In this case, the issuer cancelled a proposed secondary stock offering for which the broker-dealer was planning to act as the lead underwriter.  At that point, the issuer planned another offering, and the broker-dealer was invited to participate as a co-manager.   However, according to the SEC, the broker-dealer’s participation was made contingent by the issuer upon the broker-dealer commencing research coverage – a “quid pro quo” – which the investment bank agreed to do.  In commencing research coverage, the investment bank rated the stock a “buy,” with a price target that was considerably higher than its then current market price.¹

In issuing the fine, the SEC relied on its traditional guidance as to when a broker-dealer is subject to Section 5(b)(1)’s potential limitations on issuing research.  In particular, the SEC has stated that a broker-dealer that publishes research is subject to Section 5(b)(1):

• while seeking to participate in the underwriting of the issuer’s securities offering;
• after having been invited to participate by the issuer in the underwriting of its securities offering; or
• after reaching an understanding with the issuer that it will participate as a managing underwriter in the issuer’s securities offering.

Under these circumstances, the SEC will typically view a research report about the subject company as an improper prospectus.  While SEC Rule 139 includes a safe harbor from the definition of “prospectus” for research reports that satisfy the rule, this safe harbor excludes cases such as this one, where the broker-dealer initiated coverage.  Here, the SEC deemed the research report to be a prospectus, due to its potential to condition the market.  The SEC’s fine in this matter is further indication of regulatory interest in research related supervisory and oversight lapses.

To read the full article, please click here

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There are many brokerdealers who are Finra, SEC, and FBI compliant, to find one of those click here. 

In most professions, it would take only one or two acts of egregious conduct before troubled employees were shown the door. In the case of one stockbroker who has repeatedly had complaints from investors, it took 69 customer disputes filed over the last 13 years before he was barred from the business.

The stockbroker, Jerry A. Cicolani Jr., had complaint after complaint documented in his formal record. Regulators and employers spotted red flags. Yet the organization primarily responsible for monitoring the nation’s 637,000 brokers, the Financial Industry Regulatory Authority, did not bar Mr. Cicolani until September 2014.

The Securities and Exchange Commission had already sued him, in May 2014, over his role in a Ponzi scheme. His most recent employer, PrimeSolutions Securities, based in Cleveland, fired him a day after that lawsuit was filed. And his customers had lodged complaints as far back as 2002.

To continue reading about the legal implications Mr. Cicolani is now facing, click here

The post 69 Red Flags Raised Before Action Was Taken Against Ponzi Scheme Involved Broker appeared first on BrokerDealer Blog.

The Securities and Exchange Commission and the Financial Industry National Regulatory Authority (FINRA) today announced the opening of registration for their 2015 National Compliance Outreach Program for Broker-Dealers. The program is intended to provide an open forum for regulators and industry professionals to discuss compliance practices and exchange ideas on effective compliance structures.

The SEC’s Office of Compliance Inspections and Examinations (OCIE), in coordination with the SEC’s Division of Trading and Markets, is sponsoring the program with FINRA. The program will be held on July 14 at the SEC’s Washington D.C. headquarters and will focus on 2015 priorities for OCIE and FINRA as well as current topics of interest including cybersecurity, anti-money laundering, and firms’ approaches to supervision and sales practices.

“This program provides an invaluable opportunity to facilitate discussions between regulators and industry participants on important issues affecting the brokerage industry, to promote compliance with federal securities laws, and to enhance investor protection,” said Kevin Goodman, National Associate Director of OCIE’s broker-dealer examination program. “Past programs have been well attended and well received, and we look forward to a candid exchange of ideas with participants at our upcoming event.”

To continue reading about this event hosted by the SEC and Finra, click here.

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Before you sign on with a money manager, ask: Are you a fiduciary? If yes, great. If not, go in with your eyes open.

Fiduciaries, by law, have to do the right thing by their clients. No one on Wall Street wants, by law, to have to do the right thing.

Some street professionals are fiduciaries; registered investment advisers generally are, brokers are not.

And the distinction grows every day.

Anyone whose job is to raise sales cannot meet the fiduciary standard, notes Knut Rostad, president of the Institute for the Fiduciary Standard.

“Brokers may provide useful product recommendations, but they cannot meet the fiduciary standard,” Rostad says.

“They can no more provide objective advice about investments than can the Ford car salesman objectively advise on cars. They may be terrific people but, by virtue of what they do, they will most assuredly provide terrible advice.”

The issue is confusing, and Wall Street wants to keep it that way.

Read the entire article from the The Philadelphia Inquirer, here, and for more financial commentary, click here for Erin Arvedlund’s blog.  

The post Are You A Fiduciary? SEC’s Attempts to Create More Distinction appeared first on BrokerDealer Blog.

The chairwoman of the Securities and Exchange Commission announced on Tuesday that she planned to explore setting a higher standard for brokers in dispensing investment advice, putting the agency in the middle of a potential fight between the Obama administration and the financial industry.

