The Financial Industry Regulatory Authority (FINRA), the largest regulator for securities firms in the United States, announced today that it has censured and fined Pershing LLC $3 million for violating the Customer Protection Rule and for related supervisory failures. The Securities and Exchange Commission (SEC) rule protects customers' funds from broker-dealer misuse and requires that assets be available for distribution in the event of the broker-dealer's insolvency.
Pershing operates Execution services and broker-dealer technology through its business lines, including offering foreign exchange, and is a subsidiary of Bank of New York Mellon – a major institutional FX provider and custodian. Its Australian branch was also fined by the local securities regulator earlier this year for unrelated violations.
Brad Bennett, FINRA's Executive Vice President and Chief of Enforcement, said, "Clearing firms have a fundamental responsibility to protect customer assets and must ensure that their supervisory systems are compliant with the Customer Protection Rule. Customers’ assets were at risk because Pershing failed to establish systems to vet procedural changes with material impact to the reserve and possession and control positions."
The SEC Customer Protection Rule is intended to protect customers’ funds held by their broker-dealers and prohibits using customer funds and securities to finance any part of their business unrelated to servicing securities customers. The rule requires the broker-dealer to comply with two requirements – to obtain and maintain physical possession or control over customers’ fully paid and excess margin securities; and to maintain a reserve of cash or qualified securities in an account at a bank at least equal in value to the net cash the broker-dealer owes to customers.
FINRA found that from November 2010 to August 2011, Pershing failed to maintain adequate reserves to meet its reserve deposit requirements with reserve deficiencies ranging from approximately $4 million to $220 million. From July 2010 through September 2011, Pershing also failed to promptly obtain and later maintain physical possession or control of certain customers' fully paid and excess margin securities. During that period, the firm’s failures caused 47 new possession or control deficits, and an increase in a significant number of existing possession or control deficits. These failures exposed customer funds and securities to risk.
In addition, FINRA says Pershing’s supervisory systems and procedures were inadequate and the firm failed to implement a system to review and approve procedural changes with material impact to the requirements of the SEC rule. Those deficiencies resulted in inaccuracies in the firm’s FOCUS reports between July 30, 2010 and August 31, 2011.
Pershing neither admitted nor denied the charges, but consented to the entry of FINRA's findings.
