NYLIFE Securities LLC has agreed to pay a fine of $200,000 fine as a part of a settlement with the Financial Industry Regulatory Authority (FINRA). The fine stems from alleged violations of FINRA Rules 3110 and 2010.
From January 2015 through March 2019, NYLIFE Securities failed to establish, maintain, and enforce a supervisory system, including written supervisory procedures, reasonably designed to achieve compliance with FINRA Rule 2111’s suitability requirements as it pertains to mutual fund and cross-product switches.
From January 2015 through March 2019, NYLIFE Securities’ written supervisory procedures defined mutual fund switching as using the “proceeds from the redemption of one mutual fund to purchase one or more other mutual funds” and noted that mutual fund switching was problematic when the “benefit to the client does not justify the incidental costs.”
The firm surveilled for mutual fund switches on a weekly basis, identifying transactions that the firm deemed “letterable,” such as a switch from an A share to A share where accounts incurred front-end sales charges. A letterable switch resulted in a letter to the customer that disclosed the mutual fund purchase and sale at issue, but did not disclose the sales charges incurred on either transaction.
When a registered representative had five or more letterable switches in a quarter, NYLIFE Securities’ system flagged the transactions on a quarterly mutual fund switching report for a quarterly switch review conducted, in part, by the firm’s compliance department. NYLIFE Securities also tasked the flagged registered representative’s direct supervisor, known as the Managing Partner, with a review of the transactions through the completion of a mutual fund switch checklist that required the Managing Partner to determine whether the customer received an “overall benefit as a result of the transaction(s).”
The Managing Partner could delegate the review of transactions to another supervisor but was responsible for making the final determination about the transactions.
The firm, however, did not have written supervisory procedures or adequately train supervisors on how to determine whether the clients benefitted from the mutual fund switch transactions or whether the transactions were suitable. The firm provided Managing Partners with the sales charges incurred on mutual fund purchase transactions.
However, the firm did not provide Managing Partners with other critical information such as the holding periods and costs (such as front-end sales charges) associated with the mutual fund shares sold. The Managing Partners also could not readily access historic transaction information for the customers’ accounts. Without this information, the Managing Partners could not independently determine if short-term trading was taking place in the customer’s account or assess the overall financial impact of the transactions to the customer.
The firm failed to reasonably supervise Broker A’s mutual fund trading.
The firm failed to take reasonable steps to review Broker A’s recommended short-term trades of Class A mutual funds in ten customers’ accounts, many of which belonged to senior customers.
Specifically, on hundreds of occasions between January 2015 and March 2019, Broker A recommended that these ten customers buy and sell Class A mutual funds after holding the shares for short periods of time. As a result of these short- term trades, the ten customers paid approximately $175,000 in unnecessary front-end sales charges for Class A mutual fund shares, with Broker A earning approximately $116,000 in commissions.
To the extent NYLIFE Securities’ system flagged Broker A’s mutual fund switches for a quarterly switch review related to customers, his Managing Partner did not have adequate tools and was not properly trained to review the suitability of the transactions in order to determine whether a switch provided a benefit to the customer. The firm’s compliance department typically closed Broker A’s mutual fund switching flags largely on the basis of the Managing Partner’s unreasonable review.
In January 2017, the firm issued a letter of education to Broker A for mutual fund switching in two customer accounts and missed mutual fund breakpoints.
The firm’s system continued to flag Broker A for mutual fund switch transactions in 2017 and 2018. Even then, the flags remained open for weeks without an adequate supervisory review. Further, although Broker A had multiple switch transactions in every quarter from 2015 through 2018, for 11 quarters, the firm did not flag his trading for supervisory review because the firm’s threshold for review was five letterable switches in one quarter.
NYLIFE Securities failed to maintain a reasonable surveillance system for mutual fund and cross-product switches.
NYLIFE Securities’ procedures defined “cross-product switching activity” as switching activity amongst products (e.g., mutual fund to annuity/life, and/or vice versa) and a “purchase and sale, or a combination of such transactions, occurring within a 90-day period.” The firm’s system flagged registered representatives’ cross-product switch activity on a cross-product switching report, similar to the quarterly mutual fund switching reports, for supervisory review when multiple switch transactions met one or more tests during one quarter.
Starting in approximately April 2016, as the result of a software upgrade, a database connectivity issue caused incomplete information to flow to the firm’s mutual fund switching reports and cross-product switching reports. While the firm conducted limited spot checks for mutual fund switching activity in the ninety days following the software upgrade to check whether the system was properly functioning, the firm did not continue to monitor the system.
Further, the firm did not conduct any tests on its cross-product switching surveillance system from January 2015 through March 2019. Notably, in 2017, the first full year after the software upgrade, the number of representatives flagged for quarterly mutual fund and cross-product switching reviews declined by approximately 80% and 69%, respectively, compared to 2015, the last full year before the software upgrade.
Still, despite this significant decline, the firm failed to identify red flags of potential system issues during this period and only discovered the cause of the software failure in March 2019 during FINRA’s investigation. As a result of the firm’s failure to identify this system error, the firm failed to capture approximately 5,700 mutual fund transactions (22% of all mutual fund transactions) for supervisory review, resulting in the failure to supervise 326 mutual fund switch transactions, including those of Broker A, and 1,229 cross-product switch transactions that should have been elevated to a quarterly switching report, according to the firm’s procedures.
During FINRA’s review, NYLIFE Securities voluntarily enhanced the firm’s procedures and controls concerning mutual fund and cross-product switching; conducted extensive lookback reviews over multiple years to identify potentially overlooked switching activity; and paid restitution of $271,182 to Broker A customers, primarily consisting of front-end sales charges incurred by customers following the April 2016 software failure.
On top of the fine, NYLIFE Securities agrees to a censure and restitution of $63,347.