well as to trade client securities
U.S.C. 78bb(e).
U.S.C. 78a.
3 Money managers include investment advisers,
who have a fundamental obligation under the
Investment Advisers Act of 1940 (‘‘Advisers Act’’)
[15 U.S.C. 80b–1] and state law to act in the best
interest of their clients, SEC v. Capital Gains
Research Bureau, Inc., 375 U.S. 180, 189–191
(1963). This includes the obligation to seek ‘‘best
execution’’ of clients’ transactions under the
circumstances of the particular transaction.
Exchange Act Release No. 23170 (Apr. 23, 1986), 51
FR 16004, 16011 (Apr. 30, 1986) (‘‘1986 Release’’).
See also Delaware Management Co., 43 SEC 392,
396 (1967). The fundamental obligation of the
adviser to act in the best interest of his client also
generally precludes the adviser from using client
assets for the adviser’s own benefit or the benefit
of other clients, at least without client consent. See
Restatement (Second) of Trusts § 170 cmt. a, § 216
(1959).
PO 00000
1 15
2 15
Frm 00002
Fmt 4701
Sfmt 4702
inappropriately in order to earn credits
for client commission services.4
Recognizing the value of research in
managing client accounts, however,
Congress enacted Section 28(e) 5 of the
Exchange Act to provide a safe harbor
that protects money managers from
liability for a breach of fiduciary duty
solely on the basis that they paid more
than the lowest commission rate in
order to receive ‘‘brokerage and research
services’’ provided by a broker-dealer, if
the managers determined in good faith
that the amount of the commission was
reasonable in relation to the value of the
brokerage and research services
received.6
As discussed below in Section II, over
the past thirty years, the Commission
has issued several releases interpreting
the Section 28(e) safe harbor. In 1998,
the Commission published a report of
its Office of Compliance Inspections and
Examinations (‘‘OCIE’’) detailing a staff
review of client commission practices at
broker-dealers and investment
advisers.7 The Commission also has
4 For a discussion of managers’ conflicts in
connection with the safe harbor, see generally
Exchange Act Release No. 35375 (Feb. 14, 1995), 60
FR 9750, 9751 (Feb. 21, 1995) (‘‘1995 Rule
Proposal’’) (the Commission took no further action
on this proposal). See also Sage Advisory Services
LLC, Exchange Act Release No. 44600, 75 SEC
Docket 1073 (July 27, 2001) (Commission charged
that adviser churned advised account to generate
client commission credits to pay personal operating
expenses and failed to seek to obtain best execution
by causing account to pay commissions twice the
rate the same broker charged other customers for
comparable services).
To avoid confusion that may arise over the usage
of the phrase ‘‘soft dollars,’’ in this release, the
Commission uses the term ‘‘client commission’’
practices or arrangements to refer to practices under
Section 28(e). Similarly, to minimize confusion
with the phrase ‘‘commission-sharing
arrangements’’ as used in the United Kingdom to
refer to unique arrangements in that market place,
we refer to arrangements under Section 28(e) as
‘‘client commission arrangements’’ or ‘‘Section
28(e) arrangements.’’
5 15 U.S.C. 78bb(e).
6 See Securities Acts Amendments of 1975, Pub.
L. 94–29, 89 Stat. 97, 161–62 (1975).
Congressional enactment of Section 28(e) did not
alter the money manager’s duty to seek best
execution. See 1986 Release, 51 FR at 16011. The
directors of an investment company have a
continuing fiduciary duty to oversee the company’s
brokerage practices. See Investment Company Act
Release No. 11662 (Mar. 4, 1981), 46 FR 16012
(Mar. 10, 1981). In addition, the directors have an
obligation in connection with their review of the
fund’s investment advisory contract to review the
adviser’s compensation, including any ‘‘soft dollar’’
benefits the adviser may receive from fund
brokerage. See 1986 Release, 51 FR at 16010.
7 See Office of Compliance Inspections and
Examination, U.S. Securities and Exchange
Commission, Inspection Report on the Soft Dollar
Practices of Broker-Dealers, Investment Advisers
and Mutual Funds 3 (Sept. 22, 1998) (‘‘1998 OCIE
Report’’), available at https://www.sec.gov/news/
studies/softdolr.htm.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
rwilkins on PROD1PC63 with RULES_2
brought enforcement actions involving
purported client commission practices.8
On October 19, 2005, the Commission
issued a proposed interpretive release
regarding client commission practices
under Section 28(e) (‘‘Proposing
Release’’).9 We received letters from
seventy-one commenters in response to
the Proposing Release.10 More than half
8 See, e.g., Dawson-Samberg Capital Management,
Inc. and Judith A. Mack, Advisers Act Release No.
1889, 54 SEC 786 (Aug. 3, 2000); Marvin & Palmer
Associates, Inc., et al., Advisers Act Release No.
1841, 70 SEC Docket 1643 (Sept. 30, 1999); Fleet
Investment Advisors, Inc., Advisers Act Release No.
1821, 70 SEC Docket 1217 (Sept. 9, 1999); Republic
New York Sec. Corp. and James Edward Sweeney,
Exchange Act Release No. 41036, 53 SEC 1283 (Feb.
10, 1999); SEC v. Sweeney Capital Management,
Inc., Litigation Release No. 15664, 66 SEC Docket
1613 (Mar. 10, 1998), 1999 U.S. Dist. LEXIS 22298
(1999) (order granting permanent injunction and
other relief); Renaissance Capital Advisers, Inc.,
Advisers Act Release No. 1688, 66 SEC Docket 408
(Dec. 22, 1997); Oakwood Counselors, Inc., Advisers
Act Release No. 1614, 63 SEC Docket 2034 (Feb. 11,
1997); S Squared Technology Corp., Advisers Act
Release No. 1575, 62 SEC Docket 1446 (Aug. 7,
1996); SEC v. Galleon Capital Mgmt., Litigation
Release No. 14315, 57 SEC Docket 2593 (Nov. 1,
1994).
9 Exchange Act Release No. 52635 (Oct. 19, 2005),
70 FR 61700 (Oct. 25, 2005).
10 Seventy-one different commenters submitted
seventy-six comment letters. The comment letters
are available for inspection in the Commission’s
Public Reference Room in File No. S7–09–05, or
may be viewed at https://www.sec.gov/rules/interp/
s70905.shtml. The commenters were: Committee on
Federal Regulation of Securities, Business Law
Section, American Bar Association (‘‘ABA’’);
Adams Harkness (‘‘Adams Harkness’’); American
Bankers Association (‘‘AmBankers’’); The Alliance
in Support of Independent Research, Nov. 23, 2005
(‘‘ASIR 1’’); The Alliance in Support of Independent
Research , June 2, 2006 (‘‘ASIR 2’’); Axia Advisory
Corporation (‘‘Axia’’); Bingham McCutcheon LLP,
on behalf of Frank Russell Securities, Inc.
(‘‘Bingham McCutcheon’’); Bloomberg L.P.
(‘‘Bloomberg’’); BNY Securities Group on behalf of
the Bank of New York Company, Inc., Nov. 25, 2005
(‘‘BNY 1’’); BNY Securities Group on behalf of the
Bank of New York Company, Inc., May 2, 2006
(‘‘BNY 2’’); California Public Employees’ Retirement
System (‘‘CalPERS’’); Capital Institutional Services,
Inc. (‘‘CAPIS’’); Carolina Capital Markets, Inc., Nov.
23, 2005 (‘‘CCM 1’’); Carolina Capital Markets, Inc.,
Nov. 25, 2005 (‘‘CCM 2’’); CFA Centre for Financial
Market Integrity, CFA Institute (‘‘CFA Institute’’);
Consumer Federation of America/Fund Democracy
(joint letter) (‘‘CFA/FD’’); Charles River Brokerage
(‘‘Charles River’’); C.L. King & Associates, Inc. (‘‘CL
King’’); Commission Direct, Inc. (‘‘Commission
Direct’’); Credit Suisse Securities (USA) LLC
(‘‘Credit Suisse’’); Neal J. Dean (‘‘Dean’’); U.S.
Department of Labor, Employee Benefits Security
Administration (‘‘DOL’’); Michael Donovan
(‘‘Donovan’’); Dow Jones & Company, Inc. (‘‘Dow
Jones’’); E*Trade Financial Corporation
(‘‘E*Trade’’); European Association of Independent
Research Providers (‘‘EuroIRP’’); Eze Castle
Software (‘‘Eze Castle’’); Fidelity Management and
Research Company (‘‘Fidelity’’); FinTech Securities
(‘‘FinTech’’); Tamar Frankel (‘‘Frankel’’); William T.
George, Oct. 20, 2005 (‘‘George 1’’); William T.
George, Oct. 28, 2005 (‘‘George 2’’); William T.
George, Apr. 4, 2006 (‘‘George 3’’);
GovernanceMetrics International (‘‘GMI’’);
Independent Directors Council (‘‘IDC’’); Instinet,
LLC (‘‘Instinet’’); International Securities
Association for Institutional Trade Communications
(‘‘ISITC’’); The Interstate Group (‘‘Interstate
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
of the commenters supported the
Commission’s efforts in the Proposing
Release to clarify the scope of Section
28(e).11 Overall, the comments provided
useful information regarding industry
practices in this area.12
After considering the comments
received and the Commission’s
experience with Section 28(e), and upon
further examination of changing market
conditions, current industry practices,
and the purposes underlying Section
28(e), we are issuing this interpretive
release on money managers’ use of
client assets to pay for research and
brokerage services under Section 28(e)
of the Exchange Act.13 This release
interprets the scope of the safe harbor as
follows:
• ‘‘Research services’’ are restricted to
‘‘advice,’’ ‘‘analyses,’’ and ‘‘reports’’
within the meaning of Section 28(e)(3).
Group’’); Investment Adviser Association (‘‘IAA’’);
Investment Company Institute (‘‘ICI’’); Investment
Management Association (‘‘IMA’’); Investorside
Research Association (‘‘Investorside’’); International
Shareholder Services Inc. (‘‘ISS’’); ITG Inc. (‘‘ITG’’);
J.P. Morgan Securities Inc., Nov. 28, 2005 (‘‘JP
Morgan 1’’); J.P. Morgan Securities Inc., Mar. 28,
2006 (‘‘JP Morgan 2’’); Thomas F. Lamprecht
(‘‘Lamprecht’’); Mellon Financial Corporation
(‘‘Mellon’’); Merrill Lynch & Co., Inc. (‘‘Merrill’’);
Managed Funds Association (‘‘MFA’’); Mutual Fund
Directors Forum (‘‘MFDF’’); Morgan Stanley & Co.,
Inc. (‘‘Morgan Stanley’’); Missouri State Employees’’
Retirement System (‘‘MOSERS’’); Emmett Murphy
(‘‘Murphy’’); National Compliance Services, Inc.
(‘‘NCS’’); Bernard Notas (‘‘Notas’’); National Society
of Compliance Professionals Inc. (‘‘NSCP’’); Junius
W. Peake, Oct. 21, 2005 (‘‘Peake 1’’); Junius W.
Peake, Oct. 26, 2005 (‘‘Peake 2’’); Rainier
Investment Management, Inc. (‘‘Rainier’’); The
Reserve Funds (‘‘Reserve’’); Reuters America LLC
(‘‘Reuters’’); Riedel Research Group (‘‘Riedel’’);
Charlotte Roederer (‘‘Roederer’’); Sanderson &
Stocker, Inc. (‘‘Sanderson & Stocker’’); U.S. Senator
Charles C. Schumer and U.S. Senator John E.
Sununu (joint letter) (‘‘Senators Schumer and
Sununu’’); Charles Schwab & Co., Inc. (‘‘Schwab’’);
Seward & Kissel LLP (‘‘Seward & Kissel’’);
Securities Industry Association (‘‘SIA’’); Security
Traders Association (‘‘STA’’); T. Rowe Price
Associates, Inc. (‘‘T. Rowe Price’’); UBS Securities
LLC (‘‘UBS’’); Vandham Securities Corp.
(‘‘Vandham’’); The Vanguard Group, Inc.
(‘‘Vanguard’’); Ward & Smith, P.A. on behalf of First
Citizens Bank & Trust Company (‘‘Ward & Smith’’);
West Virginia Investment Management Board
(‘‘WVIMB’’).
11 ABA; ASIR 1; AmBankers; BNY; Bloomberg;
CalPERS; CAPIS; CFA Institute; Charles River;
Commission Direct; DOL; Dow Jones; E*Trade;
EuroIRP; Eze Castle; Fidelity; FinTech; IDC; ISS;
Interstate Group; IAA; ICI; IMA; Investorside; ITG;
JP Morgan 1; MFA; Mellon; Merrill; Morgan
Stanley; NCS; NSCP; Reuters; Riedel; Roederer;
Schwab; SIA; STA; T. Rowe Price; UBS; Vandham;
Vanguard.
12 Ten commenters expressed the view that
money managers should refrain from using client
commissions to obtain brokerage and research or
that Congress should repeal Section 28(e). See Axia;
CFA/FD (joint letter); Dean; Frankel; MOSERS;
MFDF; Peake 2; Reserve; WVIMB.
13 15 U.S.C. 78bb(e). The Commission also is
considering whether at a later time to propose
requirements for disclosure and recordkeeping of
client commission arrangements.
PO 00000
Frm 00003
Fmt 4701
Sfmt 4702
41979
• Physical items, such as computer
hardware, which do not reflect the
expression of reasoning or knowledge
relating to the subject matter identified
in the statute, are outside the safe
harbor.
• Research related to the market for
securities, such as trade analytics
(including analytics available through
order management systems) and advice
on market color and execution
strategies, are eligible for the safe
harbor.
• Market, financial, economic, and
similar data could be eligible for the safe
harbor.
• Mass-marketed publications are not
eligible as research under the safe
harbor.
• ‘‘Brokerage services’’ within the
safe harbor are those products and
services that relate to the execution of
the trade from the point at which the
money manager communicates with the
broker-dealer for the purpose of
transmitting an order for execution,
through the point at which funds or
securities are delivered or credited to
the advised account.
• Eligibility of both brokerage and
research services for safe harbor
protection is governed by the criteria in
Section 28(e)(3),14 consistent with the
Commission’s 1986 ‘‘lawful and
appropriate assistance’’ standard.
• Mixed-use items must be
reasonably allocated between eligible
and ineligible uses, and the manager
must keep adequate books and records
concerning allocations so as to enable
the manager to make the required good
faith determination of the
reasonableness of commissions in
relation to the value of brokerage and
research services.
• In order for the safe harbor to be
available to the money manager, the
following principles apply:
• Broker-dealers that are parties to
arrangements under Section 28(e) are
involved in ‘‘effecting’’ the trade if they
execute, clear, or settle the trade, or
perform one of four specified
functions 15 and allocate the other
functions to another broker-dealer.
• Broker-dealers ‘‘provide’’ the
research if they (i) prepare the research,
(ii) are financially obligated to pay for
the research, or (iii) are not financially
obligated to pay but their arrangements
have certain attributes.
14 15
U.S.C. 78bb(e)(3).
four functions are: (1) Taking financial
responsibility for customer trades; (2) maintaining
records relating to customer trades; (3) monitoring
and responding to customer comments concerning
the trading process; and (4) monitoring trades and
settlements. See discussion infra note 176 and
accompanying text.
15 The
E:\FR\FM\24JYR2.SGM
24JYR2
41980
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
This Release reiterates the statutory
requirement that money managers must
make a good faith determination that
commissions paid are reasonable in
relation to the value of the products and
services provided by broker-dealers in
connection with the managers’
responsibilities to the advisory accounts
for which the managers exercise
investment discretion.
The guidance in this Release shall be
effective immediately upon its
publication in the Federal Register.
Market participants may continue to
rely on the Commission’s prior
interpretations for six months following
the publication of this Release in the
Federal Register. Nonetheless, the
Commission will receive and consider
additional comment regarding Section
III.I of this Release with respect to client
commission arrangements given
evolving developments in the industry.
Based on any comments received, the
Commission may, but need not,
supplement the guidance in this Release
in the future.
II. ‘‘Brokerage and Research Services’’
Under Section 28(e) of the Exchange
Act
A. Origins of the Section 28(e) Safe
Harbor
rwilkins on PROD1PC63 with RULES_2
In the early 1970’s, the Commission
studied whether to require unfixing
commission rates on national
exchanges, which had been fixed by
custom and regulation since the
founding of the New York Stock
Exchange nearly two hundred years
earlier.16 At the same time, the House
and Senate began to consider whether to
eliminate fixed commission rates
legislatively.17 The Commission
adopted Rule 19b–3 under the Exchange
Act,18 which ended fixed commission
rates on national securities exchanges
effective May 1, 1975.19 Just one month
later, Congress passed legislation
unfixing commission rates as part of the
16 See U.S. Securities and Exchange Commission,
Institutional Investor Study Report, H.R. Doc. No.
64, 92d Cong., 1st Sess., Vol. 4, at 2206 (1971). See
also U.S. Securities and Exchange Commission,
Special Study of Securities Markets, H.R. Doc. No.
88–95, pt. 2, at 323 (1963) (‘‘Special Study’’).
17 See generally Senate Comm. on Banking,
Housing and Urban Affairs, Securities Industry
Study Report of the Subcommittee on Securities, S.
DOC. NO. 93–13 (1973).
18 17 CFR 240.19b–3. Rule 19b–3 was codified in
certain respects by Section 6(e)(1) of the Exchange
Act [15 U.S.C. 78f(e)(1)], which was enacted as part
of the Securities Acts Amendments of 1975, Pub.
L. 94–29, 89 Stat. 97, 107–08 (1975). See also
Exchange Act Release No. 26180 (Oct. 14, 1988), 53
FR 41205 (Oct. 20, 1988) (rescinding Rule 19b–3).
19 See Exchange Act Release No. 11203 (Jan. 23,
1975), 40 FR 7394 (Feb. 20, 1975).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
Securities Acts Amendments of 1975
(‘‘1975 Amendments’’).20
In the era of fixed rates, when brokerdealers could not compete on the basis
of the commissions that they could
charge for executing orders, they
competed on the basis of services
including non-execution services that
they could offer.21 Indeed, brokerdealers had long been accustomed to
attracting order execution business from
institutional money managers by
offering them brokerage functions and
research reports to distinguish their
services from those of their
competitors.22 As the end of the fixedrate era drew near, however, money
managers and broker-dealers alike
questioned how competition over
commission rates would disrupt these
practices. Institutional money managers
expressed concern that, in an
environment of competitive commission
rates, they would be forced to allocate
brokerage solely on the basis of lowest
execution costs, or that paying more
than the lowest commission rate would
be deemed a breach of fiduciary duty,
and that useful research might become
more difficult to obtain.23 Brokerdealers, which were accustomed to
producing proprietary ‘‘Street’’ research,
expressed concern that they could no
longer be compensated in commissions
for their work product if orders were
routed to broker-dealers that provided
execution-only service at lower rates.24
In an effort to address the industry’s
uncertainties about competitive
commission rates, Congress included a
safe harbor in the 1975 Amendments,
codified as Section 28(e) of the
20 See Securities Acts Amendments of 1975, Pub.
L. 94–29, 89 Stat. 97, 107–08 (1975) (enacting
Section 6(e)(1) of the Exchange Act [15 U.S.C.
78f(e)(1)]). See generally Senate Comm. on Banking,
Housing and Urban Affairs, Securities Acts
Amendments of 1975, S. Rep. No. 94–75, at 69
(1975), reprinted in 1975 U.S.C.C.A.N. 179, 247;
House Comm. on Interstate and Foreign Commerce,
Securities Reform Act of 1975, H.R. Rep. No. 94–
123 (1975); Joint Explanatory Statement of the
Comm. of Conference, Securities Acts Amendments
of 1975, H.R. Conf. Rep. No. 94–229, at 108 (1975),
reprinted in 1975 U.S.C.C.A.N. 321, 338.
21 See Exchange Act Release No. 12251 (Mar. 24,
1976), 41 FR 13678, 13679 (Mar. 31, 1976) (‘‘1976
Release’’).
22 See Special Study, H.R. Doc. No. 88–95, pt. 2,
at 321.
23 See 1995 Rule Proposal, 60 FR at 9750; Report
of Investigation in the Matter of Investment
Information, Inc. Relating to the Activities of
Certain Investment Advisers, Banks, and BrokerDealers, Exchange Act Release No. 16679, 19 SEC
Docket 926, 931 (Mar. 19, 1980) (‘‘III Report’’); 1976
Release, 41 FR at 13679.
24 Securities Acts Amendments of 1975: Hearings
on S. 249 Before the Subcomm. on Securities of the
Senate Comm. on Banking, Housing, and Urban
Affairs, 94th Cong., 1st Sess. 329–31 (1975) (‘‘S. 249
Hearings’’) (Combined statement of Baker, Weeks &
Co., Inc., Donaldson, Lufkin & Jenrette Sec. Corp.,
Mitchell, Hutchins Inc., and Oppenheimer & Co.).
PO 00000
Frm 00004
Fmt 4701
Sfmt 4702
Exchange Act.25 The safe harbor
provides generally that a money
manager does not breach his fiduciary
duties under state or federal law solely
on the basis that the money manager has
paid brokerage commissions to a brokerdealer for effecting securities
transactions in excess of the amount
another broker-dealer would have
charged, if the money manager
determines in good faith that the
amount of the commissions paid is
reasonable in relation to the value of the
brokerage and research services
provided by such broker-dealer.
As fiduciaries, money managers are
obligated to act in the best interest of
their clients, and cannot use client
assets (including client commissions) to
benefit themselves, absent client
consent.26 Money managers who obtain
brokerage and research services with
client commissions do not have to
purchase those services with their own
funds, which creates a conflict of
interest for the money managers.
Section 28(e) addresses this conflict by
permitting money managers to pay
higher commissions on behalf of a client
than otherwise are available to obtain
brokerage and research services, if
managers make their good faith
determination regarding the
reasonableness of commissions paid.27
25 See Securities Acts Amendments of 1975, Pub.
L. 94–29, 89 Stat. 97, 161–62 (1975). Section 28(e)
[15 U.S.C. 78bb(e)] governs the conduct of all
persons who exercise investment discretion with
respect to an account, including investment
advisers, mutual fund portfolio managers,
fiduciaries of bank trust funds, and money
managers of pension plans and hedge funds. The
scope of Section 28(e) therefore extends to entities
that are within the jurisdiction of the Board of
Governors of the Federal Reserve, the Office of the
Comptroller of the Currency, the Department of
Labor, and the Office of Thrift Supervision.
26 See supra note 3.
27 The Commission has interpreted Section 28(e)
as encompassing client commissions on agency
transactions and fees on certain riskless principal
transactions that are reported under NASD trade
reporting rules. Exchange Act Release No. 45194
(Dec. 27, 2001), 67 FR 6, 7 (Jan. 2, 2002) (‘‘2001
Release’’). Managers may not use client funds to
obtain brokerage and research services under the
safe harbor in connection with fixed income trades
that are not executed on an agency basis, principal
trades (except for certain riskless principal trades),
or other instruments traded net with no explicit
commissions.
Further, transactions for which the client has
directed the money manager to a particular broker
in order to recapture a portion of the commission
for that client or to pay expenses of that client such
as sub-transfer agent fees, consultants’ fees, or
administrative services fees generally do not raise
the types of conflicts for the money manager that
the safe harbor of Section 28(e) was designed to
address. See, e.g., 1986 Release, 51 FR at 16011.
