Proposal to Require Greater Involvement in Private Placements by Broker-Dealers

FINRA recently proposed amendments to Rule 5122 which would increase Broker-Dealer compliance responsibilities with respect to private placements in which the Broker-Dealer “participates.”  FINRA noted that the vast majority of private placements currently remain outside the purview of the rule as it is currently written.  As FINRA’s stated intention is to increase investor protection, the amended rule is designed to combat fraud and abuse, by expanding oversight to all private placements in which a FINRA member participates, subject to certain exemptions.

Current FINRA Rule 5122

In general FINRA Rule 5122 requires a FINRA member firm which acts as the issuer of a private placement to adhere to the following requirements:

• the private placement offering document must include the indended use of offering proceeds, expenses, and the amount of selling compensation to be paid to the broker-dealer and its associated person;
• 85% of the offering proceeds must be used for the business purposes described in the offering documents (i.e. only up to 15% of the proceeds from the offering may be used to pay for offering costs, discounts, commissions or any other cash or non-cash sales incentives); and
• the offering documents must be submitted to FINRA for review at or prior to the time the offering documents are provided to any prospective investor (but the firm does not need to delay the offering until it receives a “no-objections” letter from FINRA).

There are various exemptions available under the rule including if the private placement offering is sold to:

• Institutional accounts
• Qualified purchasers
• Qualified institutional buyers
• Investment Companies
• Banks
• Employees of the issuers

In addition, certain private placements are not subject to the rule.

Major Part of Proposal

In general the major part of the proposed amendment is to apply the requirements of the rule to broker-dealers who “participate” (within the meaning of FINRA Rule 5110(a)(5), see below) in a private placement offering as opposed to only those broker-dealers (and control entities) who act as the cheap celebrex online issuer in a private placement.  The proposal will significantly expand the scope of the current rule – third-party marketers who enter into selling arrangements with respect to private fund interests will now be subject to greater oversight with respect to these arrangements.

Participation

Rule 5110(a)(5) defines “participation” as the following:

Participation in the preparation of the offering or other documents, participation in the distribution of the offering on an underwritten, non-underwritten, or any other basis, furnishing of customer and/or broker lists for solicitation, or participation in any advisory or consulting capacity to the issuer related to the offering, but not the preparation of an appraisal in a savings and loan conversion or a bank offering or the preparation of a fairness opinion pursuant to SEC Rule 13e-3.

The proposal also would remove the wholesaling exemption (i.e. selling through affiliated broker-dealers) for member firms.

It is not clear now how this would affect the business of third-party marketers and whether this will have a chilling affect on selling agreements.  This proposed amendment also highlights FINRA’s aggressive expansion of regulatory oversight.

If you have specific comments on the proposal, especially with respect to certain elements (investor protection, filing requirements, burdens/efficiencies, 85% of offering proceeds go to the use of proceeds), you should submit comments on the proposal by March 14, 2011

For more information, please see FINRA Regulatory Notice 11-04.

Other good information for broker-dealers FINRA Regulatory Notice 10-22.

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Bart Mallon is an attorney focused on the investment management industry and provides regulatory and compliance services to the broker-dealer community through Cole-Frieman & Mallon LLP.  He can be reached directly at 415-868-5345.