FINRA recently published an AWC entered into with Richard L. Langer, a registered representative with Planner Securities LLC. FINRA accused Langer of violating FINRA Rules 2210 and 2220. FINRA Rule 2210 governs communications by registered representatives with the public and FINRA Rule 2220 sets forth requirements with respect to options-related communications.
The review of Langer’s communications originated with a cycle examination conducted by FINRA Member Supervision. According to FINRA, between January 2016 and November 2019, Langer maintained a public Facebook page for an investment club he operated. Langer authored 20 posts on the Facebook page regarding the performance, investment returns, industry standing, and purported successes of the investment club and a separate hedge fund at which Langer traded.
For example, on January 9, 2018, Langer posted:
Good Day to all! Hope everyone had a wonderful Holiday season and wishing everyone a healthy and happy 2018! We did it yet again! #2 top performing options hedge fund for November 2017, 1.93% return. With a year to date return on invest of 29.12% We still remain the Top performing options Hedge fund in 2017!! i can tell you that December record breaking return (to be released in 2 weeks) put us over 34% return for 2017 making [Hedge Fund A] the #1 options strategy hedge fund on the street for 2017,, That’s back to back years we took # 1 best performing options strategy hedge fund on the Planet !! interested in putting your money to work for you? Ask us.
FINRA Rule 2210(d)(l)(A) provides that:
[a]II member communications must be based on principles of fair dealing and good faith, must be fair and balanced, and must provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry, or service. No member may omit any material fact or qualification if the omission, in light of the context of the material presented, would cause the communications to be misleading.
FINRA found Langer’s Facebook posts violative of Rule 2210 because they provided only positive news about the hedge fund and the investment club and did not disclose any risks associated with these investments. As such, the posts did not, “provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry, or service.”
Langer also published 11 Facebook posts regarding options. FINRA Rule 2220(d)(l)(A) provides that options communications regarding standardized options “must be limited to general descriptions of the options being discussed,” and “must not contain … past or projected performance figures, including annualized rates of return, or names of specific securities.” (emphasis added). Langer’s posts went beyond general descriptions and included performance of certain transactions. Langer also failed to state that options are not suitable for all investors as required by Rule 2220(d)(2)(A).
There are also two requirements to the rule that Langer failed to meet. First, retail options communications, “issued by a member concerning options shall be approved in advance by a Registered Options Principal designated by the member’s written supervisory procedures.” Second, retail options communications shall be submitted to the Advertising Regulation Department of FINRA … at least ten calendar days prior to use.” See FINRA Rule 2210(a)(5); FINRA Rule 2220(a)(l)(C).
“Retail” communications are those made to more than 25 retail investors with a 30-day period. Langer’s posts, which were made on a public Facebook page that had approximately 130 followers, are retail communications but Langer neither got approval from a Registered Options Principal before publishing nor were the communications submitted to the Advertising Regulation Department of FINRA.
For these violations, Langer agreed to a 10 business-day suspension and a $5,000 fine. Langer’s sanctions are at the very low end of the FINRA Sanctions Guidelines and arguably lenient given the number of posts, the three-year period of violative activity and the potential investor harm that could have arisen from this sort of marketing. Notably, the AWC is silent as to whether investors bought or sold securities based on the Facebook posts or whether they were subsequently harmed.
Herskovits PLLC has a nationwide practice defending against FINRA investigations and representing individuals in FINRA arbitration. Feel free to contact us at (212 897-5410.