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Posts Tagged ‘FINRA’

Beware of FINRA’s Increased Focus on Non-Registered, Associated Persons

Posted on: August 9th, 2019

By: Elizabeth Lowery

On July 29, 2019, FINRA announced that Citigroup Global Markets, Inc. was fined $1.25 million for failing to conduct timely or adequate background checks on approximately 10,400 non-registered associated persons spanning a seven-year period from 2010 to 2017.  This large fine issued even though  Citigroup had completed screening and fingerprinting which was fully compliant with federal banking law for some of those employees.  Citigroup’s failure to screen all such employees as required by the more stringent federal securities laws allowed three individuals to associate with, or remain associated with Citigroup, even though they were subject to statutory disqualification from associating with a brokerage firm because of previous criminal convictions.  FINRA found that Citigroup had failed to maintain a reasonable supervisory system which had procedures to identify and screen non-registered associated persons.  In settling this matter, Citigroup consented to the entry of FINRA’s findings and to the corresponding $1.25 million fine, without admitting or denying FINRA’s charges.  FINRA’s Executive Vice President of its Department of Enforcement, Susan Schroeder, explained “FINRA member firms must live up to their responsibility as a gatekeeper protecting investors from bad actions.  It is important that firms appropriately screen all employees for past criminal or regulatory events that can disqualify individuals from associating with member firms, even in a non-registered capacity.”

This is yet one of several recent examples of FINRA’s focus on non-registered, associated persons.  Pursuant to FINRA Rule 8310, FINRA may impose sanctions, such as a censure, fine, suspension or bar, upon a person associated with a brokerage firm for violations not only of FINRA rules, but also for violations of certain federal securities laws and MSRB rules.  Such sanctions typically stem from FINRA enforcement actions.  FINRA enforcement actions often begin with a request for documents, information and/or sworn testimony, commonly called an “8210 Requests” because they are made pursuant to FINRA Rule 8210.  While registered associated persons, such as those holding a stockbroker’s license, are generally aware that they are subject to FINRA’s jurisdiction, scrutiny and sanctions; non-registered associated persons often lack such awareness.  It is important for brokerage firms and their employees to be mindful that FINRA’s jurisdiction, and its rules and enforcement actions, are not limited to registered associated persons.  This is especially since FINRA’s trend of increased focus on non-registered associated persons is expected to continue.

If you have any questions or would like assistance with a FINRA or SEC enforcement action, or with FINRA 8210 Requests, please contact Elizabeth Lowery at [email protected].

The SEC Seeks to Enhance the Quality and Transparency of Investors’ Relationships; Approves the Regulation Best Interest Rule

Posted on: June 17th, 2019

By: Joseph Suarez

On June 5, 2019, the U.S. Securities and Exchange Commission (“SEC”) approved its Best Interest Rule (the “Rule”) package requiring broker-dealers, and investment advisors, to act in their retail clients’ “best interests.” The SEC states the Rule, “will impose a materially heightened standard of conduct for broker-dealers when serving retail clients.” Broker-dealers must begin complying with the new rule, and broker-dealers and investment advisers must prepare, deliver to retail investors, and file a “relationship summary” by June 30, 2020.

The Rule is designed to enhance investor protections while preserving retail investor access and choice in: (1) the type of professional with whom they work, (2) the services they receive, and (3) how they pay for these services. In order to satisfy the new best interest standard of care, a broker-dealer who makes recommendations to a retail customer must fulfill four obligations: 1) a “disclosure obligation”; 2) a “duty of care” obligation; 3) a “conflicts of interest” obligation; and, 4) a “compliance obligation.” The duty of care obligation requires a broker-dealer to exercise reasonable “diligence, care and skill” when making investment recommendations. This obligation is similar to FINRA’s suitability rules. In order to satisfy the best interest obligation, a broker-dealer must understand and communicate the “risk, rewards and costs of any recommendation;” have a reasonable basis to believe that the recommendation is in the best interest of the customer; and refrain from making “excessive” recommendations, given the customer’s investment profile.

Regardless of whether a retail investor chooses a broker-dealer or an investment adviser, the retail investor will be entitled to a recommendation (if (s)he chooses a broker-dealer) or advice (if (s)he uses an investment adviser) that is in the retail investor’s best interest and that does not place the interests of the firm or the financial professional ahead of the retail investor’s interests. Nonetheless, the Rule’s perceived uncertainty is cause for division. The SEC claims the Rule is designed to enhance the quality and transparency of retail investors’ relationships with broker-dealers and advisors. Proponents say the Rule will elevate the standard for what is considered an investor’s best interest, specifically, that broker-dealers will need to make substantial changes to enhance investor protection. Opponents argue the Rule is too vague and retains a muddled standard that will not change any practices in the brokerage industry.

