Articles Posted in Conflict of Interest

shutterstock_187083428-300x198According to a complaint filed by the State of Illinois Securities Department Thrivent Investment has been accused of engaging in replacing its client’s existing variable annuities for new variable annuities which requiring clients to pay surrender charges and various fees that were not appropriate for the client. Thrivent Investment violated Illinois law by allegedly: (1) failing to maintain and enforce a supervisory system and adequate written procedures to achieve compliance with the securities laws; (2) failing to adequately review the sales and replacements of Variable Annuities for suitability; (3) failing to enforce its written procedures regarding documentation of sales and replacements of Variable Annuities; and (4) failing to adequately train its salespersons to variable annuity transactions.

The lawyers at Gana LLP have represented investors in their claims against brokerage firms for unsuitable investments in annuity products.  Often times the benefits of variable annuities are outweighed by the terms of the contract that include exorbitant expenses such as surrender charges, mortality and expense charges, management fees, market-related risks, and rider costs.

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shutterstock_143685652-300x300Our securities fraud attorneys are investigating customer complaints filed with The Financial Industry Regulatory Authority (FINRA) against Douglas Studer (Studer) formerly associated with Kovack Securities Inc. (Kovack) alleging unauthorized trading among other claims.  According to brokercheck records Studer has been subject to two customer complaints, one bankruptcy in 2010, and one regulatory sanction resulting in a permanent bar from the securities industry.

In September 2016 FINRA sanctioned Studer alleging that he consented to the entry of findings that he refused to appear for testimony concerning an investigation into whether he had violated his employing member firm’s policy by being named in an elderly customer’s estate documents to inherit the customer’s waterfront condominium.

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shutterstock_168478292Our firm has previously reported on the growing trend of brokerage firms recommending non-purpose loans secured by their brokerage accounts to clients.  See Investors Risk Big Losses with Loans Secured by Securities Collateral Accounts.  Recently, the state of Massachusetts charged Morgan Stanley with conducting unethical – high-pressure – sales contests among its financial advisers to encourage clients to take out loans.  According to newsources, from January 2014 until April 2015, the firm ran two different contests involving 30 advisers in Massachusetts and Rhode Island with the express goal of persuading customers to take out securities-based loans (SBLOCs) with their securities accounts serving as collateral.  Advisers were promised bonuses of $1,000 for 10 loans, $3,000 for 20 loans and $5,000 for 30 loans. The contest was alleged to have generated $24 million in new loans and was run despite an internal Morgan Stanley prohibition on such initiatives.

As a background, these lines of credit allow investors to borrow money using securities held in the investment accounts as collateral and allow the investor to continue to trade securities in the pledged accounts. An SBLOC typically requires monthly interest-only payments until repaid. Thus, when an investor losses a significant amount of their portfolio the investor has made very little progress in repaying the loan and may have few to no options to pay the loan back.  Recently FINRA issued an “Investor Alert” entitled “Securities-Backed Lines of Credit – It May Pay to See Beyond the Pitch” recognizing the conflicts between brokerage firms incentivized by “SBLOCs [that] can be a key revenue source for securities firms” and those same firms “placing your financial future at greater risk.”

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shutterstock_26813263The investment attorneys of Gana LLP have been contacted by a growing number of investors who hold non-purpose loans secured by their brokerage accounts and then suffered staggering investment losses that have jeopardized their ability to repay the loan. In recent years all the major wire houses have begun recommending that their wealthier clients take out securities-backed lines of credit (SBLOCs). These loans that are often marketed by brokerage firms to investors as an easy way to cash out your securities accounts by borrowing against the assets in your portfolio without actually having to liquidate securities.

These lines of credit allow investors to borrow money using securities held in the investment accounts as collateral and allow the investor to continue to trade securities in the pledged accounts. An SBLOC requires typically requires monthly interest-only payments until repaid. Thus, when an investor losses a significant amount of their portfolio the investor has made very little progress in repaying the loan and may have few to no options to pay the loan back.

