Finra Rule for BrokerDealers Cause Confusion

Brokerdealer.com blog update courtesy of JDSupra Business Advisor.Finra

The number of independent brokerdealers has continually decreased due to low interest rate. Many of these brokerdealers have joined up with already established financial firms and that’s where things get murky. Finra’s rule 1017 has caused a lot of confusion, this hopefully will help clear it up.

M&A transactions involving regulated broker-dealers often require Financial Industry Regulatory Authority (FINRA) approval under NASD Rule 1017. Such approval is required for any direct or indirect acquisition by a broker-dealer of another broker-dealer,1 change in control of a broker-dealer or “material change in business operations” of a broker-dealer.

Rule 1017 has gained prominence in light of recent consolidation within the independent broker-dealer industry, which experienced a decrease in broker-dealers registered as members of FINRA from 4,905 in 2008 to 4,105 as of October 2014.2 The consolidation has been driven by low interest rates (which have harmed independent broker-dealers by decreasing revenues from lending on margin) and difficult business conditions following the credit crisis. At the same time, the requirements of Dodd-Frank and other new regulations have imposed additional compliance costs on independent broker-dealers.

The timing and ultimate outcome of the Rule 1017 process are often critical factors in broker-dealer M&A transactions. Participants in broker-dealer M&A transactions may be unable, without FINRA assistance, to determine whether a transaction requires approval under Rule 1017. If Rule 1017 approval is required, uncertainties as to the likely timing for approval may further complicate the transaction.

Scope of Rule 1017 in the Context of M&A Transactions

A FINRA member broker-dealer that undergoes any of the changes described in Rule 1017 is required to file an application for FINRA’s approval under the rule. Some common examples of transactions requiring Rule 1017 approval include:

  • acquisition or disposition of a controlling block of the equity securities of a broker-dealer, or of an equity interest that represents less than a controlling interest but 25 percent or more of the outstanding equity securities of the broker-dealer;
  • acquisition or disposition of an asset management firm that includes a broker-dealer subsidiary or affiliate (such as a hedge fund management firm that uses a broker-dealer subsidiary to trade securities and/or raise capital for its funds and other products); and
  • acquisition or disposition of assets that will materially change the business operations of the acquiring and/or disposing broker-dealer, such as may be encountered in the acquisition of a material amount of revenues attributable to sales of securities (e.g., mutual funds).

FINRA approval is required as a condition to closing each of the foregoing types of transactions and, in many cases, requires a longer period of time than any other closing condition — thus becoming the “critical path” to completing the deal.

For the entire article, click here

BrokerDealers Battle Their Own Regulator: Sifma v. Finra Over Privacy

iStock_000010356316XSmallBrokerdealer.com blog update courtesy of The New York Times’ Susan Antilla.

Finra has proposed a new plan that requires brokerdealers to share extensive information about their clients’ accounts and brokerdealers are not happy about it.

The proposal by the Financial Industry Regulatory Authority, or Finra, is “a troubling and serious threat to investors’ civil liberties and constitutional rights,” Carrie L. Chelko, chief counsel of the Philadelphia financial firm Lincoln Financial Network, wrote in one of hundreds of letters to the agency criticizing the plan.

Finra argues that regular, monthly reports from brokers detailing purchases, sales, margin calls and risk profiles will give it a chance to stop abusive practices before further harm is done.

Finra is considering the feedback on its plan, called the Comprehensive Automated Risk Data System, or Cards, and making changes in advance of seeking approval from its board of governors and forwarding a proposal to the Securities and Exchange Commission, Finra’s chief executive, Richard G. Ketchum, said in a telephone interview.

Finra has often been dismissed as an apologist for the Wall Street firms that finance it, but it has made some efforts since the financial crisis to play a tougher role. It fought the discount brokerage firm Charles Schwab & Company in 2012 after the firm tried to force customers to waive their rights to bring class-action lawsuits, winning its case last April. It also strengthened its standards for brokers who are making investment recommendations, advising them that a product must be consistent with a customer’s best interest. Several powerful investor advocacy groups, includingAARP and the Consumer Federation of America, have applauded Finra’s plan, noting that it would allow agency regulators to match the 21st-century data capabilities of the Wall Street firms it regulates. But the brokerage firms that pay Finra to be their regulator say that keeping so much investor information in one place is an example of regulatory overreach and an invasion of customers’ privacy.

