Regulatory Notice 12-52 - finra

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12-52December 2012Endnotes1. See Securities Exchange Act Release No. 67774(September 4, 2012), 77 FR 55519 (September10, 2012) (Order Approving File No. SR-FINRA-2012-025). The current FINRA rulebook consistsof: (1) FINRA Rules; (2) NASD Rules; and (3) rulesincorporated from NYSE (Incorporated NYSERules). While the NASD Rules generally apply toall FINRA members, the Incorporated NYSE Rulesapply only to those members of FINRA that arealso members of the NYSE (Dual Members). TheFINRA Rules apply to all FINRA members, unlesssuch rules have a more limited application bytheir terms. For more information about therulebook consolidation process, see InformationNotice 03/12/08 (Rulebook ConsolidationProcess).2. Securities Exchange Act Release No. 67774(September 4, 2012), 77 FR 55519 (September10, 2012).3. The violative practices in Rule 5270 may includetransactions that are executed based uponknowledge of less than all of the terms of theblock transaction, so long as there is knowledgethat all of the material terms of the transactionhave been or will be agreed upon imminently.See Rule 5270.01. This provision, which remainssubstantively the same as the standard in IM-2110-3, is intended to make clear that a firmneed not know every detail of a potential blockorder for the front running prohibitions to attach.FINRA has also provided similar guidance in thepast in the context of volume-weighted averageprice transactions. See Notice to Members 05-51(stating that a duty to refrain from trading mayexist “before a member is awarded an orderfor execution [and] will turn on, among otherfactors, the type of order and the specifics of theorder known by the member,” which may includethe security, the size of the order, the side of themarket, the weighting of a basket order, andthe timing for completion of the order). Exactlywhen the front running prohibitions may attachdepends upon the facts and circumstances ofthe communications between the firm and itscustomer.4. Supplementary Material .03 retains the generalscope of the term block transaction from IM-2110-3. It provides that, for purposes of equitysecurities, a transaction involving 10,000 sharesor more of a security, an underlying security, ora related financial instrument overlying suchnumber of shares, is generally deemed to bea block transaction; however, a transaction offewer than 10,000 shares could be considered ablock transaction in some cases. SupplementaryMaterial .03 also notes that a block transactionthat has been agreed upon does not loseits identity as such by arranging for partialexecutions of the full transaction in portionswhich themselves are not of block size if theexecution of the full transaction may have amaterial impact on the market.5. The term “related financial instrument” isdefined as any option, derivative, security-basedswap or other financial instrument overlyinga security, the value of which is materiallyrelated to, or otherwise acts as a substitute for,the security, as well as any contract that is thefunctional economic equivalent of a position insuch security. See Rule 5270(c).6. See Rule 5270(b).7. Although “not held” orders are not subjectto the restrictions in FINRA Rule 5320, frontrunning a “not held” order that is not of blocksize may nonetheless violate FINRA Rule2010. See Securities Exchange Act ReleaseNo. 63895 (February 11, 2011), 76 FR 9386(February 17, 2011) (Order Approving File No.SR-FINRA-2009-090). If the “not held” order isof block size, Rule 5270 would apply to tradingactivity ahead of the order.4 Regulatory Notice
December 2012 12-528. IM-2110-3 is limited to transactions in equitysecurities and options that are required to bereported on a last sale reporting system andto any transaction involving a security future,regardless of whether the transaction is reported.9. FINRA Rule 5270 does not apply to orders ortransactions involving government securities.FINRA Rule 0150(c) lists the rules applicable totransactions in, and business activity relatingto, “exempted securities,” which includegovernment securities. Rule 5270 is not includedin the list of rules applicable to transactions in,and business activities relating to, “exemptedsecurities” and therefore does not apply to ordersor transactions involving “exempted securities.”The term “exempted securities” for purposesof Rule 0150 has the same meaning as that inSection 3(a)(12) of the Securities Exchange Actof 1934 (“Act”). See FINRA Rule 0150(a). Section3(a)(12) of the Act defines “exempted security”or “exempted securities” to include, amongother things, government securities. See 15U.S.C. 78c(a)(12), (a)(42). FINRA notes, however,that actions for similar front running conductoccurring in the exempted securities markets,including the government securities market,continue to be covered by FINRA Rule 2010.10. Supplementary Material .02 retains the analysisof when information is considered “publiclyavailable” from IM-2110-3 and states that “[t]herequirement that information concerning a blocktransaction be made publicly available will notbe satisfied until the entire block transaction hasbeen completed and publicly reported.”11. Whether information has become “stale orobsolete” for purposes of Rule 5270 will dependupon the particular facts and circumstancesinvolved, including specific information themember firm has regarding the transaction,but could include factors such as the amountof time that has passed since the memberlearned of the block transaction, subsequenttrading activity in the security, or a significantchange in market conditions. The “staleor obsolete” standard supplements thedissemination standard; it does not replace it.Consequently, where there is a transparencyregime in place with respect to the securityor financial instrument (i.e., transactions aresubject to prompt reporting requirements andthe transaction reports are disseminated) thetrading restrictions in Rule 5270 are linked toactual reporting and dissemination rather thanby invoking the “stale or obsolete” standard.This would include debt securities subject toTRACE reporting requirements, even though theTRACE reporting requirements generally allowfor up to 15 minutes to report transactions incorporate and agency debt securities. See FINRARule 6730(a). FINRA notes that there shouldgenerally be minimal, or no, delay betweenthe execution of an order and the reportingof the trade. See, e.g., Regulatory Notice 10-24(April 2010). Where there is no reporting anddissemination regime in place for a security orrelated financial instrument, once the customer’sorder is executed and the risk of the transactionhas transferred from the customer to the firm,there would be no trading restrictions imposedby Rule 5270.12. Supplementary Material .04 replaces theprovisions in IM-2110-3 excepting transactionsexecuted in automatic execution systems andpositioning activity when a firm receives anorder of block size relating to both an option orsecurity future and the underlying security. Anytrading activity that fell within the exceptionsin IM-2110-3 would need to meet one of theexceptions in Supplementary Material .04 tocomply with Rule 5270.Regulatory Notice 5
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Regulatory Notice 12-52 - finra

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