Tag: FINRA

FINRA Is Thinking About Changing Its Communications Rules

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Financial Industry Regulatory Authority (FINRA) posted a regulatory notice  on proposed new rules governing member communications with the public: Regulatory Notice 09-55.pdf-icon

The new rules would replace current NASD Rules 2210 and 2211, the Interpretive Materials that follow NASD Rule 2210, and portions of Incorporated NYSE Rule 472.

The proposal would replace the existing six categories of communication with three new communications categories and revises certain approval, filing and content requirements. These changes make the rules easier, but seem to make it harder for FINRA members to participate in social media. I am surprised that FINRA did not try to squarely address the use of the popular internet and web 2.0 tools.

Communications Categories

Currently NASD Rule 2210 divides communication into six separate categories:

  1. advertisement
  2. sales literature
  3. correspondence
  4. institutional sales material
  5. independently prepared reprint
  6. public appearance.

The principal approval, filing and content standards apply differently to each category.

FINRA is proposing to consolidate those six categories into the following three:

  1. institutional communication, which would include communications that fall under the current definition of “institutional sales material,”
  2. retail communication, which would include any written communication that is distributed or made available to more than 25 retail investors
  3. correspondence, which would include any written (including electronic) communication that is distributed or made available to 25 or fewer retail investors

Communications that currently qualify as advertisements and sales literature generally would fall in the proposed retail communication.

Approval Requirements

The proposed rule changes would require an appropriately qualified registered principal of the firm to approve each retail communication before the earlier of its use or filing with FINRA.

Filing Requirements for New Firms.

FINRA rules currently require a firm that has previously not filed advertisements with FINRA to file its initial advertisement with FINRA at least 10 business days prior to use, and continue the practice for one year after the initial filing. The proposed rule would require filing of all retail communications  (the new category), rather than just advertisements. The proposal would have the one-year filing requirement beginning on the effective date a firm becomes registered with FINRA, rather than on the date an advertisement is first filed with FINRA.

Pre-Use Filing Requirement.

The proposal would expand the current pre-use filing requirements so that communications concerning any registered investment company that includes self-created rankings, and retail communications that include bond mutual fund volatility ratings would have to be filed with FINRA at least 10 business days prior to first use and withheld from use until changes specified by FINRA staff have been made. The proposal would expand the filing requirements for materials relating to closed-end investment companies to include retail communications distributed after the fund’s initial public offering.

Press Releases

The proposal eliminates a current filing exclusion for press releases that are made available only to members of the media. Most firms post press releases on their Web sites, making them available to the general public.

Content Standards

The Proposal reorganizes, but largely incorporates, the current content standards applicable to communications with the public. Content standards that currently apply to advertisements and sales literature generally would apply to retail communications.

Public Appearances

Public appearances would have to meet the general “fair and balanced” standards and the standards applicable to recommendations
if the public appearance included a recommendation of a security. If you recommend securities in public appearances generally you would be subject to the same disclosure requirements under proposed FINRA Rule 2210(f) as research analysts that recommend securities in public appearances pursuant to NASD Rule 2711(h). The proposal requires firms to establish appropriate written policies and procedures to supervise public appearances, andmakes clear that scripts, slides, handouts or other written and electronicmaterials used in connection with public appearances are considered communications with the public for purposes of proposed FINRA Rule 2210.

The comment period for the proposed rules ends November 20.

References:

Richard Ketchum Keynote from the Compliance Week Conference

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My notes, live, from the Richard Ketchum keynote at the Compliance Week Conference. Mr. Ketchum is the newly named chairman and CEO of FINRA.

It is a terribly important time as financial markets are in the process of transformation. It was two years ago when the first signs of the credit crisis appeared. The silver lining is that the crisis offers an opportunity to reform the financial markets.

Mr. Ketchum moved onto the idea of a systemic risk regulator. He thinks some regulator will be in place. As to whether it is a single entity or a council of regulators, Mr. Ketchum stated that some of the risk and problems came from loosely regulated entities and in transactions that were not transparent. He thinks value of a systemic regulator is good but thinks we need to focus on the function of this new regulator. He wants to avoid duplication and also to avoid things falling through the cracks.

He looked to the Federal Reserve as regulator that had a broad mandate to see big problems. They were less able to focus on the detail of regular reporting and maintenance. He thinks the new systemic regulator should not replace existing regulators. He also did not seem to like the idea of breaking up the SEC. They are very involved in many aspects of the markets and have a breadth of experience and controls in place.

