FINRA Broker-Dealer Archives

The Broker-Dealer’s Guide to Due Diligence process

Posted on February 7, 2024February 7, 2024 by Oscar Jofre

In the realm of private capital markets, due diligence is not just a procedure but a pledge—a commitment to uphold integrity, trust, and compliance. This guide serves as a beacon for Chief Compliance Officers (CCOs) and their compliance teams, guiding them through the complexities of due diligence process in private company capital raises. From leveraging technology to navigating an ever-evolving regulatory landscape, to understanding the nuanced roles of FINRA Broker-Dealers, we delve into how these crucial processes safeguard the private capital markets, ensuring a secure and transparent investment environment for all parties involved.

Due Diligence by Chief Compliance Officers

Imagine a world where investments flow seamlessly, underpinned by an unshakeable trust between investors and companies raising capital. This is the reality that CCOs strive to create through meticulous process of due diligence on companies and investors. Through their diligent efforts, such as scrutinizing a company’s financial health, operational strategies, and leadership integrity, CCOs not only protect investors from unforeseen risks but also build a foundation of trust that is paramount for successful capital raises.

Empowering CCOs with Technology

The digital age has revolutionized due diligence process, providing CCOs with tools to gather and analyze vast amounts of data efficiently. Technologies tailored to regulations like RegCF, RegD, and RegA+ enable CCOs to customize and have still best practices in due diligence processes. Therefore, ensuring that each investigation meets specific regulatory standards. This not only streamlines compliance but also allows CCOs to allocate their resources more effectively, focusing on strategic decision-making rather than getting lost in a sea of paperwork. CCO’s are the backbone of the firm, and as such technology needs to be part of their overall strategy for the firm to be successful, tools such as Compliance Desk provide the necessary and regulatory requirements of making sure data is collected, tracked, and maintained for CCOs.

Navigating Challenges of due diligence process in a Dynamic Regulatory Environment

The landscape for FINRA Broker-Dealers is fraught with challenges, from navigating a complex web of regulations to ensuring that compliance teams are equipped with the necessary tools. The advent of technologies like the Compliance Desk represents a significant leap forward, enabling CCOs to maintain organized records in a FINRA-approved facility to meet Rule 17a-4 requirements. This capability is crucial for broker-dealers to manage their compliance efficiently, allowing them to focus on expanding their business while maintaining strict regulatory adherence.

The Critical Role of FINRA Broker-Dealers

FINRA Broker-Dealers are the guardians of the private capital markets, and their role extends beyond initial best practices on the due diligence process; they help to ensure the safety and integrity of transactions for investors, companies, and intermediaries alike. Once an offering goes live, they are responsible for continuous oversight, including KYC, AML, suitability, and investor verification. This dual focus on company and investor due diligence is essential for preventing bad actors from entering the market, thereby protecting the investment ecosystem.

7 Steps for Effective Due Diligence on Private Companies

For those aiming to enhance their due diligence processes or embarking on the journey to become a FINRA Broker-Dealer, consider the following steps:

Comprehensive Regulatory Understanding: Gain a deep understanding of the relevant regulations (RegCF, RegD, RegA+) and their implications for your due diligence process.
Robust Data Collection and Analysis: Leverage technology to efficiently collect and analyze company data, focusing on financials, management, and operational integrity.
Risk Assessment: Develop a framework for assessing and categorizing potential risks, including financial, legal, and operational risks.
Management and Operational Evaluation: Conduct thorough evaluations of the company’s management team and operational capabilities to ensure they have the necessary expertise and resources. Always do bad actor checks on the company and the principles of the company.
Legal Compliance Verification: Verify the company’s compliance with all applicable laws and regulations, including securities laws and industry-specific regulations.
Continuous Monitoring: Establish processes for ongoing monitoring of the company’s performance and compliance post-investment.
Record Keeping and Reporting: Implement systems for maintaining detailed records of your due diligence process, ensuring they meet FINRA’s Rule 17a-4 requirements for record-keeping.

Best practices on due diligence for broker-dealers

In the rapidly evolving landscape of private capital markets, the importance best practices on due diligence for broker-dealers cannot be overstated.

It is the bedrock upon which trust and compliance are built, safeguarding the interests of investors and ensuring the integrity of the market. For FINRA Broker-Dealers and their compliance teams, staying abreast of regulatory changes and leveraging technology are key to navigating this complex environment effectively.

