On July 18, 2006, the US Securities and Exchange Commission (SEC) issued

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1 SEC Adopts New Soft Dollar Guidelines by Bibb L. Strench and Thomas E. Bisset Vol. 13 No. 9 September 2006 On July 18, 2006, the US Securities and Exchange Commission (SEC) issued new guidance (2006 Final Soft Dollar Guidelines) on the permissible use by money managers of soft dollars to obtain research and brokerage. 1 This article is a follow-up to our previous article, appearing in the January 2006 issue of Investment Lawyer, SEC Clarifies Meaning of Research and Brokerage in Proposed Soft Dollar Release, which discussed the SEC s soft dollar guidance as it was originally proposed on October 19, 2005 (2005 Proposed Soft Dollar Guidelines). 2 Section 28(e) of the Securities Exchange Act of 1934 (Exchange Act) is a statutory safe harbor that permits investment advisers to place trades with broker-dealers that charge more than the lowest-available commissions in return for research and brokerage services. As noted in our previous article, the SEC s interpretive guidance alters three areas of previous SEC soft dollar guidance: (1) research, (2) brokerage, and (3) thirdparty research. The SEC followed through on its proposal to narrow the safe harbor primarily by introducing new content substantive standards for research and a new temporal standard for brokerage. The 2006 Final Soft Dollar Guidelines, as adopted, replace the SEC s previous interpretation of the phrase brokerage and research services in Section 28(e), which was set forth in Sections II and III of its soft dollar interpretative guidance release issued in This article provides a brief background on the regulatory treatment of soft dollars, followed by a discussion of a recent report that many investment advisers are not aware of their actual use of soft dollars. The article next reviews the SEC s final position on what constitutes permissible research and brokerage services, noting any difference from the guidance set forth in the 2005 Proposed Soft Dollar Guidelines. It then discusses the SEC s revised guidance on third-party research. The 2006 Final Soft Dollar Guidelines were published on July 18, Money managers may continue to rely on the SEC s prior interpretations until January 24, Bibb L. Strench is a partner and Thomas E. Bisset is a counsel at Sutherland, Asbill & Brennan LLP in Washington, DC.

2 Background In 1975, the SEC and Congress eliminated fixed commission rates on national securities exchanges. In an effort to address the industry s uncertainties about paying higher commission rates to obtain research services, Congress enacted the Section 28(e) safe harbor. Section 28(e) provides in general that an investment adviser does not breach its fiduciary duty under state or federal law solely on the basis that the investment adviser 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 investment adviser 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. Since the enactment of Section 28(e), the SEC has issued a series of releases, including the 1986 Release, regarding what is permissible research and brokerage services. 4 A number of recent developments prompted the SEC to issue the latest guidance. In 2004, the NASD Task Force Report recommended that the SEC interpret the safe harbor to protect only brokerage services as described in Section 28(e)(3) and the intellectual content of research. 5 On October 19, 2005, the SEC proposed new guidance on the permissible use of soft dollars and received letters from over 70 commenters. 6 On July 12, 2006, the SEC held an open hearing on its proposed soft dollar interpretative release. The previous article published in the January, 2006 edition of the Investment Lawyer contains a more complete history of the soft dollar guidance. Soft Dollar Reporting Obviously, money managers must first be aware of the fact that they participate in soft dollar arrangements for the 2006 Final Soft Dollar Guidelines to be of any benefit to them. Surprisingly, many may not be aware of their participation in such arrangements. Money managers registered with the SEC as investment advisers must check Yes or No to Item 8E of Part I of their Form ADV (registration form), which asks whether they receive research products or services other than execution from broker-dealers that effect client securities transactions. According to a report jointly issued by the National Regulatory Service and Investment Adviser Association, only 61 percent of the advisers surveyed answered this question in the affirmative. 