FINRA Issues Regulatory Notice Aimed at Private Placements

In the wake of recent problems with private placement deals, the Financial Industry Regulatory Authority (FINRA) has weighed in to remind broker-dealers of their due diligence obligations with respect to private placements. Private placement deals gone wrong, for example those with Medical Capital and Provident Royalties, have resulted in a large number of FINRA securities arbitration claims (as well as class action lawsuits) in the past several months. Such offerings face continued scrutiny from securities regulators around the country.

Through Regulatory Notice 10-22, issued on April 20, 2010, FINRA spells out the obligations of broker-dealers when offering private placements. The Notice “reinforces and details a broker-dealer’s obligation to conduct a reasonable investigation of an issuer.” It is interesting to note that this Notice is not setting out new regulatory guidance – it is a reminder to firms of there already existing obligations to their clients.

The Notice specifically states that broker-dealers are required to conduct a suitability analysis; NASD Rule 2310 (Suitability) requires a broker-dealer to have reasonable grounds to believe an investment recommendation is suitable for the customer.

Additionally, the Notice states that broker-dealers have an obligation to conduct a reasonable investigation of the issuer and the securities they recommend in private placement offerings. Broker-dealers must conduct a reasonable investigation of the security and the issuer’s representations about the security.

Failure to conduct such an investigation can constitute a violation of the securities laws and FINRA rules. A broker-dealer may not rely blindly on the representations of the issuer. Essentially the broker-dealer must exercise a “high degree of care” and conduct its own independent investigation of the issuer and the security, especially if there are any “red flags” with regard to the issuer or offering.

Broker-dealers must also comply with the advertising, supervisory, and record-keeping rules of FINRA and the SEC.