WORKING PAPER. The FINRA Regulatory Framework for DPP and REIT Valuation Reporting

Transcription

1 WORKING PAPER The FINRA Regulatory Framework for DPP and REIT Valuation Reporting Jack Duval First Draft, March 12, 2012

2 Introduction This paper explores the evolution of how FINRA has regulated valuation reporting of unlisted securities. The genealogy and structure of three rules will be examined in detail: 1. FINRA Rule 2340, Customer Account Statements 2. FINRA Rule 5510, Corporate Finance 3. FINRA Rule 2310, Direct Participation Programs Background Direct Participation Programs ( DPPs ) became popular investment vehicles for retail investors in the mid-to-late 1980 s and early 1990 s. DPPs are defined by FINRA as a program which provides for flow-through tax consequences regardless of the structure of the legal entity or vehicle for distribution including, but not limited to, oil and gas programs, real estate programs, agricultural programs, cattle programs, condominium securities, Subchapter S corporate offerings and all other programs of a similar nature, regardless of the industry represented by the program, or any combination thereof. 1 During this 80 s and early 90 s, the most common form of DPP was the limited partnership. Limited partnerships were popular because many of them offered tax benefits coupled with relatively high yields. As with almost all DPPs, limited partnerships were illiquid, although brokerage firms would sometimes facilitate a loose secondary market where they matched buyers and sellers. The thin secondary trading in limited partnerships made accurate and timely prices hard to obtain and they were generally carried at cost on the customer s account statements. As with most investment manias, the limited partnership boom of the 80 s and early 90 s ended badly. The biggest issuer of limited partnerships, Prudential Securities Inc., was involved in an $8 billion fraud, whereby highly speculative projects were sold to unsuspecting retail investors. Subsequent investigations by the SEC and others resulted in the payment of $330 million to defrauded investors. 2 The $8 billion fraud did not escape the notice of Congress. Edward J. Markey and Jack Fields, the respective Chairman and Ranking Republican Member of the Subcommittee on Telecommunications and Finance in the U.S. House of Representatives, sent a letter to Joseph R. Hardiman, the President and CEO of NASD. 3 The letter, dated March 9, 1994, expressed concern to the NASD regarding the sufficiency of information provided on customer account statements with respect to the current value of illiquid partnership securities. The House Subcommittee noted that investors in non-traded partnerships should be able to know how their investments are performing and expressed a belief that their might be shortcomings in current valuation reporting 4 1 FINRA Rule 2310(a)(4). 2 SEC News Digest, Complaint Filed Against Prudential Securities Incorporated, Issue , October 21, For an inside account, see also, Serpent on the Rock by Kurt Eichenwald, Harper Collins (1995). 3 The National Association of Securities Dealers ( NASD ) is now known as the Financial Industry Regulatory Authority ( FINRA ). As a convention throughout, I use the name that existed at the time being discussed. 4 SEC Release No , Self-Regulatory Organizations; Order Approving Proposed Rule Change and Notice of Filing and Order Granting Accelerated Approval to Amendment Nos. 1 and 2 to the Proposed Rule Change by the National Association of Securities Dealers, Inc., Relating to the Valuation of Illiquid Direct Participation Program and Real Estate Investment Trust Securities on Customer Account Statements, November 21, 2000,

