FINRA Rule 9322

The key distinction between the two rules lies in the distributed authority structure of the NAC appellate context: unlike FINRA Rule 9222's unified Hearing Officer scheduling authority, FINRA Rule 9322 distributes scheduling flexibility authority among the NAC itself, the Review Subcommittee, a Subcommittee or Extended Proceeding Committee, and Counsel to the NAC — with Counsel subject to important restrictions that limit their scheduling authority to circumstances where parties consent to schedule compression.

FINRA Rule 9322 sits within the 9320 Transmission of Record; Extensions of Time, Postponements, Adjournments subsection of the 9300 Review of Disciplinary Proceeding series. It was adopted by SR-NASD-97-28 effective August 7, 1997, amended by SR-NASD-97-81 effective January 16, 1998, and last amended by SR-FINRA-2008-021 effective December 15, 2008 as part of the consolidated FINRA rulebook transition announced in Regulatory Notice 08-57. One selected notice is associated with the rule — 08-57.

FINRA Rule 9322(a): The Availability Standard and Counsel's Restricted Authority

FINRA Rule 9322(a) establishes the general availability of the rule's scheduling modification tools through the same good cause standard that FINRA Rule 9222(a) applies in OHO proceedings. At any time prior to the issuance of a decision pursuant to FINRA Rule 9349, the authorized adjudicative bodies and Counsel to the NAC may, for good cause shown, extend or shorten a period prescribed by the Code for the filing of any papers, and may postpone or adjourn a hearing consistent with paragraph (b).

The five authorized actors — the NAC itself, the Review Subcommittee, a Subcommittee, an Extended Proceeding Committee, and Counsel to the NAC — reflect the distributed authority structure of NAC appellate proceedings. At different stages of the appellate process, different bodies are actively managing the proceeding: the Review Subcommittee conducts the initial review, the Subcommittee or Extended Proceeding Committee conducts the oral argument phase, the full NAC makes the final determination. Each body has scheduling flexibility authority appropriate to the phase of the proceeding it manages.

The restriction on Counsel to the NAC's scheduling authority creates an important asymmetry within the rule's framework. While the adjudicative bodies — NAC, Review Subcommittee, Subcommittee, and Extended Proceeding Committee — may extend or shorten filing periods and postpone or adjourn hearings based solely on good cause, Counsel to the NAC faces an additional constraint: Counsel may shorten a filing period only with the consent of the parties, and may postpone or adjourn a hearing only with the consent of the parties. This consent requirement limits Counsel's unilateral scheduling authority to extensions — Counsel can extend a briefing deadline for good cause without party consent, but cannot compress parties' preparation time without their agreement.

This asymmetry reflects the institutional distinction between the adjudicative bodies and Counsel. When the NAC or a Subcommittee decides to shorten a briefing period, that decision reflects the adjudicative body's assessment of the proceeding's needs — a judgment that the parties can challenge through a FINRA Rule 9313(b) motion to the appropriate body if they believe it was made in error. When Counsel makes such a decision, it reflects administrative rather than adjudicative judgment, and the consent requirement ensures that parties retain control over their preparation timelines when the compressing decision comes from an administrative rather than adjudicative actor.

FINRA Rule 9322(b): The Six-Factor Analysis for Postponements and Adjournments

FINRA Rule 9322(b) establishes both the default rule for oral argument scheduling and the six-factor analysis framework for evaluating postponement and adjournment requests.

The default rule — oral argument shall begin at the time and place ordered unless the authorized bodies or Counsel to the NAC, for good cause shown, postpone, adjourn, or change the location — mirrors FINRA Rule 9222(b)'s default that hearings shall begin at the time and place ordered. Both rules establish that the scheduled date is presumptively binding and that modification requires demonstrated good cause — a default that reflects the Code's general preference for efficient proceedings conducted on schedule.

The six factors the authorized bodies and Counsel must consider when evaluating postponement or adjournment requests are specifically enumerated in FINRA Rule 9322(b) — one more factor than FINRA Rule 9222(b)'s five-factor framework, reflecting the appellate context's distinctive considerations.

The first factor — the length of time the disciplinary proceeding has been pending to date and the timeliness of the request — is the temporal context factor. A disciplinary case that has been pending for several years before reaching the appellate stage carries a stronger interest in expeditious resolution than one that has moved promptly to appeal. Within this factor, the timeliness dimension addresses whether the postponement request was filed promptly after the circumstances warranting postponement arose or was delayed — late-filed requests without adequate explanation for the delay weigh against granting postponement.

The second factor — the number of postponements, adjournments, or extensions already granted — is the cumulative delay factor. A first-ever postponement request in a proceeding that has proceeded on schedule presents a very different case from a third or fourth request in a proceeding that has been repeatedly delayed. The appellate record of prior scheduling modifications provides context for assessing whether the current request reflects genuine need or a pattern of delay.

The third factor — the stage of the proceedings at the time of the request — is the timing impact factor. A postponement request filed months before the scheduled oral argument has minimal disruption impact. A request filed days before argument — after Subcommittee panelists have prepared, after parties have organized their presentations, and after all coordination logistics have been completed — has substantial disruptive impact warranting higher good cause scrutiny.

