As the regulatory landscape is constantly evolving, Compliance Risk Concepts (“CRC”) is issuing its monthly review and summary of FINRA, SEC, and NFA notices and bulletins to assist our clients in keeping abreast of notable regulatory developments and deadlines in an effort to strengthen their compliance and regulatory initiatives.
FINRA
Regulatory Notices
Per Regulatory Notice 23-07, FINRA has adopted amendments to Rule 8312 (FINRA BrokerCheck Disclosure) to release information on BrokerCheck as to whether a particular current or former member firm is currently designated as a Restricted Firm pursuant to FINRA Rules 4111 (Restricted Firm Obligations) and 9561 (Procedures for Regulating Activities Under Rule 4111).
The new rule amendments become effective on June 1, 2023.
The amended rule text is available in Attachment A.
Per Regulatory Notice 23-08, FINRA reminds members of their obligations when selling private placements (i.e., unregistered offerings sold pursuant to the Regulation D safe harbors under Sections 3 and 4 of the Securities Act of 1933 (Securities Act)). In Regulatory Notice 10-22 (Obligation of Broker-Dealers to Conduct Reasonable Investigations in Regulation D Offerings), FINRA reminded members of their obligations to conduct reasonable investigations of the issuers and the securities they recommend in private offerings made under Regulation D. In the years since FINRA published Regulatory Notice 10-22, the unregistered offering market and the related regulatory landscape have evolved, and FINRA has observed both areas of concern and effective practices in the sales of private placements by members. This Notice updates and supplements the prior guidance in light of those developments and observations. It is not intended to alter the principles or the guidance FINRA provided in prior Regulatory Notices.
This Notice highlights a member’s obligation, when recommending a security, to conduct a reasonable investigation of the security. This duty has long been rooted in the antifraud provisions of the federal securities laws and is a core component of a broker-dealer’s obligations under Securities and Exchange Commission (SEC) Regulation Best Interest (Reg BI) and FINRA Rule 2111 (Suitability), the fundamental standards that members must meet when recommending securities. This Notice also addresses certain additional obligations for members when selling private placements, including FINRA’s filing requirements and its communications with the public and supervision rules.
This Notice does not create new legal or regulatory requirements or new interpretations of existing requirements, nor does it relieve firms of any existing obligations under federal securities laws and regulations. Members may consider the information in this Notice in developing new, or modifying existing, practices that are reasonably designed to achieve compliance with relevant regulatory obligations based on the member’s size and business model.
FINRA notes that it is issuing a companion notice, Regulatory Notice 23-09, requesting comment on whether changes to FINRA rules, operations or administrative processes would enhance the capital-raising process without compromising protections for investors and issuers. FINRA encourages members to provide feedback pursuant to that Notice.
Per Regulatory Notice 23-09, FINRA promotes the capital raising process through appropriately tailored rules for its members that are designed to promote transparency and to establish important standards of conduct for the benefit of all market participants, including investors and issuers.
In 2017, in Regulatory Notice 17-14, FINRA requested comment on ways to increase efficiency and reduce unnecessary burdens on the capital raising process. Since that time, FINRA has completed certain actions (including rule changes) and is undertaking additional actions, that promote capital formation. While these actions increase efficiency and reduce unnecessary burdens on the capital-raising process, FINRA is requesting comment on whether additional changes to these or other FINRA rules, operations or administrative processes would further enhance the capital-raising process without compromising protections for investors and issuers.
Comment Period Expires: August 7, 2023
Per Regulatory Notice 23-10, FINRA requests comment on a proposal to facilitate centralized access to members’ order execution quality reports for NMS stocks that are required to be published by market centers under Rule 605 of Regulation NMS. Under the proposal, FINRA members would be required to provide their Rule 605 reports to FINRA, which FINRA would publish in a centralized location on the FINRA website.
Comment Period Expires: July 31, 2023
Special Notices
There were no Special Notices in May.
SEC
Final Rules
Per Release No. 34-97424, the SEC is adopting amendments to modernize and improve disclosure about repurchases of an issuer’s equity securities that are registered under the Securities Exchange Act of 1934. The amendments require additional detail regarding the structure of an issuer’s repurchase program and its share repurchases, require the filing of daily quantitative repurchase data either quarterly or semi-annually, and eliminate the requirement to file monthly repurchase data in an issuer’s periodic reports. The amendments also revise and expand the existing periodic disclosure requirements about these repurchases. Finally, the amendments add new quarterly disclosure in certain periodic reports related to an issuer’s adoption and termination of certain trading arrangements. This final rule is effective on July 31, 2023.
Per Release No. IA-6297, the SEC is adopting amendments to Form PF, the confidential reporting form for certain SEC-registered investment advisers to private funds to require event reporting upon the occurrence of key events. The amendments also require large private equity fund advisers to provide additional information to the SEC about the private equity funds they advise. The reporting requirements are designed to
enhance the Financial Stability Oversight Council’s (“FSOC”) ability to monitor systemic risk as well as bolster the SEC’s regulatory oversight of private fund advisers and investor protection efforts.
