The Financial Industry Regulatory Authority is on pace for a significant yearly increase in fines and disciplinary actions against broker-dealers and their associates, according to a new analysis by the law firm Sutherland Asbill & Brennan.
In the first half of 2012, FINRA has levied fines of $39.4 million, Sutherland found, a figure that includes a growing number of so-called "super fines," or penalties that exceed $1 million.
At that rate, FINRA is on pace for a 15% increase in the volume of fines it will collect this year, according to Brian Rubin, a partner with the law firm and co-author of the study.
"Essentially, we are looking at a jump from $68 million in 2011 to projected fines of $78.4 million in 2012," Rubin said in a statement.
In the first half of the year, Sutherland tallied 609 disciplinary cases that FINRA has initiated, a pace that tracks to a 9% increase over last year.
The findings of Sutherland's latest survey continue the trend of increased enforcement activity at FINRA that the law firm has identified over the last several years. Last year, for instance, Sutherland documented a 51% increase in fines over 2010.
The sheer number of actions that FINRA pursued against its members jumped 13% over the past two years, and up 8% from 2008 to 2009.
What accounts for the recent spike in enforcement activity? "It's hard to say," Rubin replied in an email. "Two possible reasons. First, it could be that some of these cases stem from the market meltdown. Second, it could be that FINRA wants to be perceived as tougher, particularly after [Bernard] Madoff and [Allen] Stanford and because being perceived as a tougher regulator will help build its case that it should be the [self-regulatory agency] for advisers."
The Sutherland report comes amid a policy debate that could result in expanded enforcement authority for FINRA. The head of the House Financial Services Committee has been trying to gin up support for a bill that would empower a SRO, likely FINRA, to take on oversight of investment advisers. That responsibility is currently shouldered by the U.S. Securities and Exchange Commission.
Backers of the bill maintain that a lack of funding and other factors have inhibited the SEC from effectively policing the industry, arguing that a group such as FINRA would be best suited to take on the responsibility of auditing advisers as it currently does with broker-dealers.
Headlining FINRA's enforcement activity in the first half of 2012 was an $11 million fine it levied against Goldman Sachs for improper practices of its research analysts. That fine was paired with an equal penalty of $11 million levied by the SEC. The Goldman action accounted for the lion's share of the $11.9 million in penalties FINRA assessed in the first half of the year involving research-analyst communications improprieties, according to Sutherland's analysis. The remaining $900,000 is spread among seven other such cases.
The law firm counted 64 actions brought against broker-dealers concerning suitability violations, with penalties totaling $6.6 million. Suitability infractions were the most common source of FINRA's disciplinary actions. Between January and June of this year, there were 61 actions involving improper U4, U5 and Rule 3070 filings for a total of $1.5 million in fines compared to 91 such cases resulting in $6.6 million in fines for all of 2011.
Sutherland reported four cases relating to unit investment trusts in the first half of 2012, with penalties totaling $3.9 million. Enforcement actions involving markups or markdowns accounted for 14 cases and $3.7 million in penalties, while 24 cases related to municipal securities, totaling another $3.7 million in fines.
As for the supersize penalties, FINRA levied seven fines that were at least $1 million, for a total of $24 million this year. With a few more months left in 2012, that figure could exceed last year's tally of 10 such penalties.
Sutherland partner and study co-author, Deborah Heilizer, who noted the rise in cases involving "product- specific" violations, said: "So far, 2012 is turning out to be a year of significant growth in FINRA's fines and disciplinary actions."
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