Investment Adviser Fiduciary Duty Standard Requires Reasonable Basis for Client Recommendation

The Securities and Exchange Commission regulates investment advisers under the Investment Advisers Act of 1940 (the “Act”). Perhaps the most significant provision of the Act is Section 206, which prohibits advisers from defrauding their clients. The Supreme Court has interpreted this provision as imposing on advisers a fiduciary obligation to their clients. See Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 17 (1979) (“[T]he Act’s legislative history leaves no doubt that Congress intended to impose enforceable fiduciary obligations.”).

The federal fiduciary standard requires that an investment adviser act in the “best interest” of its advisory client. Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 503 (3d Cir. 2013) (citing SEC v. Tambone, 550 F.3d 106, 146 (1st Cir.2008) (“[15 U.S.C. § 80b–6] imposes a fiduciary duty on investment advisers to act at all times in the best interest of the fund and its investors.”). Under a “best interest” test, an adviser may benefit from a transaction with or by a client, but the details of the transaction must be fully disclosed. See SEC v. Capital Gains Research Bureau, 375 U.S. 180, 191-92 (1963) (stating that Advisers Act was meant to “eliminate, or at least to expose, all conflicts of interest which might incline as investment adviser–consciously or unconsciously–to render advice which was not disinterested”).

A number of obligations to clients flow from the fiduciary duty imposed by the Act, including the duty to fully disclose any material conflicts the adviser has with its clients, to seek best execution for client transactions, to provide only suitable investment advice, and to have a reasonable basis for client recommendations. See Registration Under the Advisers Act of Certain Hedge Fund Advisers, SEC Release No. IA-2333; Status of Investment Advisory Programs under the Investment Company Act of 1940, SEC Release No. IA-1623.

As noted by the Third Circuit in Belmont, even when a private litigant brings a cause of action for common law breach of fiduciary duty “the evolution of duties governing investment advisers as fiduciaries appears to have been shaped exclusively by the Advisers Act and federal common law.” 708 F.3d at 500-01. The Belmont court noted that one might reasonably wonder why the cause of action is presented as springing from state law if one looks to federal law for the statement of the duty and the standard to which investment advisers are to be held. 708 F.3d at 502. However, the court found that the answer was straightforward: no federal cause of action is permitted. Id. The court found that while “[t]hat reality ought to call into serious question whether a limitation in federal law can be circumvented simply by hanging the label ‘state law’ on an otherwise forbidden federal claim, that is the labeling game that has been played in this corner of the securities field, and the confusion it engenders may explain why there has been little development in either state or federal law on the applicable standards.” Id.

Based on the foregoing, a common law breach of fiduciary duty claim can in all likelihood be based on an investment adviser’s failure to have a “reasonable basis” for making a client recommendation. The question then becomes what constitutes a “reasonable basis” in the context of making such recommendations? This is not an issue that has been faced by many courts in the context of private causes of action brought by clients against investment advisers. For example, no Missouri case has addressed the issue.

However, in other situations where a reasonableness standard is employed, Missouri courts utilize an objective standard. See Graham v. McGrath, 243 S.W.3d 459, 463 (Mo. Ct. App. 2007) (noting that when damages are capable of ascertainment for purposes of statutes of limitations, Missouri utilizes an objective reasonable person standard); Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 247 (Mo. Ct. App. 1999) (noting that the test for determining disqualification of a judge based on bias is whether a reasonable person would have factual grounds to doubt the impartiality of the court, “which is an objective standard[.].”).

As such, in Missouri and other jurisdictions that utilize the objective standard for reasonableness in other situations, the determination of whether an investment adviser had a “reasonable basis” for making a particular recommendation will likely be measured by an objective standard. This means that the fact finder will have to determine whether a reasonable person in the investment adviser’s circumstances might have made the same recommendation as the investment adviser, and need not consider what the adviser may have honestly -- but perhaps mistakenly -- believed.

ANOTHER WAY FOR A BROKER TO UNWITTINGLY LOSE HER CAREER

By now most brokers and compliance departments should be aware that a broker becomes statutorily disqualified from associating with a FINRA member firm if convicted of a felony. They should also know by now that it doesn't matter if that conviction has nothing to do with moral turpitude or finances, such as a felony driving while intoxicated conviction. But what many may not realize is that, based upon “guidance” from the SEC, FINRA considers a mere plea of guilty—which is not a conviction under state or federal law—to be a conviction for purposes of statutory disqualifications. So, for example, even if you qualify for a prosecutorial diversion program in which you are never convicted if you satisfy certain probating terms, FINRA is still going to conclude you were convicted if you pled guilty in order to qualify for that program.


The genesis of what some might consider an absurdity lies in the fact that the 1934 Exchange Act does not define the term “convicted” in Section 3(a)(39) when setting forth those events which trigger a disqualification. Now, most attorneys understand that each and every word in a statute need not be defined, particularly if amenable to common understanding. Ironically, the FINRA By-laws also use, but fail to define, the term. So back in 1992, the SEC instructed the NASD to look to the definition of “convicted” in the 1940 Advisor's Act (“The Lederer Letter”).


And herein lies the problem for the unwitting broker or criminal defense attorney that thinks one is only “convicted” when one is sentenced and a judgment of conviction is entered: The 1940 Act includes “a plea of guilty” in the definition of “convicted.” There are, however, situations in which it is arguably unclear as to whether a conviction exists under even this expansive definition because the court might refrain from making a finding of guilt pending a probationary period. The SEC concluded that in such situations a person is convicted until the probationary period is completed. That's right folks—you can actually become “un-convicted!”