3 Customer Account Statements The Markey and Fields letter prompted the NASD into action, and in December 1994, Notice to Members ( NTM ) 94-96, NASD Requests Comment on Disclosure of Partnership Valuations on Customer Account Statements was issued. NTM observed: The DPP Committee recognizes that some members report purchase price as the value of partnership interests on customer account statements, which is usually not equivalent to the current market value. Further, members that list DPP securities at purchase price tend to include that amount in the aggregate total current value of all securities held in the customer s account. The committee is particularly concerned about this practice because DPP securities are generally illiquid and the purchase price probably has no relationship to current value. 5 (Emphasis added.) NTM proposed to amend Article III, Section 45 (Customer Account Statements) by requiring certain disclosures and reporting on customer account statements. 6 The amendments proposed that: (a) Each general securities member shall, with a frequency of not less than once every calendar quarter, send a statement of account containing a description of any securities positions, money balances, or account activity to each customer whose account had a security position, money balance, or account activity during the period since the last such statement was sent to the customer. Where the securities positions or account activity reported to the customer include direct participation program securities (even if not held by the member), the statement of account shall: (1) segregate the direct participation program securities into a separate location on the customer account statement: (2) if the direct participation program securities are listed without a price and there is no active secondary market in the securities, include a statement that accurate pricing information is not available because the value of the direct partnership program security is not determinable until the liquidation of the partner ship and no active secondary market exists: and (3) if the direct participation program securities are listed with a price, (i) not aggregate the value of direct participation program securities with the value of any other securities: (ii) not include the value of direct participation program securities in any customer account net worth calculation: (iii) include a statement of the methodology used for obtaining or deriving the valuation of the direct participation program securities: and (iv) include a statement that direct participation program securities are generally illiquid securities and the price listed may not be realizable if the customer seeks to liquidate the (security). 7 (Proposed amendments underlined in the original.) 5 NTM 94-96, NASD Requests Comment on Disclosure of Partnership Valuations on Customer Account Statements, 6 December, See Article III, Section 45 (a)

4 On February 21, 1997, NASD Regulation filed with the Securities and Exchange Commission ( SEC ) an amendment to NASD Conduct Rule (Customer Account Statements) to regulate the disclosure of values for unlisted and illiquid DPP and real estate investment trust ( REIT ) securities on customer account statements. This SEC filing was announced to members directly though NTM 97-14, NASD Files with the SEC Proposed Amendment to Regulate the Disclosure of Values for Illiquid Direct Participation Program and Real Estate Investment Trust Securities on Customer Account Statements. 9 It is interesting to note that in the December, 1994 NTM (94-96) NASD did not distinguish between DPPs and REITs, whereas in the March, 1997 NTM (97-14), they did. In the proposed amendments to Rule 2340 contemplated in NTM 97-14, the definition of a DPP (from NASD Rule 2810) specifically excludes real estate investment trusts. 10 However, REITs were brought back into NTM and the amended Rule 2340 by the adoption of the reference convention DPP and REIT securities together as a pair, throughout. 11 The term real estate investment trust was defined to include equity securities issued by a real estate investment trust as defined in Section 856 of the Internal Revenue Code 12 that would be included on a customer s statement of account even if not held by the member, but does not include securities on deposit in a registered securities depository and settled regular way or securities listed on a national securities exchange or The Nasdaq Stock Market. 13 This definition draws a bright line between REITs that are illiquid direct investments and those traded on a nations securities exchange. Where NTM proposed segregating DPP securities from non-dpp securities and making certain disclosures, NTM reiterated those proposed amendments and added additional requirements about the inclusion and exclusion of DPP and REIT values. The NTM specified that if a member participated in the public offering of any direct participation program (DPP) or real estate investment trust (REIT) securities (as these terms are defined below) and an estimated value of DPP or REIT securities is available 14 then, in part: (b) (3) If DPP and/or REIT securities are listed on the statement with an estimated value: (A) such estimated value shall be: (i) developed from data which is as of a date no more than 18 months prior to the date the statement is issued; and (ii) provided by an independent source engaged by the member; and/or 8 The NASD changed its rule numbering system, effective May, 1996, and Article III, Section 45 became Rule See SEC Release No , Self-Regulatory Organizations; Notice of Proposed Rule Change by National Association of Securities Dealers, Inc. Relating to Rearranging of Rules and New Rule Numbering System, November 27, 1995; and SEC Release No , Self-Regulatory Organizations; Order Approving Proposed Rule Change by National Association of Securities Dealers, Inc. Regarding Rearranging of Rules and a New Rule Numbering System for the NASD Manual. For an old to new conversion chart see also, NTM 96-25, SEC Approves NASD Manual Revisions, March 4, NASD NTM 97-14, March, See NASD Rule 2810, Direct Participation Programs. 11 See supra note 9, and NASD Rule IRC Section 856 has many requirements for a company to be classified as a REIT, some of the most important are: (1) the company must have most of its assets and income related to real estate and, (2) the company must distribute at least 90 percent of its taxable income to shareholders annually in the form of dividends. See 26 USC Definition of Real Estate Investment Trust; and, more generally, NAREIT, What is a REIT, available at 13 See supra note 9 at at

