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B-D Corner: Helpful Guidance for Supervision of Complex Products

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Many opine the financial crisis was hastened by the financial industry’s use of byzantine and risky securities. FINRA recently released more specific guidance concerning supervision by broker dealers over the sale of complex products:  Regulatory Notice 12-03, Complex Products: Heightened Supervision of Complex Products.The Notice provides helpful guidance for determining whether products require heightened supervision, as well as specific supervisory and compliance procedures firms should have in place. Characteristics of Complex Products FINRA notes that “any product with multiple features that affect its investment returns differently under various scenarios is potentially complex” and provides a non-exclusive list of characteristics to consider, including:
  • Asset-backed securities secured by a pool of collateral (i.e. mortgages or consumer credit card payments) whose risks are not readily apparent;
  • Any product with an embedded derivate component that is difficult to understand (i.e. structured notes with an embedded derivative); and
  • Investments tied to the performance of markets not readily understood (i.e. an exchange traded product with exposure to futures on the CBOE Volatility Index).
If there is any question firms are cautioned to “err on side of applying their procedures for enhanced oversight to the product.” Best Practices for Heightened Supervision Broker-dealers and their registered representatives (RRs) must perform a reasonable basis suitability determination before recommending complex securities, which provides "an understanding of the potential risks and rewards associated with the recommended security or strategy.” Further, firms should have formal written procedures to ensure that reps do not recommend a complex product before it has been thoroughly vetted.Broker-dealers also should ensure that their RRs are adequately knowledgeable about the complex products they offer. Ideally the RR “should be competent to develop a payoff diagram of a structured product to facilitate his or her analysis of its embedded features and recognize that such a product typically can be decomposed into bond and derivative parts.” The RR must also be fully knowledgeable on the risks associated with each part of the complex product. Importantly, “[r]egistered representatives should consider whether less complex or costly products could achieve the same objectives for their customers” as the contemplated complex product.For additional information on FINRA Regulatory Notice 12-03, please contact us at (619)298-2880.

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Jacko Law Group provides tailored legal services and effective strategies for success, delivering exemplary solutions to complex legal and regulatory challenges to ensure that both business efforts and compliance obligations are satisfied.

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Dharmi is an excellent securities lawyer who understands the law as it pertains to these cases. She is extremely proactive and represents her clients well. I highly recommend Jacko and Dharmi.
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Michelle and the team at Jacko Law Group have helped guide through a variety of critical circumstances as we ventured through the uncharted and unfamiliar territory of becoming and successfully operating as an RIA. I have particularly appreciated Michelle's personal involvement and genuine caring about us and our organization. She has been responsive and her counsel has been consistently on-point and helpful. She artfully guided us through our initial filing process and first SEC exam process - which went very well. Very grateful to Michelle and her team.
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Dharmi Mehta was extremely helpful when my business partner and I transitioned to a new RIA firm. She and her staff were all very professional. Her guidance during our transition was invaluable. I highly recommend Dharmi and Jacko Law Group.
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My mentor once told me that a good attorney is worth their weight in gold — and that couldn't be more true of Michelle and Amanda. Their expertise, professionalism, and responsiveness were top notch every step of the way. It's rare to find legal partners who are not only sharp and thorough, but also genuinely invested in your success. I’m grateful for their guidance and highly recommend them to anyone seeking trusted legal counsel.
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everistus etafo
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It is my great Privilege to share my Review of what Atty Dharmi Mehta of Jacko Law Group did for me and by extension for my family. From the first time complimentary conversation we had having spoken to several other Lawyers ,l knew she was the right person for the Job .Because of her background as a former RR ,she was professional,kind, Empathetic,listened and was focused on fighting for me. From a potential of been terminated with cause ,l was able to walk away with a clean U5 with a validation that l did nothing wrong except what was in the best Interest of my clients. I hope nobody ever has to go through what l have Experienced, but if you do ,you want Dharmi Mehta beside you .Rest assured your service Deserve 10 stars but this forum only allows 5. Me and my family are forever grateful and will make sure that any RR who needs an advocate will know about you . Everistus Etafo
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Karen Althaus
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I have worked with Jacko Law Group for 2 different business situations that necessitated an attorney. In both cases, the team was very thorough & competent. Their attention to our situation and the extra effort they put into our case(s) was very much appreciated. I would highly recommend Jacko Law Group!