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Securities Industry and Financial Markets Association

Nov. 4, 2019

This letter’s temporary position on adviser status expired on July 3, 2023, in accordance with its own terms. Statements or positions that are independent of the temporary adviser status position are not expired.
Please consult the following web page for more information: https://www.sec.gov/divisions/investment/im-modified-withdrawn-staff-statements.

Investment Advisers Act of 1940 - Section 202(a)(11)

November 4, 2019

Chief Counsel’s Office
Division of Investment Management

In a letter to you dated October 26, 2017,[1] the staff of the Division of Investment Management provided a temporary no-action letter under the Investment Advisers Act of 1940 (“Advisers Act”) regarding compliance with the provisions relating to research in the Markets in Financial Instruments Directive II (“MiFID II”) and related implementing rules and regulations (“Temporary No-Action Letter”).[2] In the Temporary No-Action Letter, we stated that our position would expire thirty (30) months from MiFID II’s implementation date, which would be July 3, 2020. We also stated that we might or might not renew the Temporary No-Action Letter as appropriate. For the reasons discussed below, we are extending the Temporary No-Action Letter until July 3, 2023 (the “Extended Period”). During the Extended Period, our position continues to be based on the facts and representations in the Temporary No-Action Letter. The Securities and Exchange Commission (“Commission” or “SEC”) or the staff of the SEC may take further action or issue further guidance regarding MiFID II during the Extended Period.

The time period provided for in the Temporary No-Action Letter was intended to provide the staff and market participants with time to better understand the evolution of business practices after the implementation of MiFID II. Since issuing that letter, we have engaged extensively with market participants, including broker-dealers, investment managers, clients of investment managers, service providers such as administrators of Client Commission Arrangements (“CCAs”), and others. In addition, we have also received letters regarding the impact of MiFID II on the market for research in the U.S. and Europe.[3] We have also been monitoring developments in Europe that could affect business practices under MiFID II.

In the course of this outreach and monitoring, the staff has observed that business practices concerning payments for research, including in response to the requirements of MiFID II, continue to evolve, but various challenges remain.[4] In addition, the staff has observed that understanding of the effects of MiFID II on the supply of and demand for research continues to develop, that market participants continue to express concern regarding the effects of changes in the market for research on small- and mid-sized entities, and that authorities in the European Union (EU) are continuing to evaluate the effects of MiFID II.[5]

As mentioned above and in light of these observations, we are extending the Temporary No-Action Letter. The Extended Period will allow for the staff to continue to monitor and assess the evolving impact of MiFID II and evaluate whether any additional guidance or recommendations to the Commission for regulatory actions are appropriate. It will allow additional time for the EU authorities or regulators in individual member states to continue their evaluation of the effects of MiFID II and potentially modify their rules.[6] Finally, it will allow additional time for market-based solutions with respect to payments for research in the U.S. and Europe to evolve further, and for greater transparency regarding research payments and practices to develop.

Based on the facts and representations in the Temporary No-Action Letter, as supplemented by our observations referenced above, and for the Extended Period, we would not recommend enforcement action to the Commission if a broker-dealer provides research services that constitute investment advice under section 202(a)(11) of the Advisers Act to an investment manager that is required by MiFID II and substantially similar national rules of member states, either directly or by contractual obligation,[7] to pay for the research services from its own money, from a separate research payment account funded with its clients’ money, or a combination of the two (a “Broker-Dealer”). During the Extended Period, we will not consider such Broker-Dealer to be an investment adviser.[8]

This letter represents only the Division of Investment Management’s position on enforcement action and does not purport to express any legal conclusion on the questions presented.[9] Because our position is based upon all of the facts and representations in the Temporary No-Action Letter, any different facts or representations may require a different conclusion.

The statements in this letter represent the views of the Division of Investment Management. This letter is not a rule, regulation or statement of the Commission, and the Commission has neither approved nor disapproved its content. This no-action letter, like all staff guidance, has no legal force or effect; it does not alter or amend applicable law, and it creates no new or additional obligations for any person.

Elizabeth G. Miller
Senior Counsel
Erin Loomis Moore
Senior Counsel

[1] See Securities Industry and Financial Markets Association, SEC Staff No-Action Letter (Oct. 26, 2017).

