FINRA’s December Meeting: Outside Activities Reform and Emerging Legal Challenges
The December 2024 FINRA Board of Governors meeting comes at a critical juncture, as the organization seeks to modernize its regulatory frameworks while grappling with heightened scrutiny of its authority and practices. Key among the discussions was FINRA’s proposal to consolidate its Outside Business Activities (OBA) and Private Securities Transactions (PST) rules into a unified Outside Activities Requirements Rule. However, this initiative takes place against the backdrop of two significant legal challenges: the Alpine Securities Corp. v. FINRA ruling, which questioned FINRA’s expedited expulsion procedures, and the federal lawsuit Preston v. SEC, which challenges the validity of FINRA Rule 3270 governing outside activities.
Modernizing Outside Activities Rules: FINRA’s Proposed Reform
The Board’s approval to advance the unified Outside Activities Requirements Rule reflects FINRA’s intent to simplify compliance while maintaining investor protections. By consolidating the OBA and PST rules, FINRA aims to provide greater clarity and consistency for member firms, especially those with diverse business models.
The organization plans to release a Regulatory Notice soliciting public feedback to refine the rule further. This approach aligns with lessons from Alpine, emphasizing the need for transparency, due process, and stakeholder engagement when implementing enforcement mechanisms.
The Alpine Decision: A Turning Point for FINRA’s Enforcement Practices
The D.C. Circuit’s ruling in Alpine Securities Corp. v. FINRA highlighted procedural deficiencies in FINRA’s expedited expulsion framework, finding it invalid due to the lack of SEC oversight. The court emphasized that expulsion without meaningful review can cause disproportionate harm to broker-dealers, effectively destroying their businesses before judicial or regulatory challenges can be resolved.
This decision underscores a broader need for FINRA to reevaluate its enforcement practices and ensure procedural safeguards are in place. It also provides a cautionary lens for reforms like the proposed Outside Activities Requirements Rule, ensuring the new framework is legally defensible and procedurally sound.
The Preston Case: A Challenge to Outside Activities Oversight
In Preston v. SEC, filed on December 3, 2024, JPMorgan employee Joshua Matthew Preston challenges FINRA Rule 3270, which requires employees to notify their firms of outside business activities and secure approval. Preston’s claims include:
First Amendment Violations: Alleging the rule restricts employees’ rights to engage in lawful pursuits.
Fifth Amendment Due Process Concerns: Highlighting the lack of procedural safeguards when firms impose penalties or prohibitions.
Ultra Vires Actions: Asserting that the SEC’s endorsement of Rule 3270 exceeds its statutory authority under the Securities Exchange Act of 1934.
This case challenges the balance of regulatory authority and employee rights, questioning whether FINRA’s framework improperly delegates enforcement to private firms, thereby overstepping constitutional and administrative boundaries.
Intersections of Alpine, Preston, and FINRA’s Reforms
The issues raised in Alpine and Preston intersect directly with FINRA’s current reform efforts. Key considerations include:
Procedural Fairness: Both cases highlight the risks of enforcement actions that lack robust procedural safeguards. FINRA’s proposed Outside Activities Requirements Rule must address these concerns to withstand potential legal challenges.
Transparency in Rulemaking: The solicitation of public feedback on the new rule echoes the Alpine decision’s emphasis on meaningful oversight and stakeholder participation.
Balancing Oversight and Rights: FINRA’s role as a self-regulatory organization requires navigating the tension between enforcing market integrity and protecting the constitutional rights of member firms and their employees.
Implications for the Financial Industry
These developments signal significant shifts in FINRA’s regulatory landscape, with implications for both broker-dealers and their employees:
For Firms: Enhanced procedural safeguards and clearer rules could streamline compliance but may also slow enforcement, allowing risks to persist longer.
For Employees: A successful challenge in Preston could reduce firms’ ability to regulate outside activities, potentially opening the door for greater personal and professional autonomy.
For FINRA: The organization must balance modernizing its rules with maintaining its enforcement authority and credibility, particularly as judicial scrutiny increases.
The Road Ahead: Reforming While Reinforcing Integrity
The proposed Outside Activities Requirements Rule represents a step in the right direction, but its success depends on addressing the broader concerns highlighted by these legal challenges.
By integrating lessons from Alpine and anticipating potential outcomes in Preston, FINRA has an opportunity to strengthen its governance and ensure its rules reflect both legal rigor and practical fairness. As the financial industry navigates this evolving regulatory environment, stakeholders must remain vigilant, adapting to changes that balance oversight with the protection of individual rights and market integrity.
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