So, by creating a comprehensive guide of due diligence best practices that align with current regulations and anticipate future shifts, firms can not only comply with today’s standards but also set a benchmark for excellence in compliance and investor protection. As we move forward, education and adaptability will remain crucial for all stakeholders in the private capital markets, ensuring that they can meet today’s challenges and seize tomorrow’s opportunities.

Raising capital for startups: 3 red flags for not being tricked

Posted on January 12, 2024January 12, 2024 by Scarlett Duarte

Can a startup pay a transaction-based fee for capital raising assistance? This is a very common question. For the most part, the answer is a clear “no,” but why is that?

The short answer is that—except under certain limited circumstances—it is illegal. Regulatory protections provide investors with the right to their money back with interest and attorney fees, and it may result in, among other things, the founders not only being held personally liable to investors but also getting listed on a bad-actor list.

Finding investors is one of the biggest challenges that companies face. This is especially true for startups because most founders don’t have an established network of investors ready to invest capital.

Often, founders who are seeking to expand their network of investors will run into someone who would be happy to make a few introductions … for a fee. RUN AWAY!!

Here are 3 Red Flags while raising capital for your company.

Red Flag #1: Transaction-based compensation

Most often, someone who wants a fee for helping to raise capital (often referred to as a “finder”) is not licensed to do so, and generally speaking, use of a finder who is not a licensed broker-dealer is a violation of federal and state securities laws. Below we summarize how to identify a broker-dealer and then look at the potential negative consequences of using an unlicensed broker-dealer.

What is an unlicensed broker-dealer?

The answer is simple: Just ask the finder, “Are you a registered FINRA Broker-Dealer?” The answer is either yes or no.

For decades, the SEC & FINRA have defined a four-factor test to determine when a “finder” is required to register as a broker-dealer. The SEC’s position is that these 4 factors will be analyzed in determining when someone is acting as a broker-dealer, with no one factor being dispositive:

Whether the person receives commissions or other transaction-based compensation;
Whether the person makes buy/sell recommendations and provides investment details;
Whether the person has a history of selling securities (regular activity); and
Whether the person takes an active role in negotiations between the investor and the issuer.

“What if a finder receives a percentage of the money raised through finder introductions, but does not make recommendations, does not have a history of selling securities, and does not take an active role in negotiations between the investor and the issuer?”

Despite its emphasis on four factors, the SEC has stated in several no-action letters that transaction-based compensation represents a hallmark of being a broker-dealer, even when the other three factors are absent. Consequently, an individual or company that receives a commission substantially increases the risk that the party receiving the commission will be considered a broker-dealer. For decades, the best advice has been that in view of the risks involved, issuers should typically not engage finders on a percentage-based compensation basis.

Red Flag #2: Reliance on No-Action Letters

On several occasions, we have come across finders who refer to a no-action letter issued by the SEC in 2014 as evidence they can receive a commission despite not being a licensed broker-dealer.

The problem with that position is that the letter has several conditions, including that the buyer of the securities being sold has, following the sale of the securities, (i) control of the company, and (ii) must actively operate the company.

Nearly all startup financings do not fit into this scenario, so the no-action letter does not apply.2

Finders will also often attempt to find (and share with the startup’s leaders) comfort by relying on the 1991 SEC No-Action Letter involving the singer Paul Anka. While often cited by finders, the SEC staff’s decision to not recommend enforcement against Mr. Anka—if, without registering as a broker-dealer, he provided the company a list of potential investors in exchange for a commission—is of limited relevance and utility.

The SEC staff noted its no-action decision was conditioned on several factors, including that Mr. Anka was not engaging in the following activities: soliciting the prospective investors, participating in any general solicitation, assisting in the preparation of sales materials, performing independent analysis, engaging in “due diligence,” assisting or providing financing, providing valuation or investment advice, and handling any funds or securities.

Red Flag #3: Liability for using an unlicensed broker-dealer in capital raise

What Possible Liability Is There for Using an Unlicensed Broker-Dealer to Raise Capital?

Using a finder will create liability under federal and state law. Agreements for the sale of securities made in violation of federal securities law may be held void.4 This would certainly apply to the agreement with the unregistered broker who attempts to collect a fee for assisting in the sale of the securities.

While the startup may feel that this is not such a bad thing, a violation of federal securities laws also will void (or make voidable) the agreement between the startup and investors under which the startup raised the funds. If the agreements are held void by a court, then all parties to those agreements would have a right of rescission that would last for the later of three years from the transaction or one year from the date the violation is discovered.

