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  • 9140. Proceedings

    • 9141. Appearance and Practice; Notice of Appearance

      (a) Representing Oneself
      In any proceeding, a person may appear on his or her own behalf. When a person first makes any filing or otherwise appears on his or her own behalf before an Adjudicator in a proceeding, he or she shall file with the Adjudicator, or otherwise state on the record, and keep current, an address at which any notice or other written communication required to be served upon or furnished to him or her may be sent and a telephone number where he or she may be reached during business hours.
      (b) Representing Others
      A person shall not be represented before an Adjudicator, except as provided in this paragraph. Subject to the prohibitions of Rules 9150 and 9280, a person may be represented in any proceeding by an attorney at law admitted to practice before the highest court of any state of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States. A member of a partnership may represent the partnership; and a bona fide officer of a corporation, trust, or association may represent the corporation, trust, or association. When a person first makes any filing or otherwise appears in a representative capacity before an Adjudicator in a proceeding, that person shall file with the Adjudicator, and keep current a Notice of Appearance. The Notice of Appearance is a written notice stating the name of the proceeding; the representative's name, business address, and telephone number; and the name and address of the person or persons represented. Any individual appearing or practicing in a representative capacity before an Adjudicator may be required to file a power of attorney with the Adjudicator showing his or her authority to act in such capacity.
      (c) One Year Revolving Door Restriction
      No former officer of FINRA shall, within a period of one year immediately after termination of employment with FINRA, make an appearance before an adjudicator on behalf of any other person under the Rule 9000 Series.
      Amended by SR-FINRA-2011-032 eff. July 2, 2012.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Amended by SR-NASD-97-81 eff. Jan. 16, 1998.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 08-57.

    • 9142. Withdrawal by Attorney or Representative

      An attorney for a Party or other person authorized to represent others by Rule 9141 seeking to withdraw his or her appearance shall file a motion to withdraw. The motion shall set forth the good cause for withdrawal and state the name, current address, and telephone number of the Party no longer being represented.
      Amended by SR-FINRA-2011-044 eff. Mar. 30, 2012.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notices: 08-57, 12-12.

    • 9143. Ex Parte Communications

      (a) Prohibited Communications
      Unless on notice and opportunity for all Parties to participate, or to the extent required for the disposition of ex parte matters as authorized by the Rule 9000 Series:
      (1) No Party, or counsel to or representative of a Party, or Interested FINRA Staff shall make or knowingly cause to be made an ex parte communication relevant to the merits of a proceeding to an Adjudicator who is participating in a decision with respect to that proceeding, or to a FINRA employee who is participating or advising in the decision of an Adjudicator with respect to that proceeding; and
      (2) No Adjudicator who is participating in a decision with respect to a proceeding, or no FINRA employee who is participating or advising in the decision of an Adjudicator with respect to a proceeding shall make or knowingly cause to be made to a Party, a counsel or representative to a Party, or Interested FINRA Staff an ex parte communication relevant to the merits of that proceeding.
      (b) Disclosure of Prohibited Communication
      An Adjudicator who is participating in a decision with respect to a proceeding, or a FINRA employee who is participating or advising in the decision of an Adjudicator, who receives, makes, or knowingly causes to be made a communication prohibited by this Rule shall place in the record of the proceeding:
      (1) all such written communications;
      (2) memoranda stating the substance of all such oral communications; and
      (3) all written responses and memoranda stating the substance of all oral responses to all such communications.
      (c) Remedies
      Upon receipt of a communication made or knowingly caused to be made by any Party, any counsel or representative to a Party, or any Interested FINRA Staff in violation of paragraph (a)(1), FINRA or an Adjudicator may, to the extent consistent with the interests of justice, the policies underlying the Exchange Act, and the FINRA rules, order the Party responsible for the communication, or the Party who may benefit from the ex parte communication made, to show cause why the Party's claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected by reason of such ex parte communication. All participants to a proceeding may respond to any allegations or contentions contained in a prohibited ex parte communication placed in the record. Such responses shall be placed in the record.
      (d) Timing
      In a disciplinary proceeding governed by the Rule 9200 Series and the Rule 9300 Series, the prohibitions of this Rule shall apply beginning with the authorization of a complaint as provided in Rule 9211, unless the person responsible for the communication has knowledge that the complaint shall be authorized, in which case the prohibitions shall apply beginning at the time of his or her acquisition of such knowledge.
      (e) Waiver of Ex Parte Prohibition
      (1) Offer of Settlement
      If a Respondent submits an offer of settlement under Rule 9270, the submission constitutes a waiver by such Respondent of any claim that the prohibitions against ex parte communications were violated by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the offer of settlement and the order of acceptance, or other consideration of the offer of settlement and order of acceptance, including acceptance or rejection of such offer of settlement and order of acceptance.
      (2) Letter of Acceptance, Waiver, and Consent
      If a member or a person associated with a member submits an executed letter of acceptance, waiver, and consent under Rule 9216(a), the submission constitutes a waiver by such member or person associated with a member of any claim that the prohibitions against ex parte communications were violated by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the letter of acceptance, waiver, and consent, or other consideration of the letter of acceptance, waiver, and consent, including acceptance or rejection of such letter of acceptance, waiver, and consent.
      (3) Minor Rule Violation Plan Letter
      If a member or a person associated with a member submits an executed minor rule violation plan letter under Rule 9216(b), the submission constitutes a waiver by such member or person associated with a member of any claim that the prohibitions against ex parte communications by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the minor rule violation plan letter, or other consideration of the minor rule violation plan letter, including acceptance or rejection of such minor rule plan violation letter.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Amended by SR-NASD-97-81 eff. Jan. 16, 1998.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 08-57.

