Written by: Jay Gould and Peter Chess
The Financial Industry Regulatory Authority (“FINRA”) released new guidance last month regarding new FINRA Rule 2111 (the “Suitability Rule”), which requires a broker-dealer to have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through reasonable diligence by the broker-dealer. The Suitability Rule codifies and clarifies the three main suitability obligations that previously had been discussed largely in case law:
- Reasonable-basis suitability. A broker must perform reasonable diligence to understand the nature of the recommended security or investment strategy involving a security or securities, as well as the potential risks and rewards, and determine whether the recommendation is suitable for at least some investors based on that understanding.
- Customer-specific suitability. A broker must have a reasonable basis to believe that a recommendation of a security or investment strategy involving a security or securities is suitable for the particular customer based on the customer’s investment profile.
- Quantitative suitability. A broker who has control over a customer account must have a reasonable basis to believe that a series of recommended securities transactions are not excessive.
In general, the Suitability Rule retains the core features of the previous National Association of Securities Dealers (“NASD”) suitability rule, NASD Rule 2310. However, the new Suitability Rule imposes broader obligations on firms regarding recommendations of investment strategies. Existing guidance and interpretations regarding suitability obligations continue to apply to the extent that they are not inconsistent with the new rule. The guidance provided by FINRA on the Suitability Rule includes the following:
- The suitability requirement that a broker make only those recommendations that are consistent with the customer’s best interests prohibits a broker from placing their interests ahead of the customer’s interests.
- The customer’s investment profile is critical to the assessment of the suitability of a particular recommendation.
- The recently passed Jumpstart Our Business Startups Act (the “JOBS Act”) does not affect the suitability obligations regarding private placements, including those private placements made in reliance on the JOBS Act’s elimination of the prohibition on general solicitation.
- The term “investment strategy” is to be interpreted broadly and would apply to cases where the strategy results in a securities transaction or even mentions a specific security.
- The extent to which a firm needs to document its suitability analysis depends on an assessment of the customer’s investment profile and the complexity of the recommended security or investment strategy.
- Although the reasonableness of a firm’s effort to perform “reasonable diligence” will depend on the facts and circumstances, asking a customer for the information ordinarily will suffice.
The institutional-customer exemption under NASD Rule 2130 and its definition of “institutional customer” has been replaced with the more common definition of “institutional account.” In addition, the new institutional-customer exemption focuses on whether (1) a broker has a reasonable basis to believe the institutional customer is capable of evaluating risks independently and (2) the institutional customer affirmatively indicates that it is exercising independent judgment (a new requirement).