These types of directed brokerage arrangements
typically involve use of a client’s commission
dollars to obtain services that directly and
exclusively benefit the client. See Payment for
Investment Company Services with Brokerage
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
Conduct not protected by Section 28(e)
may constitute a breach of fiduciary
duty as well as a violation of the federal
securities laws, particularly the
Advisers Act 28 and the Investment
Company Act of 1940 (‘‘Investment
Company Act’’),29 and the Employee
Retirement Income Security Act of 1974
(‘‘ERISA’’).30 In particular, money
managers of registered investment
companies and pension funds subject to
ERISA may violate Section 17(e)(1) of
the Investment Company Act and
ERISA, respectively, unless they satisfy
the requirements of the Section 28(e)
safe harbor.31
rwilkins on PROD1PC63 with RULES_2
B. Previous Commission Guidance on
the Scope of Section 28(e)
The Commission has issued three
interpretive releases under Section 28(e)
and a report pursuant to Section 21(a)
of the Exchange Act that addresses
issues associated with Section 28(e).32
We discuss these below.
Commissions, Securities Act Release No. 7197 (July
21, 1995), 60 FR 38918 (July 28, 1995).
28 15 U.S.C. 80b–1. See 1986 Release, 51 FR at
16008–09 (discussing the principal provisions of
the Advisers Act and rules and forms thereunder
that impose disclosure and other obligations on
investment advisers and related persons).
29 15 U.S.C. 80a–1. See 1986 Release, 51 FR at
16009 (discussing the principal provisions of the
Investment Company Act and rules and forms
thereunder that impose disclosure and other
obligations on investment advisers of registered
investment companies and related persons).
30 Employee Retirement Income Security Act of
1974, 29 U.S.C. 1001. See also Statement of Policies
Concerning Soft Dollar and Directed Commission
Arrangements, ERISA Technical Release No. 86–1,
[1986–87 Decisions] Fed. Sec. L. Rep. ¶ 84,009 (May
22, 1986).
31 Section 17(e)(1) of the Investment Company
Act [15 U.S.C. 80a–17(e)(1)] generally makes it
unlawful for any affiliated person of a registered
investment company to receive any compensation
for the purchase or sale of any property to or for
the investment company when that person is acting
as an agent other than in the course of that person’s
business as a broker-dealer. Essentially, Section
17(e)(1) may be violated if an affiliated person of
a registered investment company, such as an
adviser, receives compensation for the purchase or
sale of property to or from the investment company.
Absent the protection of Section 28(e), an
investment adviser’s receipt of compensation under
a client commission arrangement for the purchase
or sale of any property, including securities, for or
to the investment company may constitute a
violation of Section 17(e)(1). See U.S. v. Deutsch,
451 F.2d 98, 110–11 (2d Cir. 1971), cert. denied,
404 U.S. 1019 (1972). If a client commission
arrangement is not consistent with Section 28(e),
disclosure of the arrangement would not cure any
Section 17(e)(1) violation. See 1986 Release, 51 FR
at 16010 n.55.
32 See 2001 Release; 1986 Release; 1976 Release;
III Report. In addition, the Commission has charged
money managers and broker-dealers with violations
of the federal securities laws in circumstances in
which they did not act within the safe harbor and
defrauded investors. See, e.g., Portfolio Advisory
Services, LLC, and Cedd L. Moses, Advisers Act
Release No. 2038, 77 SEC Docket 2759–31 (June 20,
2002); Dawson-Samberg Capital Management, Inc.
and Judith A. Mack, Advisers Act Release No. 1889,
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
1. 1976 Release
In 1976, the Commission issued an
interpretive release stating that the safe
harbor did not protect ‘‘products and
services which are readily and
customarily available and offered to the
general public on a commercial
basis.’’ 33 The Commission identified
these products and services as examples
of excluded items: ‘‘newspapers,
magazines and periodicals, directories,
computer facilities and software,
government publications, electronic
calculators, quotation equipment, office
equipment, airline tickets, office
furniture and business supplies.’’ 34
In that release, the Commission also
admonished money managers not to
direct broker-dealers to make ‘‘give-up’’
payments, in which the money manager
asked the broker-dealer, retained to
effect a transaction for the account of a
client, to ‘‘give up’’ part of the
commission negotiated by the brokerdealer and the money manager to
another broker-dealer designated by the
money manager for whom the executing
or clearing broker is not a normal and
legitimate correspondent. The
Commission stated that in order to be
within the definition of ‘‘brokerage and
research services’’ under Section 28(e),
‘‘it was intended * * * that a research
service paid for in commissions by
accounts under management be
provided by the particular broker which
executed the transactions for those
accounts.’’ 35 At the same time, the
Commission acknowledged the value of
third-party research by stating that,
‘‘under appropriate circumstances,
[Section 28(e) might] be applicable to
situations where a broker provides a
money manager with research produced
by third parties.’’ 36 The Commission
emphasized that the money manager
54 SEC 786 (Aug. 3, 2000); Founders Asset
Management LLC and Bjorn K. Borgen, Advisers Act
Release No. 1879, 54 SEC 762 (June 15, 2000);
Marvin & Palmer Associates, Inc., et al., Advisers
Act Release No. 1841, 70 SEC Docket 1643 (Sept.
30, 1999); Fleet Investment Advisors, Inc., Advisers
Act Release No. 1821, 70 SEC Docket 1217 (Sept.
9, 1999); Republic New York Sec. Corp. and James
Edward Sweeney, Exchange Act Release No. 41036,
53 SEC 1283 (Feb. 10, 1999); SEC v. Sweeney
Capital Management, Inc., Litigation Release No.
15664, 66 SEC Docket 1613 (Mar. 10, 1998), 1999
U.S. Dist. LEXIS 22298 (1999) (order granting
permanent injunction and other relief); Renaissance
Capital Advisers, Inc., Advisers Act Release No.
1688, 66 SEC Docket 408 (Dec. 22, 1997); Oakwood
Counselors, Inc., Advisers Act Release No. 1614, 63
SEC Docket 2034 (Feb. 11, 1997); S Squared
Technology Corp., Advisers Act Release No. 1575,
62 SEC Docket 1446 (Aug. 7, 1996); SEC v. Galleon
Capital Mgmt., Litigation Release No. 14315, 57 SEC
Docket 2593 (Nov. 1, 1994).
33 1976 Release, 41 FR at 13678.
34 Id.
35 Id. at 13679.
36 Id.
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
41981
‘‘should be prepared to demonstrate the
required good faith determination in
connection with the transaction.’’ 37
2. Report in the Matter of Investment
Information, Inc.
In 1980, the Commission issued a
report pursuant to Section 21(a) of the
Exchange Act following an investigation
of Investment Information, Inc.’s (‘‘III’’)
purported client commission
arrangements (‘‘III Report’’). 38 III
managed the client commission
programs of money managers. Typically,
under these arrangements, the money
manager directed brokerage transactions
to broker-dealers that III designated. The
broker-dealers, who provided execution
services only, retained half of each
commission and remitted the balance to
III. III retained a fee (for ‘‘services’’ that
III provided to money managers,
ostensibly for managing the client
commission accounts) and credited a
portion of its commission to the money
manager’s account. The money manager
could either recapture the credited
amount (i.e., receive cash) for the
benefit of his client or use the credit to
purchase research services.39 The
money managers made the arrangements
for acquiring the research services
directly with the service vendors, and III
simply paid the bills for the services as
the money managers requested. The
executing broker-dealers were unaware
of the specific services the money
managers acquired from the vendors. III
was not a registered broker-dealer, and
it did not perform any kind of brokerage
function in the securities transactions.
The Commission found that these
arrangements did not fall within Section
28(e) of the Exchange Act because the
broker-dealers that were ‘‘effecting’’ the
transactions ‘‘in no significant sense
provided the money managers with
research services.’’ 40 They only
executed the transactions and paid a
portion of the commissions to III. The
broker-dealers were not aware of the
specific services that the managers
acquired and did not pay the bills for
these services. The Commission
concluded that, although Section 28(e)
does not require a broker-dealer to
produce research services ‘‘in-house,’’
the services must nevertheless be
37 Id.
38 See
III Report, 19 SEC Docket at 926.
the 1976 standard, the Commission
found that certain services received by some
participating money managers were not research
services because these services were readily and
customarily available and offered to the general
public on a commercial basis. These included such
items as periodicals, newspapers, quotation
equipment, and general computer services. See III
Report, 19 SEC Docket at 931 n.17.
40 Id. at 931–32.
39 Applying
E:\FR\FM\24JYR2.SGM
24JYR2
41982
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
rwilkins on PROD1PC63 with RULES_2
‘‘provided by’’ the broker-dealers. The
Commission found that a broker-dealer
is not providing research services when
it pays obligations the money manager
owes to a third party. The Commission
indicated that, consistent with Section
28(e), broker-dealers could arrange to
have the third-party research provided
directly to the money manager, with the
payment obligation falling on the
broker-dealer.41
3. 1986 Release
Following a staff examination of
client commission practices in 1984–
1985, the Commission concluded that
the 1976 standard was ‘‘difficult to
apply and unduly restrictive in some
circumstances,’’ particularly as the
types of research products and their
method of delivery had proliferated and
become more complex.42 The
Commission expressed concern that
‘‘uncertainty about the standard may
have impeded money managers from
obtaining, for commission dollars, goods
and services’’ that they believed were
important to making investment
decisions.43
The Commission withdrew the 1976
standard and construed the safe harbor
to be available to research services that
satisfy the statute’s definition of
‘‘brokerage and research services’’ in
Section 28(e)(3) and provide ‘‘lawful
and appropriate assistance to the money
manager in the performance of his
investment decision-making
responsibilities.’’ 44 We concluded that a
product or service that was readily and
customarily available and offered to the
general public on a commercial basis
nevertheless could constitute research.
The 1986 Release also re-affirmed that,
under appropriate circumstances,
money managers may use client
commissions to obtain third-party
research (i.e., research produced by
someone other than the executing
broker-dealer).45 The 1986 Release also
emphasized the importance of written
disclosure of client commission
arrangements to clients and reiterated a
money manager’s duty to seek best
execution.
The 1986 Release also introduced the
concept of ‘‘mixed use.’’ In many cases,
a product or service obtained using
client commissions may serve functions
that are not related to the investment
decision-making process, such as
accounting or marketing. Management
information services, which may
at 932.
42 1986 Release, 51 FR at 16005.
43 Id. at 16005–06.
44 Id. at 16006.
45 Id. at 16007.
18:30 Jul 21, 2006
4. 2001 Release
Until 2001, the Commission
interpreted Section 28(e) to be available
only for research and brokerage services
obtained in relation to commissions
paid to a broker-dealer acting in an
‘‘agency’’ capacity.50 That interpretation
meant that money managers could not
rely on the safe harbor for research and
brokerage services obtained in relation
to fees charged by market makers when
they executed transactions in a
‘‘principal’’ capacity. The Commission
interpreted the term ‘‘commission’’ in
Section 28(e) in this fashion because, in
the Commission’s view, fees on
principal transactions were not
quantifiable and fully disclosed in a
46 Id.
at 16006.
47 Id.
49 Id.
at 16007.
2001 Release, 67 FR at 6; 1995 Rule
Proposal, 60 FR at 9751 n.10; Investment Company
Act Release No. 20472 (Aug. 11, 1994), 59 FR
42187, 42188 n.3 (Aug. 17, 1994).
50 See
Jkt 208001
way that would permit a money
manager to determine that the fees were
reasonable in relation to the value of
research and brokerage services
received.51
In 2001, the Nasdaq Stock Market
asked the Commission to reconsider this
interpretation of Section 28(e) to apply
also to research and brokerage services
obtained in relation to fully and
separately disclosed fees on certain
riskless principal transactions effected
by National Association of Securities
Dealers, Inc. (‘‘NASD’’) members and
reported under NASD trade reporting
rules.52 Based on required disclosure of
fees under confirmation rules and
reporting of the trade under NASD
rules, the Commission determined that
the money manager could make the
necessary determination of the
reasonableness of these charges under
Section 28(e). The Commission
therefore modified its interpretation of
‘‘commission’’ for purposes of the
Section 28(e) safe harbor to encompass
fees paid for riskless principal
transactions in which both legs are
executed at the same price and the
transactions are reported under the
NASD’s trade reporting rules.53
C. 1998 Office of Compliance
Inspections and Examinations Report
In 1998, after OCIE conducted
examinations of approximately 355
broker-dealers, advisers, and funds, the
Commission published the staff’s report,
which described the range of products
and services that advisers obtain under
their client commission arrangements.54
The report raised concerns about the
nature of products and services that
were being treated as ‘‘research,’’ the
purchase of ‘‘mixed-use’’ items,
disclosure by advisers about their client
commission arrangements, and
recordkeeping.55 The 1998 OCIE Report
made several recommendations for
improving commission practices,
including that the Commission provide
further guidance on the scope of the safe
harbor and require better recordkeeping
and enhanced disclosure of client
commission arrangements and
transactions.56
51 2001
Release, 67 FR at 7.
Letter from Hardwick Simmons, Chief
Executive Officer, The Nasdaq Stock Market, Inc. to
Harvey L. Pitt, Chairman, U.S. Securities and
Exchange Commission (Sept. 7, 2001) (on file with
the Commission).
53 2001 Release, 67 FR at 7.
54 See 1998 OCIE Report, at 3.
55 1998 OCIE Report, at 4–5.
56 Id. at 47–52.
52 See
48 Id.
41 Id.
VerDate Aug<31>2005
integrate trading, execution, accounting,
recordkeeping, and other administrative
matters such as measuring the
performance of accounts, were noted as
an example of a product that may have
a mixed use. The Commission indicated
that where a product has a mixed use,
an investment manager should make a
reasonable allocation of the cost of the
product according to its use, and should
keep adequate books and records
concerning the allocations.46 The
Commission also noted that the
allocation decision itself poses a conflict
of interest for the money manager that
should be disclosed to the client. In the
1986 Release, the Commission stated
that a money manager may use client
commissions pursuant to Section 28(e)
to pay for the portion of a service or
specific component that assists him in
the investment decision-making
process, but he cannot use client
commissions to pay for that portion of
a service that provides him
administrative assistance.47
The 1986 Release also addressed
third-party research. Citing to the III
Report, the Commission reaffirmed its
view that, ‘‘while a broker may under
appropriate circumstances arrange to
have research materials or services
produced by a third party, it is not
’providing’ such research services when
it pays obligations incurred by the
money manager to the third party.’’ 48 In
the III Report, the Commission found
that the money managers and the
research vendors, rather than the brokerdealers, had made all of the
arrangements for acquiring the
services.49
PO 00000
Frm 00006
Fmt 4701
Sfmt 4702
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
rwilkins on PROD1PC63 with RULES_2
D. Report of the NASD’s Mutual Fund
Task Force
In 2004, the NASD Mutual Fund Task
Force, composed of senior executives
from mutual fund management
companies and broker-dealers, as well
as representatives from the academic
and legal communities, published
observations and recommendations to
the Commission concerning client
commission practices and portfolio
transaction costs.57 In particular, the
NASD Task Force Report recommended
that the Section 28(e) safe harbor be
retained, but that the interpretation of
the scope of research services be
narrowed to better tailor it to the types
of client commission services that
principally benefit the adviser’s clients
rather than the adviser.58 The NASD
Task Force Report recommended that
the Commission interpret the safe
harbor to protect only brokerage services
as described in Section 28(e)(3) and the
‘‘intellectual content’’ of research, but
not the means by which such content is
provided.59 The NASD Task Force
Report suggested that this approach
would exclude magazines, newspapers,
and other such publications that are in
general circulation to the retail public,
and such items as computer hardware,
phone lines, and data transmission
lines.60The NASD Task Force Report
emphasized that the safe harbor should
encompass third-party research and
proprietary research on equal terms, and
recommended improved disclosure.61
57 See NASD, Report of the Mutual Fund Task
Force, ‘‘Soft Dollars and Portfolio Transaction
Costs’’ (Nov. 11, 2004) (‘‘NASD Task Force
Report’’), available at https://www.nasd.com/web/
groups/rules_regs/documents/rules_regs/
nasdw_012356.pdf.
58 NASD Task Force Report, at 5.
59 NASD Task Force Report, at 6–7. The Task
Force proposed that ‘‘intellectual content’’ be
defined as ‘‘any investment formula, idea, analysis
or strategy that is communicated in writing, orally
or electronically and that has been developed,
authored, provided or applied by the broker-dealer
or third-party research provider (other than
magazines, periodicals or other publications in
general circulation).’’ Id. at 7.
60 Specifically, the NASD Task Force indicated
that its proposed definition of research services
would exclude the following: Computer hardware
and software, unrelated to any research content or
analytical tool; phone lines and data transmission
lines; terminals and similar facilities; magazines,
newspapers, journals, and on-line news services;
portfolio accounting services; proxy voting services
unrelated to issuer research; and travel expenses
incurred in company visits. NASD Task Force
Report, at 7.
61 Regarding disclosure, the NASD Task Force
Report recommended, among other things: (a)
Ensuring that fund boards obtain information about
a fund adviser’s brokerage allocation practices and
client commission services received; (b) mandating
enhanced disclosure in fund prospectuses to
improve investor awareness; (c) applying disclosure
requirements to all types of commissions; and (d)
enhancing disclosure to investors about portfolio
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
E. United Kingdom Financial Services
Authority (‘‘FSA’’)
On July 22, 2005, the FSA adopted
final client commission rules in
conjunction with issuing policy
statement PS 05/9.62 The final rules
describe ‘‘execution’’ and ‘‘research’’
services and products eligible to be paid
for by commissions, and specify a
number of ‘‘non-permitted’’ services
that must be paid for in hard dollars,
such as custody not incidental to
execution, computer hardware,
telephone lines, and portfolio
performance measurement and
valuation services.63 The policy
statement also acknowledges that some
products and services may be permitted
or non-permitted depending on how
they are used by the money manager.64
The rules became effective beginning in
January 2006, with a transitional period
until June 2006.65
With the globalization of the world’s
financial markets, many U.S. market
participants have a significant presence
abroad, and in particular in the United
Kingdom. To the extent that the
Commission’s approach to client
commissions is compatible with that
taken in the United Kingdom., market
participants’ costs of compliance with
multiple regulatory regimes are reduced.
Therefore, we have taken the FSA’s
work into account in developing our
position in this release, while
transaction costs. NASD Task Force Report, at 4.
See supra note 13.
62 U.K. Financial Services Authority, Policy
Statement 05/9, Bundled Brokerage and Soft
Commission Arrangements: Feedback on CP 05/5
and Final Rules (July 2005) (‘‘FSA Final Rules’’),
available at https://www.fsa.gov.uk/pages/library/
policy/policy/2005/05_09.shtml. The rules apply
only to equity trades and not to fixed income trades.
FSA Final Rules, at Annex, p. 6 (Conduct of
Business Sourcebook Rule 7.18.1). The FSA
proposed the rules in March 2005. See Consultation
Paper 05/5, Bundled Brokerage and Soft
Commission Arrangements: Proposed Rules (Mar.
2005) (‘‘FSA Rule Proposal’’), available at https://
www.fsa.gov.uk/pubs/cp/cp05_05.pdf.
63 See FSA Final Rules, at Annex, pp. 8–9
(Conduct of Business Sourcebook Rules 7.18.4 to
7.18.8). See also FSA Rule Proposal, at 63–64.
64 FSA Final Rules, at 5. The rules also set forth
the principle that investment managers should
inform advisory clients how their commissions are
being spent, and indicate that, in evaluating
compliance with this principle, the FSA will have
regard for the extent to which investment managers
adopt the disclosure standards developed by
industry associations such as the U.K. Investment
Management Association (‘‘IMA’’). See FSA Final
Rules, at Annex, p. 11 (Conduct of Business
Sourcebook Rule 7.18.14). See also Investment
Management Association, Pension Fund Disclosure
Code, Second Edition (Mar. 2005), available at
https://www.investmentuk.org/news/standards/
pfdc2.pdf.
65 FSA Final Rules, at 5. Firms were permitted to
continue to comply with existing rules until the
earlier of the expiration of existing agreements or
June 30, 2006.
PO 00000
Frm 00007
Fmt 4701
Sfmt 4702
41983
recognizing the significant differences
in our governing law and rules, such as
the fact that the United Kingdom. does
not have a statutory provision similar to
Section 28(e).66 This interpretive
guidance is generally consistent with
the FSA’s rules, with a few
exceptions.67
III. Commission’s Interpretive
Guidance
In light of developments in client
commission practices, evolving
technologies, marketplace
developments, the observations of the
staff in examinations of industry
participants, and comments received on
the Proposing Release, we have revisited
our previous guidance as to the meaning
of the phrase ‘‘brokerage and research
services’’ in Section 28(e). After careful
consideration, we are providing a
revised interpretation that replaces
Sections II and III of the 1986 Release.68
Specifically, we are providing guidance
with respect to: (i) The appropriate
framework for analyzing whether a
particular service falls within the
‘‘brokerage and research services’’ safe
harbor; (ii) the eligibility criteria for
‘‘research’’; (iii) the eligibility criteria
for ‘‘brokerage’’; and (iv) the appropriate
treatment of ‘‘mixed-use’’ items. We also
discuss the money manager’s statutory
requirement to make a good faith
determination that the commissions
paid are reasonable in relation to the
value of the brokerage and research
services received. Finally, we are
issuing guidance on third-party research
and client commission arrangements
and are seeking further comment
relating to client commission
arrangements (Section III.I of this
Release).
Section 28(e) applies equally to
arrangements involving client
commissions paid to full service broker66 We have also taken note of the views of other
regulators. See Ontario Securities Commission,
Concept Paper 23–402, Best Execution and Soft
Dollar Arrangements (Feb. 8, 2005), available at
https://www.osc.gov.on.ca/ Regulation/Rulemaking/
Current/Part2/cp_20050204_23402_bestexecution.jsp; Australian Securities and
Investments Commission, Press Release 04–181,
Soft Dollar Benefits Need Clear Disclosure (June 10,
2004), available at https://www.asic.gov.au/asic/
ASIC_PUB.NSF/byid/77D7FCEFB7653EC5
CA256EAF0002F6C2?opendocument.
67 The FSA has determined that market data that
has not been analyzed or manipulated does not
meet the requirements of a research service, but
permits managers to justify using client
commissions to pay for raw data feeds as execution
services. The FSA also has identified subscriptions
for publications and seminar fees as ‘‘nonpermitted’’ services. FSA Final Rules, at 2.15 and
Annex, p. 9 (Conduct of Business Sourcebook Rules
7.18.7, 7.18.8(d), and 7.18.8(e)).
68 Our interpretation does not replace other
sections of the 1986 Release.
E:\FR\FM\24JYR2.SGM
24JYR2
41984
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
services, salaries, and legal and travel
expenses.73
Client commissions are also used
extensively to pay for mechanisms
related to the delivery of research or
brokerage services. In the 1998 OCIE
Report, staff reported that some advisers
used client commissions to pay for
various peripheral items that support
hardware and software, such as the
power needed to run the computer and
the dedicated telephone line used to
receive information into the computer.74
The products and services available to
money managers have grown more
varied and complex. For example, a
single software product may perform an
array of functions, but only some of the
functions are properly ‘‘brokerage and
A. Present Environment
research services’’ under Section 28(e).