7 Previous surveys showed similar results. Because the SEC believed that more advisers were receiving research in connection with brokerage than was reported in this and other surveys, it revised its Question and Answer release for Form ADV to state: Answer Yes to Item 8.E. if you receive any research or other product or service that is not execution from a broker-dealer or a third party in connection with client securities transactions. The source of the research, i.e., whether it is produced by a third party or the executing broker, does not determine your answer to Item 8.E. Thus, a Yes answer is required notwithstanding the fact that the services are not part of a traditional soft dollar research arrangement and are not directly tied to the amount of trading or commissions paid. The 2006 Final Soft Dollar Guidelines therefore are relevant to a large segment of the money management industry, including a number of money managers that are not aware of their need to rely on Section 28(e). Research The 2006 Final Soft Dollar Guidelines did not significantly alter the SEC s interpretation of research services that was set forth in the 2005 Proposed Soft Dollar Guidelines. As in the proposal, the SEC in the 2006 Final Soft Dollar Guidelines set forth the following framework for analyzing whether a particular product or service falls within research. In reaching its conclusion about whether a particular product or service falls within the Section 28(e) safe harbor, a money manager must determine: 1. Whether the product or service is eligible research (Eligible Research) under Section 28(e)(3)(A) and (B); 2. Whether the Eligible Research actually provides lawful and appropriate assistance in the performance of his investment decisionmaking responsibilities. When 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; and 3. That the amount of client commissions paid is reasonable in light of the value of the Eligible Research provided by the broker-dealer. THE INVESTMENT LAWYER 2

3 Eligibility Criteria for Research Most companies submitting comment letters supported the narrowing of the scope of permissible research. 8 Accordingly, the SEC did not significantly modify the approach it set forth in the 2005 Proposed Soft Dollar Guidelines. With respect to any particular product or service, it must first fall within one of the three following categories: (1) advice, (2) analyses, or (3) reports. Second, the product or service must reflect the expression of reasoning or knowledge of its producer or creator. The 2006 Final Soft Dollar Guidelines gave the following example of products and services meeting this test: Traditional research reports analyzing the performance of a company or stock; Discussions with research analysts; Meetings with corporate executives; Seminars providing substantive content on the topic; Software that provides analyses of securities portfolios; and Corporate governance research and rating services. Third, the product or service must relate to the subject matter identified in paragraphs (3)(A) and (3)(B) of Section 28(e), which are: Advice 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; or Analysis and reports concerning issuers, industries, securities, economic factors and trends, portfolio strategy and the performance of accounts. If these three requirements are satisfied, a particular product or service will be Eligible Research. The SEC re-visited the following types of research products and services in the 2006 Final Soft Dollar Guidelines and provided guidance as to whether such products and services could qualify as Eligible Research: i. Mass-Marketed Publications. The SEC stated that mass-marketed publications (i.e., those publications intended for and marketed to a broad public audience) are not Eligible Research because they are more appropriately considered as overhead expenses of money managers. Trade magazines and technical journals are limited exceptions from this position. ii. Tangible Products and Services. Telephone lines, office furniture and other products with inherently tangible or physical attributes are not Eligible Research. Even if such products assist in the delivery of research, they are not eligible products because they do not reflect substantive content related in any way to making decisions about investments. iii. Market Research. Market research, such as advice on market color and execution strategies, is Eligible Research. The SEC noted that market research can include pre-trade and post-trade analytics, software and other products that generate research from feeds of market information. iv. Data. Data services such as market and economic data streams are a form of Eligible Research. v. Proxy Services. The SEC took the position that proxy services may be a form of Eligible Research, but only after a careful analysis of whether the service assists the money manager in determining the advisability of investing in, or retaining, a security. Because proxy services typically have an administrative component, the SEC advised that they should be treated and accounted for as a mixed-use item. Lawful and Appropriate Assistance A money manager may enter into a soft dollar arrangement whereby it receives Eligible Research only if such Research provides lawful and appropriate assistance in the money manager s investment decisionmaking responsibilities. The SEC in the 2006 Final Soft Dollar Guidelines added little guidance on this issue, except to caution that a soft dollar arrangement in which Eligible Research is obtained will not be able to rely on the Section 28(e) soft dollar safe harbor if the product or service is used for non-investment purposes such as marketing. Reasonable Commissions A money manager may enter into a soft dollar arrangement whereby it receives Eligible Research 3 Vol. 13 No. 9 September 2006

