Regulatory Audits & Investigations

Yes, It is Possible to Negotiate a Reduced Punishment with FINRA Enforcement

September 1, 2021 | Malecki Law Team

Being a financial professional – i.e., a registered representative (RR) – regulated by the Financial Industry Regulatory Authority (FINRA) is not easy. When misconduct is alleged against the RR in a complaint to FINRA, whether brought by a customer or the employing brokerage firm, the system that is set up to resolve such allegations and disputes generally treats the RR, at least initially, as “guilty until proven innocent.” Good luck finding a “neutral” fact-finder willing to listen; instead, you will often find an ambitious FINRA staffer, looking for another notch in his or her belt to help their stats and upward mobility. If and when FINRA decides to bring charges against the RR, it helps to have an attorney who can negotiate a reduced punishment against the RR.

To protect investors and market participants, RRs must abide by the securities laws and FINRA’s rules of conduct. But even when a financial professional follows those rules, every RR knows that they remain at the mercy of both customers and their firms, who, with little effort, whether fairly or unfairly, can very easily file a public complaint to put other customers or firms on notice about the RR.

If a customer files a complaint or arbitration against the RR, the complaint is reported to and logged on the RR’s public record of disclosure within the Central Registration Depository (CRD). Any person with Internet access can then view the pending allegations against the RR by visiting BrokerCheck.FINRA.org, where those allegations can additionally surface with a Google search.

I Received A Rule 8210 Notice From FINRA, What Is Going On?

March 24, 2020 | Malecki Law Team

As we have been saying in this space for many years, getting a Rule 8210 Notice from FINRA can be a jarring event. If you have received an 8210 notice, you should take it seriously, as well as immediate steps to develop your best course of action to comply with the request. An 8210 Notice is a subpoena from FINRA that is typically sent to registered representatives in connection with an informal inquiry that does not have to be reported on your form U4. When you first receive an 8210 notice, FINRA is likely trying to determine if there have been any violations of securities and/or industry rules and/or regulations. You should notify your compliance officer, as they will likely have already received a copy from FINRA, but being transparent is important.

It is important to meet with an attorney as soon as possible to determine the best ways in which to protect your interests during the process. All involved parties will not necessarily share the same interests, i.e., your firm and/or supervisor may have their own self-preservation interests. As part of the 8210 notice, you will be required to answer a list of questions (interrogatories) and produce sometimes a wide range of documents, both business and personal. The attorneys at Malecki Law are experienced in defending FINRA registered representatives and firms in FINRA disciplinary matters and can work with you in responding to interrogatories and assist you with your document production using state of the art electronic discovery tools.

In working with your attorney to respond to interrogatories and produce documents you should also start to prepare for a potential “on the record” interview (or “OTR” for short). OTRs before FINRA involve sitting in a conference room with investigators and answering their questions under oath. You should have your attorney prepare and accompany you to an OTR. While not all cases involve an OTR, many do. Experienced counsel will know the best way to couch what happened with the right language and explanation. Furthermore, it is important to identify and explain mitigating circumstances as soon as possible before enforcement decisions are made.

Why should I give the SEC everything they have requested?

February 10, 2020 | Malecki Law Team

Receiving a subpoena from the Securities and Exchange Commission (SEC) is a serious matter as is the associated document production most SEC subpoenas call for. Not only do most all SEC subpoenas require the production of vast amounts of documents, electronic files and data, the manner in which the SEC strictly requires production (see here for SEC data delivery standards) can be confusing for most, especially those not familiar with electronic discovery. Our securities regulatory attorneys frequently assist clients with examining, gathering and producing responsive documents and data for production in a format accepted by the SEC. Our securities regulatory attorneys utilize state of the art electronic discovery software and tools that reduce both the amount of time required of you and the billable hour.

All the documents and electronic data called for by the subpoena may seem overwhelming, however, ensuring that your production is both completely responsive and delivered in compliance with the SEC data delivery standards is one of the only ways in which you will be able to help the investigation proceed quicker to a final resolution. Often an issue for clients is the seemingly broad wording of SEC subpoenas, our securities regulatory attorneys are practiced in helping clients better understand what items are being sought by the SEC. Thus, allowing you to limit your time spent searching for documents and data. A responsive and compliant production also limits the amount times that you and/or your attorney will need to spend in working with the SEC. It is important to turn off any auto-delete functions that you may have in place to preserve your data and documents and DO NOT destroy anything. Not only will the destruction of any documents complicate your matter you may also face an obstruction charge.

