SHOCKING FINRA Regulatory Settlement Involving Merrill Lynch

April 15, 2010

Ya Gotta See This To Believe It!

Am I the only Wall Street regulatory lawyer who almost fell on the floor this afternoon when I read this nugget from FINRA?  I have long suspected that there was disparate treatment for large and small firms, but, geez, how come there wasn't some Press Release issued about this one?  You know, the type of Press Release that the regulators love to post when trumpeting their settlements with the indie/regional firms. 

If this isn't among the more disturbing allegations of misconduct from FINRA, I'm not sure what is. And, by the way, just who the hell are the geniuses behind the alleged cover-up and misconduct? Don't the compliance staffers at Merrill Lynch have names -- or is that just for the shlubs who run afoul of FINRA at the small firms?

Please note my comments at the end of the fact pattern.

Bill Singer

Through several of its employees at the branch office level and employees of an affiliate in the Office of General Counsel, the Firm made material misstatements to NYSE Regulation examiners relating to an on-site branch office examination relating to non-registered cold callers by

  • providing the NYSE with inaccurate and deceptive information in response to various regulatory examination requests,
  • instructing staff that an unapproved facsimile machine be hidden or removed, and
  • by providing an inaccurate written statement in response to requests for information during an ongoing investigation.

Unlicensed Attorney

The Firm failed to properly supervise a registered person with the firm who held himself out as an attorney on firm stationery and business cards even though he was not licensed or admitted to practice before any state or federal bar.

Away Accounts

The Firm failed to

  • provide letters from outside broker dealers, whose employees maintained accounts at the firm, confirming that they were aware of such accounts;
  • receive and review duplicate confirmations and monthly account statements for accounts that employees maintained outside the firm;
  • evidence the approval of such accounts; and
  • send duplicate statement and confirmations to other firms whose employees had accounts at the firm.

Communications and Computers

The Firm failed to

  • evidence review and supervision of incoming or outgoing written communications and facsimiles at certain branches;
  • evidence the approval for certain employees to maintain computers and software; and
  • review, supervise and/or evidence supervisory review of communications that employees sent and received with non-firm issued computers.

The Firm failed to place certain accounts on 90-day restrictions; evidence the review, approval and/or supervision of order errors and account designation changes; and date or properly date corrections for order errors and account designation changes. Also, the Firm failed to evidence the review, approval and/or supervision of certain personal computer forms that had been backdated at a branch; failed to approve and/or timely approve seminars that firm employees conducted, and maintain certain seminar-related materials; failed to review, approve and/or retain certain facsimiles, including Fax-2-Mail correspondence and/or evidence its review and approval; and failed to maintain its "control" fax machine in a secure location in one branch.

Merrill Lynch, Pierce, Fenner & Smith Incorporated : Censured; Fined $300,000
Bill Singer's Comment

I mean, wow!  The breadth of these allegations is simply stunning.  First, I'm still trying to digest that nugget about Merrill's Office of General Counsel -- FINRA's allegations are amazing: inaccurate and deceptive responses, and instructing staff to hide/remove an unapproved FAX machine.

Then there are the whole host of compliance policies and procedures that just seem to have been overlooked.  You know, those types of policies and procedures that if, say, a smaller firm than the once mighty Merrill Lynch disregarded, well, you know, we would expect to see names and suspensions and massive fines.

You gotta love how FINRA deals with the financial superstores -- or should I say the once-and-mighty?  I wonder what percentage of Merrill's annual revenues $300,000 represents?  Maybe I could cut a similar deal for one of my indie/regional brokerage firm clients?  Hey, I almost forgot, isn't it just wonderful how no human being is referenced or named in this case.  Remind me to ask for the concession in the future too.