Is the Financial Industry Regulatory Authority a Government Agency?

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The National Association of Securities Dealers, Inc. (NASD) and NYSE Group, Inc. (NYSE) have combined their regulatory operations into a new entity called the Financial Industry Regulatory Authority (FINRA). Although both the NASD and the NYSE have long histories as self-regulatory organizations (SROs), subject to increasingly pervasive and statutorily based SEC regulation, the creation of FINRA poses a question long lurking in the structure and operation of the NASD: was the NASD for all practical purposes a government agency, and if so, what are the constitutional and administrative law ramifications of such a conclusion for its new incarnation, FINRA? This article will discuss a number of issues in an attempt to answer these questions: the constitutional issues inherent in the FINRA's status as an SRO; cases addressing the NASD's or NYSE's immunity from suit for their regulatory decisions and functions; the right of persons under NASD investigation to claim deprivation of their Fifth Amendment rights; the status of NASD arbitration facilities; the constitutional and administrative due process rights of persons subject to FINRA investigations and enforcement actions and FINRA rule-making; and the status of SRO rules in cases posing preemption and antitrust issues. The article will conclude that as long as the securities industry, rather than the SEC, controls the governance of FINRA and the selection of its Board of Governors, FINRA will not be a government entity, but since FINRA will be exercising delegated governmental functions with regard to discipline and rule-making, fundamental constitutional and administrative law protections should be afforded to persons affected by these activities.