Next months issue of the Financial Industry Regulatory Authoritys Monthly Notice of Disciplinary and Other FINRA Actions could be a bit juicier thanks to a new rule that aims to widen the scope of what disciplinary action FINRA makes public.
The SEC gave FINRA broader authority to publish appeals, pending or withdrawn complaints, and other disciplinary matters in its monthly notice. It also allowed FINRA to publish more detailed case information on these types of actions on its public database, BrokerCheck. Today, FINRA does not publish detailed information on appeals or withdrawn complaints, for example, and BrokerCheck generally only contains a brief summary of the action. Anyone interested in obtaining a full report on a case today must petition FINRA directly for the records.
The new rule has sparked debate about how much broker disciplinary information should enter the public domain.
Supporters believe making that additional information available will not only help the investing public do their due diligence on brokers, but will also add some insight and transparency to FINRAs process as well because more details about its decisions will made available for public scrutiny, according to Jenice L. Malecki of Malecki Law, who filed one of the five comment letters on the proposal to the SEC.
I think it provides more access and more accountability even on the regulatory side because when the industry has more information they can use that in discussions with regulators, she said.
Others, such as the Financial Services Institute, a trade group representing independent broker-dealers, are concerned that too much information will be published, possibly harming advisor reputations.
While we support FINRAs diligence in informing investors regarding disciplinary complaints and disciplinary decisions, we question the appropriateness and purpose of drawing attention to actions that pose reputational harm to firms and advisors but were found lacking on the merits, David Bellaire, executive vice president and general counsel for FSI, wrote in the comment letter.
A list of all pending or withdrawn complaints is already available through BrokerCheck, however, so making additional documents public would only add clarification, the SEC said. FINRA also reserves the right to redact information where failure to do so would violate fundamental notions of fairness or work an injustice, the SEC wrote.
Still, the Public Investors Arbitration Bar Association, a group of attorneys representing investors in disputes against the securities industry, said the amendment did not go far enough. In its comment letter, the association said it felt the rules still allow FINRA to prevent a number of cases from ever being made public.
Overall, PIABA supports the amendments, said Scott Ilgenfritz, PIABAs president. But there are a couple places where amended rules reserve what we view to be discretion that is broad and may be conceivably inappropriately exercised.
FINRA said it would publish a regulatory notice no later than 60 days following the SEC approval on June 21, and the effective date of implementation would be no later than 120 days following the publication of that regulatory notice.
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