The Clients’ Waiver of Their Rights Under Regulation BI of the Securities and Exchange Commission

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses the Securities and Exchange Commission (SEC)’s Regulation Best Interest (BI), which imposes on broker-dealers a commitment to act in the best interests of their clients. Specifically, Frankel addresses the SEC’s treatment of client waivers of the Regulation BI, which goes even further than general fiduciary law to prohibit any waiver of the broker-dealer’s conflicting interests.

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Henry v. Johnson

Docket: 18-3298

Opinion Date: February 20, 2020

Judge: Grasz

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed suit against current and former members of the Missouri State Highway Patrol, alleging that adverse employment actions were taken against him in retaliation for his protected First Amendment speech. The Eighth Circuit affirmed the district court's grant of summary judgment to defendants, holding that plaintiff's non-testimonial speech was not entitled to First Amendment protection. In this case, although it was undisputed that plaintiff spoke as a private citizen and his speech was of public concern, the highway patrol has shown sufficient evidence of disruption to the efficiency of its operations. Under the Pickering balancing test, the court held that the factors weighed in favor of the highway patrol's interest in efficiency and indicated that plaintiff's speech activity was more likely than not impeding his ability to perform his job duties as a police officer. Therefore, defendants were entitled to qualified immunity regarding plaintiff's speech to the family of the victim of a drowning accident, on social media, and to the news reporter. The court also held that the remaining testimonial speech was not a substantial or motivating factor in the adverse employment actions against plaintiff. Finally, plaintiff's civil conspiracy and failure to supervise claims failed as a matter of law.