NFA Interpretive Notice Re: High Pressure Sales Tactics

NFA Compliance Rule 2-29 bars Member firms and Associated Persons from using high pressure sales tactics.  While the term is not defined, the NFA interpretive notice below gives a few non-exclusive examples of conduct which would fall under the “high pressure sales tactics” category.  These include: creating a sense of undue emergency for the customer, dissuading customers from seeking outside advice, threatening customers, and making phone calls to potential customers at unusual times or with unusual frequency.

With regard to current NFA members who engage in trading or advising on off-exchange forex transactions, this may apply if rules recently proposed by the NFA are approval by the CFTC and if the NFA Member utilizes promotional material which references hypothetical forex performance results.  (See NFA Proposes Additions to Forex Compliance Rules.)  With regard to the anticipated registration of forex-only managers and funds, this interpretive notice may apply in the future.

If you have any questions on this interpretive notice or if it applies to your firm, please contact us to discuss your situation.  Other related forex law articles include:

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NFA COMPLIANCE RULES 2-29: HIGH PRESSURE SALES TACTICS

INTERPRETIVE NOTICE

NFA Compliance Rule 2-29 governs Members’ communications with the public and is one of the most important NFA rules in ensuring that Members observe high ethical standards in their dealings with customers. NFA Compliance Rule 2-29(a)(2) prohibits the use of “high-pressure sales practices.” The rule itself does not define “high-pressure sales practices.” However, there have been a significant number of NFA enforcement cases prosecuted under the rule, and those cases provide guidance to Members on the types of practices which have been found to constitute high-pressure sales practices.

A common thread in many of the high-pressure sales cases brought by the Business Conduct Committee is the sense of undue urgency which the associated person conveys to the customer. In essence, the AP is asking the customer to act now and think later. This approach can take several different forms. In some cases, the AP rushes the customer through the account opening forms, glossing over the risk disclosure in his haste to open the account. Frequently, an overnight courier service delivers the blank forms to the customer and waits while the customer completes the form. In some cases, APs have actively attempted to dissuade unsophisticated customers from seeking further advice on their investment decision from friends, relatives or advisors or have tried to threaten or intimidate customers. The purpose of NFA’s rule is to ensure that the customer makes a fully informed and carefully considered investment decision. Any tactic, such as those outlined above, which presses a customer for a hasty decision will be considered a violation of NFA Compliance Rule 2-29(a)(2).

Another familiar theme in NFA’s high-pressure sales cases involves a pattern of telephone calls which are unusual in their timing or frequency. In several cases, the AP barraged the customer with calls either late at night or early in the morning. In other cases, the AP’s telephone solicitations to open an account occurred several times a day, several days a week for weeks on end. Phone calls made at unusual hours and with unusual frequency, unless made at the customer’s request, can be an abusive practice, designed to abuse, annoy or harass a customer into opening an account and constituting a violation of NFA Compliance Rules.

Perhaps the most obvious indicator of a high-pressure sales practice is simply the tone used by the AP to address the customer. In a handful of cases, APs have shouted at customers, used profane language or otherwise berated the customer in an attempt to bully the customer into opening an account. Such conduct clearly violates NFA rules.

This notice cannot and is not intended to alert Members to all of the factors that may constitute a high-pressure sales practice. Each of the factors highlighted above, however, has frequently been present in the high-pressure sales cases brought by NFA, and Members should certainly be vigilant in preventing and detecting such practices in their own operations.

December 18, 2008 | Filed Under Laws and Regulations

 

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