The Financial Industry Regulatory Authority (FINRA) has published a revised debt research conflicts of interest proposal (the Revised Proposal) in Regulatory Notice 12-09 (the Notice).1 The Revised Proposal reflects comments submitted in response to a March 2011 regulatory notice in which FINRA sought comment on a concept proposal to identify and manage conflicts involving the preparation and distribution of debt research reports (the Concept Proposal).2 The Revised Proposal largely adopts the Concept Proposal's general prohibitions, restrictions and disclosure requirements, and maintains the Concept Proposal's two-tiered structural approach that generally would apply FINRA's regulatory scheme for equity research3 to the debt markets, but would exempt debt research provided solely to certain institutional investors from certain of those rules.
Comments on the Revised Proposal must be provided to FINRA prior to the expiration of the comment period on April 2, 2012.
Background
At present, FINRA's conflict of interest rules governing research analysts and research reports are limited to "equity securities," as that term is defined in the Securities Exchange Act of 1934, as amended. In 2010, FINRA indicated that it was considering a proposal to further regulate the issuance of debt research through the adoption of new requirements intended to address potential conflicts of interest between debt research analysts and investment banking personnel. FINRA ultimately acted by releasing the Concept Proposal, which was prompted in part by the FINRA staff's perception of "increased retail investment risk in complex debt securities." FINRA cited as evidence for this increased retail investment risk the "allegations of misconduct in the sale of auction rate securities," which, in their view, "provided a very concrete example that potential conflicts of interest in the publication and distribution of debt research can exist just as they do for equity research."
The Concept Proposal took the equity research rules as its starting point, making certain modifications in an attempt to address the differences between the debt and equity markets. The Concept Proposal thus extended the majority of the rules applicable to equity research to debt research provided to retail investors, but allowed that debt research provided solely to institutional investors would require only a "more general 'health warning' in lieu of many of the structural safeguards and disclosures applicable to retail debt research" unless a particular institutional investor affirmatively elected to receive the full protections accorded to retail investors. This "opt out" approach was warranted, in FINRA's view, because "unlike in the equity market, institutional investors trading in debt securities tend to interact with broker-dealers in a manner more closely resembling that of a counterparty than a customer" and generally have a sufficient degree of sophistication to recognize and evaluate the potential conflicts that may exist between a broker-dealer's recommendations and its trading interests.
The Revised Proposal
The Revised Proposal largely follows the approach taken in the Concept Proposal, including the structural bifurcation between the requirements applicable to debt research provided to retail investors and research that is provided solely to institutional investors — albeit with a significant modification to how the bifurcated approach operates.
Definitions
Under the Revised Proposal, a "debt research report" is "any written (including electronic) communication that includes an analysis of debt securities and that provides information reasonably sufficient upon which to base an investment decision" but does not include any of the communications excluded from the definition of "research report" in NASD Rule 2711.4 Importantly, for industry participants, FINRA declined a suggestion by a commenter on the Concept Proposal to exclude from the definition "trader commentary" and "other analytical communications prepared by non-research personnel" on the ground that such an exclusion "would create a large loophole through which biased and non-transparent research could be disseminated to retail investors." Accordingly, this could represent the end of desk-generated marketing materials in specific securities and credits, significantly altering the structure of the debt capital markets business for many firms and customers.
"Debt security" is defined as any "security" other than an "equity security," "treasury security," "municipal security" or "security-based swap," as those terms are defined in the federal securities laws. While security-based swaps are excluded from the definition in the Revised Proposal "given the nascent and evolving nature of security-based swap regulation," FINRA notes that it will continue to monitor developments in such regulation and may subsequently expand the definition to include such instruments. In addition, FINRA specifically declined commenters' requests to exclude "other non-equity securities not traditionally considered debt securities," agency securities and G-20 sovereign debt securities.
A "debt research analyst" is "an associated person who is primarily responsible for, and any associated person who reports directly or indirectly to a debt research analyst in connection with, the preparation of the substance of a debt research report, whether or not any such person has the job title of 'research analyst.'"
An "institutional investor" is "any person described in FINRA Rule 4512(c)," i.e., "a bank, savings and loan association, insurance company or registered investment company; an investment adviser registered with either the [Securities and Exchange Commission] or with a state securities commission (or any agency or office performing like functions); or any other person (whether a natural person, corporation, partnership, trust or otherwise) with total assets of at least $50 million." FINRA rejected a commenter's suggestion that "accredited investors" within the meaning of Rule 501 of SEC Regulation D be considered institutional investors for purposes of the Revised Proposal, noting that it believes the monetary thresholds applicable to accredited investors "are far too low as a proxy for sophistication with respect to debt trading."
A "retail investor" is "any person other than an institutional investor."
Identifying and Managing Conflicts of Interest
The Revised Proposal's provisions addressing conflicts of interest are based on the protections set forth in the equity research rules. Generally, the Revised Proposal "requires firms to establish, maintain and enforce policies and procedures reasonably designed to identify and manage conflicts of interest related to (1) the preparation, content and distribution of debt research reports; (2) public appearances by debt research analysts and (3) the interaction between debt research analysts and those outside the research department, including investment banking, sales and trading and principal trading personnel, subject companies and investors." Significantly, the Revised Proposal introduces a distinction between "sales and trading personnel" (sales representatives and traders) and individuals "engaged in principal trading activities, where the conflicts addressed by the proposal are most concerning" (emphasis added).5
These policies and procedures must, at a minimum, prohibit prepublication review, clearance or approval of debt research by investment banking, sales and trading or principal trading personnel. The policies and procedures must also either restrict or prohibit review, clearance or approval of debt research by other non-research personnel other than legal or compliance personnel. Any prepublication review by the subject company other than for verification of facts must also be prohibited.
The policies and procedures must restrict or limit activities by debt research analysts "that can reasonably be expected to compromise their objectivity" and prohibit their participation in pitches and other solicitations of investment banking transactions and in road shows and marketing on behalf of issuers. Investment banking personnel may not direct debt research analysts to engage in sales or marketing efforts or any communication with a current or prospective customer regarding an investment banking transaction.
Similarly, the policies and procedures must be "reasonably designed" to prohibit sales and trading and principal trading personnel from "attempting to influence a debt research analyst's opinion or views for the purpose of benefiting the trading position of the firm, a customer or a class of customers" and to prohibit debt research analysts from "identifying or recommending specific potential trading transactions to sales and trading or principal trading personnel that are inconsistent with such debt research analyst's currently published debt research reports, or disclosing the timing of, or material investment conclusions in, a pending debt research report."
The policies and procedures must also restrict or limit input with respect to debt research coverage decisions by investment banking, sales and trading, and principal trading personnel "to ensure that research management independently makes all final decisions regarding the research coverage plan." However, in response to commenter concerns that the prohibitions on communications between debt research and other personnel set forth in the Concept Proposal were too restrictive, the Revised Proposal clarifies in supplementary materials that "sales and trading and principal trading personnel may communicate customers' interests to research personnel, so long as debt research analysts do not respond by publishing research that is intended to benefit any trading position of the firm, a customer or a class of customers" and "debt research analysts may provide customized analysis and recommendations or trade ideas to sales and trading and principal trading personnel and customers, provided that any such communications are not inconsistent with the analyst's currently published or pending research and that any subsequent research is not for the purpose of benefitting any firm or customer positions." In addition, communications that are not related to sales and trading, principal trading or debt research activities may occur without restriction, unless otherwise prohibited.
The Revised Proposal also requires that a firm's policies and procedures "must be reasonably designed to promote objective and reliable debt research that reflects the truly held opinions of debt research analysts and to prevent the use of debt research reports or debt research analysts to manipulate or condition the market or favor the interests of the member or a current or prospective customer or class of customers." At a minimum, the policies and procedures must limit supervision of debt research analysts to non-investment banking, sales and trading or principal trading personnel and establish "information barriers or other institutional safeguards to ensure that debt research analysts are insulated from the review, pressure or oversight" by investment banking and principal trading personnel and "other persons who might be biased in their judgment or supervision."
The Revised Proposal limits determination of the debt research department's budget to senior management, other than individuals engaged in investment banking services or principal trading activities, and without regard to specific revenues or results derived from such activities. However, revenues and results of the firm as a whole may be considered in determining the debt research department's budget and allocation of debt research department expenses. In addition, the Revised Proposal does not require a firm to prohibit personnel from providing senior management with input regarding the demand for and quality of debt research, including product trends and customer interests.
The Revised Proposal requires policies and procedures designed to prohibit debt research analyst compensation determinations based upon specific investment banking services or specific trading transactions or contributions to a firm's investment banking services or principal trading activities. Debt research analyst compensation must be reviewed and approved at least annually by a committee reporting to the firm's board of directors, which must consider the debt research analyst's individual performance and the overall ratings received from customers and peers and other independent ratings services. Investment banking and principal trading personnel may not serve on this committee. Sales and trading personnel — but not principal trading personnel — may "provide input to debt research management into the evaluation of the debt research analyst in order to convey customer feedback," but final compensation determinations must be made by management and subject to review and approval by the committee. The committee must document the basis upon which each debt research analyst's compensation was established, including any input from sales and trading personnel.
The Revised Proposal also requires firms to restrict or limit trading by a "debt research analyst account"6 in securities, derivatives of such securities and any fund whose performance is materially dependent upon the performance of securities covered by the debt research analyst. The firm's policies and procedures must ensure that "debt research analyst accounts, supervisors of debt research analysts and associated persons with the ability to influence the content of debt research reports do not benefit in their trading from knowledge of the content or timing of a debt research report before the intended recipients of such debt research have had a reasonable opportunity to act on the information in the debt research report." Similarly, the policies and procedures must prohibit a debt research analyst account from trading in a manner inconsistent with the research analyst's recommendation as reflected the analyst's most recently published debt research report (except in the case of certain predefined circumstances of financial hardship).
Interestingly, in the "Supplementary Materials" to the Revised Proposal, FINRA states that it views paragraph (b)(1)(C) of the proposed rule to (among other things) prohibit the conduct of joint due diligence conducted with the company in the presence of investment banking personnel. This position conflicts with the provisions of the Global Research Analyst Settlement, which was originally entered into with several of the largest investment banking firms in 2003 and was modified by the court at the request of the SEC and the other parties thereto in March 2010 to expressly permit the performance of joint due diligence under certain circumstances.7
Finally, the Revised Proposal requires firms to "prevent direct or indirect retaliation or threat of retaliation against debt research analysts by any employee of the member as the result of an adverse, negative, or otherwise unfavorable debt research report or public appearance written or made by the debt research analyst that may adversely affect the member's present or prospective business interests."8 Firms must also prohibit explicit or implicit promises of favorable debt research, a particular debt research rating or recommendation or specific debt research content as an inducement for the receipt of business or compensation.
Content and Disclosure in Debt Research Reports
The Revised Proposal adopts many of the disclosure requirements applicable to equity research reports under the equity research rules.
As a threshold matter, the Revised Proposal requires firms to ensure that purported facts in debt research reports have a reasonable basis and that any recommendation or rating has a reasonable basis in fact and is accompanied by a clear explanation of the valuation method utilized and a fair presentation of the risks that may impede achievement of the recommendation or rating. If a rating system is used, the firm must clearly define in each debt research report the meaning of each rating in the system, including the time horizon and any benchmarks on which the rating is based, and the definition of each rating must be consistent with its plain meaning (i.e., buy cannot mean sell or hold).
Irrespective of the rating system used, a firm must include in each debt research report that includes a rating the percentage of all securities rated by the firm that would be assigned a "buy," "hold" or "sell" rating, and the percentage of subject companies within each of the "buy," "hold" or "sell" categories for which the member has provided investment banking services within the previous 12 months. This information must be current as of the end of the most recent quarter or the second most recent quarter if the publication date of the relevant debt research report is less than 15 days after the most recent quarter. If a firm has rated a debt security for at least one year, a debt research report must also show each previously assigned rating and the date it was assigned.
A debt research report must also disclose "all conflicts that reasonably could be expected to influence the objectivity of the debt research report and that are known or should have been known by the member or debt research analyst on the date of publication and distribution of the report," provided that disclosure of material non-public information regarding specific potential future investment banking transactions of the subject company need not be disclosed. The Revised Proposal specifies a number of required disclosures, including those relating to a debt research analyst's financial conflicts of interest and whether the subject company is or was within the previous 12 months a client of the firm.
Similar to the equity research rules requiring disclosure of a firm's market making activity with respect to a company that is the subject of an equity research report, the Revised Proposal requires disclosure if the firm "trades or may trade as principal in the debt securities (or in related derivatives) that are the subject of the debt research report." The Revised Proposal also contains a catch-all provision requiring disclosure of "any other material conflict of interest of the debt research analyst or member that the debt research analyst or an associated person of the member with the ability to influence the content of a debt research report knows or has reason to know at the time of the publication or distribution of a debt research report." FINRA states that this "reason to know" standard "does not impose a duty of inquiry on the debt analyst or others who can influence the content of a debt research report," but covers only disclosure of "those conflicts that should reasonably be discovered in the ordinary course of business." Rather than tracking and disclosing such conflicts of interest, a firm could simply "choose to wall off those persons as an alternative."
Notably, the Revised Proposal dropped the Concept Proposal's requirement that a firm disclose whether it or its affiliates maintain a significant financial interest in the debt or equity of the subject company and, at a minimum, whether the firm or its affiliates beneficially owned 1 percent or more of any class of equity of the subject company. FINRA agreed with commenters that such a requirement would have been unduly burdensome and mostly irrelevant to the debt markets.