He moved on to the issue of short selling in the marketplace.  There are several proposals being reviewed as a result of the fierce short-selling that happened in September and October. He thinks the selling that happened during that time was most long sellers, not short sellers. Short selling may have caused the disappearance of any buyers. He seems to be leaning toward a circuit-breaker when a company’s stock is under pressure. He did not seem to give a straight answer.

He moved onto the subject of derivatives. The market provides a great deal of leverage, has a great deal of inefficiency and is very transparent. The derivatives markets also react quicker than the equity markets. He thinks the key is transparency so we can see the movement and the risk. The opacity of the derivatives markets contributed to the plunge in the investment markets.

He moved onto the lessons we could learn from volatile markets. He thinks we need to revisit diligence and reduce our reliance on ratings to get a better understanding of the security (in particular asset-backed securities). You need to keep the creators of the securities away from the ratings of the securities.

He thinks compliance needs to be infused into more functions. He thinks compliance officers can look at the risks and not rely on assumptions. You need to make sure that decisions that benefit the company do not come at the expense of the company’s clients or customers.

Nobody feels good about the implosion of the financial markets. FINRA is re-evaluating their internal processes to see what they could do better. He pointed out the new FINRA Whistleblower hotline. FINRA is looking at ways to make sure things do not fall through the cracks.

He thinks the biggest gap is the different regimes between broker-dealers and investment advisers. He thinks investment advisers need to be more regulated and more closely examined. he does recognize that there are different risks and different concerns. You can’t throw the same rulebook at them, but he thinks you need to keep a closer eye on them.

The keystone moving forward is winning back the trust of investors. Without trust, the markets are paralyzed. Fraud impoverishes the few; distrust impoverishes many.

In the chat session, Matt put the Madoff scenario in front of Mr. Ketchum. He thinks that is the great example of having different regimes for broker-dealers and investment advisers. FINRA could not look over the wall at the advisory side of the business.

There is no definition of a systemic risk. Mr. Ketchum thinks it is one that can impact the financial marketplace as a whole and not just an individual institution.

(These notes are taken live, so I apologize if I left out anything or misquoted someone. Please forgive any typos or grammatical errors.)

FINRA Announces Creation of “Office of the Whistleblower”

finra_logoFINRA announced that they have created a new Office of the Whisteblower to expedite review of high-risk tips.  FINRA Senior Vice President Cameron Funkhouser will oversee this new office. What’s not clear to me is how this new initiative differs from the existing File a Regulatory Tip procedure.  According to the press release, this new initiative “will not replace the exist process for handling the thousands of tips and complaints that come through the existing hotlines.”

FINRA states that they receive between 4,500 and 6,000 formal investor complaints annually, which are vetted by FINRA’s Front End Cause Unit. (I find it interesting that the Front End Cause Unit is missing from the FINRA website.) I am not sure if these numbers include regulatory tips.

I am disappointed that the FINRA whistleblower lines vary widely in the information collected and the method of filing:

So what if I am an investor and I think my broker is violating a regulation and committing serious fraud. Do I fill out all three? Is there going be a turf war inside FINRA over who is handling which types of complaints?

It is a great move by FINRA to focus on the whistleblowing and complaint process. Unfortunately, it looks like they made it more complicated instead of easier.

See also:

FINRA’s Guide to the Internet

FINRA has published a Guide to the Internet for Registered Representatives. It paints a difficult picture for registered representatives wanting to use Web 2.0 tools.

FINRA breaks internet activity into five main group for purposes or regulatory requirements:

  • Publicly available Web sites (including banner advertisements, blogs and bulletin boards) are considered advertisements.
  • An email or instant message sent to 25 or more prospective retail customers is considered sales literature.
  • An email or instant message is considered correspondence if it is sent to i) a single customer (prospective or existing) ii) to an unlimited number of existing retail customers and/or less than 25 prospective retail customers (firm-wide) within a 30 day period.
  • Password-protected Web sites are considered sales literature.
  • Chat room discussions are considered public appearances.

I am not sure all of this is a particularly useful grouping since many of the characteristics are shared across the groups. For instance how does a chat room differ from comments on a blog. How does an RSS feed differ from an email to 25 or more prospective customers? But FINRA does acknowledge that “a member firm’s obligations to supervise electronic communications are based on the content and audience of the message, rather than the electronic form of the communication.”  [FINRA Regulatory Notice 07-59 (.pdf) on the Supervision of Electronic Communication. ]

Given that many of the Web 2.0 tools are communications with the public, you should look at FINRA Rule 2210 Communications with the Public. The rules are major impediment to the use of Web 2.0

Know Your Customer Podcasts

You can find a seried of FINRA Compliance Podcasts on their Compliance Podcast webpage and from iTunes.  Last summer they have a few on Customer Identification Programs and Anti-Money Laundering programs: