In August 2016, FINRA quietly requested comment on a proposal to expand the now largely dormant OTC Bulletin Board quotation service (“OTCBB”) as a backup inter-dealer quotation system for OTC Equity securities. As part of the proposal, the OTCBB would be renamed and branded as the Over the Counter Display Facility or “ODF.” Previously, on October 7, 2014, the SEC published a release instituting proceedings to determine whether to approve FINRA’s request to delete the rules related to, and the operations of, the OTCBB. My blog on the proposal can be read HERE.
However, on March 12, 2015, FINRA withdrew the proposed rule change and request to delete the OTCBB. Although the March 12, 2015 withdrawal did not cite reasons, in its new request for comment, FINRA indicates it withdrew the proposal in response to SEC staff requests that FINRA continue to operate alternative quotation facility.
Since that time the OTCBB has remained largely relatively dormant. According to FINRA’s OTCBB website, there were a total of 4,842 trades for 61 companies on the OTCBB in June 2017. Moreover, there is no readily accessible quotation platform for individual investors. By comparison, in June there were 2,889,702 trades involving 10,861 companies on the OTC Markets platform.
FINRA’s Request for Comment
Background and Discussion
FINRA begins its discussion by noting that over the years, there have been instances of market-wide trading halts for all OTC Equity securities “out of concern for a substantial lack of transparency due to the limited quotation information for these securities.” FINRA continues that these trading halts followed system failures on an inter-dealer quotation system (i.e., OTC Markets, as it is the only operating inter-dealer quotation system). FINRA suggests that if it operated a facility capable of serving as an alternative inter-dealer quotation system for OTC Equity securities, the need for market-wide trading halts would be obviated except for the most extraordinary circumstances. FINRA states that the SEC has urged FINRA to operate a second OTC Equity inter-dealer quotation service.
As an aside, when I first read this introduction by FINRA, I had a memory of such an issue once, and not recently. A quick Google search showed that on November 7, 2013 and again on October 17, 2014, FINRA imposed a market-wide trading halt on OTC Equity securities. No other market-wide trading halts have been imposed, and I note that since 2014, OTC Markets has continued to expand upon and improve its systems, including by becoming an SCI Entity under Regulation SCI (see HERE for more information).
FINRA is proposing to expand its OTCBB quotation system to include additional eligible securities and to operate as an alternative quotation system for all OTC Equity Securities. The request for comment concentrates on positioning the OTCBB as a backup to the OTC Markets (or any future inter-dealer quotation system) in the event of system failures. However, it is unclear if FINRA intended to expand the system to attempt to become a viable competitor to the OTC Markets.
The initial comment period for FINRA’s proposal expired on November 29, 2016. FINRA received three responses to its request for comment: one from OTC Markets Group opposing the proposal; one from the Security Traders Association of New York, likewise opposing the proposal; and one from the Delaware Board of Trade Holdings (DBOTS), which supports the idea but suggests it should be the alternative marketplace and not the FINRA-run OTCBB.
As of the date of this blog, no further action has been taken on the request for comment and no proposed rule changes have been submitted to the SEC for implementation.
Pursuant to Section 15A of the Exchange Act, FINRA is tasked with adopting and implementing regulations designed “to produce fair and informative quotations, to prevent fictitious or misleading quotations, and to promote orderly procedures for collecting, distributing, and publishing quotations.” In that regard, FINRA has developed a regulatory framework, including FINRA’s Rule 6400 series (Quoting and Trading in OTC Equity Securities) and Rule 5200 Series (Quotation and Trading Obligations and Practices) and the Rule 6500 series, governing the OTCBB. FINRA also owns and operates the OTCBB.
The current regulatory framework governs the FINRA member firms’ quotation activity and not the inter-dealer quotation service itself. That is, the current regulatory framework governs the broker-dealers/FINRA member firms’ activities in entering quotes on the inter-dealer quotation system, but does not impose rules or regulations on the inter-dealer quotation system itself.
For example, there are rules that require FINRA members to either file a Form 211 with FINRA, including due diligence and disclosure meeting the requirements of SEA Rule 15c2-11, on the company whose securities are being quoted, or be able to rely on another firm’s 211 filing (piggyback-qualified) prior to initiating a quote; rules related to minimum bid price increments ($0.0001 for OTC equity securities priced under $1.00 and $.01 for those priced over $1.00); rules prohibiting cross-quotation; rules requiring the display of customer limit orders; and a requirement that any quoted bid or asked price represent a bona fide bid for or offer of such security (i.e., the “fictitious quotation” prohibition).
Although the FINRA regulatory notice suggests that the OTCBB operates today in much the same form as it did when created in 1990, it is not a quotation system available to retail investors. The prior quotation platform at www.otcbb.com now routes to FINRA’s website and its information page on the OTCBB. No actual quotations can be viewed. As FINRA noted in its 2014 request to delete the OTCBB altogether, it is scantily used and its use has continued to decline since that time.