[2] See Directive 2014/65, of the European Parliament and of the Council of 15 May 2014 on Markets in Financial Instruments and Amending Commission Directive 2002/92 and Council Directive 2011/61, O.J. (L 173) 57, 349 (available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2014:173:TOC) and substantially similar national rules of member states.

[3] The Commission staff has continued to encourage members of the public to provide data and other information relating to the effects of MiFID II’s research provisions. See SEC Staff Encourages Continued Engagement on MiFID II Research Provisions (Dec. 21, 2018), available at: https://www.sec.gov/news/press-release/2018-301.

[4] See, e.g., Letter of the Securities Industry and Financial Markets Association (Mar. 21, 2019) (discussing the costs of a broker-dealer registering as an investment adviser) and Letter of the Securities Industry and Financial Markets Association (Aug. 2, 2019). In addition, the staff understands that some investment advisers are using reconciliation or reimbursement in conjunction with CCAs to make payments for research to broker-dealers. See, e.g., Letter of Capital Research and Management Company (Apr. 18, 2019) (stating that it is currently bearing the cost of research through the combination of CCAs and a reimbursement program); and Letter of Sidley Austin LLP (Mar. 19, 2019) (stating that some investment advisers are bearing the cost of research through the combination of CCAs and a reimbursement program).

[5] The European Commission (“EC”) and the Autorité des Marchés Financiers (“French AMF”) have announced that they are evaluating the impact of MiFID II on, for example, research providers, investors, and other market participants. See EC, Call for Tenders, FISMA/2017/117(06)/C, Study on the Impact of MiFID II Rules on SME and Fixed Income Research (June 2018); and French AMF, The AMF Launches a Study on the Impact of the New Rules Governing Research Funding Introduced by MiFID 2 (July 11, 2019), available at: https://www.amf-france.org/en_US/Actualites/Communiques-de-presse/AMF/annee-2019?docId=workspace%3A%2F%2FSpacesStore%2F5c977cfe-8aa6-4a15-978d-1a0f5686a1ce. The FCA also conducted a study and published its multi-firm review findings in September. See FCA, Implementing MiFID II – Multi-Firm Review of Research Unbundling Reforms (Sept. 19, 2019), available at: https://www.fca.org.uk/publications/multi-firm-reviews/implementing-mifid-ii-multi-firm-review-research-unbundling-reforms. The FCA noted that it will continue to monitor both competition impacts and research coverage of small- and mid-sized entities by analyzing market data and other reviews, such as the EC’s forthcoming study. See FCA, FCA Finds MiFID II Research Unbundling Rules Working Well for Investors (Sept. 19, 2019), available at: https://www.fca.org.uk/news/press-releases/fca-finds-mifid-ii-research-unbundling-rules-working-well-investors.

[6] In the event that EU authorities or regulators in individual EU member states modify the relevant requirements of MiFID II prior to the end of the Extended Period, we would re-evaluate whether the Temporary No-Action Letter remains necessary.

[7] The Temporary No-Action Letter also applies to a situation after the United Kingdom (“UK”) exits the EU in which an investment manager is subject to compliance with provisions in UK law related to research that are substantially similar to MiFID II and its implementing rules and regulations. See Temporary No-Action Letter, n. 2.

[8] As a separate matter, we understand that, in connection with CCAs, such as those referenced in footnote 4 above, the money manager in some cases (a) may not have a trading relationship with a broker-dealer that receives commissions for research from the CCA or (b) to the extent it does have a trading relationship with such a broker-dealer, the trades may not relate to that broker-dealer’s research. We understand further that some broker-dealers have questioned whether accepting client commissions to pay for research in these circumstances would affect the availability of the exclusion for broker-dealers from the definition of “investment adviser” under the Advisers Act. In this regard, the staff believes that the Commission was cognizant of these types of CCAs when it issued its 2006 interpretation, and the Commission did not question the availability of the broker-dealer exclusion in the context of these types of CCAs. See Commission Guidance Regarding Client Commission Practices Under Section 28(e) of the Securities Exchange Act of 1934, Exchange Act Release No. 54165 (July 18, 2006), 71 Fed. Reg. 41978 (July 24, 2006). Therefore, the staff believes that the use of these CCAs does not affect whether the broker-dealer exclusion may be available in connection with the receipt of payments for research under section 28(e).

[9] The staff of the Division of Investment Management developed this letter in consultation with the staff of the Division of Trading and Markets.

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