In the 1998 OCIE Report, staff reported
In the 1986 Release, the Commission
incorporated from the legislative history that ‘‘the types of products available for
purchase with client commissions have
the phrase ‘‘lawful and appropriate
greatly expanded since 1986,’’ leaving
assistance’’ to the money manager in
industry participants to grapple with
carrying out his investment decisiondecisions as to whether these products
making responsibilities in developing
the Commission standard governing the are ‘‘research’’ or ‘‘brokerage’’ within
the safe harbor, or whether these
range of brokerage and research
products should be considered part of
products and services that may be
money managers’ overhead expenses to
obtained by a money manager within
be paid for by managers with their own
69 Since that time, some
the safe harbor.
funds.75
have construed this standard broadly to
The Commission observes that
apply to services and products that are
developments in technology have led to
only remotely connected to the
investment decision-making process. In difficulties in applying client
commission standards that were
some cases, ‘‘administrative’’ or
developed over the past thirty years. In
‘‘overhead’’ goods and services have
addition, OCIE staff reported that money
70 In the 1998
been classified as research.
managers have taken an overbroad view
OCIE Report, examiners reported that
of the products and services that qualify
28% of the money managers and 35%
as ‘‘brokerage and research services’’
of the broker-dealers that were
under the safe harbor.76 The complexity
examined had entered into at least one
of products and services creates
arrangement that, in the staff’s view,
uncertainty about whether client
was outside of the scope of Section 28(e)
commissions may be used within the
and the 1986 Release.71 In particular,
safe harbor to purchase all or a portion
OCIE examiners identified numerous
of particular products and services. This
examples of advisers that it believed
uncertainty may result in the use of
failed to separate overhead or
client commission dollars to acquire
administrative expenses from those
products and services that are outside of
items that provide benefits to clients as
the safe harbor, improper allocation of
72
brokerage and research services.
research and non-research mixed-use
Examples of non-research items
products and services (as contemplated
included: Chartered financial analyst
by the 1986 Release), or inadequate
(‘‘CFA’’) exam review courses,
documentation of allocations.77
membership dues and professional
Questions regarding the use of client
licensing fees, office rent, utilities,
commissions have led legislators,
phone, carpeting, marketing,
regulators, fund industry participants,
entertainment, meals, copiers, office
and investors to consider whether some
supplies, fax machines, couriers, backup
uses of client commissions should be
generators, electronic proxy voting
banned, the safe harbor withdrawn, or
changes made to the regulatory
69
rwilkins on PROD1PC63 with RULES_2
dealers that provide brokerage and
research services directly to money
managers, and to third-party research
arrangements where the research
services and products are developed by
third parties and provided by a brokerdealer that participates in effecting the
transaction. Today, it remains true that,
if the conditions of the safe harbor of
Section 28(e) are met, a money manager
does not breach his fiduciary duties
solely on the basis that he uses client
commissions to pay a broker-dealer
more than the lowest available
commission rate for a bundle of
products and services provided by the
broker-dealer (i.e,. anything more than
‘‘pure execution’’).
See Senate Comm. on Banking, Housing and
Urban Affairs, Securities Acts Amendments of
1975, S. Rep. No. 94–75, at 71 (1975), reprinted in
1975 U.S.C.C.A.N. 179, 249. See also infra note 82.
70 1998 OCIE Report, at 31.
71 Id. at 22, 31.
72 Id. at 31.
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
PO 00000
73 Id.
at 31–32.
at 34–35.
75 Id. at 49.
76 See id. at 3–4, 31–32.
77 See id. at 4–6, 32–33.
74 Id.
Frm 00008
Fmt 4701
Sfmt 4702
landscape.78 As a step to address the
present environment and comments
received in response to the Proposing
Release, the Commission has
determined to provide further guidance
on the scope of the safe harbor.79
Further guidance in this area may be
particularly important because, under
existing law and rules, money managers
must disclose client commission
arrangements as material information,80
and may provide more detailed
disclosure when they receive products
or services that fall outside the scope of
the safe harbor. If a money manager
incorrectly concludes that a product or
service is within the safe harbor, the
money manager may provide disclosure
that is inadequate. In addition, guidance
will assist money managers of registered
investment companies and pension
funds subject to ERISA in determining
whether they are complying with the
Investment Company Act and ERISA
because using client commissions to pay
for products that are outside the safe
harbor may violate these laws.
B. Framework for Analyzing the Scope
of the ‘‘Brokerage and Research
Services’’ Under Section 28(e)
The Commission has recognized the
need to interpret the scope of the terms
78 See, e.g., Mutual Funds Integrity and Fee
Transparency Act of 2003, H.R. 2420, 108th Cong.
(2003) (This bill would have required, among other
things, that the Commission do the following: Issue
rules requiring mutual funds to disclose their
policies and practices regarding the use of client
commissions to obtain research, advice, or
brokerage activities; issue rules requiring managers
to maintain copies of the written contracts with
third-party research providers; and conduct a study
on the use of client commission arrangements by
managers.); Mutual Fund Transparency Act of 2003,
S. 1822, 108th Cong. (2003) (This bill would have
required, among other things, that the Commission
issue a rule to require mutual funds to disclose as
fund fees and expenses brokerage commissions paid
by the fund and borne by shareholders.).See also
Letter from Matthew P. Fink, President, The
Investment Company Institute, to William H.
Donaldson, Chairman, U.S. Securities and Exchange
Commission (Dec. 16, 2003) (urging the
Commission to issue interpretative guidance
excluding from the Section 28(e) safe harbor: (1)
computer hardware and software and other
electronic communications facilities used in
connection with trading investment decisionmaking; (2) publications, including books,
newspapers, and electronic publications, that are
available to the general public; and (3) third-party
research services), available at https://www.sec.gov/
rules/petitions/petn4-492.htm.
79 In addition to concerns over the scope of the
safe harbor under current market conditions, the
Commission recognizes that improvements may be
necessary in disclosure and documentation of client
commission practices. For example, the ability to
enforce client commission standards may be
hampered by inadequate documentation. The
Commission will evaluate whether further action is
necessary.
80 See Form ADV. Pt. II, Items 12.B and 13.A. See
also Sage Advisory Services LLC, Exchange Act
Release No. 44600, 75 SEC Docket 1073 (July 27,
2001).
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
rwilkins on PROD1PC63 with RULES_2
‘‘brokerage and research services’’ in
Section 28(e) in light of Congress’s
intention to provide a limited safe
harbor for conduct that otherwise may
be a breach of fiduciary duty.81 In the
1986 Release, the Commission adopted
the ‘‘lawful and appropriate assistance’’
standard for ‘‘brokerage and research
services,’’ 82 which was intended to
supplement the statutory elements of
the analysis of whether a money
manager’s payment for a product or
service with client commissions is
within the safe harbor. While the 1986
Release focused on the application of
the ‘‘lawful and appropriate assistance’’
standard to research, we believe the
standard also applies to brokerage
services.
Taking into account the legislative
history of Section 28(e) and our prior
guidance, the analysis of whether a
particular product or service falls within
the safe harbor should involve three
steps.83 First, the money manager must
determine whether the product or
service falls within the specific statutory
limits of Section 28(e)(3) (i.e., whether
it is eligible ‘‘research’’ under Section
28(e)(3)(A) or (B) or eligible ‘‘brokerage’’
under Section 28(e)(3)(C)).84 Second,
81 Senate Comm. on Banking, Housing and Urban
Affairs, Securities Acts Amendments of 1975, S.
Rep. No. 94–75, at 74 (1975), reprinted in 1975
U.S.C.C.A.N. 179, 249.
82 See 1986 Release, 51 FR at 16006 n.9 (quoting
from Senate Comm. on Banking, Housing and
Urban Affairs, Securities Acts Amendments of
1975, S. Rep. No. 94–75, at 71 (1975), reprinted in
1975 U.S.C.C.A.N. 179, 249) (The Report concludes,
‘‘Thus, the touchstone for determining when a
service is within or without the definition in
Section 28(e)(3) is whether it provides lawful and
appropriate assistance to the money manager in the
carrying out of his responsibilities.’’). In articulating
the ‘‘commercial availability’’ standard for safeharbor eligibility in the 1976 Release, the
Commission also expressly recognized ‘‘lawful and
appropriate assistance’’ as the ‘‘touchstone for
whether a service is within or without the provision
of Section 28(e)(3). 1976 Release, 41 FR at 13679.’’
83 In the Commission’s view, the prudent way for
a money manager to meet its burden of showing
eligibility for the safe harbor is to document fully
its client commission arrangements.
84 See 1986 Release, 51 FR at 16006. See also
1976 Release, 41 FR at 13679 (‘‘The term ‘brokerage
and research services’, as used in Section 28(e), is
defined in Section 28(e)(3).’’). Section 28(e)(3) states
that ‘‘a person provides brokerage and research
services insofar as he—(A) furnishes advice, either
directly or through publications or writings, as to
the value of securities, the advisability of investing
in, purchasing, or selling securities, and the
availability of securities or purchasers or sellers of
securities; (B) furnishes analyses and reports
concerning issuers, industries, securities, economic
factors and trends, portfolio strategy, and the
performance of accounts; or (C) effects securities
transactions and performs functions incidental
thereto (such as clearance, settlement, and custody)
or required in connection therewith by rules of the
Commission or a self-regulatory organization of
which such person is a member or person
associated with a member or in which such person
is a participant.’’ 15 U.S.C. 78bb(3)(A)–(C).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
the manager must determine whether
the eligible product or service actually
provides lawful and appropriate
assistance in the performance of his
investment decision-making
responsibilities. Where a product or
service has a mixed use, a money
manager must make a reasonable
allocation of the costs of the product
according to its use. Finally, the
manager must make a good faith
determination that the amount of client
commissions paid is reasonable in light
of the value of products or services
provided by the broker-dealer. 85 We
discuss these statutory elements in more
detail below.
C. Eligibility Criteria for ‘‘Research
Services’’ Under Section 28(e)(3)
In response to the Proposing Release,
nine comment letters supported the
Commission’s proposed narrowing of
the scope of research under Section
28(e).86 Three commenter stated that the
Commission’s approach did not
sufficiently narrow the scope of
‘‘research,’’ 87 while another commenter
recommended that the Commission
improve clarity by providing extensive
lists of research items that are eligible
and ineligible for the Section 28(e) safe
harbor.88 Based on the language of the
statute and our analysis of the
legislative history, and taking into
consideration the comments to the
Proposing Release regarding the types of
products and services paid for and their
uses, we believe that the eligibility
criteria for ‘‘research’’ under the safe
harbor discussed in the Proposing
Release and set forth below represents
the appropriate interpretation of Section
28(e).
The eligibility criteria that govern
‘‘research services’’ are set forth in
Section 28(e)(3) of the Exchange Act:
For purposes of the safe harbor, a person
provides * * * research services insofar as
he—
(A) furnishes advice, either directly or
through publications or writings, as to the
value of securities, the advisability of
investing in, purchasing, or selling securities,
and the availability of securities or
purchasers or sellers of securities;
(B) furnishes analyses and reports
concerning issuers, industries, securities,
economic factors and trends, portfolio
85 15 U.S.C. 78bb(e). See 1986 Release, 51 FR at
16006–07. The Commission also emphasized the
money manager’s disclosure and other obligations
under the federal securities laws, including the
duty to seek best execution of his or her client’s
transactions. Id. at 16007–11.
86 ASIR 1; BNY 1; CFA Institute; FinTech; IMA;
MFDF; NCS; T. Rowe Price; Vanguard.
87 CFA/FD (joint letter); IDC.
88 Notas.
PO 00000
Frm 00009
Fmt 4701
Sfmt 4702
41985
strategy, and the performance of accounts;
* * *. 89
In determining that a particular
product or service falls within the safe
harbor, the money manager must
conclude that it constitutes ‘‘advice,’’
‘‘analyses,’’ or ‘‘reports’’ within the
meaning of the statute and that its
subject matter falls within the categories
specified in Section 28(e)(3)(A) and (B).
With respect to the subject matter of
potential ‘‘research services,’’ we note
that the categories expressly listed in
Section 28(e)(3)(A) and (B) also
subsume other topics related to
securities and the financial markets.90
Thus, for example, a report concerning
political factors that are interrelated
with economic factors could fall within
the scope of the safe harbor. The form
(e.g., electronic, paper, or oral
discussions) of the research is irrelevant
to the analysis of eligibility under the
safe harbor.
In evaluating the statutory language,
the Commission notes that an important
common element among ‘‘advice,’’
‘‘analyses,’’ and ‘‘reports’’ is that each
reflects substantive content—that is, the
expression of reasoning or knowledge.91
Thus, in determining whether a product
or service is eligible as ‘‘research’’ under
Section 28(e), the money manager must
conclude that it reflects the expression
of reasoning or knowledge and relates to
the subject matter identified in Section
28(e)(3)(A) or (B). Traditional research
reports analyzing the performance of a
particular company or stock clearly are
eligible under Section 28(e). Discussions
with research analysts also fall squarely
within the statute because they involve
‘‘furnish[ing] advice * * * directly
* * * as to the * * * advisability of
investing in securities.’’ Thus, they
reflect the expression of reasoning or
knowledge (i.e., furnishing advice)
relating to the statutory subject matter
(i.e., the advisability of investing in
securities). Meetings with corporate
89 15
U.S.C. 78bb(e)(3)(A)–(B) (emphasis added).
Senate Comm. on Banking, Housing and
Urban Affairs, Securities Acts Amendments of
1975, S. Rep. No. 94–75, at 71 (1975), reprinted in
1975 U.S.C.C.A.N. 179, 249 (‘‘[T]he reference [in
Section 28(e)] to economic factors and trends would
subsume political factors which may have
economic implications which may in turn have
implications in terms of the securities markets as
a whole or in terms of the past, present, or future
values of individual securities or groups of
securities.’’). See also S. 249 Hearings, at 329, 330
(Combined statement of Baker, Weeks & Co., Inc.,
Donaldson, Lufkin & Jenrette Sec. Corp., Mitchell,
Hutchins Inc., and Oppenheimer & Co.) (Research
under Section 28(e) should include ‘‘advice and
information on industries, economics, world
conditions, portfolio strategy and other areas.’’).
91 The content may be original research or a
synthesis, analysis, or compilation of the research
of others.
90 See
E:\FR\FM\24JYR2.SGM
24JYR2
41986
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
executives to obtain oral reports on the
performance of a company are eligible
because reasoning or knowledge will be
imparted at the meeting (i.e., reports)
about the subject matter of Section 28(e)
(i.e., concerning issuers). Seminars or
conferences may also be eligible under
the safe harbor if they truly relate to
research, that is, they provide
substantive content relating to the
subject matter in the statute, such as
issuers, industries, and securities.92
Software that provides analyses of
securities portfolios is eligible under the
safe harbor because it reflects the
expression of reasoning or knowledge
relating to subject matter that is
included in Section 28(e)(3)(A) and
(B).93 Corporate governance research
(including corporate governance
analytics) and corporate governance
rating services could be eligible if they
reflect the expression of reasoning or
knowledge relating to the subject matter
of the statute (for example, if they
provide reports and analyses about
issuers, which can have a bearing on the
companies’ performance outlook).94
As noted above, even if the manager
properly concludes that a particular
product or service is an ‘‘analysis,’’
‘‘advice,’’ or ‘‘report’’ that reflects the
expression of reasoning or knowledge, it
is eligible research only if the subject
matter of the product or service falls
within the categories specified in
Section 28(e)(3)(A) and (B). Thus, for
example, consultants’ services may be
eligible for the safe harbor if the
consultant provides advice with respect
to portfolio strategy, but such services
are not eligible if the advice relates to
the managers’ internal management or
operations.
rwilkins on PROD1PC63 with RULES_2
1. Mass-Marketed Publications
The Proposing Release sought
comment on whether the Commission
should provide further guidance
regarding mass-marketed publications.
92 As discussed below, travel and related
expenses (e.g., meals and entertainment) associated
with arranging trips to meet corporate executives or
to attend seminars or conferences are not eligible
under the safe harbor. See 1986 Release, 51 FR at
16007. We note that the FSA has identified
seminars as ‘‘non-permitted’’ services. See FSA
Final Rules, at Annex, p. 9 (Conduct of Business
Sourcebook Rule 7.18.8(d)).
93 See Senate Comm. on Banking, Housing and
Urban Affairs, Securities Acts Amendments of
1975, S. Rep. No. 94–75, at 71 (1975), reprinted in
1975 U.S.C.C.A.N. 179, 249 (‘‘computer analyses of
securities portfolios would * * * be covered’’).
94 This paragraph incorporates responses to
commenters’ requests to clarify the eligibility of the
following: discussions with analysts (T. Rowe
Price); meetings with corporate executives
(Murphy; T. Rowe Price); and corporate governance
research, corporate governance research analytics,
and corporate governance rating services (GMI;
ISS).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
More than half of the commenters who
discussed this issue indicated that massmarketed publications were readily
distinguishable from traditional
research products and should be
excluded from the safe harbor on that
basis.95 Other commenters believed that
mass-marketed publications should be
subjected to the same eligibility criteria
as other forms of research.96
The congressional hearings on the
1975 Amendments and
contemporaneous statements support
the view that ‘‘research services’’
intended to be covered by the safe
harbor are the types that broker-dealers
had historically provided to money
managers during the era of fixed
commissions—exemplified by research
reports produced by Wall Street
brokerage firms—rather than
newspapers, magazines, and other
periodical publications that are in
general circulation to the retail public.97
Accordingly, we believe that Section
95 Bloomberg; CFA/FD; George 2; ICI; IDC; Merrill
Lynch; SIA; T. Rowe Price. Two other commenters
seemed to believe that certain mass-marketed
publications should be included and others
excluded. Charles River; ISITC.
96 ABA; CFA Institute; Commission Direct; Dow
Jones; Reuters; Seward & Kissel. Commission Direct
questioned whether, as a practical matter, managers
will pay for mass-marketed publications under
Section 28(e), noting that money managers that
provide to clients a list of services paid for with
commissions ‘‘will be very reluctant to identify
ubiquitous newspapers or journals.’’
97 S. 249 Hearings, at 201–205 (Statement of Ray
Garrett, Jr., Chairman, U.S. Securities and Exchange
Commission). See also S. 249 Hearings, at 330–31
(Combined statement of Baker, Weeks & Co., Inc.,
Donaldson, Lufkin & Jenrette Sec. Corp., Mitchell,
Hutchins Inc., and Oppenheimer & Co.) (legislation
is necessary to protect professional fiduciary’s
access to broker-generated research.); Harvey E.
Bines, The Law of Investment Management 9–56
(1978); Richard L. Teberg and Mary B. Cane, Paying
Up for Research, 115 Trusts & Estates 62 (January
1976) (‘‘[T]he Wall Street Journal or Fortune * * *
[and other] services, of course, are clearly not
within the congressional purposes of Section 28(e)
since they do not relate to the research or execution
function.’’); A.A. Sommer, Jr., A Glance at the Past,
a Probe of the Future, Address at the MidContinental District of the Securities Industry
Association (Mar. 18, 1976) (‘‘There continues to be
the problem of how the good research capacity of
Wall Street can be compensated and preserved
* * * .’’); James F. Jorden, Paying Up for Research:
A Regulatory and Legislative Analysis, 1975 Duke
L.J. 1103, 1123–24 (1975) (‘‘[A] prudent adviser
* * * cannot use brokerage to purchase * * * a
subscription to the Wall Street Journal.’’). Speaking
just weeks before the safe harbor legislation was
signed into law, Commissioner Sommer stated:
‘‘Already we are being asked questions about what
can properly be deemed research for which
business may be allocated or commissions paid
* * * .[F]rankly I don’t think a conscientious,
scrupulous professional needs us to tell him that a
subscription to The Wall Street Journal or Fortune,
or legal or accounting services, or office furniture,
is not the ‘‘research’’ which he can lawfully buy
with his beneficiary’s dollars.’’ A.A. Sommer, Jr.,
Have We Learned Anything? Address at the
Investment Company Institute (May 14, 1975), in
Securities Week, 14 (May 19, 1975).
PO 00000
Frm 00010
Fmt 4701
Sfmt 4702
28(e) should not protect the money
manager’s purchase of publications that
are mass-marketed. Mass-marketed
publications are those publications that
are intended for and marketed to a
broad, public audience. Indicia of these
mass-marketed publications include,
among other things, that they are
circulated to a wide audience, intended
for and marketed to the public, rather
than intended to serve the specialized
interests of a small readership, and have
low cost. These mass-marketed
publications are more appropriately
considered as overhead expenses of
money managers.98
Our conclusion that the safe harbor of
Section 28(e) should not include massmarketed publications does not affect
the eligibility of certain other
publications that qualify as ‘‘research’’
under the guidance above. Indicia of
publications that are not mass-marketed
and could be eligible research under the
safe harbor include, among other things,
that they are marketed to a narrow
audience, directed to readers with
specialized interests in particular
industries, products, or issuers, and
have high cost. For example, financial
newsletters and other financial and
economic publications that are not
targeted to a wide, public audience may
be eligible research under the safe
harbor. Trade magazines and technical
journals concerning specific industries
(e.g., nano-technology) or product lines
(e.g., medical devices) are eligible as
research under Section 28(e) if they are
marketed to, and intended to serve the
interests of a narrow audience (e.g.,
physicians), rather than the general
public.
The method of distribution of a
publication does not determine whether
it is mass-marketed. Thus, whether a
publication is distributed in paper or
electronically does not determine the
availability of the safe harbor. Moreover,
it is the focus of the marketing and not
the availability of the publication that is
an important criterion for determining
the applicability of the safe harbor. Even
if a publication that is marketed to a
narrow audience, such as investment
professionals, can be accessed over the
internet by the general population, this
does not alter its eligibility as research
98 The Commission recognizes that massmarketed publications can play a role in keeping
money managers informed about matters relevant to
the performance of their responsibilities. It is the
Commission’s expectation that money managers
may market their services and receive advisory fees
based on a fundamental level of knowledge about
the industry, which could include review of these
mass-marketed publications. Nonetheless, money
managers should obtain these mass-marketed
publications with their own funds, rather than have
clients pay for them through commissions.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
under Section 28(e). The purpose of
such publications is to reach a small
audience and to serve the specialized
interests of a narrow group.
Accordingly, if these publications
otherwise meet the eligibility criteria for
research (that is, they contain the
expression of reasoning or knowledge
related to the statutory subject matter),
money managers can use client
commissions to pay for them under
Section 28(e).
2. Inherently Tangible Products and
Services
Products or services that do not reflect
the expression of reasoning or
knowledge, including products with
inherently tangible or physical
attributes (such as telephone lines or
office furniture), are not eligible as
research under the safe harbor. We do
not believe that these types of products
and services could be said to constitute
‘‘advice,’’ ‘‘analyses,’’ or ‘‘reports’’
within the meaning of the statute.
Applying this guidance, a money
manager’s operational overhead
expenses do not constitute eligible
‘‘research services.’’ 99 For example,
expenses for travel, entertainment, and
meals associated with attending
seminars, and travel and related
expenses associated with arranging trips
to meet corporate executives, analysts,
or other individuals who may provide
eligible research orally are not eligible
under the safe harbor. Similarly, office
equipment, office furniture and business
supplies, salaries (including research
staff), rent, accounting fees and
software, Web site design, e-mail
software, Internet service, legal
expenses, personnel management,
marketing, utilities, membership dues
(including initial and maintenance fees
paid on behalf of the money manager or
any of its employees to any organization
or representative or lobbying group or
firm), professional licensing fees, and
software to assist with administrative
functions such as managing back-office
functions, operating systems, word
processing, and equipment maintenance
and repair services are examples of
other overhead items that do not meet
the statutory criteria for research set
forth in this release and are not eligible
under the safe harbor.100
99 See
1986 Release, 51 FR at 16006–07.
to the 1998 OCIE Report, advisers
used client commissions to pay for many of these
items. See notes 70–74 and accompanying text. See
also Sage Advisory Services LLC, Exchange Act
Release No. 44600, 75 SEC Docket 1073 (July 27,
2001) (adviser improperly used client commission
credits to pay for undisclosed non-research
business expenses such as legal, accounting, and
back-office record keeping services, payments of
self-regulatory organization (‘‘SRO’’) fees, and rent).
rwilkins on PROD1PC63 with RULES_2
100 According
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
Computer hardware, including
computer terminals,101 and computer
accessories, while they may assist in the
delivery of research, are not eligible
‘‘research services’’ because they do not
reflect substantive content related in
any way to making decisions about
investing.102 Similarly, the peripherals
and delivery mechanisms associated
with computer hardware or associated
with the oral delivery of research,
including telecommunications lines,
transatlantic cables, and computer
cables, are outside the ‘‘research
services’’ safe harbor.103
3. Market Research
Based on the comments we received
in response to the Proposing Release, we
believe that technology now permits
managers to obtain research related to
the market for securities from many
sources and products, and through
many delivery mechanisms, including
order management systems (‘‘OMS’’)
and trade analytical software.104 In
many instances, this ‘‘market research’’
is the type of research report and advice
101 The Proposing Release asked how investors,
money managers, broker-dealers, and others would
be affected by the Commission’s interpretive
guidance that client commissions cannot be used to
obtain computer equipment as research under
Section 28(e). See Proposing Release, Question 2.
