Broker Investigation: TIC Complaints Against Broker Toni Sutherland

shutterstock_128856874The investment attorneys at Gana LLP are interested in speaking with investors of broker Toni Sutherland (Sutherland). According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) Sutherland has been the subject of at least 7 customer complaints and one financial disclosure – a bankruptcy in November 2014. The customer complaints against Sutherland allege securities law violations that including unsuitable investments, misrepresentations, fraud, and breach of fiduciary duty among other claims.   Most of the customer claims involve allegations concerning recommendations in connection with the sales of tenants-in-common (TICs) or direct participation products.

The most recent complaint was filed in July 2012 alleges $353,000 in losses due to a recommendation to invest in a TIC. Another investor in February 2015, claimed $14,608,848 in damages due to investments in TICs purchased in 2004.

As a background, TICs largely been sold unfairly as tax advantaged products that allow customers to defer capital gains taxes on appreciated real estate. TICs are private placements that have no secondary trading market and are therefore illiquid investments. In a typical TIC, the investor receives a fractional interest in the property along with other stakeholders and the profits are generated mostly through the efforts of the sponsor and the management company that manages and leases the property. The sponsor typically structures the TIC investment with up-front fees and expenses charged to the TIC and negotiates the sale price and loan for the acquired property. Because these fees are often higher than 15%, there is often no way for the investment to be profitable for the investor.

TICs have come under fire by many investors and due to the failure of the TICs as a whole across the securities industry. Indeed, TICs have virtually disappeared as offered investments.   According to InvestmentNews “At the height of the TIC market in 2006, 71 sponsors raised $3.65 billion in equity from TICs and DSTs…TICs now are all but extinct because of the fallout from the credit crisis.” In fact, TICs recommendations have been a major contributor to bankrupting brokerage firms. For example, 43 of the 92 broker-dealers that sold TICs sponsored by DBSI Inc., a company whose executives were later charged with running a Ponzi scheme, a staggering 47% of firms that sold DBSI are no longer in business.

TIC investments entail significant risks. A TIC investor runs the risk of holding the property for a significant amount of time and that subsequent sales of the property may occur at a discount to the value of the real property interest. FINRA has also warned that the fees and expenses associated with TICs, including sponsor costs, can outweigh the any potential tax benefits associated with a Section 1031 Exchange. That is, the TIC product itself may be a defective product because its costs outweigh any potential investment value or tax benefit offered to the customer.

Due to the declining sales of these products and securities industry’s increasing refusal to sell them to investors, the securities industry has implicitly acknowledged that the costs, fees, and risks associated with TIC investments outweigh any potential tax deferral benefit, a benefit that disappears at some point because eventually taxes have to be paid upon the sale of the TIC.

Sutherland entered the securities industry in 1996. From September 2006 to September 2013, Sutherland was associated with Independent Financial Group, LLC. Currently, Sutherland is registered with Sandlapper Securities, LLC out of the firm’s Greenville, South Carolina office location.

Investors who have suffered investment losses may be able recover their losses through arbitration. The investment attorneys at Gana LLP are experienced in representing investors in cases of unsuitable TIC recommendations and other breaches of brokerage firm’s obligations to the customers. Our consultations are free of charge and the firm is only compensated if you recover.