Notice2024-04072
Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, To Amend FINRA Rule 2210 (Communications With the Public) To Permit Projections of Performance of Investment Strategies or Single Securities in Institutional Communications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 28, 2024
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 89 Issue 40 (Wednesday, February 28, 2024)</title>
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[Federal Register Volume 89, Number 40 (Wednesday, February 28, 2024)]
[Notices]
[Pages 14728-14731]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-04072]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-99588; File No. SR-FINRA-2023-016]
Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of Amendment No. 1 and Order
Instituting Proceedings To Determine Whether To Approve or Disapprove a
Proposed Rule Change, as Modified by Amendment No. 1, To Amend FINRA
Rule 2210 (Communications With the Public) To Permit Projections of
Performance of Investment Strategies or Single Securities in
Institutional Communications
February 22, 2024.
I. Introduction
On November 13, 2023, the Financial Industry Regulatory Authority,
Inc. (``FINRA'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change (SR-FINRA-2023-016) to amend
FINRA Rule 2210 (Communications with the Public).\3\ The proposed rule
change would allow a member firm to project the performance \4\ of, or
provide a targeted return \5\ with respect to, a security or asset
allocation or other investment strategy in an institutional
communication \6\ or a communication distributed solely to qualified
purchasers (``QPs'') as defined in the Investment Company Act of 1940
(``Investment Company Act'') \7\ that promotes or recommends specified
non-public offerings, subject to conditions to help ensure these
projections are carefully derived from a sound basis.\8\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Exchange Act Release No. 98977 (Nov. 17, 2023), 88 FR
82482 (Nov. 24, 2023) (File No. SR-FINRA-2023-016) (``Notice''),
<a href="https://www.govinfo.gov/content/pkg/FR-2023-11-24/pdf/2023-25881.pdf">https://www.govinfo.gov/content/pkg/FR-2023-11-24/pdf/2023-25881.pdf</a>.
\4\ FINRA stated that ``projections of performance reflect an
estimate of the future performance of an investment or investment
strategy, which is often based on historical data and assumptions.''
Notice at 82482 n.3 (citing Investment Adviser Marketing, Investment
Advisers Act Release No. 5653 (Dec. 22, 2020), 86 FR 13024, 13081
n.699 (Mar. 5, 2021) and accompanying text).
\5\ FINRA stated that ``targeted returns reflect the
aspirational performance goals for an investment or investment
strategy.'' Notice at 82482 n.3 (citing Investment Adviser
Marketing, Investment Advisers Act Release No. 5653 (Dec. 22, 2020),
86 FR 13024, 13081 n.699 (Mar. 5, 2021) and accompanying text).
\6\ An ``institutional communication'' means ``any written
(including electronic) communication that is distributed or made
available only to institutional investors, but does not include a
member's internal communications.'' Rule 2210(a)(3). An
``institutional investor'' means any: ``(A) person described in Rule
4512(c), regardless of whether the person has an account with a
member; (B) governmental entity or subdivision thereof; (C) employee
benefit plan, or multiple employee benefit plans offered to
employees of the same employer, that meet the requirements of
Section 403(b) or Section 457 of the Internal Revenue Code and in
the aggregate have at least 100 participants, but does not include
any participant of such plans; (D) qualified plan, as defined in
Section 3(a)(12)(C) of the Exchange Act, or multiple qualified plans
offered to employees of the same employer, that in the aggregate
have at least 100 participants, but does not include any participant
of such plans; (E) member or registered person of such a member; and
(F) person acting solely on behalf of any such institutional
investor.'' FINRA Rule 2210(a)(4). FINRA Rule 4512(c) states that
for purposes of Rule 4512 (Customer Account Information), the term
``institutional account'' means: a bank, savings and loan
association, insurance company or registered investment company; an
investment adviser registered either with the SEC under Section 203
of the Investment Advisers Act or with a state securities
commission; or any other person (whether a natural person,
corporation, partnership, trust or otherwise) with total assets of
at least $50 million.
\7\ Section 2(a)(51)(A) of the Investment Company Act (15 U.S.C.