    • 9144. Separation of Functions

      (a) Interested FINRA Staff
      Except as counsel or a witness in a proceeding or as provided in the Rule 9550 Series, Interested FINRA Staff is prohibited from advising an Adjudicator regarding a decision or otherwise participating in a decision of an Adjudicator. An Adjudicator is prohibited from advising Interested FINRA Staff regarding a decision or otherwise participating in a decision of Interested FINRA Staff, including the decision to issue a complaint and a decision whether to appeal or cross-appeal a disciplinary proceeding to the National Adjudicatory Council.
      (b) Separation of Adjudicators
      A Hearing Officer, including the Chief Hearing Officer, or a Panelist of a Hearing Panel or an Extended Hearing Panel, is prohibited from participating in: a decision whether to issue a complaint pursuant to Rule 9211; a decision whether to appeal or cross-appeal a disciplinary proceeding to the National Adjudicatory Council pursuant to Rule 9311; and a discussion or decision relating to a call for review, a review, or an appeal pursuant to the Rule 9300 Series. Except if the Chair of the National Adjudicatory Council is also a Governor, a Governor is prohibited from participating in a discussion or a decision relating to the above referenced acts with the Review Subcommittee or the Adjudicators referenced above.
      (c) Waiver of Prohibitions of Separation of Functions
      (1) Offer of Settlement
      If a Respondent submits an offer of settlement under Rule 9270, the submission constitutes a waiver by such Respondent of any claim of violation of paragraph (a) or (b) by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the offer of settlement and the order of acceptance, or other consideration of the offer of settlement and order of acceptance, including acceptance or rejection of such offer of settlement and order of acceptance.
      (2) Letter of Acceptance, Waiver, and Consent
      If a member or a person associated with a member submits an executed letter of acceptance, waiver, and consent under Rule 9216(a), the submission constitutes a waiver by such member or person associated with a member of any claim of violation of paragraph (a) or (b) by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the letter of acceptance, waiver, and consent, or other consideration of the proposed letter of acceptance, waiver, and consent, including acceptance or rejection of such letter of acceptance, waiver, and consent.
      (3) Minor Rule Violation Plan Letter
      If a member or a person associated with a member submits an executed minor rule violation plan letter under Rule 9216(b), the submission constitutes a waiver by such member or person associated with a member of any claim of violation of paragraph (a) or (b) by a person or body in connection with such person's or body's participation in discussions regarding the terms and conditions of the minor rule violation plan letter or other consideration of the minor rule violation plan letter, including acceptance or rejection of such minor rule violation plan letter.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Amended by SR-NASD-2003-110 eff. June 28, 2004.
      Amended by SR-NASD-97-81 eff. Jan. 16, 1998.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notices: 04-36, 08-57.

    • 9145. Rules of Evidence; Official Notice

      (a) Rules of Evidence
      The formal rules of evidence shall not apply in a proceeding brought under the Rule 9000 Series.
      (b) Official Notice
      In a proceeding governed by the Rule 9000 Series, an Adjudicator may take official notice of such matters as might be judicially noticed by a court, or of other matters within the specialized knowledge of FINRA as an expert body. Before an Adjudicator proposes to take official notice of a matter, it shall permit a Party the opportunity to oppose or otherwise comment upon the proposal to take official notice.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 08-57.