Per Release No. 34-97478, the SEC is making technical amendments to Form BD and Form BDW, the uniform broker-dealer registration form and the uniform request for withdrawal from broker-dealer registration, respectively. The technical amendments will update the current list of self-regulatory organizations (“SROs”) and government jurisdictions listed on Form BD and Form BDW, and make conforming changes to the definition of “jurisdiction” in the forms.
Per Release No. 33-11197, the SEC is adopting technical amendments to various rules and forms under the Securities Act of 1933 (“Securities Act”), the Securities Exchange Act of 1934 (“Exchange Act”), and the Investment Company Act of 1940 (“Investment Company Act”), as well as to the rule setting forth undertakings that certain registrants must include in their registration statements, and to the general authority provision corresponding to SEC rules under the Investment Advisers Act of 1940 (“Investment Advisers Act”). These revisions make changes to correct errors that are technical in nature, including typographical errors and erroneous cross-references in various SEC rules and
forms.
Proposed Rules
Per Release No. 34-97516, the SEC is proposing to amend certain portions of the Covered Clearing Agency Standards under the Securities Exchange Act of 1934 (“Exchange Act”) to strengthen the existing rules regarding margin with respect to intraday margin and the use of substantive inputs to a covered clearing agency’s risk-based margin system. The SEC is also proposing a new rule to establish requirements for the contents of a covered clearing agency’s recovery and wind-down plan.
Comments should be received on or before July 17, 2023.
Interim Final Rules
There were no interim final rules in May.
Interpretive Releases
There were no interpretive releases in May.
There were no policy statements in May.
NFA
Notices to Members
Notice I-23-11
May 24, 2023
FINRA adjusts online testing requirements for candidates seeking to take futures industry proficiency exams
FINRA administers the futures industry proficiency exams on behalf of NFA, including the Series 3, Series 30, Series 31, Series 32 and Series 34. Beginning Friday, June 9, 2023, FINRA will end its interim accommodation process, and only certain individuals will be able to request online administration of these exams. These individuals include:
Candidates can visit FINRA's website for more information about proficiency exam administration and how to request available accommodations.
Note that NFA's Swaps Proficiency Requirements are not impacted by this change.
News Releases
May 10, 2023
FINRA and NFA Discuss Crypto Assets at Special Summit
FINRA, NFA Expand MOU to Include Information Sharing, Collaboration
May 10, Washington—FINRA and NFA recently held a special summit focused on crypto assets and agreed to expand their Memorandum of Understanding (MOU) to address crypto activities that fall within their respective regulatory mandates.
During the day-long summit held at FINRA's San Francisco office, crypto and blockchain experts from both organizations met to share regulatory intelligence and ways to leverage new technology. FINRA and NFA also discussed the importance of investor protection, as well as potential risks, reporting and supervisory obligations associated with crypto-related activities.
The meeting culminated in an agreement to expand the existing MOU to address information sharing and collaboration regarding crypto assets, blockchain technology developments and crypto asset regulatory risks.
"We are excited to build on our strong relationship with our colleagues at NFA in finding new ways to benefit from one another's deep expertise," said Greg Ruppert, Executive Vice President, Member Supervision at FINRA. "Maintaining effective regulatory partnership and information sharing across various products and asset classes helps each of our organizations better serve the investing public."
"NFA looks forward to collaborating with FINRA as the crypto market continues to evolve," said Regina Thoele, Senior Vice President, Compliance at NFA. "By leveraging our shared expertise, we can continue enhancing our investor protection efforts in light of market developments."
Hot Issue
Off-channel communications continue to be a hot issue with the SEC with the potential for significant enforcement consequences.
In May, the SEC charged HSBC Securities (USA) Inc. and Scotia Capital (USA) Inc. for widespread and longstanding failures by both firms and their employees to maintain and preserve electronic communications. To settle the charges, HSBC and Scotia agreed to pay penalties of $15 million and $7.5 million, respectively. As described in the SEC’s orders, the firms admitted that their employees often communicated “off-channel” about securities business matters on their personal devices, using messaging platforms, such as WhatsApp. Neither firm maintained or preserved the substantial majority of these communications, in violation of the federal securities laws. The failings involved employees at multiple levels of authority, including supervisors and senior executives.
Our Perspective
Regulators continue to demonstrate their commitment to protecting investors by aggressively pursuing bad actors and reviewing and updating regulations to guard investors against constantly evolving threats.
The best approach to regulatory compliance is a proactive one. Staying ahead of the curve by taking note of statements and guidance released by regulators and using them as a barometer to assess the current regulatory climate can help ensure that a firm is prepared for a regulatory exam. Rather than scrambling to rectify issues or meet deadlines, a thorough, active compliance program that considers and incorporates regulatory developments is in a better position to satisfy regulators and preserve operations so they can best serve their clients.
For more information, please contact:
Mitch Avnet
p. (646) 346-2468
David Amster
p. (917) 568-6470
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