XY Planning Network, LLC v. SEC

19-2886-ag(L)
XY Planning Network, LLC v. SEC

1

2 United States Court of Appeals
3 for the Second Circuit
4
5 August Term, 2019
6
7 (Argued: June 2, 2020 Decided: June 26, 2020)
8
9 Docket Nos. 19-2886-ag(L), 19-2893-ag(CON)
10 _____________________________________
11
12 XY PLANNING NETWORK, LLC, FORD FINANCIAL SOLUTIONS, LLC,
13 STATE OF NEW YORK, STATE OF CALIFORNIA, STATE OF CONNECTICUT,
14 STATE OF DELAWARE, STATE OF MAINE, DISTRICT OF COLUMBIA, STATE
15 OF NEW MEXICO AND STATE OF OREGON,
16 Petitioners,
17
18 v.
19
20 UNITED STATES SECURITIES AND EXCHANGE COMMISSION, WALTER
21 CLAYTON, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE UNITED
22 STATES SECURITIES AND EXCHANGE COMMISSION,
23 Respondents.
24 _____________________________________
25 Before:
26
27 SULLIVAN, PARK, AND NARDINI, Circuit Judges.
28
29 In 2019, the Securities and Exchange Commission promulgated Regulation
30 Best Interest, which creates new standards of conduct for broker-dealers providing
31 investment services to retail customers. Petitioners XY Planning Network, LLC,
32 Ford Financial Solutions, LLC, and a group of states and the District of Columbia
33 filed petitions for review under the Administrative Procedure Act, 5 U.S.C.
34 § 706(2), claiming that Regulation Best Interest is unlawful under the 2010 Dodd-
35 Frank Wall Street Reform and Consumer Protection Act. We hold that: (1) Ford
 1 Financial Solutions has Article III standing to bring its petition for review, (2)
2 Section 913(f) of the Dodd-Frank Act authorizes Regulation Best Interest, and (3)
3 Regulation Best Interest is not arbitrary and capricious. DENIED.
4
5 Judge Sullivan concurs in part and dissents in part in a separate opinion.
6
7 DEEPAK GUPTA (Jonathan E. Taylor, Daniel
8 Wilf-Townsend, on the brief), Gupta Wessler
9 PLLC, Washington, DC, for Petitioners XY
10 Planning Network, LLC and Ford Financial
11 Solutions, LLC.
12
13 ESTER MURDUKHAYEVA (Attorney General
14 Letitia James, Solicitor General Barbara D.
15 Underwood, Steven C. Wu, Matthew
16 Colangelo, Kevin Wallace, Jeffrey A. Novak,
17 Rita Burghardt McDonough, Jonathan
18 Zweig, on the brief), New York, NY, for
19 Petitioner State of New York.
20
21 JEFFREY A. BERGER (Robert B. Stebbins,
22 Michael A. Conley, Daniel E. Matro, on the
23 brief), Washington, DC, for Respondents
24 United States Securities and Exchange
25 Commission and Walter Clayton.
26
27 Attorney General Xavier Becerra, Matthew
28 Rodriguez, Martin Goyette, Amy Winn,
29 Nathaniel R. Spencer-Mork, San Francisco,
30 CA for Petitioner State of California.
31
32 Attorney General William Tong, Joseph J.
33 Chambers, Hartford, CT, for Petitioner State
34 of Connecticut.
35

2
 1 Attorney General Kathleen Jennings,
2 Marion Quirk, Joseph E. Gibbs-Tabler,
3 Jillian Lazar, Wilmington, DE, for Petitioner
4 State of Delaware.
5
6 Attorney General Aaron M. Frey, Gregg D.
7 Bernstein, Augusta, ME, for Petitioner State of
8 Maine.
9
10 Attorney General Hector Balderas, Nicholas
11 M. Sydow, Tania Maestas, Santa Fe, NM, for
12 Petitioner State of New Mexico.
13
14 Attorney General Karl A. Racine, Loren L.
15 AliKhan, Jacqueline R. Bechara, Graham E.
16 Phillips, Washington, DC, for Petitioner
17 District of Columbia.
18
19 Attorney General Ellen F. Rosenblum, Brian
20 A. de Haan, Portland, OR, for Petitioner State
21 of Oregon.
22
23 Todd M. Galante, Piro Zinna Cifelli Paris &
24 Genitempo, LLC, Nutley, NJ, for Amicus
25 Curiae Financial Planning Association in
26 support of Petitioners.
27
28 Brianne J. Gorod, Ashwin P. Phatak,
29 Elizabeth B. Wydra, Clare E. Riva,
30 Constitutional Accountability Center,
31 Washington, DC, for Amici Curiae Current
32 and Former Members of Congress in support of
33 Petitioners.
34
35 Dennis M. Kelleher, Better Markets, Inc.,
36 Washington, DC, for Amici Curiae Better

3
 1 Markets, Inc. and the Consumer Federation of
2 America in support of Petitioners.
3
4 Adam J. Weinstein, Gana Weinstein LLP,
5 New York, NY, for Amicus Curiae The Public
6 Investors Arbitration Bar Association in support
7 of Petitioners.
8
9 Jesse Panuccio, Jordan R. Goldberg, Boies
10 Schiller Flexner LLP, Washington, DC, for
11 Amici Curiae Representatives Ann Wagner,
12 Andy Barr, J. French Hill, Blaine Luetkemeyer,
13 and Senator Tom Cotton in support of
14 Respondents.
15
16 Kelly P. Dunbar, Wilmer Cutler Pickering
17 Hale and Dorr LLP, Washington, DC, for
18 Amici Curiae the Securities Industry and
19 Financial Markets Association, the Chamber of
20 Commerce of the United States of America, the
21 American Council of Life Insurers, and the
22 Financial Services Institute in support of
23 Respondents.
24
25 PARK, Circuit Judge:

26 Investment advisers and broker-dealers both offer financial services to retail

27 customers. Under federal law, investment advisers owe a fiduciary duty to their

28 clients, but broker-dealers do not. The traditional distinctions between the

29 services offered by the two types of firms have blurred in recent decades, raising

30 questions about this standard-of-care framework. As a result, in 2019, the

4
 1 Securities and Exchange Commission (“SEC”) adopted Regulation Best Interest,

2 which imposes a new “best-interest obligation” on broker-dealers.

