Suitability Rule And Online Communications
In light of the dramatic increase in the use of the Internet for communication between broker/dealers and their customers, NASD Regulation, Inc. (NASD Regulation) is issuing a Policy Statement to provide members1 with guidance concerning their obligations under the National Association of Securities Dealers, Inc. (NASD®) general suitability rule, Rule 2310,2 in this electronic environment.3 NASD Regulation filed this Policy Statement on March 19, 2001, with the Securities and Exchange Commission (SEC). Pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934 and SEC Rule 19b-4(f)(1), the Policy Statement became immediately effective upon filing.
The Policy Statement briefly discusses some of the issues created by the intersection of online activity and the suitability rule. The Policy Statement then provides examples of electronic communications that NASD Regulation considers to be either within or outside the definition of "recommendation" for purposes of the suitability rule.4 In addition, the Policy Statement sets forth guidelines to assist members in evaluating whether a particular communication could be viewed as a "recommendation," thereby triggering application of the suitability rule.5
NASD Regulation emphasizes, however, that this current Policy Statement does not (1) alter member obligations under the suitability rule or (2) establish a "bright line" test for determining whether a communication does or does not constitute a "recommendation" for purposes of the suitability rule. No single factor discussed below, standing alone, necessarily dictates the outcome of the analysis. NASD Regulation recognizes that brokerage firms are using technology to offer many new beneficial services to customers, and it supports the continued development and use of technology to enhance investor education and access to information. These technological advances may have regulatory implications in the context of rules other than the suitability rule, and, therefore, we expect to issue future statements or guidance on the subject of online activities in the securities industry. NASD Regulation is aware, however, that technology is developing rapidly, and we want to avoid impeding the growth of new technological services for investors.
Questions or comments concerning the information contained in this Policy Statement may be directed to either Nancy C. Libin, Assistant General Counsel, Office of General Counsel, NASD Regulation, Inc., at (202) 728-8835 or [email protected] or James S. Wrona, Assistant General Counsel, Office of General Counsel, NASD Regulation, Inc., at (202) 728-8270 or [email protected].
NASD Regulation Policy Statement Regarding Application Of The NASD Suitability Rule To Online Communications
Technological developments in recent years have profoundly affected the securities industry.6 One of the most dramatic changes is the way in which brokerage firms use the Internet to communicate with their customers. In addition to more traditional channels of communication such as the telephone and postal mail, broker/dealers and customers now transmit information to each other through broker/ dealers' Web Sites, e-mail, Web phones, personal digital assistants, and hand-held pagers. Broker/dealers also use the Internet to provide lower-cost, unbundled services to customers. Among other things, broker/dealers have used the Internet to provide investors with new tools to obtain access to important analytical information, conduct their own research, and place their own orders. Technological advancements have provided many benefits to investors and the brokerage industry. These technological innovations, however, also have presented new regulatory challenges, including those arising from the application of the suitability rule to online activities.
The NASD's suitability rule states that in recommending to a customer the purchase, sale, or exchange of any security, a member shall have reasonable grounds for believing that the recommendation is suitable for such customer. As the rule states, a member's suitability obligation applies to securities that the member "recommends" to a customer.7 The NASD's suitability rule generally has been violated when a broker/dealer "recommends" a security to a customer that might be suitable for some investors, but is unsuitable for that particular customer.
Applicability Of The Suitability Rule To Electronic Communications
There has been much debate recently about the application of the suitability rule to online activities.8 Two major questions have arisen: first, whether the current suitability rule should even apply to online activities, and second, if so, what types of online communications constitute "recommendations" for purposes of the rule.
In answer to the first question, NASD Regulation believes that the suitability rule applies to all "recommendations" made by members to customers—including those made via electronic means—to purchase, sell, or exchange a security. Electronic communications from broker/ dealers to their customers clearly can constitute "recommendations." The suitability rule, therefore, remains fully applicable to online activities in those cases where the member "recommends" securities to its customers.
