PUBLISH
UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DENNIS J. MALOUF, Petitioner,

v. SECURITIES AND EXCHANGE COMMISSION, Respondent. No. 16-9546

________________ _________________ Petition for Review from an Order of the Securities & Exchange Commission (SEC No. 3-15918)

________________ _________________ Kenneth F. Berg, Ulmer & Berne LLP, Chicago, Illinois (Alan M. Wolper and Heidi E. VonderHei de with him on the br iefs), for Petitione r. Daniel Aguilar, Attorney, Appella te Staff, Civil Division, Unit ed States Department of Justice, Washington, D.C. and Lisa Helvin, Senior Counsel, Securities and Exchange Commissi on, Washington, D.C. (Chad A. R eadler, Acting Assistant Atto rney General, Mark R . Freeman, Attorney, a nd Joshua A. Salzman, Attorney, Appellate Staff, Civil Division, United S tates Department of Justice, Washingto n, D.C.; Michael A. Conley, Sol icitor, and Dominick V. Freda, Assistant General Counsel, Securities an d Exchange Commission, Washington, D.C., with them on the briefs) , for Respondent.

__________________ _______________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### August 13, 2019
Elisabeth A. Shumaker Clerk of Court2 Mr. Dennis Malouf occupi ed key roles at two firms. One of the f irms (UASNM, Inc.) offered investment advice; the other firm (a bran ch of Raymond James Financial Services ) served as a broker-dealer. Ra ymond James viewed those dua l roles as a conflict , so Mr. Malouf sold the Raymond James branch. But the stru cture of the sal e perpetuated the conflict. Because Mr. Malouf did not disclose perpetuation of t he conflict, administrative officials sought sa nctions against him for viola ting the federal securities laws. An administrative law judge found that Mr. Malouf had violated the Securities Exchange A ct of 1934, the Secur ities Act of 1933, th e Investment Advisers Act of 1940 , Rule 10b–5, and Rule 206(4)–1. Given these findings, the j udge imposed sanctions. The SEC affirmed t hese findings and imposed a dditional sanctions, including disgorgeme nt of profits. Mr. Malouf appeals the SEC’ s decision, and we affirm. Background
I. Mr. Malouf sells the Raymond James branch and uses that branch to execute trades for UASNM’s clients. In 2007, Raymond James became con cerned about the conflict of interest between (1) M r. Malouf’s role at its branch office and (2) his role at UASNM. These concerns led Ray mond James to ask Mr. Malouf to choose between the two roles. Mr. Malouf opted to remain at UAS NM and3 sold his Raym ond James branch to Mr. Ma urice Lamonde for roughl y $1.1 million, to be pai d in installme nts based on the Raymond James branch’s collection of securi ties-related fees. 1 To facilitate the installment pa yments, Mr. Malou f routed bond trades on behalf of his UASNM c lients through the Raymond James branch. This way, Mr. Lamonde would r eceive enough in commissions to al low him to pay what he owed Mr. Malouf. 2
While Mr. Malouf was r outing bond trades to t he Raymond James branch, he regularly failed to s eek competing bid s for the trad es. Mr. Malouf conceded that h e should have sought competing bids: UASN M’s compliance procedures r equired firm personne l to solic it bids f rom three different broker-dealers before placing a trade, and Mr. Malouf admitted

1 The written agreeme nt does not state a specific dollar figure for the sale. The written agreement instead provides that Mr. Lamonde w ould pay 40% of securities-related fees t hat the Raymond James branch co llected over a four-year period. But Mr. Malouf testified that he and M r. Lamonde had agreed that upon p ayment of $1.1 million , they would consid er the purchase price fully paid.

2 The Raymond James branch co llected $1,074,454 in commissions on UASNM bond transactions. With t hese commissions, Mr. Lamonde ultimately paid Mr. M alouf $1,068,084 to buy the Raymond James branch.4 that he probably could have received be tter prices for his clie nts through competing bids.
II. UASNM makes misstatements concerning Mr. Malouf’s conflict of interest, and he does not cor rect these misstatements. Mr. Malouf bore responsibility for preparing UASNM’s forms to b e filed with the SEC (refe rred to as “Forms ADV”) 3 and ensuring the accuracy of the UASNM website. Bu t UASNM delegated compliance w ith these responsibilities to a chie f compliance officer and hired an outside consultant to review UASNM’s compliance procedures and Forms AD V. Mr. Malouf later acknowledged tha t his financial arrangement wi th Mr. Lamonde had created a conflic t of interest th at should have been disclosed. But Mr. Malouf did no t disclose that arrangement to UASNM’s chief compliance officer or the outside consultant. Because the se individuals did not know the details of th e Malouf-Lamonde arra ngement, UASNM not only failed to disclose Mr. Malouf’s conflict of inte rest but also boasted that (1) UASNM’s emp loyees were not receiving any commissions or fee s from the Raymond James branch and (2) UASNM was providing impartial advice untainted by any conflicts of intere st.

3 A “Form ADV” is used by investment advisers to register with the SEC and state securities authorities. Form ADV, SEC, https://www.sec.gov/fast-answ ers/answersformadvhtm.html (last visited June 26, 2019).5 While UASNM was boasting of its impartiality, Mr. Malouf was participating in deciding what UASNM would disclose. He acknowl edged that he had reviewed some of the Forms ADV for what to disclose and had at least some familiarity with th e contents of the website. But he took no steps to remedy UASNM’s misstatem ents or to disclose his own co nflict of interest.
III. UASNM discloses Mr. Malou f’s conflict of interest. In June 2010, UASNM’s o utside consultant lea rned that Mr. Malou f had been receiving ongoi ng payments from Mr. Lamonde. With this information, the consultant tol d Mr. Malouf and UASNM that the payments had created a conflict of interest that needed to be disclosed. UASNM disclosed the conflict r oughly nine months later.
IV. The SEC finds that Mr. Malouf vi olated the federal securities laws. The SEC then brought an enforcem ent proceeding against Mr. Malouf. Based on the evidence int roduced in that proceeding, an administrative law j udge found that Mr. Mal ouf had (1) aided an d abetted UASNM’s violations of the federal securities laws and (2) commi tted violations of his own. In the administrative appeal, the SEC ag reed, finding that Mr. Malouf had violated

 § 10(b) of the Securities Ex change Act of 1934 and Rules 10b5(a) and (c),6  §§ 17(a)(1) and 17(a)(3) of t he Securities Act of 1933, and

 §§ 206(1) and 206(2) of the Investment Ad visers Act of 1940. The SEC also found tha t Mr. Malouf had aided and abetted UASNM’ s violations of §§ 206(4) and 207 of the Investment Advisers Act and Rule 206(4)-1(a)(5). The SEC imposed four sanctions on Mr. Malouf:
1. a lifetime bar from the securities industry,
2. an order to cease and desist vio lations of federal securities laws,
3. an order to disgorge $562,001.26 plus prej udgment interest, and
4. an order to pay a $75 ,000 civil penalty. On appeal, Mr. M alouf makes four arguments:
1. The appointment of h is administrative la w judge violated the Constitution’s Appo intments Clause.
2. The SEC misinterpreted the securities laws.
3. The SEC’s findings lack substantial evidence.
4. The sanctions s hould be vacated. Standard of Review When considering these appellate a rguments, we credit the SEC’s factual findings if th ey are supported by su bstantial evidence. Geman v.
SEC , 334 F.3d 1183, 1188 (10th Cir. 2003). Substantial evidence is “such relevant evidence as a reasonabl e mind might accep t as adequate to support7 a conclusion.” C.E. Carlson, Inc. v. SEC , 859 F.2d 1429, 1433 (10th Cir. 1988) (quoting Consol. Edison Co. of New York v. NLRB , 305 U.S. 197, 229 (1938)).
Discussion
I. Mr. Malouf forfeited his cha llenge under the Appointments Clause. Mr. Malouf contends th at the administrativ e law judge was not validly appointed under the Constitution’s Appointments Clause. But Mr. Malouf forfeited this c ontention by failing to present it in th e SEC proceedings. 4 Given the forfeiture , we decline to reach the merits of this challenge.