The fourth factor — the prejudice to the other parties — introduces the adversarial fairness dimension that FINRA Rule 9222(b)'s framework does not separately enumerate. In the appellate context, postponements can affect not just the appellate proceeding itself but the operation of conditions and restrictions orders under FINRA Rule 9285 that remain in effect during the appeal — a prolonged appellate timeline extends the period during which those interim investor protection measures must be maintained by the respondent and the employing firm. The prejudice factor requires the adjudicative body to consider how scheduling modification affects all parties' interests.

The fifth factor — the potential harm to the investing public if an extension of time, an adjournment, or a postponement is granted — is the investor protection dimension that appears in both FINRA Rule 9222(b) and FINRA Rule 9322(b). In the appellate context, investor harm from delay is most acute when the underlying disciplinary proceeding addressed ongoing violations that pose continued investor risk — and when FINRA Rule 9285 conditions and restrictions have been imposed specifically to protect investors during the appeal period, prolonged appellate timelines extend the period during which those protective measures must remain operative.

The sixth factor — any other matter that justice may require — is the residual catch-all that preserves flexibility for considerations not captured by the five enumerated factors. Novel circumstances, extraordinary personal hardship, emergency events affecting parties' ability to participate, and other justice-based considerations may be raised under this sixth factor.

The Comparison with FINRA Rule 9222

The relationship between FINRA Rule 9322 and FINRA Rule 9222 illustrates FINRA's consistent design philosophy of applying parallel frameworks at different levels of the disciplinary proceeding hierarchy. Both rules use the same good cause standard. Both establish the same default that proceedings shall begin at the time ordered. Both include investor harm as an explicit consideration. Both address extensions of filing periods as well as postponements and adjournments of hearings. And both apply to the complete phase of the proceeding they govern — FINRA Rule 9222 from the Hearing Panel's first scheduling order through the decision, FINRA Rule 9322 from the filing of the appeal through the NAC's decision.

The key differences between the two rules reflect the different institutional structures. FINRA Rule 9222 vests unified scheduling authority in the Hearing Officer. FINRA Rule 9322 distributes that authority among five institutional actors with varying levels of restriction on their authority. FINRA Rule 9222 applies a five-factor analysis for postponements. FINRA Rule 9322 applies a six-factor analysis with an additional prejudice-to-parties factor. And FINRA Rule 9222 imposes a twenty-eight-day maximum on individual modifications with documented exceptions. FINRA Rule 9322 imposes no numerical maximum on individual modifications — the six-factor analysis governs without a quantitative cap.

Connection to FINRA Rules 9222, 9313, 9321, 9331, and 9341

FINRA Rule 9322 connects to FINRA Rule 9222 as its OHO-level counterpart — both rules implement the Code's scheduling flexibility philosophy at their respective levels of the disciplinary hierarchy. It connects to FINRA Rule 9313(a)(2) and (6) — which grant Counsel to the NAC authority to establish briefing schedules and rule on time extension motions within the constraints that FINRA Rule 9322(a)'s party consent requirement imposes. It connects to FINRA Rule 9321 — whose twenty-one-day record transmission deadline may itself be subject to extension through the NAC's FINRA Rule 9322 authority to designate a later transmission time. It connects to FINRA Rule 9331 — whose Subcommittee appointment process must be completed before the Subcommittee can exercise its FINRA Rule 9322 scheduling authority. And it connects to FINRA Rule 9341 — whose oral argument framework establishes the hearing schedules that FINRA Rule 9322 governs in terms of postponement and adjournment.

Examination Relevance and Key Takeaways

FINRA Rule 9322 is tested on the Series 24 General Securities Principal examination as the NAC appellate scheduling flexibility rule — the appellate counterpart to FINRA Rule 9222's OHO scheduling framework.

The key points to retain are these: FINRA Rule 9322 grants the NAC, the Review Subcommittee, a Subcommittee, an Extended Proceeding Committee, and Counsel to the NAC the authority to extend or shorten filing periods and postpone or adjourn oral argument for good cause shown at any time prior to the NAC's FINRA Rule 9349 decision; Counsel to the NAC faces an important restriction — Counsel may shorten a filing period or postpone or adjourn a hearing only with the consent of all parties, even if good cause otherwise exists; oral argument shall begin at the time and place ordered as the default rule — modification requires good cause; in considering postponement or adjournment motions the authorized bodies must consider six factors — the length of time the proceeding has been pending and the timeliness of the request, the number of prior modifications granted, the stage of the proceedings, the prejudice to the other parties, the potential harm to the investing public from delay, and any other matters justice requires; the sixth factor — prejudice to the other parties — appears in FINRA Rule 9322 but not in FINRA Rule 9222's five-factor OHO framework; FINRA Rule 9322 imposes no numerical maximum on individual scheduling modifications unlike FINRA Rule 9222's twenty-eight-day cap; the rule mirrors FINRA Rule 9222's good cause and investor harm framework while adapting it to the distributed authority structure of NAC appellate proceedings; and the rule was adopted in 1997 and last amended December 15, 2008 through SR-FINRA-2008-021.