According to Fortune, securities lending is Wall Street’s hottest new business. According to the article brokerage firms such as UBS, Bank of America, Merrill Lynch, Morgan Stanley, Wells Fargo, and JP Morgan are recommending that their high net worth investors take out loans against their brokerage accounts at an alarming rate. The Wall Street Journal reported that securities based loans increased by 28% at UBS between 2011 and 2013. According to Fortune, a Wells Fargo advisor told the writer that the loans are so lucrative for the brokers that they refer to the money they make as their 13th production month. Another contact with Morgan Stanley reported that a regional manager would like to automatically send paperwork for loans with every single new account form.

However, the article noted that Morgan Stanley is actually behind other firms in the loan race because Morgan Stanley makes just 55 cents of loans for every dollar deposited which is far less than the 70 to 80 cents that rival banks make. In securities based lending Wall Street has found another product to push to bounds of reasonable advice through perverse compensation models that reward brokers for recommending their clients take outsized risks. For instance, in December Morgan Stanley apparently instituted a new bonus system for 2014 in which “advisers can earn up to $202,500 for loan growth, up from $127,500 in 2013.”  In addition, the firm’s CFO stated the firm’s goal was to triple their portfolio loan business from 2012 levels by 2015.

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shutterstock_20354398The securities lawyers of Gana LLP are investigating a complaint filed by The Financial Industry Regulatory Authority (FINRA) against broker Gopi Krishna Vungarala (Vungarala) and his brokerage firm Purshe Kaplan Sterling Investments (Purshe Kaplan). FINRA alleged that from at least June 2011 through January 2015, Vungarala regularly lied to his customer who is a Native American tribe regarding commissions paid to the broker and firm on non-traded real estate investment trusts (Non-Traded REITs) and business development companies (BDCs).

Vungarala served the tribe as both a financial advisor and was employed by the tribe as its Treasury Investment Manager and participated in decisions regarding the tribe’s investments. According to FINRA, Vungarala knew that the tribe prohibited employees such as Vungarala from engaging in business activities that could constitute a conflict of interest with the tribe. In order to induce the tribe to make purchases in Non-Traded REITs and BDCs in light of the prohibition against conflicts of interests Vungarala falsely represented to the tribe that he would not receive any commissions on the purchases. Despite the prohibition and the representations, FINRA alleged that Vungarala fraudulently induced the tribe to invest $190 million of dollars in Non-Traded REITs and BDCs without revealing that he and his firm received commissions on the sales at a typical rate of 7% generating $11.4 million in commissions for Purshe Kaplan of which $9.6 million was paid to Vungarala.

Worse still, FINRA alleged that the tribe was eligible to receive volume discounts on the products purchased but instead paid full commission. FINRA alleged that Purshe Kaplan’s supervisory failures led to the volume discounts not being applied. FINRA alleged that the tribe failed to receive more than $3.3 million in volume discounts and that these funds funds were instead paid to Purshe Kaplan and Vungarala in the form of commissions.

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shutterstock_183525509The Securities and Exchange Commission (SEC) announced fraud charges against a Stamford, Connecticut based investment advisory firm Atlantic Asset Management LLC (AAM) and accused the firm of investing clients in certain Native American tribal corporation bonds with a hidden financial benefit to a broker-dealer affiliated with the firm. The SEC alleged that AAM invested more than $43 million of client funds in the illiquid bonds without disclosing the conflict of interest that the bond sales generated a private placement fee for the broker-dealer.

According to the SEC, AAM committed securities fraud in August 2014 and in April 2015 by investing client funds in debt securities without telling its clients that the investments would benefit individuals affiliated with one of AAM’s owners, BFG Socially Responsible Investments Ltd. (BFG), which holds a significant ownership interest in AAM’s parent holding company due to an undisclosed investment in AAM. AAM never disclosed BFG’s capital contribution to and indirect ownership in AAM to its clients or in its filings with the SEC in violation of the federal securities laws. The SEC stated that these dicsloures were not made even after BFG’s principal representative was charged by the SEC and criminally in an unrelated securities fraud.

