Season's Greetings From FINRA. You're Fined and Suspended. Ho, ho, ho.

December 12, 2017

We're nearing year-end and for many industry employees that means another cycle of annual compliance disclosures is on its way. You will get the office memo about how you need to make time to sit down at the computer and click your way through a batch of "YES" and "NO" responses about all sorts of events that may or may not have happened to you during the past year. Then there are those other queries about whether you engaged in this type of activity or have any of the following such-and-such outside accounts or if you were named in some legal proceeding. Year after year it's pretty much the same nonsense, as you would put it. The thing is, you may not have considered that you never disclosed something a few years ago because you didn't realize that you had to -- and you're continuing to answer "NO" when you should answer "YES." Then there's that other bit of language on the annual form that they changed last year and the way it's now re-worded should elicit a different response from you but for the fact that you're assuming it's the same old language that you've read every year in the past. Well . . . season's greetings and all that but, hey, you better slow down this year and make sure that you know what you're being asked to disclose. Consider a recent FINRA disciplinary settlement.

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, Eli Lazarowitz submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. In the Matter of Eli Lazarowitz, Respondent (AWC 2016051250001, December 5, 2017).

Lazarowitz entered the securities industry in 1992, was first registered in 1998 (some licenses lapsed over time), and from February 2015 through August 2016, he was an associated person of Goldman Sachs & Co., where he purportedly worked in the Securities Division on client information reporting. The AWC asserts that Lazarowitz "has no prior disciplinary history in the securities industry."

Trust Account

The AWC asserts that since June 2006, Lazarowitz had been one of two named trustees on a brokerage trust account at another brokerage firm (herein, the "Trust Account" and the "Away BD"). The AWC also asserts that Lazarowitz was a beneficiary of the Trust Account and since its inception, he had trading authorization. In February 2015, when Lazarowitz joined Goldman Sachs as a Non-Registered Associated Person, his roles with the Trust Account continued. 

The AWC alleges that while associated at Goldman Sachs, Respondent caused trades to be effected in the Trust Account. Further, he allegedly failed to disclose to the Away BD that in February 2015 he had become associated with Goldman Sachs, in violation of NASD Rule 3050 and FINRA Rule 2010. 

2016 Annual Certification

The AWC alleges that in May 2016, Lazarowitz submitted his 2016 Annual Certification to Goldman Sachs that contained, in part, this content:

"[t]he Firm's records indicate that you do not have any brokerage or managed accounts held outside of GS. If you or a related person has one or more brokerage or managed accounts held outside the Firm, please click Add Account." 

In alleged violation of FINRA Rule 2010, Lazarowitz electronically certified in response to the above statement that: 

"I have no brokerage or managed accounts held outside the Firm to disclose for myself or any related person." 

NRF Termination

The AWC asserts that on August 26, 2016, Goldman Sachs filed a Form NRF Amendment ["NRF" is "Non-Registered Fingerprint"] reporting Lazarowitz's August 7, 2016, termination but not providing a reason.

Sanctions

In accordance with the terms of the AWC, FINRA imposed upon Lazarowitz a $5,000 fine and a 45-day-suspension from association with any FINRA member broker-dealer in any capacity.

The Old NASD Rule

NASD CONDUCT RULE 3050: Transactions for or by Associated Persons 

(a) Determine Adverse Interest

A member ("executing member") who knowingly executes a transaction for the purchase or sale of a security for the account of a person associated with another member ("employer member"), or for any account over which such associated person has discretionary authority, shall use reasonable diligence to determine that the execution of such transaction will not adversely affect the interests of the employer member. 

(b) Obligations of Executing Member

Where an executing member knows that a person associated with an employer member has or will have a financial interest in, or discretionary authority over, any existing or proposed account carried by the executing member, the executing member shall:

(1) notify the employer member in writing, prior to the execution of a transaction for such account, of the executing member's intention to open or maintain such an account;

(2) upon written request by the employer member, transmit duplicate copies of confirmations, statements, or other information with respect to such account; and

(3) notify the person associated with the employer member of the executing member's intention to provide the notice and information required by subparagraphs (1) and (2). 

(c) Obligations of Associated Persons Concerning an Account with a Member

A person associated with a member, prior to opening an account or placing an initial order for the purchase or sale of securities with another member, shall notify both the employer member and the executing member, in writing, of his or her association with the other member; provided, however, that if the account was established prior to the association of the person with the employer member, the associated person shall notify both members in writing promptly after becoming so associated. 