With regard to the second question, NASD Regulation does not seek to identify in this Policy Statement all of the types of electronic communications that may constitute "recommendations." As NASD Regulation has often emphasized, "[w]hether a particular transaction is in fact recommended depends on an analysis of all the relevant facts and circumstances." 9 That is, the test for determining whether any communication (electronic or traditional) constitutes a "recommendation" remains a "facts and circumstances" inquiry to be conducted on a case-by-case basis.
NASD Regulation also recognizes that many forms of electronic communications defy easy characterization. Nevertheless, we offer as guidance the following general principles for member firms to use in determining whether a particular communication could be deemed a "recommendation." As illustrated by the examples provided below, the "facts and circumstances" determination of whether a communication is a "recommendation" requires an analysis of the content, context, and presentation of the particular communication or set of communications. The determination of whether a "recommendation" has been made, moreover, is an objective rather than a subjective inquiry. An important factor in this regard is whether—given its content, context, and manner of presentation— a particular communication from a broker/dealer to a customer reasonably would be viewed as a "call to action," or suggestion that the customer engage in a securities transaction. Members should bear in mind that an analysis of the content, context, and manner of presentation of a communication requires examination of the underlying substantive information transmitted to the customer and consideration of any other facts and circumstances, such as any accompanying explanatory message from the broker/dealer.10 Another principle that members should keep in mind is that, in general, the more individually tailored the communication to a specific customer or a targeted group of customers about a security or group of securities, the greater likelihood that the communication may be viewed as a "recommendation." 11
Scope Of The Term "Recommendation":
In order to provide guidance to members, NASD Regulation offers some examples of electronic communications that could be viewed as within or outside the definition of "recommendation." These examples are intended to show the application of the abovementioned general principles.
In addition to when a member acts merely as an order-taker regarding a particular transaction,12 NASD Regulation generally would view the following activities and communications as falling outside the definition of "recommendation"
- A member creates a Web Site that is available to customers or groups of customers. The Web Site has research pages or "electronic libraries" that contain research reports (which may include buy/sell recommendations from the author of the report), news, quotes, and charts that customers can obtain or request.
- A member has a search engine on its Web Site that enables customers to sort through the data available about the performance of a broad range of stocks and mutual funds, company fundamentals, and industry sectors. The data is not limited, for instance, to, and does not favor, securities in which the member makes a market or has made a "buy" recommendation. Customers use and direct this tool on their own. Search results from this tool may rank securities using any criteria selected by the customer, and may display current news, quotes, and links to related sites.13
- A member provides research tools on its Web Site that allow customers to screen through a wide universe of securities (e.g., all exchange-listed and Nasdaq securities) or an externally recognized group of securities (e.g., certain indexes) and to request lists of securities that meet broad, objective criteria (e.g., all companies in a certain sector with 25 percent annual earnings growth). The member does not impose limits on the manner in which the research tool searches through a wide universe of securities, nor does it control the generation of the list in order to favor certain securities. For instance, the member does not limit the universe of securities to those in which it makes a market or for which it has made a "buy" recommendation. Similarly, the algorithms for these tools are not programmed to produce lists of securities based on subjective factors that the member has created or developed, nor do the algorithms, for example, produce lists that favor those securities in which the member makes a market or for which the member has made a "buy" recommendation.
- A member allows customers to subscribe to e-mails or other electronic communications that alert customers to news affecting the securities in the customer's portfolio or on the customer's "watch list." Such news might include price changes, notice of pre-scheduled events (such as an imminent bond maturation), or generalized information. The customer selects the scope of the information that the firm will send to him or her.
NASD Regulation generally would view the following communications as falling within the definition of "recommendation":
- A member sends a customer specific electronic communication (e.g., an e-mail or pop-up screen) to a targeted customer or targeted group of customers encouraging the particular customer( s) to purchase a security. 14
- A member sends its customers an e-mail stating that customers should be invested in stocks from a particular sector (such as technology) and urges customers to purchase one or more stocks from a list with "buy" recommendations.
- A member provides a portfolio analysis tool that allows a customer to indicate an investment goal and input personalized information such as age, financial condition, and risk tolerance. The member in this instance then sends (or displays to) the customer a list of specific securities the customer could buy or sell to meet the investment goal the customer has indicated.15
- A member uses data-mining technology (the electronic collection of information on Web Site users) to analyze a customer's financial or online activity—whether or not known by the customer—and then, based on those observations, sends (or "pushes") specific investment suggestions that the customer purchase or sell a security.
Members should keep in mind that these examples are meant only to provide guidance and are not an exhaustive list of communications that NASD Regulation does or does not consider to be "recommendations." As stated earlier, many other types of electronic communications are not easily characterized. In addition, changes to the factual predicates upon which these examples are based (or the existence of additional factors) could alter the determination of whether similar communications may or may not be viewed as "recommendations." Members, therefore, should analyze all relevant facts and circumstances, bearing in mind the general principles noted earlier and discussed below, to determine whether a communication is a "recommendation," and they should take the necessary steps to fulfill their suitability obligations. Furthermore, these examples are based on technological services that are currently used in the marketplace. They are not intended to direct or limit the future development of delivery methods or products and services provided
Guidelines For Evaluating Suitability Obligations
NASD Regulation believes that members should consider, at a minimum, the following guidelines when evaluating their suitability obligations. None of these guidelines is determinative. Each is but one factor to be considered in evaluating all of the facts and circumstances surrounding the communication.
- A member cannot avoid or discharge its suitability obligation through a disclaimer where the particular communication reasonably would be viewed as a "recommendation" given its content, context, and presentation. 16 NASD Regulation, however, encourages members to include on their Web Sites (and in other means of communication with their customers) clear explanations of the use and limitations of tools offered on those sites.
- Members should analyze any communication about a security that reasonably could be viewed as a "call to action" and that they direct, or appear to direct, to a particular individual or targeted group of individuals—as opposed to statements that are generally made available to all customers or the public at large—to determine whether a "recommendation" is being made.17
- Members should scrutinize any communication to a customer that suggests the purchase, sale, or exchange of a security—as opposed to simply providing objective data about a security—to determine whether a "recommendation" is being made.18
- A member's transmission of unrequested information will not necessarily constitute a "recommendation." However, when a member decides to send a particular customer unrequested information about a security that is not of a generalized or administrative nature (e.g., notification of a stock split or a dividend), the member should carefully review the circumstances under which the information is being provided, the manner in which the information is delivered to the customer, the content of the communication, and the original source of the information. The member should perform this review regardless of whether the decision to send the information is made by a representative employed by the member or by a computer software program used by the member.
- Members should be aware that the degree to which the communication reasonably would influence an investor to trade a particular security or group of securities—heither through the context or manner of presentation or the language used in the communication—may be considered in determining whether a "recommendation" is being made to the customer.
NASD Regulation emphasizes that the factors listed above are guidelines that may assist members in complying with the suitability rule. Again, the presence or absence of any of these factors does not by itself control whether a "recommendation" has been made or whether the member has complied with the suitability rule. Such determinations can be made only on a case-by-case basis taking into account all of the relevant facts and circumstances.
The foregoing discussion highlights some suggested guidelines to assist in determining when electronic communications constitute "recommendations," thereby triggering application of the NASD's suitability rule. NASD Regulation acknowledges the numerous benefits that are enjoyed by members and their customers as a result of the Internet and online brokerage services. NASD Regulation emphasizes that it neither takes a position on nor seeks to influence any firm's or customer's choice of a particular business model in this electronic environment. At the same time, however, NASD Regulation urges members both to consider all compliance implications when implementing new services and to remember that customers' best interests must continue to be of paramount importance in any setting, traditional or online.
As new technologies and/or services evolve, NASD Regulation will continue to provide statements or guidance regarding the application of the suitability rule and other rules.19 To date, NASD Regulation has worked to resolve various suitability- related issues with federal and state regulators, NASD Regulation's e-Brokerage Committee, the NASD's Legal Advisory Board and Small Firm Advisory Board, NASD Regulation's Standing and District Committees, and the NASD membership. This open dialogue has been beneficial, and NASD Regulation will continue to work with regulators, members of the industry and the public on these and other important issues that arise in the online brokerage environment.
