Articles Tagged with FINRA

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Written by: Jay Gould and Peter Chess

The Financial Industry Regulatory Authority (“FINRA”) released new guidance last month regarding new FINRA Rule 2111 (the “Suitability Rule”), which requires a broker-dealer to have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through reasonable diligence by the broker-dealer.  The Suitability Rule codifies and clarifies the three main suitability obligations that previously had been discussed largely in case law:

  • Reasonable-basis suitability.  A broker must perform reasonable diligence to understand the nature of the recommended security or investment strategy involving a security or securities, as well as the potential risks and rewards, and determine whether the recommendation is suitable for at least some investors based on that understanding.
  • Customer-specific suitability.  A broker must have a reasonable basis to believe that a recommendation of a security or investment strategy involving a security or securities is suitable for the particular customer based on the customer’s investment profile.
  • Quantitative suitability.  A broker who has control over a customer account must have a reasonable basis to believe that a series of recommended securities transactions are not excessive.

In general, the Suitability Rule retains the core features of the previous National Association of Securities Dealers (“NASD”) suitability rule, NASD Rule 2310.  However, the new Suitability Rule imposes broader obligations on firms regarding recommendations of investment strategies.  Existing guidance and interpretations regarding suitability obligations continue to apply to the extent that they are not inconsistent with the new rule.  The guidance provided by FINRA on the Suitability Rule includes the following:

  • The suitability requirement that a broker make only those recommendations that are consistent with the customer’s best interests prohibits a broker from placing their interests ahead of the customer’s interests.
  • The customer’s investment profile is critical to the assessment of the suitability of a particular recommendation.
  • The recently passed Jumpstart Our Business Startups Act (the “JOBS Act”) does not affect the suitability obligations regarding private placements, including those private placements made in reliance on the JOBS Act’s elimination of the prohibition on general solicitation.
  • The term “investment strategy” is to be interpreted broadly and would apply to cases where the strategy results in a securities transaction or even mentions a specific security.
  • The extent to which a firm needs to document its suitability analysis depends on an assessment of the customer’s investment profile and the complexity of the recommended security or investment strategy.
  • Although the reasonableness of a firm’s effort to perform “reasonable diligence” will depend on the facts and circumstances, asking a customer for the information ordinarily will suffice.

The institutional-customer exemption under NASD Rule 2130 and its definition of “institutional customer” has been replaced with the more common definition of “institutional account.”  In addition, the new institutional-customer exemption focuses on whether (1) a broker has a reasonable basis to believe the institutional customer is capable of evaluating risks independently and (2) the institutional customer affirmatively indicates that it is exercising independent judgment (a new requirement).

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Written by Jay Gould, Ildiko Duckor and Peter Chess

On January 4, 2012, the Securities and Exchange Commission (SEC) released a National Examination Risk Alert addressing investment adviser use of social media.  Investment advisers should have policies regarding the use of social media, and the SEC outlined specific factors that need to be addressed by these policies.  The SEC’s guidance could be particularly important given the “crowdfunding” legislation Congress is currently considering.

The January 4, 2012 National Examination Risk Alert (January Alert) states that investment advisers’ use of social media must comply with various provisions of the federal securities laws, including the antifraud provisions, the compliance provisions, and the recordkeeping provisions.  The January Alert stresses that particular attention with regard to the use of social media must be paid to third party content (if permitted) and the recordkeeping responsibilities. 

The January Alert provides staff observations of factors that an investment adviser may want to consider when evaluating a compliance policy for the use of social media.  These include, but are not limited to:

  • Usage Guidelines.  Investment advisers may provide guidance in their policies on the appropriate and inappropriate use of social media;
  • Monitoring.  Investment advisers may consider how to effectively monitor their social media sites or any use of third-party sites;
  • Content Standards.  May include clear guidelines and the prohibition of specific content or other content restrictions; and
  • Information Security.  Investment advisers may consider any information security risks posed by access to social media sites.  These could include dangers from hacking and other breaches of information security. 

Additionally, investment advisers that allow for third-party posting on their social media sites should consider having policies and procedures in place to address this.  Reasonable safeguards should be in place to avoid any violation of the federal securities laws.  Potential violations could result from the appearance of testimonials on a firm’s social media.  For example, the SEC staff believes that the use of social plug-ins such as the “like” button could be considered a testimonial under the Investment Advisers Act of 1940.