Given the current uncertainty, the question becomes: will the Rule cause more litigation? Given the near immediate scrutiny, the answer may be in the affirmative. The Plaintiff’s Bar will likely argue that the Rule now provides customers with a higher standard of care than the suitability standard in furtherance of asserting claims against broker-dealers. In any event, the Rule’s lack of clarity will surely stir debate over the next year before its implementation.

For more information, please contact Joseph Suarez at [email protected].

Protecting Seniors From Investment Exploitation – One Year Later

Posted on: June 3rd, 2019

By: Ryan Baggs

One year after the passage of the Senior Safe Act (the “Act”) the SEC, FINRA, and NASAA continue to emphasize the importance of “covered financial institutions” (“CFIs” or “CFI”) providing adequate training to all relevant employees for the protection of investors over the age of 65. If an employee undergoes proper training and reports a violation of the act in “good faith” and “with reasonable care” she/he will be immune from suit or issues related to the reporting. What’s even more of an incentive to CFIs, such as a large broker-dealer, is that if the broker-dealer properly trains and educates all of its representatives and a representative later reports a violation of the Act, the broker-dealer itself, not just the representative, will be immune from that suit. Each organization involved, as can be seen by the numerous articles and reminders regarding the Act’s one year anniversary, is eagerly dedicated to encouraging training and education related to the immunity benefits behind the Act.  As noted by FINRA President and CEO Robert Cook: “The Senior Safe Act seeks to empower financial professionals to detect and report cases of suspected abuse of senior investors and we believe it is important to broaden awareness and understanding of the Act throughout the securities industry.” (finra.org May 23, 2019 news release).

The goals of the SEC, FINRA, and NASAA are extremely important and beneficial to the industry in general; however, with all well-meaning intentions, there always exists the possibility of abuse. What is uncertain because of the brief history of the Act is exactly what “good faith” and “with reasonable care” mean or will mean in the future. Are there ways a CFI or representative will be able to manipulate the Act to avoid liability or litigation? Almost undoubtedly, but how is remained to be seen. But overall, despite the possibility of some abuse at some point, the purpose of the Act and dedication to protecting seniors from investment and elder abuse is an admirable step in the industry.

For more information, please contact Ryan Baggs at [email protected].

FINRA Seeks To Simplify Non-Party Discovery

Posted on: April 9th, 2019

By: Greg Fayard

In January 2019, the Financial Industry Regulatory Authority (FINRA) proposed changes to its rules to give non-parties more time to respond to discovery requests and witness orders from arbitration panels. Currently, non-parties only have 10 calendar days from service by U.S. mail to respond or object to document subpoenas or witness/document production orders. Often times, the person responsible for responding to the non-party subpoena or arbitration order receives the subpoena or order after the 10 days have elapsed. When that happens, the non-party has waived its opportunity to object to the subpoena or order, subjecting it to potential sanctions or disciplinary action. To avoid such prejudice to non-parties, FINRA is recommending changes to its rules to give non-parties 15 calendar days (instead of 10) upon receipt (not service) of the order or subpoena. Receipt will include overnight mail, overnight delivery service like FedEx, hand delivery, e-mail or facsimiled documents. Importantly, under the proposed rule changes, service of discovery requests on non-parties by U.S. mail would be excluded. Lastly, FINRA seeks to codify rule changes to reflect how it currently processes and informs arbitration panels regarding non-party objections to subpoenas and orders.

The purpose of FINRA’s proposed rule changes is to provide better due process to non-parties, eliminate the problem of delays with U.S. mail, and to codify FINRA’s current protocols for non-party discovery.

The FINRA rules impacted by the proposed changes are 12512, 12513, 13512 and 13513. The new rules have to be approved by the Securities and Exchange Commission. If approved, FINRA will announce an effective date of the rule changes in a future regulatory notice.

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

Latest FINRA Rules to Regulate Expungement Actions

Posted on: February 19th, 2019

By: Margot Parker

FINRA recently announced its approval of enhanced training and guidance for arbitrators hearing expungement requests, an issue under increasing scrutiny as over 90% of such actions are currently granted. The proposal is now under review by the SEC and represents a step toward making it more difficult for brokers to have customer complaints expunged from their public records. The proposed rules also include a ban on compensated non-attorney representatives (NARs) from representing clients in FINRA arbitrations, as part of another step to strengthen the arbitration process.

While a ban on NARs has been widely supported, critics of the expungement process believe more should be done to take the burden away from customers to fight expungement actions. FINRA states that it shares these concerns. To reduce the high volume of expungements in the past, it codified a rule stating: “expungement is an extraordinary remedy that should be recommended only under appropriate circumstances.” With these recent steps, we may continue to see changes in the regulation of FINRA expungement actions in the near future.

If you have any questions or would like more information, please contact Margot Parker at (310) 937-2066 or [email protected].