3 Petitioners—an organization of investment advisers, an individual

4 investment adviser, seven states, 1 and the District of Columbia—now challenge

5 Regulation Best Interest as unlawful under the Administrative Procedure Act

6 (“APA”), 5 U.S.C. § 706(2). They argue that the 2010 Dodd-Frank Wall Street

7 Reform and Consumer Protection Act (“Dodd-Frank Act”) requires the SEC to

8 adopt a rule holding broker-dealers to the same fiduciary standard as investment

9 advisers. But Section 913(f) of the Dodd-Frank Act grants the SEC broad

10 rulemaking authority, and Regulation Best Interest clearly falls within the

11 discretion granted to the SEC by Congress. Although Regulation Best Interest may

12 not be the policy that Petitioners would have preferred, it is what the SEC chose

13 after a reasoned and lawful rulemaking process.

14 We thus hold that: (1) the individual investment-adviser petitioner has

15 Article III standing to bring its petition for review, but the state petitioners do not;

16 (2) Section 913(f) of the Dodd-Frank Act authorizes the SEC to promulgate

1 California, Connecticut, Delaware, Maine, New Mexico, New York, and Oregon.

5
 1 Regulation Best Interest; and (3) Regulation Best Interest is not arbitrary and

2 capricious under the APA.

3 For these reasons, we deny the petitions for review.

4 I. BACKGROUND

5 A. Regulatory Background

6 Broker-dealers effect securities transactions for customers, for which they

7 typically charge a commission or other transaction-based fee. See 15 U.S.C.

8 §§ 78c(a)(4)(A) (defining brokers), 78c(a)(5)(A) (defining dealers). In connection

9 with their services, broker-dealers often provide advice and make

10 recommendations about securities transactions and investment strategies. When

11 doing so, they are generally subject to a “suitability” standard of care, which arises

12 from the federal securities laws, Financial Industry Regulatory Authority

13 (“FINRA”) rules, and SEC precedent. This standard requires broker-dealers to

14 “have a reasonable basis to believe that a recommended transaction or investment

15 strategy . . . is suitable for the customer.” FINRA Rule 2111(a).

16 Investment advisers, on the other hand, provide advice and other

17 discretionary services on an ongoing basis, for which they typically charge

18 recurring fees based on a percentage of the assets they manage. Investment

6
 1 advisers are regulated under the Investment Advisers Act of 1940 (“IAA”) and

2 owe a fiduciary duty to their clients. See 15 U.S.C. § 80b-2(a)(11)(C) (defining

3 investment adviser); SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 194

4 (1963) (describing “an affirmative duty of utmost good faith, and full and fair

5 disclosure of all material facts, as well as an affirmative obligation to employ

6 reasonable care to avoid misleading . . . clients” (internal quotation marks

7 omitted)). The IAA’s definition of investment adviser has a “broker-dealer

8 exemption,” which excludes “any broker or dealer whose performance of such

9 services is [1] solely incidental to the conduct of his business as a broker or dealer

10 and [2] who receives no special compensation therefor.” 15 U.S.C. § 80b-

11 2(a)(11)(C). A business may register as both an investment adviser and a broker-

12 dealer. 2

13 B. The Dodd-Frank Act

14 In 2010, Congress authorized the SEC to promulgate new standards of

15 conduct for broker-dealers and investment advisers under the Dodd-Frank Act,

2 Although in theory broker-dealers and investment advisers “play distinct roles,” “in
practice, trends in financial services markets since [at least] the early 1990s have blurred the
boundaries between these financial professionals.” Brian Scholl et al., SEC Office of the Investor
Advocate & RAND Corp., The Retail Market for Investment Advice (“RAND study”) 4 (2018),
available at https://www.sec.gov/comments/s7-07-18/s70718-4513005-176009.pdf.

7
 1 Pub. L. No. 111-203, § 913, 124 Stat. 1376, 1824–30. Section 913(b) of the Dodd-

2 Frank Act directed the SEC to study “the standards of care for brokers, dealers,

3 [and] investment advisers.” Id. at 1824–25. Sections 913(f) and (g), the main

4 provisions at issue here, concern the SEC’s rulemaking authority.

5 Section 913(f) states that the SEC “may commence a rulemaking, as

6 necessary or appropriate in the public interest and for the protection of retail

7 customers . . . to address the legal or regulatory standards of care for brokers,

8 dealers, [and] investment advisers.” Id. at 1827. In doing so, the SEC “shall

9 consider the findings[,] conclusions, and recommendations” of the Section 913(b)

10 study. Id. at 1828.

11 Section 913(g)(1) states that the SEC “may promulgate rules to provide that,

12 with respect to [broker-dealers], when providing personalized investment advice

13 about securities to a retail customer[,] . . . the standard of conduct for such [broker-

14 dealers] . . . shall be the same as the standard of conduct applicable to an

15 investment adviser . . . .” Id. Section 913(g)(2) provides that the SEC “may

16 promulgate rules to provide that the standard of conduct for all brokers, dealers,

17 and investment advisers, when providing personalized investment advice about

18 securities to retail customers[,] . . . shall be to act in the best interest of the customer

8
 1 without regard to the financial or other interest of the broker, dealer or investment

2 adviser providing the advice . . . . [S]uch standard of conduct shall be no less

3 stringent than the standard applicable to investment advisers under [the IAA].”