Similarly, FINRA dropped from the Revised Proposal a requirement in the Concept Proposal that would have required a firm to promptly notify its customers if it intended to terminate coverage of a debt security, essentially recognizing that such notices would have limited value in credit evaluations by customers.
Required disclosures must be clearly, comprehensively and prominently presented on the front page of each debt research report or the front page must refer to the page on which the required disclosures are found (electronic reports may provide a hyperlink directly to the required disclosures). The Revised Proposal also addresses presentation requirements for compendium reports, i.e., reports covering six or more subject companies.
Finally, the Revised Proposal reminds members that they must also comply with all other applicable disclosure and related requirements set forth in other FINRA and SEC rules, including but not limited to NASD Rule 2210 (which relates generally to a member's communications with the public).
Public Appearances
The Revised Proposal is substantially similar to the equity research rules with respect to the disclosure required by debt research analysts in public appearances.9 A debt research analyst must disclose (a) whether the analyst or a member of his or her household has a financial interest in the debt or equity securities of the subject company and the nature of such interest; (b) whether the analyst knows or has reason to know that the firm or any affiliate received compensation from the subject company in the previous 12 months; (c) if the analyst received any compensation from the subject company in the previous 12 months; (d) whether the analyst knows or has reason to know that the subject company currently is, or during the previous 12 months was, a client of the firm and the nature of the services provided to the subject company, if the analyst knows such information and (e) any other material conflict of interest of the analyst or firm that the analyst knows or has reason to know at the time of the public appearance. A debt research analyst or firm need not make any such disclosure where doing so would reveal material non-public information regarding specific potential future investment banking transactions of the subject company. Firms must maintain records for a period of at least three years of public appearances by debt research analysts sufficient to demonstrate compliance by those analysts with the applicable disclosure requirements.
Standards Applicable to Research Distributed to Institutional Investors
As noted above, the Concept Proposal proposed a bifurcated approach to the treatment of debt research reports provided to retail investors and those provided solely to institutional investors. Under the Concept Proposal, debt research reports provided solely to institutional investors would have been largely exempt from the foregoing requirements unless a given institutional investor affirmatively elected to receive the full protections accorded to retail investors.
The Revised Proposal maintains this bifurcated approach but with a significant difference: under the Revised Proposal the requirements described above apply to all debt research reports—whether provided to retail or institutional investors and even if provided solely to institutional investors—unless a given institutional investor affirmatively elects to receive information that is subject to a lesser degree of protection and less stringent requirements and disclosure obligations. As a result, where under the Concept Proposal an institutional investor was treated as a retail investor only if it so elected, under the Revised Proposal an institutional investor will be treated as a retail investor unless it elects in writing to be treated as an institutional investor. In FINRA's view, "not all institutional investors have equal sophistication or prefer to forego the retail protections" and, therefore, "it is most appropriate in this context that investors who want the full protections of the rules should not be required to take additional steps to receive those protections." FINRA notes in the Revised Proposal that despite "expressly inviting comment on the topic" in the Concept Proposal it received no comments on the relative merits of an opt-in versus an opt-out approach, and again invites comment on whether this aspect of the Revised Proposal strikes the right balance.
Even where institutional investors opt out of treatment as retail investors, the Revised Proposal will significantly alter the way institutional-focused firms run their debt capital markets businesses.
Certain provisions will still apply to debt research reports provided to institutional investors, including the prohibitions and restrictions on prepublication review, the prohibitions and restrictions on debt research analysts' participation in pitches and other marketing activities and on being directed to engage in such activities, and the prohibitions on retaliation against debt research analysts and on promises of favorable debt research.
In addition, debt research reports provided only to eligible institutional investors pursuant to the exemption must prominently disclose on the report's first page that: (a) "This research report is intended for institutional investors and is not subject to all of the independence and disclosure standards applicable to debt research reports prepared for retail investors."; (b) if applicable, "The views expressed in this report may differ from the views offered in [Firm's] debt research reports prepared for retail investors."; and (c) if applicable, "This report may not be independent of [Firm's] proprietary interests. [Firm] trades the securities covered in this report for its own account and on a discretionary basis on behalf of certain clients. Such trading interests may be contrary to the recommendation(s) offered in this report."
