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SEC Provides Temporary Relief to Firms Over EU Investment Research Payment Rules

The SEC’s Division of Investment Management and Division of Trading and Markets provided no-action relief for U.S. firms to comply with the investment research requirements of European Union financial regulation. The MiFID II provision provided generally that a financial adviser is permitted to pay for investment research from third parties directly from its own funds or through payments from a separate client research payment account that meets certain conditions. The provision raised a number of issues or potential conflicts under the Advisers Act and the 1940 Act as well as the soft dollars safe harbor provided by the Exchange Act. The SEC’s relief, which ends in 30 months, allows broker-dealers to receive research payments from firms in hard dollars or from advisory clients’ research payment accounts without requiring the broker-dealer to register as an investment adviser. The SEC also provided relief from a 1940 Act provision, allowing investment advisers to continue to aggregate orders for purchases and sales of securities when some similarly-situated clients may pay different amounts for research because of the MiFID II requirements, subject to certain conditions.  With respect to the Exchange Act Section 28(e) safe harbor, asset managers may pay an executing broker-dealer for research out of client assets alongside payments for order execution through a research payment account, and the executing broker-dealer must transmit the payments for research into research payment accounts. The MiFID regulation, which takes effect January 3, 2018, holds few immediate implications for the oversight role of mutual fund boards.