4 In its response brief, the SEC a rgues in part th at Mr. Malouf forfeited the issue by omitting it in his opening appeal brief. We reject this argument. Before the SEC filed its respon se brief, Mr. Malouf had request ed leave to file a supplemental brie f addressing the issue under t he Appointments Clause. T he SEC opposed the re quest, contending th at Mr. Malouf should have raised the issue in his opening appeal brief . A motions panel provisionally granted Mr. Malouf’s request, leaving the f inal decision to the merits panel and extending the SEC’s deadline t o file a response brief. So the SEC obtained notice and extra time to br ief the issue before filing the response brief. Given the notice and extra ti me, consideration of the issue would not unfairly prejudice the SEC . In light of the absence of prejudice, we grant the request to supplement an d reject the SEC’s argument that Mr. Malouf forfeited the i ssue by failing t o raise it in his opening app eal brief.8 A. Exhaustion of administrative remedies is mandatory under the pertinent statutes. The Constitution’s A ppointments Clause au thorizes Congress to delegate the appointment of “infe rior officers” to the Presiden t, courts, and department heads. U.S. Const. art. II § 2, cl. 2. Mr. Malouf co ntends that his administrative law judge was an “inferior of ficer” who had not been appointed by t he President, a court, or a department head. See Lucia v.
SEC , 138 S. Ct. 2044 (2018). F or this contention , the threshold is sue involves exhaustion of administrative remedies. The underlying securiti es laws expressly re quire administrative exhaustion. See 15 U.S.C. §§ 77i(a) (Securities Act), 78y(c) (Securities Exchange Act), 80b-13(a) ( Investment Advisers Act). 5 Given the s tatutory requirement, courts lack discretion to excuse the failure to ex haust administrative remedies. Ross v. Blake , 136 S. Ct. 1850, 1856–57 (2016). Failure to comply with a mandatory exhaustion requirement preve nts judicial review of the issue. United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37 (1952).

5 The exhaustion requirement e ncompasses constitutional claims. See C.E. Carlson, Inc. v. SEC , 859 F.2d 1429, 1439 (10th Cir. 1988) (concluding that the SEC could have addressed the petitioners’ “constitutional concerns” and th at the opportunity for administ rative review had triggered the e xhaustion requirement).9 B. Mr. Malouf lacks reasonable grounds to excuse his failure to exhaust. Mr. Malouf concedes that his adm inistrative filings did not add ress the Appointments Clause. We thus must decide whether Mr. Malouf satisfies an exception to the exhaustion requirement. The Securities Act does not conta in an express exception to the exhaustion requi rement, so we cannot excus e a failure to satisf y the Securities Act’s exhaustion requi rement. 15 U.S.C. § 77i(a); see Ross , 136 S. Ct. at 1856–57. But th e other two securities statutes (the S ecurities Exchange Act and Investment Advisers Act) provide an exception, allowing the claimant to avoid the exhaus tion requirement upon a showing of reasonable grounds. 15 U.S. C. §§ 78y(c)(1), 80b-13(a). Mr. Malouf argues that he had tw o reasonable gr ounds to skip th e exhaustion requirement:
1. It would have been futile to raise this challenge in the SEC proceedings.
2. The law changed after the SEC had ruled. 6

6 In two stray sentences, Mr. Mal ouf also states that enforceme nt of the exhaustion requir ement would create a miscarriage of justic e. But Mr. Malouf provides no explanation or support f or these statements. Given the absence of explanatio n or support, we regar d the two stray sent ences as inadequate development of a distinct argument. United States v. Martinez , 518 F.3d 763, 768 (1 0th Cir. 2008).10 We reject both arguments. 1. Raising the challenge woul d not have been futile. Mr. Malouf argues that exhausting this challenge would have bee n futile because the S EC would undoubtedly ha ve denied relief. We reject this argument. The failure to pursue administrative remedies may be excused wh en exhaustion would have been futile. Gilmore v. Weatherford , 694 F.3d 1160, 1169 (10th Cir. 2012). B ut the futility except ion is available only when the administrative pro cess would have bee n “clearly useless.” Id. (quoting
McGraw v. Prudentia l Ins. Co. of Am. , 137 F.3d 1253, 1264 (10th Cir. 1998)). Mr. Malouf has not shown that exh austion of this challenge woul d have been clearly useless. Indeed, when he filed his brief in t he SEC (on September 2, 2015), the SEC had n ot yet addressed the applicabi lity of the Appointments Clause to adm inistrative law judges. 7 Despite the absence of any prior SEC decisi ons on the issue, Mr

. Malouf insists that the SEC would have rejected this challenge. He points

7 The day after Mr. Malouf filed this brief, the SEC ruled for the first time that administrative law j udges need not be appointed under the Appointments Clause. In re Lucia , SEC Release No. 4190, 2015 WL 5172953 (Sept. 3, 2015).11 out that attorneys for the SEC ha d previously argued that its a dministrative law judges were not inferior of ficers subject to the Appointmen ts Clause. But the prior arguments by SEC at torneys do not mean that exhau stion would have been futile. See Gilmore v. Weatherford , 694 F.3d 1160, 1169 (10th Cir. 2012) (rejecting an arg ument that the agency’s posit ion had been “predetermined” based on the agency’s pos ition in three earlier cases); C.E. Carlson, Inc. v. SEC , 859 F.2d 1429, 1439 (10th Cir. 1988) (“[A]lthough petitioners contend that raising [the] argument be low would have been futile given the SEC’s past response, t hat alone is n ot a sufficient ground for presuming futility.”). Mr. Malouf points out that after he began his administrative ap peal, the SEC frequently rejected cha llenges under the Appointments C lause. But these decisions do not mean that the SEC necessarily would have rejected a challenge by M r. Malouf. See Gilmore , 694 F.3d at 1169 (“Requiring exhaustion of [claims asserted against agency precedent or an a gency’s litigation position] a llows agencies to tak e into acc ount the s pecific facts of each matter, and to change course if appropriate.” (internal citation omitted)). Had Mr. Mal ouf exhausted availa ble administrative re medies, the SEC might ha ve changed its position o n the Appointments Cla use issue; and “if it did not, the [SEC] would a t least be put on n otice of the accumulating risk of wholesale reversals being incurred by its12 persistence.” United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37 (1952). Because Mr. Malouf has not shown that presentation of this chal lenge to the SEC would have been clear ly useless, we do not regard ex haustion as futile.
2. No intervening change of law took place. We also reject Mr. Malouf’s relia nce on an interv ening change i n the law. For the sake of argument, we can assume that an intervening cha nge in the law might constitute a r easonable ground to excuse the f ailure to exhaust. But the law did not change. Mr. Malouf bases his argument largely on Bandimere v. SEC , 844 F.3d 1168 (10t h Cir. 2016), and Lucia v. SEC , 138 S. Ct. 2044 (2018). 8 In these cases, our court and the Su preme Court held that SEC admi nistrative law judges are inferior officers s ubject to the A ppointments Cl ause. See Bandimere , 844 F.3d at 1170; Lucia , 138 S. Ct. at 2049 . The Courts decided these cases after the SEC had ruled in Mr. Malouf’s cas e,