4 Id.

5 In 2011, SEC staff issued the Section 913(b) study and recommended that the

6 SEC adopt a “uniform fiduciary standard . . . regardless of the regulatory label

7 (broker-dealer or investment adviser) of the professional providing the advice.”

8 App’x at 328.

9 C. Regulation Best Interest

10 In June 2019, the SEC adopted Regulation Best Interest, which establishes a

11 new standard of care for broker-dealers serving retail customers. 3 Regulation Best

12 Interest, 17 C.F.R. § 240.15l-1 (2019). Specifically, Regulation Best Interest imposes

13 a “best-interest obligation” on broker-dealers, requiring them to “act in the best

14 interest of the retail customer at the time the recommendation is made, without

15 placing the financial or other interest of the [broker-dealer] . . . ahead of the interest

16 of the retail customer.” Id. The best-interest obligation has four components: (1)

17 a “disclosure obligation,” requiring broker-dealers to disclose any material facts

3Retail customers are individuals who “receive[] personalized investment advice . . .
primarily for personal, family, or household purposes.” 124 Stat. at 1824.

9
 1 relating to the scope and terms of the relationship with the customer, as well as all

2 material conflicts of interest related to their investment recommendations; (2) a

3 “care obligation,” requiring broker-dealers to “[h]ave a reasonable basis to believe

4 that the recommendation is in the best interest of” the customer; (3) a “conflict of

5 interest obligation,” requiring broker-dealers to identify, mitigate, and disclose

6 conflicts of interest and to “[p]revent” conflicts that would cause them to “make

7 recommendation[s] that place [their own] interest ahead of the” customers’; and

8 (4) a “compliance obligation” requiring broker-dealers to adopt policies and

9 practices “reasonably designed to achieve compliance with Regulation Best

10 Interest.” Id.

11 The SEC proposed an initial version of the rule in 2018, and after an

12 extensive notice-and-comment process, it adopted a final version of Regulation

13 Best Interest, along with an interpretive rule clarifying the meaning of “solely

14 incidental” in the broker-dealer exemption to the IAA. Notice of Proposed

15 Rulemaking, Regulation Best Interest, 83 Fed. Reg. 21,574 (May 9, 2018); Commission

16 Interpretation Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion from

17 the Definition of Investment Adviser (“Solely Incidental Interpretation”), 84 Fed. Reg.

18 33,681 (July 12, 2019). During the comment period, the SEC received “over 6,000

10
 1 comment letters” from individual investors, trade groups, and financial firms, and

2 held a series of “investor roundtables” to solicit in-person feedback on the

3 proposed rule. Regulation Best Interest: The Broker-Dealer Standard of Conduct

4 (“Adopting Release”), 84 Fed. Reg. 33,318, 33,320.

5 The SEC responded to these comments in a 173-page Adopting Release

6 explaining why it chose the best-interest standard. Id. at 33,318–33,491. It

7 considered and rejected a uniform fiduciary standard for investment advisers and

8 broker-dealers, explaining that “a ‘one size fits all’ approach would risk reducing

9 investor choice” and that a uniform fiduciary standard “would [not] provide any

10 greater investor protection (or, in any case, that any benefits would [not] justify

11 the costs imposed on retail investors in terms of reduced access to services . . .).”

12 Id. at 33,322. The Adopting Release also explicitly noted that the SEC was relying

13 on Section 913(f)’s broad grant of rulemaking authority to promulgate Regulation

14 Best Interest. Id. at 33,330.

15 D. Petitioners

16 Two groups of petitioners brought suit claiming that Regulation Best

17 Interest is unlawful: (1) an investment-adviser interest group, XY Planning

18 Network, LLC, and one of its members, Ford Financial Solutions, LLC (together,

11
 1 “XYPN”); and (2) a group of states and the District of Columbia (collectively,

2 “State Petitioners”).

3 XYPN contends that Regulation Best Interest will injure investment advisers

4 by making it more difficult for them to differentiate their standard of care from

5 that of broker-dealers in advertising to attract customers. Julie Ford, owner of

6 Ford Financial Solutions, LLC (together, “Ford”), attests that Ford “currently

7 attract[s] and retain[s] clients by, in part, highlighting [the] firm’s fiduciary duty

8 to clients,” in contrast to the less stringent suitability standard governing broker-

9 dealers. XYPN Add. at 5. Ford claims that under Regulation Best Interest, broker-

10 dealers will be able to advertise that they must act in their clients’ “best interests”

11 just as Ford does, even though they will face “comparatively fewer regulatory

12 obligations, lower compliance costs, and less legal exposure.” Id.

13 The State Petitioners claim that Regulation Best Interest will diminish their

14 tax revenues from investment income by allowing broker-dealers to provide

15 conflicted investment advice to customers, which would be prohibited under a

16 uniform fiduciary standard. The State Petitioners cite expert evidence claiming

17 that “[t]he loss of retail investment returns due to conflicted financial advice

18 causes harm to states by lowering their tax revenues.” States’ Add. at 6.

12
 1 III. DISCUSSION

2 A. Article III Standing

3 As an initial matter, the SEC argues that Petitioners lack Article III standing

4 to challenge Regulation Best Interest. We conclude that Ford has standing to bring

5 its petition based on the impairment of its current ability to attract customers by

6 touting the fiduciary duties it owes its clients. In other words, by enabling broker-

7 dealers to advertise their new best-interest obligation, Regulation Best Interest will

8 put Ford and other investment advisers at a competitive disadvantage compared

9 to the status quo. The State Petitioners, on the other hand, lack Article III standing

10 because their claim that Regulation Best Interest will cause a decline in state

11 revenue is entirely speculative.