1 For purposes of this Policy Statement, the terms "member" and "broker/dealer" include both firms and their associated persons.
2 NASD Rule 2310 provides in pertinent part:
NASD Rule 2310 applies to equity and certain debt securities, but not to municipal securities. Municipal securities are covered by Municipal Securities Rulemaking Board (MSRB) Rule G-19 ("Suitability of Recommendations and Transactions; Discretionary Accounts").
3 Although the focus of this Policy Statement is on the application of the suitability rule to electronic communications, much of the discussion is also relevant to more traditional communications, such as discussions made in-person, over the telephone, or through postal mail.
4 This Policy Statement focuses on "customer-specific" suitability under NASD Conduct Rule 2310. The word "recommendation" appears in quotation marks whenever it is discussed in the context of a customer-specific suitability obligation. A broker/dealer must also have a reasonable basis "to believe that the recommendation could be suitable for at least some customers." In re F.J. Kaufman and Company of Virginia, 50 S.E.C. 164, 168, 1989 SEC LEXIS 2376, *10 (1989) (emphasis in original). This is called "reasonable basis" suitability, and it "relates only to the particular recommendation, rather than to any particular customer." Id. See also In re Charles E. Marland & Co., Inc., 45 S.E.C. 632, 636, 1974 SEC LEXIS 2458, *10 (1974) (recommending mutual fund switching creates rebuttable presumption of unsuitability); In re Thomas Arthur Stewart, 20 S.E.C. 196, 207, 1945 SEC LEXIS 318, *25 (1945) ("[T]he lack of reasonable grounds for recommending [switching shares of mutual funds]" was the basis for finding broker had violated NASD's suitability rule based on a "reasonable basis" theory.).
Although not directly addressed in this Policy Statement, in certain instances, a suitability violation also can be based on an inappropriate frequency of trades, often referred to as excessive trading or churning. See IM-2310-2, Fair Dealing With Customers ("Some practices that have resulted in disciplinary action and that clearly violate this responsibility for fair dealing are.... [e]xcessive activity in a customer's account."). A broker/ dealer could violate the suitability rule, for example, where it recommended to a customer an excessive (and, based on the customer's financial situation and needs, an inappropriate) number of securities transactions and the customer routinely followed the broker/ dealer's recommendations. See, e.g., In re Harry Gliksman, Exchange Act Rel. No. 42255, at 4, 1999 SEC LEXIS 2685, at *6 (Dec. 20, 1999) ("Under [Rule 2310], recommendations may be unsuitable if the trading is excessive based on the customer's objectives and financial situation."); In re Rafael Pinchas, Exchange Act Rel. No. 41816, at 11-12, 1999 SEC LEXIS 1754, at *22 (Sept. 1, 1999) ("[E]xcessive trading, by itself, can violate NASD suitability standards by representing an unsuitable frequency of trading").
5 While other NASD rules may cover circumstances where members are making recommendations (see, e.g., Rule 2210, "Communications with the Public"), this Policy Statement is limited to a discussion of the suitability rule.
6See SEC Guidance on the Use of Electronic Media ("Use of Electronic Media"), Release Nos. 34-7856, 34- 42728, IC-24426, 65 Fed. Reg. 25843, 25843, 2000 SEC LEXIS 847, at *4 (Apr. 28, 2000) ("By facilitating rapid and widespread information dissemination, the Internet has had a significant impact on capital-raising techniques and, more broadly, on the structure of the securities industry.").