4 and such Eligible Research provides lawful and appropriate assistance only if the amount of client commissions paid must be reasonable in light of the value of the Eligible Research provided by the broker-dealer. The SEC cautioned that the money manager may not enter into a soft dollar arrangement to obtain Eligible Products if the purpose of the arrangement is to camouflage the payment of higher commissions for ineligible services such as shelf space or client referrals. The SEC further noted that broker-dealers offering Eligible Research for unbundled prices can help the money manager make its good faith determination as to the value of the Eligible Research. Brokerage As with research, the 2006 Final Soft Dollar Guidelines did not significantly alter the SEC s interpretation of brokerage services that was set forth in the 2005 Proposed Soft Dollar Guidelines. However, the 2006 Final Soft Dollar Guidelines did provide some useful guidance on a number of questions that arose from the 2005 Proposed Soft Dollar Guidelines regarding the treatment of certain products and services as brokerage under the Section 28(e) safe harbor, such as pre- and post-trade analytics, order management systems (OMS), and custody. Consistent with the approach for analyzing the eligibility of a product or service as Eligable Research under the safe harbor, the 2006 Final Soft Dollar Guidelines set forth the same general three step analytical framework for determining whether a product or service qualifies as brokerage under the safe harbor. In analyzing whether a particular product or service is brokerage for purposes of Section 28(e), a money manager must determine: 1. Whether the product or service is eligible brokerage (Eligible Brokerage) under Section 28(e)(3)(C); 2. Whether the Eligible Brokerage provides lawful and appropriate assistance in the performance of the money manager s brokerage allocation responsibilities. When a product or service has a mixed use, the money manager must make a reasonable allocation of the costs of the product or service according to its use; and 3. Whether the amount of client commissions paid is reasonable in light of the value of the Eligible Brokerage provided by the brokerdealer. Eligible Brokerage and the Temporal Standard For a product or service to be Eligible Brokerage, the product or service must relate to the subject matter identified in paragraph (3)(C) of Section 28(e). Paragraph (3)(C) of Section 28(e) includes not only activities necessary to effect securities transactions, but also functions incidental thereto as well as functions required by SEC and self-regulatory organization (SRO) rules (such as electronic confirmation and affirmation of institutional trades in connection with settlement processing). 9 Clearance, settlement, and custody services performed in connection with effecting securities transactions are incidental brokerage services for purposes of the safe harbor and qualify as Eligible Brokerage. As it did in the 2005 Proposed Soft Dollar Guidelines, the SEC concludes in the 2006 Final Soft Dollar Guidelines that Congress intended brokerage services under the safe harbor to relate only to the execution of securities transactions. 10 To effectuate that Congressional intent, the SEC reaffirms the use of the temporal standard as originally proposed in the 2005 Proposed Soft Dollar Guidelines as an appropriate means to distinguish between products and services that are Eligible Brokerage and products and services, such as overhead, that are not eligible for the safe harbor. Under the temporal standard, brokerage services that fall within the safe harbor are those products and services that relate to the execution of a 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 or the account holder s agent. 11 Products and services provided outside that timeframe are not eligible for the protection afforded brokerage under the safe harbor. Commenters were critical of the temporal standard after its proposal by the SEC in the 2005 Proposed Soft Dollar Guidelines. Several commenters advocated redefining the temporal standard to begin at some earlier point to include within the protection of the safe harbor pre-trade analytics 12 and OMS used by money managers to manage order flow. 13 Commenters, in particular, objected to the statement in the 2005 Proposed Soft Dollar Guidelines that OMS are not sufficiently related to order execution and fall outside the temporal standard for brokerage under the safe harbor. 14 Those commenters argued that OMS should be treated as a mixed use prod- THE INVESTMENT LAWYER