Finally, the January Alert notes that investment advisers should consider reviewing their document retention policies so that the retaining of any required records generated by social media use complies with the federal securities laws.  This review could include addressing factors such as: determining what types of social media use create a required record; maintaining applicable communications in electronic or paper format; creating training programs to educate advisory personnel about recordkeeping; and, using third parties in order to keep proper records.

The Financial Industry Regulatory Authority (FINRA) has echoed the January Alert in recent releases, such as Regulatory Notice 11-39 from August 2011.  This Notice provided guidance on social media websites for broker-dealers, and addressed recordkeeping and third-party sites, among other topics.  This Notice supplemented an earlier FINRA notice from January 2010 that provided guidance with regard to blogs and social networking websites. 

The SEC has also recently increased its focus on internet-related enforcement actions.  On January 4, 2012, the SEC charged an Illinois-based adviser with perpetrating a social media scam.  The alleged scam involved offering fictitious securities that were promoted by using LinkedIn.  This follows multiple enforcement actions from February 2011 for internet-related schemes, including boiler rooms and spam-email touted pump and dumps.

Crowdfunding

Crowdfunding is a method of capital formation where groups of people pool money, typically by use of very small individual contributions, in order to support the organizers that seek to accomplish a specific goal.

Congress has also been active in the realm of internet-related securities issues with its involvement in crowdfunding.  The House of Representative passed the Entrepreneur Access to Capital Act (H.R. 2930) on November 3, 2011.  H.R. 2930 provides for registration exemptions for certain crowdfunded securities if the aggregate amount raised through the issuance is $1 million or less each year and each individual who invests in the securities does not invest, in any year, more than the lesser of $10,000 or 10 percent of the investor’s annual income.  Businesses could raise up to $2 million each year under the exemption if investors were provided with certain financial information.

The Senate currently is considering its own version of a crowdfunding bill, the Democratizing Access to Capital Act of 2011 (S. 1791).  S. 1791 provides for registration exemptions for certain crowdfunded securities if the aggregate amount raised through the issuance is $1 million or less each year and each individual who invests in the security does not invest more than $1,000.  The Senate Committee on Banking, Housing and Urban Affairs held hearings on December 1 and 14, 2011, regarding this legislation, but a vote on the bill has not yet occurred.

Reaction to the crowdfunding legislation has been mixed.  Supporters, such as Tim Johnson, the Chairman of the Senate Committee on Banking, Housing and Urban Affairs, feel that the legislation will provide easier access to capital for smaller businesses and startups, which will grow business and create new jobs.  Detractors, such as Professor John C. Coffee, Jr., in his testimony before the Committee, argue that S. 1791 could well be titled “The Boiler Room Legalization Act of 2011.”

The crowdfunding legislation and its developments promise to bring more scrutiny to the interplay of the federal securities laws and the internet.  Investment advisers, and other financial firms, should examine and ensure related policies and procedures are up to par.

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Written by Peter J. Chess

On November 30, 2011, FINRA and the SEC’s Office of Compliance Inspections and Examinations (OCIE) released a National Exam Risk Alert on effective procedures and policies for broker-dealer branch inspections. This follows other recent guidance for broker-dealers regarding the Market Access Rule and reasonable investigations in Regulation D Offerings, in addition to recent FINRA sanctions against broker-dealers related to Regulation D Offerings.

Under Sections 15(b)(4)(E) and 15(b)(6)(A) of the Exchange Act, the SEC can impose sanctions on any firm or any person that fails to reasonably supervise someone subject to supervision that violates the federal securities laws. A broker-dealer can defend such a charge with a showing of effective procedures and policies designed to prevent and detect potential violations.

The National Exam Risk Alert jointly released on November 30 by FINRA and the OCIE (“November 30 Alert”) concerns broker-dealer branch inspections which are required by the Exchange Act and FINRA rules. Examination staff have observed that firms that execute these inspections well typically:

  • tailor the focus of branch exams to the business conducted in that branch and assess the risks specific to that business;
  • schedule the frequency and intensity of exams based on underlying risk;
  • engage in a significant percentage of unannounced exams selected based on both risk analysis and random selection;
  • deploy sufficiently senior branch office examiners to conduct the examinations; and
  • design procedures to avoid conflicts of interest with examiners.

The November 30 Alert also lists typical findings about firms with deficiencies in their inspection process, including the utilization of generic examination procedures for all branch offices; the use of novice or unseasoned branch office examiners; the performance of “check the box” inspections; and, the lack of adequate procedures and policies.