Speaking at a conference hosted by the Securities Industry and Financial Markets Association, one of Wall Street’s main trade groups, the chairwoman, Mary Jo White, expressed her personal support for setting up a so-called uniform standard of fiduciary duty.

Such a move would hold stockbrokers and brokerdealers to a fiduciary duty standard, under which they must put their clients’ interests ahead of their own. Registered investment advisers already fall under that higher bar, while brokers follow a looser “suitability” standard that requires them only to mind customers’ needs and appetite for financial risk.

“I believe the S.E.C. has an obligation” to create a uniform standard, Ms. White told the association’s conference.

Ms. White’s comments were her first public thoughts on the matter, coming months after the chairwoman promised to outline her position on the issue.

The S.E.C. has the authority — but no obligation — to create the new standard, thanks to a provision in the Dodd-Frank financial regulation overhaul. The Obama administration backed a similar initiative by the Labor Department to create a higher standard for brokers who oversee retirement investments.

A new standard from the commission would carry more weight, however, since it would encompass all brokers and not just those who oversee retirement accounts.

Behind the call for a tougher standard is concern that loose rules have potentially cost consumers billions of dollars each year. A memo from the White House that surfaced in January estimated that investors lost between $8 billion and $17 billion from their I.R.A.s last year because of a lack of protections.

To read the entire NYT story, please click here.

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In a record year for enforcement, the SEC brought a landmark number of cases, and FINRA imposed an exceptional level of fines and restitution.

This LawFlash highlights key U.S. Securities and Exchange Commission (the SEC or the Commission) and Financial Industry Regulatory Authority (FINRA) enforcement developments and cases regarding broker-dealers during fiscal year 2014. The full 2014 Year in Review is available here.

The SEC

There were few significant personnel changes at the SEC last year. The Commission’s composition was stable in 2014 with Chair Mary Jo White continuing to lead the SEC. The other commissioners are Luis A. Aguilar, Daniel M. Gallagher, Kara M. Stein, and Michael S. Piwowar. Notable changes were made with appointments in two major SEC divisions (Stephen Luparello was named the director of the Division of Trading and Markets, and Stephanie Avakian was named the new deputy director of the Division of Enforcement). New directors were also appointed to lead the Philadelphia and Atlanta regional offices.

The enforcement statistics compiled by the SEC during fiscal year 2014 (which ran from October 1, 2013 through September 30, 2014) set several records. Other aspects of the enforcement program led the Commission to dub fiscal year 2014 “A Year of Firsts.”

In fiscal year 2014, the SEC brought a record 755 cases, a figure likely boosted by the number of open investigations carried over from the prior year. Moreover, the SEC’s actions resulted in a record tally of monetary sanctions being imposed against defendants and respondents.

With respect to its caseload, in what has become a trend, the SEC brought 7% fewer cases against investment advisers and investment companies—130 cases in fiscal year 2014, compared to 140 actions in fiscal year 2013. To contrast, in fiscal year 2014, the SEC reversed its downward trend from fiscal year 2013, bringing 37% moreactions against broker-dealers—166 in fiscal year 2014, compared to 121 in fiscal year 2013. Nevertheless, taken together, the SEC continues to devote significant resources to investigating regulated entities: cases in these areas have represented about 39% of the Commission’s docket in each of the last two fiscal years.

After a sharp decline in 2013, the Commission brought 52 insider trading cases in fiscal year 2014, an 18% increase from fiscal year 2013, but this increased number is still lower than the fiscal year 2012 total. We will see in the coming year how changes to the legal landscape may affect the SEC’s enforcement in this particular area.

FINRA

An interesting enforcement record emerged at FINRA last year. Although it instituted fewer disciplinary cases in 2014, its fines doubled from the prior year. Moreover, the amount of restitution that FINRA ordered in 2014 more than tripled the amount that had been returned to investors in 2013.

Specifically, in 2014, FINRA brought 1,397 new disciplinary actions, a noticeable decline from the 1,535 cases initiated in 2013. Along the same lines, FINRA resolved 1,110 formal actions last year; 197 fewer cases than it had in the prior year. With respect to penalties and restitution, in 2014, FINRA levied $134 million in fines (versus $60 million in 2013) and ordered $32.3 million to be paid in restitution to harmed investors (versus $9.5 million in 2013).

FINRA’s use of Targeted Examination Letters seems to be declining. In 2014, FINRA posted only two letters on its website, versus three in 2013 and five in 2012. Last year’s letters sought information on cybersecurity threats and order routing/execution quality. (In February 2015, FINRA published its Report on Cybersecurity Practices.)

To read the entire article from Morgan Lewis, click here.

The post Broker-Dealer Enforcement Cases and Developments: Fines & Restitution Record appeared first on BrokerDealer Blog.