5 uct or service, noting that OMS can provide connectivity or order routing functions that facilitate the execution of securities transactions as well as provide analytic tools that assist money managers in the investment decisionmaking process. 15 Some commentators also questioned whether the temporal standard excluded custodial services from the safe harbor notwithstanding the inclusion of custody in the definition of brokerage services in Section 28(e) and requested clarification from the SEC on this point. 16 They noted that the 2005 Proposed Soft Dollar Guidelines did not identify custodial services as incidental brokerage services eligible for the safe harbor and that custodial services continue after settlement, and as such, fall outside the temporal standard. Notwithstanding the SEC s refusal to modify the temporal standard in response to criticism from commenters that the temporal standard was too restrictive in defining the starting and ending points for activities that constitute brokerage, the 2006 Final Soft Dollar Guidelines provide guidance on the treatment of pre- and post-trade analytics, OMS, and custodial services under Section 28(e) that should prove helpful to money managers. With respect to pre-trade and post-trade analytics, although both activities clearly fall outside the temporal standard and do not qualify as Eligible Brokerage, the 2006 Final Soft Dollar Guidelines confirm that those activities as well as other products and services that depend on market information to generate market research may qualify for safe harbor treatment as Eligible Research. 17 In response to comments received from industry commenters, the 2006 Final Soft Dollar Guidelines modify the position taken by the SEC in the 2005 Proposed Soft Dollar Guidelines with respect to OMS. The 2006 Final Soft Dollar Guidelines acknowledge the diversity and multifaceted nature of OMS and that certain aspects of OMS may qualify under the Section 28(e) safe harbor as Eligible Brokerage. 18 Specifically, the 2006 Final Soft Dollar Guidelines note that some OMS include trading software to route orders, provide algorithmic trading strategies, or transmit orders to direct market access (DMA) systems and confirm that those aspects of OMS may qualify as Eligible Brokerage. The 2006 Final Soft Dollar Guidelines also help to clarify the treatment of custodial services under the Section 28(e) safe harbor. In the SEC s view, Section 28(e) limits the availability of the safe harbor to those custodial services that are incidental to effecting securities transactions. 19 Short-term custody related to effecting securities transactions and clearance and settlement of those transactions is tied to processing trades from the time orders are placed with brokerdealers to settlement and fits squarely within the temporal standard. Therefore, according to the 2006 Final Soft Dollar Guidelines, short-term custody falls within the scope of the safe harbor as Eligible Brokerage. On the other hand, according to the 2006 Final Soft Dollar Guidelines, long-term custody and custodial recordkeeping services do not qualify as Eligible Brokerage. Both long-term custody and custodial recordkeeping services are provided after the clearance and settlement of securities transactions, and as such, fall outside the temporal standard. 20 Exhibit 1 summarizes the SEC s specific guidance in the 2006 Final Soft Dollar Guidelines on the types of products and services that constitute Eligible Brokerage and those that do not constitute Eligible Brokerage under the safe harbor. Mixed Use Analysis The 2006 Final Soft Dollar Guidelines, as the 2005 Proposed Soft Dollar Guidelines, reaffirm the mixed use analytic approach adopted by the SEC in the 1986 Release. 21 When a product or service obtained using client commissions performs functions that qualify as either Eligible Research or Eligible Brokerage under the safe harbor and performs functions that do not, the mixed use approach requires the money manager to make a reasonable allocation of the cost of the product or service according to its use. The money manager may use client commissions to pay for the portion of the product or service that constitutes Eligible Research or Eligible Brokerage, but may not use commissions to pay for ineligible uses. Adequate books and records of mixed use allocations must be kept to demonstrate the money manager s good faith determination that commissions paid for the mixed use product or service were reasonable in relation to the value of the research or brokerage received. The SEC in the 2006 Final Soft Dollar Guidelines expressed concern that some money managers may have engaged in questionable mixed use allocations and failed to document the basis for their allocation decisions. 22 The SEC cautioned that lack of documentation would make it difficult for money managers to make the required showing of the reasonableness of the commissions paid in relation to the value of the portion of the product Vol. 13 No. 9 September 2006