8 Mr. Malouf also points to Landry v. FDIC , 204 F.3d 1125 (D.C. Cir. 2000). But Landry dealt with the Federal Deposit Insurance Corporation’s administrative law judg es, not the SEC’s. Landry , 204 F.3d at 1130. Moreover, the D.C. Circ uit’s opinion does not control in our ci rcuit.13 preventing him from re lying on either opin ion during his admini strative appeal. But neither Bandimere nor Lucia changed the law: In both cases, the Courts merely applied the Supreme Court’s 1991 opinion in Freytag v. Commissioner of Internal Revenue , 501 U.S. 868 (1991).
In Freytag , the Supreme Court held that s pecial trial judges for the Tax Court were inferior officers subject to the Appointments Cl ause. 501 U.S. at 881. The Supreme Court’s decision hinged on the extensi ve powers granted to special trial judges , which were sign ificant enough to characterize these judges as inferior officers. See id. at 881–82 (noting that special trial judges “take testimony, condu ct trials, rule on t he admissibility of eviden ce, and have th e power to en force compli ance with discovery orders”). SEC administr ative law judges are “near-car bon copies” of the Tax Court ’s special trial judges. Lucia , 138 S. Ct. at 2052. So in Bandimere and Lucia , our court and the Supreme Court regarded Freytag as dispositive on the status of the SEC’s administrative law judges. Bandimere , 844 F.3d at 1174 (“In our view, Freytag controls the result of this case.”); Lucia , 138 S. Ct. at 2052 ( concluding that Freytag ’s analysis “necessarily d ecides this case”). In the SEC pro ceedings, Mr. Malouf could have invoked Freytag , just as the petitioners in Bandimere and Lucia had done. See Island Creek Coal Co. v. Wilkerson , 910 F.3d 254, 257 ( 6th Cir. 2018) (s tating that no14 precedent would have prevented a party from bringing an Appoint ments Clause challenge before Lucia , which itself “noted that existing case law ‘sa[id] everything necessary t o decide this cas e’” (quoting Lucia v. SEC , 138 S. Ct. 2044, 2053 (2018))). 9 Thus, Mr. Malouf cannot avoid the exhaustion requirement based on an intervening change in the la w. See Saffle v. Parks , 494 U.S. 484, 488 (1993 ) (stating that a ru le is not new if the court “would have felt compelled by existing precedent” to conclude that the rule being urged “was required by the Constitution”).
* * * Mr. Malouf failed to a dministratively exha ust his challenge un der the Appointments Clause. We thus c onclude that Mr. Malouf forfeited this challenge. 10

9 In Wilkerson , the Sixth Circuit held that a party had forfeited its Appointments Clause challenge by waiting u ntil the reply brief to present this challenge. 910 F.3d at 256.

10 The SEC concedes that Mr. Malo uf’s failure to exhaust this ch allenge does not constitute a jurisdicti onal defect. Despite this conce ssion, we would ordinarily need to decide for ourselves whether the failu re to exhaust is jurisdictional. See Hertz Corp. v. Friend , 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to determine whether su bjectmatter jurisdiction exists, even when no party challenges it.”)

. Even if the exhaustion requireme nt were not juri sdictional, how ever, it would constitute a c laim-processing rule. See Henderson ex rel.15 II. The SEC reasonably found that Mr. Malouf had violated Rule 10b-5 11 and § 17(a) of the Se curities Act of 1933. The SEC found that Mr. Malouf h ad failed to correct material misstatements, violating

 Rule 10b-5(a) and (c) and

 the Securities Act of 1933 § 17(a)(1) and (3).

Henderson v. Shinseki , 562 U.S. 428, 435 (2011) (explaining that claimprocessing rules are non-jurisdic tional rules “that seek to pro mote the orderly progress of litigation by requiring that the parties ta ke certain procedural steps at certain specified times”). Unlike jurisdict ional requirements, claim-processing rules can be waived or forfeited

. Muskrat v. Deer Creek Pub. Sch. , 715 F.3d 775, 783 (1 0th Cir. 2013). But the SEC has not wa ived or forfeited the failure to exhaust. When Mr. Malouf first raised the Appo intments Clause issue, the SEC promptly responded that Mr. Mal ouf had failed to exh aust the issue in SE C proceedings. We thus would need to enforce the statutory exhaus tion requirements regardless of whet her they are jurisdictional. See Hamer v. Neighborhood Hous. Servs. of Chicago , 138 S. Ct. 13 , 17–18 (2017) (“If properly invoked, manda tory claim-processing rules must be enfo rced, but they may be waived or forfeited.”) . Given the need to require e xhaustion as either a claim processing rule o r jurisdictional requirement, w e need not decide which one applies. See Manrique v. United States , 137 S. Ct. 1266, 1271 (2017) (declining to decide whether the requirement to tim ely file a notice of appeal is jurisdictiona l because the re quirement is “ at least a mandatory claim-pr ocessing rule”).

11 The SEC also found t hat Mr. Malouf had vio lated the Securitie s Exchange Act of 1934 § 10(b). But this pro vision simply incorpo rates the SEC’s “rules and regulations.” 15 U.S.C. § 78j(b). The rule inv oked here is Rule 10b-5.16 For purposes of this appeal, Mr. Malouf does not deny that he f ailed to correct UASNM’s misstatements. Bu t he argues that a failure to correct UASNM’s misstatements does not con stitute a separate violation of the securities laws. We disagree.
A. Rule 10b-5(a) and (c) and § 17(a )(1) and (3) of the Securities Act of 1933 encompass the failure to correct UASNM’s false or misleading statements. The relevant provision s ban two broad cate gories of conduct. Th e first category involves the making of a materially untrue or mi sleading statement. The second category involves employm ent of a fraudul ent or deceptive scheme. Add ressing the second cat egory, the SEC found that Mr. Malouf had failed to correct UAS NM’s false or misleading statem ents, triggering liability for employme nt of a fraudulent or deceptiv e scheme. Mr. Malouf contends that liability cannot be based on his failu re to correct UASNM’s misstatements b ecause the failure to correct is inseparable from the m isstatements themselve s. In his view, the SEC “obliterate[d] the distinction” b etween the two categories of p rohibited conduct. Appellant’s Op ening Br. at 23. We reject this argument based on
Lorenzo v. SEC , 139 S. Ct. 1094 (2019).
In Lorenzo , the Supreme Court c onfronted the same two categories of prohibited conduct. The first cat egory is enshrin ed in Rule 10b -5(b), which17 prohibits the ma king of a statement that is materially false or misleading. 17 C.F.R. § 240.10b -5(b). The second categor y is enshrined in

