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FINRA Cites Unfair ACAT Charge And Slow Transmittal of Funds
October 19, 2016
Today's BrokeAndBroker.com Blog is a morsel for those who enjoy the occasional bite of some wonky bit of Wall Street regulatory analysis -- it's an acquired taste. My name is Bill and I will be your server. Would you like regular or bottled water? The Chef's Special is a FINRA regulatory settlement, slightly baked, featuring an unfair ACAT charge and a side of not-so-prompt puree. That's $250.
Case in Point
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Fortrend Securities, Inc. submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. In the Matter of Fortrend Securities, Inc., Respondent (AWC 2014039056101, October 12, 2016).
Since 1993, Respondent Fortrend Securities, Inc. has been a FINRA member firm, which the AWC explains as being:
colocated in Melbourne, Australia with its Australian affiliate, Fortrend Securities Pty Ltd, which is an Australian financial services firm. Fortrend Securities' business primarily consists of introducing U.S. equity transactions to Fortrend Securities's U.S.-based clearing firm, on a fully-disclosed basis, on behalf of Australian customers.
ACAT Charges
The AWC alleges that from August 2011 to July 2012, Respondent charged 15 customers $250 for Automated Customer Account Transfers ("ACATs"), allegedly resulting in a $190 profit per transfer. The AWC notes that FINRA has "repeatedly emphasized to member firms its concern about charging fees unrelated to actual costs for account transfers via ACAT." Based upon FINRA's analysis of the actual ACAT fees charged by Respondent's clearing firm and taking into account an industry average charge for such fees, the self-regulator deemed Respondent's $250 ACAT charge to be unreasonable in violation of NASD Rule 2430 and FINRA Rule 2010.
SIDE BAR: As in effect during the relevant times, this rule governed the charges at issue in the Fortrend AWC:
NASD Conduct Rule 2430. Charges for Services PerformedCharges, if any, for services performed, including miscellaneous services such as collection of moneys due for principal, dividends, or interest; exchange or transfer of securities; appraisals, safe-keeping or custody of securities, and other services, shall be reasonable and not unfairly discriminatory between customers.The current rule effective since November 21, 2014 (see if you can spot "Waldo" in the form of the material difference between the old and current rules):FINRA Rule 2122. Charges for Services PerformedCharges, if any, for services performed, including, but not limited to, miscellaneous services such as collection of monies due for principal, dividends, or interest; exchange or transfer of securities; appraisals, safe-keeping or custody of securities, and other services shall be reasonable and not unfairly discriminatory among customers.
A Matter of PromptnessThe AWC asserts that from November 2012 through September 2014, Respondent Fortrend Securities:
allowed its Australian affiliate to process and hold checks and securities for Fortrend Securities' customers (which customers were also customers of the Australian affiliate) and, in limited instances, these checks and securities were not promptly transmitted to Fortrend Securities' clearing firm. As a result, Fortrend Securities was not operating in compliance with its claimed exemption from the Customer Protection Rule and was subject to a $250,000 minimum net capital requirement and failed to maintain an accurate Net Capital computation pursuant to Securities Exchange Act Rule 17a-3(a)(11) and failed to submit Securities Exchange Act Rule 17a-5(a) FOCUS reports containing accurate Net Capital computations.The AWC asserted that as a broker-dealer receiving or holding funds/securities for customers, Respondent Fortrend was required to maintain at least $250,000 in Net Capital pursuant to Securities and Exchange Act Rule 15c3-1 .Under SEC Rule 15c3-3(k)(2)(ii), an exemption from the $250,000 Net Capital requirement is offered to a so-called introducing broker-dealer provided that if such a firm receives customer checks made payable to that introducing broker-dealer, that the introducing firm promptly instructs customers to make checks payable to the clearing broker-dealer. If the prompt notice to customers protocol is complied with, the introducing firm is not deemed to be "receiving customer funds" and would not necessarily be subject to the $250,000 Net Capital requirement. Following such a policy, however, does not provide cover for the ongoing receipt of such checks; and the receipt of checks must be an unusual and infrequent event because the existence of a pattern of such conduct will not permit the application of the exemption.
SIDE BAR: As noted in industry literature and as opined upon by various regulators, for a broker-dealer operating pursuant to the (k)(2)(ii) exemptive provision, "promptly transmit" means the transmission of customer funds and securities by noon of the next business day following receipt.
Based upon the above-cited lack of prompt transmittal to the clearing firm by Respondent's Australian affiliate, FINRA deemed that the member firm had improperly operated pursuant to a $100,000 Net Capital requirement and (k)(2)(ii) exemption. FINRA deemed the firm subject to the higher $250,000 Net Capital requirement.
Sanctions
In accordance with the terms of the AWC, FINRA imposed upon Respondent Fortrend a Censure and $15,000 fine.Bill Singer's CommentFor the record, my personal opinion is that Fortrend's $250 ACAT charge was unreasonable; however, FINRA Rule 2122 (and former Rule 2430) is a bit too touchy-feely for me when it comes to determining a "fair" and "not unfairly discriminatory" service charge. The only guidance that the rule gives is in admonishing you to make sure that the charge is "fair" and "not unfairly discriminatory." Frankly, that smacks of less a bit of meaningful regulation and more of a silly exercise in circular logic. In fairness, this is a common challenge to anyone attempting to draft a law, rule, or regulation that promulgates fairness and reasonableness, no matter the industry or subject. That being said, regulators must allow for some leeway when bona fide disputes arise as to whether a disputed charge or conduct is unreasonable. FINRA's $15,000 fine seems an acknowledgment of that concern.The Fortrend AWC should prompt some member firms and their compliance staffs to examine the various interlocking affiliations that may have occurred over the years. It might be a great idea for someone to prepare a flowchart to outline how things move through the various pipelines. Pursuant to such a review, it would be sensible to review your firm's massive Written Supervisory Procedures to see what is provided for when interacting with and overseeing transactions among affiliates. Hmmm . . . just where the hell is the WSP anyway? Oh, yeah, it's propping up the broken door in Harriet's office, where we used to have the FINOP sit before we moved him downstairs and brought the CCO into that space. Gee, we still have the name of that guy who died about three years ago as handling this stuff at our foreign affiliate. I can't find any reference to someone over here who is supposed to be supervising these issues.
Also READ:
"FINRA Says Brokerage Fee An Undisclosed Commission"(BrokeAndBroker.com Blog, May 15, 2014)
"Broker Dealer Handling Fee Is Disquised Commission" (BrokeAndBroker.com Blog, October 9, 2013)
"$49 Brokerage Handling Fee Deemed Undisclosed Commission"(BrokeAndBroker.com Blog, August 22, 2013)