It is imperative that you carefully comply in a timely manner with an SEC subpoena. The SEC can enforce a subpoena if you fail to comply with what the subpoena calls for and a failure to comply with court orders could result in contempt charges. Our securities regulatory attorneys are often able to negotiate the scope and timing of productions, including an extension of time for clients document production and testimony (if called for).It is also important that your response to the subpoena includes any legal objections that you may be entitled to. Remember, your response does not end the process. The SEC may consider your Subpoena response for weeks or months before they decide whether further investigation is necessary.

FINRA’s 2019 Risk Monitoring and Examination Priorities Letter

January 31, 2019 | Malecki Law Team

Financial professionals handling compliance keep abreast with changes in the regulatory landscape to effectively allocate resources. At the start of each year, regulatory agencies Financial Industry Regulatory Authority and the Securities and Exchange Commission publish their priorities. FINRA’s recently released Risk Monitoring and Examination Priorities Letter states emerging issues as well as ongoing concerns for the upcoming year. In an introductory note, Robert Cook explains that this year’s letter more broadly relays FINRA’s priorities for risk monitoring with a more pronounced focus on new issues. Firms can use the information contained within this letter to ensure that their compliance, supervisory and risk management programs reach FINRA’s standards. Distinct from earlier times, the FINRA letter focuses on explaining new issues and risk analysis.

The main new issues on the regulatory agency’s radar are the firm’s involvement with online distribution platforms, fixed income mark-up disclosure, and regulatory technology. Specifically, FINRA is concerned with how firms meet AML requirements, supervise communications with the public and conduct suitability analysis when involved with the distribution of securities on online distribution platforms. FINRA plans to evaluate the risks of excessive or undisclosed compensation arrangements between firms and issuers for offerings exempt from registration under Regulation A. Furthermore, FINRA intends to assess how firms handle risks with sales of offerings under Regulation D to non-accredited investors. FINRA expects firms to follow FINRA rule 2232 and MSRB Rule G-15 to comply with mark-up or mark-down disclosure obligations on fixed income transactions. As more firms use regulatory technology for compliance, FINRA plans to examine the efficiency and risks involved.

While this year’s letter pays more mind to new issues, FINRA briefly restates ongoing problems that have already been named as top priorities. Notably, FINRA mentions suitability determinations, outside businesses activities, and private securities transactions; private placements; data quality and governance; communications with the public; trade and order reporting; anti-money laundering (AML); net capital and consumer protection; best execution; fraud; insider trading and market manipulation; record keeping, risk management and supervision related to these and other areas. As per usual, FINRA will be mindful of how firms supervise and respond to associated persons with flawed disciplinary records. In the rest of the letter, FINRA categorizes the other concerns into sales practice risks, operational risks, market risks, and financial risks.

What is the Difference Between a SEC Subpoena and a FINRA 8210 Request?

December 12, 2018 | Malecki Law Team

At some point in their careers, many financial professionals will find themselves on the receiving end of a subpoena from Securities and Exchange Commission (“SEC”) or a Financial Industry National Regulatory Authority (“FINRA”) 8210 Request. The receipt of such documents signifies the regulatory or self-regulatory agencies’ request for information and/or documents in relation to an investigation of a potential securities laws violation. While the Securities and Exchange Commission will formally issue a subpoena, FINRA sends parties the equivalent inquiry letter, often referred to as an “8210 Request.” Both entities can request the receipt of a wide range of information and a high number of documents within a short amount of time. Furthermore, recipients who do choose not to respond to these critical requests honestly could ruin their careers and lives. While the SEC subpoena and FINRA 8210 request may share some similarities, and as we have explained in this space before, there are many differences based on the powers allotted to the respective regulatory agencies.

The Securities and Exchange Commission is a federal government regulatory agency entrusted to develop national regulations and enforce federal laws. Upon reasonable suspicion of securities laws violations, the SEC can issue a subpoena to anyone. Meanwhile, FINRA is not an official government entity, but rather the security industry’s self-regulated membership organization. FINRA has the authority to request documents, information, and testimony from those under its’ jurisdiction in a FINRA 8210 letter. Both the SEC and FINRA run a similar on-the-record “OTR” interview, with the option of an attorney present in the event of a testimony request. However, the SEC offers more response flexibility, protections under the Fifth Amendment and investigation information access in comparison with FINRA.

In the face of a potential securities law violation, the SEC will often send subpoenas to the targets as well as any potential witnesses with information. A SEC subpoena can demand documents (duces tecum) or oral testimony (ad testifcandum) without including context. The SEC can start an investigation by presenting their suspicions in a formal order of investigation. Chiefly, a former SEC Enforcement attorney, John Reed Stalk alleges that there is a “low standard” of cause needed for approved subpoena issuance. The formal order of investigation mainly contains information regarding the scope and possible subjects of the investigation. Subpoenaed parties and their attorneys can request the order.