 Rule 10b-5(a) and the Securities Act of 1933 § 17(a)(1) , which prohibit the employment of a fraudulent “device, scheme, or artifice” and

 Rule 10b-5(c), which prohibits e ngagement in an “act, practice, or course of business” operating as a “fraud or deceit.” 15 U.S.C. § 77q(a)(1 ); 17 C.F.R. § 240 .10b-5(a), (c).
In Lorenzo , the SEC found that the pe titioner had disseminated another’s false statement with scienter. 12 Lorenzo , 139 S. Ct. at 1099. The Supreme Court granted certiorari in Lorenzo to decide “whether someone who is not a ‘maker’ of a misstatement und er [Rule 10b-5(b)] . . . can nevertheless be found t o have violated [Rul e 10b-5(a) and (c)] and related provisions of the securities la ws, when the only conduct involv ed concerns a misstatement.” Id. at 1100. The Supreme Court answered “yes.” See id. at 1100–01. In u rging the opposite result, the petitioner ar gued that the prohibitions ap plicable to “makers” of false statements wou ld be superfluous if someone co uld incur liability by disseminating anothe r person’s false statement. Id. at 1101. The Supreme Court rejected this argument based on the prohibiti ons’

12 The Lorenzo Court assumed that the petiti oner himself had not made a false or misleading statement. Lorenzo , 139 S. Ct. at 1100.18 language, purpose, and overlap. Id. at 1102–03. Applying Lorenzo , we conclude that Mr. Malouf’s failu re to correct UASNM’s misstatem ents could trigger liability. The Court in Lorenzo applied three of the provisions that the SEC has invoked agains t Mr. Malouf:
1. Rule 10b-5(a),
2. Rule 10b-5(c), and
3. the Securities Act of 1933 § 17(a)(1). The Court expressly held that a person co uld incur liability un der these provisions when the conduct involv es another person’s false or misleading

statement. Id. at 1102. In reaching this holding, the Supreme Court rejected the same argument urged by Mr. M alouf (that the SEC’s interpret ation would render Rule 10b-5(b) superfluous). Id. at 1101–03. The Lorenzo Court did not addre ss a fourth provisio n involved here: the Securities Act of 1933 § 17(a)(3). But this provision is vi rtually identical to Rule 10b-5(c), which Lorenzo did address. Rule 10b-5(c) prohibits anyone using interstate commerce from “engag[ing] in any act, practice, or course of business wh ich operates or would operate as a fraud or deceit.” 17 C.F.R. § 240.10b-5 (c). Similarly, the Securities Act of 1933 § 17(a)(3) states that offerors or sellers of securities cannot “engage in any19 transaction, practice, or course of business whic h operates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. § 7 7q(a)(3). In light of this similarity, Mr. M alouf urges us to interpret § 17(a)(3) coextensively with Rul e 10b-5(c). We do so; Lorenzo thus controls on § 17(a)(3) as well as the other provisions.
B. Substantial evidence exists for the findings that Mr. Malouf violated Rule 10b-5(a ) and (c) and the Se curities Act of 1933 § 17(a)(1) and (3). The resulting question is wheth er substantial ev idence supports the SEC’s findings that Mr. Malouf v iolated Rule 10b-5(a) and (c) a nd § 17(a)(1) and (3) of the Securities Act of 1933. Mr. Malouf ar gues that the findings lack substantial evidence because

 he did not engage in prohibited conduct and

 the evidence does not establish scienter.
1. The applicable provi sions address prohib ited conduct and scienter. The pertinent securities laws p rohibit fraudule nt conduct. For example, Rule 10b-5(a) and the S ecurities Act of 1933 § 17(a)(1 ) prohibit the employment of a device, sch eme, or artifice to defraud. 17 C.F.R. § 240.10b-5(a); 15 U.S .C. § 77q(a)(1). “A ‘device’ . . . is sim ply that which is devised, or formed by design; a ‘scheme’ is a project, plan, or program of something t o be done; and an ‘ar tifice’ is an artful stratagem or trick.” Lorenzo v. SEC , 139 S. Ct. 1094, 1101 (2019) (quoting Aaron v.20 SEC , 446 U.S. 680, 696 n.13 (1980)). Rule 10b-5(c) bars a fraudule nt or deceitful act, practice, or course of business. 17 C.F.R. § 240 .10b-5(c). The Securities Act of 1933 § 17( a)(3) similarly prohibits fraud ulent or deceitful transactions, practices, or courses of business. 17 U .S.C. § 77q(a)(3). In addressing these provisions, Mr. Malouf challe nges the suffi ciency of the evidence on scienter, whi ch is “a mental state embracing intent to deceive, manipulate, or defraud.” C.E. Carlson, Inc. v. SEC , 859 F.2d 1429, 1435 (10th Cir. 1988) (quoting Ernst & Ernst v. Hochfelder , 425 U.S. 185, 193 n.12 (1976)). This mental state can include extre me recklessness. Id. Conduct is extremely reckle ss when the pet itioner knows or must have known that the c onduct created a danger of mislead ing investors. Id. Scienter is required t o find a violation of Rule 10b-5(a), Rule 10b5(c), or the Securities Act of 1933 § 17(a)(1). Bu t scienter is not required for a violation of the Securi ties Act of 1933 § 17(a)(3). Aaron v. SEC , 446 U.S. 680, 691, 697 (1980).
2. The SEC acted reasonably in finding improper conduct. Given these definitions, we conclude that the SEC did not err i n finding a fraudulent device, sch eme, or artifice to defraud.21 The evidence allowed the SEC to reasonably find a conflict of interest: while worki ng at UASNM, Mr. Malouf maintained a finan cial arrangement with Mr. Lamonde, the purchas er of the Raymond Jame s branch. Mr. Malouf knew not only that a conflict existed but al so that UASNM was telling its clients th at he was independent. Despite this knowledge, Mr. Malouf t ook no steps to corr ect UASNM’s statemen ts or to disclose his own conflict. Given this failure to correct missta tements or to disclose his conflict , the SEC reasonably found the existence o f

 an artful stratagem or plan devised to defraud investors under Rule 10b-5(a) and the Securitie s Act of 1933 § 17(a)(1) and

 a fraudulent or deceptive act, pr actice, or course of business under Rule 10b-5(c) and the Securities Act of 1933 § 17(a)(3).
3. The SEC acted reasonably in finding scienter. Mr. Malouf also challenges the finding of scienter on the claim s involving Rules 10b- 5(a) and (c) and the Securities Act of 1933 § 17(a)(1). 13 We reject this challenge. Mr. Malouf and Mr. Lamonde had a financial arrangement that resulted in payments to Mr. Malouf from bond trades that he had routed through the Raymond Jam es branch. This arra ngement gave an ince ntive to