5 (iii) provided in an annual report of the DPP or REIT distributed to investors pursuant to Section 14(a) or 14(c) of the Act, as applicable, or a periodic report filed by the DPP or REIT with the Commission under Sections 13 or 15(d) of the Act; or (iv) developed by the member, if valuations pursuant to subparagraphs (ii) and (iii) are not available 15 Furthermore, there was an injunction against reporting DPP and REIT values in certain circumstances: (b) (1) the member shall not include on the account statement an estimated value that the member believes is inaccurate as of the date of the valuation or is no longer accurate as a result of a material change in the operations or assets of the program or trust 16 The amendments to NASD Rule 2340 (Customer Account Statements) proposed in NTM went though an extensive comment period and reworking. It was not until January, 2001 that NASD NTM was issued, announcing the adoption of amendments to NASD Rule NTM adopted three primary amendments to NASD Rule 2340 regarding DPPs and REITs: members were required to provide voluntary estimated values in some instances, mandatory estimated values in some instances, and refrain from providing estimated values in some instances. There were also requirements for disclosures and a section of definitions. 18 If a DPP or REIT provides an estimated value in its annual report Section (b) (1) (b) requires that member firms provide that estimated value, or one obtained from another source, on the first customer s statement after the issuance of the annual report. The text of Section (b) (1) (B) from NTM follows: (b) (1) (b) If the annual report of a DPP or REIT includes a per share estimated value for a DPP or REIT security that is held in the customer s account or included on the customer s account statement, a general securities member must include an estimated value from the annual report, an independent valuation service, or any other source, in the first account statement issued by the member thereafter, provided that the member meets the conditions of paragraphs (b)(2) and (3) below. (2) A member may only provide a per share estimated value for a DPP or REIT security on an account statement if the estimated value has been developed from data that is as of a date no more than 18 months prior to the date that the statement is issued. (3) If an account statement provides an estimated value for a DPP or REIT security, it must include: (A) a brief description of the estimated value, its source, and the method by which it was developed; and (B) disclosure that DPP or REIT securities are generally illiquid, and that the estimated value may not be realized when the investor seeks to liquidate the security NASD NTM 01-08, NASD Adopts Amendments to Customer Account Statement Rule, January, The rule became effective April 16,

6 (4) Notwithstanding the requirement in paragraph (b)(1)(b), a member must refrain from including a per share estimated value for a DPP or REIT security on an account statement if the member can demonstrate the value was inaccurate as of the date of the valuation or is no longer accurate as a result of a material change in the operations or assets of the program or trust. 19 If the DPP or REIT does not provide an estimated value in its annual report, Section (b) (1) (b) allows that member firms may provide an estimated value as long as: (1) the data upon which the value was derived was no older than 18 months, and (2) disclosures describing the estimated value, its source, and the method by which it was developed. The text of Section (b) (1) (A) from NTM follows: (b) (1) (A) A general securities member may provide a per share estimated value for a direct participation program ( DPP ) or real estate investment trust ( REIT ) security on an account statement, provided the member meets the conditions of paragraphs (b) (2) and (3) below (b) (2) A member may only provide a per share estimated value for a DPP or REIT security on an account statement if the estimated value has been developed from data that is as of a date no more than 18 months prior to the date that the statement is issued. (3) If an account statement provides an estimated value for a DPP or REIT security, it must include: (A) a brief description of the estimated value, its source, and the method by which it was developed; and (B) disclosure that DPP or REIT securities are generally illiquid, and that the estimated value may not be realized when the investor seeks to liquidate the security. 20 Despite the requirement under Section (b) (1) (B) to provide a valuation on customer account statements if a valuation was provided in the DPP or REIT annual report, Section (b) (4) kept the proposed amendment from NTM to refrain from including a valuation if the member could demonstrate the value was inaccurate or no longer accurate. The text of Section (b) (4) from NTM follows: (b) (4) Notwithstanding the requirement in paragraph (b)(1)(b), a member must refrain from including a per share estimated value for a DPP or REIT security on an account statement if the member can demonstrate the value was inaccurate as of the date of the valuation or is no longer accurate as a result of a material change in the operations or assets of the program or trust. 21 Irrespective of whether or not the customer account statement provided an estimated value for DPP or REIT securities, additional disclosures were required. In the case where the member firm did provide an estimated value, the account statement must include: (b) (3) (A) a brief description of the estimated value, its source, and the method by which it was developed; and 19 at

