This article's thesis is that FINRA Conduct Rule 2310, FINRA's “suitability rule,” should be interpreted to govern all broker-customer communications that constitute non-trivial investment advice regarding portfolio composition, not just buy, sell or exchange communications, per current interpretation (the “BSE Interpretation”). Because acting on advice to hold a security (a “Holding Claim”) can affect risk just as significantly as a recommendation to buy, sell or exchange one, the BSE Interpretation leaves a large body of investment advice affecting customer portfolio risk unregulated by suitability standards. Such interpretation not only fails to reflect Rule 2310's well recognized customer-protective purposes, but effectively transmogrifies Rule 2310 into a shield for wrongdoing, neutralizing Rule 2310's ability to serve as a bulwark against the potential misconduct of inherently conflicted securities commission salespersons. Because FINRA's interpretation of the suitability rule is itself unsuited to the task of protecting securities customers, it should be rejected. Rather than governing only the purchase, sale or exchange of securities, the rule should be understood to encompass recommendations to hold securities. Part II describes FINRA's historical interpretation of Rule 2310, the meaning of the term “recommendation,” relevant FINRA notices to members and a number of awards adopting a broad interpretation of “recommendation.” Part III describes state “holding claim” cases and arguments supporting Holding Claims made under agency principles. Part IV discusses broker advertising, assessing the legitimacy of Holding Claims in light of the types of statements brokers have been making to induce potential customers to trade with their registered representatives.
Laurence A. Steckman and Robert E. Conner,
The Unsuitability of the "Suitability Rule": Why FINRA's Current Interpretation of Conduct Rule 2310 Undermines Investor "Holding Claim" Entitlements in Contemporary Markets,
2 J. Bus. Entrepreneurship & L.
Available at: http://digitalcommons.pepperdine.edu/jbel/vol2/iss1/4