13 As noted above, § 17(a)(3) of the Secu rities Act of 1933 doe s not require scienter. See p. 20, above.22 Mr. Malouf to route his clients’ bond trad es through the Raymon d James branch, compromising the independence of UASNM and Mr. Malouf a s investment advisers. The SEC reasonably concluded that Mr. Malo uf was aware of the conflict and tried to exploit it, for UASNM’s outs ide consultant testified that Mr. Mal ouf had lied and resisted disc losure of the financial arrangemen t with Mr. Lamonde. Mr. Malouf denies scienter, insisting that he did not know of misstatements on the Forms ADV o r the UASNM website. For these misstatements, Mr. Malouf pins t he blame on UASNM’s chief compl iance officer. For three reasons, we re ject Mr. Malouf’s arguments an d conclude that substantial evidence s upports the SEC’s fi nding of sciente r. First, the SEC reasonably reject ed Mr. Malouf’s effort to shift the blame. The chief compliance officer admittedly knew that the Ra ymond James branch had been sold, but he denied knowing about the arr angement for installment payments. Second, the evidence allowed the SEC to reasonably find that Mr

. Malouf was familiar with the conte nts of UASNM’s Forms ADV and its website. For example, Mr. Malouf admitted that he had periodica lly reviewed the Forms ADV and the website. Yet for several years, Mr. Malouf took no action to correct material misstatements on the forms or the website.23 Third, the evidence suggests that Mr. Malouf dragged his feet e ven after being directed to disclose the conflict. This directive s temmed from the outside consu ltant’s discovery that M r. Malouf had been rec eiving installment payments f rom the buyer of the R aymond James branch . Upon this discovery, the consultant to ld Mr. Malouf an d UASNM that t he arrangement had created a conflict of inter est that needed to b e disclosed. But about nine months passed before UASNM disclosed the conflic t. Mr. Malouf’s contribution to that de lay reasonably s upports a findi ng of scienter.
* * * The SEC reasonably f ound that Mr. Malouf ha d acted with scient er to (1) employ a device, s cheme, or artifice to defraud and (2) eng age in an act, practice, or course of busi ness that operate d as a fraud o r deceit. We thus affirm the SEC’s conclusion that Mr. Malouf violated Rule 10b-5(a) and (c) and the Securities Act of 1933 § 17(a) (1) and (3).
III. The SEC reasonably found violati ons of the Investment Advisers Act of 1940 §§ 206 and 207 a nd Rule 206(4 )-1(a)(5). The SEC also found t hat Mr. Malouf had

 violated § 206(1) and (2) of the Investment Advisers Act and

 aided and abetted UASNM’s viola tions of §§ 206(4) and 207 of the Investment Advisers Act and Rule 206(4)-1(a)(5). We uphold these findings.24 A. The SEC reasonably found primary violations of § 206 of the Investment Advisers Act. Under § 206 of the Investment Adv isers Act, investment advisers

cannot

 employ a device, sch eme, or artifice to d efraud a client or

 engage in a transaction, practice, or course of business that operates as a fraud or deceit upon a client. 15 U.S.C. § 80b-6(1)–(2) . The SEC concluded that Mr. Malouf had violated § 206(1) and (2) of the Act in three ways:
1. by failing to correct the mis statements on UASNM’s Forms ADV and website,
2. by failing to disclose his conf lict of interest to his clients, and
3. by failing to seek best executio n for his client s’ bond trades. Mr. Malouf argues that the SEC erred in concludi ng that he vio lated § 206(1) and (2) because

 the failure to corre ct UASNM’s misstatements cannot support liability,

 the finding of scienter (when fa iling to disclose the conflict of interest) is not supported by substantial evidence, and

 he owed no duty of best exec ution and the finding of a violation is unsupport ed by the evidence. We reject Mr. Malouf’s arguments.25 1. A violation could be based on Mr. Malouf’s failure to correct UASNM’s misstatements. Mr. Malouf argues that he canno t incur liability under § 206(1) and (2) simply because he failed to c orrect UASNM’s misstatements. In Part II, we addressed the same issue under

 the Securities Act of 1933 § 17(a)(1) and (3) and

 Rule 10b-5(a) and (c).
See Discussion-Part II(A), above. The language in these provisions is virtually identical to the languag e in the Investment Advisers Act § 206(1) and (2). 14 Given the virtu ally identical wording, Mr. Malouf urges us to

14 The Investment Advisers Act § 206(1) states that an investment adviser cannot “employ any devi ce, scheme, or artifice to defra ud any client or prospe ctive client.” 15 U.S.C. § 80b-6(1). Similarly, the Securities Act of 1933 § 17(a)(1) states that an offeror or sel ler of securities cannot “employ any de vice, scheme, or artifice to de fraud.” 15 U.S.C. § 77q(a)( 1). And Rule 10b-5(a) sta tes that no one can us e interstate commerce “[t]o employ a ny device, sch eme, or artifice to defrau d.” 17 C.F.R. § 240 .10b-5(a). The Investment Advisers Act § 206(2) prohibits i nvestment advi sers from “engag[ing] in any transaction, prac tice, or course of bus iness which operates as a fraud or deceit upon any client or prospective cl ient.” 15 U.S.C. § 80b-6(2). T he Securities Act of 1933 § 17(a)(3) simila rly states that offerors or sellers of sec urities cannot “eng age in any tr ansaction, practice, or course of business wh ich operates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. § 77q(a)(3). And Rule 10b-5(c) prohibits the use of i nterstate commerce “[ t]o engage in any ac t, practice, or course of business which oper ates or would operate as a frau d or deceit.” 17 C.F.R . § 240.10b-5(c).26 interpret the Investment Advisers Act in the same way that we i nterpret Rule 10b-5(a) and (c) and the Secur ities Act of 1933 § 17(a)(1) and (3). We do so in light of the virtually identical language in these provisions.
See SEC v. Steadman , 967 F.2d 636, 641 n.3 (D.C. Cir. 1992) (i nterpreting the Investment Advisers Act § 206 (1) in the same way that the S upreme Court interpreted the Securitie s Act of 1933 § 17 (a)(1) because the statutory language is virtually i dentical). Given this interpre tation, we conclude that Mr. Malouf’s failu re to correct UASNM’s misstatem ents could create liability under the I nvestment Advise rs Act § 206( 1) and (2).
2. Substantial evidence exists for the finding of scienter based on Mr. Malouf’s failure to discl ose his conflict of interest. Liability under the I nvestment Advisers Ac t § 206(1) requires p roof of scienter; liability under § 206(2) requir es only simple negl igence. Robare Grp., Ltd. v. SEC , 922 F.3d 468, 472 (D.C. Cir. 2019). Scienter can encompass extreme recklessness. See p. 20, above. The SEC found sci enter in Mr. Malouf’s fai lure to disclose his conflict. Mr. Malouf ch allenges this findi ng on ground s that he

 was “set-up” by UASNM’s chi ef compliance officer and

 believed that the chief compli ance officer had b een disclosing the conflict. But the SEC reasonably credited the chief compliance officer’s testimony that he had not kno wn about Mr. Malo uf’s conflict. See p. 22, above. We27 thus reject Mr. Malouf’s challe nge to the SEC’s finding of scie nter on the claim under § 206(1) of the I nvestment Advisers Act.
3. Mr. Malouf owed a duty of best execution, and the SEC’s finding of a violation is suppo rted by substantial evidence. The duty of best execu tion requires a broker-dealer to seek the best terms reasonably available for customer orders. Newton v. Me rrill, Lynch, Pierce, Fenner & Smith, Inc. , 135 F.3d 266, 270 (3d Ci r. 1998) (en banc). Mr. Malouf argues that

 the SEC erred by f inding that he owe d this duty and

 the evidence was insufficient to find a violation of this duty. 15 We reject both ar guments, conclud ing that (1) Mr. Malouf owed a duty of best execution to his clients and (2) substantial evidence supp orts the finding of a violation. Under the duty of best execution, a fiduciary bears an obligati on to seek “the most favorable terms reasonably available under the circumstances.” Geman v. SEC , 334 F.3d 1183, 1186 (10th Cir. 2003)

