FINRA Bars Advisor Michael Babyak Over the Sale of Unapproved Investments

shutterstock_179203760-300x300Our firm is investigating claims made by The Financial Industry Regulatory Authority (FINRA) against broker Michael Babyak (Babyak), formerly associated with brokerage firms LPL Financial LLC (LPL) and Leigh Baldwin & Co., LLC (Leigh Baldwin).  According to brokercheck, Babyak consented to the sanction that he participated in private securities transactions involving customers of a member firm without first providing the firm written or oral notice of his activities. FINRA findings stated that Babyak had the customers invest a total of $4,250,000 into a limited liability company that he had created.

Babyak is then alleged to have assisted in wiring funds from the firm’s accounts to the borrower and the limited liability company’s bank account and signed the loan agreement and related security agreement on behalf of the company he created. FINRA alleged that Babyak then caused the company to loan the $4.25 million to a third party for the benefit of his customers.  FINRA also discovered that Babyak arranged for the company to use funds repaid from the $4.25 million loan to extend loans on behalf of the customers to two additional borrowers.

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.

Babyak entered the securities industry in 1994.  From 1994 until December 2015 Babyak was associated with LPL.  Finally, from December 2015 until September 2016 Babyak was associated with Leigh Baldwin out of the firm’s Mine Hill, New Jersey office location.  Babyak has also disclosed his outside business activities as including Precision Financial Services, Inc. and PFS Partners.  It is unclear at this time whether FINRA’s allegations concern these disclosed entities.

In the industry the term selling away refers to when a financial advisor solicits investments in companies, promissory notes, or other securities that are not pre-approved by the broker’s affiliated firm.  However, even though when these incidents occur the brokerage firm claims ignorance of their advisor’s activities the firm is obligated under the FINRA rules to properly monitor and supervise its employees in order to detect and prevent brokers from offering investments in this fashion.  In order to properly supervise their brokers each firm is required to have procedures in order to monitor the activities of each advisor’s activities and interaction with the public.  Selling away misconduct often occurs where brokerage firms either fail to put in place a reasonable supervisory system or fail to actually implement that system.  Supervisory failures allow brokers to engage in unsupervised misconduct that can include all manner improper conduct including selling away.

In cases of selling away the investor is unaware that the advisor’s investments are improper.  In many of these cases the investor will not learn that the broker’s activities were wrongful until after the investment scheme is publicized, the broker is fired or charged by law enforcement, or stops returning client calls altogether.

The investment fraud attorneys at Gana LLP have represented hundreds of investors in securities related disputes including in cases of selling away and brokerage firms failure to supervise their representatives.  Our consultations are free of charge and the firm is only compensated if you recover.