For the commercial litigator, their first foray into the world of enforcement actions brought by the Financial Industry Regulatory Authority (FINRA) can be disorienting. Many elements will seem familiar: substantive rules govern the conduct of FINRA members and their employees; procedural rules guide enforcement actions; in-person hearing with testimony and an adjudication. While sanctions can and often are imposed, no one goes to jail.
But below the surface are fundamental differences that can catch even experienced counsel off-guard. Discovery is a one-way street: FINRA Enforcement has the power to depose witnesses at any time, but respondents have no such ability. Causes of action are broadly written, and references to “high standards of commercial honor,” for example, may leave a civil litigator at a loss as to what the elements of such a claim might be.
Role and Function
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