15 Mr. Malouf also sugg ests that the SEC e rroneously ignored the administrative law judge’s conc lusions of law. This suggestion assumes that the administra tive law judge’s conc lusions of law bound th e SEC when it reviewed the judge’s decision . Mr. Malouf s upplies no author ity for this assumption.28 (quoting Newton , 135 F.3d at 270). This obligation re quires investment advisers to seek the lowest pri ce reasonably available for a cl ient unless the more expensive option results in better service. See Newton , 135 F.3d at 270 n.2; Securities; Brokerage and Research Services , SEC Release No. 23170, 1986 WL 630442, at *11 (Apr. 23, 1986). 16 When an investment adviser is affiliated with the bro kerage firm executing the tra nsaction, the adviser must make a good-faith j udgment that the commission cha rged “is at least as favorable to the [client] as that charged by other qualified brokers.” Applicability of Comm.’s Poli cy Statement on the Future Structure of Securities Markets to Selection of Brokers and Payment of Commissions by Institutional Managers , SEC Release No. 318, 1972 WL 121270, at *2 (May 17, 1972). In cas es of self-dealing, the inv estment

16 We defer to the SEC’s reasonab le interpretations of ambiguous statutory provisions in federal securities laws when the interp retations carry the “force of law.” Thomas v. Metropoli tan Life Ins. Co. , 631 F.3d 1153, 1162 (10th Cir. 2011); see SEC v. Zandford , 535 U.S. 813, 819–20 (2002) (stating that the SEC’s r easonable interpr etation of an ambiguous provision of the Securities Excha nge Act, issued in a formal ad judication, is entitled to deference). We othe rwise consider the SEC’s inte rpretations only for their per suasive value. Thomas , 631 F.3d. at 1162–63. In citing the SEC releases, we u se them only for their persuas ive value. We need not decide whethe r the SEC releases are subject to deference.29 adviser bears a “particularly heavy” burden to justify a commis sion rate exceeding the lowest available rate. Id. Mr. Malouf concedes that the duty of best execution requires reasonable diligence to ensure t he best price reasonably availa ble. But Mr. Malouf argues that the duty of best execution is owed by the in vestment firm as a whole, not by him individually. For this argument, Mr . Malouf relies on Regulatory Notice 15-46 of the F inancial Industry Reg ulatory Authority. This notice refers to a “firm’s best execution oblig ation.” Guidance on Best Execution Obligations in Equity, Options and Fixed
Income Markets , FINRA Regulatory Notice 15-46, at 4 (Nov. 2015). Mr. Malouf seizes on this language in denying that the obligation a pplies to individual brokers like himself. We reject Mr. Malouf’s argumen t for two

reasons: 1. The duty of best ex ecution comes from the Investment Advisers Act, not Regulatory Notice 15-46.
2. Mr. Malouf has misinterpreted Regulatory Notice 15-46. First, the duty of best executio n originated in the Investment Advisers Act rather than Notice 15-46. See Kurz v. Fidelity Mgmt. & Research Co. , 556 F.3d 639, 640 (7t h Cir. 2009) (stating that the duty of best execution is “widely unders tood as a subject of regulation ” under the federal securities laws, includin g the Investment Advisers Act) . The Act prohibits investment advisers f rom engaging in a fraudulent or deceptive30 transaction, practice, or course of business. Investment Advise rs Act, 15 U.S.C. § 80b–6(2). Thi s prohibition impose s a fiduciary duty of loyalty on investment advisors, and the duty of loyalty subsumes the duty of best execution. See SEC v. Capital Gains Resear ch Bureau , 375 U.S. 180, 191– 92 (1963) (recognizing that the I nvestment Advisers Act obligat es investment advisers to provide “disinterested” advice); In re Hughes , Exchange Act Release No. 4048 , 1948 WL 29537, at *5 (Feb. 18, 1 948) (“A corollary of the fiduciary’s duty of loyalty to his princip al is his duty to obtain . . . the best price discoverable in the exercise of reasonable diligence.”), aff’d sub nom. Hughes v. SEC , 174 F.2d 969 (D.C . Cir. 1949). Thus, the Act ultimately imposes a duty of best execution on in vestment advisers (not just their firms). See In re DeSano , Advisers Act Release No. 2815, 2008 WL 5189512, at *4 (Dec. 11, 2008) (“Under Section 20 6 of the [Investment] Advisers Act, an investment adviser has a fiduciar y duty to seek best execution for its clien ts’ security transactions.”). Second, Mr. Malouf has misinterpr eted Notice 15-46. This notice points out that the Financial Industry Regulatory Authority has codified the duty of best execution in Rul e 5310 of the Fi nancial Indust ry Regulatory Autho rity Manual. Rul e 5310 provides: In any transaction for or with a customer or a customer of another broker-dealer, a member and persons associated with a member shall use reasonable dili gence to ascertain the best market for the subject security and buy or sell in such market so31 that the resultant price to the customer is as favorable as pos sible under prevailing ma rket conditions. Financial Industry Regulatory Authority Manual , Rule 5310(a)(1)

. Rule 5310 does not conf ine the duty of best execution to firms: it applies to “a member and persons associated with a member.” The rule’s definition of the term “member” i ncludes “any individual, partn ership, corporation or other legal entit y admitted to membership” in th e Financial Industry Regulatory Authority, a nd the term “person” includes “ any natural person.” Id. , Rule 160(b)(10) & (12). Thus , Mr. Malouf’s argument is based on a misreading of Rule 5310. But Mr. Malouf also argues that even if he owed the duty of bes t execution, he would avoid liabil ity because he de legated compli ance to the chief compliance officer. For th is argument, Mr. Malouf identif ies the administrative law judge’s conclu sions of law that the chief co mpliance officer’s duties included

 review of UASNM’s trade tic kets to ensure that the commissions were reason able and that the investment advisers were complying with UASNM’s best-executi on policy and

 review to ensure compliance with UASNM’s compliance manual.32 But Mr. Malouf does not identify any evidence that he delegated his own compliance with the b est-execution policy. 17 He instead points to conclusions of law sta ting that the chief compliance officer’s duties incl uded policing of UASNM employee s for adherence to the firm’s manual. But these conclusions of law do not undermine the obligation of inves tment advisers (like Mr. Malou f) to comply with their own fiduciary duties to their clients. See Commission Guidance Regarding Client Commission Practices Under Section 28(E) of the Securities Exchange Act of 1934 , Exchange Act Rel ease, No. 54165, 2005 WL 4843294, at *2 & n.3 (July 18, 2006) ( stating that inve stment advisers bear duties to act in th eir clients’ best interests). Mr. Malouf also argues that

 there is no evidence that he c ould have executed trades for better prices and

 he was not obligated to seek competing bids from brokers before executing bond trades. We reject both arguments.

