While industry officials are busy digesting the Securities and Exchange Commission's recently passed plan to address conflicts when broker-dealers and advisors use artificial intelligence and predictive data analytics, they are questioning whether the agency's plan expands Regulation Best Interest and signals more compliance headaches under the SEC Marketing Rule.
The SEC's plan, passed in mid-July, targets "conflicts of interest" associated with broker-dealers' and advisors' use of predictive data analytics related to certain investor interactions.
Early concerns are also being raised about the scope of the plan — with attorneys at Morgan Lewis suggesting it goes beyond AI and other sophisticated or "opaque technologies" to potentially cover "virtually any type of technology, ranging from basic spreadsheets and calculators to applications using large language models."
Under the SEC's plan, broker-dealers and advisors would be required "to take certain steps to address conflicts of interest associated with their use of predictive data analytics and similar technologies to interact with investors to prevent firms from placing their interests ahead of investors' interests," the agency said.
The SEC's plan is out for a 60-day comment period; comments are already trickling in.
SEC Chairman Gary Gensler said that if adopted, "these rules would help protect investors from conflicts of interest — and require that, regardless of the technology used, firms meet their obligations not to place their own interests ahead of investors' interests."
During the open meeting on July 26 to consider the plan, SEC Commissioner Hester Peirce, a Republican, asked: "Given the application of this rule to investor interactions, rather than merely recommendations, do we have the authority to apply it to broker-dealers? Is it a backdoor attempt to expand Regulation Best Interest?"
Jed Doench, an attorney at Morgan Lewis in New York, told me Monday in an email that the SEC's proposal "can be viewed as an indirect expansion" of Reg BI.
"While Reg BI only applies to recommendations (a longstanding and appropriately narrow concept under the securities laws) to retail investors, this new proposal would apply a conflict of interest framework to potentially any communication with a retail investor that is generated by a 'covered technology,' which is defined very broadly in the proposal," Doench explained.
"Importantly, the proposal is even stricter than Reg BI because it would not allow brokers to address conflicts of interest through disclosure," Doench relayed. "Additionally, the proposal does not contain any exemption from its requirements for communications that comply with Reg BI."
According to Peirce, the definition of "covered technology" in the agency's plan "is quite broad." She questioned whether it would encompass "Excel spreadsheets, for example, and mathematical formulas used to price securities?"
Peirce added: "The rule claims to be technology neutral — and maybe it is because the definition of 'covered technology' is so broad — tell me how I am wrong to think that we are creating an especially harsh rule for particular types of technology."
'Additional Layer of Regulation'
Attorneys at Eversheds Sutherland weighed in with their thoughts after the SEC passed the plan by a 3-2 vote. They stated in an alert that while the SEC staff "was clear that they did not view the rule proposal as 'expanding' Reg BI … the rule proposal certainly imposes an additional layer of regulation beyond Reg BI and the advisory fiduciary duty."
For instance, the attorneys wrote, "Reg BI begins with an account or investment 'recommendation,' and non-recommendation communications are not subject to Reg BI's heightened standard of care. Likewise, an adviser's fiduciary duty applies with respect to an advisory relationship with its clients."
The rule proposal "goes beyond both of these concepts, and imposes additional duties on any 'investor interactions,' where such interactions may not be covered by Reg BI or an adviser's fiduciary duties."
While the SEC may not have explicitly proposed to revisit or amend Reg BI or the fiduciary duty, it proposed rules that would expand the scope of the type of "interactions" and activities that are now subject to SEC requirements, the attorneys wrote.