Commenters either expressly supported the
proposal to exclude computer equipment from the
safe harbor (Bloomberg; Commission Direct;
E*Trade; IMA; Merrill; Reuters) or indicated that
this position would have minimal impact to
industry participants (Charles River; George 2).
Four commenters sought clarification about
whether computer terminals dedicated to the
transmission of particular research products are
eligible. IMA; Mellon; NCS; STA. For the reasons
explained in this Release, we do not believe that
any computer terminals are eligible ‘‘research’’
under Section 28(e).
102 In 1986, the Commission suggested that
advisers could use client commissions to pay for
the portion of the cost of computers that relate to
receiving research. See 1986 Release, 51 FR at
16006–07. In light of developments in technology
and broad application of the 1986 standard to
products and services that are only remotely
connected to investment decision-making, as
discussed above, we now believe that it is
important to clarify that computers fall outside the
scope of the safe harbor.
103 As indicated above, the products or services
delivered over computer terminals and T–1 lines
may be eligible if they satisfy the criteria set forth
in this Release.
104 Twenty-one commenters to the Proposing
Release indicated that OMS should be eligible
under the safe harbor as brokerage or research.
AmBankers; ASIR 1; BNY; CAPIS; Charles River;
Eze Castle; IAA; ICI; IMA; Interstate; ISITC; ITG;
Mellon; Merrill; Morgan Stanley; NSCP; Rainier;
SIA; STA; UBS; Ward & Smith. Of these, fourteen
commenters proposed that OMS should be eligible
either as research services (if the Commission
determined that they could not be appropriately
analyzed as eligible brokerage) (CAPIS; Eze Castle;
IAA; ICI; Interstate; ISITC; ITG; NSCP; Rainier) or
as undifferentiated ‘‘brokerage and research
services’’ (ASIR 1; BNY 1; Mellon; SIA; Ward &
Smith).
PO 00000
Frm 00011
Fmt 4701
Sfmt 4702
41987
historically provided directly by brokerdealers, such as advice on market color
and execution strategies. Therefore, we
believe that it is appropriate to clarify
that ‘‘advice,’’ ‘‘analyses,’’ and ‘‘reports’’
regarding the market for securities—or
‘‘market research’’—may be eligible
under the safe harbor if they otherwise
satisfy the standards for ‘‘research.’’ For
example, market research that may be
eligible under Section 28(e) can include
pre-trade and post-trade analytics,
software, and other products that
depend on market information to
generate market research, including
research on optimal execution venues
and trading strategies.105 In addition,
advice from broker-dealers on order
execution, including advice on
execution strategies, market color, and
the availability of buyers and sellers
(and software that provides these types
of market research) may be eligible
‘‘research’’ under the safe harbor.
4. Data
The Proposing Release proposed that
data services, including market data,
would be eligible under the safe harbor
if the data reflected substantive content
related to the subject matter categories
identified in Section 28(e). Based on the
comments received on this issue
regarding the content and use of these
products, we believe that the analysis
regarding data set forth in the Proposing
Release is appropriate.106 In our view,
this approach will promote innovation
by money managers who use raw data
to create their own research analytics,
thereby leveling the playing field with
those money managers who buy
finished research, which incorporates
raw data, from others. Additionally, we
believe that excluding market data from
the safe harbor could become
meaningless if it encouraged purveyors
of this information to simply add some
minimal or inconsequential
105 If these products and services also contain
functionality that is not eligible brokerage or
research under the safe harbor, or if the products
and services are eligible brokerage or research but
the money manager does not use them in a way that
provides lawful and appropriate assistance in
investment decision-making, they may be mixeduse items. See infra note 125.
106 Eight commenters expressed views about
market data. ASIR 1; CFA/FD; CFA Institute; IDC;
IMA; Reuters; T. Rowe Price. Of these, four
commenters advocated that data should be
excluded from the safe harbor as overhead. CFA/
FD; IDC; T. Rowe Price. An equal number
supported the proposal to include market data in
the safe harbor as research or as brokerage. ASIR 1;
CFA Institute; IMA; Reuters. A ninth commenter,
the SIA, implicitly endorsed the inclusion of market
data in the safe harbor by describing market data
as part of order management systems that should be
eligible under Section 28(e).
E:\FR\FM\24JYR2.SGM
24JYR2
41988
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
functionality to the data to bring it
within the safe harbor.
Accordingly, with respect to data
services—such as those that provide
market data or economic data—we
believe that such services could fall
within the scope of the safe harbor as
eligible ‘‘reports’’ provided that they
satisfy the subject matter criteria and
provide lawful and appropriate
assistance in the investment decisionmaking process. In the 1986 Release, we
included market data services within
the safe harbor, finding that they serve
‘‘a legitimate research function of
pricing securities for investment and
keeping a manager informed of market
developments.’’ 107 Because market data
contain aggregations of information on a
current basis related to the subject
matter identified in the statute, and in
light of the history of Section 28(e), we
conclude that market data, such as stock
quotes, last sale prices, and trading
volumes, contain substantive content
and constitute ‘‘reports concerning
* * * securities’’ within the meaning of
Section 28(e)(3)(B),108 and thus are
eligible as ‘‘research services’’ under the
safe harbor.109 Other data are eligible
under the safe harbor if they reflect
substantive content—that is, the
expression of reasoning or knowledge—
related to the subject matter identified
in the statute. For example, we believe
that company financial data and
economic data (such as unemployment
and inflation rates or gross domestic
product figures) are eligible as research
under Section 28(e).
rwilkins on PROD1PC63 with RULES_2
5. Proxy Services
The Proposing Release requested
information regarding industry practice
with respect to proxy services (which
include research and voting products
and services provided by ‘‘proxy
service’’ providers). The commenters
that responded to this issue expressed
the view that proxy services should
qualify under the safe harbor depending
on how they are used, and should be
subject to the mixed-use criteria.110
These commenters believe that certain
proxy services should qualify as eligible
107 1986 Release, 51 FR at 16006. We believe that,
in the 1986 Release, the Commission’s indication
that quotation equipment may be eligible under the
safe harbor was intended to address market data.
108 15 U.S.C. 78bb(e)(3)(B).
109 We note that the FSA has determined that,
‘‘Examples of goods or services that relate to the
provision of research that the FSA do not regard as
meeting the requirements of [a research service]
include price feeds or historical price data that have
not been analyzed or manipulated to reach
meaningful conclusions.’’ FSA Final Rules, at
Annex p. 9 (Conduct of Business Sourcebook Rule
7.18.7).
110 ASIR 1; BNY 1; IAA; ICI; ISS; Mellon; Seward
& Kissel.
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
research because they provide
information and analysis that money
managers consider when they determine
the advisability of investing in, or
retaining a position in, a security. Some
of these commenters went further by
suggesting that proxy research services
used by managers in deciding how to
vote proxies should also be eligible
research under the safe harbor.111 All
the commenters on this issue recognize
that proxy services may serve
administrative or other non-research
purposes as well. For example, these
services may assist in receiving ballots,
voting, returning ballots, and reporting
on the votes cast.
As discussed above, in order for an
eligible research product or service to be
within Section 28(e), it must provide the
money manager with lawful and
appropriate assistance in making
investment decisions. This standard
focuses on how the manager uses
eligible research. It is possible that
managers could determine after a
careful analysis that certain proxy
products that contain reports and
analyses on issuers, securities, and the
advisability of investing in securities
may be eligible research that may
provide managers with lawful and
appropriate assistance in investment
decision-making. In contrast, we do not
believe that eligible research that assists
a manager in deciding how to vote
proxy ballots provides the manager
lawful and appropriate assistance in
making decisions about investments for
his clients.
In view of these comments, we
believe that proxy services may be
treated as mixed-use items, as
appropriate.112 Proxy service providers
offer a range of products, some of which
may satisfy the standards set forth in
this Release for eligible ‘‘research’’
under the safe harbor. For example,
reports and analyses on issuers,
securities, and the advisability of
investing in securities that are
transmitted through a proxy service may
be within Section 28(e).113 In contrast,
we believe that products or services
offered by a proxy service provider that
handle the mechanical aspects of voting,
such as casting, counting, recording,
and reporting votes, are administrative
1; ICI; ISS; Mellon; Seward & Kissel.
Section III.F below for a discussion of
mixed-use items.
113 Proxy services may also provide corporate
governance research and corporate governance
rating services. As discussed above, these products
and services may be eligible research under Section
28(e) to the extent that they are used for investment
decision-making but not in connection with voting.
PO 00000
111 BNY
112 See
Frm 00012
Fmt 4701
Sfmt 4702
overhead expenses of the manager and
are not eligible under Section 28(e).
D. Eligibility Criteria for ‘‘Brokerage’’
Under Section 28(e)(3)
We recognize that to the extent that
this interpretive release narrows the
scope of eligible research under the safe
harbor, there is a risk that, without
further guidance on brokerage, some
services and products that were
previously classified as research could
be inappropriately reclassified as
brokerage.114 In 1998, OCIE staff
recommended that the Commission
provide further guidance on the scope of
the safe harbor concerning the use of
items that may facilitate trade
execution, based on examiners’ reports
that
[t]he technological explosion in the money
management industry has been met with an
increasing use of soft dollars to purchase
state-of-the-art computer and
communications systems that may facilitate
trade execution * * *. The use of soft dollars
to purchase these products may present
advisers with questions similar to those
surrounding computers purchased for
research and analysis, i.e., how should an
adviser distinguish between ‘brokerage’
services and ‘overhead’ expenses.115
For these reasons, we are providing the
guidance set forth below to assist money
managers in determining whether items
are eligible as ‘‘brokerage services’’
under the safe harbor.
The Proposing Release discussed a
‘‘temporal’’ standard to distinguish
between brokerage services that are
related to the execution of securities
transactions, which are eligible as
brokerage under the safe harbor, and
those that are overhead expenses, which
are not. Twenty-seven commenters
believe that the safe harbor should
include certain products and services as
eligible ‘‘brokerage.’’ 116 Many of these
commenters advocated expanding the
temporal standard on the front end to
include pre-trade analytics 117 and
114 The NASD Task Force Report made a similar
observation, and recommended that the
Commission ‘‘monitor the use of the safe harbor for
brokerage services for such inappropriate attempts
to maintain the status quo by expanding the
brokerage services aspect of the safe harbor.’’ NASD
Task Force Report, at 7 n.20.
115 1998 OCIE Report, at 35–36, 50.
116 ABA; ASIR 1; Bloomberg; BNY 1; Charles
River; E*Trade; Eze Castle; Fidelity; George 2; ICI;
IMA; ISITC; Interstate Group; ITG; Mellon; Merrill;
MFA; Morgan Stanley; NSCP; Rainier; Reuters;
Seward & Kissel; SIA; STA; T. Rowe Price; UBS;
Ward & Smith. Only two commenters stated that the
proposed brokerage standard was overbroad. CFA/
FD.
117 Bloomberg; E*Trade; George 2; IMA; Interstate
Group; ITG; Mellon; MFA; Morgan Stanley; NSCP;
Reuters; SIA; STA; UBS. In addition, Fidelity
questioned whether the Commission should
exclude all pre-trade services.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
OMS,118 and others suggested
expanding it on the back end to include
long-term custody.119 We considered
these comments and for the reasons
discussed below, we do not believe that
all of the products and services
identified by commenters fit within the
proposed temporal standard, which we
believe reflects an appropriate
interpretation of the scope of
‘‘brokerage’’ services under Section
28(e). As clarified above, we have
determined that market research (which
includes pre- and post-trade analytics,
including trade analytics transmitted
through OMS) may be eligible research
under the safe harbor. In addition, as
explained below, we believe that
Section 28(e) covers short-term custody,
but not long-term custody. Also as
explained, certain functionality
provided through OMS may be eligible
brokerage or research.
Under Section 28(e)(3)(C) of the Act,
a person provides ‘‘brokerage * * *
services’’ insofar as he or she:
Effects securities transactions and performs
functions incidental thereto (such as
clearance, settlement, and custody) or
required in connection therewith by rules of
the Commission or a self-regulatory
organization of which such person is a
member or in which such person is a
participant.120
rwilkins on PROD1PC63 with RULES_2
Section 28(e)(3)(C) describes the
brokerage products and services that are
eligible under the safe harbor. In
addition to activities required to effect
securities transactions, Section
28(e)(3)(C) provides that functions
‘‘incidental thereto’’ are also eligible for
the safe harbor, as are functions that are
required by Commission or SRO rules.
Clearance, settlement, and custody
services in connection with trades
effected by the broker are explicitly
identified as eligible incidental
brokerage services. Therefore, the
following post-trade services relate to
functions incidental to executing a
transaction and are eligible under the
safe harbor as ‘‘brokerage services’’:
post-trade matching of trade
information; other exchanges of
messages among broker-dealers,
custodians, and institutions related to
118 ASIR 1; BNY 1; Charles River; Eze Castle; ICI;
IMA; Interstate Group; ISITC; ITG; Mellon; Morgan
Stanley; NSCP; Rainier; STA; T. Rowe Price; UBS;
Ward & Smith.
119 ASIR 1; Merrill; Morgan Stanley; NSCP; SIA;
STA. Commenters also suggested that the safe
harbor should include the following products and
services as eligible brokerage: advice on market
color (ABA; BNY 1; ITG; Merrill; Seward & Kissel;
SIA; UBS) and indications of interest (ABA; Merrill;
SIA; UBS); capital commitment (BNY 1; SIA; UBS);
and prime brokerage services (including extending
stock loans and margin) (UBS).
120 15 U.S.C. 78bb(e)(3)(C).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
the trade; electronic communication of
allocation instructions between
institutions and broker-dealers; routing
settlement instructions to custodian
banks and broker-dealers’ clearing
agents; and short-term custody related
to effecting particular transactions in
relation to clearance and settlement of
the trade. Similarly, comparison
services that are required by the
Commission or SRO rules are eligible
under the safe harbor. For example, in
certain circumstances, the use of
electronic confirmation and affirmation
of institutional trades is required in
connection with settlement
processing.121
1. Temporal Standard
Guided by the statute and legislative
history, we believe that Congress
intended ‘‘brokerage’’ services under the
safe harbor to relate to the execution of
securities transactions.122 In our view,
brokerage under Section 28(e) should
reflect historical and current industry
practices that execution of transactions
is a process, and that services related to
execution of securities transactions
begin when an order is transmitted to a
broker-dealer and end at the conclusion
of clearance and settlement of the
transaction. We believe that this
temporal standard is an appropriate way
to distinguish between ‘‘brokerage
services’’ that are eligible under Section
28(e) and those products and services,
such as overhead, that are not eligible.
Specifically, for purposes of the safe
harbor, we believe that brokerage begins
when the money manager
communicates with the broker-dealer
for the purpose of transmitting an order
for execution and ends when funds or
securities are delivered or credited to
the advised account or the account
holder’s agent. Unlike brokerage,
research services include services
provided before the communication of
an order. Thus, advice provided by a
broker or trade analytical software that
relates to the subject matter of the
121 See NASD Rule 11860(a)(5); New York Stock
Exchange (‘‘NYSE’’) Rule 387(a)(5); American Stock
Exchange Rule 423(5); Chicago Stock Exchange
Article XV, Rule 5; Pacific Exchange Rule 9.12(a)(5);
Philadelphia Stock Exchange Rule 274(b).
122 See Securities Acts Amendments of 1974, H.R.
5050, 93d Cong. (1974) (House bill on safe harbor
referred to ‘‘brokerage services, including * * *
research or execution services’’); H.R. Rep. No. 93–
1476 (1974) (House Committee Report on H.R. 5050
referred to ‘‘brokerage’’ as ‘‘research and other
services related to the execution of securities
transactions’’); Joint Explanatory Statement of the
Comm. of Conference, Securities Acts Amendments
of 1975, H.R. Conf. Rep. No. 94–229, at 108 (1975),
reprinted in 1975 U.S.C.C.A.N. 321, 338 (House
Conference Report on final House bill on Section
28(e) describes the safe harbor as relating to paying
more than the lowest available price for ‘‘execution
and research services’’).
PO 00000
Frm 00013
Fmt 4701
Sfmt 4702
41989
statute before an order is transmitted
may fall within the research portion of
the safe harbor, but not the brokerage
portion of the safe harbor.123
Under this temporal standard,
communications services related to the
execution, clearing, and settlement of
securities transactions and other
functions incidental to effecting
securities transactions, i.e., connectivity
service between the money manager and
the broker-dealer and other relevant
parties such as custodians (including
dedicated lines between the brokerdealer and the money manager’s order
management system; lines between the
broker-dealer and order management
systems operated by a third-party
vendor; dedicated lines providing direct
dial-up service between the money
manager and the trading desk at the
broker-dealer; and message services
used to transmit orders to broker-dealers
for execution) are eligible under Section
28(e)(3)(C). In addition, trading software
used to route orders to market centers,
software that provides algorithmic
trading strategies, and software used to
transmit orders to direct market access
(‘‘DMA’’) systems are within the
temporal standard and thus are eligible
‘‘brokerage’’ under the safe harbor.124
2. Ineligible Overhead
On the other hand, hardware, such as
telephones or computer terminals,
including those used in connection with
OMS and trading software, are not
eligible for the safe harbor as
‘‘brokerage’’ because they are not
sufficiently related to order execution
and fall outside the temporal standard
for ‘‘brokerage’’ under the safe harbor. In
addition, software functionality used for
recordkeeping or administrative
purposes, such as managing portfolios,
and quantitative analytical software
used to test ‘‘what if’’ scenarios related
to adjusting portfolios, asset allocation,
or for portfolio modeling (whether or
not provided through OMS) do not
qualify as ‘‘brokerage’’ under the safe
harbor because they are not integral to
the execution of orders by the broker123 See supra text accompanying notes 104–105
for discussion of market research that may be
eligible under Section 28(e).
124 Unlike research, brokerage services can
include connectivity services and trading software
where they are used to transmit orders to the
broker, because this transmission of orders has
traditionally been considered a core part of the
brokerage service. We believe that mechanisms to
deliver research, on the other hand, are separable
from the research and the decision-making process.
We understand that OMS may include trading
software used to route orders, provide algorithmic
trading strategies, or transmit orders to DMA
systems or provide connectivity to this software.
Accordingly, these aspects of the OMS may be
eligible brokerage.
E:\FR\FM\24JYR2.SGM
24JYR2
41990
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
dealers, i.e., they fall outside the
temporal standard described above.
Further, managers may not use client
commissions under the safe harbor to
meet their compliance
responsibilities,125 such as: (i)
Performing compliance tests that
analyze information over time in order
to identify unusual patterns, including
for example, an analysis of the quality
of brokerage executions (for the purpose
of evaluating the manager’s fulfillment
of its duty of best execution), an
analysis of the portfolio turnover rate (to
determine whether portfolio managers
are overtrading securities), or an
analysis of the comparative performance
of similarly managed accounts (to detect
favoritism, misallocation of investment
opportunities, or other breaches of
fiduciary responsibilities); (ii) creating
trade parameters for compliance with
regulatory requirements, prospectus
disclosure, or investment objectives; or
(iii) stress-testing a portfolio under a
variety of market conditions or to
monitor style drift. Additionally, trade
financing, such as stock lending fees,
and capital introduction and margin
services are not within the safe harbor
because these services are not
sufficiently related to order
execution.126 Moreover, error correction
trades or related services in connection
with errors made by money managers
are not related to the initial trade for a
client within the meaning of Section
28(e)(3)(C) because they are separate
transactions to correct the manager’s
error, not to benefit the advised account,
and thus error correction functions are
not eligible ‘‘brokerage services’’ under
the safe harbor.127 The products and
services described in this paragraph are
properly characterized as ‘‘overhead,’’
i.e., part of the manager’s cost of doing
rwilkins on PROD1PC63 with RULES_2
125 For
example, to the extent that money
managers use trade analytics, including trade
analytical software to test ‘‘what if’’ scenarios
related to adjusting portfolios, asset allocations, or
portfolio modeling, or OMS both for research and
to assist in fulfilling contractual obligations to the
client or to assess whether they have complied with
their own regulatory or fiduciary obligations such
as the duty of best execution or for other internal
compliance purposes, the trade analytical software
or OMS is a mixed-use product, and managers must
use their own funds to pay for the allocable portion
of the cost of the software or OMS that is not within
the safe harbor because it is attributable to purposes
outside Section 28(e) such as for internal
compliance.
126 Often, advisory clients pay their own trade
financing costs, which provides transparency that is
beneficial to investors and does not necessarily
implicate Section 28(e).
127 We note that the staff has taken a similar
position. See Charles Lerner, Department of Labor,
No-Action Letter (Oct. 25, 1988) (Dept. of Labor
(‘‘DOL’’) sought Commission staff advice regarding
applicability of Section 28(e) to commission
practices discovered by DOL investigators involving
ERISA plans).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
business, and are ineligible under
Section 28(e).
3. Custody
Several commenters asked the
Commission to clarify that custody is
within the safe harbor,128 and several of
these commenters advocated broadly
including long-term custody in Section
28(e), arguing that the statute explicitly
references custody without
limitation.129 On its face, the plain
language of the statute limits the scope
of the safe harbor to custody that is
incidental to effecting securities
transactions. We believe that short-term
custody related to effecting particular
transactions and clearance and
settlement of those trades fits squarely
within the statute because it is tied to
processing the trade between the time
the order is placed and settlement of the
trade. In contrast, long-term custody is
provided post-settlement and relates to
long-term maintenance of securities
positions. Further, we understand that
many money managers and their clients
consider long-term custody to be a
direct benefit to the advisory client and
custody fees to be client expenses. In
fact, advisory clients, rather than money
managers, typically enter into
contractual arrangements directly with
custodians for their services, and many
advisory clients pay for their own longterm custody.130 We believe this is a
healthy approach that provides
transparency. Common industry
practice is that financial firms that do
not execute transactions for the client at
all (e.g., custodian banks) provide this
service, which has no relationship to,
and cannot be considered incidental to,
effecting securities transactions.
Therefore, we believe that custodial
services, such as long-term custody and
1; Merrill; Morgan Stanley; NSCP;
Schwab; SIA; STA; UBS.
129 Merrill; Schwab; SIA. In addition, UBS argued
that the temporal standard is too narrow because
the standard would exclude some important
services, such as custody, that take place after
settlement.
130 See, e.g., Phyllis Feinberg, ‘‘Takeaway Game’’:
Some Custody Banks Create 2-Tiered Bidding
System For Old, New Clients, Pensions and
Investments, Dec. 8, 2003, at 1 (discussing services
and fees custodial banks charge their clients, such
as Indiana State Teachers’ Retirement System or the
New Mexico Board of Finance). In addition,
registered investment companies must disclose the
amount of fees and expenses paid in connection
with custody of investments. See Form N–1A, Item
23(g)( Registered investment companies must attach
custodian agreements and depository contracts
concerning the fund’s securities and similar
investments, including the schedule of
remuneration, as an exhibit to the registration
statement.); Regulation S–X 210.6–07 (requiring
that registered investment companies describe in
the statement of operations the total amount of fees
and expenses in connection with custody of
investments).
