Quick Answer
The private placement notice goes to FINRA and is separate from, and doesn't substitute for, the issuer's own SEC notice for the same offering. It's also separate from the member private offering rule, which applies only when the member itself, or one of its control entities, is the issuer of the securities being placed.
Mixing up these filings is an easy trap, because all three exist to make the same basic offering transparent to a regulator, just to different regulators for different reasons.
How Does This Filing Differ From the Issuer's Own SEC Notice?
- The private placement notice goes to FINRA. It is separate from, and does not substitute for, the issuer's own Form D notice filed with the Securities and Exchange Commission (SEC).
- Filing one does not satisfy the other requirement; a member that files with FINRA still needs the issuer to file its own Form D, and vice versa.
- Both filings run off the same trigger: each is due within 15 calendar days of the date of first sale, but they go to two different regulators for two different purposes. Only the Form D deadline rolls to the next business day when day 15 lands on a Saturday, Sunday, or holiday.
Exam Tip: Gotchas
- A member that files its FINRA notice hasn't filed the issuer's Form D, and vice versa. The two filings share a deadline trigger, not a destination, and only one of them rolls off a weekend.
How Does This Filing Differ From a Member's Own Offering Filing?
- The private placement notice filing requirement applies when a member sells a private placement of another issuer's securities.
- The member private offering rule applies only when the private placement is issued by the member itself, or by one of its control entities. A control entity is any entity that controls the member, is under common control with it, or is controlled by the member or its associated persons.
- An offering already filed with FINRA under the member private offering rule is exempt from the private placement notice filing requirement, so a member doesn't file the same offering twice.
Exam Tip: Gotchas
- These two filing rules aren't interchangeable. Which one applies turns on who issued the securities: the member, or its control entity, versus an unrelated issuer whose securities the member is merely selling.
What Should You Check on Exam Day?
- Identify which regulator a scenario is describing before answering. FINRA, the SEC, and the issuer's other filings serve different purposes even on the same offering.
- Match the deadline to the filing, not the reverse. Both the member's notice filing and the issuer's Form D run off the same 15-calendar-day trigger, but only Form D's deadline rolls off a weekend or holiday.
- Identify who issued the securities before picking which FINRA filing rule applies: an unrelated issuer triggers the private placement notice filing requirement, while the member or its control entity triggers the other one.