6 Exhibit 1 Brokerage Clearance and settlement services, such as the following: post-trade matching of trade information; exchanges of messages among broker-dealers, custodians, and institutions related to the securities transaction; electronic communication of trade allocation instructions between institutions and broker-dealers; routing of settlement instructions to custodian banks and brokerdealers clearing agents; short-term custody related to particular trades Comparison services required by SEC or SRO rules, such as electronic confirms or affirmations of institutional trades Connectivity services between the money manager and the broker and other relevant parties, such as a custodian Dedicated lines between brokers and money manager OMS; lines between brokers and OMS operated by third party vendors; dedicated lines providing direct dial-up service between the money manager and the broker s trading desk Message services to transmit orders to brokers Trading software to route orders to market centers Algorithmic trading software Software functionality to transmit orders to DMA systems Aspects of OMS, such as trading software to route orders, provide algorithmic trading software, transmit orders to DMA systems Non-Brokerage Pre- and post-trade analytics Hardware, such as telephone and computer terminals Software functionality for recordkeeping or administrative purposes, such as managing portfolios, quantitative analytical software used to test what if scenarios related to adjusting portfolios, asset allocation, portfolio modeling Surveillance systems and compliance systems Error correction trades or related error correction services Aspects of OMS, other than trading software to route orders, provide algorithmic trading software, transmit orders to DMA systems Long-term custody and custodial record keeping services or service allocated as brokerage or research under Section 28(e), and for compliance personnel to ascertain the basis of the allocation. At the open meeting of the SEC held on July 12, 2006 to discuss the new soft dollar guidelines, SEC Commissioners addressed, among other things, the need for disclosure to make money manager soft dollar practices transparent to mutual fund boards of directors and assigned to the SEC s Division of Investment Management responsibility for fashioning rules to implement such disclosure. With that in mind, money managers should take seriously the SEC s caution noted previously, as the review of money manager soft dollar practices, including mixed use allocations, will likely be a focus of SEC staff examination and rulemaking efforts and a subject of heightened scrutiny by mutual fund boards in the future. Lastly, the 2006 Final Soft Dollar Guidelines provide guidance to help money managers meet their obligation to make good faith determinations of the reasonableness of mixed use allocations. According to the 2006 Final Soft Dollar Guidelines, money managers must undertake a good faith, fact-based analysis of how the money manager and its employees use the product or service in question. 23 The 2006 Final Soft Dollar Guidelines allow money managers to infer the relative cost of a mixed use product or service from the relative benefits to the money manager or its clients. Factors money managers may consider include, but are not be limited to, (1) the amount of time the money manager uses the mixed use product or service for Eligible Research and/or Eligible Brokerage purposes versus non-eligible purposes; (2) the relative utility (measured by objective metrics) to the money manager of the Eligible Research and/or Eligible Brokerage uses and non-eligible uses; and (3) the extent to which the mixed use product or service is redundant with other products or services employed by the money manager for the same purpose(s). THE INVESTMENT LAWYER 6