PO 00000
128 ASIR
Frm 00014
Fmt 4701
Sfmt 4702
custodial recordkeeping, provided in
connection with accounts after
clearance and settlement of transactions,
are not incidental to effecting securities
transactions and are services provided
to the adviser’s client, for the benefit of
the client. As such, payment for a
client’s long-term custody and custodial
recordkeeping with that client’s
commissions does not implicate Section
28(e).131
E. Lawful and Appropriate Assistance
In order for a product or service to be
within the safe harbor, eligible research
must not only satisfy the specific
criteria of the statute, but it also must
provide the money manager with lawful
and appropriate assistance in making
investment decisions. This standard
focuses on how the manager uses the
eligible research. For example, some
money managers appear to be using
client commissions to pay for analyses
of account performance that are used for
marketing purposes.132 Although
analyses of the performance of accounts
are eligible research items because they
reflect the expression of reasoning or
knowledge regarding subject matter
included in Section 28(e)(3)(B), these
items when used for marketing purposes
are not within the safe harbor because
they are not providing lawful and
appropriate assistance to the money
manager in performing his investment
decision-making responsibilities.133
As with research, in order to obtain
safe harbor protection for products and
services that are eligible as brokerage,
the money manager must be able to
show that the eligible product or service
provides him or her lawful and
appropriate assistance in carrying out
the manager’s responsibilities.
F. ‘‘Mixed-Use’’ Items
As discussed above, the 1986 Release
introduced the concept of ‘‘mixed
use.’’ 134 Where a product or service
obtained with client commissions has a
mixed use, a money manager faces an
additional conflict of interest in
obtaining that product with client
commissions.135 The 1986 Release
131 In some cases, we understand that advisory
clients may pay for long-term custodial services
through directed brokerage. See discussion of
directed brokerage, supra note 27.
132 See 1998 OCIE Report, at 20.
133 As discussed below in the mixed-use section,
if the manager uses account performance analyses
for both marketing purposes and investment
decision-making, the manager may use client
commissions only to pay for the allocable portion
of the item attributable to use for investment
decision-making under Section 28(e). See infra
Section III.F.
134 See 1986 Release, 51 FR at 16007.
135 Id. at 16006–07.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
stated that where a product has a mixed
use, a money manager should make a
reasonable allocation of the cost of the
product according to its use, and
emphasized that the money manager
must keep adequate books and records
concerning allocations so as to be able
to make the required good faith
determination.136 Moreover, the
allocation determination itself poses a
conflict of interest for the money
manager that should be disclosed to the
client.137 It appears that, in practice,
some managers may have made
questionable mixed-use allocations and
failed to document the bases for their
allocation decisions.138 Lack of
documentation makes it difficult for the
manager to make the required good faith
showing of the reasonableness of the
commissions paid in relation to the
value of the portion of the item
allocated as brokerage and research
under Section 28(e), and also makes it
difficult for compliance personnel to
ascertain the basis for the allocation.139
The Proposing Release asked whether
the Commission should provide
additional guidance on the allocation
and documentation of mixed-use
items.140
Twenty-seven commenters submitted
comments that touched upon the
concept of mixed use.141 Most of those
commenters endorsed the mixed-use
concept by recommending that the
Commission consider particular
products as mixed-use items.142 For
example, commenters indicated that the
following products and services may be
mixed-use products: trade analytical
software (which may sometimes be put
to administrative use); 143 proxy voting
services; 144 and OMS.145
We continue to believe that the
‘‘mixed-use’’ approach is appropriate. In
that connection, we reiterate today the
136 Id.
137 Id.
at 16006 n.13.
OCIE Report, at 32–34.
138 1998
139 Id.
140 See
Proposing Release, Question 8.
Bloomberg; BNY 1; CAPIS; CFA
Institute; DOL; E*Trade; IAA; ICI; IMA; Interstate
Group; ISITC; ISS; ITG; Mellon; Merrill; MFA;
Morgan Stanley; NSCP; Rainier; Schwab; Seward &
Kissel; SIA; STA; T. Rowe Price; UBS; Ward &
Smith.
142 Bloomberg; BNY 1; CAPIS; CFA Institute;
DOL; E*Trade; IAA; ICI; IMA; Interstate Group;
ISITC; ISS; ITG; Mellon; Merrill; Rainier; Seward &
Kissel; SIA; T. Rowe Price. The remaining eight
commenters endorsed the concept of mixed use
with little discussion. AmBankers; MFA; Morgan
Stanley; NSCP; Schwab; STA; UBS; Ward & Smith.
143 Bloomberg; E*Trade; IAA; Merrill; SIA.
144 ASIR 1; BNY 1; IAA; ICI; ISS; Mellon; Seward
& Kissel.
145 BNY 1; CAPIS; IAA; ICI; IMA; Interstate
Group; ISITC; ITG; Mellon; Merrill; Morgan Stanley;
Rainier; SIA; T. Rowe Price.
rwilkins on PROD1PC63 with RULES_2
141 AmBankers;
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
Commission’s guidance provided in the
1986 Release regarding the mixed-use
standard: 146 ‘‘The money manager must
keep adequate books and records
concerning allocations so as to be able
to make the required good faith
showing.’’ 147 As stated above, the
mixed-use approach requires a money
manager to make a reasonable allocation
of the cost of the product according to
its use. For example, an allocable
portion of the cost of portfolio
performance evaluation services or
reports may be eligible as research, but
money managers must use their own
funds to pay for the allocable portion of
such services or reports that is used for
marketing purposes.148
G. The Money Manager’s Good Faith
Determination as to Reasonableness
Under Section 28(e)
Section 28(e) requires money
managers who are seeking to avail
themselves of the safe harbor to make a
good faith determination that the
commissions paid are reasonable in
relation to the value of the brokerage
and research services received.149 None
of the commenters questioned the good
faith determination requirement under
the safe harbor. The Commission
reaffirms the money manager’s essential
obligation under Section 28(e) to make
this good faith determination. The
burden of proof in demonstrating this
determination rests on the money
manager.150
146 As noted above, this interpretation replaces
Sections II and III of the 1986 Release.
147 1986 Release, 51 FR at 16006. The
Commission may further address the
documentation of mixed-use items at a later time.
148 In allocating costs for a particular product or
service, a money manager should make a good faith,
fact-based analysis of how it and its employees use
the product or service. It may be reasonable for the
money manager to infer relative costs from relative
benefits to the firm or its clients. Relevant factors
might include, for example, the amount of time the
product or service is used for eligible purposes
versus non-eligible purposes, the relative utility
(measured by objective metrics) to the firm of the
eligible versus non-eligible uses, and the extent to
which the product is redundant with other products
employed by the firm for the same purpose.
149 As we noted in 1986, ‘‘[a] money manager
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
money manager. * * * [T]he determinative factor is
not the lowest possible commission cost but
whether the transaction represents the best
qualitative execution for the managed account.’’
1986 Release, 51 FR at 16011. See also supra note
6.
150 See House Comm. on Interstate and Foreign
Commerce, Securities Acts Amendments of 1975,
H.R. No. 94–123, at 95 (1975). The report states that:
‘‘It is, of course, expected that money managers
paying brokers an amount [of commissions] which
is based upon the quality and reliability of the
PO 00000
Frm 00015
Fmt 4701
Sfmt 4702
41991
A money manager satisfies Section
28(e) if he or she can demonstrate that
the item is eligible under the language
of the statute, the manager has used the
item in performing investment decisionmaking responsibilities for accounts
over which he exercises investment
discretion, and, in good faith, the
manager believes that the amount of
commissions paid is reasonable in
relation to the value of the research or
brokerage product or service received,
either in terms of the particular
transaction or the manager’s overall
responsibilities for discretionary
accounts.151 Thus, for example, a money
manager may purchase an eligible item
of research with client commissions if
he or she properly uses the information
in formulating an investment decision,
but another money manager cannot rely
on Section 28(e) to acquire the very
same item if the manager does not use
the item for investment decisions or if
the money manager determines that the
commissions paid for the item are not
reasonable with respect to the value of
the research or brokerage received.
Similarly, a money manager may not
obtain eligible products, such as market
data, to camouflage the payment of
higher commissions to broker-dealers
for ineligible services, such as shelf
space or client referrals.152 In this
instance, the money manager could not
make the determination, in good faith,
that the commission rate was reasonable
in relation to the value of the Section
28(e) eligible products because the
commission would incorporate a
payment to the broker-dealer for the
non-Section 28(e) services. Further, if
research products or services that are
eligible under Section 28(e)(3) have
been simply copied, repackaged, or
aggregated, the money manager must
make a good faith determination that
any additional commissions paid in
respect of such copying, repackaging, or
aggregation services are reasonable.
Finally, where a broker-dealer also
offers its research for an unbundled
price, that price should inform the
money manager as to its market value
broker’s services including the availability and
value of research, would stand ready and be
required to demonstrate that such expenditures
were bona fide.’’ See also 1986 Release, 51 FR at
16006–16007.
151 If the money manager seeks the protection of
the safe harbor, he or she should take care to
analyze whether products and services provided by
a broker-dealer and used in connection with
advised accounts satisfy the eligibility and use
standards for the safe harbor.
152 Rule 12b–1(h) under the Investment Company
Act prohibits funds from using brokerage to pay for
distribution. See Investment Company Act Release
No. 26591 (Sept. 2, 2004), 69 FR 54728 (Sept. 9,
2004).
E:\FR\FM\24JYR2.SGM
24JYR2
41992
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
and help the manager make its good
faith determination.
H. Third-Party Research
The Proposing Release asked whether
the Commission’s discussion of thirdparty research offered sufficient
guidance in this area.153 Regarding
third-party research, several
commenters expressly endorsed the
Commission’s view that independent
research providers should be accorded
equal treatment with proprietary
research providers.154 None of the
commenters disputed this point.
Accordingly, we reiterate our views on
this issue below.
Third-party research arrangements
can benefit advised accounts by
providing greater breadth and depth of
research. First, these arrangements can
provide money managers with the
ability to choose from a broad array of
independent research products and
services. Second, the manager can use
third-party arrangements to obtain
specialized research that is particularly
beneficial to the advised accounts. We
believe that the safe harbor encompasses
third-party research and proprietary
research on equal terms.
I. Client Commission Arrangements
Under Section 28(e)
The Proposing Release asked whether
the Commission’s discussion of
arrangements under Section 28(e)
offered sufficient guidance in this
area.155 We received a substantial
number of comments on industry
practices related to client commission
arrangements under Section 28(e).156
Based on these comments and for the
reasons discussed below, we are
modifying our interpretation of
‘‘provided by’’ and ‘‘effecting’’ under
Section 28(e).157 In order to determine
153 See
Proposing Release, Question 5.
Bloomberg; BNY 1; Investorside.
155 See Proposing Release, Question 5.
156 BNY 1; Bloomberg; CL King; Commission
Direct; CAPIS; E*Trade; EuroIRP; Instinet; Interstate
Group; IAA; ICI; IMA; JP Morgan 1 and JP Morgan
2; Mellon; Merrill; Morgan Stanley; NSCP; Reuters;
Riedel; SIA; STA; T. Rowe Price; UBS; George 1,
George 2, and George 3.
157 157 Section 28(e)(1) states in relevant part:
‘‘No person * * * shall be deemed to have acted
unlawfully or to have breached a fiduciary duty
* * * solely by reason of his having caused the
account to pay a member of an exchange, broker,
or dealer an amount of commission for effecting a
securities transaction in excess of the amount of
commission another member of an exchange,
broker, or dealer would have charged for effecting
that transaction, if such person determined in good
faith that such amount of commission was
reasonable in relation to the value of the brokerage
and research services provided by such member,
broker, or dealer, viewed in terms of either that
particular transaction or his overall responsibilities
with respect to the accounts as to which he
rwilkins on PROD1PC63 with RULES_2
154 AmBankers;
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
whether our guidance requires further
clarification, we are soliciting additional
comment on our revised interpretation
of the safe harbor with respect to client
commission arrangements under
Section 28(e).
Twenty-four commenters addressed
arrangements under Section 28(e).158
Although some commenters supported
the Commission’s guidance with respect
to Section 28(e) arrangements,159 others
expressed concern that the proposal
(and, in particular, the requirement that
introducing broker-dealers must
perform certain minimum functions in
order to ‘‘provide’’ research under the
safe harbor) could have unwarranted
and harmful policy consequences, such
as reducing independent research and
increasing the costs that the clients of
money managers pay for brokerage and
research.160 Some of the commenters
that objected to the proposed approach
on this issue stated that some
introducing broker-dealers that facilitate
access to valuable research may not
satisfy the minimum requirements that
the Release would impose, and may
have to discontinue operations. They
recommended that the Commission
eliminate the minimum requirements or
modify them so that introducing brokerdealers can more easily satisfy them. In
addition, several commenters asked the
Commission to consider a broader
interpretation of the ‘‘provided by’’
concept under Section 28(e).161 These
commenters argued that Section 28(e)
arrangements have become more
complex and less transparent than if
broker-dealers were permitted to engage
in these arrangements unencumbered by
the requirement that the broker
‘‘effecting’’ the transaction also must be
‘‘providing’’ the research. Both groups
of commenters recommended that the
Commission interpret Section 28(e) to
allow money managers the maximum
flexibility to seek best execution and,
separately, obtain good research, by
exercises investment discretion.’’ 15 U.S.C.
78bb(e)(1) (emphasis added).
158 BNY 1; Bloomberg; CL King; Commission
Direct; CAPIS; E*Trade; EuroIRP; Instinet; Interstate
Group; IAA; ICI; IMA; JP Morgan 1 and JP Morgan
2; Mellon; Merrill; Morgan Stanley; NSCP; Reuters;
Riedel; SIA; STA; T. Rowe Price; UBS; George 1,
George 2, and George 3.
159 BNY 1; George 2; Interstate; Reuters.
160 Bloomberg; CAPIS; E*Trade; EuroIRP; ICI;
Instinet; IMA; NSCP; JP Morgan 1; Riedel; STA;
SIA; Merrill; Morgan Stanley. These commenters
noted that investors’ costs could increase if
introducing broker-dealers must add staff and/or
trading desks to fulfill the minimum requirements
and raise their fees accordingly. Implicit transaction
costs could also increase if these broker-dealers
build trade execution capabilities so that they
satisfy the four minimum criteria but are inexpert
at execution.
161 Commission Direct; EuroIRP; IMA; T. Rowe
Price.
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
permitting a broker to be responsible for
execution and another party to be
responsible for providing eligible
research.
In addition, several commenters noted
that the United Kingdom’s regulatory
efforts in this area allow money
managers to use client commissions to
pay separately for trade execution by the
broker-dealer that can provide the best
execution and ask the executing brokerdealer to allocate a portion of the
commission directly to an independent
research provider or allocate a portion
of the commission to a pool of ‘‘credits’’
maintained by the broker-dealer and
from which the broker-dealer, at the
direction of the money manager, may
pay independent research providers,
without requiring that the executing
broker-dealer be legally responsible for
the research.162 As noted above, some
commenters believed that Section 28(e)
arrangements in the United States
reflect a market inefficiency if the
manager seeks to use client
commissions to pay for research under
Section 28(e) and uses this middle-man
to access independent research
providers.
These comments highlight the
considerable variety of arrangements
under Section 28(e) that the industry
has developed to seek to obtain the
benefits that inure to investors from best
execution on orders for advised
accounts and providing money
managers with both third-party and
proprietary brokerage and research
products and services of value to the
advised accounts. Based on the
additional information regarding current
industry practices provided by these
comments and consideration of
congressional intent behind Section
28(e), we are revising our interpretation
of the safe harbor to address the
industry’s innovative Section 28(e)
arrangements and permit the industry to
flexibly structure arrangements that are
consistent with the statute and best
serve investors. We are soliciting
additional comment on client
commission arrangements under the
safe harbor because of the many
variations and complexity of these
arrangements. In particular, we solicit
comment on whether this guidance is
sufficient to address this area.
162 Commission Direct; EroIRP; IMA; JP Morgan 1.
In addition the SIA expressed concern over crossborder harmonization, noting that the Commission’s
four minimum functions for introducing brokerdealers may impose stricter requirements than those
in place in the U.K. with respect to client
commission arrangements.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
1. Statutory Linkage Between ‘‘Provided
by’’ and ‘‘Effecting’’
Section 28(e) requires that the brokerdealer providing the research also be
involved in effecting the trade.163 The
statutory linkage of the ‘‘provided by’’
and ‘‘effecting’’ elements in Section
28(e) was principally intended to
preclude the practice of paying ‘‘giveups.’’ 164 Specifically, when brokerage
commissions were fixed before 1975, a
‘‘give-up’’ was a payment to another
broker-dealer of a portion of the
commission required to be charged by
the executing broker-dealer.165 A
principal concern regarding ‘‘give-ups’’
was that managers used them to direct
client commissions to broker-dealers in
exchange for providing services that
benefited the money manager but had
no benefit for his clients—such as to
reward broker-dealers for distribution or
for steering clients to the manager. The
broker-dealer receiving the give-up may
have had no role in the transaction
generating the commission, and it may
not even have known where or when
the trade was executed. Because the
portion of the commission ‘‘given up’’ is
a charge on client accounts and because
the broker-dealer receiving the ‘‘giveup’’ did nothing in connection with the
securities trade to benefit investors, the
Commission found that these
arrangements violated the securities
laws.166 In enacting Section 28(e),
163 15
U.S.C. 78bb(e).
enacting Section 28(e), Congress described
give-ups as a ‘‘regrettable chapter in the history of
the securities industry and the limited definition of
fiduciary responsibility added to the law by this bill
in no way permits its return.’’ Joint Explanatory
Statement of the Comm. of Conference, Securities
Act Amendments of 1975, H.R. Conf. Rep. No. 94–
229, at 108 (1975), reprinted in 1975 U.S.C.C.A.N.
321, 339.
165 Give-ups took, several forms, but typically
occurred when a mutual fund (or its money
manager or underwriter) directed an executing
broker-dealer to pay a portion of a commission
payment to another broker-dealer that was a
member of the same exchange as the executing
broker-dealer. The give-up often was payment for
other services (that may have been unrelated to the
trade) provided to the fund (or its adviser or
underwriter) by the give-up recipient. See Division
of Market Regulation, U.S. Securities and Exchange
Commission, Market 2000: an Examination of
Current Equity Market Developments (Jan. 1994),
1994 SEC LEXIS at 32–33 (citing Special Study,
H.R. Doc. No. 88–95, pt. 2, at 316–317 and pt. 4,
at 213–14). This type of give-up produced a conflict
of interest for the adviser ‘‘between the interest of
fund shareholders in lower commission charges and
the interest of mutual fund advisers and
underwriters in stimulating the sale of additional
shares through directing a split of commission
charges.’’ Special Study, H.R. Doc. No. 88–95, pt.
2, at 318.
166 See, e.g., Provident Management Corp., 44 SEC
442, 445–47 (Dec. 1, 1970) (finding violations of the
antifraud provisions of the federal securities laws
where unaffiliated broker-dealers who participated
with the fund’s officers, adviser, and affiliated
rwilkins on PROD1PC63 with RULES_2
164 In
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
Congress addressed the issue of give-ups
by indicating that the provision did not
apply when the money manager made
payment to one broker-dealer for the
services performed by another brokerdealer.167 In the 1986 Release, the
Commission departed from a strict
interpretation of the ‘‘provided by’’
provision when it concluded that
payment of a part of a commission to a
broker-dealer who is a ‘‘normal and
legitimate correspondent’’ of the
executing or clearing broker-dealer
would not necessarily be a ‘‘give-up,’’
outside the protection of Section
28(e).168 We believe that both the
legislative history and the Commission’s
prior interpretations in this area reflect
an effort to safeguard against money
managers and broker-dealers using
Section 28(e) arrangements as
mechanisms for the manager to use
client commissions to make concealed
payments to a broker-dealer that did not
provide any services to benefit the
advised accounts.
As noted above, the industry has
developed many types of Section 28(e)
arrangements. Some investment
managers today use these arrangements
to execute trades with one broker-dealer
and obtain research and other services
from a different broker-dealer. In some
Section 28(e) arrangements, the
introducing broker-dealer accepts orders
from its customers and then may
execute the trade and provide research,
while a second broker-dealer clears and
broker-dealer in a reciprocal arrangement in which
fund transactions were placed with unaffiliated
broker-dealer in exchange for payment to affiliated
broker-dealer of ‘‘clearance commissions’’ on
unrelated transactions for which affiliated brokerdealer performed no function).
The Commission has found it a violation of the
antifraud provisions of the securities laws to
interpose an unnecessary party in a transaction,
resulting in payment to the interposed party, and
an additional cost to the fiduciary account. See
Delaware Management Co., 43 SEC 392 (1967)
(interpositioning broker between adviser and
market maker caused adviser to pay unnecessary
brokerage costs and violated the adviser’s duty of
best execution).
167 Joint Explanatory Statement of the Comm. of
Conference, Securities Acts Amendments of 1975,
H.R. Conf. Rep. No. 94–229, at 109 (1975), reprinted
in 1975 U.S.C.C.A.N. 321. See also 1986 Release, 51
FR at 16007; 1976 Release, 41 FR at 13679.
168 1986 Release, 51 FR at 16007 (‘‘Section 28(e)
was not intended to exclude from its coverage the
payment of commissions made in good faith to an
introducing broker for execution and clearing
services performed in whole or in part by the
introducing broker’s normal and legitimate
correspondent.’’); 1976 Release, 41 FR at 13678–79
(Where ‘‘fudiciaries * * * [ask] the broker, retained
to effect a transaction for the account of a
beneficiary, to ‘‘give up’’ part of the commission
negotiated by the broker and the fiduciary to
another broker designated by the fiduciary for
whom the executing or clearing broker is not a
normal and legitimate correspondent[,] * * * [t]he
Commission does not believe that Section 28(e)
would apply.’’
PO 00000
Frm 00017
Fmt 4701
Sfmt 4702
41993
settles the transaction. In other
arrangements, an introducing brokerdealer facilitates access to research and
has little, if any, role in accepting
customer orders or in executing,
clearing, or settling any portion of the
trade. Rather, another broker-dealer
(often the clearing broker) executes,
clears, and settles the trade, receiving a
portion of the commission for its
services. In some instances, the
introducing broker is unaware of the
daily trading activity of its customers
because the orders are sent by the
money manager directly (and only) to
the clearing broker-dealer.169 In
addition, several commenters endorsed
arrangements similar to those that have
developed in the United Kingdom, in
which money managers direct brokerdealers to collect and pool client
commissions that may have been
generated from orders executed at that
broker-dealer, and periodically direct
the broker-dealer to pay for research that
the money manager has determined is
valuable.170
As discussed above, the legislative
history behind the linkage created
between the ‘‘provided by’’ and
‘‘effecting’’ statutory language in Section
28(e) indicates that Congress was
concerned that the safe harbor ‘‘would
be asserted as a shield behind which the
give-ups and reciprocal practices which
were so notorious during the late 1960’s
could be reinstituted.’’ 171 Since passage
of the safe harbor in the 1970’s,
specialization and innovation in the
financial industry have resulted in the
functional separation of execution and
research. Thus, efficient execution
venues provide good, low-cost
execution while research providers offer
valuable research ideas that can benefit
managed accounts. We believe that this
separation of functions is beneficial to
the money managers’ clients, and
Section 28(e) arrangements that promote
functional allocation of these services
are not the same as ‘‘give-ups.’’
2. ‘‘Effecting’’ Transactions
Section 28(e) arrangements typically
involve clearing agreements pursuant to
169 The 1986 Release suggested that protection of
Section 28(e) would not be lost merely because the
money manager by-passed the order desk of the
introducing broker and called his orders directly
into the clearing broker. 1986 Release, 51 FR at
16007.
170 Commission Direct; EuroIRP; IMA; JP Morgan
1; T. Rowe Price.
171 Joint Explanatory Statement of the Committee
of Conference, Securities Acts Amendments of
1975, H.R. Conf. Rep. 94–229, at 108 (1975),
reprinted in 1975 U.S.C.C.A.N. 321, 339.