Brokerages Are Making Brokers More Powerful: How Will That Effect The Securities Industry?

April 4, 2017 | Malecki Law Team

As reported in the Wall Street Journal, there has been a recent trend at big brokerages of shifting the power from the headquarters to brokers and branch managers. Apparently big brokerages like Bank Of America, UBS Group, and Merrill Lynch are “unleashing” their brokers and moving power closer to the brokers and their managers, both to keep brokers from leaving their firms and to increase revenues.

These modifications come in the wake of declining revenues and broker exoduses several big brokerages have experienced after the financial crisis. They have also witnessed that brokers who dislike or disagree with their managers and find them unhelpful tend to leave the brokerages more easily. The big brokerages have had to deal with rising regulatory costs and competing with an increasing number of independent advisers. According to research conducted by consulting groups, the registered investment adviser model is more successful as it is a smaller and more tightly integrated groups. Taking a cue from that, the zillion dollar brokerages are making changes aimed at empowering, training and giving their brokers more control over day to day decisions over clients, growth, and resource allocation. Merrill Lynch has plans to restructure the brokerage leadership, emphasize more on productivity and training, and reduce the number of divisions. UBS also made similar changes last year.

There are plans underway to also automate investment advisory and make use of robos to cater to a younger clientele so that the brokers can be freed up to deal with high net worth clients. All in all, this gradual shift is geared towards taking things back to how they were before the financial crisis hit, when the field agents and managers had more autonomy to structure their branches, price and sell services, be less accountable to corporate headquarters, hold more power and sway.

How Long Does The SEC Subpoena Process Take?

February 8, 2017 | Malecki Law Team

When you receive an SEC subpoena, one of the first things that you want to know is “how long before this is over?” While that is an important question, it unfortunately is not one that has a definite answer.

Frequently, the time to produce materials will range from weeks to about a month. As we said yesterday in our post about what materials are required to be produced, an extension of time to produce documents may be negotiated. Also, if the materials requested are more difficult to obtain or require forensic computing, the time to produce may be longer as well.

Once you have produced documents, the waiting game begins. Before anything else happens, the Commission usually will review the materials you have provided. Typically, once they have reviewed your production, the Commission will either: 1. Make a supplemental request of you for more documents, 2. Call you in for testimony, or 3. Choose not to have you in for testimony.

I Received a Subpoena from the SEC – What Will I have to Produce?

February 7, 2017 | Malecki Law Team

You just received a Subpoena from the Securities and Exchange Commission (SEC). What will you have to produce? We regularly represent securities industry professionals and investors who have gotten these Subpoenas, and the reaction is usually the same: people are nervous and concerned. How will this affect your business, and how what will it take the comply?

Getting an SEC Subpoena is a serious matter, and it is imperative that you carefully comply in a timely manner. Subpoenas will typically require you to produce documents or testify, or both. Your goal should always to limit your involvement with the federal authorities, and this begins with your production of documents in response to the Subpoena.

The first step is to remember that just because you received a Subpoena does not mean you automatically did something wrong. You may not be the SEC’s target, but may be someone the Commission believes has information related to another person or business. The SEC is not obligated to tell you whether they view you as a target or a witness, and you should not assume you are a target.

Windsor Street Capital and AML Officer Charged By SEC

February 2, 2017 | Malecki Law Team

Windsor Street Capital (formerly known as Meyers Associates) and its anti-money laundering (AML) officer, John D. Telfer, have been charged with securities violations by SEC, according to a recent report. Windsor allegedly failed to report at least $24.8 million in questionable penny stock sales. The violations cited by the SEC relate to the unregistered sale of hundreds of millions with insufficient due diligence, per InvestmentNews.

The suspicious transactions allegedly date back to June 2013 and resulted in nearly $500,000 in commissions and fees for Windsor, according to the SEC. InvestmentNews reports that Mr. Telfer has been charged with aiding and abetting by virtue of his alleged failure to properly monitor the transactions at issue.

SEC Bars Michael Breton for “Cherry-Picking”

January 26, 2017 | Malecki Law Team

Michael J. Breton of Massachusetts was banned from the securities industry by the SEC according to a recent InvestmentNews report. According to the report, Mr. Breton cost his clients $1.3 million by “cherry-picking” trades – i.e., placing trades through one central account then allocating the profitable trades to himself and the losing trades to clients. This practice reportedly continued from 2011 to July of this past year.

On Wednesday, the SEC filed charges against Mr. Breton and Strategic Capital Management, Mr. Breton’s firm, in federal court in Massachusetts. Mr. Breton has agreed to plead guilty to criminal securities fraud and forfeit $1.3 million, per the report. According to InvestmentNews, the US Attorney’s Office has agreed to recommend a maximum sentence of no more than three years.