BrokerDealer.com blog post courtesy of extract from 247wallst.com and Jon C. Ogg

A form “RW” was filed with the Securities & Exchange Commission by a company named Southeastern Grocers LLC on Tuesday. While this might not sound like much to most people, this means that the current owner and operator of supermarket chains Winn-Dixie and BI-LO has now formally withdrawn its plans to conduct an initial public offering. Southeastern Grocers is based in Jacksonville, Florida and it had first initially filed with the Securities & Exchange Commission almost a full year ago to conduct an initial public offering for up to $500,000,000 worth of common stock.

The original filing showed that the underwriters hired for the offering were to be Citigroup, Credit Suisse, Deutsche Bank Securities, William Blair, and Wells Fargo Securities. Do we dare ask if their salespeople couldn’t sell yet one more grocery chain to the public – particularly one that had previously filed for bankruptcy.

No reason was offered up as to why the filing was withdrawn. No market conditions and no internal reason cited… The company’s filing simply said,

“Pursuant to Rule 477 promulgated under the Securities Act of 1933, as amended (the “Act”), we hereby file this application for withdrawal of the Registration Statement on Form S-1 (File No. 333-191389) of Southeastern Grocers, LLC, a Delaware limited liability company (the “Company”), together with all exhibits and amendments thereto, initially filed with the Securities and Exchange Commission (the “SEC”) on September 26, 2013 (the “Registration Statement”). The Company has determined not to pursue the contemplated public offering at this time. The SEC has not declared the Registration Statement effective under the Act and no securities were sold in connection with the offering contemplated by the Registration Statement.”

Much of America may not know about Winn-Dixie or BI-LO chains as is. They operate in Florida, Georgia, Alabama, Louisiana, Mississippi, South Carolina, North Carolina, and Tennessee.

Winn-Dixie was one of the prior bankruptcy casualties. Another imploded chain looks like it is just going to have to wait to come public again.

The post Southeastern Grocers Steps Out of IPO appeared first on BrokerDealer Blog.

(Bloomberg) — Citigroup Inc., the third-biggest U.S. brokerdealer, told regulators they could steer more stock trading to public exchanges by making it more affordable.

The bank suggested the U.S. Securities and Exchange Commission cut the highest amount that can be levied to trade by at least two-thirds, according to a letter from Daniel Keegan, head of Americas equities at Citigroup. Most exchanges charge the maximum, 30 cents per 100 shares, leading traders to favor lower-cost dark pools, he wrote. His statement aligns Citigroup, which runs alternative trading platforms, with two of the biggest exchange operators.

Citi’s Daniel Keegan

As part of a rule change that took effect in 2007, the SEC “somewhat arbitrarily established a cap on access fees that can be charged to access liquidity on exchanges,” Keegan wrote in an Aug. 7 letter posted on the regulator’s website. “This cap should be revisited in light of today’s market economics.”

More than 15 percent of U.S. equity volume takes place on dark pools, according to Tabb Group LLC. NYSE Group Inc. and Nasdaq OMX Group Inc., two of the three big U.S. stock exchange owners, have both advocated regulatory measures to lure trading off the systems. Accusations of wrongdoing on the private systems have intensified this year amid Michael Lewis’s “Flash Boys” and a probe by New York’s attorney general, who alleged Barclays Plc misled its dark-pool clients.

Dark pools proliferated in the past decade as brokers sought to reduce the amount of money they pay the NYSE and Nasdaq Stock Market. Instead of giving exchanges trading fees, brokers could match buyers and sellers on their own systems.

The SEC’s Regulation NMS, which took effect in 2007, helped solidify that business model by allowing stock trades to occur on whatever market had the best price at a given time, be it public or private. Reg NMS also set the maximum exchange access fee at 30 cents per 100 shares, also known as 30 mils.

Citigroup’s LavaFlow Inc. division runs the 10th-biggest alternative trading system for U.S. stocks and charges 28 mils for shares priced above $1. It’s an electronic communication network, not a dark pool, meaning more data about trading is publicly available.

Citigroup’s suggestion of reducing the access-fee cap to 10 mils or lower could also restrain rebates that exchanges pay traders who facilitate transactions, a practice known as maker- taker that has been attacked by lawmakers and critics such as IEX Group Inc. and the chief executive officer of NYSE’s owner, Intercontinental Exchange Inc.

Rewarding Brokers

Stock markets use fees from traders to reward brokers who send them orders, a model some academics and money managers such as Invesco Ltd. and T. Rowe Price Group Inc. say creates a conflict of interest. Last month, Senator Carl Levin, a Michigan Democrat, told the SEC it should abolish the payments to improve confidence in U.S. stock markets.

Jeffrey Sprecher, the CEO of ICE, said during a recent congressional roundtable that exchange access fees should be reduced. His company, as well as Nasdaq, have endorsed a proposal called the trade-at rule, which would keep stock trades off dark pools unless those venues improved upon prices available on exchanges.

Nasdaq, operator of the largest exchange by volume, generated $1.1 billion in revenue from U.S. equities transactions in 2013 and gave out $743 million in rebates, according to an SEC filing. The comparable figures at NYSE Euronext, the owner of the New York Stock Exchange that ICE bought in November 2013, were $1.06 billion and $796 million, respectively, in 2012.

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