The SEC alleged that BFG has used its undisclosed ownership interest in AAM to dictate AAM’s investment of its clients’ funds in ways that benefited BFG and its principals and affiliates. The SEC alleged that clients’ funds were invested in dubious, illiquid bonds issued by a Native American tribal corporation at the behest of individuals associated with BFG.

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shutterstock_175298066The Securities and Exchange Commission announced fraud charges against a registered investment adviser and its owner on allegations of self-dealing and failing to disclose material facts to clients including conflicts of interest, use of investor funds, and the risks of the investments they recommended. The complaint filed in U.S. District Court for the District of Massachusetts, alleges that Lee D. Weiss (Weiss) and Family Endowment Partners, L.P. (FEP) and relief defendants MIP Global, Inc. (MIP Global), Mosaic Enterprises, Inc. (Mosaic Enterprises), Mosaic Investment Partners, Inc. (Mosaic), and Weiss Capital Real Estate Group, LLC (Weiss Capital) recommended their clients invest $40 million in illiquid securities issued by hedge fund FEP Fund I, LP (FEP Fund I) and the Catamaran Holding Fund, Ltd. (Catamaran Fund) without disclosing that Weiss had an ownership interest in the parent company of these entities and received payments from these entities.

The SEC’s complaint further alleges that FEP and Weiss recommended that their clients invest in entities that Weiss owned without disclosing that the investments would be used primarily to benefit FEP. The SEC also alleges that FEP and Weiss advised clients to invest in a consumer loan portfolio while concealing that Weiss would receive half of the clients’ profits from these investments.

Between 2010 and 2012, the SEC alleges that FEP and Weiss advised 11 FEP and caused two FEP affiliated hedge funds to invest more than $40 million in securities issued by subsidiaries of a French company that purportedly had designed methods to reduce the harmful effects of tobacco smoking. According to the SEC, FEP and Weiss had a financial interest in the French company and that Weiss and entities received more than $600,000 in payments from that company shortly after the FEP clients and hedge funds invested in it. However, the SEC stated that Weiss failed to disclose these conflicts of interest to investors.

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shutterstock_175835072The law offices of Gana LLP are investigating investor losses in Star Scientific, Inc. / Rock Creek Pharmaceuticals (Star Scientific) on the heels of a Financial Industry Regulatory Authority (FINRA) investigation into alleged false and misleading research reports issued by Oits Bradley (Bradley) presumably made about the company. Although FINRA only refers to Star Scientific in its complaint against Bradley as the “Pharmaceutical Company” we believe that the referenced report citations refer to Star Scientific.

According to FINRA, Bradley was an equity research analyst with Gilford Securities, Inc. (Gilford), who authored eight research reports containing false, misleading and unwarranted statements concerning Star Scientific. During the relevant time period Bradley was associated with Gilford from February 2012 until his termination from the firm in October 2014. FINRA alleged that Bradley’s research reports on the Star Scientific were distributed to Gilford’s brokers as well as various financial media outlets, investment research firms, firm clients and others.

FINRA found that Bradley falsely claimed that a prominent medical research university was conducting clinical trials on humans to study the effects of one of the Star Scientific’s dietary supplements on thyroid disorders. Additionally, FINRA alleged that Bradley made unwarranted and misleading statements concerning Star Scientific’s financial prospects based on his inaccurate claim that the university was conducting clinical trials on humans, and made false, misleading and unwarranted claims regarding the company’s announcement of preliminary results of its clinical trials on humans.

