Industry News

SIFMA To FINRA: Change Punishment for Unpaid Promissory Notes

January 30, 2012 | Steve Parker

In a letter sent to the Financial Industry Regulator Authority (FINRA) last November, the Securities Industry and Financial Market Association (SIFMA) wants FINRA to give harsher punishments to brokers who have failed to pay back promissory notes to firms. It specifically sought to prevent brokers from being able to plead poverty to escape arbitration payment orders. The purpose of the notes is to provide cash for recruiting and retention incentives. They are typically designed as forgivable loans as long as the broker stays at the firm for a specified amount of time. If the brokers choose to leave early, then they are required to pay back the note.

As a result of not paying the promissory note back, firms have gotten more aggressive in filing arbitration claims for repayment, and in most cases the firm wins. In 2011, there were 778 promissory note cases filed which is a decrease from 2010 during which 1,152 cases were filed. If a broker does not pay the promissory award, FINRA files an action against him/her that could lead to suspension. Once a monetary award has been issued in a FINRA arbitration proceeding, the broker has 30 days to pay the award. If the broker can show an inability to pay back the note; however, he/she will not be suspended and can continue to work for another firm.
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FINRA Amends Proposed Social Media Rule

January 26, 2012 | Steve Parker

In a previous blog, we discussed the Financial Industry Regulatory Authority’s (FINRA’s) proposed Rule 2210 regarding social media. FINRA responded to comments by amending the proposed rule, and filing it with the SEC for approval. The amended rule was designed to respond to concerns about whether certain types of communications should be considered correspondence or public appearances.

In the rule as originally proposed, interactive social media communications would be classified as public appearances such as television interviews, and would have to be filed with regulators. As a result of comments to the proposal, FINRA amended the rule to exclude messages on online interactive forums from a post-use filing requirement.

FINRA explains that the reasoning behind this change is due to the belief that participation in online forums occur in real-time, that it is not practical to require pre-use approval of such postings by a principal, and that these types of communications should be classified as retail communications. According to FINRA, “retail communication would include any written (including electronic) communication that is distributed or made available to more than 25 retail investors within any 30 calendar-day period. ‘Retail investor would include any person other than an institutional investor, regardless of whether the person has an account with the member.'” This means that the retail communication category would instead be supervised by broker-dealers in the same manner as correspondence.
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More Wirehouse Brokers Expected to Leave Firms in 2012

January 25, 2012 | Steve Parker

It is expected that more brokers will leave their wirehouse firms in the coming year. Numerous independent firms, Schwab Advisor Services, TD Ameritrade Institutional, Pershing Advisor Solutions LLC, Fidelity Institutional Wealth Services and Diamond Consultants LLC, saw an increase in “breakaway brokers” joining them in 2011. As a result of these breakaway brokers, Cerulli Associates Inc. has predicted in a recent report that the wirehouses’ market share of assets will drop from an estimated 43% last year to 35% in 2013.

The report also states that the big firms no longer seem to care as much about the market share they possess but rather seem intent on retaining their top advisers.
This trend in increasing breakaways seems to be a result of brokers who have been waiting for production requirements in earlier recruitment and retention deals to be fulfilled this year. Brokers may also be growing frustrated with increasing compliance demands, as well as with the bureaucracy and managements of their firms. The president of Diamond Consultants LLC, Mindy Diamond, agrees that there will be more breakaways in 2012 and states, “and at the same time, firms in the independent space have come up with a lot of solutions for advisers.”
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BCG Report Claims FINRA Cost Will Exceed SEC Cost as RIA SRO

January 17, 2012 | Steve Parker

Boston Consulting Group (BCG) released a report last month comparing the cost of the various possible options of different agencies examining investment advisers. This report was conducted as a follow-up to a study released by the Securities and Exchange Commission (SEC) in January 2011, which created these scenarios based on Section 914 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The three possible options would be:

Authorizing the SEC to conduct the examinations and fund them by collecting user fees;
Authorize a new self-regulatory organization (SRO) to examine the advisers; or
Authorize the Financial Industry Regulatory Authority (FINRA) to examine the advisers

The economic analysis of the options was based on public research along with more than 40 in-depth interviews with various investment advisory firms. The SEC and FINRA were not interviewed or consulted in this analysis. The report concluded that the creation of enhanced SEC capabilities would cost $240-$270 million, while setting FINRA up as the investment adviser SRO would cost $550-$610 million, and creating a new SRO would cost $610-$670 million. These estimates were developed by projecting setup costs, ongoing mandate costs, and the cost associated with SEC oversight of an SRO.
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SEC Issues Investment Adviser Risk Alert on Social Media

January 16, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) recently issued a National Examination Risk Alert to investment advisers discussing the use of social media. Social media is becoming more widely used as a means to communicate with investors, and advisers need to ensure they are meeting their compliance requirements. The purpose of the alert is to inform advisers of ways they can improve and maintain sufficient compliance practices in using social media websites.

