Request for Comment on Draft Interpretive Notice Concerning the Application of MSRB Rule G-17 to Municipal Advisors

The Municipal Securities Rulemaking Board (“MSRB”) is requesting comment on a draft interpretive notice concerning the application of MSRB Rule G-17 to municipal advisors providing advice to obligated persons or soliciting business from municipal entities on behalf of others.

Comments should be submitted no later than April 11, 2011. Comments should be sent via e-mail to CommentLetters@msrb.org. Please indicate the notice number in the subject line of the e-mail. To submit comments via regular mail, please send them to Ronald W. Smith, Corporate Secretary, MSRB, 1900 Duke Street, Alexandria, VA 22314. Written comments will be available for public inspection on the MSRB’s web site.[1] The MSRB will hold an informational webinar on the draft interpretive notice on Rule G-17 described in this request for comment on March 1 at 3:00 p.m. The webinar will also address MSRB Notice 2011-14 (February 14, 2011) on draft Rule G-36 (on fiduciary duty of municipal advisors) and associated draft interpretive guidance. Register for the webinar.

Questions about this notice should be directed to Peg Henry, Deputy General Counsel, or Karen Du Brul, Associate General Counsel, at 703-797-6600.

BACKGROUND

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. Law No. 111-203) (“Dodd-Frank Act”) amended Section 15B of the Securities Exchange Act of 1934 (“Exchange Act”) to provide for the regulation of municipal advisors[2] and to direct the MSRB to protect municipal entities and obligated persons.[3]

The MSRB amended Rule G-17, effective December 22, 2010, to make the rule applicable to municipal advisors.[4]Amended Rule G-17 provides:

In the conduct of its municipal securities or municipal advisory activities, each broker, dealer, municipal securities dealer, and municipal advisor shall deal fairly with all persons and shall not engage in any deceptive, dishonest, or unfair practice.

REQUEST FOR COMMENT

The MSRB requests comment on the draft interpretive notice set forth below concerning the application of Rule G-17 to municipal advisors that advise obligated persons clients and municipal advisors soliciting business from municipal entities on behalf of others.[5]

A municipal advisor is required by Rule G-17 to deal fairly with its obligated person clients. This includes a duty to evaluate the appropriateness of a proposed municipal securities transaction or municipal financial product or transaction for its client, unless the client has agreed to a more limited engagement. The municipal advisor must also disclose all material conflicts of interest, such as those that may impair its ability to render unbiased advice and obtain its client’s informed consent to such conflicts of interest. The municipal advisor also must not undertake an engagement unless it has necessary capacity, resources, and knowledge to render informed advice.

Rule G-17 also prohibits a municipal advisor from engaging in deceptive, dishonest, or unfair practices when advising an obligated person. Thus, a municipal advisor may not misrepresent its qualifications and must not accept excessive compensation, including kickbacks and certain other third-party payments.

Rule G-17 also applies to municipal advisors when soliciting business from municipal entities (such as public pension funds) on behalf of third parties. The municipal advisor as solicitor owes a duty of fair dealing to the municipal entity, including a duty to disclose material facts about the solicitation (such as amount and sources of compensation, and relationships with employees or board members of the municipal entity). In addition, if the municipal advisor has been engaged by its client to present information about a product or service offered by the third party, the municipal advisor as solicitor must disclose all material risks and characteristics of the product or service. The municipal advisor as solicitor is also prohibited from engaging in deceptive, dishonest, and unfair practices, such as accepting kickbacks and other undisclosed payments, and giving lavish gifts and gratuities to officials of the municipal entity.

Commenters should note that the interpretive notice is based upon the statutory definition of municipal advisor set forth in the Dodd-Frank Act without regard to any interpretation of that term proposed by the Securities and Exchange Commission (“SEC”) in its proposed permanent registration rule for municipal advisors (Securities Exchange Act Release No. 34-63576 (December 20, 2010). If the SEC’s permanent registration rule is adopted in its current form, the MSRB may request comment on revisions to the draft interpretive notice.