17 Even if Mr. Malouf had delegat ed his own comp liance with the duty of best execution, he would remain liable. See Geddes v. United Staffing Alliance Emp. Med. Plan , 469 F.3d 919, 926 (10th Ci r. 2006) (stating that when a fiduciary delegates tasks to others, the fiduciary remai ns “responsible for actions p erformed in his name”).33 First, Mr. Malouf deni es that he could hav e executed bond trade s for better prices than those offered by the Raymond James branch. B ut the SEC could reasonably arrive at a contrary finding based on (1) the testimony of an expert witness an d (2) Mr. Malouf’s own testimo ny. An expert witness opined that Mr . Malouf’s trades had resulted in commissions to the Ray mond James branch s ubstantially exceeding the industry’s standard commissions . In reaching thi s opinion, the expert witness assumed that standard commissions range from 0.10 to 0. 75 percent of the total amount of t he bond transaction. He based t his range on personal experience, industry research, and consultation with o ther experts in the field. With this assumpti on, the expert w itness studied the bond trades that Mr. Malouf had route d through the Ray mond James bra nch and determined that his clients had paid co mmissions between $442,1 06 and $693,804 above the standard rate. The expert witness presented two diagrams showing the differenc es between the actual commissions paid on Mr. Malouf’s trades and standard commissions 18 :

18 We have slightly edited the diagrams for clarity.34 The SEC credited

 the expert witness’s lower figu re of total excess commissions paid by Mr. Malouf’s clients to the Raymond James branch ($442,106) and

 Mr. Malouf’s own testimony abou t the percentage of UASNM bond trades that he ha d conducted (60%).35 Based on its findings, t he SEC concluded tha t Mr. Malouf was re sponsible for $265,263.60 in ex cess commissions paid b y UASNM clients. In light of the expert witness’s testimony, we conclude that the SEC reason ably found that Mr. Malouf could have execu ted trades for better prices. Second, Mr. Malouf contends that the duty of best execution did not obligate him to seek multiple bid s. Even without this obligatio n, the SEC concluded that Mr. Malouf’s fai lure to seek multiple bids suppo rted a finding of scienter. This conclu sion was based on substantial e vidence. The expert witness testified that multiple bids p rovide the ide al way to satisfy the duty of best execution. Mr. Malouf agreed with t his testimony and conceded that he had routinely faile d to seek com peting bids before routing trades through the Raymond J ames branch, with wh ich he had an undisclosed fin ancial relationship. The SEC thus reasona bly found that Mr. Malouf had routed trade s to the Raymond James branch i n order to benefit himself to the detriment of his clients.
* * * We conclude that the SEC reasona bly found that Mr. Malouf had violated the Investment Advisers Act § 206(1) and (2) by failin g to

 correct UASNM’s misstatements,

 disclose a conflict of interest, and

 seek best execution.36 B. The SEC also reasonably found that Mr. Malo uf had aided and abetted UASNM’s violation s of §§ 206 and 207 of the Investment Advisers Act and Rule 206(4)-1(a)(5). Section 206 of the Investment Advisers Act bans practices that are fraudulent, deceptive, o r manipulative. 15 U .S.C. § 80b-6(4). F or example, it is fraudulent, deceptive, or manipulative to publish an adve rtisement containing an untrue statement o f material fact. 17 C.F.R. § 27 5.206(4)- 1(a)(5). And under § 207 of the Act, an i nvestment adviser cann ot omit material facts in an SEC report ( like a Form ADV). 15 U.S.C. § 80b-7. Applying these prohibitions, the SEC found that Mr. Malouf had aided and abetted UASNM’s violations of the Investment Advisers Act and Rule 206(4)–1(a)(5). Acc ording to the SEC, UASNM violated these provisions by

 stating in the Forms ADV and on the company’s website that the employees had no conf licts of interest and

 failing to disclose Mr. Malou f’s conflict of interest. The SEC also found tha t Mr. Malouf had aided and abetted these violations by recklessly failing to tell UASNM that he had a conflict of i nterest. Mr. Malouf does not contest UAS NM’s commission of a primary violation. He instead argues that the SEC lacks substantial evi dence for its finding that he had ai ded and abetted UASNM ’s violations. Accor ding to Mr. Malouf, eviden ce was lacking on

 scienter and37  substantial assistance o f UASNM’s violations. Mr. Malouf also argues that by d eclining to charge him with aid ing and abetting a violation of Rule 10b-5(b), the S EC undermined its f inding that he had aided and abetted a viola tion of the Investment Advisers Act. We reject Mr. Malouf’s arguments. First, Mr. Malouf contests the SEC’s finding of scienter. As Mr. Malouf suggests, scienter is an essential element of aiding and abetting a violation of the securities law. See Howard v. SEC , 376 F.3d 1136, 1143 (D.C. Cir. 2004) (stating that liability for ai ding and abettin g requires scienter). But we have already concluded that the SEC had reaso nably found scienter based on Mr. Malouf’s failu re to correct UASNM’s misstatements about the absence of a conflict of interest. See pp. 21–23, above. 19

19 Mr. Malouf argues that sciente r cannot be based on his failur e to detect another’s misconduct. To support this argument, he cites Howard v. SEC , 376 F.3d 1136 (D.C. C ir. 2004). There the D .C. Circuit held t hat the defendant had not acte d with scienter when the only evidence of his intent was that he should have known about another’s wrongdoing. 376 F .3d at 1143. Howard is not analogous. The SEC reaso nably found that Mr. Malouf had recognized a confl ict of interest, know n that he needed to disclose it, and known that he had not disclo sed to UASNM that his conflict was ongoing. Given this knowledge, Mr. Malou f knew or mu st have kno wn that38 Second, Mr. Malouf contests the f inding on substantial assistan ce, stating that his failure to corr ect UASNM’s misstatements did n ot facilitate its fraudulent scheme. But in finding sub stantial assistan ce, the SEC did not rely on a failure to correct UASNM’s misstatements; the SEC instead relied on Mr. Malouf’s failure to disclose his con flict of inte rest arising from Mr. Lamonde’s ongoing payments. UASNM’s f ailure to disclos e this conflict of interest stemmed larg ely from Mr. Malouf’s failure to tell other UASNM officers about the ongoing payments f rom Mr. Lamonde. Wit hout this information, the other UASNM offi cers had no way of knowin g that Mr. Malouf was persona lly benefiting from bond trades routed th rough the Raymond James branch. Finally, Mr. Malouf poi nts to the SEC’s dec ision not to charge him with aiding and abetting UASNM’s making of a material misstatem ent in violation of Rule 10b-5(b). According to Mr. Malouf, the absenc e of such a charge must mean that the SEC did not believe that he had aided and abetted UASNM’s violati ons. But Mr. Malouf does not provide any