80a-2(a)(51)(A)) defines the term ``qualified purchaser'' as ``(i)
any natural person (including any person who holds a joint,
community property, or other similar shared ownership interest in an
issuer that is excepted under section 80a-3(c)(7) of [the Investment
Company Act] with that person's qualified purchaser spouse) who owns
not less than $5,000,000 in investments, as defined by the
Commission; (ii) any company that owns not less than $5,000,000 in
investments and that is owned directly or indirectly by or for 2 or
more natural persons who are related as siblings or spouse
(including former spouses), or direct lineal descendants by birth or
adoption, spouses of such persons, the estates of such persons, or
foundations, charitable organizations, or trusts established by or
for the benefit of such persons; (iii) any trust that is not covered
by clause (ii) and that was not formed for the specific purpose of
acquiring the securities offered, as to which the trustee or other
person authorized to make decisions with respect to the trust, and
each settlor or other person who has contributed assets to the
trust, is a person described in clause (i), (ii), or (iv); or (iv)
any person, acting for its own account or the accounts of other
qualified purchasers, who in the aggregate owns and invests on a
discretionary basis, not less than $25,000,000 in investments.'' 15
U.S.C. 80a-2(a)(51)(A).
\8\ See Notice.
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The proposed rule change was published for public comment in the
Federal Register on November 24, 2023.\9\ The public comment period
closed on December 15, 2023. The Commission received comment letters in
response to the Notice.\10\ On January 5, 2024, FINRA consented to an
extension of the time period in which the Commission must approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to approve or disapprove the proposed
rule change to February 22, 2024.\11\ On February 22, 2024, FINRA
responded to the comment letters received in response to the Notice and
filed an amendment to modify the proposed rule change (``Amendment No.
1'').\12\
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\9\ Id.
\10\ The comment letters are available at <a href="https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016.htm">https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016.htm</a>.
\11\ See letter from Meredith Cordisco, Associate General
Counsel, Office of General Counsel, FINRA, to Craig Slivka, Division
of Trading and Markets, Commission, dated January 5, 2024, <a href="https://www.finra.org/sites/default/files/2024-01/SR-FINRA-2023-016-extension1.pdf">https://www.finra.org/sites/default/files/2024-01/SR-FINRA-2023-016-extension1.pdf</a>.
\12\ See letter from Meredith Cordisco, Associate General
Counsel, Office of General Counsel, FINRA, to Vanessa Countryman,
Secretary, Commission, dated February 22, 2024, <a href="https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016.htm">https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016.htm</a> (``FINRA Response
Letter''); see also Amendment No. 1 <a href="https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016-433139-1075042.pdf">https://www.sec.gov/comments/sr-finra-2023-016/srfinra2023016-433139-1075042.pdf</a>.
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The Commission is publishing this order pursuant to Section
19(b)(2)(B) of the Exchange Act \13\ to solicit comments on the
proposed rule change, as modified by Amendment No. 1, and to institute
proceedings to determine whether to approve or disapprove the proposed
rule change, as modified by Amendment No. 1 (hereinafter referred to as
the ``proposed rule change'' unless otherwise specified).
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\13\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change, as Modified by Amendment
No. 1
A. Background
1. FINRA Rule 2210 (Communications With the Public)
FINRA Rule 2210 imposes obligations related to, among other things,
the approval, review, recordkeeping, filing, and content of member firm
communications with the public.\14\ Specifically, Rule 2210(d)(1)
imposes six general standards for the content of a member firm's
communications with the public.\15\ Among these six standards is a
general prohibition on predicting or projecting performance, implying
that past performance will recur, or making any exaggerated or
unwarranted claim, opinion, or forecast.\16\ However, this general
prohibition does not apply to three types of communications.\17\ First,
a member firm may provide ``a hypothetical illustration of mathematical
principles, provided that it does not predict or project the
performance of an investment or investment strategy.'' \18\ Second, a
member firm may publish ``[a]n investment analysis tool, or a written
report produced by an investment analysis tool, that meets the
[[Page 14729]]
requirements of FINRA Rule 2214 (Requirements for the Use of Investment
Analysis Tools).'' \19\ Third, a member may communicate ``[a] price
target contained in a research report on debt or equity securities,
provided that the price target has a reasonable basis, the report
discloses the valuation methods used to determine the price target, and
the price target is accompanied by disclosure concerning the risks that
may impede achievement of the price target.'' \20\ Unless one of these
three exceptions applies, no member firm may communicate projected
performance or targeted return information to the public.\21\
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\14\ See FINRA Rule 2210.
\15\ FINRA Rule 2210(d)(1).
\16\ FINRA Rule 2210(d)(1)(F).
\17\ FINRA Rule 2210(d)(1)(F)(i)-(iii).
\18\ FINRA Rule 2210(d)(1)(F)(i).