12 To show Article III standing, Petitioners “must have (1) suffered an injury

13 in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

14 (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

15 Robins, 136 S. Ct. 1540, 1547 (2016). “The petitioner’s burden of production . . . is

16 . . . the same as that of a plaintiff moving for summary judgment[:] . . . it must

17 support each element of its claim to standing ‘by affidavit or other evidence.’”

13
 1 Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (quoting Lujan v. Defenders of

2 Wildlife, 504 U.S. 555, 561 (1992)).

3 1. Ford’s Standing

4 Ford has established Article III standing under the “well-established

5 concept of competitors’ standing.” Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994).

6 This doctrine recognizes “that economic actors ‘suffer an injury in fact when

7 agencies . . . allow increased competition’ against them.” Sherley v. Sebelius, 610

8 F.3d 69, 72 (D.C. Cir. 2010) (cleaned up). Ford meets this standard because its

9 principal attests that Regulation Best Interest will impair its ability to differentiate

10 its services from broker-dealers’ based on its higher duty of care. 4

11 A party has standing to sue over a regulation that unlawfully “bestows

12 upon their competitors ‘some competitive advantage.’” Citizens for Responsibility

13 & Ethics in Wash. v. Trump (“CREW”), 953 F.3d 178, 190 (2d Cir. 2019) (quoting

14 Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir. 1989)). 5 The

15 “basic requirement” of competitor standing is that “the complainant show an

4 Because Ford has standing, we need not address XYPN’s argument that the organization
itself may sue on behalf of its investment-adviser members or that Regulation Best Interest will
deter firms from registering as investment advisers and joining XYPN as dues-paying members.
5Petitioners also must show “that they personally compete in the same arena as the
unlawfully benefited competitor,” which is undisputed here. CREW, 953 F.3d at 190 (cleaned up).

14
 1 actual or imminent increase in competition.” Am. Inst. of Certified Pub. Accountants

2 v. IRS, 804 F.3d 1193, 1197 (D.C. Cir. 2015) (citation omitted). The party suing need

3 not “identify specific customers who switched to [its] competitors” as long as the

4 allegedly unlawful regulation “increases competition or aids the plaintiff’s

5 competitors.” CREW, 953 F.3d at 190 (quoting Canadian Lumber Trade All. v. United

6 States, 517 F.3d 1319, 1332 (Fed. Cir. 2008)). “The form of [this] injury may vary;

7 for example, a seller facing increased competition may lose sales to rivals, or be

8 forced to lower its price or to expend more resources to achieve the same sales, all

9 to the detriment of its bottom line.” Sherley, 610 F.3d at 72.

10 Here, Ford currently attracts customers by “highlighting [the] firm’s

11 fiduciary duty to clients”—one of the firm’s “hallmarks”—in contrast to the lower

12 standard of suitability owed by broker-dealers. XYPN Add. at 4–5. Ford states

13 that Regulation Best Interest will create “a significant risk that clients will not be

14 able to effectively differentiate the fiduciary duty that [Ford] owe[s] them from the

15 lower duty that broker-dealers owe their clients,” which will “harm [Ford’s] ability

16 to attract customers through . . . highlighting the increased standard of loyalty and

17 care” that it owes to its clients. Id. at 5; see also Angela A. Hung et al., RAND Corp.,

18 Investor Testing of Form CRS Relationship Summary 46–48 (2018) (discussing

15
 1 evidence of consumer confusion), available at https://www.sec.gov/about/

2 offices/investorad/investor-testing-form-crs-relationship-summary.pdf.

3 Because Ford has identified an impairment to a specific business practice, it

4 has made a “concrete showing that it is in fact likely to suffer financial injury” from

5 Regulation Best Interest. KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir. 2004). The

6 harm to Ford’s “ability to attract customers” by “highlighting [its] fiduciary duty

7 to clients,” XYPN Add. at 5, means that it will “be forced to lower its price[s] or to

8 expend more resources to achieve the same sales, all to the detriment of its bottom

9 line.” 6 Sherley, 610 F.3d at 72. Thus, Ford has shown, based on both “economic

10 logic” and “actual market experience,” that Regulation Best Interest will hurt its

11 business. Canadian Lumber, 517 F.3d at 1333 (citation omitted). This is enough for

12 competitor standing here.

6 Ford’s claim is distinguishable from cases involving more “speculative” attempts to
“challenge a regulation that merely imposes enhanced regulatory burdens on [a] competitor”
because Ford has identified a specific harm to its ability to attract customers. See, e.g., State Nat’l
Bank of Big Spring v. Lew, 795 F.3d 48, 55 (D.C. Cir. 2015) (holding that a plaintiff could not sue
over a regulation that imposed a “greater regulatory burden” on its competitors because the harm
identified—the “reputational benefit” conferred on the competitor—was “simply too attenuated
and speculative to show the causation necessary to support standing”). To be sure, Ford also
states that its broker-dealer competitors will be subject to “comparatively fewer regulatory
obligations, lower compliance costs, and less legal exposure,” XYPN Add. at 5, but that is not the
basis on which we conclude that Ford has standing.

16
 1 2. State Petitioners’ Standing

2 Unlike Ford, the State Petitioners do not have Article III standing because

3 they have failed to establish a direct link between Regulation Best Interest and

4 their tax revenues. A state has Article III standing to challenge a federal regulation

5 if it can show “a direct injury in the form of a loss of specific tax revenues.”

6 Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992); accord Wyoming v. U.S. Dep’t of

7 Interior, 674 F.3d 1220, 1232 (10th Cir. 2012). A “fairly direct link” is required

8 because “the unavoidable economic repercussions of virtually all federal policies

9 . . . suggest to us that impairment of state tax revenues should not, in general, be

10 recognized as sufficient injury in fact to support state standing.” Pennsylvania v.

11 Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976).

