Obligations |
Considerations
FINRA urges firms to consider whether the firm and its
associated persons, as applicable... |
Exam Findings |
Effective Practices |
REGULATION BEST INTEREST
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Obligation to comply with Reg. BI |
- Correctly apply definitions of the terms "retail
customer" and "uses" of a recommendation of a
securities transaction or investment strategy involving securities
in the context of the rule when determining its obligation to
comply with Reg. BI.
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Adherence to Reg. BI's Care
Obligation |
- Exercise reasonable diligence, care and skill to understand the
potential risks, rewards and costs associated with a recommendation
generally and in light of a retail customer's investment
profile, and have a reasonable basis to believe, based on such
understanding, that the recommendation is in the best interest of
at least some retail investors and each recommendation is in a
particular customer's best interest and does not place the
interest of the broker-dealer ahead of the customer.
- Have a reasonable basis to believe that a series of recommended
transactions taken together are not excessive and are in a retail
customer's best interest in light of the retail customer's
investment profile.
- Consider costs and reasonably available alternatives when
making recommendations to retail customers.
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- Made "recommendations that were not in the best interest
of a particular retail customer based on that retail customer's
investment profile and the potential risks, rewards and costs
associated with the recommendation."
- Broker-dealer's or associated person's interest placed
ahead of retail customer's by recommending a series of
transactions that were excessive in light of a retail
customer's investment profile.
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- In an effort to mitigate the risk of making recommendations
that might not be in a retail customer's best interest,
effective practices include:
- Establishing product review processes to identify and
categorize risk and complexity levels for existing and new
products;
- Limiting high-risk or complex product, transaction or strategy
recommendations to specific customer types; and
- Applying heightened supervision to recommendations of high-risk
or complex products.
- Implementing new surveillance processes to monitor associated
persons' compliance with Reg. BI (e.g., conducting monthly
reviews to confirm that recommendations meet requirements of the
Care Obligation, including system-driven alerts or trend criteria
to identify account type or rollover recommendations that may be
inconsistent with a customer's best interest, excessive
trading, and sale of same product(s) to a high number of retail
customers).
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Adherence to Reg. BI's Conflict of Interest
Obligation |
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- Failed to identify conflicts or inadequately addressed
identified conflicts.
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- Identifying, disclosing, and eliminating or mitigating
conflicts of interest across business lines, compensation
arrangements, relationships or agreements with affiliates, and
activities of associated persons by:
- Establishing and implementing policies and procedures to
identify and address conflicts of interest (e.g., use of conflicts
committees or other mechanisms, creating conflicts matrices
tailored to firm business that address how to eliminate, mitigate
or disclose conflicts, for example, across business lines);
- Evaluating how costs and reasonably available alternatives were
considered by sampling recommended transactions;
- Providing resources that account for reasonably available
alternatives with comparable performance, risk and return that may
be available at a lower cost to associated persons making
recommendations (e.g., worksheets to compare costs and reasonably
available alternatives, and provide guidance on relevant factors to
consider when evaluating reasonably available alternatives to a
recommended product);
- Updating client relationship management tools that compare
recommended products to reasonably available alternatives
automatically;
- Revising commission schedules to flatten the percentage rate
within product types; and
- Broadly prohibiting all sales contests.
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Adequacy of policies and procedures and complementary
testing |
- Address Reg. BI (including new obligations that did not exist
prior to Reg. BI).
- Identify and disclose or eliminate conflicts, and mitigate
conflicts that create incentives for the interests of the firm or
their associated persons to be placed ahead of the interests of its
retail customers.
- Set forth framework to sufficiently supervise compliance with
Reg. BI by:
- Identifying specific individual(s) responsible for supervising
compliance with Reg. BI;
- Specifying supervisory steps and reviews that should be taken
by designated supervisor(s), including their frequency; and
- Noting how supervisory reviews should be documented.
- Test the adequacy and performance of Reg. BI policies and
procedures.
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- Failed to modify existing policies and procedures to reflect
Reg. BI's requirements (i.e., not addressing how costs and
reasonably available alternatives should be considered when making
recommendations of securities or account types, not addressing
conflicts that create an incentive for associated persons to place
their interests ahead of those of their customers, and not
including provisions to address recordkeeping obligations and
testing of policies, procedures and controls).
- Provided "insufficiently precise guidance" (i.e., not
identifying specific individuals responsible for supervising
compliance, not detailing how the firm will comply with rule
requirements).
- Failed to develop adequate controls (or developed adequate
controls but failed to memorialize them).
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- Implementing new surveillance processes to monitor associated
persons' compliance with Reg. BI by incorporating Reg. BI
specific reviews into the branch exam program, focused on
documenting Reg. BI compliance and following firm Reg. BI
protocols.