A right of rescission is simply a right to cancel the agreement and return each party to its original position, which means returning investments back to investors. In other words, the use of a finder who is not but should be a registered broker-dealer in effect gives the investors a multi-year redemption right.

Are There Other Potential Consequences of Engaging an Unlicensed Broker-Dealer to Raise Capital?
Yes, otherwise we would not have posed the question. Founders who engage unregistered broker-dealers to raise capital may:

SEC Enforcement Actions: Face enforcement actions from the SEC as an aider and abettor8;
State Regulatory Actions: Face enforcement actions from state securities regulators; and
Prohibition and Labeling: Be labeled a “bad actor” and prohibited from participating in or being involved with companies that do securities offerings made under commonly used securities exemptions.9

Additionally, the startup and its principles may be prohibited from using the updated JOBS Act regulations such as Rule 506, Regulation CF, and Regulation A+ securities offering, which is the most commonly relied-upon securities exemption for startups and emerging growth companies. And, just because the list goes on, the use of an unlicensed broker-dealer could impact the ability to close future rounds of financing because of the contingent liability associated with the initial violation, which is likely to come up in investor due diligence.

Who Does Due Diligence on Companies using RegA+?

Posted on February 27, 2023March 13, 2023 by Oscar Jofre

Due diligence is an essential part of the investment process. Especially following the passage of the JOBS Act in 2012, which expanded Regulation A+ (RegA+), companies now have additional opportunities to seek capital from investors. This has created a need for due diligence on these companies that is both thorough and efficient. In this blog post, we will discuss who does due diligence on companies using RegA+ and who does due diligence on companies using RegA+.

What Is Due Diligence?

The Securities Act of 1933, a result of the stock market crash years earlier, introduced due diligence as a common practice. The purpose of the act was to create transparency into the financial statements of companies and protect investors from fraud. While the SEC requires the information provided to be accurate, it does not make any guarantees of its accuracy. However, the Securities Act of 1933 for the first time allowed investors to make informed decisions regarding their investments.

In the context of raising capital through RegA+, due diligence means that the issuer has provided all of the necessary information to investors and securities regulators so that they comply with securities laws. This may include information like:

Funding: The issuer should provide a detailed plan of how the money raised through RegA+ will be used.
Products/Services: The issuer should provide a clear description of their products and services, as well as any potential advantages that they may have over the competition.
Business Plan: The issuer should provide a detailed and comprehensive business plan outlining their current and future projects, as well as realistic projections based on their financial reports.
Management Team: The issuer should disclose information about the company’s officers, founders, board members, and any previous experience in business that may be relevant to investors.

Issuers should also use a registered broker-dealer as an intermediary to comply with Regulation A+ (RegA+). By doing this, they will ensure that they are meeting their due diligence requirements.

Who Is Responsible for Doing Due Diligence on companies using RegA+?

When it comes to due diligence for companies using RegA+, typically, the issuer’s FINRA Broker-Dealer is responsible for conducting due diligence both on the potential investors and the company itself. The broker-dealer will be required to perform regulatory checks on investors such as KYC, AML, and investor suitability to ensure investors are appropriate for the company. Additionally, they will perform due diligence on the issuer so that they can be assured that the company is operating in a manner compliant with securities laws so that they do not present false information to investors. Failing to meet compliance standards can result in the issuer being left responsible for severe penalties, such as returning all money raised to investors.

However, both investors and issuers have a responsibility for due diligence as well. Investors should research the company thoroughly and make sure they understand all details surrounding the offering before investing their money. This includes reviewing all relevant documents, such as the offering circular, stock subscription agreements, and other related materials that give them a good understanding of the investment opportunity and its potential risks.

Issuers also contribute to due diligence as they must work with their FINRA Broker-Dealer to ensure that their offering is compliant with all laws and regulations. This includes verifying all information provided in the offering materials and making sure it meets regulatory requirements. The issuer must also disclose all information that could influence an investor’s decision to purchase the securities.

Due diligence is essential for both investors and issuers when it comes to investments under Regulation A+ (RegA+). Ensure that thorough due diligence is conducted ensures that the offering is conducted in a manner that aligns with the best interests of both investors and the issuer. Ultimately, due diligence is a key component when it comes to investments under Regulation A+ (RegA+) and should not be overlooked.

Tag: FINRA Broker-Dealer