7 A member or associated person who simply effects a trade initiated by a customer without a related "recommendation" from the member or associated person is not required to perform a suitability analysis, although members may elect to determine whether a security is suitable under such circumstances for their own business reasons. See In re Thomas E. Warren, III, 51 S.E.C. 1015, 1019 n.19, 1994 SEC LEXIS 508, *11 n.19 (1994) ("We do not believe the suitability claims brought against the Applicant are supported by the record. There is no evidence that Warren recommended the transactions that were effected in these accounts."), aff'd, 69 F.3d 549 (10th Cir. 1995) (table format); SEC Announcement of Final Rule on Sales Practice Requirements for Certain Low-Priced Securities, Release No. 34-27160, 54 Fed. Reg. 35468, 1989 SEC LEXIS 1603, at *52 (Aug. 22, 1989) ("[T]he NASD and other suitability rules have long applied only to 'recommended' transactions."); Clarification of Notice to Members ("NtM") 96-60, 1997 NASD LEXIS 20 (FYI, Mar. 1997) (stating that a member's suitability obligation under Rule 2310 applies only to securities that have been recommended by the member). Similarly, the suitability rule does not apply where a member merely gathers information on a particular customer, but does not make any "recommendations." This is true even if the information is the type of information generally gathered to satisfy a suitability obligation.
Members should nonetheless remember that, under NASD Rule 2110, they are required to comply with know-yourcustomer obligations. Pursuant to these obligations, members must make reasonable efforts to obtain certain basic financial information from customers so that members can protect themselves and the integrity of the securities markets from customers who do not have the financial means to pay for transactions. See NtM 96-32, 1996 NASD LEXIS 51 (May 1996) (reminding members of their know-your-customer obligations), supplemented and clarified on different grounds by NtM 96-60 (Sept. 1996); see also NtM 99-11, 1999 NASD LEXIS 77 (Feb. 1999) ("While [this Notice] does not address firms' suitability obligations in connection with recommended transactions or their knowyour- customer obligations, firms are reminded that the existence of these obligations does not depend upon whether a trade is executed on-line or otherwise."); NtM 98-66, 1998 NASD LEXIS 81 (Aug. 1998) (noting that members should provide a description of "any internal system protocols designed to fulfill a member's 'know your customer' obligations"). Unlike the suitability rule, the NASD's know-yourcustomer requirements apply to members regardless of whether they have made a "recommendation."
8See generally SEC Commissioner Laura Unger, Online Brokerage: Keeping Apace of Cyberspace (Nov. 1999) ("Unger Report") (discussing various views espoused by online brokerage firms, regulators and academics on the topic of online suitability). The Unger Report can be accessed through the SEC Web Site at www.sec.gov/news/spstindx.htm (last modified on May 4, 2000). See also Developments in the Law—The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1582-83 (1999) (The article highlights the broader debate by academics and judges over whether "to apply conventional models of regulation to the Internet.")
9 Clarification of NtM 96-60, 1997 NASD LEXIS 20 (FYI, Mar. 1997).
10 For example, if a broker/dealer transmitted a research report to a customer at the customer's request, that communication may not be subject to the suitability rule; whereas, if the same broker/ dealer transmitted the very same research report with an accompanying message, either oral or written, that the customer should act on the report, the suitability analysis would be different.
11See Online Brokerage Services and the Suitability Rule, NASD Regulatory & Compliance Alert, at 20 (Summer 2000) (noting that the more individualized and particular the communication about a security, the closer the communication is to being viewed as a "recommendation"). The Regulatory & Compliance Alert article is also available at www.nasdr.com/rca_summer00.htm See also Thomas L. Taylor III & Alan S. Petlak, Q&A Online: Chat, Research, Compliance Reporter, July 31, 2000, at 11 (stating that a factor to consider when determining whether a communication is a "recommendation" is the degree to which it is individualized and specific).
12See supra note 7 and accompanying text.
