FINRA’s examination program has undergone its most significant reorganization in decades. As stated in a press release, Oct. 1, 2018, FINRA’s goal for the reorganization was to “consolidate its Examination and Risk Monitoring Programs, integrating three separate programs into a single, unified program to drive more effective oversight and greater consistency, eliminate duplication and create a single point of accountability for the examination of firms.” The new look of the examination program was released, along with new management, on Dec. 12, 2019.
FINRA launches its revamped examination program with its release of its 2020 Risk Monitoring and Examination Priorities, issued on January 9th.
In 2020, FINRA is prioritizing risk monitoring, surveillance, and examination programs to further its mission of investor protection and market integrity. The examination priorities are organized around four themes, which build on FINRA’s priorities from prior years:
- Sales practice and supervision;
- Market integrity;
- Financial management; and
- Firm operations.
One significant change in this year’s priorities letter is FINRA’s focus on providing guidance to firms – practical considerations and questions that firms should be focused on as they review their program for compliance with regulatory requirements. In the past, the letters have traditionally been a detailed description of issues and requirements. Providing practical guidance is far more valuable to firms and will aid their compliance efforts.
Sales Practice and Supervision
FINRA will continue to focus on areas it has discussed in previous annual priorities letters, including complex products, variable annuities, private placements, fixed income mark-up/mark-down disclosures, representatives acting in positions of trust or authority, and senior investors. In addition to these areas, FINRA will evaluate firms’ compliance with obligations related to several new or emerging areas, discussed below.
Regulation Best Interest (Reg BI) and Form CRS
The SEC adopted Reg BI in June 2019, which establishes a “best interest” standard of conduct for broker-dealers. The SEC also adopted a new form – Form CRS – which requires broker-dealers to provide a brief relationship summary to retail investors. Firms must comply with Reg BI and Form CRS by June 30, 2020.
During the first half of 2020, FINRA plans to review firms’ preparedness for Reg BI. After June 30, 2020, FINRA will focus on firms’ compliance with Reg BI, Form CRS, and related SEC guidance. FINRA will work with the SEC to ensure consistency in evaluating broker-dealers and their associated persons for compliance with Reg BI and Form CRS. FINRA’s 2020 Risk Monitoring and Examination Priorities Letter includes a list of factors FINRA may consider when reviewing firms for compliance with Reg BI.
Two of the questions posed by FINRA bear particular consideration: (1) Do your firm and your associated persons consider the express new elements of care, skill and costs when making recommendations to retail customers? (2) Do your firm and your associated persons consider reasonably available alternatives to the recommendation? Both FINRA and the SEC have been explicit in their guidance that the Best Interest standard does not always mean the cheapest option available. That said, cost is a factor and the specific question regarding whether “reasonably available alternatives” will be an important consideration for firms. The regulators will be looking at what alternatives were available to firms to offer their customers and, if a firm chooses not to make those available, it will be important to ensure that there their review, assessment, and determinations are fully documented.
Communications with the Public
FINRA will continue to focus on firms’ compliance with obligations relating to FINRA Rule 2210 (Communications with the Public), as well as related supervisory and recordkeeping requirements. In 2020, FINRA will expand its focus to private placement retail communications, by reviewing how firms handle retail communications regarding private placement securities via online distribution platforms, as well as traditional channels. As the SEC looks to expand retail access to private placements, firms will need to be vigilant in the manner in which these products are offered to customers.
FINRA will also continue to focus on the challenges that the increasingly broad array of digital communications (i.e., texting, messaging, social media, or collaboration applications) pose to firms’ ability to comply with obligations related to the review and retention of such communications.
Cash Management and Bank Sweep Programs
FINRA recognizes that as commission practices change, cash management services that sweep investor cash into firms’ affiliated or partner banks or money market funds have taken on a greater significance. Bank Sweep Programs are offering more services to retail investors (such as check-writing, debit cards, and ATM withdrawals. These added features raise concerns about firms’ compliance with a range of FINRA and SEC rules. FINRA will therefore focus on firms’ compliance with such rules in the context of Bank Sweep Programs. Further, to the extent that firms benefit from these programs and, with commissions dropping and or going away in some instances, regulatory review of fees involved in providing services will increase, reviewing such areas as conflicts, disclosure, fairness, etc.
Sales of Initial Public Offering (IPO) Shares
In light of the growth of the IPO market over the past year, FINRA will focus on firms’ obligations under FINRA Rules 5130 (Restrictions on the Purchase and Sale of Initial Equity Public Offerings) and 5131 (New Issue Allocations and Distributions).
This year, FINRA will also focus on whether firms maintain reasonable supervisory systems relating to trading authorization, discretionary accounts, and key transaction descriptors. It will review whether these supervisory systems are designed to detect and address registered representatives exercising discretion without written authorization from the client.
FINRA will continue to review compliance with the ongoing obligations related to market manipulation, Trade Report and Compliance Engine (TRACE) reporting, short sales, and short tenders. Certain firms will be required to begin reporting to the Consolidated Audit Trail (CAT) in April 2020, and that FINRA will work with those firms as they prepare for reporting. The FINRA Letter reminds firms to continue devoting resources to ensure accuracy in their Order Audit Trail System (OATS) reporting, because OATS remains a critical part of the audit trail data that FINRA uses to meet its regulatory obligations.
In 2020, FINRA expects to focus on the following additional areas to promote market integrity:
- Direct market access controls;
- Best execution;
- Disclosure of order routing information; and
- Vendor display rule.
Firms can expect FINRA to continue its focus on compliance programs relating to Exchange Act Rule 15c3-3 (Customer Protection Rule) and Exchange Act Rule 15c3-1 (Net Capital Rule), as well as firms’ overall financial risk management programs. FINRA has identified the following new areas of focus for 2020:
- Digital assets;
- Liquidity management;
- Contractual commitment arising from underwriting activities; and
- London Interbank Offered Rate (LIBOR) transition.
As firms increasingly rely on technology for business systems and customer-facing activities, cybersecurity has become a large operational risk. As such, FINRA will focus on cybersecurity and technology governance in 2020. Specifically, firms should expect FINRA to assess whether their policies and procedures are designed to protect customer information and whether they are implementing controls appropriate to their business model and scale of operations. FINRA will also ensure firms’ compliance with FINRA Rules 4370 (Business Continuity Plans and Emergency Contact Information), 3110 (Supervision), and 4511 (General Requirements), as well as Exchange Act Rules 17a-3 and 17a-4.
In terms of technology governance, it continues to be important for firms to ensure that all of the right stakeholders are at the table when new technology is being implemented or current technology modified. Often technological solutions are implemented to address an issue and there are unintended consequences creating regulatory gaps. Having compliance and risk at the table as these decisions are being made can often go a long way to mitigating that risk.
FINRA’s examination priorities for 2020 will largely follow prior focus areas, emphasizing firms’ compliance in important areas such as systems for supervision, sales practice risks, anti-money laundering and fraud, insider trading, and manipulation across markets and products. New this year is an emphasis on Reg BI and Form CRS, as well as issues related to communications with the public, cash management and bank sweep programs, direct market access controls, best execution, disclosure of order routing information, and cybersecurity.
To support firms in their efforts to comply with federal securities laws and regulations, as well as FINRA rules, the 2020 Risk Monitoring and Examination Priorities Letter includes a list of practical considerations and questions for each topic, which may be helpful to firms in evaluating the state of their compliance, supervisory, and risk management programs.