Brokers and asset managers have a fiduciary duty of best execution. You might think of this as the obligation to act in their customers' best interests when buying and selling securities. Most of the time, this means trying to get their customers the best prices.
And while these centuries-old fiduciary duties stem from common law, a broker's duty of best execution is codified by rules from the Financial Industry Regulatory Authority and Municipal Securities Rulemaking Board.
Now, however, the GameStop phenomenon of 2021 and heightened concerns with payments from exchanges and wholesalers to brokers for order flow has prompted SEC leadership to adopt its own best execution rule.
SEC Chairman Gary Gensler has made it clear that a new SEC rule would let the regulator set and enforce better standards. In theory, we agree.
Unfortunately, while the SEC's 439-page Regulation Best Execution proposal may arguably better protect some individuals trading through online brokerages, it does nothing to improve best execution for investment advisers. Worse, it would affirmatively remove obligations on brokers and protections for pension funds and institutional investors.
Despite the SEC chairman's claims that the SEC needs to have its own rule for best execution, nothing in the SEC's proposal requires investment advisers to even have best execution policies, or conduct any analysis, much less require any specific details.
Of course, many "best practices" have emerged over time including performing "transaction cost analysis" of trades, keeping track (separately) of "research" payments and "trade execution" payments, and other steps. But these steps — which may be admirable — are not universally required and can and do vary significantly across advisers.
While the SEC's examinations team has identified many weaknesses for investment advisers' best execution policies, procedures and practices, the SEC still has declined to even propose a rule or guidance, much less engage in any meaningful enforcement of its vague interpretation that advisers fulfill their fiduciary duty. In fact, when the SEC updated its interpretation of investment advisers' fiduciary duties in 2019, it dedicated only a single page (double-spaced and including lengthy footnotes) to the topic.
Rather than fill this void, however, the SEC has chosen to expose investment advisers and other institutional investors to greater risks by exempting a broker-dealer from having to comply with its own best execution obligations if "an institutional customer, exercising independent judgment, executes its order against the broker-dealer's quotation."
This is an entirely new exemption being proposed that weakens, rather than strengthens, best execution.
Over the years, there have been limited exceptions to best execution, such as when brokers receive unsolicited instructions from their customers to route to particular destinations without intervention and the broker follows the instructions.
This is something different. While the Commission may think that the new exemption is helpful to investors, it opens Pandora's box to abuses. The exemption, which would apply to trades in equities, fixed income, options and other derivatives, would allow brokers to effectively ignore "best execution" for a potentially large swath of their trades with institutional customers. There are no requirements that the quotations be anywhere near prevailing market prices (displayed or undisplayed) — or that the quotations be public or the same for different customers.