FINRA cited reports issued by Bradley promoting Star Scientific as “the real deal. Not petri dishes. Not mice. Human beings. Lots of them. Fully enrolled, and to be complete in December. Only two months away, but sufficiently underway that we can now at least speculate success. And, potentially, a Blockbuster.” In another report Bradley stated that his estimate that sales to treat thyroid conditions could produce “a potential $400 million revenue and $1.00 per fully taxed, fully diluted per share potential…”

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shutterstock_27786601The merry go-round of Wall Street fraud continues. After the housing crisis where Wall Street sold terrible home loans to investors we’ve arrived back to dot.com era frauds of selling favorable research. Enter the recent fine imposed by The Financial Industry Regulatory Authority (FINRA) that 10 of the largest brokerage firms were fined a total of $43.5 million for allowing their equity research analysts to solicit investment banking business by offering favorable research coverage in connection with the 2010 planned initial public offering of Toys “R” Us.

FINRA fines are as follows:

Barclays Capital Inc. – $5 million

Citigroup Global Markets Inc. – $ 5million

Credit Suisse Securities (USA), LLC – $5 million

Goldman, Sachs & Co. – $5 million

JP Morgan Securities LLC – $5 million

Deutsche Bank Securities Inc. – $4 million

Merrill Lynch, Pierce, Fenner & Smith Inc. – $4 million

Morgan Stanley & Co., LLC – $4 million

Wells Fargo Securities, LLC – $4 million

Needham & Company LLC – $2.5 million

Susan Axelrod, FINRA’s Executive Vice President, Regulatory Operations, said in a press release announcing the fine that “FINRA’s research analyst conflict of interest rules make clear that firms may not use research analysts or the promise of offering favorable research to win investment banking business. Each of these firms used their analyst to solicit investment banking business from Toys “R” Us and offered favorable research. This settlement affirms our commitment to policing the boundaries between research and investment banking to ensure that research is not improperly influenced.”

According to FINRA, in April 2010, Toys “R” Us and its private equity owners invited these 10 brokerage firms to compete for the Toys “R” Us IPO.  FINRA found that each of the 10 firms used its equity research analyst as part of its solicitation for the purposes of ensuring that the analysts’ views on key issues, such as valuation, were aligned with the views expressed by the firms’ investment bankers. FINRA found that the analysts’ presentations would be a key factor in determining whether the firm received an underwriting role in the IPO.

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Gana LLP is investigating LPL Financial after its stunning termination of James “Jeb” Bashaw, a former broker with LPL Financial. According to FINRA’s BrokerCheck Report,  LPL Financial terminated Mr. Bashaw for “participating in private securities transactions without providing written disclosure to and obtaining written approval from the firm.”
In addition, LPL explained that it terminated Mr. Bashaw for borrowing money from a client and engaging in a business transaction that created a “potential conflict of interest without providing written disclosure to and obtaining written approval from the firm.” Finally, LPL Financial stated that Mr. Bashaw failed to follow firm policies and industry regulations. Mr. Bashaw was discharged on September 24, 2014. In response, Mr. Bashaw stated that he was home supervised and had 13 perfect audits. Furthermore, he stated that he was still unclear as to the specifics of the discharge.
Mr. Bashaw started his career with Merrill Lynch, Pierce Fenner & Smith, Inc. and worked there for about two years and four months. Over his thirty year career, he also worked at Kidder, Peabody & Co., Thomas F. White & Co., First America Equities Corp., Augusta Securities Corp., Suntrust Equitable Securities, J.C. Bradford & Co., UBS Painewebber, Inc. and was most recently working at Wunderlich Securities, Inc.
Mr. Bashaw has had two customer complaints lodged against him. The first was while he was employed at Kidder Peabody & Co. A customer alleged that Mr. Bashaw breached his fiduciary duties and churned the customer’s account. The customer alleged $620,000 in damages and requested $1,000,000 in punitive damages. Kidder Peabody settled the case for $200,000.  A second complaint was lodged against Mr. Bashaw while he was employed at LPL Financial. According to the complaint, Mr. Bashaw sold a customer unsuitable unit investment trusts that were unsuitable. The claim was for $20,804.28 and it settled for $10,000.

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