chaperone

Foreign Broker-Dealers in the U.S.: Full Registration or Rule 15a-6 Chaperone Services?

Navigating the U.S. securities market requires an understanding of regulatory requirements, particularly for entities involved in the brokering and dealing of securities.

The process of registering as a broker-dealer in the United States is complex, involving stringent compliance with federal, state, and self-regulatory organization (SRO) guidelines. This registration is crucial for maintaining market integrity and investor protection, ensuring that all participants operate within the bounds of the law.

However, for foreign financial institutions, engaging with U.S. institutional investors can be particularly challenging due to the need for SEC registration.

SEC Rule 15a-6, commonly known as the "Foreign Broker-Dealer Chaperoning Rule," offers a solution. This rule allows foreign financial institutions to operate in the U.S. market under specific conditions without full registration, provided they utilize a licensed U.S. broker-dealer as a chaperone.

So should you register as a broker-dealer in the U.S. or use SEC rule 15a-6 chaperoning?

By examining the requirements, activities triggering registration, potential risks, available exemptions, and the benefits of chaperone services, we will provide a detailed guide to help you decide the best approach for your business.

Understanding Broker-Dealer Registration

To navigate the U.S. securities market, it is important to understand the definition and roles of brokers and dealers under the Securities Exchange Act of 1934, along with the registration requirements involved.

Definition and Roles of Brokers and Dealers

Under the Securities Exchange Act of 1934, the terms "broker" and "dealer" have specific definitions that determine their roles and obligations in the securities market:

• Definition of Broker (Section 3(a)(4)(A)): A broker is any person or entity engaged in the business of effecting transactions in securities for the account of others. Brokers facilitate the buying and selling of securities on behalf of clients, earning commissions or fees for their services.
• Definition of Dealer (Section 3(a)(5)(A)): A dealer is any person or entity engaged in the business of buying and selling securities for their own account, either through a broker or otherwise. Dealers typically engage in principal trading, where they buy and sell securities from their own inventory.

Broker-Dealer Registration Requirements

Registering as a broker-dealer involves several regulatory steps to ensure compliance with federal and state laws, as well as self-regulatory organization (SRO) requirements.

SEC Registration (Section 15(a)(1) of the Exchange Act)

Any broker or dealer who uses the mail or any other means of U.S. interstate commerce to facilitate transactions in securities, or to promote the buying or selling of securities, is required to register with the SEC.

Any broker or dealer using the mails or any means or instrumentality of U.S. interstate commerce to effect transactions in, or to induce the purchase or sale of, any security must register with the SEC. This is a critical first step for any entity engaging in securities transactions in the U.S.

Self-Regulatory Organization (SRO) Membership

In addition to SEC registration, broker-dealers must become members of an SRO. The Financial Industry Regulatory Authority (FINRA) is the primary SRO for U.S. broker-dealers. Membership in FINRA involves adherence to its rules and regulations, which are designed to protect investors and maintain market integrity.

State Registration Requirements

Each U.S. state and territory has its own registration requirements for broker-dealers operating within its jurisdiction. For example, in the state of Utah, the Utah Uniform Securities Act outlines specific licensing requirements for broker-dealers and their personnel. Compliance with each state's regulations is essential for legally conducting securities business across multiple jurisdictions.

Registration for Associated Persons of Broker-Dealers

Certain associated persons, such as representatives and principals of a broker-dealer, must also register with FINRA and potentially other SROs. Additionally, they may need to register as agents or salespersons under state securities laws. 

Net Capital Requirements

The minimum net capital requirements for registering a broker-dealer in the US are set in the SEC’s Rule 15c3-1. Net capital requirements can range from $5,000 to many millions of dollars.

Anti-Money Laundering (AML) Program

Broker-dealers are required to implement an AML Program including customer identification, monitoring of transactions, and reporting of suspicious activities to prevent financial crimes.

For a more complete list of registration requirements, please see our article titled Broker-Dealer Registration Requirements in the US: A Step-by-Step Guide to Registering a Broker-Dealer Firm.

Activities and Compensation Structures Triggering Broker-Dealer Registration

Understanding the specific activities and compensation structures that trigger broker-dealer registration is essential for compliance with U.S. securities regulations. The SEC and courts use a "facts-and-circumstances" approach to determine whether an entity or individual must register as a broker-dealer.

