FINRA repeatedly points to their self-described bad actors—member firms and associated persons with disclosures on their records—as the culprits tearing down the financial industry’s integrity. FINRA already imposes increased regulatory requirements and monitoring on these so-called bad actors with a history of misconduct. But what FINRA has failed to acknowledge is that, while enforcement criteria are based on unvetted U4 disclosures, all of these rule changes and increased regulations will fail to protect the investing public or have any real value. What these rule changes will do, however, is overburden every firm and associated person with meritless or non-investor-related disclosures on their CRD record; case in point—proposed FINRA Rule 4111.
With FINRA’s Proposed New Rule 4111, FINRA has once again delved into the medicine cabinet and pulled out a translucent band-aid to heal a six-inch laceration. Clearly, the securities SRO needs trained medical attention itself, in order to help solve the industry’s ailments. It’s time to schedule a visit with Dr. Commissioner for a healthy regimen of prescription antibiotics, some stitches, and perhaps a tetanus shot. Maybe then, FINRA will create rules which provide real impact on protecting the investing public from firms and advisors complacent with screwing over their clients.
Rule 4111 would allow FINRA to establish criteria, based on firm size and number of BrokerCheck and CRD disclosures for the firm and its associated persons, for designating member firms as “Restricted Firms.” These firms would be required to deposit a specified amount of capital into a separate, FINRA-controlled bank account. Even after a firm no longer qualifies for the Restricted Firm designation or terminates its FINRA membership, the funds would remain in the account until such time as FINRA approves.
FINRA states that Rule 4111 is to “incentivize member firms to comply with regulatory requirements and to pay arbitration awards.” Regulatory Notice 19-17. Essentially, FINRA is trying to persuade everyone that this Rule will help curb unpaid arbitration awards. What it really does is create a veil that will shield FINRA from liability for pushing out (1) any firm that employs a higher number of associated persons with disclosures, or (2) the associated persons themselves.
(1) FINRA designates the maximum deposit requirement as the amount that the firm could deposit that would not “significantly undermine the continued financial stability and operational capability of the member,” or that the amount should “not [be] so burdensome that it would force the member out of business solely by virtue of the imposed deposit requirement.” These standards could allow FINRA to designate the maximum deposit requirement as $1 less than the amount that would force the firm into bankruptcy and then wait for a few too many pens to disappear. Any member firm could be forced out of business at the discretion of FINRA.
(2) FINRA has also proposed a provision that, if a member meets the Criteria for Identification for the first time, it would have a one-time opportunity to reduce its staffing levels to no longer meet these criteria. FINRA will undoubtedly use this rule to threaten overly-burdensome deposit requirements, forcing member firms into having only one choice—to terminate associated persons with U4 and U5 disclosures.
Sticking with recent themes, FINRA has pointed to CRD disclosures as the indicator of which firms or associated persons will enact inflict the greatest harm upon investors. While it should not be discounted that this seems rational on the surface, until FINRA ceases their attack on removing meritless and non-investor-related disclosures, its basic criterium for enforcement will continue to fail regulators and the public.
President and Founder
You’re done with your current firm, and you’re ready to start something new. Before you do anything rash, consider seeking help from an independent firm that specializes in helping financial advisors transition from one firm to the next.
Seeking the counsel of an outside attorney three to four months before your departure can pave the pathway to a smooth transition, and it can act as an insurance policy. When you seek outside help from an attorney who has no affiliation with your firm, you’ll receive adequate counsel and have someone ready to provide vigorous defense in case your current firm decides to come after you.
The Four Ps: A Cautionary Tale of Underprepared Advisors
Proper Planning Prevents Poor Results. This phrase applies to nearly everything, and it especially applies to the transition process.
A dynamic advisor duo learned this lesson the hard way after moving from Charles Schwab to Morgan Stanley last month. The $750 million team left Schwab on Friday, spent the weekend converting their clients from Schwab to Stanley, and began their work with Morgan Stanley on Monday.
Within six days, the two men found themselves in the middle of a lawsuit. They were then dropped by their lawyer, due to a conflict of interest with the lawyer’s firm. Within a few weeks, the team was out of a job at Morgan Stanley and barred from soliciting their former Schwab clients.
When To Seek Outside Counsel
If you’re looking for a new firm or don’t have an attorney yet, consider beginning your search for representation at least six months in advance and engaging your chosen firm three to four months before you leave one firm for the next. The more time you give yourself, the easier it will be to create an exit strategy and check out of your old firm with your dignity in tow.
What To Expect From A Transition Attorney
Reaching out to an attorney who has no affiliation with your firm is the smartest move one can make when it comes to mitigating risk. When you work with a broker outside of your firm, it becomes easier to keep your transition confidential and avoid any potential conflicts of interest.
When you work with outside counsel, you can expect for them to review employment contracts, privacy policies, and non-competes. Based on the stipulations of those contracts, they will help you identify any potential roadblocks to a smooth transition and strategize with you to develop a game plan for your unique situation.
Ready to start making a move? Check out our Transitions Page or send us a note to learn more about our transition planning services.
Executive Vice President
This blog is our ongoing effort to inform and educate FINRA licensed professionals about the evolving regulatory ecosystem in which we operate.