E:\FR\FM\24JYR2.SGM
24JYR2
41994
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
rwilkins on PROD1PC63 with RULES_2
SRO rules.172 These SRO rules require
that introducing and clearing firms
contractually agree to allocate
enumerated functions, but do not
mandate how the functions should be
divided (i.e., they do not specify the
functions that must be done by the
introducing broker-dealer or clearing
broker-dealer).173 The Commission has
stated that, under Section 28(e), it
contemplates that in correspondent
relationships, an ‘‘introducing brokerdealer would be engaged in securities
activities of a more extensive nature
than merely the receipt of commissions
paid to [them] by other broker-dealers
for ‘research services’ provided to
money managers.’’ 174 The Proposing
Release identified four minimum
criteria that an introducing brokerdealer must satisfy in order to be
‘‘effecting’’ transactions.
Based on the comments received,
which are discussed above, we
recognize the benefit to investors of
money managers being able to
functionally separate trade execution
from access to valuable research. At the
same time, we believe that the statutory
term ‘‘effecting’’ requires that, in order
for the money manager to use the safe
harbor, a broker-dealer that is
‘‘effecting’’ the trade must perform at
least one of four minimum functions
and take steps to see that the other
functions have been reasonably
allocated to one or another of the
broker-dealers in the arrangement in a
manner that is fully consistent with
their obligations under SRO and
Commission rules.175 The four functions
172 See, e.g., NYSE Rule 382, ‘‘Carrying
Agreements,’’ 2 NYSE Guide ¶ 2382, Rule 382;
NASD Rule 3230, ‘‘Clearing Agreements’’; NASD
Rules of Fair Practice, Section 47, Article III;
American Stock Exchange Rule 400 (mirrors the
provisions of NYSE Rule 382(b)).
173 For example, NYSE Rule 382 specifies that
each fully-disclosed clearing agreement between
SRO members shall allocate to the respective
member the following functions: (i) opening,
approving, and monitoring of accounts; (ii)
extension of credit; (iii) maintenance of books and
records; (iv) receipt and delivery of funds and
securities; (v) safeguarding of funds and securities;
(vi) confirmations and statements; (vii) acceptance
of orders and execution of transactions. NYSE Rule
382(b). Further, the clearing broker must provide
annually to the introducing broker-dealer a list of
reports to assist the introducing broker to supervise
and monitor its customer accounts and to fulfill its
responsibilities under the agreement as well as
deliver, and retain a copy of, those reports that the
introducing broker requests. NYSE Rule 382(e)(1)
and (2).
174 1986 Release, 51 FR at 16007, quoting Data
Exchange Securities, No-Action Letter (Apr. 20,
1981).
175 Introducing and clearing brokers still remain
subject to all applicable securities laws and
regulations and SRO rules. For instance, nothing in
this release changes in any way the applicability of
anti-money laundering laws and regulations
applicable to an introducing broker or a clearing
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
are: (1) Taking financial responsibility
for all customer trades until the clearing
broker-dealer has received payment (or
securities), i.e., one of the broker-dealers
in the arrangement must be at risk for
the customer’s failure to pay; (2) making
and/or maintaining records relating to
customer trades required by
Commission and SRO rules, including
blotters and memoranda of orders; (3)
monitoring and responding to customer
comments concerning the trading
process; and (4) generally monitoring
trades and settlements.176 In addition, of
course, a broker-dealer is effecting
securities transactions if it is executing,
clearing, or settling the trade.
3. Research Services Must Be ‘‘Provided
by’’ the Broker-Dealer
Section 28(e) requires that the brokerdealer receiving commissions for
‘‘effecting’’ transactions must ‘‘provide’’
the brokerage or research services. The
Commission has interpreted this to
permit money managers to use client
commissions to pay for research
produced by someone other than the
executing broker-dealer, in certain
circumstances (referred to as ‘‘thirdparty research’’).177 The Commission
broker. See, e.g., Currency and Foreign Transactions
Reporting Act of 1970 (‘‘Bank Secrecy Act’’), [31
U.S.C. 5311 et seq.] (as amended by the Uniting and
Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (‘‘USA Patriot Act’’), Pub. L. No. 107–
56, sec. 314, 326, 115 Stat. 272); Treasury
regulations adopted under the Bank Secrecy Act [31
CFR Part 103]; Exchange Act Rule 17a–8 [17 CFR
240.17a–8]; NYSE Rule 445; NASD Rule 3011. This
interpretation also does not alter the introducing
broker and the clearing broker’s supervisory
obligations. See, e.g., Exchange Act Section
15(b)(4)(E) [15 U.S.C. 78o(b)(4)(E)]; NYSE Rules 342
and 405; NASD Rules 3010, 3012, and 3013. This
interpretation also does not alter a broker-dealer’s
best execution obligation to its customers. See, e.g.,
NASD Rule 2320; NASD Notice to Members 01–22
(Apr. 2001).
176 See 1986 Release, 51 FR at 16007, citing SEI
Financial Services Co., No-Action Letter (Dec. 15,
1983), in which the introducing broker in a
correspondent relationship performed these
functions.
In particular, one of the broker-dealers to the
Section 28(e) arrangement must be aware of and
monitor daily trading activity of customers even
where the money manager sends orders directly to
(and only to) the clearing broker.
177 See 1976 Release, 41 FR at 13679 (Section
28(e) ‘‘might, under appropriate circumstances, be
applicable to situations where a broker provides a
money manager with research produced by third
parties’’). See also 1986 Release, 51 FR at 16007
(‘‘Although the legislative history of Section 28(e)
includes a strong statement that commission dollars
may be paid only to the broker-dealer that
‘provides’ both the execution and research services
and that the section does not authorize the
resumption of ‘give-ups,’ it seems unlikely that
Congress intended to forbid certain common
practices that were then considered permissible and
whose elimination would be anti-competitive.’’); III
Report, 19 SEC Docket at 932 (broker need not
produce research services ‘‘in house’’).
PO 00000
Frm 00018
Fmt 4701
Sfmt 4702
also has clarified that research provided
in third-party arrangements is eligible
under Section 28(e) even if the money
manager participates in selecting the
research services or products that the
broker-dealer will provide.178 In
addition, the Commission has stated
that the third party also may send the
research directly to the broker-dealer’s
customer.179 In the Proposing Release,
the Commission restated its previous
view that the broker-dealer must have
the legal obligation to pay for the
research in order to be considered
‘‘providing’’ the brokerage and research
services under Section 28(e).180 We
continue to believe that a broker-dealer
that is legally obligated to pay for
research is ‘‘providing’’ research under
the safe harbor. In addition, as stated
above, based on the legislative history of
Section 28(e), the comments received in
response to the Proposing Release, and
the benefits to investors of flexibility in
these arrangements, we are modifying
our interpretation of ‘‘provided by.’’ 181
We believe that the safe harbor was
not meant to allow money managers to
use Section 28(e) arrangements to
conceal the payment of client
commissions to intermediaries
(including broker-dealers) that provide
benefits only to the money manager. In
particular, we interpret Section 28(e) to
be available as a safe harbor for the
money manager in situations where
broker-dealers use a money manager’s
client commissions to pay for eligible
research and brokerage for which such
broker-dealer is not directly obligated to
pay if such broker-dealer pays the
research preparer directly and takes
steps to assure itself that the client
commissions that the manager directs it
to use to pay for such services are used
only for eligible brokerage and research.
Accordingly, for purposes of Section
28(e), we believe that the following
attributes will help determine whether
the broker-dealer that is effecting
transactions for the advised accounts
has satisfied the ‘‘provided by’’ element,
and the Section 28(e) safe harbor is
178 Exchange Act Release No. 17371 (Dec. 12,
1980), 45 FR 83707, 83714 n.54 (Dec. 19, 1980)
(‘‘Papilsky Release’’). See 1986 Release, 51 FR at
16007. In the Papilsky Release, the Commission
addressed Section 28(e) and third-party research in
the context of defining ‘‘bona fide research’’ for
purposes of NASD rules that relate to obtaining
research in a fixed-price offering.
179 Papilsky Release, 45 FR at 83714 n.54. See
1986 Release, 51 FR at 16007.
180 See 1986 Release, 51 FR at 16007; III Report,
19 SEC Docket at 932.
181 As noted above, this Release replaces Sections
II and III of the 1986 Release, which include the
‘‘provided by’’ interpretation. See text
accompanying note 68.
E:\FR\FM\24JYR2.SGM
24JYR2
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
available to a money manager: 182 (i) the
broker-dealer pays the research preparer
directly; (ii) the broker-dealer reviews
the description of the services to be paid
for with client commissions under the
safe harbor for red flags that indicate the
services are not within Section 28(e)
and agrees with the money manager to
use client commissions only to pay for
those items that reasonably fall within
the safe harbor; 183 and (iii) the brokerdealer develops and maintains
procedures so that research payments
are documented and paid for
promptly.184
rwilkins on PROD1PC63 with RULES_2
4. Legal Obligations of Parties to Section
28(e) Arrangements
The Proposing Release stated that
parties to arrangements under Section
28(e) must determine whether they are
contributing to a violation of law,
including whether the involvement of
other parties is appropriate.185
Commenters expressed concern that this
182 In Section 28(e) arrangements involving
multiple broker-dealers, at least one of the brokerdealers (but not necessarily all) must satisfy the
requirements for ‘‘effecting’’ transactions and
‘‘providing’’ research.
183 In all Section 28(e) arrangements, including
those in which the broker-dealer is legally obligated
to pay for the research, the broker-dealer may be
subject to liability for aiding and abetting violations
by money managers where the broker-dealer pays
for services that are not within Section 28(e). See
e.g., Portfolio Advisory Services, LLC, and Cedd L.
Moses, Advisers Act Release No. 2038, 77 SEC
Docket 2759–31 (June 20, 2002); Dawson-Samberg
Capital Management, Inc. and Judith A. Mack,
Advisers Act Release No. 1889, 54 SEC 786 (Aug.
3, 2000); Founders Asset Management LLC and
Bjorn K. Borgen, Advisers Act Release No. 1879, 54
SEC 762 (June 15, 2000); Marvin & Palmer
Associates, Inc., et al., Advisers Act Release No.
1841, 70 SEC Docket 1643 (Sept. 30, 1999);
Republic New York Sec. Corp. and James Edward
Sweeney, Exchange Act Release No. 41036, 53 SEC
1283 (Feb. 10, 1999); SEC v. Sweeney Capital
Management, Inc., Litigation Release No. 15664, 66
SEC Docket 1613 (Mar. 10, 1998), 1999 U.S. Dist.
LEXIS 22298 (1999) (order granting permanent
injunction and other relief); Renaissance Capital
Advisers, Inc., Advisers Act Release No. 1688, 66
SEC Docket 408 (Dec. 22, 1997); Oakwood
Counselors, Inc., Advisers Act Release No. 1614, 63
SEC Docket 2034 (Feb. 11, 1997); SEC v. Galleon
Capital Mgmt., Litigation Release No. 14315, 57 SEC
Docket 2593 (Nov. 1, 1994).
184 A broker-dealer would need to satisfy the
‘‘effecting’’ and ‘‘provided by’’ elements of Section
28(e) only where the money manager seeks to
operate within the safe harbor. If the money
manager is operating in part outside of the safe
harbor, the broker-dealer would need to satisfy the
‘‘effecting’’ and ‘‘provided by’’ elements only with
respect to the portion of the money manager’s
business for which the manager seeks to operate
within the safe harbor.
Prompt payment is relevant to the determination
of whether the broker-dealer has ‘‘provided’’
research because it assures that the research and the
payment are linked, thereby preserving the
statutory language requiring that the broker-dealer
that ‘‘effects’’ the transactions for the advised
accounts ‘‘provides’’ the research.
185 Exchange Act Release No. 52635 (Oct. 19,
2005), 70 FR 61700 (Oct. 25, 2005).
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
statement imposed heightened
responsibility on money managers and
broker-dealers.186 To clarify, the
Commission intends only to remind
parties to Section 28(e) arrangements
that, under existing law, money
managers may be subject to liability
under federal securities laws, ERISA,
and state law, and broker-dealers may
be subject to liability if they aid and
abet another person’s violation of a
provision of the securities laws.187 For
example, if a broker-dealer knows that
a money manager has represented to its
clients that he will operate solely within
Section 28(e),188 and the adviser asks
the broker-dealer to pay for office
furniture and computer terminals,
which under this release are not eligible
under the safe harbor, the broker-dealer
may risk aiding and abetting liability.
IV. Request for Comments
The Commission will consider further
comment on evolving developments in
connection with industry practices with
respect to client commission
arrangements under the safe harbor
identified in Section III.I of this Release
to evaluate whether additional guidance
might be appropriate in the future.
Based on any comments received, the
Commission may, but need not,
1; IAA; ICI; Mellon; NSCP; T.Rowe Price.
e.g., supra, notes 28–31 and
accompanying text; Exchange Act § 15(b)(4)(iv)(E)
and Advisers Act § 203(e)(6); III Report, 19 SEC
Docket at 933 (Where brokers and money managers
were aware that an intermediary was providing
research to money managers in exchange for
directing brokerage to the intermediary’s designated
brokers, but brokers had limited participation in
providing the research, ‘‘those involved should
have realized that the arrangement was not
permitted by Section 28(e) * * *. [B]rokers should
have been alerted to the possibility of conduct
which contravened applicable fiduciary principles
and the federal securities laws.’’). See also
Exchange Act Release No. 11629 (Sept. 3, 1975),
(‘‘A broker which causes or assists an institution to
violate a duty to the investor may be aiding and
abetting a fraudulent or deceptive act or practice.’’);
1976 Release, 41 FR at 13679 (‘‘[N]or may money
managers, under the authority of Section 28(e),
direct brokers employed by them to make ‘give up’
payments * * *. [B]rokers should recognize that
their compliance with any direction or suggestion
by a fiduciary which would appear to involve a
violation of the fiduciary’s duty to its beneficiaries
could implicate them in a course of conduct
violating the anti-fraud provisions of the federal
securities laws.’’).
188 Advisers that are not required to operate
within the safe harbor may voluntarily choose to do
so, and may represent to their clients that they do
so. However, if an adviser that represents to its
clients that he will operate within Section 28(e) and
fails to do so, the representation is false and the
conduct may be a violation of Section 206 of the
Advisers Act and Section 10(b) of the Exchange Act
and Rule 10b–5. Advisers to mutual funds and
ERISA plans must operate within the safe harbor
with respect to those clients because of Section
17(e) of the Investment Company Act or ERISA. See
supra notes 30–31 and accompanying text.
PO 00000
186 BNY
187 See,
Frm 00019
Fmt 4701
Sfmt 4702
41995
supplement the guidance in this Release
in the future.
V. Implementation
The Proposing Release asked whether
the Commission should allow market
participants some period of time to
implement the interpretation, and
requested examples of potential
implementation issues.189 Fifteen
commenters requested that the
Commission establish a grace period for
industry participants to implement the
Commission’s interpretative guidance of
between three months 190 to at least one
year.191 Several commenters urged the
Commission to issue the interpretation
without any phase-in period.192 Several
of these commenters suggested that the
Commission should delay the
effectiveness of its final interpretive
guidance in order to allow existing
annual contracts among money
managers and broker-dealers to
expire 193 or to review their
arrangements in light of the
Commission’s final interpretation 194;
others indicated that an implementation
period is important to accommodate
significant operational changes in the
industry, including any changes
necessitated in the agreements among
money managers and broker dealers.195
Since participants have relied on the
Commission’s prior interpretations, the
Commission believes that they should
be entitled to continue to rely on them
for a period of time. We believe that,
considering the views expressed in the
comment letters, an appropriate period
for market participants to continue to
rely on the Commission’s prior
interpretations is six months. The
interpretation set forth in this Release is
effective immediately upon its
publication in the Federal Register, on
July 24, 2006. Market participants may
continue to rely on the Commission’s
prior interpretations for six months
following the publication of this Release
in the Federal Register, that is, until
January 24, 2007.
List of Subjects in 17 CFR Part 241
Securities.
189 Proposing
Release, Question 10.
Rowe Price.
191 CAPIS; IAA; IMA; Mellon; Merrill; NSCP;
Seward & Kissel; SIA; UBS. Three commenters
recommended six months. BNY 1; George 2; ITG.
Two commenters suggested that the Commission
provide the industry an unspecified ‘‘reasonable’’
period of time within which to comply with the
Commission’s interpretation. Charles River;
E*Trade.
192 Investorside; Reuters.
193 CAPIS; IAA; Mellon; Merrill; NSCP; Seward &
Kissel.
194 BNY 1; ITG.
195 SIA; UBS.
190 T.
E:\FR\FM\24JYR2.SGM
24JYR2
41996
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules and Regulations
Amendments to the Code of Federal
Regulations
For the reasons set out in the
preamble, the Commission is amending
Title 17, chapter II of the Code of
Federal Regulations as set forth below:
rwilkins on PROD1PC63 with RULES_2
I
VerDate Aug<31>2005
18:30 Jul 21, 2006
Jkt 208001
PART 241—INTERPRETATIVE
RELEASES RELATING TO THE
SECURITIES EXCHANGE ACT OF 1934
AND GENERAL RULES AND
REGULATIONS THEREUNDER
Part 241 is amended by adding
Release No. 34–54165 and the release
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
date of July 18, 2006 to the list of
interpretive releases.
Dated: July 18, 2006.
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. 06–6410 Filed 7–21–06; 8:45 am]
BILLING CODE 8010–01–P
E:\FR\FM\24JYR2.SGM
24JYR2
]]>Agencies
[Federal Register Volume 71, Number 141 (Monday, July 24, 2006)]
[Rules and Regulations]
[Pages 41978-41996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6410]
[[Page 41977]]
-----------------------------------------------------------------------
Part IV
Securities and Exchange Commission
-----------------------------------------------------------------------
17 CFR Part 241
Commission Guidance Regarding Client Commission Practices Under Section
28(e) of the Securities Exchange Act of 1934; Final Rule
Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Rules
and Regulations
[[Page 41978]]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 241
[Release No. 34-54165; File No. S7-13-06]
Commission Guidance Regarding Client Commission Practices Under
Section 28(e) of the Securities Exchange Act of 1934
AGENCY: Securities and Exchange Commission.
ACTION: Interpretation; solicitation of comment.
-----------------------------------------------------------------------
SUMMARY: The Securities and Exchange Commission is publishing this
interpretive release with respect to the scope of ``brokerage and
research services'' and client commission arrangements under Section
28(e) of the Securities Exchange Act of 1934 (``Exchange Act''). The
Commission is soliciting further comment on client commission
arrangements under Section 28(e).
DATES: Effective Date: July 24, 2006.
Comment Due Date: Comments should be received on or before
September 7, 2006.
Other Date: Market participants may continue to rely on the
Commission's prior interpretations of Section 28(e) until January 24,
2007.
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/interp.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number S7-13-06 on the subject line; or
Use the Federal eRulemaking Portal (https://
www.regulations.gov). Follow the instructions for submitting comments.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number S7-13-06. This file number
should be included on the subject line if e-mail is used. To help us
process and review your comments more efficiently, please use only one
method. The Commission will post all comments on the Commission's
Internet Web site (https://www.sec.gov/rules/interp.shtml). Comments
are also available for public inspection and copying in the
Commission's Public Reference Room, 100 F Street, NE., Washington, DC
20549. All comments received will be posted without change; we do not
edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT: Jo Anne Swindler, Assistant Director,
at (202) 551-5750; Patrick M. Joyce, Special Counsel, at (202) 551-
5758; Stanley C. Macel, IV, Special Counsel, at (202) 551-5755; or
Marlon Quintanilla Paz, Special Counsel, at (202) 551-5756, in the
Office of Enforcement Liaison and Institutional Trading, Division of
Market Regulation, United States Securities and Exchange Commission,
100 F Street, NE., Washington, DC 20549-6628.
SUPPLEMENTARY INFORMATION:
I. Introduction and Summary
Section 28(e) \1\ of the Exchange Act \2\ establishes a safe harbor
that allows money managers to use client funds to purchase ``brokerage
and research services'' for their managed accounts under certain
circumstances without breaching their fiduciary duties to clients. In
this release, the Commission is issuing interpretive guidance with
respect to the safe harbor, with the particular goal of clarifying the
scope of ``brokerage and research services'' in the light of evolving
technologies and industry practices.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78bb(e).
\2\ 15 U.S.C. 78a.
---------------------------------------------------------------------------
Fiduciary principles require money managers to seek the best
execution for client trades, and limit money managers from using client
assets for their own benefit.\3\ Use of client commissions to pay for
research and brokerage services presents money managers with
significant conflicts of interest, and may give incentives for managers
to disregard their best execution obligations when directing orders to
obtain client commission services as well as to trade client securities
inappropriately in order to earn credits for client commission
services.\4\ Recognizing the value of research in managing client
accounts, however, Congress enacted Section 28(e) \5\ of the Exchange
Act to provide a safe harbor that protects money managers from
liability for a breach of fiduciary duty solely on the basis that they
paid more than the lowest commission rate in order to receive
``brokerage and research services'' provided by a broker-dealer, if the
managers determined in good faith that the amount of the commission was
reasonable in relation to the value of the brokerage and research
services received.\6\
---------------------------------------------------------------------------
\3\ Money managers include investment advisers, who have a
fundamental obligation under the Investment Advisers Act of 1940
(``Advisers Act'') [15 U.S.C. 80b-1] and state law to act in the
best interest of their clients, SEC v. Capital Gains Research
Bureau, Inc., 375 U.S. 180, 189-191 (1963). This includes the
obligation to seek ``best execution'' of clients' transactions under
the circumstances of the particular transaction. Exchange Act
Release No. 23170 (Apr. 23, 1986), 51 FR 16004, 16011 (Apr. 30,
1986) (``1986 Release''). See also Delaware Management Co., 43 SEC
392, 396 (1967). The fundamental obligation of the adviser to act in
the best interest of his client also generally precludes the adviser
from using client assets for the adviser's own benefit or the
benefit of other clients, at least without client consent. See
Restatement (Second) of Trusts Sec. 170 cmt. a, Sec. 216 (1959).
\4\ For a discussion of managers' conflicts in connection with
the safe harbor, see generally Exchange Act Release No. 35375 (Feb.
14, 1995), 60 FR 9750, 9751 (Feb. 21, 1995) (``1995 Rule Proposal'')
(the Commission took no further action on this proposal). See also
Sage Advisory Services LLC, Exchange Act Release No. 44600, 75 SEC
Docket 1073 (July 27, 2001) (Commission charged that adviser churned
advised account to generate client commission credits to pay
personal operating expenses and failed to seek to obtain best
execution by causing account to pay commissions twice the rate the
same broker charged other customers for comparable services).
To avoid confusion that may arise over the usage of the phrase
``soft dollars,'' in this release, the Commission uses the term
``client commission'' practices or arrangements to refer to
practices under Section 28(e). Similarly, to minimize confusion with
the phrase ``commission-sharing arrangements'' as used in the United
Kingdom to refer to unique arrangements in that market place, we
refer to arrangements under Section 28(e) as ``client commission
arrangements'' or ``Section 28(e) arrangements.''
\5\ 15 U.S.C. 78bb(e).
\6\ See Securities Acts Amendments of 1975, Pub. L. 94-29, 89
Stat. 97, 161-62 (1975).
