Update Your Procedures: Summary of Some Recent Changes

Summary of some changes during the first half of 2010. You'll want to be sure to update your procedures manuals (there were more changes than those listed here...read all your Notices!).

 1. The Red Flags Rule will not be enforced until year-end 2010. If I provided you with an “Identity Theft Protection Program,” you don’t have to worry about documenting your compliance until then.

2. Reminder: all initial U4 filings (not amendments) require ‘wet’ signatures from both the rep and the firm signatory. Make sure you have original, signed U4’s in your files.

3. If you are holding a Variable Annuity application/customer check for up to seven days after the application was complete (as allowed under Rule 2330), the following must be true:

a. It was a recommended purchase or exchange (non-recommended trans. still must happen w/in one day)
b. Staff made reasonable efforts to safeguard the check and deliver the completed application to the supervisor for review
c. The reason for holding the check is to review the application for approval
d. You have procedures in place for this (yes, you do)
e. You keep a record of the date when the principal (OSJ) receives a complete and correct copy of the application package
f. A principal reviews the application as required under the rule
g. You don’t hold the check/application longer than 7 business days
h. You keep a copy of the check and a record of the date it was received from the customer and the date it was transmitted to the ins. co or returned to the customer

See Notice 10-05 for details.

4. I’ve already reminded you a lot about RR’s use of Social Networking Sites. Remember that you have to deal with compliance on this issue if your personnel discuss their services on sites like Facebook.

See Notice 10-06 for details.

5. FINOP’s should review the details of the following Notices:

a. 10-12 on changes to line-item reporting on FOCUS (guidance on FAS 167)
b. 10-15 on new requirements for subordinated loans to BD’s, including new standard forms that can be used (*remember that changes to the terms—even maturity—of outstanding sub loans will be subject to the new rule requirements)
c. 10-21 on consolidated rule 2261: When the Company is party to an open transaction with another FINRA member, or has on deposit cash or securities of another member firm, it has to, if requested by the other firm, deliver the Company’s most recent balance sheet (FOCUS) in either paper or electronic form. (This is not required for non-member customers unless the firm holds customer funds/securities)

6. If you provide consolidated financial reports (that contain information on various holdings, even those away from the firm) to customers, you have to have a review/approval process in place. Sources of information included on the statements should be verified and documented, unless pre-approved exceptions are made. You’ll have to make certain disclosures to customers about the statements; you may want to get a signed acknowledgment form from customers.
See Notice 10-19 for details.

7. Consolidated FINRA Rule 3240 concerns borrowing money from or lending money to customers. In certain instances, such as where the customer is also a member of a Rep’s immediate family, or is in the business of lending money/providing credit/etc., your firm does not have to require notification and pre-approval. Other lending arrangements always require pre-approval. If your procedures aren’t specific on this topic, or prohibit all lending arrangements with customers, you may end up getting in trouble for breaking the rule without understanding why. It’s worth understanding the requirements, since this is a very common FINRA disciplinary action.

8. FINRA has provided specific guidance on due diligence requirements for Reg. D offerings. You already know about these, but it’s worth reviewing revised procedures. Remember that if you contribute to PPM’s, you’ll be held to compliance with the advertising rules. You are also required to fill gaps in due diligence performed by others, if you perceive of them. You’ll want to document everything, including your vetting of outside sources of due diligence. Some of this guidance may apply to hedge fund offerings. Think about creating a stand-alone “Due Diligence Checklist” based on FINRA’s guidance. You may want to use it as a means of ensuring proper documentation.

See Notice 10-22 for details.

9. As of February 14, 2011, asset-backed securities are reportable to TRACE. Mortgage pool numbers may be used as identifiers.

See Notice 10-23 for details.

10. Effective November 1, 2010, OTC equity trades must be reported within 30 seconds of execution. The new reporting time frame also applies to trade cancellations that currently are subject to 90-second reporting, as well as stop stock and prior reference price trades. Firms are also required to report secondary market transactions in non-exchange-listed DPP securities within 30 seconds of execution.

See Notice 10-24 for details.

11. There is a new ODD supplement. You can find it here.

12. FINRA will phase in the REX system, which replaces its existing Reg. T system to collect Reg. T extension of time requests. The first effective date is August 23, 2010. There is a REX tutorial for those who are interested: REX Tutorial.

 13. As of June 10, FINRA put into place a temporary program that permits it to halt trading otherwise than on an exchange—the ‘trading pause pilot.” It expires December 10, 2010. Under this pilot, FINRA may halt trading in individual securities where the primary listing market has issued a trading pause in that security due to a move of 10 percent or more from a sale in a preceding five-minute period. Halts apply to all trading, including otherwise than on an exchange.

See Notice 10-30 for details.

14. SEC Rule 15c2-12 regarding material event notices (Muni securities) was amended and the changes are effective as of 12-1-10. The information that must be reported by issuers to MSRB now include new categories, and not all events are characterized as ‘material.’ Also, demand securities (like VRDO’s) are no longer exempt from event notice reporting. Because you have to inform muni customers of events listed on the EMMA portal, revise your procedures to show the new event categories. You may also want to add a list of voluntary event-based disclosures.