Certain activities can trigger the need for broker-dealer registration. Engaging in any of the following actions, particularly in combination, often requires compliance with broker-dealer regulations:

• Structuring securities transactions
• Identifying potential investors
• Soliciting securities transactions
• Screening participants for creditworthiness
• Negotiating terms
• Providing investment advice
• Taking orders or executing transactions
• Handling customer securities or funds

Importance of Transaction-Based Compensation

The type of compensation received can also be a significant indicator of broker status. Transaction-based compensation is a hallmark of broker activity and generally requires registration.

Payments contingent on the value or completion of a securities transaction, such as commissions or success fees. This form of compensation is a strong indicator of broker activity and usually mandates registration. For example:

• Commissions: Receiving a percentage of the transaction value as a fee for facilitating the trade.
• Success Fees: Payments contingent on the successful completion of a securities offering or transaction.
• Indirect Transaction-Based Compensation: Even flat fees or salaries can be considered transaction-based if they fluctuate with the volume or value of transactions.

The SEC scrutinizes the economics of compensation arrangements to determine if compensation is transaction-based. For instance, a flat fee periodically recalculated based on transaction volumes may still be viewed as transaction-based compensation.

The SEC has denied no-action relief in cases where individuals performed broker-like activities without direct transaction-based compensation. For example, an investment adviser proposing to solicit clients and negotiate terms for private placements without receiving transaction-based compensation was still considered a broker by the SEC.

Risks of Operating as an Unregistered Broker-Dealer

Engaging in broker-dealer activities without proper registration can lead to severe legal and financial repercussions. Understanding these risks is essential for any entity or individual involved in the securities market to ensure compliance and avoid significant penalties.

Potential Regulatory Actions

• Cease-and-Desist Orders: The SEC or state regulators can issue cease-and-desist orders to immediately halt unregistered broker-dealer activities. These orders are designed to prevent further violations and can lead to permanent injunctions.
• Court Injunctions: Courts may issue injunctions to prohibit unregistered activities, enforce compliance, and address any ongoing violations. Such injunctions are legally binding and can significantly disrupt business operations.
• Civil Penalties: Unregistered broker-dealers may face substantial civil fines and disgorgement of profits obtained through illegal activities. These financial penalties can be substantial and impact the overall financial health of the firm.
• Criminal Liabilities: In severe cases, individuals may be subject to criminal prosecution, which can result in imprisonment and additional fines. Criminal charges can arise from intentional violations of securities laws and fraudulent activities.
• Investor Rescission Rights: Investors involved in transactions facilitated by unregistered broker-dealers may have the right to rescind their investments. This means they can demand a return of their investment funds, potentially leading to significant financial liabilities for the unregistered broker-dealer.
• Financial Liabilities: Beyond rescission rights, unregistered broker-dealers may be liable for additional damages claimed by investors, including losses incurred due to the lack of proper regulatory oversight and protection.
• Regulatory Actions and Public Records: Operating as an unregistered broker-dealer can severely damage a firm’s reputation. Regulatory actions and legal penalties become public records, which can erode trust and deter potential clients or partners from engaging with the firm in the future.
• Loss of Client Confidence: The negative publicity associated with regulatory actions can lead to a loss of client confidence and result in the termination of existing business relationships. Rebuilding trust in the financial market can be a long and challenging process.
• State-Specific Fines and Penalties: Each state has its own set of regulations and penalties for unregistered broker-dealer activities, which can add to the financial burden of non-compliance. These fines can be cumulative, leading to significant financial outlays for firms operating across multiple jurisdictions.
• State Injunctions: State regulators can issue injunctions to stop unregistered activities within their jurisdiction, further complicating business operations and compliance efforts. Firms must navigate varying state requirements to ensure full compliance.
• Control Persons: Section 20 of the Exchange Act holds control persons—those with significant influence over the operations of the unregistered broker-dealer—liable for violations, provided they cannot prove they acted in good faith and did not directly or indirectly induce the violations.
• Aiders and Abettors: Individuals or entities that knowingly assist in the unregistered broker-dealer’s violations may also be held liable. This can include business partners, associates, and even external advisors who facilitate or endorse non-compliant activities.