Congressional enactment of Section 28(e) did not alter the money
manager's duty to seek best execution. See 1986 Release, 51 FR at
16011. The directors of an investment company have a continuing
fiduciary duty to oversee the company's brokerage practices. See
Investment Company Act Release No. 11662 (Mar. 4, 1981), 46 FR 16012
(Mar. 10, 1981). In addition, the directors have an obligation in
connection with their review of the fund's investment advisory
contract to review the adviser's compensation, including any ``soft
dollar'' benefits the adviser may receive from fund brokerage. See
1986 Release, 51 FR at 16010.
---------------------------------------------------------------------------
As discussed below in Section II, over the past thirty years, the
Commission has issued several releases interpreting the Section 28(e)
safe harbor. In 1998, the Commission published a report of its Office
of Compliance Inspections and Examinations (``OCIE'') detailing a staff
review of client commission practices at broker-dealers and investment
advisers.\7\ The Commission also has
[[Page 41979]]
brought enforcement actions involving purported client commission
practices.\8\
---------------------------------------------------------------------------
\7\ See Office of Compliance Inspections and Examination, U.S.
Securities and Exchange Commission, Inspection Report on the Soft
Dollar Practices of Broker-Dealers, Investment Advisers and Mutual
Funds 3 (Sept. 22, 1998) (``1998 OCIE Report''), available at http:/
/www.sec.gov/news/studies/softdolr.htm.
\8\ See, e.g., Dawson-Samberg Capital Management, Inc. and
Judith A. Mack, Advisers Act Release No. 1889, 54 SEC 786 (Aug. 3,
2000); Marvin & Palmer Associates, Inc., et al., Advisers Act
Release No. 1841, 70 SEC Docket 1643 (Sept. 30, 1999); Fleet
Investment Advisors, Inc., Advisers Act Release No. 1821, 70 SEC
Docket 1217 (Sept. 9, 1999); Republic New York Sec. Corp. and James
Edward Sweeney, Exchange Act Release No. 41036, 53 SEC 1283 (Feb.
10, 1999); SEC v. Sweeney Capital Management, Inc., Litigation
Release No. 15664, 66 SEC Docket 1613 (Mar. 10, 1998), 1999 U.S.
Dist. LEXIS 22298 (1999) (order granting permanent injunction and
other relief); Renaissance Capital Advisers, Inc., Advisers Act
Release No. 1688, 66 SEC Docket 408 (Dec. 22, 1997); Oakwood
Counselors, Inc., Advisers Act Release No. 1614, 63 SEC Docket 2034
(Feb. 11, 1997); S Squared Technology Corp., Advisers Act Release
No. 1575, 62 SEC Docket 1446 (Aug. 7, 1996); SEC v. Galleon Capital
Mgmt., Litigation Release No. 14315, 57 SEC Docket 2593 (Nov. 1,
1994).
---------------------------------------------------------------------------
On October 19, 2005, the Commission issued a proposed interpretive
release regarding client commission practices under Section 28(e)
(``Proposing Release'').\9\ We received letters from seventy-one
commenters in response to the Proposing Release.\10\ More than half of
the commenters supported the Commission's efforts in the Proposing
Release to clarify the scope of Section 28(e).\11\ Overall, the
comments provided useful information regarding industry practices in
this area.\12\
---------------------------------------------------------------------------
\9\ Exchange Act Release No. 52635 (Oct. 19, 2005), 70 FR 61700
(Oct. 25, 2005).
\10\ Seventy-one different commenters submitted seventy-six
comment letters. The comment letters are available for inspection in
the Commission's Public Reference Room in File No. S7-09-05, or may
be viewed at https://www.sec.gov/rules/interp/s70905.shtml. The
commenters were: Committee on Federal Regulation of Securities,
Business Law Section, American Bar Association (``ABA''); Adams
Harkness (``Adams Harkness''); American Bankers Association
(``AmBankers''); The Alliance in Support of Independent Research,
Nov. 23, 2005 (``ASIR 1''); The Alliance in Support of Independent
Research , June 2, 2006 (``ASIR 2''); Axia Advisory Corporation
(``Axia''); Bingham McCutcheon LLP, on behalf of Frank Russell
Securities, Inc. (``Bingham McCutcheon''); Bloomberg L.P.
(``Bloomberg''); BNY Securities Group on behalf of the Bank of New
York Company, Inc., Nov. 25, 2005 (``BNY 1''); BNY Securities Group
on behalf of the Bank of New York Company, Inc., May 2, 2006 (``BNY
2''); California Public Employees' Retirement System (``CalPERS'');
Capital Institutional Services, Inc. (``CAPIS''); Carolina Capital
Markets, Inc., Nov. 23, 2005 (``CCM 1''); Carolina Capital Markets,
Inc., Nov. 25, 2005 (``CCM 2''); CFA Centre for Financial Market
Integrity, CFA Institute (``CFA Institute''); Consumer Federation of
America/Fund Democracy (joint letter) (``CFA/FD''); Charles River
Brokerage (``Charles River''); C.L. King & Associates, Inc. (``CL
King''); Commission Direct, Inc. (``Commission Direct''); Credit
Suisse Securities (USA) LLC (``Credit Suisse''); Neal J. Dean
(``Dean''); U.S. Department of Labor, Employee Benefits Security
Administration (``DOL''); Michael Donovan (``Donovan''); Dow Jones &
Company, Inc. (``Dow Jones''); E*Trade Financial Corporation
(``E*Trade''); European Association of Independent Research
Providers (``EuroIRP''); Eze Castle Software (``Eze Castle'');
Fidelity Management and Research Company (``Fidelity''); FinTech
Securities (``FinTech''); Tamar Frankel (``Frankel''); William T.
George, Oct. 20, 2005 (``George 1''); William T. George, Oct. 28,
2005 (``George 2''); William T. George, Apr. 4, 2006 (``George 3'');
GovernanceMetrics International (``GMI''); Independent Directors
Council (``IDC''); Instinet, LLC (``Instinet''); International
Securities Association for Institutional Trade Communications
(``ISITC''); The Interstate Group (``Interstate Group''); Investment
Adviser Association (``IAA''); Investment Company Institute
(``ICI''); Investment Management Association (``IMA''); Investorside
Research Association (``Investorside''); International Shareholder
Services Inc. (``ISS''); ITG Inc. (``ITG''); J.P. Morgan Securities
Inc., Nov. 28, 2005 (``JP Morgan 1''); J.P. Morgan Securities Inc.,
Mar. 28, 2006 (``JP Morgan 2''); Thomas F. Lamprecht
(``Lamprecht''); Mellon Financial Corporation (``Mellon''); Merrill
Lynch & Co., Inc. (``Merrill''); Managed Funds Association
(``MFA''); Mutual Fund Directors Forum (``MFDF''); Morgan Stanley &
Co., Inc. (``Morgan Stanley''); Missouri State Employees''
Retirement System (``MOSERS''); Emmett Murphy (``Murphy''); National
Compliance Services, Inc. (``NCS''); Bernard Notas (``Notas'');
National Society of Compliance Professionals Inc. (``NSCP''); Junius
W. Peake, Oct. 21, 2005 (``Peake 1''); Junius W. Peake, Oct. 26,
2005 (``Peake 2''); Rainier Investment Management, Inc.
(``Rainier''); The Reserve Funds (``Reserve''); Reuters America LLC
(``Reuters''); Riedel Research Group (``Riedel''); Charlotte
Roederer (``Roederer''); Sanderson & Stocker, Inc. (``Sanderson &
Stocker''); U.S. Senator Charles C. Schumer and U.S. Senator John E.
Sununu (joint letter) (``Senators Schumer and Sununu''); Charles
Schwab & Co., Inc. (``Schwab''); Seward & Kissel LLP (``Seward &
Kissel''); Securities Industry Association (``SIA''); Security
Traders Association (``STA''); T. Rowe Price Associates, Inc. (``T.
Rowe Price''); UBS Securities LLC (``UBS''); Vandham Securities
Corp. (``Vandham''); The Vanguard Group, Inc. (``Vanguard''); Ward &
Smith, P.A. on behalf of First Citizens Bank & Trust Company (``Ward
& Smith''); West Virginia Investment Management Board (``WVIMB'').
\11\ ABA; ASIR 1; AmBankers; BNY; Bloomberg; CalPERS; CAPIS; CFA
Institute; Charles River; Commission Direct; DOL; Dow Jones;
E*Trade; EuroIRP; Eze Castle; Fidelity; FinTech; IDC; ISS;
Interstate Group; IAA; ICI; IMA; Investorside; ITG; JP Morgan 1;
MFA; Mellon; Merrill; Morgan Stanley; NCS; NSCP; Reuters; Riedel;
Roederer; Schwab; SIA; STA; T. Rowe Price; UBS; Vandham; Vanguard.
\12\ Ten commenters expressed the view that money managers
should refrain from using client commissions to obtain brokerage and
research or that Congress should repeal Section 28(e). See Axia;
CFA/FD (joint letter); Dean; Frankel; MOSERS; MFDF; Peake 2;
Reserve; WVIMB.
---------------------------------------------------------------------------
After considering the comments received and the Commission's
experience with Section 28(e), and upon further examination of changing
market conditions, current industry practices, and the purposes
underlying Section 28(e), we are issuing this interpretive release on
money managers' use of client assets to pay for research and brokerage
services under Section 28(e) of the Exchange Act.\13\ This release
interprets the scope of the safe harbor as follows:
---------------------------------------------------------------------------
\13\ 15 U.S.C. 78bb(e). The Commission also is considering
whether at a later time to propose requirements for disclosure and
recordkeeping of client commission arrangements.
---------------------------------------------------------------------------
``Research services'' are restricted to ``advice,''
``analyses,'' and ``reports'' within the meaning of Section 28(e)(3).
Physical items, such as computer hardware, which do not
reflect the expression of reasoning or knowledge relating to the
subject matter identified in the statute, are outside the safe harbor.
Research related to the market for securities, such as
trade analytics (including analytics available through order management
systems) and advice on market color and execution strategies, are
eligible for the safe harbor.
Market, financial, economic, and similar data could be
eligible for the safe harbor.
Mass-marketed publications are not eligible as research
under the safe harbor.
``Brokerage services'' within the safe harbor are those
products and services that relate to the execution of the trade from
the point at which the money manager communicates with the broker-
dealer for the purpose of transmitting an order for execution, through
the point at which funds or securities are delivered or credited to the
advised account.
Eligibility of both brokerage and research services for
safe harbor protection is governed by the criteria in Section
28(e)(3),\14\ consistent with the Commission's 1986 ``lawful and
appropriate assistance'' standard.
---------------------------------------------------------------------------
\14\ 15 U.S.C. 78bb(e)(3).
---------------------------------------------------------------------------
Mixed-use items must be reasonably allocated between
eligible and ineligible uses, and the manager must keep adequate books
and records concerning allocations so as to enable the manager to make
the required good faith determination of the reasonableness of
commissions in relation to the value of brokerage and research
services.
In order for the safe harbor to be available to the money
manager, the following principles apply:
Broker-dealers that are parties to arrangements under
Section 28(e) are involved in ``effecting'' the trade if they execute,
clear, or settle the trade, or perform one of four specified functions
\15\ and allocate the other functions to another broker-dealer.
---------------------------------------------------------------------------
\15\ The four functions are: (1) Taking financial responsibility
for customer trades; (2) maintaining records relating to customer
trades; (3) monitoring and responding to customer comments
concerning the trading process; and (4) monitoring trades and
settlements. See discussion infra note 176 and accompanying text.
---------------------------------------------------------------------------
Broker-dealers ``provide'' the research if they (i)
prepare the research, (ii) are financially obligated to pay for the
research, or (iii) are not financially obligated to pay but their
arrangements have certain attributes.
[[Page 41980]]
This Release reiterates the statutory requirement that money
managers must make a good faith determination that commissions paid are
reasonable in relation to the value of the products and services
provided by broker-dealers in connection with the managers'
responsibilities to the advisory accounts for which the managers
exercise investment discretion.
The guidance in this Release shall be effective immediately upon
its publication in the Federal Register. Market participants may
continue to rely on the Commission's prior interpretations for six
months following the publication of this Release in the Federal
Register. Nonetheless, the Commission will receive and consider
additional comment regarding Section III.I of this Release with respect
to client commission arrangements given evolving developments in the
industry. Based on any comments received, the Commission may, but need
not, supplement the guidance in this Release in the future.
II. ``Brokerage and Research Services'' Under Section 28(e) of the
Exchange Act
A. Origins of the Section 28(e) Safe Harbor
In the early 1970's, the Commission studied whether to require
unfixing commission rates on national exchanges, which had been fixed
by custom and regulation since the founding of the New York Stock
Exchange nearly two hundred years earlier.\16\ At the same time, the
House and Senate began to consider whether to eliminate fixed
commission rates legislatively.\17\ The Commission adopted Rule 19b-3
under the Exchange Act,\18\ which ended fixed commission rates on
national securities exchanges effective May 1, 1975.\19\ Just one month
later, Congress passed legislation unfixing commission rates as part of
the Securities Acts Amendments of 1975 (``1975 Amendments'').\20\
---------------------------------------------------------------------------
\16\ See U.S. Securities and Exchange Commission, Institutional
Investor Study Report, H.R. Doc. No. 64, 92d Cong., 1st Sess., Vol.
4, at 2206 (1971). See also U.S. Securities and Exchange Commission,
Special Study of Securities Markets, H.R. Doc. No. 88-95, pt. 2, at
323 (1963) (``Special Study'').
\17\ See generally Senate Comm. on Banking, Housing and Urban
Affairs, Securities Industry Study Report of the Subcommittee on
Securities, S. DOC. NO. 93-13 (1973).
\18\ 17 CFR 240.19b-3. Rule 19b-3 was codified in certain
respects by Section 6(e)(1) of the Exchange Act [15 U.S.C.
78f(e)(1)], which was enacted as part of the Securities Acts
Amendments of 1975, Pub. L. 94-29, 89 Stat. 97, 107-08 (1975). See
also Exchange Act Release No. 26180 (Oct. 14, 1988), 53 FR 41205
(Oct. 20, 1988) (rescinding Rule 19b-3).
\19\ See Exchange Act Release No. 11203 (Jan. 23, 1975), 40 FR
7394 (Feb. 20, 1975).
\20\ See Securities Acts Amendments of 1975, Pub. L. 94-29, 89
Stat. 97, 107-08 (1975) (enacting Section 6(e)(1) of the Exchange
Act [15 U.S.C. 78f(e)(1)]). See generally Senate Comm. on Banking,
Housing and Urban Affairs, Securities Acts Amendments of 1975, S.
Rep. No. 94-75, at 69 (1975), reprinted in 1975 U.S.C.C.A.N. 179,
247; House Comm. on Interstate and Foreign Commerce, Securities
Reform Act of 1975, H.R. Rep. No. 94-123 (1975); Joint Explanatory
Statement of the Comm. of Conference, Securities Acts Amendments of
1975, H.R. Conf. Rep. No. 94-229, at 108 (1975), reprinted in 1975
U.S.C.C.A.N. 321, 338.
---------------------------------------------------------------------------
In the era of fixed rates, when broker-dealers could not compete on
the basis of the commissions that they could charge for executing
orders, they competed on the basis of services including non-execution
services that they could offer.\21\ Indeed, broker-dealers had long
been accustomed to attracting order execution business from
institutional money managers by offering them brokerage functions and
research reports to distinguish their services from those of their
competitors.\22\ As the end of the fixed-rate era drew near, however,
money managers and broker-dealers alike questioned how competition over
commission rates would disrupt these practices. Institutional money
managers expressed concern that, in an environment of competitive
commission rates, they would be forced to allocate brokerage solely on
the basis of lowest execution costs, or that paying more than the
lowest commission rate would be deemed a breach of fiduciary duty, and
that useful research might become more difficult to obtain.\23\ Broker-
dealers, which were accustomed to producing proprietary ``Street''
research, expressed concern that they could no longer be compensated in
commissions for their work product if orders were routed to broker-
dealers that provided execution-only service at lower rates.\24\
---------------------------------------------------------------------------
\21\ See Exchange Act Release No. 12251 (Mar. 24, 1976), 41 FR
13678, 13679 (Mar. 31, 1976) (``1976 Release'').
\22\ See Special Study, H.R. Doc. No. 88-95, pt. 2, at 321.
\23\ See 1995 Rule Proposal, 60 FR at 9750; Report of
Investigation in the Matter of Investment Information, Inc. Relating
to the Activities of Certain Investment Advisers, Banks, and Broker-
Dealers, Exchange Act Release No. 16679, 19 SEC Docket 926, 931
(Mar. 19, 1980) (``III Report''); 1976 Release, 41 FR at 13679.
\24\ Securities Acts Amendments of 1975: Hearings on S. 249
Before the Subcomm. on Securities of the Senate Comm. on Banking,
Housing, and Urban Affairs, 94th Cong., 1st Sess. 329-31 (1975)
(``S. 249 Hearings'') (Combined statement of Baker, Weeks & Co.,
Inc., Donaldson, Lufkin & Jenrette Sec. Corp., Mitchell, Hutchins
Inc., and Oppenheimer & Co.).
---------------------------------------------------------------------------
In an effort to address the industry's uncertainties about
competitive commission rates, Congress included a safe harbor in the
1975 Amendments, codified as Section 28(e) of the Exchange Act.\25\ The
safe harbor provides generally that a money manager does not breach his
fiduciary duties under state or federal law solely on the basis that
the money manager has paid brokerage commissions to a broker-dealer for
effecting securities transactions in excess of the amount another
broker-dealer would have charged, if the money manager determines in
good faith that the amount of the commissions paid is reasonable in
relation to the value of the brokerage and research services provided
by such broker-dealer.
---------------------------------------------------------------------------
\25\ See Securities Acts Amendments of 1975, Pub. L. 94-29, 89
Stat. 97, 161-62 (1975). Section 28(e) [15 U.S.C. 78bb(e)] governs
the conduct of all persons who exercise investment discretion with
respect to an account, including investment advisers, mutual fund
portfolio managers, fiduciaries of bank trust funds, and money
managers of pension plans and hedge funds. The scope of Section
28(e) therefore extends to entities that are within the jurisdiction
of the Board of Governors of the Federal Reserve, the Office of the
Comptroller of the Currency, the Department of Labor, and the Office
of Thrift Supervision.
---------------------------------------------------------------------------
As fiduciaries, money managers are obligated to act in the best
interest of their clients, and cannot use client assets (including
client commissions) to benefit themselves, absent client consent.\26\
Money managers who obtain brokerage and research services with client
commissions do not have to purchase those services with their own
funds, which creates a conflict of interest for the money managers.
Section 28(e) addresses this conflict by permitting money managers to
pay higher commissions on behalf of a client than otherwise are
available to obtain brokerage and research services, if managers make
their good faith determination regarding the reasonableness of
commissions paid.\27\
[[Page 41981]]
Conduct not protected by Section 28(e) may constitute a breach of
fiduciary duty as well as a violation of the federal securities laws,
particularly the Advisers Act \28\ and the Investment Company Act of
1940 (``Investment Company Act''),\29\ and the Employee Retirement
Income Security Act of 1974 (``ERISA'').\30\ In particular, money
managers of registered investment companies and pension funds subject
to ERISA may violate Section 17(e)(1) of the Investment Company Act and
ERISA, respectively, unless they satisfy the requirements of the
Section 28(e) safe harbor.\31\
---------------------------------------------------------------------------
\26\ See supra note 3.
\27\ The Commission has interpreted Section 28(e) as
encompassing client commissions on agency transactions and fees on
certain riskless principal transactions that are reported under NASD
trade reporting rules. Exchange Act Release No. 45194 (Dec. 27,
2001), 67 FR 6, 7 (Jan. 2, 2002) (``2001 Release''). Managers may
not use client funds to obtain brokerage and research services under
the safe harbor in connection with fixed income trades that are not
executed on an agency basis, principal trades (except for certain
riskless principal trades), or other instruments traded net with no
explicit commissions.
Further, transactions for which the client has directed the
money manager to a particular broker in order to recapture a portion
of the commission for that client or to pay expenses of that client
such as sub-transfer agent fees, consultants' fees, or
administrative services fees generally do not raise the types of
conflicts for the money manager that the safe harbor of Section
28(e) was designed to address. See, e.g., 1986 Release, 51 FR at
16011. These types of directed brokerage arrangements typically
involve use of a client's commission dollars to obtain services that
directly and exclusively benefit the client. See Payment for
Investment Company Services with Brokerage Commissions, Securities
Act Release No. 7197 (July 21, 1995), 60 FR 38918 (July 28, 1995).
\28\ 15 U.S.C. 80b-1. See 1986 Release, 51 FR at 16008-09
(discussing the principal provisions of the Advisers Act and rules
and forms thereunder that impose disclosure and other obligations on
investment advisers and related persons).
\29\ 15 U.S.C. 80a-1. See 1986 Release, 51 FR at 16009
(discussing the principal provisions of the Investment Company Act
and rules and forms thereunder that impose disclosure and other
obligations on investment advisers of registered investment
companies and related persons).
\30\ Employee Retirement Income Security Act of 1974, 29 U.S.C.
1001. See also Statement of Policies Concerning Soft Dollar and
Directed Commission Arrangements, ERISA Technical Release No. 86-1,
[1986-87 Decisions] Fed. Sec. L. Rep. ] 84,009 (May 22, 1986).
\31\ Section 17(e)(1) of the Investment Company Act [15 U.S.C.
80a-17(e)(1)] generally makes it unlawful for any affiliated person
of a registered investment company to receive any compensation for
the purchase or sale of any property to or for the investment
company when that person is acting as an agent other than in the
course of that person's business as a broker-dealer. Essentially,
Section 17(e)(1) may be violated if an affiliated person of a
registered investment company, such as an adviser, receives
compensation for the purchase or sale of property to or from the
investment company. Absent the protection of Section 28(e), an
investment adviser's receipt of compensation under a client
commission arrangement for the purchase or sale of any property,
including securities, for or to the investment company may
constitute a violation of Section 17(e)(1). See U.S. v. Deutsch, 451
F.2d 98, 110-11 (2d Cir. 1971), cert. denied, 404 U.S. 1019 (1972).
If a client commission arrangement is not consistent with Section
28(e), disclosure of the arrangement would not cure any Section
17(e)(1) violation. See 1986 Release, 51 FR at 16010 n.55.
---------------------------------------------------------------------------
B. Previous Commission Guidance on the Scope of Section 28(e)
The Commission has issued three interpretive releases under Section
28(e) and a report pursuant to Section 21(a) of the Exchange Act that
addresses issues associated with Section 28(e).\32\ We discuss these
below.
---------------------------------------------------------------------------
\32\ See 2001 Release; 1986 Release; 1976 Release; III Report.
In addition, the Commission has charged money managers and broker-
dealers with violations of the federal securities laws in
circumstances in which they did not act within the safe harbor and
defrauded investors. See, e.g., Portfolio Advisory Services, LLC,
and Cedd L. Moses, Advisers Act Release No. 2038, 77 SEC Docket
2759-31 (June 20, 2002); Dawson-Samberg Capital Management, Inc. and
Judith A. Mack, Advisers Act Release No. 1889, 54 SEC 786 (Aug. 3,
2000); Founders Asset Management LLC and Bjorn K. Borgen, Advisers
Act Release No. 1879, 54 SEC 762 (June 15, 2000); Marvin & Palmer
Associates, Inc., et al., Advisers Act Release No. 1841, 70 SEC
Docket 1643 (Sept. 30, 1999); Fleet Investment Advisors, Inc.,
Advisers Act Release No. 1821, 70 SEC Docket 1217 (Sept. 9, 1999);
Republic New York Sec. Corp. and James Edward Sweeney, Exchange Act
Release No. 41036, 53 SEC 1283 (Feb. 10, 1999); SEC v. Sweeney
Capital Management, Inc., Litigation Release No. 15664, 66 SEC
Docket 1613 (Mar. 10, 1998), 1999 U.S. Dist. LEXIS 22298 (1999)
(order granting permanent injunction and other relief); Renaissance
Capital Advisers, Inc., Advisers Act Release No. 1688, 66 SEC Docket
408 (Dec. 22, 1997); Oakwood Counselors, Inc., Advisers Act Release
No. 1614, 63 SEC Docket 2034 (Feb. 11, 1997); S Squared Technology
Corp., Advisers Act Release No. 1575, 62 SEC Docket 1446 (Aug. 7,
1996); SEC v. Galleon Capital Mgmt., Litigation Release No. 14315,
57 SEC Docket 2593 (Nov. 1, 1994).
---------------------------------------------------------------------------
1. 1976 Release
In 1976, the Commission issued an interpretive release stating that
the safe harbor did not protect ``products and services which are
readily and customarily available and offered to the general public on
a commercial basis.'' \33\ The Commission identified these products and
services as examples of excluded items: ``newspapers, magazines and
periodicals, directories, computer facilities and software, government
publications, electronic calculators, quotation equipment, office
equipment, airline tickets, office furniture and business supplies.''