See MSRB Notice 10-20 for details.

15. I revised the annual Rep Questionnaire to include the topics of social networking and protection of information on personal devices such as cell phones and computers. You will see that revised form during the Annual Meeting process.

16. As of February 1, 2010, MSRB revised Rule G-37 (and G-38) by adding contributions to bond ballot initiatives/campaigns to the existing list of reportable contributions. The rule parallels the requirements of existing disclosure rules (de minimis exceptions for annual amounts $250 or less), except that there is no ban on municipal securities business as a result of contributions to bond ballot campaigns. Form G-37 was revised and should be used to report contributions when required.

See MSRB Notice 10-01 for details.

17. As of November 10, 2010, Rule 201 of Reg. SHO will be in effect. This is the new Circuit Breaker/Alternative Uptick Rule approved by SEC this year. Firms may not display any short sale order, absent an exception, at a price that is equal to or below the national best bid if the price of that security decreases by 10% or more from the security’s closing price as determined by the listing market for the covered security as of the end of regular trading hours on the prior day “circuit breaker”); likewise, in such circumstances, for the remainder of the day and the following day, short selling is permitted only at a price above the current national best bid. There are exceptions and trades meeting them must be marked ‘short exempt.’ As such, OATS will reinstate its “SX” value in the buy/sell code field.
 The rule is found here.


For the Notices cited, go to FINRA Notices or MSRB Notices for specific links.

Work hard! Relax harder!

ESM: Another Provider

Just wanted to let you know about another provider of electronic storage--for emails and other files: OneSecure Technology. From what I hear, they provide good service at a good price--especially for you small firms out there struggling to keep up the expensive cost of compliance.

Here is an overview of some of the support and compliance help the firm provides: The firm also offers other services aimed at the financial services industry: web site design and hosting, email hosting, email encryption service, social media archiving / controls, data protection and back-up, web filtering (control web access to Facebook, other websites), and network security.

Required attestation lettes: format and access Supervisory Lexicon - monitoring tools for flagging electronic communication containing potential compliance violations; assigns them for further review
Contacts for support, training and system URL’s
Email Set up Documentation
Email Admin Interface Training
New Client Communications
Email Archive Admin Training
Archive End User Training Documentation
Product Documentation for Companies written Policies and Procedures
Mock Audit run through

Don't forget to keep your CRD notifications current: if you switch providers, you have to file a new notification in Forms and Filings/Financial Notifications/Electronic Storage Media and you have to upload new attestation letters.

Wow, this subject has a way of spoiling a good mood. Yikes.

Changes to Broker Check: Update Rep Complaint Filings!

If you've been reading your Notices (10-34 and Info Notice 8-3) you know that Broker Check will, as of August 23, display complaints that are older than 24 months and that haven’t been settled or adjudicated, or that settled for less than the prior, respective U4 disclosure threshold. There are other changes, too...here's a full summary of the changes, courtesy of FINRA:

The SEC approved amendments to FINRA Rule 8312, which governs the release of informtion through Broker Check. The amendments:

(1) make publicly available in Broker Check all historic customer complaints that became non-reportable after the implementation of Web CRD;
(2) permanently make publicly available in Broker Check information about former associated persons of a member firm, as reported to CRD on a uniform registration form if they were (a) convicted of or pled guilty or no contest to certain crimes; (b) subject to a civil injunction involving investment-related activity or found in a civil court to have been involved in a violation of investment-related statutes or regulations; or (c) named as a respondent or defendant in an arbitration or civil litigation in which they were alleged to have committed a sales practice violation, and which resulted in an award or civil judgment against them;
(3) expand the Broker Check disclosure period for former associated persons of a member firm to 10 years from two years; and
(4) codify FINRA’s current process for disputing the accuracy of (or updating) information disclosed through Broker Check.

For instance, if one of your Reps had a customer complaint that was reported on U4 3 years ago, but was never resolved—say it faded away, for instance, because you or the Rep never heard from the complainant again—that complaint currently does NOT show up on Broker-Check. As of August 23, it will show up. It’s status will show ‘pending’ if it remains pending.

It is in your Reps’ best interest to make sure their historic complaint disclosures are accurate. For instance, if a complaint was resolved but the CRD record was never updated to show that, then now is the time to do it.

FINRA is being helpful (and Allison in Disclosure was extremely helpful in explaining all this!) by looking at ALL historic complaint filings to determine which are ‘pending’ and may be subject to updating. For any such complaints identified as pending, they will issue either a disclosure letter for the individual Rep, or they will batch the occurrences in a new category of disclosures letters issued to the firm, itself.

Here’s what is important:  make sure you are set up to receive notifications of outstanding disclosure letters...that way, you and your Reps can address the status of prior DRP's in order to make changes, if necessary.  Also go into Organization in CRD Main and look for the new ‘disclosure letter’ category. Later this month check that link to see if FINRA has batched 'pending' complaints for your review. NOTE: for right now, they will not send you notification of batched disclosures letters--there's no mechanism for that presently.


Good luck.