12 Here, the State Petitioners have not shown a direct link between Regulation

13 Best Interest and their tax revenues, relying instead on a causal chain that is too

14 attenuated and speculative to support standing. Even assuming the State

15 Petitioners are correct that Regulation Best Interest will allow for more conflicted

16 advice than a uniform fiduciary standard would, and that such conflicted advice

17 would lead to lower returns on certain investments, the State Petitioners’ theory

18 of injury further depends on even more assumptions to arrive at a “concrete and

17
 1 particularized” harm to the State Petitioners’ budgets, as opposed to one that is

2 “conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (citation omitted).

3 The ultimate annual pool of taxable capital gains in a state is driven by

4 countless variables, from the performance of the broader economy to the

5 composition of individual investor portfolios in the state. The State Petitioners’

6 theory also assumes away the potential downsides of a uniform fiduciary

7 standard, such as investor losses due to higher costs and reduced consumer choice

8 if broker-dealers are driven from the marketplace for investment advice. As a

9 result, we find that the State Petitioners’ theory of injury rests too heavily on

10 “conclusory statements and speculative economic data” concerning the long-term

11 effects of Regulation Best Interest on state budgets, Wyoming, 674 F.3d at 1232–33,

12 and we thus conclude that the State Petitioners lack Article III standing.

13 Nonetheless, because Ford has standing, we have jurisdiction to proceed to

14 the merits of the petitions for review. See Town of Chester v. Laroe Estates, Inc., 137

15 S. Ct. 1645, 1651 (2017) (“At least one plaintiff must have standing to seek each

16 form of relief requested . . . .”).

18
 1 B. Legality under the Dodd-Frank Act

2 The Dodd-Frank Act authorizes the SEC to promulgate Regulation Best

3 Interest. Congress stated that the SEC “may commence a rulemaking, as necessary

4 or appropriate in the public interest and for the protection of retail customers . . .

5 to address the legal or regulatory standards of care for” broker-dealers. Dodd-

6 Frank Act § 913(f) (emphasis added). This broad grant of permissive rulemaking

7 authority encompasses the best-interest rule adopted by the SEC. Contrary to

8 Petitioners’ argument, Section 913(g) does not narrow the scope of Section 913(f)

9 but rather provides a separate grant of rulemaking authority.

10 The key language in each of the provisions at issue is “may,” which is

11 permissive and reflects Congress’s grant of discretionary rulemaking authority to

12 the SEC. See id. § 913(f) (“The Commission may commence a rulemaking . . .”); id.

13 § 913(g)(1) (“the Commission may promulgate rules . . .”); id. § 913(g)(2) (“The

14 Commission may promulgate rules . . .”). Congress gave the SEC the authority to

15 promulgate rules under any of these sections—or to make no rule at all. With

16 Regulation Best Interest, the SEC chose to proceed under Section 913(f), not

17 Sections 913(g)(1) or (g)(2).

19
 1 In addition to the word “may,” the permissive nature of Congress’s grant of

2 authority in Section 913(f) is reinforced by discretionary language allowing the

3 SEC to act “as necessary or appropriate in the public interest . . . [to] address the legal

4 or regulatory standards of care . . . .” Id. § 913(f) (emphases added). Congress

5 delegated to the SEC broad, discretionary authority, which the SEC lawfully

6 exercised by promulgating Regulation Best Interest.

7 Petitioners contend that this reading of Section 913(f) would render the

8 narrower authorizations in Section 913(g) superfluous. Although there is some

9 “[o]verlap” among the three provisions, Section 913(g) is not superfluous because

10 it clarifies that the SEC could have promulgated a uniform fiduciary standard. See

11 Skilling v. United States, 561 U.S. 358, 413 n.45 (2010) (“Overlap with other federal

12 statutes does not render [a statutory provision] superfluous.”).

13 In 2007, the D.C. Circuit struck down an SEC rule broadening the exemption

14 for broker-dealers under the IAA. Fin. Planning Ass’n v. SEC, 482 F.3d 481, 488

15 (D.C. Cir. 2007). When Congress was debating the Dodd-Frank Act,

16 commentators expressed concern that the courts might similarly strike down any

17 new SEC regulation that subjected broker-dealers to the same fiduciary standard

20
 1 that is applicable to investment advisers. 7 By including Section 913(g), Congress

2 ensured that the SEC had explicit (but discretionary) authorization to create a

3 standard of conduct for broker-dealers that is the “same as the standard of conduct

4 applicable to an investment adviser” or to require that both broker-dealers and

5 investment advisers act in the “best interest of the [retail] customer without regard

6 to the financial or other interest of the broker, dealer, or investment adviser.”

7 Dodd-Frank Act § 913(g). So even if Section 913(g) provides no additional grant

8 of authority beyond Section 913(f), it does “a small amount of additional work” by

9 clarifying that the IAA’s broker-dealer exemption did not prevent the SEC from

10 imposing a fiduciary obligation on broker-dealers if it so chose. Scheidler v. Nat’l

11 Org. for Women, Inc., 547 U.S. 9, 22 (2006). 8

7See, e.g., Enhancing Investor Protection and the Regulation of Securities Markets: Hearing Before
the S. Comm. on Banking, Housing, and Urban Affairs, 111th Cong. 136 (2009) (statement of Damon
A. Silvers, Associate General Counsel, AFL-CIO) (“[P]art of what must be done in this area is to
determine whether the proper regulatory approach will require Congressional action in light of
the D.C. Circuit opinion.”).
8 Although “reliance on legislative history is unnecessary in light of the statute’s
unambiguous language,” Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012) (citation omitted),
the context of the Dodd-Frank Act supports this conclusion. The House and Senate versions of
the bill each granted the SEC rulemaking authority over standards of care, but in different ways.
See Br. of Amici Curiae Representative Ann Wagner et al. at 21–26 (discussing legislative history).
The House bill contained a mandatory version of Section 913(g), requiring that the SEC “shall
promulgate rules” making the standard of conduct for broker-dealers and investment advisers
“the same.” H.R. 4173, § 7103, 111th Cong. (as passed by the House, Dec. 11, 2009). The Senate
bill, however, more closely resembled Section 913(f), stating that if the SEC found regulatory

