Research analyst independence: Efforts to eliminate conflicts lead to conflicting requirements

Following a spate of corporate scandals, the bursting of the “Internet bubble,” and media revelations of research analyst bias at the nation’s largest investment banks, regulators launched a series of investigations and rulemaking initiatives that culminated in the adoption of extensive new rules regarding the conduct of research analysts and in the April 2003 global settlement (“Global Settlement”) of enforcement actions against 10 firms relating to research and investment banking conflicts. Although the Global Settlement by its terms only applies to the settling firms, as a practical matter, its reach will be much broader because state regulators and other third parties are looking to it to define a set of “best practices” to supplement the new rules. Although the new rules and the Global Settlement are intended to address the same concern ‐ i.e., conflicts of interest between research analysts and investment banking personnel at multi‐service brokerage firms ‐ their approaches to handling these conflicts reflect different assumptions and result in regulatory regimes that differ in such basic respects as the universe of persons who are deemed to be “research analysts.” These differences are not surprising. The new rules are the product of a lengthy, iterative rulemaking process that was open to the public and in which a diverse range of interested parties participated. In contrast, the undertakings detailed in the Global Settlement were the result of an enforcement action, concluded through bi‐lateral negotiations between the regulators and the 10 firms and without the opportunity for other interested parties to provide input or contribute to the process. However, for firms that seek to comply with both sets of requirements, the overlapping, and at times inconsistent, terms create a confusing and costly environment.