13 Note, however, that hyperlinks conceivably could create suitability obligations, depending, for example, on the information provided to and from the hyperlinked site, the extent to which a member endorses the content of the hyperlinked site, the nature of the firm's relationship to the hyperlinked site, and other attendant facts and circumstances. It should also be noted that NASD Regulation has previously issued guidance regarding the responsibility of members for the content of hyperlinked sites. See Letter from Thomas Selman, Vice President, NASD Regulation, Disclosure and Investor Protection to Craig Tyle, General Counsel, Investment Company Institute, Nov. 11, 1997. This letter can be accessed through NASD Regulation's Web Site at www.nasdr.com/2910/2210_01.htm. See also Use of Electronic Media, supra note 6, at 65 Fed. Reg. at 25848- 25849, *32-49 (discussing responsibility for hyperlinked information). In addition, NASD Regulation has provided guidance to firms regarding the use of "chat rooms" and "bulletin boards." See NtM 96-50, 1996 NASD LEXIS 60 (July 1996).
14 Note that there are instances where sending a customer an electronic communication that highlights a particular security (or securities) will not be viewed as a "recommendation." For instance, while each case requires an analysis of the particular facts and circumstances, a member generally would not be viewed as making a "recommendation" when, pursuant to a customer's request, it sends the customer (1) electronic "alerts" (such as account activity alerts, market alerts, or price, volume, and earnings alerts) or (2) research announcements (e.g., a firm's "stock of the week") that are not tailored to the individual customer, as long as neither—given their content, context, and manner of presentation—would lead a customer reasonably to believe that the firm is suggesting that the customer take action in response to the communication.
15 Note, however, that a portfolio analysis tool that merely generates a suggested mix of general classes of financial assets (e.g., 60 percent equities, 20 percent bonds, and 20 percent cash equivalents), without an accompanying list of securities that the customer could purchase to achieve that allocation, would not trigger a suitability obligation. On the other hand, a series of actions which may not constitute "recommendations" when considered individually, may amount to a "recommendation" when considered in the aggregate. For example, a portfolio allocator's suggestion that a customer could alter his or her current mix of investments followed by provision of a list of securities that could be purchased or sold to accomplish the alteration could be a "recommendation." Again, however, the determination of whether a portfolio analysis tool's communication constitutes a "recommendation" will depend on the content, context, and presentation of the communication or series of communications.
16 Although, as noted previously, a broker/dealer cannot disclaim away its suitability obligation, informing customers that generalized information provided is not based on the customer's particular financial situation or needs may help clarify that the information provided is not meant to be a "recommendation" to the customer. Whether the communication is in fact a "recommendation" would still depend on the content, context, and presentation of the communication. Accordingly, a member that sends a customer or group of customers information about a security might include a statement that the member is not providing the information based on the customers' particular financial situations or needs. Members may properly disclose to customers that the opinions or recommendations expressed in research do not take into account individual investors' circumstances and are not intended to represent "recommendations" by the member of particular stocks to particular customers.
Members, however, should refer to previous guidelines issued by the SEC and NASD that may be relevant to these and/or related topics. For instance, the SEC has issued guidelines regarding whether and under what circumstances third-party information is attributable to an issuer, and the SEC noted that the guidance also may be relevant regarding the responsibilities of broker/dealers. Use of Electronic Media, supra note 6, at 65 Fed. Reg. at 25848- 25849, *32-49 (discussing entanglement and adoption theories). See also supra note 13 and discussion therein.
17 We note that there are circumstances where the act of sending a communication to a specific group of customers will not necessarily implicate the suitability rule. For instance, a broker/dealer's business decision to provide only certain types of investment information (e.g., research reports) to a category of "premium" customers would not, without more, trigger application of the suitability rule. Conversely, members may incur suitability obligations when they send a communication to a large group of customers urging those customers to invest in a security.
18 As with the other general guidelines discussed in this Policy Statement, the presence of this factor alone does not automatically mean that a "recommendation" has been made. For example, where a customer affirmatively requests to be alerted (by e-mail or pop-up screen) when a security reaches a specific price-point, when a company issues an earnings release, or when an analyst changes his or her recommendation of a particular security, the broker/dealer's decision to send the customer the requested information, without more, would not necessarily trigger a suitability obligation.
19 In this regard, NASD Regulation is considering further discussion of the application of the suitability rule to electronic communications involving initial public offerings in future guidance.