UASNM could not fully disclose th e conflict. At a minimum, the SEC had substantial evidence for its fin ding that Mr. Malouf had acted with extreme recklessness by facilitating UASNM ’s failure to disclose the co nflict. See Geman v. SEC , 334 F.3d 1183, 1195 (1 0th Cir. 2003) ( holding that an individual had acted with extreme recklessness when he was awar e of undisclosed informati on and “surely knew” that it had not been adequately reported).39 authority for this leap. “[A]n agency decision not to enforce o ften involves a complicated balancing of a number of factors which are peculi arly within its expertise. So the agency must not only assess whether a vio lation has occurred, but whether agency resources are best spent on this v iolation or another . . . .” Heckler v. Chaney , 470 U.S. 821, 831 (1985). The SEC’s decision not to bring an aidin g or abetting char ge under Rule 1 0b-5(b) does not affect the existence of subs tantial evidence, so we decline to disturb the SEC’s findings on this basis.
IV. The SEC did not err in deciding on the sanctions to impose. Based on Mr. Malouf’s violation of the sec urities laws and rela ted rules, the administrative law judge imposed three sanctions:
1. a 7-1/2 year bar from th e securities industry,
2. an order to cease and desist vio lations of the f ederal securiti es laws, and
3. a civil penalt y of $75,000. The SEC extended the bar from 7-1/2 years to life, ordered Mr. Malouf to disgorge $562,001.26 pl us prejudgment inter est, and adopted the40 administrative law judg e’s other sanctions. Mr. Malouf asks us to vacate the SEC’s lifetime ban and disgorgement order. 20 We do not disturb sanctions imposed by the SEC unless they are “beyond the law, devoid of factua l support, or are ‘so lacking in reasonableness as to constitute an abuse of discretion.’” C.E. Carlson, Inc.
v. SEC , 859 F.2d 1429, 1438 (10t h Cir. 1988) (quoting Am. Power & Light
Co. v. SEC , 329 U.S. 90, 115 (1946)). In our view, th e SEC did not abuse its discretion in imposing the lif etime bar or in ordering Mr. Malouf to disgorge $562,001 .26 plus prejudg ment interest.
A. The SEC did not abuse its discretion in ordering a lifetime bar from the securities industry. Under the Investment Advisers Ac t, the SEC may bar advisers fro m associating with the s ecurities industry if

 they “willfully violate d” or “willfully aide d [and] abetted . .

. the violation” of federal securities law and

 the bar is in the public interest.

20 In his reply brief, Mr. Malouf also contends that his sanctio ns were disproportionate to the sanction s imposed in other cases. But M r. Malouf did not present this contention in his opening appeal brief. Ra ising the issue in his reply brief was too late. See, e.g. , WildEarth Guardians v. EPA , 770 F.3d 919, 933 (10t h Cir. 2014) (stating that it “was too late” to present a new issue in the p etitioners’ reply brief).41 15 U.S.C. § 80b-3(e)(5 )–(6) & (f). The SEC concluded that both conditions had been met. Mr. Malouf argues that

 he did not act willfully,

 the SEC penalized him for defending himself, and

 the public interest did not support a lifetime bar in light of his disclosures preceding the SEC investigation and his payment of restitution and civil penalties. We reject these arguments. First, according to Mr. Malouf, the SEC’s f inding of willfulnes s must have been based on his failure to require disclosure from other s. For this argument, Mr. Malouf insists that he delegated the duty of disc losure. We disagree. Mr. Malouf blames the c hief compliance officer, but t his officer could not have been expected to disclose a conflict of interest that he had not known about. See pp. 22, 26, above. The SEC thus did not abuse its discretion in determining that Mr. Malouf had act ed willfully. Second, Mr. Malouf contends that the SEC penalized him for defending himself. We disagree. The SEC reasonably considered M r. Malouf’s failure to rec ognize his own wrongdoing. See Steadman v. SEC , 603 F.2d 1126, 1140 (5th Cir. 1979) (noting t hat a defendant’s admission of wrongful conduct (or lack of an admission thereof) is a fact or “that [has] been deemed relevant to the issuance of an injunction” fr om the42 securities industry), aff’d , 450 U.S. 91 (1981); ZPR Inv. Mgmt. Inc. v. SEC , 861 F.3d 1239, 1255 (11t h Cir. 2017) (uphold ing a bar on contin ued work in an industry when the SEC f ound that the petiti oner had not g enuinely acknowledged h is wrongdoing). Considerat ion of one’s acceptance of responsibility constitutes “a rout ine and unexceptionable featu re . . . of criminal, let alone civil, punishment.” SEC v. Lipson , 278 F.3d 656, 664 (7th Cir. 2002). And the agency record is re plete with examples of Mr. Malouf’s refusal to accept respon sibility for his actions. The SEC thus did not abuse its discretion in consi dering Mr. Malouf’s failure to accept responsibility. Finally, Mr. Malouf stresses hi s (1) disclosure s preceding the SEC’s investigation and (2) prior paym ent of huge sums in restitution and civil penalties. But his earlier disclosures and payments do not rend er a lifetime bar unreasonable. Mr. Malouf waited roughly three years before making the disclosures. And for about nine months of that period, Mr. Malo uf ignored an outside consultant’s directions to make the disclosures. The SEC considered Mr. Malouf’s delay together with his payments toward restitution and civil penalties, concluding that a lifetime bar from the securities industry was justifie d. The SEC’s reas oning is ratio nal and supported by the evidence.43 B. The SEC did not abuse its discretion in ordering disgorgement of $562 ,001.26 plus prej udgment interest. Mr. Malouf also asks us to vacate the SEC’s order that he disgo rge $562,001.26 plus prej udgment interest, arg uing that he did not commit fraud or violate the law. For t his argument, he again casts bla me on the chief compliance officer for faili ng to disclose the financial arrangement that created a conflic t of interest. But we have elsewhere reje cted Mr. Malouf’s effort to pin the blame on the chief compliance office r. See pp. 22, 26, 41, above. Mr. Malouf also suggests that th e SEC abused its discretion by ordering him to disgorge the funds that he had recei ved from Mr . Lamonde. The administrative law judge had r egarded those funds as legal profits that Mr. Malouf did not need to disgor ge. The SEC disa greed, conclud ing that the payments had resulted from Mr. Malouf’s violations of the s ecurities laws. Mr. Malouf suggests that th e SEC should have followed the administrative law judge’s char acterization of the payments. The SEC did not abuse its discret ion. Mr. Malouf knew that he w as profiting whe n he and others at UASNM routed bond transactions through the Raymond James branch. See Appellant’s App’x, vol. 4, at 941–42 (testimony of Mr. Malouf) (admit ting that he traded through the Raymond James branch in part to get paid ). Yet Mr. Malouf waited years to tell others at UASNM about his ongoing payments from Mr. Lamonde. Gi ven44 this delay in disclosing the con flict, the SEC reasonably concl uded that all of the payments to Mr. Malouf we re traceable to his misconduct and needed to be disgorged. See SEC. v. Maxxon, Inc. , 465 F.3d 1174, 1179 (10th Cir. 2006) (recogn izing that the amoun t to be disgorged n eed only be a “‘reasonable approximation’ o f illegal profits”). We thus rej ect Mr. Malouf’s challenge to the disgorgement order. Affirmed.