TEXT OF DRAFT INTERPRETIVE NOTICE

INTERPRETIVE GUIDANCE CONCERNING THE APPLICATION OF MSRB RULE G-17 TO MUNICIPAL ADVISORS ADVISING OBLIGATED PERSONS OR SOLICITING MUNICIPAL ENTITIES ON BEHALF OF OTHERS

The Dodd-Frank Act[1] amended Section 15B of the Securities Exchange Act of 1934 (the “Exchange Act”) to provide for the regulation of municipal advisors[2] by the Municipal Securities Rulemaking Board (“MSRB”) and to direct the MSRB expressly[3] to protect municipal entities and obligated persons. Among other things, the MSRB was directed to adopt rules that are designed to “prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in municipal securities and municipal financial products, to remove impediments to and perfect the mechanism of a free and open market in municipal securities and municipal financial products, and, in general, to protect investors, municipal entities, obligated persons, and the public interest . . . . “[4]

Accordingly, the MSRB amended its Rule G-17 to provide: “In the conduct of its municipal securities or municipal advisory activities, each broker, dealer, municipal securities dealer, and municipal advisor shall deal fairly with all persons and shall not engage in any deceptive, dishonest, or unfair practice.”[5] This notice provides guidance on a municipal advisor’s duties under Rule G-17 when providing advice to an obligated person[6] and a municipal advisor’s duties to a municipal entity when undertaking a solicitation of a municipal entity on behalf of another person.[7] The examples discussed in this notice are illustrative only, and are not meant to encompass all obligations of municipal advisors under Rule G-17.

Rule G-17 precludes a municipal advisor from engaging in any deceptive, dishonest, or unfair practice with any person, including a municipal entity or an obligated person. The rule contains an anti-fraud prohibition similar to the standard set forth in Rule 10b-5 adopted by the Securities and Exchange Commission (“SEC”) under the Exchange Act. Thus, a municipal advisor must not misrepresent the facts, risks, or other material information about municipal advisory activities undertaken with a municipal entity or obligated person. However, Rule G-17 does not merely prohibit deceptive conduct on the part of the municipal advisor. It also establishes a general duty of a municipal advisor to deal fairly with all persons (including but not limited to municipal entities and obligated persons), even in the absence of fraud. Even so, unlike a municipal advisor’s duty to its municipal entity client,[8] the Dodd-Frank Act does not require a municipal advisor to exercise a fiduciary duty when advising an obligated person, unless that obligated person is itself a municipal entity.[9]

DUTY TO OBLIGATED PERSONS

FAIR DEALING

Appropriateness. A municipal advisor’s duties to its obligated person client under Rule G-17 will vary depending upon whether the municipal advisor has recommended a municipal securities transaction or municipal financial product to its client, or whether it has been asked to review such a transaction or product recommended by another person. If a municipal advisor has recommended such a transaction or product to its client, the advisor must have concluded, in its professional judgment, that the transaction or product is appropriate for the client, given its financial circumstances, objectives, and market conditions, and must advise the client of material risks and characteristics of the structure or product. The municipal advisor must also advise the client of any incentives for the municipal advisor to recommend the transaction or product and any other associated conflicts of interest.[10]

For example, a municipal advisor that recommends that an obligated person enter into a variable rate demand obligation financing should inform the obligated person of the risk of interest rate fluctuations and the material terms of any associated credit or liquidity facilities (e.g., the risk that the obligated person might not be able to replace the facility upon its expiration and might be required to repay the facility provider over a short period of time). Similarly, a municipal advisor that recommends that an obligated person enter into a municipal derivative contract must disclose the material risks (including market, credit, operational, and liquidity risks) and characteristics of the derivative.

If a municipal advisor has been engaged by its obligated person client to review a municipal securities transaction or municipal financial product recommended by another party (e.g., an underwriter), Rule G-17 requires the municipal advisor to evaluate and advise the client of the material risks and characteristics of the transaction or product and its appropriateness for the client, based on the client’s financial circumstances, objectives, and market conditions. The municipal advisor is not required to have considered then reasonably feasible alternatives unless otherwise requested to do so by the client. Furthermore, the municipal advisor need not advise its client as to the appropriateness of the transaction or product if it has expressly disclaimed that obligation in its engagement letter or other writing with the client.