The SEC listed a number of issues for firms to consider as they evaluate the effectiveness of their compliance programs. Among all of the guidelines, some areas firms are encouraged to consider include:

Whether they want to create usage guidelines to address which social media networks are appropriate for use and restrictions which may be appropriate for each network;
Whether to create content standards to prohibit specific content or impose other restrictions in relation to their social media networks;
How their compliance or supervisory personnel can adequately monitor the sites, and how frequently they should be monitored;
Whether content must be pre-approved before posting to a site;
Whether there are adequate resources dedicated to monitor the activity adequately on the social media sites;
Developing criteria for allowing participation by third parties ;
Implementing training related to social media-related compliance practices;
Whether certification should be required to ensure that those individuals using the social media sites understand and are complying with the firm’s internal policies;
Whether to adopt policies distinguishing between personal and professional sites, possibly specifying the types of communication about the firm which are acceptable on a site not maintained by the firm; and
How to maintain information security.

New “Invest Georgia Exemption” Helps Small Businesses Raise Capital

January 10, 2012 | Steve Parker

The Georgia Commissioner of Securities recently adopted the “Invest Georgia Exemption,” which will make it easier and less expensive for almost any small business located in Georgia to raise capital from fellow Georgians. Unlike most other securities registration exemptions, the Invest Georgia Exemption allows businesses to engage in public solicitations of investors, provided certain conditions are met.

Any business wanting to raise capital using this new exemption must be a corporation or limited liability company (LLC) organized in Georgia and registered with the Secretary of State. In addition,

The offering of securities must meet the federal exemption for intrastate offerings requirements, Rule 147, meaning all investors must be Georgia residents;
The total amount raised cannot exceed $1,000,000, not including investments from control persons of the business;
Unaccredited investors (as defined by the SEC) may not invest more than $10,000 each. However, there is no investment limitation for accredited investors;
All investments received must be deposited in an institution authorized to do business in the state of Georgia;
The issuer must file a form of notice with the Commissioner briefly explaining the offering. The notice may be filed after sales have been made, unless there is any general solicitation, in which case the notice must be filed prior to the solicitation; and
The issuer must inform the purchaser that the securities have not been registered and that there are resale restrictions.

Social Media Scam Artist Shut Down by SEC

January 9, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) recently filed a cease-and-desist order against an Illinois man, Anthony Fields, for scamming investors with a fictitious securities offering. Fields attempted to sell more than $500 billion in securities using various social media websites, including LinkedIn.

Fields claimed to be a representative of a “leading institutional broker-dealer” through his firms: Anthony Fields & Associates and Platinum Securities Brokers. He was not registered as a broker/dealer with the SEC nor was he licensed as an associate with a registered broker/dealer.

The SEC has claimed that Fields violated numerous securities regulations. Allegedly, he promoted fictitious bank guarantees by setting up an unfunded investment adviser and an unfunded broker-dealer. He registered both of these with the SEC; however, he did so by filing false applications in March 2010. He also failed to maintain adequate books and records or carry out proper compliance procedures. Finally, he overstated his assets under management by claiming he had $400 million when, in actuality, he had none.
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Financial Advisors Should Note More Restrictive Accredited Investor Definition

January 6, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) has adopted a new rule that redefines the standard for “accredited” investors. Required by the Dodd-Frank legislation enacted in 2010, the accredited investor standard is intended to protect less sophisticated investors in less regulated investments. The rule change, which eliminates an investor’s principal residence from consideration in determining accredited status, may dramatically affect whether some potential investors remain eligible for Regulation D offerings.

Most of the accredited investor qualification criteria remain the same, but the net worth criteria has changed. In order to qualify as an accredited investor, the qualifying net worth amount remains $1,000,000; however, the value of the investor’s principal residence must now be excluded from the calculation of the investor’s assets. In addition, subject to some exceptions, the amount of the mortgage debt on the principal residence is also excluded from the investor’s liability calculation. The overall purpose of the changes is to insure that accredited investor status is determined without regard to the value of any equity in the principal residence.
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FINRA And SEC To Firms: Improve Branch Office Supervision

January 6, 2012 | Steve Parker

The Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) recently jointly issued a Risk Alert and a Regulatory Notice on broker-dealer branch office inspections designed to help securities industry firms better supervise their branch offices, as well as to underscore the importance of that supervision.

“An effective risk based branch office inspection program is an important component of a broker-dealer’s supervisory system and, when constructed and implemented reasonably, it can better protect investors and the firm’s own interest,” stated Stephen Luparello, Vice Chairman of FINRA.

The risk alert specifically makes the following recommendations to firms, including:

Increasing the frequency of branch inspections, especially unannounced visits;
Customizing examinations to branch activity based on risk assessments;
Involving more senior personnel in exams;
Insuring that examiners have no conflicts of interest; and
Increasing supervision of certain offices based upon surveillance data and requiring corrective actions to address deficiencies noted.

Mid-Sized Advisers Should Have Already Commenced Transition

December 11, 2011 | Steve Parker

As we first reported on this blog site in September, the North American Securities Administrators Association (NASAA) held a forum, through its Investment Adviser subcommittee, to discuss transition issues for Mid-Sized Advisers under the Dodd-Frank Wall Street Reform Act. As we approach the annual December moratorium on new registrations and renewals, it seems appropriate to review and comment on some of NASAA’s suggestions.

The first step that any Mid-Sized Adviser should take should be to contact his or her state regulatory agency to determine whether it has adopted special rules, forms, or timetables for use. However, the NASAA committee generally provided the following procedure that its state members intended to follow:
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