FINRA Announces New Conduct Rules to Strengthen Investor Protections

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New securities conduct rules designed to protect investors and ensure fair dealing with customers were proposed by the Financial Industry Regulatory Authority (FINRA) and have been approved by the Securities Exchange Commissions (SEC) effective October 7, 2011.
The "know-your-customer" FINRA Rule 2090 and "suitability" FINRA Rule 2111, conduct rules contain language similar to the rules promulgated through the NYSE and NASD prior to their consolidation with changes that strengthen the protection of investor rights.
Know Your Customer Rule (FINRA 2090) The "know-your-customer" rule begins with the opening of the customer account and the requirement to ascertain through "reasonable due diligence" the determination of all "essential facts" concerning every customer of the brokerage firm.
The essential facts are those required to:
  • effectively service a customer's account;
  • act in accordance with special instructions;
  • authority of individual acting upon behalf of customer;
  • comply with industry laws, rules and regulations.
The "know-your-customer" obligation does not depend on whether a financial advisor has made a recommendation.
Suitability Rule (FINRA 2111) The "suitability" rule requires that a financial advisor and his brokerage firm have a "reasonable basis" to believe that a recommended investment or investment strategy is suitable based on a customer's investment profile.
The rule requires "reasonable diligence" to ascertain information concerning a customer's investment profile, including:
  • age;
  • other investments;
  • employment status;
  • financial situation and needs;
  • tax status;
  • investment objectives;
  • investment experience;
  • investment time horizon;
  • liquidity needs;
  • risk tolerance; and
  • any other information disclosed by customer in connection with recommendation.
The new rule relies upon a financial advisor's investment recommendation as the triggering event for application of the rule.
The rule applies a flexible approach to the "facts and circumstance" of a particular customer recommendation.
A recommendation does not rely upon a transaction or the generation of compensation for its existence.
A recommendation can result from financial advisor communication directed to facilitate a transaction or refrain from any transactions regarding a security or investment strategy in a customer account.
The financial advisor must have a firm understanding of both the investment and the customer.
Failure to understand both aspects is considered a violation of the rule.
The customer information profile includes an expanded list of types of information required for consideration when a suitability determination is made about an investment recommendation.
To strengthen the rules that require the suitability analysis, financial advisors and brokerage firms are required with "specificity" the reasonable basis for why a particular customer information profile factor is not relevant, in order to be relieved of the obligation to seek the required information.
You are probably asking yourself whether unsuitable investment advice was the direct cause of your investment losses.
Ask a competent securities lawyer.
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