21
 1 Petitioners propose their own interpretation of Section 913—that Section

2 913(f) is a procedural authorization to commence rulemaking only and that Section

3 913(g) provides the substantive content for any such rulemaking. But this reading

4 is inconsistent with the plain meaning of the text, which specifies that the

5 rulemaking should “address the legal or regulatory standards of care for brokers,

6 dealers, [and] investment advisers . . . .” Section 913(f). Petitioners’ approach

7 would render meaningless the substantive portions of Section 913(f) that follow

8 the broad grant of rulemaking authority.

9 We thus hold that the SEC lawfully promulgated Regulation Best Interest

10 pursuant to Congress’s permissive grant of rulemaking authority under Section

11 913(f) of the Dodd-Frank Act.

12 C. Arbitrary and Capricious Review

13 Finally, Petitioners contend that Regulation Best Interest is arbitrary and

14 capricious because (1) it relies on an incorrect interpretation of the broker-dealer

“gaps or overlap,” it “shall . . . commence a rulemaking, as necessary or appropriate in the public
interest and for the protection of retail customers, to address such regulatory gaps and overlap.”
S. 3217, § 913(f)(1), 111th Cong. (as amended by the Senate, May 20, 2010). The final bill retained
both the House and Senate language as Sections 913(g) and (f), respectively, but substituted the
word “may” for the word “shall” to indicate that the SEC had the option, but not the obligation,
to make rules under each provision. 124 Stat. at 1827–29. The independent origins of Sections
913(f) and (g) thus support the interpretation that they are freestanding grants of rulemaking
authority, not interdependent provisions that limit one another.

22
 1 exemption to the IAA, and (2) the SEC did not adequately address evidence of

2 consumer confusion. We reject both arguments and hold that Regulation Best

3 Interest is not arbitrary and capricious.

4 “[W]e will set aside the agency’s decision only if it is arbitrary, capricious,

5 an abuse of discretion, or otherwise not in accordance with law.” Nat. Res. Def.

6 Council, Inc. v. FAA, 564 F.3d 549, 555 (2d Cir. 2009) (internal quotation marks

7 omitted). “Under this deferential standard of review, we may not substitute our

8 judgment for that of the agency,” and we “must be reluctant to reverse results

9 supported by a weight of considered and carefully articulated expert opinion.”

10 Cty. of Westchester v. U.S. Dep’t of Housing & Urban Dev., 802 F.3d 413, 430–31 (2d

11 Cir. 2015) (internal quotation marks omitted).

12 The SEC “crafted Regulation Best Interest to draw on key principles

13 underlying fiduciary obligations . . . while providing specific requirements to

14 address certain aspects of the relationships between broker-dealers and their retail

15 customers.” 84 Fed. Reg. at 33,320. It considered several thousand comments,

16 explicitly rejected proposed alternatives, and concluded that the best-interest

17 obligation “will best achieve the [SEC’s] important goals of enhancing retail

18 investor protection and decision making, while preserving, to the extent possible,

23
 1 retail investor access (in terms of choice and cost) to differing types of investment

2 services.” Id. at 33,320–23.

3 At bottom, Petitioners’ preference for a uniform fiduciary standard instead

4 of a best-interest obligation is a policy quarrel dressed up as an APA claim. The

5 SEC carefully considered and rejected a fiduciary rule based on its findings that

6 the fiduciary duties owed by investment advisers are “not appropriately tailored

7 to the structure and characteristics of the broker-dealer business model (i.e.,

8 transaction-specific recommendations and compensation).” 84 Fed. Reg. at 33,322.

9 “For example, an investment adviser’s fiduciary duty generally includes a duty to

10 provide ongoing advice and monitoring, while Regulation Best Interest imposes

11 no such duty and instead requires that a broker-dealer act in the retail customer’s

12 best interest at the time a recommendation is made.” Id. at 33,321 (footnote

13 omitted). We are “reluctant to reverse” such a “considered and carefully

14 articulated” policy decision. Cty. of Westchester, 802 F.3d at 431 (citation omitted).

15 1. Interpretation of the Broker-Dealer Exemption

16 Petitioners claim that Regulation Best Interest is arbitrary and capricious

17 because it is based on an incorrect interpretation of the “solely incidental” and

18 “special compensation” prongs of the broker-dealer exemption from the IAA. See

24
 1 15 U.S.C. § 80b-2(a)(11)(C) (exempting from the definition of investment adviser

2 “any broker or dealer whose performance of such services is [1] solely incidental

3 to the conduct of his business as a broker or dealer and [2] who receives no special

4 compensation therefor”); Prill v. NLRB, 755 F.2d 941, 948 (D.C. Cir. 1985) (“If a

5 regulation is based on an incorrect view of applicable law, the regulation cannot

6 stand as promulgated.” (citation omitted)).

7 We conclude that the SEC’s interpretation of the scope of the broker-dealer

8 exemption is not so “fundamental” to Regulation Best Interest as to make the rule

9 “arbitrary, capricious, or otherwise not in accordance with law.” Safe Air for

10 Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (citation omitted). The SEC

11 issued an interpretative rule on the phrase “solely incidental” along with

12 Regulation Best Interest. Solely Incidental Interpretation, 84 Fed. Reg. 33,681. But

13 Petitioners have not challenged that rule, nor do they argue that they are permitted

14 to do so. 9 And the phrase “special compensation” is not even mentioned in

15 Regulation Best Interest or the adopting release. See generally Regulation Best

16 Interest, 84 Fed. Reg. 33,318. Petitioners thus fail to explain how the SEC’s

9 We reject Petitioners’ contention that Regulation Best Interest fundamentally relies on
the Solely Incidental Interpretation. The Adopting Release contains only a few passing references
to the Interpretation for the limited purpose of providing regulatory context. See, e.g., 84 Fed.
Reg. at 33,321, 33,336 n.166.