\19\ FINRA Rule 2210(d)(1)(F)(ii). An ``investment analysis
tool'' is ``an interactive technological tool that produces
simulations and statistical analyses that present the likelihood of
various investment outcomes if certain investments are made or
certain investment strategies or styles are undertaken, thereby
serving as an additional resource to investors in the evaluation of
the potential risks and returns of investment choices.'' FINRA Rule
2214(b).
\20\ FINRA Rule 2210(d)(1)(F)(iii).
\21\ See FINRA Rule 2210(d)(1)(F).
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B. The Proposed Rule Change, as Modified by Amendment No. 1
The proposed rule change would create a fourth exception to the
general prohibition on the communication of projected performance or
targeted return information, subject to conditions designed to protect
investors.\22\ Each condition of the proposed rule change is discussed
in turn.
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\22\ Proposed Rule 2210(d)(1)(F)(iv); see Notice at 82483.
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1. Institutional and QP Private Placement Communications
As originally proposed, the proposed rule change would permit the
use of projected performance or targeted returns with respect to a
security or asset allocation or other investment strategy only in (1)
an institutional communication or (2) a communication that is
distributed or made available only to QPs and that promotes or
recommends either a ``member private offering'' \23\ that is exempt
from the requirements of Rule 5122 pursuant to Rule 5122(c)(1)(B),\24\
or a private placement that is exempt from the requirements of Rule
5123 pursuant to Rule 5123(b)(1)(B).\25\ Amendment No. 1 modified
proposed Rule 2210(d)(1)(F)(iv)(a) to also permit member firms to
include projections of performance and targeted returns in
communications that are distributed or made available to persons
meeting the definition of knowledgeable employee under Investment
Company Act Rule 3c-5 \26\ and that promote or recommend a private
placement that is exempt from the requirements of Rule 5123 pursuant to
Rule 5123(b)(1)(H).
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\23\ A ``member private offering'' means ``a private placement
of unregistered securities issued by a member or a control entity.''
Rule 5122(a)(1).
\24\ FINRA Rule 5122 (Private Placements of Securities Issued by
Members) governs, among other things, the disclosure and filing
requirements applicable to members that participate in a private
placement of unregistered securities issued by a member or a control
entity (``member private offerings''). Rule 5122(c)(1)(B) states
that member private offerings sold solely to qualified institutional
buyers, as defined in Rule 144a of the Securities Act of 1933
(``Securities Act''), are exempt from the requirements of Rule 5122.
\25\ FINRA Rule 5123 (Private Placement of Securities) governs,
among other things, the filing requirements applicable to members
that sell a security in a non-public offering in reliance on an
available exemption from registration under the Securities Act
(``private placement''). Rule 5123(b)(1)(B) exempts from the
requirements of this Rule 5213 offerings sold solely to qualified
purchasers, as defined in Section 2(a)(51)(A) of the Investment
Company Act. See supra note 7.
\26\ For purposes of the proposed rule change, the term
``knowledgeable employee'' generally means any natural person who is
an executive officer, director, trustee, general partner, advisory
board member, or person serving in similar capacity of a private
fund that relies on Investment Company Act section 3(c)(7) to avoid
registration under the Investment Company Act or certain of its
affiliates, and other employees, under certain conditions, who
participate in the investment activities of the fund or certain of
the fund's affiliates. See Investment Company Act Rule 3c-5 (17 CFR
270.3c-5(a)(4)). The ``knowledgeable employee'' definition in Rule
3c-5 also refers to specified officers, directors, and employees of
private funds relying on section 3(c)(1) of the Investment Company
Act. However, because Rules 5122 and 5123 do not exempt section
3(c)(1) funds that are sold to natural person accredited investors,
a private offering sold to a knowledgeable employee of a 3(c)(1)
fund generally would not be eligible for the exemptions from those
rules. See FINRA Response Letter at note 30.
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FINRA stated that the proposed rule change, as modified by
Amendment No. 1, would limit the scope of the new exception to
specified scenarios involving institutional investors, QPs, or
knowledgeable employees who are more likely to understand the risks and
limitations of projections or targeted returns.\27\ Institutional
investors, QPs, and knowledgeable employees as described above are
referred to herein collectively as ``Projection-Eligible Investors.''
\28\
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\27\ See Notice at 82483; see also FINRA Response Letter at 6.
\28\ Proposed Rule 2210(d)(1)(F)(iv)(a).