“Not a week goes by without some data breach being reported in the press,” Ira D. Hammerman, general counsel of the Securities Industry and Financial Markets Association, a Wall Street lobbying group known as Sifma, said in an email response to questions about Finra’s plan. “And if Cards is built, the question is when, not if, there will be a data breach.”

In December, the American Civil Liberties Union wrote to Finra to express its “very serious security and privacy concerns” about Cards.

Mr. Hammerman and other critics have said that Finra’s plan would invade investors’ privacy, put personal information at risk, take supervisory authority away from brokerage firms and put small brokers out of business. After Sony disclosed in December that its systems had been hacked, Mr. Hammerman even took the opportunity during a media interview to liken Sony’s predicament to the risks that Cards would pose.

Barbara Roper, director of investor protection at the Consumer Federation of America, said Wall Street was “using every tool in their toolbox.” She added, “Their reaction is so over the top that the only thing I can see is that they just don’t want their regulator to be able to keep an eye on them.”

Given Finra’s reputation among some critics, Ms. Roper said, the aggressive Cards proposal has taken some Wall Streeters by surprise. “The industry sees this as evidence of Finra becoming less of a lap dog,” she said.

Mr. Ketchum said that the proposal would make it possible for Finra to spot patterns that suggest bad behavior by a brokerage firm, a branch office or an individual broker.

Dishonest brokers do not usually take advantage of only one client, Mr. Ketchum said. Instead, “they fall in love with a product or they fall in love with a strategy and they put tons of people in it.” Thus, a comprehensive database that displays all of the activity at a firm or branch can help Finra zero in on abuse, he said.

Ms. Roper said the program would let Finra jump on problems more quickly. “It creates a real deterrent,” she said. “Who’s going to churn an account if it immediately sends off a warning siren at Finra?”

In objecting to Cards, the securities industry has been most vocal about the potential for a vast repository of investor information to be hacked. After perusing the data security objections raised in a first round of comment letters in early 2014, Finra revised its proposal and said that customers’ names, addresses and tax identification numbers would not be included.

To continue reading this article from the New York Times, click here.

Fidelity Fined For Overcharging Fees for 7 Years

fidelityBrokerdealer.com blog update courtesy of InvestmentNews’, Mason Broswell.

One of the largest mutual funds groups, Fidelity Investments has been ordered to pay a fine after inappropriately charging fee-based accounts that received brokerdealer services for over 7 years.

The Financial Industry Regulatory Authority Inc. has ordered Fidelity Investments to pay a $350,000 fine after the firm allegedly overcharged more than 20,000 clients a total of $2.4 million.

From January 2006 to September 2013, Fidelity inappropriately charged for certain transactions in fee-based accounts in its Institutional Wealth Services group, which provides trading and brokerage services to investment advisers and their clients, Finra said in a letter of settlement.

Finra said the overcharges resulted from a lapse in supervision over how Fidelity applied fees under its asset-based pricing model, which generally charged on assets rather than by transaction.

“The firm did not clearly delegate responsibility for the supervision of fee-based brokerage accounts,” Finra said in the letter of settlement. “In fact, until 2013, the firm did not designate a supervisory principal to oversee its [institutional wealth services] asset-based pricing program.”

As a result, certain clients may have been double-billed or charged excess commissions in addition to the asset-based management fee, according to Finra’s letter. For instance, in over 1,000 fixed income transactions initiated by advisers, clients were erroneously charged a markup on the transaction in addition to the asset-based fee, Finra said.

Fidelity discovered the problems in the spring of 2012, self-reported the issue to Finra and voluntarily reimbursed all clients, according to Adam Banker, a spokesman for Fidelity. The issues affected roughly 1.5% of the brokerage accounts held for investment advisers and the majority required reimbursement of less than $100, according to Mr. Banker.