In addition, firms must "establish, maintain and enforce policies and procedures reasonably designed to ensure that institutional debt research is made available only to eligible institutional investors." A firm may not rely on the institutional investor exemption with respect to any debt research report that the firm has reason to believe will be distributed to a retail investor. FINRA thus notes that even where a firm has such policies and procedures in place, if the firm "learns that institutional debt research has routinely been redistributed to retail investors, the firm must discontinue distribution of institutional only debt research to that party until it reasonably concludes that measures have been taken to prevent future redistribution."
Selective Dissemination of Debt Research Reports
The Revised Proposal requires firms to "establish, maintain and enforce policies and procedures reasonably designed to ensure that a debt research report is not distributed selectively to trading personnel or a particular customer or class of customers in advance of other customers that are entitled to receive the debt research reports." However, these policies and procedures need not limit a firm's ability to provide different debt research products and services to different customers, even where different products or services lead to different recommendations or ratings, provided that products or services are not differentiated by the timing of receipt of a recommendation, rating or other potentially market moving information. A firm that does provide different debt research products and services for certain customers must inform its other customers that its alternative products and services may reach different conclusions or recommendations that could impact the price of the relevant debt security.
Third-Party Research Reports
With respect to the distribution of debt research reports produced by third parties, the Revised Proposal generally adopts the comparable standards for third-party research reports set out in the equity research rules. A firm must "establish, maintain and enforce policies and procedures reasonably designed to ensure that any third-party debt research report it distributes is reliable and objective; contains completed and accurate disclosures[;] and contains no untrue statement of material fact and is otherwise not false or misleading." In this regard, a firm's obligation to review extends to untrue statements of material fact and false or misleading information that "should be known from reading the debt research report" or "is known based on information otherwise possessed" by the firm; however, review is not required if the relevant debt research report is an "independent third-party debt research report."10
Any third-party research must be clearly labeled as such and must be accompanied by, or include a web address directing recipients to, disclosure of any material conflict of interest that could reasonably be expected to have influenced the choice of third-party research provider or the subject company of a third-party report; however, such disclosure will not be required with respect to independent third-party debt research reports that are "made available" to customers in certain contexts.
Exemption for Firms with Limited Investment Banking Activity
Mirroring the exemption provided in the equity research rules, the Revised Proposal provides an exemption from certain of the Revised Proposal's supervision and compensation requirements for firms that over the previous three years, on average per year, have participated in no more than 10 investment banking services transactions as manager or co-manager and generated no more than $5 million in gross investment banking revenues from such transactions. FINRA specifically requests in the Revised Proposal comment on "whether there is a more appropriate metric for an exemption in the debt research context, one that focuses not necessarily on the size of firms, but on the circumstances where the conflicts related to debt research are less pronounced" and encourages commenters to include specific metrics for any such proposed exemption.
Footnotes
1 FINRA Regulatory Notice 12-09 (Feb. 2012), available at http://www.finra.org/Industry/Regulation/Notices/2012/P125616. The text of the Proposed Rule is included as an attachment to the Notice.
2 FINRA Regulatory Notice 11-11 (Mar. 2011), available at http://www.finra.org/Industry/Regulation/Notices/2011/P123297.
3 NASD Rule 2711.
4 These exclusions include discussions of broad-based indices and commentaries on economic, political or market conditions. In addition, although the definition of "debt research report" generally tracks its counterpart definition in NASD Rule 2711, the Revised Proposal's definition is not limited to analysis of debt securities "of individual companies or industries."
5 Of course, since the debt markets are principal markets, we assume the reference to "principal trading activities" is meant to refer to proprietary trading. Again, the language reflects the continued attempt by FINRA to apply equity market principles to this very different market.
6 "Debt research analyst account" is generally defined, with certain carve-outs, as "any account in which a debt research analyst or member of the debt research analyst's household has a financial interest, or over which such analyst has discretion or control."
7 See Securities and Exchange Commission v. Bear, Stearns & Co. Inc., et al., 03 Civ. 2937 (WHP), 03 Civ. 2939–46 (WHP), 03 Civ. 2948 (WHP), 04 Civ. 6909–10 (WHP) (S.D.N.Y. Mar. 15, 2010).
8 This language (referencing the member's "present or prospective business interests") is substantially broader than the comparable language in the equity research rules, which is tied more narrowly to investment banking relationships with companies that are the subject of research reports.
9 The term "public appearance" as defined in the Revised Proposal is virtually identical to that used in NASD Rule 2711.
10 An "independent third-party debt research report" is a third-party research report produced by a person that "has no affiliation or business or contractual relationship with the distributing member or that member's affiliates that is reasonably likely to inform the content of its research reports" and "makes content determinations without any input from the distributing member or that member's affiliates."
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