7 (B) disclosure that DPP or REIT securities are generally illiquid, and that the estimated value may not be realized when the investor seeks to liquidate the security. 22 In the case where the member firm did not provide an estimated value, the account statement must include disclosure that: (b) (5) (A) DPP or REIT securities are generally illiquid; (B) the value of the security will be different than its purchase price; and (C) if applicable, that accurate valuation information is not available. NTM kept the definitions of DPP and REIT from NTM 97-14, and added the definition of annual report: 23 (5) annual report means the most recent annual report of the DPP or REIT distributed to investors pursuant Section 13(a) of the Act. 24 Lastly, NTM was unique in that in addition to the amendments to Rule 2340 (Customer Account Statement) described above, it also amended Rule 2710 (Corporate Financing), and Rule 2810 (Direct Participation Programs) to harmonize all three as to disclosure of DPP and REIT estimated values. In short, the amendment to Rule 2710 (Corporate Finance) made it unreasonable: (c) (6) (B) (xv) for a member or person associated with a member to participate in a public offering of real estate investment trust securities, as defined in Rule 2340(c)(4), unless the trustee will disclose in each annual report distributed to investors pursuant to Section 13(a) of the Act a per share estimated value of the trust securities, the method by which it was developed, and the date of the data used to develop the estimated value. 25 Similarly, the amendment to Rule 2810 (Direct Participation Programs), stated that: (b) (6) No member may participate in a public offering of direct participation pro-gram securities unless: (A) the general partner or sponsor of the program will disclose in each annual report distributed to investors pursuant to Section 13(a) of the Act a per share estimated value of the direct participation program securities, the method by which it was developed, and the date of the data used to develop the estimated value. 26 Thus member firms were prohibited from participating in underwritings of DPPs or REITs unless the general partner or trustee, would annually disclose a per share estimated value, the method by which it was developed, and the date of the date used to develop the estimated value. These prohibitions aligned Rules 2710 and 2810 to Rule 2340 sections (b) (1) (B) (2) and (3) (A). The amendments to Rule 2340 announced in NTM became effective on April 16, 2001 and have remained in effect since then at Rule 2340 was amended by NTM and NTM on March 6, 2007 and November 22, 2006, respectively. Neither of these amendments changed the amendments from NTM 01-08, although the section numbering was slightly changed after NTM

