Advisors facing a disciplinary action might want to consider fighting, rather than settling, the matter, according to a study by law firm Sutherland Asbill & Brennan.
The study analyzed 90 broker-dealers and investment advisors who contested actions brought against them by either FINRA or the SEC from April 2012 through September 2013. Almost half of them (46.7%) had charges dismissed or sanctions lowered when they chose to present their cases before an SEC administrative law judge or a FINRA hearing panel, the study found.
Respondents and defendants fear that the house that the regulators built gives the SEC and FINRA a home-field advantage. However, our studies have shown that it often pays for firms and representatives to litigate, rather than to settle, Brian Rubin, a partner at Sutherland and one of the co-authors of the study, said in a statement.
Broker-dealer firms and registered reps hit with a FINRA action can either settle or go before a hearing panel composed of two current or former industry members and a FINRA hearing officer, according to FINRAs website. If unhappy with the hearing panels decision, the firm or rep has the right to appeal the decision to FINRAs National Adjudicatory Council. If that decision isnt to their liking, they can appeal the action to the SEC and then to a federal court.
More than half of the respondents who faced monetary sanctions (52.9%) or suspensions (55.6%) had the sanctions lowered or the suspensions shortened or dropped, according to the study. And they convinced their hearing panels that FINRA had failed to prove 27 of the 167 charges brought against them, or 16.2%.
Broker-dealers and registered reps had less success if they appealed a hearing panel decision to FINRAs National Adjudicatory Council. More than half (53.3%) got hit with higher monetary sanctions and 25% received longer suspensions. Respondents seeking more lenient suspensions werent likely to get relief as most (56.3%) wound up with the same suspension they were handed by the hearing panel.
Chances of success got even slimmer as respondents went further up the chain to the SEC and the U.S. Court of Appeals. None of the seven respondents who appealed a decision by the National Adjudicatory Council to the SEC had any success. And only one of the three respondents who appealed an SEC opinion to a court of appeals found it worthwhile in that the registered reps bar was remanded to the SEC for reconsideration. In the other two cases, the courts of appeals affirmed the SECs decision.
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