Exemptions from Broker-Dealer Registration

Operating as a broker-dealer requires strict compliance with registration requirements, but there are specific exemptions available that can allow entities to conduct certain activities without full registration.

These exemptions are crucial for entities looking to engage in securities transactions while avoiding the extensive process of broker-dealer registration.

Below, we explore key exemptions:

• Issuer Exemption
• M&A Broker Exemption
• Foreign Broker-Dealer Exemption

Exemption 1. Issuer Exemption

The Issuer Exemption, under SEC Rule 3a4-1, allows associated persons of an issuer to avoid broker registration under certain conditions. This exemption is premised on the idea that issuers selling their own securities are not acting as brokers for others.

To qualify for this exemption, the following conditions must be met:

1. No Statutory Disqualification: The associated person must not be subject to any statutory disqualification as defined in Section 3(a)(39) of the Exchange Act.
2. No Transaction-Based Compensation: The person cannot be compensated by the payment of commissions or other remuneration based either directly or indirectly on transactions in securities.
3. Not an Associated Person of a Broker-Dealer: The individual must not be associated with a registered broker-dealer.
4. Meets any of the

The Issuer Exemption applies in three specific scenarios:

1. Restricted Sales: The person can sell securities to financial firms, in connection with reorganizations, or under employee benefit plans.
2. Limited Sales: The person must primarily perform substantial duties for the issuer other than selling securities, should not have been a broker or dealer within the last year, and cannot participate in the sale of securities more than once every 12 months.
3. Passive Sales: The individual can only respond to unsolicited requests from potential investors or perform administrative work involved in securities transactions.

Exemption 2. M&A Broker Exemption

The M&A Broker Exemption (effective as of March 29, 2023) allows brokers who facilitate mergers and acquisitions of privately held companies to avoid full broker-dealer registration under the following conditions.

1. Eligibility of Privately Held Companies: The company involved must have no class of securities registered under Section 12 of the Exchange Act and meet specific revenue or EBITDA thresholds.
2. Control and Management Involvement: After the transaction, the buyer must control the company and be actively involved in its management.
3. Financial Statements: Buyers must have reasonable access to the company’s financial statements before completing the transaction.

Disqualification Scenarios

M&A brokers are disqualified from relying on this exemption if they have been barred or suspended from association with a broker-dealer by the SEC, any state, or any self-regulatory organization.

Excluded Activities

M&A brokers cannot receive, hold, or transmit funds or securities in connection with the transaction, engage in public offerings, deal with shell companies (except business combination-related shells), provide financing for the transaction, or represent both buyer and seller without written consent from both parties.

Exemption 3. Foreign Broker-Dealer Exemption

Foreign broker-dealers may also be exempt from U.S. registration requirements if they meet certain conditions under Rule 15a-6 of the Exchange Act.

The 15a-6 rule permits foreign broker-dealers to engage in limited activities with U.S. clients without registering, provided they comply with the following guidelines.

• Limited U.S. Business: The foreign broker-dealer must limit its securities business with U.S. clients to certain specified activities, such as unsolicited transactions.
• Intermediary Requirement: When dealing with institutional investors or major U.S. institutional investors, transactions must be effected through a registered U.S. broker-dealer acting as an intermediary. (If you want to learn more about this, get in touch with us).
• Research Distribution: The foreign broker-dealer can distribute research reports to major U.S. institutional investors under certain conditions, including that the reports are not used to solicit transactions.
• Compliance with U.S. Regulations: The foreign broker-dealer must comply with applicable U.S. regulations, including maintaining records and providing the SEC with access to those records upon request.

Understanding and utilizing these exemptions can provide significant flexibility for entities involved in securities transactions without the burden of full broker-dealer registration. For more detailed explanations on these exemptions, see our article titled Exemptions to Broker-Dealer Registration: Issuer, M&A Broker, and 15a-6 Chaperone Explained.

Introduction to SEC Rule 15a-6 Chaperone Services

What is 15a-6?

