FINRA Funding Portal Rules and Related Forms
The SEC approved FINRA’s proposed Funding Portal Rules and related forms for SEC-registered funding portals that become FINRA members pursuant to the crowdfunding provisions of Title III of the Jumpstart Our Business Startups (JOBS) Act and the SEC’s Regulation Crowdfunding. FINRA’s Funding Portal Rules became effective on January 29, 2016. Regulatory Notice 16-06 provides a brief overview of the new Funding Portal Rules and provides information for prospective funding portals that plan to apply for FINRA membership.
• FINRA Regulatory Notice 16-06 (January 2016): SEC Approval of FINRA Funding Portal Rules and Related Forms
FINRA Topic Page: Funding Portals
Exemptions to Facilitate Intrastate and Regional Securities Offerings.
The SEC adopted amendments to Rule 147 under the Securities Act of 1933, which provides a safe harbor for compliance with the Section 3(a)(11) exemption from registration for intrastate securities offerings. The SEC also established an intrastate offering exemption under the Securities Act, designated Rule 147A, which is similar to amended Rule 147, but has no restriction on offers and allows issuers to be incorporated or organized outside of the state in which the intrastate offering is conducted provided certain conditions are met. Rules 147 and 147A are designed to facilitate capital formation, including through offerings relying upon intrastate crowdfunding provisions under state securities laws, while maintaining appropriate investor protections and providing state securities regulators with the flexibility to add additional investor protections they deem appropriate for offerings within their state. Rule 504 of Regulation D under the Securities Act was also amended to facilitate issuers’ capital raising efforts and provide additional investor protections. Amended Rule 504 increases the aggregate amount of securities that may be offered and sold in any 12-month period from $1 million to $5 million and disqualifies certain bad actors from participation in Rule 504 offerings. In light of amended Rule 504, the SEC repealed Rule 505.
Capital Acquisition Broker (CAB) Rules
The SEC approved CAB Rule 203 (Engaging in Distribution and Solicitation Activities with Government Entities) and CAB Rule 458 (Books and Records Requirements for Government Distribution and Solicitation Activities) on December 6, 2017. These rules apply established “pay-to-play” and related recordkeeping rules to the activities of member firms that have elected to be governed by the CAB Rules. The rules will allow CABs to engage in distribution or solicitation activities for compensation with government entities on behalf of registered investment advisers. The rules became effective on December 6, 2017.
• FINRA Regulatory Notice 17-37 (November 6, 2017): SEC Approves “Pay-to-Play” and Related Rules for Capital Acquisition Brokers
The SEC approved FINRA’s rule set for firms that meet the definition of “capital acquisition broker” (CAB) and that elect to be governed under this rule set. CABs are firms that engage in a limited range of activities, essentially advising companies and private equity funds on capital raising and corporate restructuring, and acting as placement agents for sales of unregistered securities to institutional investors under limited conditions. Firms that elect to be governed under the CAB rule set are not permitted, among other things, to carry or maintain customer accounts, handle customers’ funds or securities, accept customers’ trading orders, or engage in proprietary trading or market-making.
The CAB rules became effective on April 14, 2017. In order to provide new CAB applicants with lead time to apply for FINRA membership and obtain the necessary qualifications and registrations, CAB Rules 101-125 became effective on January 3, 2017. FINRA began accepting applications for firms that are not broker-dealers but wish to register as CABs, for existing member firms requesting to elect CAB status, and for CAB associated person registration and qualification, on January 3, 2017.
• FINRA Regulatory Notice 16-37 (October 2016): SEC Approves FINRA’s Capital Acquisition Broker Rules
FINRA Topic Page: Private Placements
Regulation A Offerings
FINRA issued guidance regarding the FINRA filing requirements and review procedures that apply to firms that participate in Regulation A+ offerings. Specifically, FINRA’s Corporate Financing Rules require firms that participate in Regulation A+ offerings to file with FINRA information specified in the rules. FINRA’s Communications with the Public Rule and its Suitability Rule also apply to a firm’s participation in these offerings. FINRA also reminds firms that communications with the public concerning a Regulation A+ offering of Direct Participation Program securities must be filed with FINRA.
• FINRA Regulatory Notice 15-32 (September 2015): FINRA Filing Requirements and Review of Regulation A Offerings
FINRA Topic Page: Public Offerings
FINRA Rule 3110 (Supervision) includes a provision to help firms comply with their obligation under Section 15(g) of the Securities Exchange Act of 1934 to have policies and procedures in place reasonably designed to prevent potential insider trading. Rule 3110(d) requires that firms include in their supervisory procedures a process for reviewing securities transactions in certain types of accounts that is reasonably designed to identify trades that may violate insider trading prohibitions. When implementing these policies and procedures, firms may take a risk-based approach to monitoring transactions that takes into account their specific business models, and firms are encouraged to tailor their policies and procedures to their specific business models.
• FINRA Regulatory Notice 14-10 (March 2014): SEC Approves New Supervision Rules