Failure to properly disclose conflicts of interest and failure to properly discharge a firm's fiduciary duties -can result in costly penalties.
In a one such case, Merrill Lynch, Pierce, Fenner & Smith ("Merrill") recently agreed to an $8.9 million settlement with the U.S. Securities and Exchange Commission ("SEC").
The firm was charged with failure to disclose a conflict of interest in which its own business interests improperly influenced decisions of whether to continue offering its clients products managed and offered by an outside third-party advisory firm.
Conflict of Interest and Breaking from Standard Procedure
According to the SEC, the third-party manager contacted Merrill executives in an attempt to persuade them not to terminate specific product offerings by appealing to its "overall business relationship" with Merrill and a break in ordinary practices soon followed. As a result, the governing committee at Merrill broke from its customary procedures by deferring a vote on termination of the third-party services. The hold on those services, which was placed due to management changes at the third-party, was later lifted, and the third-party products were again offered to new Merrill customer accounts. Read the full SEC Press Release here.SEC Finds a Conflict of Interest and Failure to Disclose
The SEC's order found that Merrill Lynch failed in its duty to disclose this conflict of interest, and its deviation from standard decision-making process to its customers resulted in depriving customers of their right to unbiased financial advice. Marc P. Berger, Director of the SEC's New York Regional Office, described the effects of the firm's actions in this statement: "Retail clients must feel confident that their advisers are eliminating or disclosing such conflicts and fulfilling their fiduciary duties."Ensuring Compliance: Identifying and Disclosing Conflicts of Interest
When dealing with potential conflicts of interest and ensuring your firm is properly upholding its fiduciary responsibilities, internal examination and introspection is key. Is your firm:- Reviewing its internal controls on how the firm identifies and mitigates risks related to conflict of interest?
- Reviewing its policies and procedures on how and where potential and actual conflicts of interest are disclosed to clients and prospects?
- Reviewing its processes for monitoring any potential conflicts of interest before trouble arises?