Due Care. In all cases, the municipal advisor’s Rule G-17 duty to deal fairly requires it to exercise due care in the provision of advice to its obligated person client, which requires that the municipal advisor possess the necessary capacity, resources, and knowledge to render informed advice. A municipal advisor should not undertake a swap advisory engagement unless it has sufficient knowledge to evaluate the transaction and its risks, as well as the pricing and the appropriateness of the transaction.[11] The municipal advisor must also have a reasonable basis for any representations it makes in any certificate it signs that will be relied upon by other parties to the transaction. A municipal advisor’s obligation to act with due care does not make the municipal advisor a guarantor of a successful financing or a guarantor that there are no facts material to its client’s decision-making process other than the ones known by the municipal advisor and disclosed to the client.

Disclosure of Conflicts. The municipal advisor’s Rule G-17 duty to deal fairly with an obligated person client requires the municipal advisor to disclose material conflicts of interest, such as those that may color its judgment and impair its ability to render unbiased advice to its client. All disclosures of conflicts must be made in writing to officials of the obligated person with the authority to bind the obligated person by contract with the municipal advisor. Such disclosures must be made in a manner sufficiently detailed to inform the obligated person of the nature and implications of the conflict. The following are examples of the types of conflicts that must be disclosed by the municipal advisor, but this list is not intended to be exhaustive:

(i) payments by municipal advisors made for the purpose of obtaining or retaining municipal advisory business;

(ii) payments from third parties to the municipal advisor in relation to the municipal advisory engagement;

(iii) payments from third parties to enlist the municipal advisor’s recommendation of their services to the obligated person;

(iv) whether the municipal advisor or an affiliate of the municipal advisor is acting as a principal in matters concerning the municipal advisory engagement; and

(v) other engagements or relationships that might impair the municipal advisor’s ability to provide unbiased advice to its obligated person client.

Failure to disclose conflicts of interest has resulted in various SEC enforcement actions and administrative proceedings for, among other things, violations of Rule G-17 by dealer financial advisors.[12]

Informed Consent. In addition to its duty to disclose various conflicts, Rule G-17 also requires the municipal advisor to obtain informed consent from its obligated person client to each of the conflicts disclosed. The municipal advisor must receive written consent to its conflicts by officials of the obligated person with the authority to bind the obligated person by contract with the municipal advisor before the municipal advisor may provide municipal advisory services to the obligated person or, in the case of conflicts arising after the municipal advisory relationship has commenced, before the municipal advisor may continue to provide such services. For purposes of Rule G-17, an obligated person will be deemed to have consented to conflicts that are clearly described in its engagement letter or other written contract with the municipal advisor, if the obligated person expressly acknowledges the existence of such conflicts. If the officials of the obligated person agree to proceed with the municipal advisory engagement after receipt of the conflicts disclosure but will not provide written acknowledgement of such conflicts, the municipal advisor may proceed with the engagement after documenting with specificity why it was unable to obtain their written acknowledgement.

Disclosure of conflicts, coupled with written consent, will not satisfy the requirements of Rule G-17 in instances in which the municipal advisor has reason to believe that such consent is not informed. In such cases, a municipal advisor should make additional efforts reasonably designed to inform the officials of the obligated person of the nature and implications of the municipal advisor’s conflicts. Additionally, disclosures to officials of the obligated person who are themselves parties to the conflict of interest (such as recipients of payments from municipal advisors) will not suffice to satisfy the requirements of Rule G-17.

Forms of Compensation. The manner in which municipal advisors are compensated varies according to the nature of the engagement and the requirements of the obligated person client, among other factors. Pursuant to Rule G-17, a municipal advisor must provide written disclosure to its obligated person client of what the amount (in dollars and to the extent it can be quantified) of its direct compensation and indirect compensation (e.g., amounts paid to affiliates) from the engagement will be, or is projected to be, as well as the scope of services to be provided for that compensation. Additionally, the municipal advisor must provide written disclosure to its client of the conflicts of interest with various forms of compensation, including the form of compensation applicable to its engagement, even if the client has required that a particular form of compensation be used. One way in which a municipal advisor may satisfy its obligation to provide written disclosure of the conflicts with various forms of compensation is to provide its client with the document entitled “Disclosure of Conflicts of Interest With Various Forms of Compensation,” attached as Appendix A to this notice (the “Compensation Disclosure Document”). The disclosures described in this paragraph must be provided as described above under “Duty to Obligated Persons/Fair Dealing/Disclosure of Conflicts.” Provision by the municipal advisor to its client of the Compensation Disclosure Document will not satisfy the municipal advisor’s obligation to disclose conflicts of interest not addressed in the Compensation Disclosure Document, such as payments from third parties.

