Articles Posted in Securities Arbitration

shutterstock_103476707Our investment attorneys are investigating customer complaints filed with The Financial Industry Regulatory Authority (FINRA) against financial advisor Victor Lambert (Lambert) currently not registered with any firm, alleging unsuitable investments among other claims.  According to brokercheck records Lambert has been subject to seven customer complaints and two judgement/liens.

In January 2016 Lambert disclosed a tax lien of $46,706.  A broker’s inability to handle their personal finances has also been found to be relevant in helping investors determine if they should allow the broker to handle their finances.

In October 2015 a customer filed a complaint alleging that Lambert purchased two equities that were inappropriate for the client causing damages.  The claim was resolved for $85,000.

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shutterstock_62862913Our firm is investigating claims made by VisionPoint Advisory Group, LLC and LPL Financial LLC (LPL) against broker Vincent Sturm (Sturm).  According to the two firms Sturm was discharged in August 2016 after allegation were made that Sturm violated firm policies by soliciting loans.  VisionPoint stated that no funds were received by Sturm and the loan was not made.  No other details concerning this activity were reported.

According to Sturm’s brokercheck records Sturm disclosed an outside business activity – Generations Wealth Advisors.  The providing of loans or selling of notes and other investments outside of a brokerage firm constitutes impermissible private securities transactions – a practice known in the industry as “selling away”.  Often times brokers who engage in this practice use outside businesses in order to market their securities.

Sturm entered the securities industry in 1998.  From January 2009 through March 2011 Sturm was associated with Securities America, Inc.  From February 2011 until December 2013, Sturm was registered with Broker Dealer Financial Services Corp.  Thereafter, from November 2013 until February 2016 Sturm was associated with InvestaCorp, Inc.  From January 2016 until August 2016, Sturm was associated with LPL.  Finally, since September 2016, Sturm has been registered with Berthel, Fisher & Company Financial Services, Inc. out of the firm’s Perry, Iowa office location.

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shutterstock_24531604According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Jerry McCutchen (McCutchen) has been the subject of at least 15 customer complaints and one judgment or lien. The customer complaints against McCutchen allege a number of securities law violations including that the broker made unsuitable investments, negligence, and misrepresentations among other claims.

The claims against McCutchen involve various investments including equipment leasing, non-traded real estate investment trusts (Non-Traded REITs), and variable annuities. We have written many times about the investing dangers of these products. One quality all of these investments have in common is the fact that they come with high commissions for the broker and low probability of success for the client. Our firm has written numerous times about investor losses in these programs such as equipment leasing programs like LEAF Equipment Leasing Income Funds I-IV and ICON Leasing Funds Eleven and Twelve. The costs and fees associated with all of these investments cause the security to be so costly that significant returns are virtual impossibility. Yet, investors are in no way compensated for the additional risks of these products.

In a typical equipment leasing program upfront fees are around 20-25% of investor’s capital. As for Non-Traded REITs, it was reported in the Wall Street Journal, that a study on “Nontraded REITs are costing investors, especially elderly, retired, unsophisticated investors, billions. They’re suffering illiquidity and ignorance, and earning much less than what they ought to be earning.” In conclusion, “No brokerage should be allowed to sell these things.”

According the analysis, shareholders have lost about $50 billion for having put money into Non-Traded REITs rather than publicly exchange-traded funds. The study found that the average annual rate of return of Non-Traded REITs was 5.2%, compared with 11.9% for the Vanguard REIT Index Fund, a publicly traded REIT index.

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shutterstock_184429547According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Judith Woodhouse (Woodhouse) has been barred for failing to respond to requests for information by the agency. The requests may have related to the reasons Securities America, Inc. (Securities America) gave for terminating Woodhouse’s employment. Upon termination from Securities America the firm filed a Uniform Termination form (Form U5) stating that the reason for the firm’s termination of Woodhouse was due to allegations by the firm that Woodhouse violated the firm’s policies relating to the borrowing of funds and responding to supervisory requests.

In addition, to the most recent FINRA action and bar, Woodhouse has been the subject of at least one customer complaint involving a private placement. In addition, Woodhouse has several financial disclosures and two regulatory actions. Another FINRA action in 2013, concerned Woodhouse’s involvement in private securities transactions totally over $500,000 that were made without Securities America’s consent. This action resulted in a $10,000 fine and three month suspension.