The SEC addressed this critical semantic issue again in 2000 in a letter to the NYSE (“The Germino Letter”). In that situation, the SEC looked to California law regarding a first-time drug offender program. In that instance, the SEC concluded that the defendant was not convicted because, although he pled guilty, the court did not “make a finding of guilt or accept the plea of guilty.” Confused yet?


For the most recent review of the nuances and history at issue here, take a look at the National Adjudicatory Council's Opinion in SD Decision No. 04017. In that case the Council looked at the CWOF (convicted without a finding) procedure under Massachusetts law and concluded that the MC-400 application subject in that matter had not in fact been convicted, so the broker should not have been disqualified in the first place! Belated good news for her for sure.


In Puello v. Bureau of Citizenship and Immigration Services, 511 F.3d 324 (2^nd. Cir. 2007), the United States Court of Appeals for the Second Circuit evaluated the meaning of the term “conviction” in the Immigration and Nationality Act (“INS”). In doing so, it noted that “well-established principles of (statutory) construction dictate that statutory analysis necessarily begins with the 'plain meaning' of a law's text and, absent ambiguity, will generally end there.” Id. At 327. In 1996, Congress amended the INS to include a definition of conviction that included, in addition to a formal judgment of guilt, “a plea of guilty...or [admission] of sufficient facts to warrant a finding of guilt.” Id. At 328. The court went on to explain that a conviction occurs when the court adjudicates guilt and imposes a sentence. Id. At 329. “The statutory definition of “conviction” speaks of a judgment 'entered by a court' the common understanding of which involves the entry on the docket of the documents envisioned in Rule 32(K)(1) and not a guilty plea alone. Id. The critical point here is that, unlike the INS, the Exchange Act does not involve any ambiguity as to “conviction” and it does not include a definition of conviction that includes anything less than a formal adjudication of guilt. Moreover, the SEC's suggestion that one looks to the 1940 Act to gain insight as to what a different Congress intended by the term “conviction” to mean when it passed the Exchange Act six years earlier is simply absurd. And the Second Circuit certainly agrees with this author's opinion on FINRA's current interpretation of “conviction” for a statutory disqualification: “ Construing a guilty plea alone as a 'formal judgment of guilt' makes little sense in the context of the definition of 'conviction' as a whole.” Id. “Construing a guilty plea alone to constitute a 'conviction' would be a significant departure from normal criminal procedure.” Id. At 330. And best of all: “ the statutory definition appears to lead to the bizarre result that a withdrawn guilty plea would still be a conviction.” Id. And there is no ambiguity in the Exchange Act that justifies a statutory interpretation by the SEC that directs FINRA to give a “bizarre” interpretation to what a “conviction” is for the purposes of statutory disqualifications. To borrow the words of Judge Katzmann: “a statute should be interpreted in a way that avoids absurd results.” Id. In sum, if Congress wanted a mere guilty plea to somehow be a “conviction” for purposes of the Exchange Act, it demonstrated its ability to do so when it so amended the INS.


The problem this author has confronted recently is that FINRA may send your Member firm a notice requiring them to file a MC-400 application or U-5 you without fully analyzing the state law at issue or exactly whether or not the court made the requisite finding of guilt (as opposed to the defendant merely admitting facts sufficient to allow the entry of a finding of guilt). Moreover, a defendant might plead guilty to the underlying offense without pleading guilty and the court finding sufficient facts as to a separate statute that enhances the misdemeanor to a disqualifying felony.


So what is the lesson here? Consult with a securities attorney and make sure you are both aware of and have a very clear record of the procedure before the court when pleading guilty as part of a diversion program lest your effort to avoid a conviction and save your career prove futile in the eyes of FINRA. Food for thought.

SIXTH CIRCUIT COURT OF APPEALS AFFIRMS 12-YEAR SENTENCE FOR INVESTMENT ADVISER CONVICTED OF VIOLATING INVESTMENT ADVISERS ACT

On Wednesday of this week, the Court of Appeals for the Sixth Circuit affirmed the conviction of Ohio investment adviser Mark Lay. See U.S. v. Lay, 2010 WL 2757123 (CA.6, July 14, 2010). Lay was indicted for violating 15 U.S.C. § 80b-6(2) and (4) for engaging in a course of business which operated as a deceit upon his client and engaging in a practice that was deceptive or manipulative. Specifically, Lay was accused of violating a leverage cap of 150% within an advisory agreement and then failing to disclose that failure to his client.

On appeal, Lay argued unsuccessfully that the District Court should have granted him relief after the jury convicted him because the alleged victim – The Ohio Bureau of Worker’s Compensation – wasn’t actually a client to whom he owed a fiduciary duty. The Court concluded that a reasonable jury could have found Lay guilty of investment adviser fraud for failing to disclose his leveraging activity to his client -- even if the 150% was merely a guideline, rather than an agreed upon cap.

The District Court opinion affirmed by the Appellate Court provides a thorough and detailed review of the jury instructions utilized at trial. A review of the instruction’s expansive definitions of Investment Adviser Act terminology – such as “scheme” and “deceptive” – may very well prompt some sleepless nights for investment advisers who never even considered the possibility of imprisonment. See U.S. v. Lay, 566 F.Supp.2d 652 (N.D. Ohio 2008).