According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) advisor Clark Gardner (Gardner), in May 2014, was terminated by his then employer Cetera Advisors LLC (Cetera) subsequent to the initiation of customer arbitration claim alleging unsuitable investments. Cetera stated that Gardner was terminated due to undisclosed outside business activities and the sale of unapproved products.
Shortly thereafter on May 29, 2015, Gardner was arrested for converting approximately $1.3 million in client funds by selling promissory notes to clients and depositing the funds into his personal bank account. This activity is alleged to have occurred from November 2011 to April 2014. Allegedly, Gardner used the money for luxury vacation packages, repaying personal funds owed to other individuals, and other items unrelated to the promised investments.
In addition, The Division of Securities for Utah’s Department of Commerce investigated Gardner after receiving a complaint from an investor. During that investigation the department discovered a $150,000 property purchase Gardner completed with an unregistered real estate company that earned him $20,000 in compensation. Gardner is reported to have promised the investor a steady income from the property and a significant return in five years.
However, these incidents are not the complete history of Gardner’s prior dealings. FINRA brought action against Gardner in 2005 for “distributing copies of a brochure promoting an insurance policy that communicated false or misleading information.”
Charging documents state Gardner also was involved in a lawsuit in Pennsylvania for advising clients to “purchase life insurance policies while misrepresenting the nature and benefits of the policies.”
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”.
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.
Investors who have suffered losses may be able recover their losses through securities arbitration. The attorneys at Gana LLP are experienced in representing investors 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.