The November 30 Alert is the second such Alert released this quarter by the OCIE. On September 29, 2011, OCIE released a National Exam Risk Alert  (September 29 Alert) regarding the master/sub-account structure and potential risks of noncompliance for broker-dealers with the recently adopted Rule 15c3-5 (the Market Access Rule).

The Market Access Rule requires broker-dealers to have a system of risk management control and supervisory procedures reasonably designed to manage the financial, regulatory and other risks of the business activity associated with providing a customer or other person with market access. Deficiencies in risk management control and supervisory procedures raise significant regulatory concerns with respect to money laundering, insider trading, market manipulation, account intrusions, information security, unregistered broker-dealer activity, and excessive leverage.

Recent FINRA Enforcement Actions Against Broker-Dealers

On September 29, 2011, FINRA also announced it had sanctioned another eight firms and ten individuals and ordered restitution totaling more than $3.2 million due to violations related to private placements. FINRA previously announced similar sanctions against broker-dealers in April 2011, and the most recent announcement brings the total to ten firms and seventeen individuals sanctioned by FINRA since April for involvement in problematic private placements.

The sanctions stem from a variety of issues uncovered by FINRA related to firms selling private placement offerings, including the lack of a reasonable basis for recommending the offering; failure to conduct a reasonable investigation of the offering; failure to have adequate supervisory systems in place; failure to conduct adequate due diligence of offerings; lack of reasonable grounds regarding the suitability of the offering for customers; and, lack of reasonable grounds to allow registered representatives of firms to continue selling the offerings, despite numerous “red flags.”

These sanctions follow FINRA’s release of a Regulatory Notice in April 2010 (“April 2010 Notice”) regarding the obligation of broker-dealers to conduct reasonable investigations in Regulation D, or private placement, offerings. The April 2010 Notice provided guidance on many of the issues at the heart of the recent sanctions by FINRA related to private placements. The April 2010 Notice noted that broker-dealers had many requirements triggered by private placement offerings, including: a duty to conduct a reasonable investigation concerning the security and the issuer’s representations about it; a duty to possess reasonable grounds to recommend transactions that are suitable for the customer; and, other specific responsibilities that could be triggered based on specific factors with each transaction.

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Written by Jay Gould

On October 18, 2011, the SEC released a notice of FINRA’s filing of Proposed Rule 5123 (the “Proposed Rule”) which would require FINRA members and associated persons to: 1) provide to investors disclosure documents in connection with private placements prior to sale and 2) file with FINRA such disclosure documents within 15 days after the date of first sale and any subsequent amendments.  These proposed changes would significantly affect fund managers who offer or sell their funds that are exempt from registration pursuant to Section 3(c)(1) of the Investment Company Act through third party marketers, nearly all of which are required to be registered as broker-dealers.

Pre-sale requirement to provide disclosure documents to investors

The Proposed Rule would require FINRA members and associated persons that offer or sell private placements or participate in the preparation of private placement memoranda (“PPM”), term sheets or other disclosure documents in connection with such private placements, to provide such disclosure documents to investors prior to sale.  The disclosure documents must describe the anticipated use of offering proceeds, the amount and type of offering expenses, and the amount and type of offering compensation.  Much of this information is currently captured in the Form D filing that most fund managers file with the SEC, but under the Proposed Rule, would go directly to investors in connection with the sale of fund interests.

As a practical matter, this likely means increased scrutiny of hedge fund and other private fund offerings by FINRA, as well as the likelihood that third party marketers that sell on behalf of hedge funds may request greater or more enhanced indemnification from fund managers in the placement agency agreement between the third party marketer and the fund manager.  Accordingly, fund managers who use third party marketers to market their funds must keep their fund documents updated, taking into account all changes to fund strategies, material performance issues (to the extent applicable), regulatory changes and management personnel changes, to name a few.      

Post-sale requirement to notice file with FINRA

The Proposed Rule would also require each FINRA member and associated person to notice file with FINRA by filing the PPM, term sheet or other disclosure documents no later than 15 days after the date of first sale.  In addition, any amendments to such disclosure documents or disclosures required by the Proposed Rule would have to be filed no later than 15 days after such documents are provided to any investor or prospective investor.  To the extent these documents are provided to investors, they would also be subject to the strict liability standard of Rule 206(4)-8 under the Investment Advisers Act to which all fund managers are already subject.  Accordingly, fund managers must be careful to keep all of their documents current under the materiality standards of state and Federal securities laws.