DECEPTIVE, DISHONEST, OR UNFAIR PRACTICES

Misrepresentations. Rule G-17 requires that all representations made by municipal advisors to their obligated person clients, whether written or oral, must be truthful and accurate, and municipal advisors must not omit material facts. For example, a municipal advisor’s response to an obligated person’s request for proposals or qualifications must fairly and accurately describe the municipal advisor’s capacity, resources, and knowledge to perform the proposed municipal advisory engagement as of the time the proposal is submitted and must not contain any representations or other material information about such capacity, resources, or knowledge that the municipal advisor knows or should know to be inaccurate or misleading. Matters not within the personal knowledge of those preparing the response (e.g., pending litigation) must be confirmed by those with knowledge of the subject matter. A municipal advisor may not represent that it has the requisite knowledge or expertise with respect to a particular type of transaction or product if the personnel that it intends to work on the engagement do not have the requisite knowledge or expertise.

Excessive Compensation. While the MSRB recognizes that what is considered reasonable compensation for a municipal advisor will vary according to the municipal advisor’s expertise and the nature of the financing, in certain cases and depending upon the specific facts and circumstances of the engagement, a municipal advisor’s compensation may be so disproportionate to the nature of the municipal advisory services performed as to indicate that the municipal advisor is engaging in an unfair practice in violation of Rule G-17.[13] Payments from third parties are included in determining whether compensation is excessive. Furthermore, the MSRB notes that municipal advisors subject to hourly billing arrangements must not submit bills that do not accurately reflect the nature of the services performed and the personnel performing them.

Kickbacks and other payments. Kickback arrangements, or certain fee-splitting arrangements, with underwriters or the providers of investments or services to obligated persons also represent unfair, dishonest, and deceptive practices that are prohibited by Rule G-17,[14] as do payments by municipal advisors made for the purpose of obtaining or retaining municipal advisory business other than reasonable fees paid to a municipal advisor described in Section 15B(e)(9) of the Exchange Act.[15]

SOLICITATION OF A MUNICIPAL ENTITY

While the Dodd-Frank Act imposes a fiduciary obligation on municipal advisors acting on behalf of their municipal entity clients, municipal advisors are not required to exercise a fiduciary duty when soliciting municipal entities on behalf of third parties (in such capacity, a “solicitor”). Solicitors are, however, subject to Rule G-17, and are required to deal fairly with the municipal entities they solicit and not engage in conduct that is deceptive, dishonest, or unfair.

FAIR DEALING

Disclosure of Material Facts about Solicitation. Under its Rule G-17 duty to deal fairly, a solicitor must disclose all material facts about the solicitation to the municipal entity, including:

(i) the name of the solicitor’s client;

(ii) the type of business being solicited;

(iii) the amount of the solicitor’s compensation;

(iv) the source of all compensation received by the solicitor;

(v) payments (including in-kind) made by the solicitor to facilitate the solicitation regardless of characterization; and

(vi) any relationships of the solicitor with any employees or board members of the municipal entity or any other persons affiliated with the municipal entity or its officials who may have influence over the selection of the solicitor’s client.

Material Information about Products or Services. In addition to the disclosure obligations described above, if the solicitor has been engaged by its client to present information to the municipal entity about a product or service being offered by the client, the solicitor is required to disclose all material risks and characteristics of the product or service. The solicitor must also advise the municipal entity of any incentives received by the solicitor (other than compensation from its client) to recommend the product or service, as well as any other conflicts of interest regarding the product or service, and must not make material misstatements or omissions when discussing the product or service.