7 Third-Party Research Section 28(e) requires that the broker-dealer receiving commissions for effecting transactions must provide the brokerage or research services. The SEC 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 third-party research ). 24 A number of commenters to the 2005 Proposed Soft Dollar Guidelines recommended that money managers have more flexibility to seek best execution and separately obtain research. In their view, this could be accomplished best by permitting the broker to be responsible for execution and another party to be responsible for providing eligible research. The SEC reaffirmed 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). In response to the commenters, the SEC, however, modified is previous interpretation of provided by by permitting a money manager to use soft dollars to obtain research from either: An introducing broker-dealer whose role in effecting securities transactions is very limited; or A research preparer whose services are deemed to be provided by by a brokerdealer remitting research payments as directed by the money manager. This modification may have a positive unbundling effect that results in money managers treating execution and research as separate functions. Conclusion By issuing the 2006 Final Soft Dollar Guidelines, the SEC expressed its support for continuing to allow money managers to use soft dollars to pay for proprietary and third-party research services. This action clarified months of uncertainty in the marketplace regarding whether money managers could continue to use client commissions to acquire investment research. The 2006 Final Soft Dollar Guidelines will not be the end of the story of soft dollar guidance. The Commissioners in the open hearing and the SEC in the 2006 Final Soft Dollar Guidelines recognized that improvements may be necessary in disclosure and documentation of client commission practices. Furthermore, the SEC asked for additional comment on industry practices with respect to client commission arrangements under the Section 28(e) safe harbor to evaluate whether additional guidance might be appropriate in the future. NOTES 1. See Commission Guidance Regarding Client Commission Practices Under Section 28(e) of the Securities Exchange Act of 1934, Securities Exchange Act Rel. No (July 18, 2006) (2006 Adopting Release). 2. See Commission Guidance Regarding Client Commission Practices Under Section 28(e) of the Securities Exchange Act of 1934, Securities Exchange Act Rel. No (Oct. 19, 2005) (2005 Proposing Release). 3. See Interpretative Release Concerning Scope of Section 28(e) of the Securities Exchange Act of 1934, Securities Exchange Act Rel. No (Apr. 23, 1986) (1986 Release). 4. See Interpretations of Section 28(e) of the Securities Exchange Act of 1934; Use of Commission Payments by Fiduciaries, Securities Exchange Act Rel. No (Mar. 24, 1976) (1976 Release); 1986 Release; and Exchange Act Release No (Dec. 27, 2001). See also Office of Compliance Inspections and Examination, US Securities and Exchange Commission, Inspection Report on the Soft Dollar Practices of Broker-Dealers, Investment Advisers and Mutual Funds (Sept. 22, 1998), which is a report the SEC issued after its examination arm conducted an extensive examination of broker-dealers, advisers, and mutual funds. 5. See NASD, Report of the Mutual Fund Task Force, Soft Dollars and Portfolio Transaction Costs (Nov. 11, 2004 (NASD Task Force Report). 6. See 2005 Proposing Release. 7. See 2006 Evolution/Revolution: A Profile of the U.S. Investment Advisory Profession by NRS and the IAA 14 (July 2006). 8. See 2006 Adopting Release, n For purposes of Section 28(e), a broker-dealer provides brokerage services when the broker-dealer:... 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. 15 U.S.C. 78bb(e)(3)(C) Adopting Release at Id. at 40, See Letter from UBS Securities LLC to the SEC (Dec. 6, 2005) (UBS Letter); Letter from the Securities Industry Association to the SEC (Dec. 1, 2005) (SIA Letter); Letter from Security Traders Association to the SEC (Nov. 28, 2005) (STA Letter); Letter from ITG Inc., to the SEC (Nov. 25, 2005) (ITG Letter). 13. See UBS Letter; STA Letter; Letter from the Investment Company Institute to the SEC (Nov. 25, 2005) (ICI Letter); Letter from T.Rowe Price Associates, Inc. to the SEC (Nov. 25, Vol. 13 No. 9 September 2006

8 2005); Letter from Charles River Brokerage, LLC., to the SEC (Nov. 8, 2005) (Charles River Letter); ITG Letter Proposing Release at See ICI Letter; ITG Letter; SIA Letter; Letter from Merrill Lynch & Co., Inc. to the SEC (Nov. 30, 2005); Charles River Letter; UBS Letter. 16. See SIA Letter; Letter from Charles Schwab Institutional to SEC (Nov. 25, 2005); STA Letter Adopting Release at Id., n Id. at 43, The SEC also appears to have been persuaded that long-term custody and custodial recordkeeping services do not qualify as Eligible Brokerage because those services represent a direct benefit to the advisory client and the fees for those services treated as client expenses. The SEC also found relevant that typical long-term custody and custodial recordkeeping services involve separate contractual arrangements with custodians who do not typically execute securities transactions for clients. Id. at Id. at Id. at Id., n See 1976 Release. Reprinted from The Investment Lawyer, September 2006, Volume 13, Number 9 pages 1 & 10 to 16, with permission from Aspen Publishers, Inc., a Wolters Kluwer business, New York, NY, , THE INVESTMENT LAWYER