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2. Written Policies and Procedures
The proposed rule change would require any member firm that
communicates projected performance or targeted returns to Projection-
Eligible Investors to ``adopt[ ] and implement[ ] written policies and
procedures reasonably designed to ensure that the communication is
relevant to the likely financial situation and investment objectives of
the investor receiving the communication and to ensure compliance with
all applicable requirements and obligations.'' \29\ FINRA stated that
``the mere fact that an investor would be interested in high returns''
would not--standing alone--mean that the projected performance or
targeted return information ``is relevant to the likely financial
situation and investment objectives.'' \30\ FINRA also stated that each
member firm should consider its ``audience'' because projected
performance or targeted return information ``should only be distributed
where the member reasonably believes the investors have access to
resources to independently analyze this information or have the
financial expertise to understand the risk and limitations of such
presentations.'' \31\
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\29\ Proposed Rule 2210(d)(1)(F)(iv)(b).
\30\ Notice at 82484 n.22.
\31\ Id. at 82484.
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3. Reasonable Basis Requirement
The proposed rule change would require any member firm that
communicates projected performance or targeted returns to Projection-
Eligible Investors to have ``a reasonable basis for the criteria used
and assumptions made in calculating the projected performance or
targeted return, and retain[ ] written records supporting the basis for
such criteria and assumptions.'' \32\ Because ``FINRA believes that it
is important for members to consider appropriate factors in forming a
reasonable basis for the criteria used and assumptions made in
calculating projected performance or targeted return,'' \33\ the
proposed rule change would include a non-exhaustive list of factors
that members should consider when meeting this obligation.\34\ These
factors include, but are not limited to: (1) global, regional, and
country macroeconomic conditions; (2) documented fact-based assumptions
concerning the future performance of capital markets; (3) in the case
of a single security issued by an operating company, the issuing
company's operating and financial history; (4) the industry's and
sector's current market conditions and the state of the business cycle;
(5) if available, reliable multi-factor financial models based on
macroeconomic, fundamental, quantitative, or statistical inputs, taking
into account the assumptions and potential limitations of such models,
including the source and time horizon of data inputs; (6) the quality
of the assets included in a securitization; (7)
[[Page 14730]]
the appropriateness of selected peer-group comparisons; (8) the
reliability of research sources; (9) the historical performance and
performance volatility of the same or similar asset classes; (10) for
managed accounts or funds, the past performance of other accounts or
funds managed by the same investment adviser or sub-adviser, provided
such accounts or funds had substantially similar investment objectives,
policies, and strategies as the account or fund for which the projected
performance or targeted returns are shown; (11) for fixed income
investments and holdings, the average weighted duration and maturity;
(12) the impact of fees, costs, and taxes; and (13) expected
contribution and withdrawal rates by investors.\35\ The proposed rule
change also would prohibit members from basing projected performance or
a targeted return upon (1) hypothetical, back-tested performance or (2)
the prior performance of a portfolio or model that was created solely
for the purpose of establishing a track record.\36\
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\32\ Proposed Rule 2210(d)(1)(F)(iv)(c).
\33\ Notice at 82484.
\34\ See Proposed Supplementary Material 2210.01(a) (stating
that no one factor is determinative).
\35\ Proposed Supplementary Material 2210.01(a).
\36\ Proposed Supplementary Material 2210.01(b).
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4. Disclosure Requirements
The proposed rule change would impose three disclosure-related
requirements. First, any communication of projected performance or
targeted return information to a Projection-Eligible Investor must
``prominently disclose[ ] that the projected performance or targeted
return is hypothetical in nature and that there is no guarantee that
the projected or targeted performance will be achieved.'' \37\
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\37\ Proposed Rule 2210(d)(1)(F)(iv)(d).
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Second, the proposed rule change would require any member firm
communicating projected performance or targeted return information to a
Projection-Eligible Investor to ``provide[ ] sufficient information to
enable the investor to understand . . . the criteria used and
assumptions made in calculating the projected performance or targeted
return, including whether the projected performance or targeted return
is net of anticipated fees and expenses.'' \38\ FINRA explained that
this requirement ``is not intended to prescribe any particular
methodology or calculation of such performance,'' and it does not
``expect a firm to disclose proprietary or confidential information
regarding the firm's methodology and criteria.'' \39\ But FINRA
emphasized that firms ``would be expected . . . to provide a general
description of the methodology used sufficient to enable the investors
to understand the basis of the methodology, as well the assumptions
underlying the projection or targeted return.'' \40\ Absent these
required disclosures, FINRA explained, ``it is more likely that a
projection or targeted return would mislead a potential investor.''