25
 1 interpretation of the broker-dealer exemption to the IAA could make Regulation

2 Best Interest arbitrary and capricious.

3 2. Consideration of Evidence of Consumer Confusion

4 Petitioners also argue that Regulation Best Interest is arbitrary and

5 capricious because the SEC failed adequately to address the “significant evidence

6 that consumers are not meaningfully able to differentiate between the standards

7 of conduct owed by broker-dealers and investment advisers even with the

8 assistance of disclosure forms.” 10 XYPN Br. at 53 (citing, inter alia, RAND Study at

9 13). But the SEC considered evidence of consumer confusion and found that the

10 benefits of decreased costs and consumer choice favored adopting the best-interest

11 obligation. This decision was not arbitrary and capricious.

12 “When a petitioner challenges the procedure by which an agency engaged

13 in rulemaking, . . . we defer to [the] agency’s determinations so long as the agency

14 ‘gives adequate reasons for its decisions,’ in the form of a ‘satisfactory explanation

10 The State Petitioners also assert that the SEC provided inadequate economic analysis,
but the cases they cite require the agency to give only a “reasoned explanation” for its decision,
not necessarily a quantitative one. See, e.g., City of Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153,
1169 & n.46 (D.C. Cir. 1987); accord Defenders of Wildlife v. Zinke, 856 F.3d 1248, 1263–64 (9th Cir.
2017) (rejecting the claim that an agency’s “failure to quantify” some of the effects of its decision
made that decision “arbitrary and capricious”); Lindeen v. SEC, 825 F.3d 646, 658 (D.C. Cir. 2016)
(“We do not require the [SEC] ‘to measure the immeasurable’ and we do not require it to ‘conduct
a rigorous, quantitative economic analysis unless the statute explicitly directs it to do so.’”
(citation omitted)).

26
 1 for its action including a rational connection between the facts found and the

2 choice made.’” Nat. Res. Def. Council, Inc. v. EPA (“NRDC”), 961 F.3d 160, 170 (2d

3 Cir. 2020) (cleaned up) (quoting Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

4 2125 (2016)). “An agency’s factual findings must be supported by ‘substantial

5 evidence,’” meaning “such relevant evidence as a reasonable mind might accept

6 as adequate to support a conclusion.” Fund for Animals v. Kempthorne, 538 F.3d 124,

7 132 (2d Cir. 2008) (citations omitted).

8 In the Adopting Release, the SEC explicitly recognized that a uniform

9 standard of care may “reduce retail investor confusion as it would ensure that

10 investors are provided the same standard of care and loyalty regardless of what

11 type of financial professional they engage.” 84 Fed. Reg. at 33,462. But the SEC

12 weighed these benefits against the “significant compliance costs” for broker-

13 dealers that could cause “retail customers [to] experience an increase in the cost of

14 obtaining investment advice” and lead to “the potential exit of broker-dealers from

15 the market.” Id. at 33,462; id. at 33,464 n.1351 (citing Vivek Bhattacharya et al.,

16 Fiduciary Duty and the Market for Financial Advice (Working Paper, Apr. 2019)

17 (discussing possible exit by broker-dealers)); 84 Fed. Reg. at 33,464 n.1354 (citing

18 Diane Del Guercio & Jonathan Reuter, Mutual Fund Performance and the Incentive to

27
 1 Generate Alpha, 69 J. Fin. 1673, 1682 (2014) (discussing the lower costs offered by

2 broker-dealers)); see also Br. for Amici Curiae SIFMA et al. in support of

3 Respondents at 14–20 (surveying evidence in support of the SEC’s analysis).

4 Thus, Regulation Best Interest was not arbitrary and capricious because the

5 SEC gave “adequate reasons for its decision[]” to prioritize consumer choice and

6 affordability over the possibility of reducing consumer confusion, and it

7 supported its findings with “substantial evidence.” NRDC, 961 F.3d at 170

8 (citation omitted); Fund for Animals, 538 F.3d at 132 (citation omitted).

9 IV. CONCLUSION

10 For the reasons set forth above, the petitions for review are denied.

28
RICHARD J. SULLIVAN, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that the State Petitioners lack standing to bring

their petition. I also happen to agree with the majority’s analysis of Regulation

Best Interest and its rejection of the investment advisers’ challenge on the merits.

Nevertheless, because I am convinced that XY Planning Network, LLC and Ford

Financial Solutions, LLC (together, the “XYPN Petitioners”) also lack standing to

challenge Regulation Best Interest, I would dismiss the petitions in their entirety,

without reaching the merits of petitioners’ regulatory arguments.

In order to establish Article III standing, petitioners “must have (1) suffered

an injury in fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The XYPN Petitioners offer a

grab bag of standing theories, most of which are easily brushed aside for failing to

establish one or more of the three requirements articulated in Spokeo.

