Broker-dealers primarily facilitate securities transactions for their clients. If you need to buy or sell a particular investment, you typically use a broker-dealer. Because they’re providing a service, they’re compensated for it. Broker-dealers are most commonly compensated through these means:
*To best understand which type of transaction relates to each form of compensation, refresh yourself on agency and principal transactions.
Commissions are payments for connecting a client with another investor in an agency transaction.
Markups and markdowns are payments for acting as the contra party in a principal transaction:
Generally speaking, transaction fees must be reasonable and fair. The state administrator can punish broker-dealers that charge exorbitant fees without justification. That said, there can be legitimate reasons for a higher-than-normal commission, markup, or markdown. For example, a broker-dealer could justify a significant commission if a security was thinly traded and took months to locate.
Broker-dealers aren’t required to disclose typical transaction costs before a trade occurs, although this information is provided on trade confirmations sent after execution. However, a larger-than-normal commission, markup, or markdown must be disclosed and accepted by a client before the trade occurs.
In a previous chapter, we learned that broker-dealers and agents can provide securities advice while avoiding investment adviser and/or IAR registration if they don’t collect compensation for the advice. But what if a broker-dealer is dual-registered as both a broker-dealer and an investment adviser? In that case, the firm can charge advisory fees, which would be disclosed in the brochure (because it’s acting as an investment adviser in this example).
Broker-dealers can also earn fees from various non-transactional services. These include:
The non-transactional services listed above are typically disclosed in the broker-dealer’s fee schedule. The North American Securities Administrators Association (NASAA) provides a model fee disclosure template that most broker-dealers utilize. Virtually all fees a broker-dealer charges are included in this template, except for:
Investment advisers are generally compensated with advisory fees for the securities advice they provide. As we discussed previously, there are three primary advisory fee structures:
Advisers can earn these other forms of compensation in specific circumstances:
Commissions are normally transaction fees paid to broker-dealers, but an investment adviser may receive a portion of a commission when there’s an affiliated broker-dealer. “Affiliated” usually means the broker-dealer and the investment adviser are owned by the same parent company.
In this scenario, an investment adviser may keep a portion of a commission. For example, assume ABC Advisers Company (the investment adviser) makes a recommendation to an investor and charges an advisory fee. The client agrees to the transaction, which is then executed by ABC Brokerage Company (the affiliated broker-dealer). Both ABC Advisers Co. and ABC Brokerage Co. are owned by ABC Financial Services Company. When a commission is charged on the trade, the commission is shared between ABC Brokerage Co. and ABC Advisers Co.
If an investment adviser is not affiliated with the broker-dealer executing their trades, they cannot earn commissions.
Securities regulators define wrap fee programs (or wrap accounts) as:
A wrap fee program generally involves an investment account where you are charged a single, bundled, or “wrap” fee for investment advice, brokerage services, administrative expenses, and other fees and expenses.
Instead of paying separate fees for different services, clients with wrap accounts are charged one bundled fee. Technically, these programs are considered advisory products that may only be offered by investment advisers.
The specifics of an adviser’s wrap fee program are disclosed in Form ADV Part 2A Appendix 1, also known as the wrap fee program brochure. Information provided in this disclosure includes:
*This is especially important when an adviser places client funds into products managed by third parties (e.g. mutual funds).
Additionally, advisers must disclose whether the wrap fee program is less or more expensive than paying for each service separately.
Most investment advisers, particularly smaller firms, pay broker-dealers to maintain custody of their clients’ assets and execute trades. This can be a profitable business for brokerage firms, which creates a competitive market. Broker-dealers may offer soft dollar compensation to advisers that send their clients’ business their way.
For example, XYZ Broker-Dealer offers additional “compensation” to ABC Investment Adviser if ABC chooses XYZ’s platform to safekeep client assets and perform transactions.
Soft dollar is a tricky term. Broker-dealers aren’t giving cash (known as “hard dollars”) to investment advisers. Instead, they typically provide intellectual property or services. Many broker-dealers employ analysts who examine the securities markets and create research reports. That research can be valuable to advisers providing securities advice to clients, so a broker-dealer may offer it in return for the adviser directing trades to the broker-dealer.
Two general requirements must be in place for soft dollar compensation to be considered compliant and legal.
First, the adviser directing transactions to a broker-dealer in return for soft dollars must believe the fees paid to the broker-dealer are reasonable. If an adviser sent transactions to a broker-dealer with excessive transaction fees to obtain soft dollars, the adviser would be breaking their fiduciary duty to clients.
Second, the “compensation” received by the adviser must fall into “safe harbor.” This means broker-dealers are limited in what they can offer in return for transaction traffic. Regulations on what is and isn’t considered safe harbor have evolved over time, but securities regulators have identified the following as currently allowable:
Generally speaking, it’s safe harbor if the intellectual property (or access to meetings/conferences) better equips the adviser to make suitable recommendations to clients. The following have been explicitly mentioned by securities regulators as not being considered safe harbor:
If working with a specific type of client, an adviser may be able to retain some of the portfolio’s gains. For example, assume an adviser makes a net annual return of $100,000 for a client under a 2% performance fee structure. In this scenario, the adviser would keep $2,000 of the gains, in addition to the advisory fees already collected.
Performance fees can also be structured as fulcrum fees, where performance is judged against a benchmark. Stock indexes like the S&P 500 are commonly used as benchmarks. For example, assume an adviser’s performance fee is based on how much a portfolio outperforms the S&P 500. If the S&P 500 had annual returns of 10%, the adviser would be paid escalating fees once a client’s portfolio exceeded a 10% return.
NASAA rules allow performance fees to be collected from qualified clients, defined as any client with:
Additionally, IARs employed by the investment adviser for at least a year are considered qualified clients. This means an IAR with one year of service may have their personal money managed by their employing firm in a performance-based fee account.
Performance fees are sometimes described as giving the adviser “skin in the game”: the more the adviser makes for the client, the more the adviser may earn. This structure also creates an incentive to take on more risk in hopes of higher pay.
Clients must be made aware of these added risks, which is why NASAA rules require the following disclosures when charging performance fees:
*Unrealized gains are gains on unsold securities. For example, assume an investor purchases stock for $50. If the stock price rises to $70 but the shares are unsold, there’s a $20 unrealized gain. Once the shares are sold, the gain is realized. Investors must be aware if unrealized gains are considered when computing performance fees (they usually are).
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