\34\
---------------------------------------------------------------------------
\33\ 1976 Release, 41 FR at 13678.
\34\ Id.
---------------------------------------------------------------------------
In that release, the Commission also admonished money managers not
to direct broker-dealers to make ``give-up'' payments, in which the
money manager asked the broker-dealer, retained to effect a transaction
for the account of a client, to ``give up'' part of the commission
negotiated by the broker-dealer and the money manager to another
broker-dealer designated by the money manager for whom the executing or
clearing broker is not a normal and legitimate correspondent. The
Commission stated that in order to be within the definition of
``brokerage and research services'' under Section 28(e), ``it was
intended * * * that a research service paid for in commissions by
accounts under management be provided by the particular broker which
executed the transactions for those accounts.'' \35\ At the same time,
the Commission acknowledged the value of third-party research by
stating that, ``under appropriate circumstances, [Section 28(e) might]
be applicable to situations where a broker provides a money manager
with research produced by third parties.'' \36\ The Commission
emphasized that the money manager ``should be prepared to demonstrate
the required good faith determination in connection with the
transaction.'' \37\
---------------------------------------------------------------------------
\35\ Id. at 13679.
\36\ Id.
\37\ Id.
---------------------------------------------------------------------------
2. Report in the Matter of Investment Information, Inc.
In 1980, the Commission issued a report pursuant to Section 21(a)
of the Exchange Act following an investigation of Investment
Information, Inc.'s (``III'') purported client commission arrangements
(``III Report''). \38\ III managed the client commission programs of
money managers. Typically, under these arrangements, the money manager
directed brokerage transactions to broker-dealers that III designated.
The broker-dealers, who provided execution services only, retained half
of each commission and remitted the balance to III. III retained a fee
(for ``services'' that III provided to money managers, ostensibly for
managing the client commission accounts) and credited a portion of its
commission to the money manager's account. The money manager could
either recapture the credited amount (i.e., receive cash) for the
benefit of his client or use the credit to purchase research
services.\39\ The money managers made the arrangements for acquiring
the research services directly with the service vendors, and III simply
paid the bills for the services as the money managers requested. The
executing broker-dealers were unaware of the specific services the
money managers acquired from the vendors. III was not a registered
broker-dealer, and it did not perform any kind of brokerage function in
the securities transactions.
---------------------------------------------------------------------------
\38\ See III Report, 19 SEC Docket at 926.
\39\ Applying the 1976 standard, the Commission found that
certain services received by some participating money managers were
not research services because these services were readily and
customarily available and offered to the general public on a
commercial basis. These included such items as periodicals,
newspapers, quotation equipment, and general computer services. See
III Report, 19 SEC Docket at 931 n.17.
---------------------------------------------------------------------------
The Commission found that these arrangements did not fall within
Section 28(e) of the Exchange Act because the broker-dealers that were
``effecting'' the transactions ``in no significant sense provided the
money managers with research services.'' \40\ They only executed the
transactions and paid a portion of the commissions to III. The broker-
dealers were not aware of the specific services that the managers
acquired and did not pay the bills for these services. The Commission
concluded that, although Section 28(e) does not require a broker-dealer
to produce research services ``in-house,'' the services must
nevertheless be
[[Page 41982]]
``provided by'' the broker-dealers. The Commission found that a broker-
dealer is not providing research services when it pays obligations the
money manager owes to a third party. The Commission indicated that,
consistent with Section 28(e), broker-dealers could arrange to have the
third-party research provided directly to the money manager, with the
payment obligation falling on the broker-dealer.\41\
---------------------------------------------------------------------------
\40\ Id. at 931-32.
\41\ Id. at 932.
---------------------------------------------------------------------------
3. 1986 Release
Following a staff examination of client commission practices in
1984-1985, the Commission concluded that the 1976 standard was
``difficult to apply and unduly restrictive in some circumstances,''
particularly as the types of research products and their method of
delivery had proliferated and become more complex.\42\ The Commission
expressed concern that ``uncertainty about the standard may have
impeded money managers from obtaining, for commission dollars, goods
and services'' that they believed were important to making investment
decisions.\43\
---------------------------------------------------------------------------
\42\ 1986 Release, 51 FR at 16005.
\43\ Id. at 16005-06.
---------------------------------------------------------------------------
The Commission withdrew the 1976 standard and construed the safe
harbor to be available to research services that satisfy the statute's
definition of ``brokerage and research services'' in Section 28(e)(3)
and provide ``lawful and appropriate assistance to the money manager in
the performance of his investment decision-making responsibilities.''
\44\ We concluded that a product or service that was readily and
customarily available and offered to the general public on a commercial
basis nevertheless could constitute research. The 1986 Release also re-
affirmed that, under appropriate circumstances, money managers may use
client commissions to obtain third-party research (i.e., research
produced by someone other than the executing broker-dealer).\45\ The
1986 Release also emphasized the importance of written disclosure of
client commission arrangements to clients and reiterated a money
manager's duty to seek best execution.
---------------------------------------------------------------------------
\44\ Id. at 16006.
\45\ Id. at 16007.
---------------------------------------------------------------------------
The 1986 Release also introduced the concept of ``mixed use.'' In
many cases, a product or service obtained using client commissions may
serve functions that are not related to the investment decision-making
process, such as accounting or marketing. Management information
services, which may integrate trading, execution, accounting,
recordkeeping, and other administrative matters such as measuring the
performance of accounts, were noted as an example of a product that may
have a mixed use. The Commission indicated that where a product has a
mixed use, an investment manager should make a reasonable allocation of
the cost of the product according to its use, and should keep adequate
books and records concerning the allocations.\46\ The Commission also
noted that the allocation decision itself poses a conflict of interest
for the money manager that should be disclosed to the client. In the
1986 Release, the Commission stated that a money manager may use client
commissions pursuant to Section 28(e) to pay for the portion of a
service or specific component that assists him in the investment
decision-making process, but he cannot use client commissions to pay
for that portion of a service that provides him administrative
assistance.\47\
---------------------------------------------------------------------------
\46\ Id. at 16006.
\47\ Id.
---------------------------------------------------------------------------
The 1986 Release also addressed third-party research. Citing to the
III Report, the Commission reaffirmed its view that, ``while a broker
may under appropriate circumstances arrange to have research materials
or services produced by a third party, it is not 'providing' such
research services when it pays obligations incurred by the money
manager to the third party.'' \48\ In the III Report, the Commission
found that the money managers and the research vendors, rather than the
broker-dealers, had made all of the arrangements for acquiring the
services.\49\
---------------------------------------------------------------------------
\48\ Id.
\49\ Id. at 16007.
---------------------------------------------------------------------------
4. 2001 Release
Until 2001, the Commission interpreted Section 28(e) to be
available only for research and brokerage services obtained in relation
to commissions paid to a broker-dealer acting in an ``agency''
capacity.\50\ That interpretation meant that money managers could not
rely on the safe harbor for research and brokerage services obtained in
relation to fees charged by market makers when they executed
transactions in a ``principal'' capacity. The Commission interpreted
the term ``commission'' in Section 28(e) in this fashion because, in
the Commission's view, fees on principal transactions were not
quantifiable and fully disclosed in a way that would permit a money
manager to determine that the fees were reasonable in relation to the
value of research and brokerage services received.\51\
---------------------------------------------------------------------------
\50\ See 2001 Release, 67 FR at 6; 1995 Rule Proposal, 60 FR at
9751 n.10; Investment Company Act Release No. 20472 (Aug. 11, 1994),
59 FR 42187, 42188 n.3 (Aug. 17, 1994).
\51\ 2001 Release, 67 FR at 7.
---------------------------------------------------------------------------
In 2001, the Nasdaq Stock Market asked the Commission to reconsider
this interpretation of Section 28(e) to apply also to research and
brokerage services obtained in relation to fully and separately
disclosed fees on certain riskless principal transactions effected by
National Association of Securities Dealers, Inc. (``NASD'') members and
reported under NASD trade reporting rules.\52\ Based on required
disclosure of fees under confirmation rules and reporting of the trade
under NASD rules, the Commission determined that the money manager
could make the necessary determination of the reasonableness of these
charges under Section 28(e). The Commission therefore modified its
interpretation of ``commission'' for purposes of the Section 28(e) safe
harbor to encompass fees paid for riskless principal transactions in
which both legs are executed at the same price and the transactions are
reported under the NASD's trade reporting rules.\53\
---------------------------------------------------------------------------
\52\ See Letter from Hardwick Simmons, Chief Executive Officer,
The Nasdaq Stock Market, Inc. to Harvey L. Pitt, Chairman, U.S.
Securities and Exchange Commission (Sept. 7, 2001) (on file with the
Commission).
\53\ 2001 Release, 67 FR at 7.
---------------------------------------------------------------------------
C. 1998 Office of Compliance Inspections and Examinations Report
In 1998, after OCIE conducted examinations of approximately 355
broker-dealers, advisers, and funds, the Commission published the
staff's report, which described the range of products and services that
advisers obtain under their client commission arrangements.\54\ The
report raised concerns about the nature of products and services that
were being treated as ``research,'' the purchase of ``mixed-use''
items, disclosure by advisers about their client commission
arrangements, and recordkeeping.\55\ The 1998 OCIE Report made several
recommendations for improving commission practices, including that the
Commission provide further guidance on the scope of the safe harbor and
require better recordkeeping and enhanced disclosure of client
commission arrangements and transactions.\56\
---------------------------------------------------------------------------
\54\ See 1998 OCIE Report, at 3.
\55\ 1998 OCIE Report, at 4-5.
\56\ Id. at 47-52.
---------------------------------------------------------------------------
[[Page 41983]]
D. Report of the NASD's Mutual Fund Task Force
In 2004, the NASD Mutual Fund Task Force, composed of senior
executives from mutual fund management companies and broker-dealers, as
well as representatives from the academic and legal communities,
published observations and recommendations to the Commission concerning
client commission practices and portfolio transaction costs.\57\ In
particular, the NASD Task Force Report recommended that the Section
28(e) safe harbor be retained, but that the interpretation of the scope
of research services be narrowed to better tailor it to the types of
client commission services that principally benefit the adviser's
clients rather than the adviser.\58\ The NASD Task Force Report
recommended that the Commission interpret the safe harbor to protect
only brokerage services as described in Section 28(e)(3) and the
``intellectual content'' of research, but not the means by which such
content is provided.\59\ The NASD Task Force Report suggested that this
approach would exclude magazines, newspapers, and other such
publications that are in general circulation to the retail public, and
such items as computer hardware, phone lines, and data transmission
lines.\60\The NASD Task Force Report emphasized that the safe harbor
should encompass third-party research and proprietary research on equal
terms, and recommended improved disclosure.\61\
---------------------------------------------------------------------------
\57\ See NASD, Report of the Mutual Fund Task Force, ``Soft
Dollars and Portfolio Transaction Costs'' (Nov. 11, 2004) (``NASD
Task Force Report''), available at https://www.nasd.com/web/groups/
rules_regs/documents/rules_regs/nasdw_012356.pdf.
\58\ NASD Task Force Report, at 5.
\59\ NASD Task Force Report, at 6-7. The Task Force proposed
that ``intellectual content'' be defined as ``any investment
formula, idea, analysis or strategy that is communicated in writing,
orally or electronically and that has been developed, authored,
provided or applied by the broker-dealer or third-party research
provider (other than magazines, periodicals or other publications in
general circulation).'' Id. at 7.
\60\ Specifically, the NASD Task Force indicated that its
proposed definition of research services would exclude the
following: Computer hardware and software, unrelated to any research
content or analytical tool; phone lines and data transmission lines;
terminals and similar facilities; magazines, newspapers, journals,
and on-line news services; portfolio accounting services; proxy
voting services unrelated to issuer research; and travel expenses
incurred in company visits. NASD Task Force Report, at 7.
\61\ Regarding disclosure, the NASD Task Force Report
recommended, among other things: (a) Ensuring that fund boards
obtain information about a fund adviser's brokerage allocation
practices and client commission services received; (b) mandating
enhanced disclosure in fund prospectuses to improve investor
awareness; (c) applying disclosure requirements to all types of
commissions; and (d) enhancing disclosure to investors about
portfolio transaction costs. NASD Task Force Report, at 4. See supra
note 13.
---------------------------------------------------------------------------
E. United Kingdom Financial Services Authority (``FSA'')
On July 22, 2005, the FSA adopted final client commission rules in
conjunction with issuing policy statement PS 05/9.\62\ The final rules
describe ``execution'' and ``research'' services and products eligible
to be paid for by commissions, and specify a number of ``non-
permitted'' services that must be paid for in hard dollars, such as
custody not incidental to execution, computer hardware, telephone
lines, and portfolio performance measurement and valuation
services.\63\ The policy statement also acknowledges that some products
and services may be permitted or non-permitted depending on how they
are used by the money manager.\64\ The rules became effective beginning
in January 2006, with a transitional period until June 2006.\65\
---------------------------------------------------------------------------
\62\ U.K. Financial Services Authority, Policy Statement 05/9,
Bundled Brokerage and Soft Commission Arrangements: Feedback on CP
05/5 and Final Rules (July 2005) (``FSA Final Rules''), available at
https://www.fsa.gov.uk/pages/library/policy/policy/2005/05_
09.shtml. The rules apply only to equity trades and not to fixed
income trades. FSA Final Rules, at Annex, p. 6 (Conduct of Business
Sourcebook Rule 7.18.1). The FSA proposed the rules in March 2005.
See Consultation Paper 05/5, Bundled Brokerage and Soft Commission
Arrangements: Proposed Rules (Mar. 2005) (``FSA Rule Proposal''),
available at https://www.fsa.gov.uk/pubs/cp/cp05_05.pdf.
\63\ See FSA Final Rules, at Annex, pp. 8-9 (Conduct of Business
Sourcebook Rules 7.18.4 to 7.18.8). See also FSA Rule Proposal, at
63-64.
\64\ FSA Final Rules, at 5. The rules also set forth the
principle that investment managers should inform advisory clients
how their commissions are being spent, and indicate that, in
evaluating compliance with this principle, the FSA will have regard
for the extent to which investment managers adopt the disclosure
standards developed by industry associations such as the U.K.
Investment Management Association (``IMA''). See FSA Final Rules, at
Annex, p. 11 (Conduct of Business Sourcebook Rule 7.18.14). See also
Investment Management Association, Pension Fund Disclosure Code,
Second Edition (Mar. 2005), available at https://
www.investmentuk.org/news/standards/pfdc2.pdf.
\65\ FSA Final Rules, at 5. Firms were permitted to continue to
comply with existing rules until the earlier of the expiration of
existing agreements or June 30, 2006.
---------------------------------------------------------------------------
With the globalization of the world's financial markets, many U.S.
market participants have a significant presence abroad, and in
particular in the United Kingdom. To the extent that the Commission's
approach to client commissions is compatible with that taken in the
United Kingdom., market participants' costs of compliance with multiple
regulatory regimes are reduced. Therefore, we have taken the FSA's work
into account in developing our position in this release, while
recognizing the significant differences in our governing law and rules,
such as the fact that the United Kingdom. does not have a statutory
provision similar to Section 28(e).\66\ This interpretive guidance is
generally consistent with the FSA's rules, with a few exceptions.\67\
---------------------------------------------------------------------------
\66\ We have also taken note of the views of other regulators.
See Ontario Securities Commission, Concept Paper 23-402, Best
Execution and Soft Dollar Arrangements (Feb. 8, 2005), available at
https://www.osc.gov.on.ca/ Regulation/Rulemaking /Current/Part2 /cp--
20050204-- 23-402--bestexecution.jsp; Australian Securities and
Investments Commission, Press Release 04-181, Soft Dollar Benefits
Need Clear Disclosure (June 10, 2004), available at https://
www.asic.gov.au/asic /ASIC--PUB.NSF /byid/77D7FCEFB7653EC5
CA256EAF0002F6C2? opendocument.
\67\ The FSA has determined that market data that has not been
analyzed or manipulated does not meet the requirements of a research
service, but permits managers to justify using client commissions to
pay for raw data feeds as execution services. The FSA also has
identified subscriptions for publications and seminar fees as ``non-
permitted'' services. FSA Final Rules, at 2.15 and Annex, p. 9
(Conduct of Business Sourcebook Rules 7.18.7, 7.18.8(d), and
7.18.8(e)).
---------------------------------------------------------------------------
III. Commission's Interpretive Guidance
In light of developments in client commission practices, evolving
technologies, marketplace developments, the observations of the staff
in examinations of industry participants, and comments received on the
Proposing Release, we have revisited our previous guidance as to the
meaning of the phrase ``brokerage and research services'' in Section
28(e). After careful consideration, we are providing a revised
interpretation that replaces Sections II and III of the 1986
Release.\68\ Specifically, we are providing guidance with respect to:
(i) The appropriate framework for analyzing whether a particular
service falls within the ``brokerage and research services'' safe
harbor; (ii) the eligibility criteria for ``research''; (iii) the
eligibility criteria for ``brokerage''; and (iv) the appropriate
treatment of ``mixed-use'' items. We also discuss the money manager's
statutory requirement to make a good faith determination that the
commissions paid are reasonable in relation to the value of the
brokerage and research services received. Finally, we are issuing
guidance on third-party research and client commission arrangements and
are seeking further comment relating to client commission arrangements
(Section III.I of this Release).
---------------------------------------------------------------------------
\68\ Our interpretation does not replace other sections of the
1986 Release.
---------------------------------------------------------------------------
Section 28(e) applies equally to arrangements involving client
commissions paid to full service broker-
[[Page 41984]]
dealers that provide brokerage and research services directly to money
managers, and to third-party research arrangements where the research
services and products are developed by third parties and provided by a
broker-dealer that participates in effecting the transaction. Today, it
remains true that, if the conditions of the safe harbor of Section
28(e) are met, a money manager does not breach his fiduciary duties
solely on the basis that he uses client commissions to pay a broker-
dealer more than the lowest available commission rate for a bundle of
products and services provided by the broker-dealer (i.e,. anything
more than ``pure execution'').
A. Present Environment
In the 1986 Release, the Commission incorporated from the
legislative history the phrase ``lawful and appropriate assistance'' to
the money manager in carrying out his investment decision-making
responsibilities in developing the Commission standard governing the
range of brokerage and research products and services that may be
obtained by a money manager within the safe harbor.\69\ Since that
time, some have construed this standard broadly to apply to services
and products that are only remotely connected to the investment
decision-making process. In some cases, ``administrative'' or
``overhead'' goods and services have been classified as research.\70\
In the 1998 OCIE Report, examiners reported that 28% of the money
managers and 35% of the broker-dealers that were examined had entered
into at least one arrangement that, in the staff's view, was outside of
the scope of Section 28(e) and the 1986 Release.\71\ In particular,
OCIE examiners identified numerous examples of advisers that it
believed failed to separate overhead or administrative expenses from
those items that provide benefits to clients as brokerage and research
services.\72\ Examples of non-research items included: Chartered
financial analyst (``CFA'') exam review courses, membership dues and
professional licensing fees, office rent, utilities, phone, carpeting,
marketing, entertainment, meals, copiers, office supplies, fax
machines, couriers, backup generators, electronic proxy voting
services, salaries, and legal and travel expenses.\73\
---------------------------------------------------------------------------
\69\ See Senate Comm. on Banking, Housing and Urban Affairs,
Securities Acts Amendments of 1975, S. Rep. No. 94-75, at 71 (1975),
reprinted in 1975 U.S.C.C.A.N. 179, 249. See also infra note 82.
\70\ 1998 OCIE Report, at 31.
\71\ Id. at 22, 31.
\72\ Id. at 31.
\73\ Id. at 31-32.
---------------------------------------------------------------------------
Client commissions are also used extensively to pay for mechanisms
related to the delivery of research or brokerage services. In the 1998
OCIE Report, staff reported that some advisers used client commissions
to pay for various peripheral items that support hardware and software,
such as the power needed to run the computer and the dedicated
telephone line used to receive information into the computer.\74\
---------------------------------------------------------------------------
\74\ Id. at 34-35.
---------------------------------------------------------------------------
The products and services available to money managers have grown
more varied and complex. For example, a single software product may
perform an array of functions, but only some of the functions are
properly ``brokerage and research services'' under Section 28(e). In
the 1998 OCIE Report, staff reported that ``the types of products
available for purchase with client commissions have greatly expanded
since 1986,'' leaving industry participants to grapple with decisions
as to whether these products are ``research'' or ``brokerage'' within
the safe harbor, or whether these products should be considered part of
money managers' overhead expenses to be paid for by managers with their
own funds.\75\
---------------------------------------------------------------------------
\75\ Id. at 49.
---------------------------------------------------------------------------
The Commission observes that developments in technology have led to
difficulties in applying client commission standards that were
developed over the past thirty years. In addition, OCIE staff reported
that money managers have taken an overbroad view of the products and
services that qualify as ``brokerage and research services'' under the
safe harbor.\76\ The complexity of products and services creates
uncertainty about whether client commissions may be used within the
safe harbor to purchase all or a portion of particular products and
services. This uncertainty may result in the use of client commission
dollars to acquire products and services that are outside of the safe
harbor, improper allocation of research and non-research mixed-use
products and services (as contemplated by the 1986 Release), or
inadequate documentation of allocations.\77\
---------------------------------------------------------------------------
\76\ See id. at 3-4, 31-32.
\77\ See id. at 4-6, 32-33.
---------------------------------------------------------------------------
Questions regarding the use of client commissions have led
legislators, regulators, fund industry participants, and investors to
consider whether some uses of client commissions should be banned, the
safe harbor withdrawn, or changes made to the regulatory landscape.\78\
As a step to address the present environment and comments received in
response to the Proposing Release, the Commission has determined to
provide further guidance on the scope of the safe harbor.\79\ Further
guidance in this area may be particularly important because, under
existing law and rules, money managers must disclose client commission
arrangements as material information,\80\ and may provide more detailed
disclosure when they receive products or services that fall outside the
scope of the safe harbor. If a money manager incorrectly concludes that
a product or service is within the safe harbor, the money manager may
provide disclosure that is inadequate. In addition, guidance will
assist money managers of registered investment companies and pension
funds subject to ERISA in determining whether they are complying with
the Investment Company Act and ERISA because using client commissions
to pay for products that are outside the safe harbor may violate these
laws.
---------------------------------------------------------------------------
\78\ See, e.g., Mutual Funds Integrity and Fee Transparency Act
of 2003, H.R. 2420, 108th Cong. (2003) (This bill would have
required, among other things, that the Commission do the following:
Issue rules requiring mutual funds to disclose their policies and
practices regarding the use of client commissions to obtain
research, advice, or brokerage activities; issue rules requiring
managers to maintain copies of the written contracts with third-
party research providers; and conduct a study on the use of client
commission arrangements by managers.); Mutual Fund Transparency Act
of 2003, S. 1822, 108th Cong. (2003) (This bill would have required,
among other things, that the Commission issue a rule to require
mutual funds to disclose as fund fees and expenses brokerage
commissions paid by the fund and borne by shareholders.).