(d) Obligations of Associated Persons Concerning an Account with a Notice-Registered Broker/Dealer, Investment Adviser, Bank, or Other Financial Institution

A person associated with a member who opens a securities account or places an order for the purchase or sale of securities with a broker/dealer that is registered pursuant to Section 15(b)(11) of the Act ("notice-registered broker/dealer"), a domestic or foreign investment adviser, bank, or other financial institution, except a member, shall:

(1) notify his or her employer member in writing, prior to the execution of any initial transactions, of the intention to open the account or place the order; and

(2) upon written request by the employer member, request in writing and assure that the notice-registered broker/dealer, investment adviser, bank, or other financial institution provides the employer member with duplicate copies of confirmations, statements, or other information concerning the account or order;

provided, however, that if an account subject to this paragraph (d) was established prior to a person's association with a member, the person shall comply with this paragraph promptly after becoming so associated. 

(e) Paragraphs (c) and (d) shall apply only to an account or order in which an associated person has a financial interest or with respect to which such person has discretionary authority. 

(f) Exemption for Transactions in Investment Company Shares and Unit Investment Trusts

The provisions of this Rule shall not be applicable to transactions in unit investment trusts and variable contracts or redeemable securities of companies registered under the Investment Company Act of 1940, as amended, or to accounts which are limited to transactions in such securities. 

The New FINRA Rule (April 3, 2017)

FINRA Rule 3210: Accounts At Other Broker-Dealers and Financial Institutions

(a) No person associated with a member ("employer member") shall, without the prior written consent of the member, open or otherwise establish at a member other than the employer member ("executing member"), or at any other financial institution, any account in which securities transactions can be effected and in which the associated person has a beneficial interest.

(b) Any associated person, prior to opening or otherwise establishing an account subject to this Rule, shall notify in writing the executing member, or other financial institution, of his or her association with the employer member.

(c) An executing member shall, upon written request by an employer member, transmit duplicate copies of confirmations and statements, or the transactional data contained therein, with respect to an account subject to this Rule.

***Supplementary Material***

.01 Account Opened Prior to Association With Employer Member. If the account was opened or otherwise established prior to the person's association with the employer member, the associated person, within 30 calendar days of becoming so associated, shall obtain the written consent of the employer member to maintain the account and shall notify in writing the executing member or other financial institution of his or her association with the employer member.

.02 Related and Other Persons. For purposes of this Rule, the associated person shall be presumed to have a beneficial interest in, and to have established, any account that is held by: (a) the spouse of the associated person; (b) a child of the associated person or of the associated person's spouse, provided that the child resides in the same household as or is financially dependent upon the associated person; (c) any other related individual over whose account the associated person has control; or (d) any other individual over whose account the associated person has control and to whose financial support the associated person materially contributes.

For purposes of paragraphs (a) and (b) of this Supplementary Material .02, an associated person need not be presumed to have a beneficial interest in, or to have established, an account if the associated person demonstrates, to the reasonable satisfaction of the employer member, that the associated person derives no economic benefit from, and exercises no control over, the account.

.03 Transactions and Accounts Not Subject To This Rule. The requirements of this Rule shall not apply to transactions in unit investment trusts, municipal fund securities as defined under MSRB Rule D-12, qualified tuition programs pursuant to Section 529 of the Internal Revenue Code and variable contracts or redeemable securities of companies registered under the Investment Company Act, as amended, or to accounts that are limited to transactions in such securities, or to Monthly Investment Plan type accounts.

.04 Accounts At a Financial Institution Other Than a Member. With respect to an account subject to this Rule at a financial institution other than a member, the employer member shall consider the extent to which it will be able to obtain, upon written request, duplicate copies of confirmations and statements, or the transactional data contained therein, directly from the non-member financial institution in determining whether to provide its written consent to an associated person to open or maintain such account.

.05 Other Financial Institution. For purposes of this Rule, the terms "other financial institution" and "financial institution other than a member" include, but are not limited to, any broker-dealer that is registered pursuant to Section 15(b)(11) of the Exchange Act, domestic or foreign non-member broker-dealer, investment adviser, bank, insurance company, trust company, credit union and investment company.