\41\
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\38\ Proposed Rule 2210(d)(1)(F)(iv)(e).
\39\ Notice at 82485.
\40\ Id.
\41\ Id.
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Third, the proposed rule change would require any member firm
communicating projected performance or targeted return information to a
Projection-Eligible Investor to ``provide[ ] sufficient information to
enable the investor to understand . . . the risks and limitations of
using the projected performance or targeted return in making investment
decisions, including reasons why the projected performance or targeted
return might differ from actual performance.'' \42\ FINRA explained
that this requirement ``is intended to help ensure that such investors
do not unreasonably rely on a projection or targeted return given its
uncertainty and risks.'' \43\
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\42\ Proposed Rule 2210(d)(1)(F)(iv)(e).
\43\ Notice at 82485.
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III. Proceedings To Determine Whether To Approve or Disapprove File No.
SR-FINRA-2023-016 and Grounds for Disapproval Under Consideration
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Exchange Act to determine whether the proposed rule
change, as modified by Amendment No. 1, should be approved or
disapproved.\44\ Institution of proceedings is appropriate at this time
in view of the legal and policy issues raised by the proposed rule
change, as modified by Amendment No. 1. Institution of proceedings does
not indicate that the Commission has reached any conclusions with
respect to the proposed rule change, as modified by Amendment No. 1.
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\44\ 15 U.S.C. 78s(b)(2)(B).
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Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission
is providing notice of the grounds for disapproval under
consideration.\45\ The Commission is instituting proceedings to allow
for additional analysis and input concerning whether the proposed rule
change, as modified by Amendment No. 1, is consistent with the Exchange
Act and the rules thereunder.
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\45\ Id.
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IV. Request for Written Comments
The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposed rule change, as modified by Amendment No. 1. In
particular, the Commission invites the written views of interested
persons concerning whether the proposed rule change, as modified by
Amendment No. 1, is consistent with the Exchange Act and the rules
thereunder.
Although there do not appear to be any issues relevant to approval
or disapproval that would be facilitated by an oral presentation of
views, data, and arguments, the Commission will consider, pursuant to
Rule 19b-4, any request for an opportunity to make an oral
presentation.\46\
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\46\ Section 19(b)(2) of the Exchange Act, as amended by the
Securities Acts Amendments of 1975, Public Law 94-29, 89 Stat. 97
(1975), grants the Commission flexibility to determine what type of
proceeding--either oral or notice and opportunity for written
comments--is appropriate for consideration of a particular proposal
by a self-regulatory organization. See Securities Acts Amendments of
1975, Report of the Senate Committee on Banking, Housing and Urban
Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess.
30 (1975).
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Interested persons are invited to submit written data, views, and
arguments regarding whether the proposed rule change, as modified by
Amendment No. 1, should be approved or disapproved by March 20, 2024.
Any person who wishes to file a rebuttal to any other person's
submission must file that rebuttal by April 3, 2024.
Comments may be submitted by any of the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#afdddac3ca82ccc0c2c2cac1dbdcefdccacc81c8c0d9"><span class="__cf_email__" data-cfemail="6c1e190009410f0301010902181f2c1f090f420b031a">[email protected]</span></a>. Please include
file number SR-FINRA-2023-016 on the subject line.
Paper Comments:
<bullet> Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-FINRA-2023-016. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change, as
modified by Amendment No.
[[Page 14731]]
1, that are filed with the Commission, and all written communications
relating to the proposed rule change, as modified by Amendment No. 1,
between the Commission and any person, other than those that may be
withheld from the public in accordance with the provisions of 5 U.S.C.
552, will be available for website viewing and printing in the
Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10 a.m. and 3
p.m. Copies of such filing also will be available for inspection and
copying at the principal office of FINRA. Do not include personal
identifiable information in submissions; you should submit only
information that you wish to make available publicly. We may redact in
part or withhold entirely from publication submitted material that is
obscene or subject to copyright protection. All submissions should
refer to file number SR-FINRA-2023-016 and should be submitted on or
before March 20, 2024. If comments are received, any rebuttal comments
should be submitted on or before April 3, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\47\
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\47\ 17 CFR 200.30-3(a)(12); 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2024-04072 Filed 2-27-24; 8:45 am]
BILLING CODE 8011-01-P
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