It is important for investors to know that all advisers have an obligation and responsibility to deal fairly with investors including making suitable investment recommendations. In order to make suitable recommendations the broker must have a reasonable basis for recommending the product or security based upon the broker’s investigation of the investments properties including its benefits, risks, tax consequences, and other relevant factors. In addition, the broker must also understand the customer’s specific investment objectives to determine whether or not the specific product or security being recommended is appropriate for the customer based upon their needs.

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shutterstock_82649419The attorneys at Gana LLP have been following the collapse of the MainStay Cushing Royalty Energy Income Fund (CURAX), (CURNX), (CURCX), and (CURZX). The fund describes its investment strategy as investing primarily in securities of energy-related U.S. royalty trusts, Canadian royalty trusts, and Canadian exploration and production (E&P), E&P master limited partnerships (MLPs), and securities of other companies in the same businesses as Energy Trusts and MLPs engage.

Investments in MLPs contain significant risks and the Cushing Fund has declined by over 50% in value from its high. These risks stem from the fact that MLPs tend to fluctuate with the price of oil and gas. For example in 2008, when oil plummeted in the wake of the great recession the AMZ MLP Index declined by 36.9% in a single year. MLPs have other risks that investors should know including the fact that these investments often grow their distributions at an accelerated rate in their first two years in order to attract positive research reports from Wall Street analysts. The funds use the increased distributions and positive reports to influence their values higher even though the true long term yield of these MLPs are unknown.

As a background MLPs are publicly traded partnerships. About 86% of MLP securities are related to energy and natural resource companies. There are about 130 MLPs trading on major exchanges that focus on energy related industries and natural resources. While MLPs have the same liquid trading characteristics as common stocks they are internally very different. For instance, MLP’s are pass through investment vehicles that pass through their income to the investor without any company level taxation. In addition, MLP’s must derive 90% of their revenues from their businesses in natural resources activities. Investors should also be aware that in practice, most MLP’s pay out most of their earnings through distributions rather than reinvest profits in the company. This causes the MLPs to issue additional debt and shares in order to grow the business.

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shutterstock_189006551The Financial Industry Regulatory Authority (FINRA) sanctioned broker Cary Olson (Olson) concerning allegations that Olson made recommendations in non-traditional exchange-traded funds (ETFs) to several customers without having reasonable grounds to believe his recommendations were suitable in relation to the holding periods for the ETFs. FINRA also alleged that Olson permitted the execution of options transactions in the account of a customer who was not approved for options activity.

Olson entered the securities industry in 1993.  In June 2006, Olson became registered at FlNRA firm Great Circle Financial until July 2013. From June 2013 until November 2013, Olson was registered with GBS Financial Corp. Finally, Olson is currently associated with Calton & Associates. This disciplinary matter is not the first time FINRA has sanctioned Olson. In January 2006, Olson consented to the entry of findings by NASD that he exercised discretion in customer accounts without obtaining written authorization. Olson was suspended for one month and fined $5,000.

FINRA alleged that from October 2010 through October 2012, Olson recommended transactions of various leveraged and inverse-leveraged ETFs in the accounts of five customers. As a background, these types of ETFs are designed to achieve their objectives over the course of a single day only and are generally not appropriate for long term holdings. By holding these ETFs over longer periods of time the value of the investment differs dramatically from the index it tracks because the investment is reset daily.

Despite these risks, FINRA found that the ETFs Olson recommended to his customers were held for much longer periods and up to 668 days with an average holding period of 290 days. FINRA found that these extended holding periods showed that Olson failed to appreciate the nature of the ETFs at the time of his recommendations and mostly likely did not understand that they were not designed to achieve their objectives for extended holding periods. Accordingly, FINRA found that Olson did not have reasonable grounds to believe his recommendations were suitable.

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According to the Wall Street Journal that Shares of mutual fund provider Virtus Investment Partners Inc. (Virtus Investment) tanked on news that the Securities and Exchange Commission (SEC) is closer to recommending charges against F-Squared Investments Inc., (F-Squared) a sub-adviser on the Virtus funds. F-Squared –builds mutual fund portfolios consisting of exchange traded funds (ETFs) for the Virtus mutual funds.

F-Squared received a Wells notice from the SEC which indicates an investigation and possible action by the commission against the company. According to WSJ, the SEC’s investigation revolves around whether F-Squared advertising of their quantitative stock strategies was truthful and whether they were tied to real money. The timeframe looks at the returns from April 2001 through September 2008.

