What is a Broker-Dealer? - Davis Polk & Wardwell

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§ 1A:2.6 BROKER-DEALER REGULATION the securities transactions for others’ account. 85 The analysis is similar to the analysis for M&A advisers. There have been calls for the SEC to promulgate an exemption to the broker-dealer registration requirement for business brokers. 86 [C] Networking Arrangements [C][1] Banks Banks have entered into arrangements with Registered Broker- Dealers pursuant to which a Registered Broker-Dealer offers brokerage services on or off the premises of a bank and to bank customers. In these arrangements, the bank typically receives a share of the compensation related to brokerage transactions the broker-dealer effects as a result of the networking arrangement. 87 At the same time, unregistered bank employees may engage in limited securities-related activities and receive incentive compensation such as a one-time cash fee of a fixed dollar amount for referring bank 85. Id. Country Business, Inc., SEC No-Action Letter (Nov. 8, 2006) (the SEC granted no-action relief to Country Business Inc. because it (i) would only have a limited role in negotiations and would not have power to bind parties in the transaction, (ii) would not engage in any transaction in securities, (iii) would receive a fixed fee, and (iv) would not assist purchasers with obtaining financing other than providing uncompensated introductions to third-party lenders); cf. Hallmark Capital Corp., SEC Denial of No-Action Request (June 11, 2007) (the SEC denied Hallmark Capital Corp.’s no-action request when its proposed activities included (i) identifying companies that might be interested in buying the client company; (ii) identifying possible acquisition target for the client and preparing an acquisition profile on the target company for the purpose of preliminary screening; (iii) identifying bank lenders, assisting clients with loan application process, and arranging meetings leading to the extension of bank credit facilities to the client; and (iv) receiving a modest upfront retainer and a fee based on the outcome of the transaction). 86. See, e.g., Letter to SEC Chairman Mary Schapiro, from Tabb, Inc. (Texas Association of Business Brokers) (Oct. 19, 2009) (arguing that the cost of registration for “main street business brokers” who deal in small business sale transactions would be prohibitive and exceeds any public benefit), available at http://sec.gov/rules/petitions/2010/petn4-599.pdf. See also Report and Recommendations of the Task Force on Private Placement Broker-Dealers, A.B.A. SEC. BUS. L. (June 7, 2005) (advocating, among other things, expansion of existing relief for small business brokers), available at www.amaaonline.com/files/ABA%20Task%20Force%20Report%20-% 20Private%20Placement%20Broker-Dealers%206-7-05.pdf. 87. See SEC Release No. 34-49879 [hereinafter Regulation B Proposing Release]; Definitions of Terms and Exemptions Relating to the “Broker” Exceptions for Banks, SEC Release No. 34-56501 (Sept. 24, 2007) [hereinafter Regulation R Adopting Release]. 1A–22
What Is a Broker-Dealer? § 1A:2.6 customers to the broker-dealer. 88 These activities may be deemed broker-dealer activities under certain circumstances. Prior to the adoption of the Gramm-Leach-Bliley Act (GLBA), 89 banks 90 were excluded altogether from the definitions of “broker” and “dealer” under the Exchange Act. 91 The GLBA replaced this exclusion with eleven conditional exemptions for banks from the statutory definition of “broker,” 92 including an exemption for banks’ “networking” arrangements. 93 88. Regulation R Adopting Release, supra note 87. 89. Also known as the Financial Modernization Act of 1999, Pub. L. No. 106-102, 113 Stat. 1338 (1999). 90. A “bank” is defined in section 3(a)(6) of the Exchange Act to include: (A) a banking institution organized under the laws of the United States, or a Federal savings association, as defined in section 2(5) of the Home Owners’ Loan Act [12 U.S.C.S. § 1462(5)], (B) a member bank of the Federal Reserve System, (C) any other banking institution, whether incorporated or not, doing business under the laws of any State or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to national banks under the authority of the Comptroller of the currency pursuant to section 92a of Title 12, and which is supervised and examined by State or Federal authority having supervision over banks, and which is not operated for the purpose of evading the provisions of this title, and (D) a receiver, conservator, or other liquidating agent of any institution or firm included in clauses (A), (B), or (C) of this paragraph. “Bank” has been interpreted to include the U.S. branches and agencies of foreign banks to the extent that they are supervised and examined by a federal or state banking authority. See SEC Release No. 34-27017, n.16 (July 18, 1989). It is important to note that exceptions applicable to banks under the Exchange Act, as amended by the GLBA, are not applicable to other entities, including bank subsidiaries and affiliates, that are not themselves banks. At the same time, the SEC has provided no-action relief to a service corporation that proposed to enter into networking arrangements with broker-dealers where the establishment of the service corporations was required by the laws or regulations governing the financial institution. See SEC Letter to Christine A. Bruenn, the State of Maine (Apr. 9, 2002); SEC Guide to Broker-Dealer Registration, supra note 72. 91. Before adoption of the GLBA, Exchange Act § 3(a)(4) defined the term “broker” as “any person engaged in the business of effecting transactions in securities for the account of others, but does not include a bank.” Before the GLBA, Exchange Act § 3(a)(5) defined the term “dealer” as “any person engaged in the business of buying and selling securities for his own account, through a broker or otherwise, but does not include a bank. . . .” 92. See Exchange Act §§ 3(a)(4) and 3(a)(5). For a more detailed discussion on the GLBA and exemptions for banks under the Exchange Act as amended by the GLBA, see infra section 1A:7. 93. See Exchange Act § 3(a)(4)(B)(i). While section 3(a)(4)(B)(i) only applies to banks, the SEC has permitted certain other financial institutions, such as (Broker-Dealer Reg., Rel. #9, 9/10) 1A–23
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