The talk among New York securities lawyers this week was all about the Financial Industry Regulatory Authority (FINRA) release of Regulatory Notice 11-39 addressing business use of social media website in the wake of surging popularity of social media tools such as Facebook and Google+. These social media tools make connecting with friends, colleagues and third-parties easy, but also raise novel questions related to the extent to which associated persons may use these sites for business use and registered principals must supervise such use.
Securities Exchange Act Rule 17a-4(b)(4), which requires the retention of copies of communications between members, brokers or dealers and the public of “business as such,” underlies Regulatory Notice 11-39. Thus, a firm’s or an associated person’s communications with the public through social media posts may require pre-approval by the firm and/or registered principal, and be subject to regulation by FINRA, depending on whether the communication is related to the firm’s “business as such” and is “static” as opposed to “interactive.” Generally, all communications related to a firm’s business as such must be recorded and preserved, while all static posting is deemed an advertisement requiring the firm’s pre-approval under NASD Rule 2210.
Regulatory Notice 11-39 begins to address the grey area of posting to message boards. Associated persons, be they advertising in the first place or responding to questions via such message boards, are limited to what they can say and claim. Thus, postings in static forums or blogs on websites would require pre-approval of all statements made relating to the firm’s business.
In today’s brave new electronic world, it is not uncommon to have introduction to brokers and registered representatives through the use of social media websites. If such an acquaintance has made boasts or promises of business performance, such statements may violate FINRA and SEC laws and regulations and may constitute “red flags” of further inappropriate behavior.
FINRA Regulatory Notice 11-39 is available here.