    • 9146. Motions

      (a) General Requirement for Motions
      A Party may make a written or oral motion, subject to limitations set forth below. A Party or other person may make a motion under Rule 9146(k), subject to limitations set forth below.
      (b) Adjudicator May Require a Written Motion
      If a Party makes an oral motion, an Adjudicator may order that such motion be set forth in writing, after considering the facts and circumstances, including whether:
      (1) the hearing or conference in which the Party makes such motion is being recorded; and
      (2) the opposing Parties shall be fully informed and shall have adequate notice and opportunity to respond to such motion.
      (c) Specificity
      All motions shall state the specific relief requested and the basis therefor.
      (d) Time For Filing Opposition or Other Response to Motion
      Unless otherwise ordered by an Adjudicator, any Party may file an opposition or other response to a written motion and the opposition or response shall be filed within 14 days after service of the motion. If no response is filed within the response period, the Party failing to respond shall be deemed to have waived any objection to the granting of the motion. A Party shall be afforded an opportunity to respond to an oral motion at the time the oral motion is made, unless the Adjudicator orders that the Party shall be granted additional time to respond.
      (e) Oral Argument
      An Adjudicator may allow oral argument on motions. Oral argument may take place in person or by telephone.
      (f) Frivolous Motions
      An Adjudicator may deny dilatory, repetitive, or frivolous motions without awaiting a response.
      (g) No Stay
      Unless otherwise ordered by an Adjudicator, the filing of a motion does not stay a proceeding.
      (h) Reply
      The moving Party shall have no right to reply to the opposition or other response of the other Parties unless an Adjudicator permits a reply to be filed. Unless otherwise ordered by an Adjudicator, a movant's reply submission shall be filed within five days after the Adjudicator serves the order granting the motion to file a reply or a Party serves the opposition or other response to which the Adjudicator previously ordered that a reply could be filed.
      (i) Page Limit, Format Requirements
      Unless otherwise ordered by an Adjudicator, submissions in support of or in opposition to motions shall not exceed ten double-spaced pages, including double-spaced footnotes, exclusive of pages containing any table of contents, table of authorities, or addenda.
      (j) Disposition of Procedural Motions; Disposition of Motions for Summary Disposition
      (1) In the Rule 9200 Series, a motion on a procedural matter may be decided by a Hearing Officer. A motion for summary disposition of a cause of action set forth in a complaint shall be decided by a majority vote of the Hearing Panel or, if applicable, the Extended Hearing Panel.
      (2) In the Rule 9300 Series, a motion on a procedural matter may be decided by Counsel to the National Adjudicatory Council, the Review Subcommittee, a Subcommittee or, if applicable, an Extended Proceeding Committee, or the National Adjudicatory Council. A motion for disposition of a cause of action shall be decided by the National Adjudicatory Council, except that a motion to dismiss a case for abandonment made under Rule 9344 may be decided by the Review Subcommittee.
      (3) In the Rule 9500 Series, a motion shall be decided by an Adjudicator, except that a procedural motion made pursuant to the Rule 9520 Series or Rule 9559(q)(3) may be decided by Counsel to the National Adjudicatory Council.
      (k) Motion For Protective Order
      (1) A Party, a person who is the owner, subject, or creator of a Document subject to production under Rule 8210 or any other Rule which may be introduced as evidence in a disciplinary proceeding, or a witness who testifies at a hearing in a disciplinary proceeding may file a motion requesting a protective order to limit disclosure or prohibit from disclosure to other Parties, witnesses or other persons, except the Department of Enforcement and other FINRA staff, Documents or testimony that contain confidential information. The motion shall include a general summary or extract of the Documents or testimony without revealing confidential details. If the movant seeks a protective order against disclosure to other Parties, copies of the Documents shall not be served on the other Parties. Unless the Documents are unavailable, the movant shall file for in camera inspection a sealed copy of the Documents for which the order is sought. If the movant is not a Party, the motion shall be served on each Party by the movant using a method in Rule 9134(a) and filed with the Adjudicator. A motion for a protective order shall be granted only upon a finding that disclosure of the Document or testimony would have a demonstrated adverse business effect on the movant or would involve an unreasonable breach of the movant's personal privacy.
      (2) If a protective order is granted, the order shall set forth the restrictions on use and disclosure of such Document or testimony. An Adjudicator does not have the authority to issue a protective order that would limit in any manner the use by FINRA staff of such Documents or testimony in FINRA staff's performance of their regulatory and self-regulatory responsibilities and functions, including the transmittal, without restriction to the recipient, of such Documents or testimony to state, federal, or foreign regulatory authorities or other self-regulatory organizations. An Adjudicator does not have the authority to issue a protective order that purports to protect from production such Documents or testimony in the event that FINRA is subject to a subpoena requiring that the Documents or testimony be produced.
      (l) General
      All motions, oppositions or responses, replies, and any other filings made in a proceeding shall comply with Rules 9133, 9134, 9135, 9136 and 9137.
      Amended by SR-FINRA-2018-027 eff. Aug. 3, 2018.
      Amended by SR-FINRA-2011-044 eff. Mar. 30, 2012.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Amended by SR-NASD-2003-110 eff. June 28, 2004.
      Amended by SR-NASD-99-76 eff. Sept. 11, 2000.
      Amended by SR-NASD-97-81 eff. Jan. 16, 1998.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 00-56, 04-36, 08-57, 12-12.

    • 9147. Rulings On Procedural Matters

      The FINRA Board, the National Adjudicatory Council, a Hearing Officer, or any other Adjudicator shall have full authority, except as otherwise provided by the Code, to rule on a procedural motion and any other procedural or administrative matter arising during the course of a proceeding conducted pursuant to the Code, subject to the rights of review or appeal provided by the Code.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Amended by SR-NASD-97-81 eff. Jan. 16, 1998.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 08-57.

    • 9148. Interlocutory Review

      Except as provided in Rule 9280, there shall be no interlocutory review of a ruling or order issued by any Adjudicator in a proceeding governed by the Code. If an Adjudicator grants interlocutory review of a ruling or order, such review shall not stay a proceeding, except under Rule 9280 or as otherwise ordered by the Adjudicator.
      Amended by SR-FINRA-2008-021 eff. Dec. 15, 2008.
      Adopted by SR-NASD-97-28 eff. Aug. 7, 1997.

      Selected Notice: 08-57.