Offerings Exempted from the Proposed Rule

The Proposed Rule would exempt several types of private placements including offerings sold only to any one or more of the following purchasers: 

  •  institutional accounts, as defined in NASD Rule 3110(c)(4);
  • qualified purchasers, as defined in Section 2(a)(51)(A) of the Investment Company Act;  (Accordingly, 3(c)(7) funds would be exempt from the Proposed Rule.)
  • qualified institutional buyers, as defined in Securities Act Rule 144A;
  • investment companies, as defined in Section 3 of the Investment Company Act;
  • an entity composed exclusively of qualified institutional buyers, as defined in Securities Act Rule 144A;
  • banks, as defined in Section 3(a)(2) of the Securities Act; and
  • employees and affiliates of the issuer.

In addition, the Rule would exempt the following types of offerings:

  • offerings of exempted securities, as defined by Section 3(a)(12) of the Exchange Act;
  • offerings made pursuant to Securities Act Rule 144A or SEC Regulation S;
  • offerings of exempt securities with short term maturities under Section 3(a)(3) of the Securities Act;
  • offerings of subordinated loans under Exchange Act Rule 15c3-1, Appendix D;
  • offerings of “variable contracts” as defined in Rule 2320(b)(2);
  • offerings of modified guaranteed annuity contracts and modified guaranteed life insurance policies, as referenced in Rule 5110(b)(8)(E);
  • offerings of non-convertible debt or preferred securities by issuers that meet the eligibility criteria for incorporation by reference in Forms S-3 and F-3;
  • offerings of securities issued in conversions, stock splits and restructuring transactions that are executed by an already existing investor without the need for additional consideration or investments on the part of the investor;
  • offerings of securities of a commodity pool operated by a commodity pool operator as defined under Section 1a(11) of the Commodity Exchange Act; and
  • offerings filed with FINRA under Rules 2310, 5110, 5121 and 5122.

Confidential treatment

Documents and information filed with FINRA pursuant to the Proposed Rule would be given confidential treatment.  FINRA would use such documents and information solely for the purpose of determining compliance with FINRA rules or other applicable regulatory purposes.  In addition, FINRA would afford confidential treatment to any comment or similar letters by FINRA and thus could not be discoverable by a litigant through a legal action.

A full text of the SEC Notice and Proposed Rule is available here.

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Written by Jay Gould, Ildiko Duckor and Michael Wu

An investment adviser must ensure that its IARD account is adequately funded to cover payment of all applicable registration renewal fees and notice filing fees.  Beginning November 14, 2011, Preliminary Renewal Statements (“PRS”), which list an adviser’s renewal fee amount, are available for printing through the IARD system.  By December 9, 2011 (Friday), an investment adviser should have submitted to FINRA through the IARD system, its preliminary renewal fee.  Any additional fees that were not included in the PRS will show in the Final Renewal Statements which are available for printing beginning January 3, 2012.  All final renewal fees should be submitted to FINRA through the IARD system by February 3, 2012.   Please note that all renewal fees must be submitted for deposit to an adviser’s IARD “Renewal” Account.

For more information about the 2012 IARD Account Renewal Program including information on IARD’s Renewal Payment Options and Addresses, please follow this link: http://www.iard.com/renewals.asp

Please contact us if you have questions. 

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Written by Michael Wu

On December 15, 2010, FINRA Rule 3270 became effective.  FINRA Rule 3270 requires each registered representative of a broker-dealer to provide it with prior written notice of an outside business activity.  FINRA Rule 3270, which replaced NASD Rule 3030 and NYSE Rule 346, specifically identifies the types of activities that would be subject to the rule and requires registered representatives to disclose to the broker-dealer whenever he or she intends to serve as an employee, independent contractor, sole proprietor, officer, director or partner of another entity, or will be compensated, or reasonably expects to be compensated, from another entity in connection with any business activity outside the scope of such individual’s relationship with the broker-dealer.  Passive investments and activities subject to NASD Rule 3040 (i.e., the private securities transaction rule) are exempt from the requirements under FINRA Rule 3270.

Upon receipt of notice of an outside business activity from a registered representative, a broker-dealer must determine whether the proposed activity would (i) interfere with such registered representative’s responsibilities to the broker-dealer and/or its clients or (ii) be viewed by clients or the public as part of the broker-dealer’s business.  Based on such analysis, the broker-dealer may impose specific limits or conditions on such activity or prohibit such activity.  The broker-dealer must document the review process of each written notice received and keep appropriate records.  If a registered representative was actively engaged in an outside business activity prior to December 15, 2010, the broker-dealer must review such activity in accordance with FINRA Rule 3270 by June 15, 2011.