“[Institutional Wealth Services] conducted a thorough internal review of this matter, which resulted in the implementation of enhanced controls and oversight for its asset-based pricing program,” said Mr. Banker in an emailed statement. “IWS completed these steps prior to the conclusion of Finra’s review of this matter.”

The firm agreed to the settlement letter without admitting or denying the findings.

Fidelity’s Institutional group is the third-largest custodian when ranked by number of registered investment adviser clients and serves around 3,000 RIAs, according to InvestmentNews’ RIA Custody Database.

Fidelity’s direct-to-consumer, workplace savings accounts and correspondent broker-dealer clearing business, which operates as National Financial, were not affected, Mr. Banker said.

Regulators Call For More Disclosure When It Comes to BrokerDealers’ Fees

billshockmi-resize-600x338Brokerdealer.com update courtesy of JD Supra Business Advisor from 9 January.

In September, state securities regulators formed a working group aiming to make brokerdealers’ disclosures about their fees more clear, accessible, and useful to investors in comparing different firms’ charges. The group plans to finish its work by next fall, and will consider, for example, developing

  • a model fee disclosure form;
  • guidelines on accessibility, transparency, and uniform use of terminology; and
  • recommendations on how to notify customers of fee changes.

In addition to representatives of the North American Securities Administrators Association (NASAA), the working group includes representatives of FINRA, the Securities Industry and Financial Markets Association, the Financial Services Institute, and several brokerdealer firms. NASAA President Andrea Seidt said “the working group will take into consideration … wirehouse firms, independent brokerdealers, clearing firms, and introducing firms, among others.

Earlier this year, a NASAA report on its survey of 34 brokerdealer firms recommended the working group’s formation. The survey found a wide disparity of brokerdealer fee disclosure practices. However, that survey, and certain enforcement actions that preceded and partially motivated it, focused particularly on certain problematic fee disclosure practices. For example, some firms allegedly hid the true amount of their compensation for securities transactions by charging unreasonable markups for what they disclosed as “handling,” “postage,” “delivery of securities in certificated form,” or “miscellaneous.” The survey also focused particularly on fees firms charge for closing accounts or transferring account securities to another firm.

Against this background, the working group may focus primarily on disclosure issues regarding a limited number of specific fee types. Alternatively, the working group may seek a more comprehensive approach.

In any case, some of the practices addressed by NASAA’s survey and the working group may involve legal violations. Brokerdealers would be well advised to review their own practices with that in mind.

 

FINRA Bans Penny-Stock Broker Anastasios Belesis

Brokerdealer.com update courtesy of Bloomberg’s Zeke Faux.

Financial Industry Regulatory Authority (FINRA) has been banned from the brokerage industry forever on Friday.

Anastasios Belesis

Anastasios Belesis

, the former head of John Thomas Financial Inc., was barred from the brokerage industry for life by the Financial Industry Regulatory Authority for trading ahead of clients’ orders.

Belesis dumped the New York-based firm’s position in a penny stock that was surging while 14 customers tried and failed to sell their shares, Finra said today in a statement. The industry-funded regulator ordered Belesis to pay about $1 million plus interest to customers and fined him $100,000.

Belesis has appeared on business television and had a minor role in the movie “Wall Street: Money Never Sleeps” before his boiler room across from the New York Stock Exchange closed in 2013. Trainees at the brokerage were forced to stand and bark memorized sales scripts for as long as 14 hours a day, Bloomberg News reported at the time, citing interviews with 20 former employees.

Finra said in the statement today that John Thomas didn’t hold the customer orders intentionally. Ron Cantalupo, a John Thomas broker who was accused of intimidating a colleague, was cleared by the regulator, which also dismissed charges against Michele Misiti and John Ward.

Finra’s fraud charges against Belesis were dismissed as well. He agreed to pay $500,000 in 2013 to settle accusations by the Securities and Exchange Commission that he pressured a hedge-fund manager to steer fees to John Thomas.

“He was never ever charged with running a boiler room,” Ira Sorkin, Belesis’s lawyer at Lowenstein Sandler LLP, said in a telephone interview. “To the extent there were charges brought against him for fraud, they were dismissed.”

For the original article from Bloomberg’s Zeke Faux, click here