The Securities and Exchange Commission on Tuesday approved a Financial Industry Regulatory Authority proposal that would prohibit brokers from paying off customers in exchange for an uncontested expungement hearing.
The proposal is designed to stem concerns from regulators, lawmakers and plaintiffs’ attorneys that brokers and firms can too easily buy a clean regulatory record.
Despite the new rule and other actions Finra has taken to tighten up the process for expunging information from disciplinary records, the SEC said it is still concerned about “the high number of cases” where complaints are erased and said it wants Finra to consider further restrictions.
The latest rule change expressly prohibits a broker-dealer or registered representative from compensating customers in return for the customer’s support for, or agreement not to oppose, a request for expungement.
At issue are expungement requests heard by Finra arbitrators after a case is settled. Customers rarely oppose expungement requests.
Finra’s rule “should help assure that accurate and complete customer dispute information remains available to the investing public, regulators, and broker-dealers,” the SEC said in its approval order. “Although the proposed rule change is a constructive step … the Commission notes the high number of cases where arbitrators grant brokers’ expungement requests,” the SEC added. “The Commission encourages Finra to conduct a comprehensive review of its expungement rules and procedures to determine whether additional rulemaking is necessary.”
The SEC’s order cited two studies by the Public Investors Arbitration Bar Association, a group that represents plaintiffs’ attorneys. PIABA found that from 2007 through mid-May 2009, expungement was granted in 89 percent of settled cases where expungement was sought, and in 97 percent of such cases from mid-May 2009 through 2011.
Finra and industry attorneys have in the past argued that recent increases in expungement requests are due to changes in reporting rules that increased the number of customer claims reported against brokers, and that expungements occur in only a small fraction of customer claims overall.
The Securities Industry and Financial Markets Association supported the rule change, said Kevin Carroll, associate general counsel at the Wall Street trade group. But “it’s somewhat silly to suggest that the number of expungements is too high or too low,” Carroll said. Expungements “should be granted if one of the criteria in [Finra expungement rules] are met.”
Finra will announce the effective date of the new rule in a regulatory notice to be issued within two months.