FINRA does, however, issue trading symbols to market makers that file a 15c2-11 application seeking quotation on the OTCBB. In order to qualify for such symbols, the company must be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended “Exchange Act” and current in such requirements. FINRA’s newest request for comment proposes eliminating the requirements that companies be Exchange Act-reporting to qualify for the OTCBB.
Proposed Revisions to Current OTCBB
FINRA is proposing to amend Rule 6530 (OTCBB Eligible Securities) to allow non-Exchange Act-reporting companies to qualify for quotation. Companies would instead be identified as either reporting and current, delinquent reporting or non-reporting. FINRA would not offer an alternative reporting standard similar to the OTC Markets, but rather would rely on public information for its designation of a company. For more information on the OTC Markets Alternative Reporting Standards, see HERE for up-to-date information on the OTCQB and OTCQX alternative reporting standard and HERE for the OTC Pink alternative reporting standard.
As part of the proposal, the OTCBB would be renamed and branded as the Over the Counter Display Facility or “ODF.” The new system would remain a display-only system and not provide for communication links or execution functionality between market makers or member firms. To encourage use, the current $6/security/month positon charge applicable to broker-dealers that display quotations on the OTCBB, would be eliminated.
The new ODF would still require the filing of a 15c2-11 application, or piggyback eligibility, for quotation. However, FINRA is proposing adding exemptions from the 211 requirements to allow member firms to display quotations in any security that is piggyback-eligible on any inter-dealer quotation system operated by a FINRA member. Presumably, securities that are piggyback eligible on the OTC Markets would qualify for quotation on the new ODF without an additional 211 application.
FINRA is also proposing to require member firms or market makers that meet specified quotation activity thresholds in OTC equity securities over the prior six months to establish connection to the FINRA facility and test that connectivity and limited functionality on at least a semiannual basis. FINRA believes that mandatory testing supports the viability of the system as an alternative venue for the display of quotations in OTC equity securities should another inter-dealer quotation system experience system disturbances.
OTC Markets Response
OTC Markets submitted one of the three comment letters in response to the FINRA request for comment. In addition, OTC Markets included a discussion of FINRA’s ODF proposal in its quarterly report for the period ending March 31, 2017 (OTC Markets is itself an OTCQX-traded entity). OTC Markets believes that the FINRA ODF proposal would not accomplish its stated goals, is anti-competitive and otherwise should not move forward.
OTC Markets expressed several concerns over FINRA’s proposal, including that: (i) the ODF would not be a viable trading system; (ii) the ODF’s mandatory testing requirements represent regulatory overreach and a conflict of interest; (iii) the ODF would use unnecessary time, resources and monetary costs on FINRA members; (iv) the ODF market structure would confuse investors and facilitate fraud and other market abuses; and (v) the ODF is a “solution in search of a problem that does not exist” as the OTC Markets inter-dealer quotation system is an SCI-compliant entity.
FINRA’s request for comment indicates that the technological functionality of the ODF would remain largely unchanged from the current OTCBB. The current OTCBB is a display-only system that does not allow for communication and trade execution among quoting market makers or member firms. It is this lack of functionality, among other issues, that has resulted in the irrelevance of the OTCBB in the first place.
Since the system would not be functionally viable, OTC Markets suggest that members would only connect because they would be forced to by FINRA, which represents a regulatory overreach. FINRA is a self-regulatory organization with enforcement powers and, as such, should not also be a market operator. Compliance with the new system would also impose costs on member firms, unnecessarily.
OTC Markets also suggests that the new ODF structure would promote fraud. In particular, FINRA suggests eliminating the requirement that companies be subject to the Exchange Act reporting requirements. OTC Markets suggests that some companies, that otherwise fail to provide any current market information and that may have a stop sign on OTC Markets, could claim qualification for the ODF and tout “compliance and regulatory status” to investors. The ODF may also confuse investors who may believe that the FINRA ODF designation indicates a qualified company that has been accepted by the regulator.
I agree with OTC Markets’ position and in fact, it is a point I have raised many times over the years. The OTC market is comprised of publicly traded securities that are not listed on a national securities exchange. The trading platforms for OTC securities are referred to as “inter-dealer quotation systems.” Today there are two inter-dealer quotation systems: (i) the OTC Markets, comprised of OTCQX, OTCQB, and pink sheets (www.otcmarkets.com); and (ii) the FINRA-owed OTCBB (www.otcbb.com). Many small-cap participants believe that the OTC marketplace is comprised of a single marketplace, and are confused by the actual existence of two such marketplaces. Over the years this confusion has dissipated as the OTCBB has become more and more irrelevant; however, a revamping and renaming of the marketplace will most certainly bring a whole new level of confusion to the system. I also agree that fraudsters and other bad actors will most certainly capitalize on this confusion to the detriment of unwitting investors and the marketplace as a whole.
Laura Anthony, Esq.
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
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Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
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