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Full and fair disclosure and associated
controls |
- Disclose all material facts relating to:
- The scope and terms of the firm's relationship with retail
customers (e.g., material fees and costs associated with
transactions or accounts, material limitations involving securities
recommendations); and
- Conflicts of interest that are associated with the
recommendation.
- Disclose material limitations on the securities or investment
strategies involving securities that may be recommended to a retail
customer, and otherwise prevent the firm or its associated persons
from making a recommendation that place the interests of a retail
customer ahead of the interests of the firm or its associated
persons.
- Establish controls to assess disclosures to determine whether
they are provided timely, and in compliance with the SEC's
electronic delivery guidance, if provided electronically.
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- Failed to provide retail customers with "full and
fair" disclosures of all material facts related to the scope
and terms of their relationship with customers (e.g., no disclosure
of material fees, including revenue sharing or other payments
received from product providers or issuers, and other fees tied to
recommendations to rollover qualified accounts), potential
conflicts of interest associated with the recommendations made
(e.g., associated persons trading in the same securities in their
personal account(s) or outside employment), and material
limitations in securities offerings.
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- Implementing systems enhancements for tracking delivery of Reg.
BI-related documents to retail investors and retail customers in a
timely manner by automating tracking mechanisms to determine who
received relevant disclosures and memorializing delivery of such
disclosures at the earliest triggering event.
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Other firm guidance and training |
- Provides adequate training to associated persons, including
supervisory staff.
- Provides guidance:
- To assist dually-registered associated persons with determining
and disclosing the capacity in which they are acting.
- Regarding use of the term "adviser" or
"advisor" in name or title if not dually registered.
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- Failed to sufficiently "prepare associated persons to
comply with the requirements of Reg. BI beyond previous suitability
obligations" (e.g., failed to deliver initial training before
the compliance date, delivered training that did not make clear
Reg. BI's new obligations or focused on Reg. BI requirements
without explaining how associated persons should comply).
- Use of terms "advisor" or "adviser" in firm
names or titles of associated persons without appropriate
registration.
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- Implementing new surveillance processes to monitor
communication channels (e.g., email, social media) to confirm that
associated persons are not using the word "adviser" or
"advisor" in their titles if they are not IARs.
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FORM CRS |
Obligation to file with the SEC |
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- Incorrectly "determine[ed] that filing hinges solely on
making recommendations, rather than offering services to a retail
investor."
- Inaccurately claimed that because of customer base (e.g.,
retail investors who are high-net-worth individuals) or the
services offered (e.g., investment company products held directly
by an issuer, self-directed accounts), among other things, that the
firm is not subject to the delivery obligation.
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Delivery to new or prospective customers and existing
retail customers |
- To each new or prospective customer who is a retail investor
before the earliest of:
- A recommendation of an account type, securities transaction or
investment strategy involving securities;
- Placing an order for the retail investor; or
- Opening a brokerage account for the investor.
- To existing retail customers, before or at the time the firm:
- Opens a new account that is different from the retail
customer's existing account;
- Recommends that the retail customer roll over assets from a
retirement account; or
- Recommends or provides a new service or investment outside of a
formal account.
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- Implementing systems enhancements for tracking delivery of
relationship summaries to retail investors in a timely manner by
automating tracking mechanisms to determine who received them and
memorializing delivery at the earliest triggering event.
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Filing with the SEC and processes for updating such
filing |
- File the relationship summary through CRD, if the firm is
registered as a broker-dealer and through IARD, if the firm is
registered as an investment adviser, or both CRD and IARD, if the
firm is a dual-registrant.
- Establish processes to:
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- Update and file the amended relationship summary within 30 days
whenever any information becomes materially inaccurate; and
- Communicate, without charge, any changes in the updated
relationship summary to retail investors who are existing customers
within 60 days after the updates are required to be made.
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- Filed deficient relationship summary that significantly
departed from Form CRS instructions or guidance from the SEC's FAQ on Form CRS (e.g., exceeding
prescribed page length, omitting material facts, misrepresenting
financial professionals' disciplinary histories, failing to
describe types of compensation and related conflicts, incorrectly
stating that the firm does not provide recommendations, changing or
excluding language required by Form CRS, not resembling a
relationship summary).
- Failed to re-file the relationship summary in CRD in a timely
manner (i.e., within 30 days of the date when it became materially
inaccurate).
- Failed to timely communicate changes to existing retail
investor customers.
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Posting to public website |
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- Firms with a public website failed to post or prominently post
the current version of the relationship summary (i.e., in a
location and format that is not easily accessible to retail
investors), using confusing descriptions or requiring multiple
click-throughs to navigate to the relationship summary.
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Adequacy of policies and procedures and
testing |
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- Failed to include provisions to address testing of related
policies, procedures and controls.
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Adequacy of staff training |
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- Failed to adequately prepare associated persons to comply with
the requirements of Form CRS (e.g., failed to deliver initial
training before the compliance date, or delivered training that
focused on Form CRS requirements without explaining how associated
persons should comply).
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