SEC Rule 15a-6 is a regulation under the Securities Exchange Act of 1934 that delineates the conditions under which non-U.S. broker-dealers can engage with U.S. institutional investors without registering as a broker-dealer in the United States.

The primary objective of Rule 15a-6 is to facilitate cross-border securities transactions while ensuring robust investor protection and maintaining market integrity.

SEC Rule 15a-6 allows foreign broker-dealers to operate within the U.S. market under specific circumstances without the need for full SEC registration. Instead, they can partner with a licensed U.S. broker-dealer, known as a "chaperone," who oversees and facilitates these transactions in compliance with U.S. securities laws.

This regulatory framework aims to balance the global nature of financial markets with the SEC's mandate to protect U.S. investors and uphold market standards.

Conditions for Foreign Broker-Dealers to Engage with U.S. Investors

Rule 15a-6 sets forth several conditions under which non-U.S. broker-dealers can interact with U.S. institutional investors:

• Unsolicited Transactions: Foreign broker-dealers can engage in transactions initiated by U.S. investors without solicitation.
• Specific Transactions with Qualified Institutional Buyers (QIBs): They can conduct business with certain qualified institutional buyers and major U.S. institutional investors, provided these transactions are intermediated by a registered U.S. broker-dealer.
• Distribution of Research Reports: Foreign broker-dealers are allowed to distribute research reports to major U.S. institutional investors under specific conditions, ensuring these reports are not used to solicit transactions.
• Intermediary Requirement: When dealing with U.S. institutional investors, transactions must be effected through a registered U.S. broker-dealer acting as an intermediary, who ensures compliance with U.S. regulations.

Role and Responsibilities of a 15a-6 Chaperone

A 15a-6 chaperone, also known as a chaperoning broker, serves as the intermediary between non-U.S. financial institutions and U.S. institutional investors.

The chaperone's primary responsibilities include:

Regulatory Compliance

Ensuring all transactions comply with U.S. securities laws and SEC regulations. This involves supervising the execution of trades, maintaining detailed records, and adhering to reporting requirements to ensure transparency and accountability.

Facilitating Transactions

Acting as a bridge, the chaperone enables foreign financial institutions to offer their investment products and services to U.S. institutional investors smoothly. This involves providing the necessary oversight to ensure that all activities are conducted within the legal framework.

Expert Guidance

A reputable 15a-6 chaperone possesses deep expertise in regulatory compliance and cross-border finance. They offer comprehensive support and guidance, helping foreign financial institutions navigate the complexities of the U.S. financial market, including understanding regulatory nuances and mitigating potential risks.

Risk Management

By ensuring adherence to regulatory standards, chaperones help mitigate the potential risks associated with cross-border transactions. This includes safeguarding both the foreign broker-dealers and U.S. investors involved in these transactions from legal and financial repercussions.

Broker-Dealer Registration Requirements: Special Situations

Finders

A "finder" is an individual who helps connect potential buyers and sellers of securities, typically for a fee.

Unlike brokers, finders operate in a more limited capacity and do not engage in activities that would require them to register as brokers under the Securities Exchange Act of 1934.

Their primary role is introductory, facilitating initial contact between parties without getting involved in the negotiation or execution of transactions.

In 2020, the SEC proposed a conditional exemption allowing natural persons to engage in certain capital-raising activities for accredited investors without needing to register as brokers. This proposal delineates two tiers of finders, each with specific permitted activities and limitations:

• Tier I Finders:
  • Limited to providing contact information of potential investors for a single capital-raising transaction by a single issuer within a 12-month period.
  • Prohibited from having any direct contact with potential investors regarding the issuer.

• Tier II Finders:

• • Allowed to provide contact information, identify and screen investors, distribute issuer materials, discuss issuer information (without offering investment advice), and arrange meetings.
  • Required to provide certain disclosures to investors, including the nature of their relationship with the issuer, compensation details, and any potential conflicts of interest.
  • Prohibited from engaging in activities such as negotiating terms, handling funds, or advising on the valuation or financial merits of the investment.

Both Tier I and Tier II finders can receive transaction-based compensation under the proposed exemption, provided they adhere to specific conditions, such as only working with issuers not subject to regular SEC reporting requirements and ensuring investors are accredited.