While VRTS and the five Virtus Funds Premium AlphaSector (VAPAX), Allocator Premium AlphaSector (VAAAX), AlphaSector Rotation (PWBAX), Global Premium AlphaSector (VGPAX), Dynamic AlphaSector (EMNAX) are not subject to the SEC’s investigation the potential negative outcome for F-Squared is already negatively impact the mutual funds and therefore VRTS as well as clients flee these products.

On September 25, 2014, FINRA published its third quarter “Neutral Corner,” a newsletter designed to give practitioners, investors, and arbitrators updates on FINRA news. In the newsletter, FINRA officially announced the retirement of Linda Feinberg, President of FINRA Dispute Resolution. Ms. Feinberg has worked with FINRA since 1996. In addition, the newsletter highlights increased arbitrator disclosures. As of 2013, FINRA has increased its scrutiny of arbitrator disclosure by conducting internet searches of all arbitrators before having them appointed to panels.

Finally, FINRA highlights its new DR Portal – a web-based program designed to streamline the arbitration process for both attorneys and arbitrators. This is part of FINRA’s initiative to go paperless in the 21st century.

 

The Financial Industry Regulatory Authority (FINRA) sanctioned brokerage firm Blackbook Capital LLC (Blackbook) concerning allegations that: 1) between April 2010 and June 2011, Blackbook charged customers $60.50 on each purchase or sale transaction in addition to or in place of a designated commission; 2) between August 2010, and August 2011, Blackbook failed to search its records in response to requests by the Financial Crimes Enforcement Network of the Department of the U.S. Treasury (FinCEN) pursuant to the USA PATRIOT Act of 2001; 3) Blackbook failed to conduct an adequate independent Anti-Money Laundering (AML) test for calendar year 2010; and 4) between July 2009, and August 2011, Blackbook failed to preserve all of its business-related emails in a non-rewriteable, non-erasable format.

Blackbook has been a member of FINRA since March 2003. The firm has three offices with its main office located in New York City. Blackbook employs approximately 35 registered persons and engages in securities transactions for retail customers and investment banking transactions.

Under NASD Conduct Rule 2430 (Charges for Services Performed) charges for services performed, including miscellaneous services such as collection of moneys due for principal, dividends, or interest; exchange or transfer of securities; appraisals, safe-keeping or custody of securities, and other services, shall be reasonable and not unfairly discriminatory between customers. Under Exchange Act Rule 10b-10 (Confirmation of Transactions) broker-dealers are required to disclose specified information in writing to customers at or before the completion of a transaction. Finally, FINRA Rule 2010 (Standards of Commercial Honor and Principles of Trade) requires a member in the conduct of its business to observe high standards of commercial honor and just and equitable principles of trade.

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shutterstock_189006551This article picks up on our prior post concerning a recent report by Bloomberg concerning allegations that brokerage firms have used unscrupulous tactics in rolling over employee 401(k) plans into IRA accounts.

The article highlighted how Kathleen Tarr (Tarr) and Richard McCollam (McCollam) with Royal Alliance Associates gained access to AT&T Inc. employees. Tarr was also associated with SII Investment, Inc., from July 2010 until November 2012. McCollam began marketing to AT&T employees with 401(k) rollovers and lump-sum pension payments. The telecommunications company has 246,000 workers and ranks among the best 15 percent of U.S. plans in terms of fees, charging expenses as low as .01 percent. At AT&T employees can take a pension monthly payment or a lump sum payment.

According to the article the employees looked to Tarr as 401(k) expert and visited their homes and offices in order to advise them on their retirement plans. Bloomberg found that Tarr encouraged hundreds of departing AT&T employees to roll over their retirement savings into risky high-commission investments that the SEC and FINRA have warned customers against investing substantial unsuitable sums into.

According to Bloomberg McCollam handled the back office while Kathleen Tarr prospected for clients. Bloomberg reported that McCollam recommended that clients put 60 percent to 70 percent of their money in variable annuities with the rest in non-traded REITs, including Inland American Real Estate.

However, investing in a variable annuity within an IRA makes no sense for most investors. IRAs are already tax deferred vehicles. One of the main benefits of a variable annuity is its tax deferment. However, a variable annuity in an IRA provides no additional tax savings. Moreover, annuities increase costs and generate fees and commissions for the broker over the cost of simply investing in mutual funds outside of the annuity. According to Bloomberg, McCollam, Tarr, and Royal Alliance would generally receive commissions of as much as 6 percent or 7 percent of the money that clients invested in variable annuities. In addition, the mutual funds selected would charge customers 2 percent to 3 percent a year in fees. Compared to AT&Ts .01 percent fee it is difficult to imagine how customers are benefiting from these rollovers.

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