DECEPTIVE, DISHONEST, OR UNFAIR PRACTICES

Kickbacks and Other Payments. Kickbacks, or fee-splitting arrangements with others, made or entered into by solicitors for the purpose of facilitating the solicitation represent unfair, dishonest, and deceptive practices that violate Rule G-17. Persons and firms arranging, making and receiving such payments have been the subject of various enforcement actions by both the SEC and various state authorities.[16]

Lavish Gifts and Gratuities. Lavish gifts and gratuities made to officials of the municipal entity or affiliated parties may improperly influence the decision of the municipal entity to engage the solicitor’s client. Generally, a gift will be considered lavish if its value exceeds the limits imposed by MSRB Rule G-20 (on gifts and gratuities). Government officials controlling the award of public pension fund business have been found to violate federal and state securities laws by the acceptance of such gifts,[17] as have those making the gifts.[18]

 

APPENDIX A

DISCLOSURE OF CONFLICTS OF INTEREST WITH VARIOUS FORMS OF COMPENSATION

The Municipal Securities Rulemaking Board (MSRB) requires us, as your municipal advisor, to provide written disclosure to you about the actual or potential conflicts of interest presented by various forms of compensation. We must provide this disclosure even if you have already chosen a particular form of compensation. The municipal advisor’s client should select a form of compensation that best meets its needs and the agreed upon scope of services.

Forms of Compensation; Potential Conflicts. The forms of compensation for municipal advisors vary according to the nature of the engagement and requirements of the client, among other factors. Various forms of compensation present actual or potential conflicts of interest because they may create an incentive for an advisor to recommend one course of action over another if it is more beneficial to the advisor to do so. This document discusses various forms of compensation and the timing of payments to the advisor.

Fixed fee. Under a fixed fee form of compensation, the municipal advisor is paid a fixed amount established at the outset of the transaction. The amount is usually based upon an analysis by the client and the advisor of, among other things, the expected duration and complexity of the transaction and the agreed-upon scope of work that the advisor will perform. This form of compensation presents a potential conflict of interest because, if the transaction requires more work than originally contemplated, the advisor may suffer a loss. Thus, the advisor may recommend less time-consuming alternatives, or fail to do a thorough analysis of alternatives. There may be additional conflicts of interest if the municipal advisor’s fee is contingent upon the successful completion of a financing, as described below.

Hourly fee. Under an hourly fee form of compensation, the municipal advisor is paid an amount equal to the number of hours worked by the advisor times an agreed-upon hourly billing rate. This form of compensation presents a potential conflict of interest if the client and the advisor do not agree on a reasonable maximum amount at the outset of the engagement, because the advisor does not have a financial incentive to recommend alternatives that would result in fewer hours worked. In some cases, an hourly fee may be applied against a retainer (e.g., a retainer payable monthly), in which case it is payable whether or not a financing closes. Alternatively, it may be contingent upon the successful completion of a financing, in which case there may be additional conflicts of interest, as described below.

Fee contingent upon the completion of a financing or other transaction. Under a contingent fee form of compensation, payment of an advisor’s fee is dependent upon the successful completion of a financing or other transaction. Although this form of compensation may be customary for the client, it presents a conflict because the advisor may have an incentive to recommend unnecessary financings or financings that are disadvantageous to the client. For example, when facts or circumstances arise that could cause the financing or other transaction to be delayed or fail to close, an advisor may have an incentive to discourage a full consideration of such facts and circumstances, or to discourage consideration of alternatives that may result in the cancellation of the financing or other transaction.

Fee paid under a retainer agreement . Under a retainer agreement, fees are paid to a municipal advisor periodically (e.g., monthly) and are not contingent upon the completion of a financing or other transaction. Fees paid under a retainer agreement may be calculated on a fixed fee basis (e.g., a fixed fee per month regardless of the number of hours worked) or an hourly basis (e.g., a minimum monthly payment, with additional amounts payable if a certain number of hours worked is exceeded). A retainer agreement does not present the conflicts associated with a contingent fee arrangement (described above).

Fee based upon principal or notional amount and term of transaction. Under this form of compensation, the municipal advisor’s fee is based upon a percentage of the principal amount of an issue of securities (e.g., bonds) or, in the case of a derivative, the present value of or notional amount and term of the derivative. This form of compensation presents a conflict of interest because the advisor may have an incentive to advise the client to increase the size of the securities issue or modify the derivative for the purpose of increasing the advisor’s compensation.

[If applicable, describe other form of compensation for the engagement and associated conflicts with a comparable level of specificity].

Acknowledgement

The undersigned hereby acknowledges that he/she has received this disclosure and that he/she has been given the opportunity to raise questions and discuss the foregoing matters with the advisor.

________________________ [name of client]

By: ______________________

Name: ___________________

Title:____________________

Date:____________________