Private Placement Agents: Registration Requirements

Private placement agents, who facilitate the sale of securities in private offerings, generally need to register as brokers under the Exchange Act and comply with state securities laws. Simply engaging in transactions exempt under the Securities Act does not exempt them from broker-dealer registration requirements.

Due diligence is critical when engaging a private placement agent. This involves ensuring that the agent is properly registered and in compliance with all relevant regulatory requirements. Legal counsel should review placement agent agreements for compliance with both the Securities Act and the Exchange Act, including broker-dealer registration considerations.

Broker-Dealer Registration vs 15a-6 Chaperone Services

When deciding whether to register as a full broker-dealer in the U.S. or to use 15a-6 chaperone services, there are several critical factors to consider: cost and time, regulatory burden, flexibility, and market access.

Choosing between full broker-dealer registration and using 15a-6 chaperone services depends on the specific goals and resources of the foreign financial institution.

Full registration offers greater control and a broader scope of activities but requires a significant investment in time and resources. In contrast, 15a-6 chaperone services provide a cost-effective, efficient way to access the U.S. market with reduced regulatory burdens.

15a-6 chaperone services: Marco Polo Exchange (MPX)

Marco Polo Exchange (MPX) leverages 15a-6 chaperone services to facilitate efficient, compliant access to U.S. markets for foreign financial institutions. By examining MPX’s approach and success stories, we can better understand the practical benefits of using chaperone services over full broker-dealer registration.

MPX is the largest provider of 15a-6 chaperone services in the United States. We provide foreign financial institutions with a complete suite of services designed to ensure compliance with SEC regulations while enabling smooth cross-border transactions. This includes regulatory oversight, transaction facilitation, expert guidance, and risk management.

Benefits of Using MPX’s Chaperone Services

• SEC 15a-6 Regulatory Compliance: MPX ensures that all transactions meet the stringent requirements of U.S. securities laws, providing peace of mind to foreign financial institutions. Their deep expertise in regulatory compliance and cross-border finance helps FFIs navigate the complexities of the U.S. financial market efficiently.
• Operational Efficiency: By leveraging MPX’s infrastructure and expertise, foreign broker-dealers can streamline their operations. MPX’s tech-enabled approach not only automates many compliance processes but also reduces the administrative burden on foreign firms, allowing them to focus on their core business activities.
• Access to U.S. Markets: Non-U.S. broker-dealers can engage with U.S. institutional investors without the need for full SEC registration. This facilitates quicker and more cost-effective market entry, providing foreign firms with valuable opportunities for growth and expansion.
• Risk Management: Through rigorous adherence to regulatory standards, MPX helps mitigate the potential risks associated with cross-border transactions. This safeguards both the foreign broker-dealers and U.S. investors involved in these transactions.

MPX Passport

A standout feature of MPX is its Reg-Tech enabled platform, MPX Passport. This innovative platform integrates advanced technology to automate compliance checks, monitor transactions in real time, and ensure adherence to U.S. securities laws. The MPX Passport streamlines operations and enhances security, offering a higher level of transparency and efficiency.

Marco Polo Securities, Inc.

MPX provides chaperoning services through its U.S. broker-dealer affiliate, Marco Polo Securities, Inc. This entity is licensed by the SEC to offer chaperoning services, ensuring all transactions facilitated by MPX comply with U.S. regulations.

MPX Client Success Stories

Efficient Market Entry

Several of MPX’s clients have successfully entered the U.S. market using their chaperone services. For instance, a European asset manager utilized MPX Passport to seamlessly comply with SEC regulations, enabling them to quickly establish a presence in the U.S. and begin engaging with institutional investors.

Enhanced Compliance and Efficiency

A major Asian investment firm reported significant improvements in compliance and operational efficiency after partnering with MPX. The firm highlighted the benefits of MPX’s automated compliance checks and real-time transaction monitoring, which not only ensured regulatory adherence but also streamlined their internal processes.

Scalable Solutions for Growth

MPX has helped numerous clients scale their operations in the U.S. market. A mid-sized Latin American brokerage firm expanded its U.S. client base rapidly by leveraging MPX’s chaperone services, highlighting the scalable nature of the solutions provided by MPX.

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