8 The Corporate Finance Rule FINRA Rule 5110 (Corporate Finance) began as an Interpretation ( Interpretation ) to Article III, Section 1 (Standards of Commercial Honor and Principals of Fair Trade) to the Rules of Fair Practice. The Interpretation (Review of Corporate Financing) evolved over the 1960 s and 70 s to establish standards for underwriting terms and arrangements that were unfair and unreasonable. 28 By the 1980 s, industry practice and NASD guidance had surpassed the scope of the Interpretation and a major revision was necessary. 29 On April 26, 1991, the NASD submitted a proposed rule change to the Interpretation and then amended the proposal four times: November 22, 1991; December 16, 1991; March 3, 1992; and March 20, On April 15, 1992, the Interpretation to Article III, Section 1 of the Rules of Fair Practice was replaced by Article III, Section 44 (Corporate Financing Rule) of the Rules of Fair Practice. 31 In the words of SEC Release No , The Corporate Financing Rule will codify many of the practices and policies that the NASD s Corporate Financing Department now follows in reviewing the underwriting compensation arrangements of NASD members, when participating in an offering of securities to the public. Additionally, the Rule sets forth substantive modifications to the Association s policy and codifies for the first time a number of different unpublished factors the NASD uses to determine the fairness and reasonableness of underwriting terms and arrangements of NASD members. The proposed Rule is divided into four subsections: (a) Definitions, (b) Filing Requirements, (c) Underwriting Compensation and Arrangements, and (d) Power of the Board of Governors. 32 For the purpose of understanding valuation requirements, it is Section (b) Filing Requirements, that is of interest. Section (b) states: No member or person associated with a member shall participate in any manner in any public offering of securities subject to the Section, Schedule E to the By- Laws, or Article III, Section 34 of the Rules of Fair Practice unless documents and information as specified herein relating to the offering have been filed with and reviewed by the NASD. 33 Importantly, and for the first time, participation or participating in a public offering was defined. Section (a) (5) gave the definition as: 28 NASD NTM 92-28, SEC Approval of Corporate Financing Rule and Code of Procedure for Corporate Financing and Direct Participation Program Matters, 1, at 7. Quoting from the Federal Register SEC Release No at at at

9 participation in the preparation of the offering or other documents, participation in the distribution of the offering on an underwritten, nonunderwritten, or any other basis, furnishing of customer and/or broker lists for solicitation, or participation in any advisory or consulting capacity to the issuer related to the offering, but not the preparation of an appraisal in a savings and loan conversion or a bank offering or the preparation of a fairness opinion pursuant to Rule 13e-3; 34 Most importantly, Section (b) (9), specified which offerings were required to be filed. This section states, in part: (b) (9) Documents and information relating to all other public offerings including, but not limited to, the following must be filed with the NASD for review: (A) direct participation programs as defined in Article III, Section 34(d)(2) of the Rules of Fair Practice; (B) mortgage and real estate investment trusts; 35 (Emphasis added). Note that DPPs and REITs are listed separately, but there is no definition of REIT given 36, nor any exclusion for REITs listed on a national securities exchange (as there was in later variants to Rule 2340 (Customer Account Statements). 37 Thus Article III, Section 44 established three important rules for member firms: (1) no member can participate in an underwriting unless the specified documents have been filed with the NASD; (2) member firms participated in an offering if they were involved in the underwriting or distribution of the offering; and (3) DPP and REIT offerings were specifically required to be filed. These three rules lay the groundwork for the regulation of valuations in DPP and REIT offerings. Between the creation of Article III, Section 44 of the Rules of Fair Practice and today, there have been 15 NTM s relating to amendments of NASD Rule For the purposes of this paper, it is NTM that is of particular interest. As discussed above in the Customer Account Statement section, NTM amended NASD Rule 2710 to make it unfair and unreasonable: for a member or person associated with a member to participate in a public offering of real estate investment trust securities, as defined in NASD Rule 2340(c)(4), unless the trustee will disclose in each annual report distributed to investors pursuant to Section 13(a) of the Exchange Act a per share estimated value of the trust securities, the method by which it was developed, and the date of the data used to develop the estimated value at at In Section (c) Underwriting Compensation and Arrangements, (8) Conflicts of Interest, an offering of a real estate investment trust as defined in Section 856 of the Internal Revenue Code is exempt from paragraph (8). However, the rule does not adopt the Internal Revenue Code definition throughout. 37 See supra note 10 and accompanying text. 38 On May 1996, under NTM 96-25, Article III, Section 44 of the Rules of Fair Practice became NASD Rule Also see supra note See supra note 25 and accompanying text. 8

