SEC Announces Measures to Facilitate Cross-Border Implementation of the Research Provisions of MiFID II: Three No-Action Letters Permit Broker-Dealers to Unbundle Research Fees from Commissions without Being Regulated as Investment Advisers; Permit Continued Reliance on Exchange Act Section 28(e); and Allow Investment Advisers to Continue Aggregating Trade Orders

Sullivan & Cromwell LLP - October 27, 2017

Yesterday, the staff of the SEC issued three no-action letters designed to facilitate cross-border implementation of the research provisions of the EU’s MiFID II regulations. The staff’s guidance provides greater certainty to U.S. regulated market participants in their efforts to comply with MiFID II’s requirement that fees for research be unbundled from brokerage commissions. First, broker-dealers receiving research payments from customers in hard dollars or from advisory clients’ research payment accounts will not become subject to regulation as investment advisers. Second, the Section 28(e) safe harbor will remain available for investment advisers who pay for research through the use of a research payment account. Third, investment advisers may continue aggregating orders from mutual funds and other clients if research fees are unbundled. Each letter is subject to various conditions.