In October 2014, the SEC’s Division of Trading & Markets issued FAQs to remind broker-dealers of their obligation to conduct a reasonable inquiry when selling securities in an unregistered transaction in reliance on Section 4(a)(4) of the Securities Act. The FAQs explain that “[i]n order to rely on the Section 4(a)(4) exemption, a broker-dealer must conduct a “reasonable inquiry” into the facts surrounding a proposed unregistered sale of securities before selling the securities to form reasonable grounds for believing that a selling customer’s part of the transaction is exempt from Section 5. . . . [W]hen conducting a reasonable inquiry into whether the transaction would violate Section 5, it is not sufficient for the broker-dealer merely to accept self-serving statements of his sellers and their counsel without reasonably exploring the possibility of contrary facts. Nor, where there are indicia of an illegal distribution of securities, can a broker-dealer claim that its sales of a security were exempt from registration simply because the stock certificates lack a restrictive legend or a clearing firm or transfer agent raises no objections to the sales.” The FAQs provide a list of factors that the SEC will consider in assessing the reasonableness of a broker-dealer’s inquiry and its reliance on the Section 4(a)(4) exemption.
Simultaneously with the issuance of the FAQs, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert which summarized deficiencies which OCIE observed in examining 22 broker-dealers. Among other matters, the examinations uncovered deficiencies related to controls put in place to comply with obligations related to sales of securities, including the performance of a reasonable inquiry in connection with unregistered sales of securities in reliance on Section 4(a)(4) of the Securities Act.
In conjunction with the FAQs and the Risk Alert, the SEC announced an enforcement action against certain current and former E*Trade subsidiaries (the “Subsidiaries”) for ignoring red flags in connection with the sale of unregistered penny stocks. The SEC’s order finds that the Subsidiaries were not entitled to rely on the Section 4(a)(4) exemption because they did not perform a “reasonable inquiry.” The Subsidiaries agreed to settle the SEC’s charges by paying back more than $1.5 million in disgorgement and prejudgment interest from commissions they earned on the improper sales. They also must pay a combined penalty of $1 million.
In light of the above, broker-dealers should reexamine their policies and procedures related to the sale of unregistered securities and provide training to their personnel concerning what constitutes a “reasonable inquiry.”