10 This amendment brought Rule 2710 (Corporate Financing) into alignment with Rule 2340 (Customer Account Statements). In short, after NTM 01-08, not only did member firms have to report REIT valuations on customer account statements, they were also prohibited from participating in a REIT offering unless: (1) the valuations; (2) the method of development; (3) and date of the data used were disclosed in each annual report. Lastly, effective December 15, 2008 FINRA Rule 2710 (Corporate Finance) became FINRA Rule 5110 (Corporate Financing Rule Underwriting Terms and Arrangements). 40 Direct Participation Programs The NASD Direct Participation Program rule began as Article III, Section 34 of the Rules of Fair Practice. As it s name would imply, Article III, Section 34 dealt with DPPs. However, as discussed above, 41 NTM 01 08, which amended Customer Account Statement Rule 2340, also amended NASD Rule 2810 (Direct Participation Programs). 42 The critical amendment of NTM to NASD Rule 2810 was: (b) (5) Valuation for Customer Account Statements: No member may participate in a public offering of direct participation program securities unless: (A) the general partner or sponsor of the program will disclose in each annual report distributed to investors pursuant to Section 13(a) of the Act a per share estimated value of the direct participation program securities, the method by which it was developed, and the date of the data used to develop the estimated value. 43 On April 16, 2001, when the amendments in NTM became effective, Customer Account Statement Rule 2340 required the provision of estimated valuations for DPP and REIT securities, at the same time (Corporate Finance) Rule 2710 and (Direct Participation Program) Rule 2810 each prohibited participation in REIT and DPP offerings (respectively) if the estimated value, the method by which it was developed, and the date of the data used to develop the estimated value were not provided in each annual report. FINRA amended Direct Participation Rule 2810 effective August 6, 2008 under NTM 08-35, which addressed the regulation of compensation, fees and expenses in public offerings of direct participation programs and unlisted real estate investment trusts. 44 (Emphasis added) 40 See NTM 08-57, SEC Approves New Consolidated FINRA Rules, October The rule renumbering was due to the consolidation of NASD and NYSE Regulation into FINRA. There were multiple NTM s on the rule consolidation because it was done in phases. See infra note See supra notes 17 and 38 and accompanying text. 42 Article III, Section 34 (Direct Participation Programs) became NASD Rule 2810 when the rule numbering system changed. See supra note See supra note 17 at FINRA NTM 08-35, Public Offerings of DPPs and REITs, July 2008,

11 Section (b) (1) explicitly adopts the Customer Account Statement Rule 2340(d)(4) definition of REIT, which is: real estate investment trust or real estate investment trust security refers to the publicly issued equity securities of a real estate investment trust as defined in Section 856 of the Internal Revenue Code, but does not include securities on deposit in a registered securities depository and settled regular way or securities listed on a national securities exchange. 45 Then NTM simply adds the phrase or REIT throughout Rule 2810, making DPP and REIT generally appear as a pair. Thus, Section (b) (5) is changed to: No member may participate in a public offering of direct participation program or REIT securities unless[:] [(A)] the general partner or sponsor of the program or REIT will disclose in each annual report distributed to investors pursuant to Section 13(a) of the Act a per share estimated value of the direct participation program securities, the method by which it was developed, and the date of the data used to develop the estimated value. 46 (Underlining of amended terms in the original.) As far as valuations are concerned, this amounted to a belt-and-suspenders approach. After NTM 01-08, Corporate Finance Rule 2710 already prohibited members from participating in a REIT offering where the sponsor did not disclose a value in each annual report. NTM reiterated, almost verbatim, the language incorporated into Rule 2710 in NTM However, NTM did serve to include REITs in all the underwriting compensation, liquidity disclosure, sales load and training rules of Rule Finally, FINRA Rule 2810 became Rule 2310 Direct Participation Programs, effective September 8, Conclusion What began on March 9, 1994 with the Markey and Fields letter to Joseph R. Hardiman, was effectuated seven years later on April 16, As can be seen, NTM binds Rules 2340, 5110, and 2340 like a cross-rail. The regulation of valuations of DPP and REIT securities now sits on a three-legged stool of these rules. 45 at 8 and supra note 17. This definition first appeared in NTM 97-14, March See supra note 43 at See supra note 25 and accompanying text. 48 See supra note NTM 09-33, SEC Approves New Consolidated FINRA Rules, June 2009, 1. This was due to the ongoing, multiple-phase rulebook consolidation of the NASD and NYSE rules. 10

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