For example, Ford asserts that it has standing to challenge Regulation Best

Interest because the rule will subject Ford’s broker-dealer competitors to

“comparatively fewer regulatory obligations, lower compliance costs, and less

legal exposure, giving them a competitive advantage.” XYPN Br. Add. at 5. But
Ford cannot establish that Regulation Best Interest is the cause of these alleged

injuries, since the XYPN Petitioners concede that the competitive imbalance

between investment advisers and broker-dealers predated the rule. See XYPN Br.

at 11 (explaining the “reality of the retail market for investment advice, in which

broker-dealers . . . regularly provide personalized financial advice alongside

investment advisers without registering themselves under the Investment

Advisers Act”); id. at 17 (acknowledging that Regulation Best Interest “preserved

the regulatory gap between broker-dealers and investment advisers in the market

for personalized investment advice”). If anything, Regulation Best Interest will

actually lessen the competitive disadvantage faced by investment advisers since it

in fact increases the regulatory obligations, compliance costs, and legal exposure

borne by broker-dealers. So even if Ford is correct in asserting that it remains at a

disadvantage because the SEC did not equalize the duties and obligations of

investment advisers and broker-dealers, that injury “cannot tenably trace” to

Regulation Best Interest. Cal. Ass’n of Physically Handicapped, Inc. v. FCC, 778 F.2d

823, 827 (D.C. Cir. 1985). Moreover, a favorable judicial decision in this action

would not redress the investment advisers’ alleged injuries, since vacatur of the

regulation would restore the status quo, leaving broker-dealers with even fewer

2
obligations and a more pronounced competitive advantage over investment

advisers.

For its part, XY Planning contends that it has standing because the rule’s

failure to impose a uniform fiduciary standard on both broker-dealers and

investment advisers “reduces the likelihood that broker-dealers will register as

investment advisers,” thereby “resulting in a loss of business” from broker-dealers

who might otherwise be induced to join XY Planning as dues-paying members.

XYPN Br. at 31. But in addition to being wholly speculative, this theory again fails

to establish a causal relationship between the regulation and the alleged injury. At

bottom, XY Planning does not claim that Regulation Best Interest will cause it to

lose business; it merely complains that the rule does not do more to mitigate a

preexisting competitive injury. But that is not enough to establish injury-in-fact or

causation. And since the SEC is under no statutory mandate to impose an

equalizing fiduciary standard on broker-dealers, a favorable result in this litigation

– vacatur of Regulation Best Interest – will do nothing to redress that preexisting

harm. To the contrary, vacatur will ensure that broker-dealers continue to enjoy a

more pronounced competitive advantage – and have even less incentive to join XY

3
Planning as dues-paying members – than would be the case under Regulation Best

Interest.

Notwithstanding the inadequacies of the XYPN Petitioners’ principal

standing arguments, the majority purports to find a winning theory of standing at

the very bottom of the bag. That theory – which might be characterized as “the

client marketing theory” – posits that Ford and similarly situated investment

advisers meet the requirements of Spokeo because “Regulation Best Interest will

impair [Ford’s] ability to differentiate its services from broker-dealers’ based on its

higher duty of care.” Maj. Op. at 14. Accepting at face value the affidavit of Ford’s

principal, the majority concludes that (1) Ford attracts customers by touting its

fiduciary duty to clients, in contrast to the lower suitability standard that broker-

dealers owe to their clients, and (2) Regulation Best Interest poses “a significant

risk that clients will not be able to effectively differentiate the fiduciary duty that

[Ford] owe[s] them from the lower duty that broker-dealers owe their clients.” Id.

at 15 (internal quotation marks omitted). According to the majority, Regulation

Best Interest threatens to impair Ford’s ability to market its higher fiduciary duty

as a way of differentiating itself from broker-dealer competitors. Put another way,

the majority concludes that Ford uses this tactic to attract customers, but will no

4
longer be able to do so if broker-dealers can advertise that they too must act in

their customers’ “best interests” by virtue of the new regulation.

But surely more is required to establish an injury-in-fact for standing

purposes. Under this theory, anyone would be able to challenge a regulation that

imposes duties on third parties simply because the challenger chose to adopt a

marketing strategy that made reference to the existence or non-existence of such

regulations. Consider, for example, a not-far-fetched scenario involving the Food

and Drug Administration’s (“FDA”) food labeling requirements. Under current

regulations, food manufacturers are required to list the ingredients and pertinent

nutritional information on the labels of their products. However, the FDA

exempts small manufacturers from complying with those requirements so long as

fewer than 100,000 units of a product are sold annually in the United States and

the manufacturer employs fewer than 100 people. 21 C.F.R. § 101.9(j)(18). Imagine

that a major food brand launched an ad campaign designed to increase its market

share at the expense of small food manufacturers by highlighting its obligation to

post ingredients on its labels (“read all about it”) in contrast to the exemptions that

allow gourmet food shops to stay silent (“who knows?”). If the FDA proposed a

regulation change that would lift the labeling exemptions on small manufacturers,

5
would the major food brand have standing to challenge the new regulation merely

because its catchy ad campaign would no longer be relevant?

To my mind, the impairment of a marketing tactic based on a competitor’s

characterization of government regulations simply cannot rise to the level of a

legally cognizable injury-in-fact for standing purposes. As the Supreme Court has

recognized, where a party is not “the object of the [challenged] government

action,” its standing is “substantially more difficult” to establish. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 562 (1992) (internal quotation marks omitted). In those

circumstances, “much more is needed,” id., namely, a “concrete, particularized,

and actual or imminent” injury, Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013) (internal quotation marks omitted).

Here, Ford’s diminished ability to market its fiduciary duty as a

differentiating factor from its broker-dealer competitors does not satisfy this

requirement. Neither the hypothetical food brand nor the actual petitioners here

have a property interest in characterizing competitors as un- or under-regulated.

And while they may have a limited First Amendment right to make such

statements in the marketplace, they certainly don’t have Article III standing to

6
challenge a regulation simply because it threatens to alter the regulatory status

quo and render their marketing strategy less compelling.

For all these reasons, I am convinced that the XPYN Petitioners lack

standing to challenge Regulation Best Interest, and that we are compelled to

dismiss their petitions outright without reaching the merits of the challenge.

7