FINRA Releases New Guidance on Credit for Extraordinary Cooperation

WASHINGTON—FINRA today announced that it has released new guidance regarding credit for extraordinary cooperation in investigations. Regulatory Notice 19-23 supplements prior FINRA guidance, providing additional information about “extraordinary cooperation” respondents can provide to substantially assist FINRA in meeting its goals of investor protection and market integrity. To recognize and incentivize firms and individuals to take proactive and voluntary steps beyond those required under FINRA rules, FINRA Enforcement credits extraordinary cooperation so that the outcome of the matter is materially different than it would have been absent the respondent’s extraordinary conduct. The Notice also restates and supplements prior guidance.

FINRA has previously recognized extraordinary cooperation by respondents when making its enforcement determinations, and issued guidance in 2008 noting the types of extraordinary cooperation by a firm or individual that could result in credit. The types of extraordinary cooperation were categorized as follows: (1) self-reporting before regulators are aware of the issue; (2) extraordinary steps to correct deficient procedures and systems; (3) extraordinary remediation to customers; or (4) providing substantial assistance to FINRA’s investigation.

Subsequent changes to FINRA’s rules may have created uncertainty around the continued impact that self-reporting may have on a potential respondent’s ability to receive credit for extraordinary cooperation. In addition, other FINRA rules and policies—such as FINRA Rule 8210 and FINRA’s Sanction Guidelines—require certain levels of cooperation in every case. FINRA is issuing this Notice to provide further clarity on the differences between required cooperation and extraordinary efforts, and in response to comments from the industry requesting further transparency. As it has done in the past, FINRA will continue to look to the factors set forth in both the Sanction Guidelines and Regulatory Notice 08-70 when determining whether credit will be given for extraordinary cooperation. Those factors include, among others, the timeliness and quality of a potential respondent’s corrective measures and other cooperative steps aimed at broadly and quickly remediating harm.

When FINRA determines that credit should be given for extraordinary cooperation, that credit may take many forms. For example, where a problem has been fully remediated, FINRA may conclude that no enforcement action is warranted and close an investigation with no further action or with a Cautionary Action Letter. In other cases, FINRA might determine that an enforcement action is appropriate to remedy or prevent harm, but will provide credit by reducing the sanctions imposed. When credit is given in the form of a reduced fine, the reduction normally will be substantial; in appropriate cases, FINRA may also consider imposing formal discipline without any fine.

“In response to comments from member firms requesting further transparency, FINRA is issuing this Notice to provide additional information about what firms and individuals can do to earn credit for extraordinary cooperation, and what kinds of credit are available,” said Susan Schroeder, Executive Vice President, Department of Enforcement. “We grant credit for extraordinary cooperation to incentivize firms and associated persons to voluntarily and proactively assist FINRA. Respondents who go beyond their regulatory obligations and take extraordinary steps to quickly identify and remediate misconduct materially aid FINRA in meeting its objectives of investor protection and market integrity.”

About FINRA

FINRA is a not-for-profit organization dedicated to investor protection and market integrity. It regulates one critical part of the securities industry – brokerage firms doing business with the public in the United States. FINRA, overseen by the SEC, writes rules, examines for and enforces compliance with FINRA rules and federal securities laws, registers broker-dealer personnel and offers them education and training, and informs the investing public. In addition, FINRA provides surveillance and other regulatory services for equities and options markets, as well as trade reporting and other industry utilities. FINRA also administers a dispute resolution forum for investors and brokerage firms and their registered employees. For more information, visit www.finra.org.