The term “sophisticated municipal market professional” or “SMMP” is defined by three essential requirements: the nature of the customer; a determination of sophistication by the broker, dealer or municipal securities dealer (“dealer”); and an affirmation by the customer; as specified below.
(a) Nature of the Customer. The customer must be:
(1) a bank, savings and loan association, insurance company, or registered investment company;
(2) an investment adviser registered either with the Commission under Section 203 of the Investment Advisers Act of 1940 or with a state securities commission (or any agency or office performing like functions); or
(3) any other person or entity with total assets of at least $50 million.
(b) Dealer Determination of Customer Sophistication. The dealer must have a reasonable basis to believe that the customer is capable of evaluating investment risks and market value independently, both in general and with regard to particular transactions and investment strategies in municipal securities.
(c) Customer Affirmation. The customer must affirmatively indicate that it:
(1) is exercising independent judgment in evaluating:
(A) the recommendations of the dealer;
(B) the quality of execution of the customer’s transactions by the dealer; and
(C) the transaction price for non-recommended secondary market agency transactions as to which (i) the dealer’s services have been explicitly limited to providing anonymity, communication, order matching and/or clearance functions and (ii) the dealer does not exercise discretion as to how or when the transactions are executed; and
(2) has timely access to material information that is available publicly through established industry sources as defined in Rule G-47(b)(i) and (ii).
.01 Reasonable Basis Analysis. As part of the reasonable basis analysis, the broker, dealer or municipal securities dealer should consider the amount and type of municipal securities owned or under management by the customer.
.02 Customer Affirmation. The customer affirmation may be given either orally or in writing, and may be given on a trade-by-trade basis, a type-of-transaction basis, a type-of-municipal-security basis (e.g., general obligation, revenue, variable rate), or an account-wide basis.